AT HYDERABAD.

F.A. 221/2005 against C.D.  763/1999, Dist. Forum-II, Hyderabad     

Between:

Pranic Healing Foundation of A.P.

A Public Charitable Trust

H.No. 6-3-388/A/18 (Plot No. 18)

Durga Nagar, Ameerpet

Hyderabad.

Rep. by its President

C. Sasidhar Reddy.                                     …                          Appellant/

                                                                                                 Complainant

                                                                    And

1. The Authorised Signatory

M/s. Hindustan  Motors Ltd

Birla Building, 10^th Floor

9/1, R.N. Mukherjee Road

Kolkatta.

2. The Manager (Dealer)

Auto Pradeep, Shapurwadi

Secretariat Road

Hyderabad.                                                            …                         Respondents/

                                                                                                O.P. No. 1 and 2. 

Counsel for the Appellant:                          Mr. S. Rajan

Counsel for the Resps:                               Mr. C.V. Narasimham (R1)

                                                                   Mr. Keshav  Hulsurkar (R2)

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

and

SRI G. BHOOPATHY REDDY, MEMBER

TUESDAY, THIS THE TWENTY  NINETH DAY OF JULY  TWO THOUSAND EIGHT

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          …….

          The appellant is the unsuccessful complainant.

          The case of the complainant in brief is that  she is the President and Managing Trustee  of the complainant,  a public charitable  Trust. The trust   has purchased an   Ambassador Nova Diesel car  on 29.12.1997 evidenced under Ex. A4  for Rs. 3,11,558/-  from R2  dealer.   It was manufactured by R1.   It bears chasis No.  AKW-773112 and engine No. 6EPMW-002032.  It was taken  delivery  on   29.12.1997  evidenced  under  Ex. A3.   R1  asserted  that  

the car  would give 14.5  KMs of mileage.    Whileso, within a span of 9 months,  the car being sent for service  repeatedly.  She was informed that  it was a defective old car  supplied to her, painted recently to give new appearance.  It was not road worthy.   It was having several defects viz., not giving mileage as projected.  It was constantly  breaking down.  Air conditioner was not working properly.  Leakage of oil from engine filters and gear box.  It was emitting black smoke.   It was full of  welding and the scratches were painted carefully.   The engine was not fixed properly.  The leaf springs collapsed.   The body was wobbling.  Since the problem was persisting, she gave a notice on 29.10.1998 calling upon R2 to refund the amount with interest at the rate of 24 percent p.a., besides compensation of Rs. 1,00,000/- for which they gave false reply.   She handed over the car  for rectification  of defects and that when they informed that the car was ready  she informed that she was not interested to take delivery of the defective car.   Therefore, she prayed that a direction be issued against  respondents for payment of Rs. 3,51,858/- with interest @ 24% p.a., besides Rs. 14,096/-  incurred by her towards service charges and compensation of Rs. 12,000/- towards mental agony and Rs. 5,000/- towards expenses.

          R2 filed counter, adopted by R1, denying the facts alleged in the complaint.  While denying each and every averments made in the complaint, they alleged that the complainant had purchased  the car after satisfying herself.  They never promised that it would give 14.5 Kms of mileage.  She had utilized all the three free services.   She herself executed a satisfactory memo.  The amounts that were paid were towards consumables used  during the course of service.   They did not demand any service charges.  At no point of time there was break down.   While denying  the various defects attributed they asserted that the car had no defects whatsoever.   The complainant cannot file a complaint  in her individual capacity. Since they have attended  on the car,  rectified the defects, not liable for payment of any compensation, and therefore prayed for dismissal of the complaint with costs.

          Apart from the memo adopting counter, R1 also filed its objection.  It has taken a preliminary objection that the complainant is a charitable trust,  and purchased the  car for commercial purpose, and therefore not  a consumer.  The Court has to summarily reject the complaint on the ground of lack of jurisdiction.  There was no deficiency in service either  after sales or  rendering service during the warranty period.  There is no privity of contract between it   and the complainant.   It was a new car that was sold to her, and therefore prayed for dismissal of the complaint.

          The complainant  in proof of her case filed her affidavit evidence  and filed Exs. A1 to A33.    The respondents filed affidavit evidence of R2 dealer  and filed Exs. B1 to B4.   

The Dist. Forum after considering the evidence placed on record  opined that  the complainant had utilized  three free services provided by R2 and gave customer satisfaction certificate. The complainant  had sent the car to  unauthorised workshops evidenced under Exs. A10 to A26.   The respondents cannot be held responsible for the defects or damage caused by untrained  and unskilled, unauthorised way side garage mechanics.  There was no deficiency in service on their part, dismissed the complaint.

