This case has been brought by Mrs. Sanam Mehra against The Hindustan Motors Ltd, 2. ESS- PEE Automotives Ltd, 3. ESS-PEE Automotives Ltd, having its office at Nageshwar Colony, Patna, for the following reliefs
1. To exchange the complainant’s car from a similar defect free brand new car or to pay the prevailing price of a similar brand new car.
2. To pay a sum of Rs 1,03,000.00 spent by the complainant in changing the engine of the car.
3. To pay a sum of Rs. 75000/- for the loss sustained by the complainant.
4. To pay a sum of Rs 50000/- for harassment and mental agony etc. Suffered by the complainant
5. To pay 18% interest over the amounts awarded form 17.01.2006, the date of second break down of the car, till the date of payment/ realization.
6. To pay a sum of Rs 1000/- as a cost of litigation.
7. Any other relief of reliefs for which the complainant is found legally entitled to.
Main facts giving rise to this complaint case is that complainant has purchased one petrol version ambassador car manufactured by opposite party no. 1 form its dealer opposite party no. 2, on 07.12.1998, for Rs 376653/-(three lacs seventy six thousand only for which he had taken loan form Punjab National Bank on and same would be obvious from annexure 1, 2 and 3. Because photocopy of delivery order dated 07.12.1998 shows payment of Rs. 376653/- in favour of opposite party no2. At the time of purchase it was assured by the opposite parties that the said car is free from any kind of manufacturing or any other defects. Photocopy of cash receipt no. 460, is in favour of the complainant issued by opposite party. Cash receipt is annexure. 4.
Car is said to have been registered in DTO office on 30.12.1998 in the name of the complainant. Chassis no of the car no is AA7-796152 and engine no- EIMX-054279 and registration no.BR-IL-9972. Registration fee was paid by the complainant. All these will be obvious from the annexure 5 to 7.
It is stated further, that from the date of purchase inspite of proper service and regular maintenance of the such vehicle at the cost of the complainant said car did not run with satisfactory performance and service. The complaint was made to opposite party no.2 and 3 but they only assured that said car will be made defect free after proper service but despite having made several complaints to the opposite party no.2 and 3, they did not take care of the request of the complainant relating to improper and unsatisfactory functioning of the car. Further, due to deficiency in service had also caused manufacturing defect in the car and on account of the aforesaid act and attitude of the opposite parties the block of the engine of the car was cracked in the month of March 2004. Such was reported to the opposite party no.2 and 3 and they had accepted if that cracking down of the block of the car within such a short period of purchase is very unusual and same can only happen due to manufacturing defect in a car but they did not report in writing.
It is also stated that opposite party no. 2 and 3, advised the complainant to get the engine of the car itself changed and to make the same diesel version in place of petrol version to bring end to all the defects and at the instance of the opposite party no. 2 and 3, complainant agreed to pay a total sum of Rs 103000/-(one lacs three thousand only) to the opposite party no. 2 and paid through the cheque mentioned specifically at Para 12 vide those four cheques towards the price of new engine. Therefore, complainant suffered from harassment, mental agony, and losses relating to payment through cheques. A photocopy of invoice no 6/50/378 dated 04.05.2004 has been annexed as annexure 8.
It is further, relevant that despite the above work while complainant brought the car from the workshop on 09.05.2004, found that the performance of the car is still not smooth and satisfactory. Accordingly, information to opposite party no. 2 and 3 was given. Where upon they assured that running engine will be set, but it did not happen. Rather on 17.01.2006, complainant suffered in a great setback while block of new engine was also again cracked on complain to opposite party no. 1 he instructed to contact the opposite party no. 2 and 3, but opposite party no. 2 and 3, shown their inability in removing the defect. Though they admitted orally but they did not give the same in writing. After having such a difficulties opposite parties was requested to change the said car equivalent to the present price but this lawful request of the complainant was turned and stated again to deposit Rs 70500/- approximately for the replacement of the block and other miscellaneous works. Annexure 9 to 12, shall be seen which are estimated cost and later prices of parts and repairing charges dated 11.02.2006.
Further, stated that since 17.01.2006 said car is lying in the workshop despite all efforts of the complainant to the opposite parties. While it appeared that opposite parties are shrinking from their responsibilities. Then the complainant served the legal notice on 10.04.2006 but no reply was given by the opposite party no 1 and 3 only. Opposite party no. 2 had replied with vague and baseless contentions. Legal notice dated 10.04.2006 is annexed as Annexure 13 of the complaint. Lastly it has been contented that opposite parties have knowingly, wilfully and deliberately, by false misrepresentation and assurance had sold a car to the complainant on payment of full price which was suffering from manufacturing defects and opposite parties have never been honest in dealing with the complainant and there is complete deficiency in service by the opposite parties. Complainant has been put to suffer a lot on account of harassment, mental agony, and loss of money in purchasing the said car and in getting the same repeatedly repaired. Hence, prayed to allow this complaint petition along with the reliefs as prayed.