          Aggrieved by the said decision the complainant preferred this appeal contending that the Dist. Forum did not appreciate the facts or law  in correct perspective.  It had failed to consider  Ex. A28 the opinion of an independent  experienced car mechanic  who opined that it was not a new vehicle and its condition was not proper.  It had failed to consider the reply to the notice issued under Ex. A32.   Ex. B2  copy of the warranty ought not have been relied.   Therefore  it prayed that the order under appeal be set-aside.

          It is an undisputed fact that the complainant on behalf of the charitable trust  purchased an  Ambassador Nova Diesel car  manufactured by R1 from  R2 dealer evidenced under  Exs. A1 to A4 and Ex. B1.  It is also not in dispute that  the complainant after taking delivery of the vehicle  used it for some time and utilized  three  free service coupons.   Clause 1 mentions that  the  “The dealer agrees that he will purchase from the company on principal to principal basis motor vehicles  (understood herein to mean only new vehicles as are specifically mentioned herein after viz., Hindustan Ambassador, Hindustan Contessar, Trekker, Porter and Drive away chassis spare parts, equipments, and accessories) on the terms set-forth in these presents.”

          Clause 7  to 9 of the warranty conditions are as follows -

          7. Dealer’s prescribed pre-delivery inspection and three initial services including oil and filter charges at scheduled KMs  are prerequisites for warranty coverage and are to be performed/organized by the selling dealer under his own direct financial responsibility  to the customer  and therefore, he customer’s  adhering to the same with his selling dealer or  authorised servicing dealer is essential in the event of need to process any valid warranty claim.

8. This warranty is given in lieu of and excludes every condition of warranty, whether statutory or otherwise, whatsoever not herein expressly set out.

          9. The warranty shall cease to apply if the car is negligently altered and/or repaired by any person other than Hindustan Motors Authorised Dealers.

          The complainant  apart from using three free services got the car repaired through private mechanics viz.,  Hashmi Motors, Car Sonics, Sadguna Diesels, Chown Motors, Best Auto Mobiles, SVL Auto Mobile evidenced under Exs. A14 to A26.

          Though the complainant alleged that it was an old car  projected as a new car  by applying  new paint etc., no evidence whatsoever was let in, in proof of the same.  Ex. A27  Registration Authority  while registering the car  mentioned that it was manufactured in  1997 giving its chassis number and engine number etc.  The complainant could have addressed a letter to the manufacturer  directing it  to give particulars as to the year of manufacturing of the said car by referring chassis and engine number.  

          The complainant in order to prove that  it was an old car and it was having several manufacturing defects  relied on the certificate issued by one  M. Jaya Shankar Krishna a mechanic under Ex. A28 Dt. 26.11.1998.   Prior to it  the complainant has given the car to R2  to effect repairs.   The complainant got issued a  lawyer notice Dt. 29.10.1998  under Ex. A31 alleging that  the car was frequently giving repairs and therefore directed R2 dealer to pay the amount claimed  in the complaint.  R2 gave a reply under Ex. A32 Dt. 18.11.1998 denying the said fact and informed that “the car is kept ready after attending  to all the requisite problems and the car is now ready for delivery.   Your client may come immediately on the receipt of  this notice after satisfying herself  about the condition of the car and take delivery of the car, failing which  my client shall be constrained to charge garage charges at Rs. 25/- per day.  Further note that my client will  not be liable  or responsible for the car’s maintenance due to lying unused.”

          The complainant did not give any reply by way of registered letter.  According to it, she gave a reply  Ex. A29 under certificate of posting  alleging that she was not satisfied with the car and therefore  the question of paying  Rs. 25/- per day  towards garage will not arise.  Having issued the notices all through by registered post, there is  no meaning in sending an important notice  under Ex. A29,  by way of certificate of posting.

          Obviously, in order to get over Ex. A31 notice, she got a certificate from  Mr. M.  Jaya Shankar Krishna under Ex. A28  stating that  the vehicle  has met with an accident and repainted recently  probablising   various defects.   The complainant neither filed the affidavit of  said mechanic nor  examined him  in order to prove that the car was an old one and met with  accident.  We may state herein that the complainant ought to have taken the car to an authorised mechanic, got evaluated the engine etc., furnish a copy of the same to the company, if not satisfied with the condition of the car.  She cannot out right refuse to take delivery of the car.    Refusing to take delivery of the car kept in the garage of the dealer, claiming the entire amount alleging that the car given to her was defective cannot but be termed as unholy.  She wants to rid of the  car by keeping it with R2 and consequently the liability to the trust.  Except her affidavit she did not file  the affidavit of the  mechanic.  His credentials are not known.   Having agreed to the warranty conditions, she ought not to have got the repairs in  private garages and claim the amounts.  

          Learned counsel for the complainant  relied the decision   in  Jose Philip Mampilli Vs. M/s. Premier Automoibles Ltd. reported in  2004 (1) Decisions Today  (SC) 99  and contended that when the defective car was sought to be sold as a brand new car, necessarily, the respondent had to get the car repaired besides payments of compensation.  In the above said  decision, on the facts, it was held  that the car was defective at the time of very  delivery.   On evidence it was held  that  “the  piston rings  of  the  diesel engine could never have gone in the small amount of running which the appellant did after he took delivery.”   However, coming to the facts  on hand,  there is no proof that the car was defective  from  the date of purchase.    Admittedly the car was purchased on 29.12.1997.  The complainant left  it in the garage  of R2 dealer,  on  17.9.1998,  almost a year after  she took delivery.  The complainant must have processed the claim in the lines of the above cause, though there is no proof that the car sold to her was an old one.  She never complained it either to the  manufacturer or to the dealer.  This is a belated plea.  

          On the contrary the learned counsel for the respondent contended that  some what in a similar case where the report of the mechanic was sought to be relied,  the National Commission in the decision in   M/s. Lovely Auto Vs. Harmesh Lal   reported in Consumer Case Sutides, May, 2007 -31 in R.P. No. 3031/2005 Dt. 8.1.2007.  It was also a case where it was alleged that car was defective.  In support of it the report of a mechanic was relied.  The National Commission  opined that report could not be construed as evidence of an expert when no affidavit of that person was filed.   There was no evidence whether the person had any qualification in Automobile Engineering.  When the affidavit of the respondent was filed to show that for whatever the defects. car was brought, defects were attended to, it must be held that the vehicle could not be suffering from manufacturing defect  warranting replacement.   In other  words, it was held  in the absence of evidence of expert, the vehicle merely because  it missed on two or three occasions, could not be said to be suffering from manufacturing defect.

 Coming to the case on hand,  at no time the complainant made a complaint to the dealer or to the manufacturer that it was old or that  it was having mechanical troubles etc.   Admittedly, the respondent had attended  to whatever defects that were pointed out.   It did not charge any service charges.   Obviously, as the car belongs to  the Charitable Trust , the Managing Trustee  Dr.  A. Saradamba  left the car in the garage, without bothering to take it,  though  R2  in his reply Ex. A32 informed that the car was  repaired and that she could  take it.   We do not agree that the complainant had given reply under Ex. A29 letter under certificate of posting,  more so, when  R2  disputed having received the same.   The complainant having got it repaired through various private mechanics cannot turn round and claim the entire amount towards price of the car.   In fact, for all these years,  the car has been kept in the possession of R2,  which in turn did not  operate.  Since all this  had happened due to the conduct of the complainant.  It  is  up  to  her  to  take  the  car  in ‘as is where is condition’.   

She cannot complain deficiency in service on the part of dealer.   It is one of the rare cases where the complainant had approached the Forum with an oblique motive to get a new car.  In the light of  Ex. A28  report of the mechanic, we must hold that the car must have met with an accident, that was why she got it repaired through private mechanics.  Suppressing all this material, the car was kept in the garage of R2 with a direction to get it repaired.   When the R2 informed that the car was ready, she did not take due to  fear that she had to pay the amount covered for repairs.   Probably, she may not be able to explain  the deficiencies  on her part to the Members of the Trust.  Since the complainant is not willing to take back the car which she has entrusted to R2, it is for the party to take recourse as per law.

          The learned counsel for respondent contended that the trust can not be termed as a consumer.  He contended that the  public trust has no legal personality.  It cannot own property, sue and be sued.  The public trust is not a ‘person’ within the definition of Consumer Protection Act, and not a consumer to file a complaint before the Consumer Fora.

 The National Commission in  Prathiba Pratisthan and Ors Vs. Allahabad Bank and Ors reported in  IV (2007) CPC 33 (NC) held that -

“A trust, unlike a company, has no legal personality, thus, it cannot own property  for entering into contracts, sue or are sued.  It is the trustees who own the trust property, enter into contracts, sued or are sued.  A trustee as such has no distinct legal personality in his representative capacity separate from himself in his personal capacity.”

          The National Commission considering the aforesaid definition of  the word  ‘person’, held that a public trust is not ‘person’ which can be considered to be a ‘consumer’ entitled to file complaint before the Consumer Fora.  The reasons are:

(i)