It appears that on behalf of opposite party no1 has filed separate W.S. and opposite party no. 2 and 3, have filed separate W.S. As per the contents of the W.S filed on behalf of the opposite party no1 it is stated that the complaint petition is barred by law of limitation, waiver, estoppels and acquisance. Further, stated that this complaint is based on false and frivolous ground. Neither the complainant is consumer nor this is a case of consumer dispute. Instant complaint petition does not disclose any cause of action and also stated that this forum has no jurisdiction to entertain the instant complaint. This case also suffers from the non joinder of necessary party. It has been stated specifically that opposite party no1 shall deal with only those materials facts and allegations which are necessary. It is stated that present complaint petition is related to crack down of engine which had taken place in the month of March 2004, long after the purchase of vehicle that stood on 07.12.1998 and beyond the of expiry of warranty period and also one year or 16000km whichever comes earlier. Opposite party no.1 always providing which is capable of giving absolute satisfaction to the insurer and benefit to the customers. Proper maintenance and timely check-up of the car is essential for durability of the car. Opposite party no.1 issues warranty car service voucher and general hand book with every car. It has been stated further, that unfortunately some of the customers are utterly negligent in servicing of the car in proper time as provided under the warranty card to which they lose the benefit under the terms and conditions of warranty. Opposite party no.1 is not answerable to the claim of complainant and he has unnecessarily been made party. The dealer shall not have any right or authority nor gives any warranty or represents on behalf of the company. The company shall not be responsible nor the dealer has any authority to render the company responsible. The relationship between the dealer and manufacturers is based on principle to principle.
Further, stated that at the time of purchasing the car there was no complaint and in case of necessity car was inspected and necessary parts were replaced when the vehicle was taken to the workshop of dealer therefore, opposite party no 1 is no way liable. Because clause 5 of the warranty reads as follows “the liability of the company is limited to exchange or repair as above. Replacement of car, any form of liability or lost to time, incontinence, loss of use of the car or other consequential damage is hereby expressly excluded.” opposite party no. 1 has denied the relief as prayed and also about the payment relating to replacement of the car as said by the complainant. Even at Para 15, it has been stated that opposite party no1 denied the alleged description of said car purchased by the complainant from the dealer at said price of Rs 372653/- (three lacs seventy two thousand six hundred fifty three only) for want of knowledge and complainant is liable to strict proof thereof. As per principle there is no privity of contract between the complainant, opposite party no.1. Dealer is carrying on the business of buying and selling of cars independently. There is no monetary transaction between the complainant and opposite party no1 besides these other aspects have also been mentioned. It has been stated that complainant has never taken the servicing from the dealer as per the guideline of warranty. Because even after the replacement of the engine on 07.05.2004, first servicing was required to be done after 1000km or 1 months from the date of installation. Second servicing of engine and oil filter was required to be changed within 5000 kms or 2 months from the previous servicing but the complainant did not do so. Complainant did not avail the desired mandatory requirement. Servicing of engine and changing of engine oil or oil filter was done on 03.11.2005, after one year and five months such indicates glaring examples of carelessness on the part of the complainant. The opposite party no1 also stated that there is no question of manufacturing defect in the car because the car would not have run such a long distance for a long period. However denied about the replacement of engine and stated that it was in between the dealer and the complainant and the amount so ever was paid in connection with the purchase of new engine this opposite party is not concerned complainant himself remained careless in receiving the service under warranty but blamed undue upon the opposite party with the malafide intentions crack down of the block within span of mere one year would reveal about the mishandling of the car. It has also been stated that while the period of warranty is expired then how the complainant expected to get the block of the engine rectified free of cost. As the total information were to be received from the legal department situated at Kolkata therefore, reply of legal notice could not be given in due time but complainant thereafter filed this case before the consumer forum. Lastly it has been submitted that this complaint case is fit to be dismissed.
On behalf of opposite party no. 2 and 3 W.S. have been filed separately. It has been stated therein that complaint petition is false frivolous and concocted and same does not contain any cause of action. Complaint is barred by law of limitation. Instant complaint is with respect to cracking of engine which took place is March 2004 whereas the car was purchased on 07.12.1998. It is evident from the fact that the engine was cracked down after expiry of warranty period and limitation of kilometres. It is stated that cars are manufactured by the opposite party no. 1 and same is sold through opposite party no. 2 who is a dealer only of the manufactured car and accordingly, opposite party no. 2 provides the customers trouble free services of the car and insures proper maintenances and timely check-up the car opposite party no. 2 and 3 are no way responsible for failure of engine of the car due to careless and reckless maintenance.
Further, stated that complainant was delivered a new car free from any of the trouble but later on it is stated that engine cracked down after running the car for more than warranty period. It has further been stated that necessary parts of the car were replaced as and when required and satisfactory service were provided to the complainant time to time. As per the warranty replacement of the car is excluded. Therefore, present case has falsely been brought. It has been denied relating to claims for replacement of car with new car and also for making further payment and for changing the engine of the car and about the payment made to harassment and others hence, same is not maintainable.
It has further been stated that new car was purchased on 07.12.1998 and it ran much longer period than the period of warranty and there was no commitment by opposite party no. 2 and 3 for replacement of car if any defect occurs during warranty period or thereafter. Complainant has failed to get his engine serviced in every stages 1st, 2nd or 3rd service and remained always careless for the same. Even after replacement of engine on 07.05.2004 first servicing was required to be done on 1000km or 1 month from the date of instillation but complainant did not do so. It has also been stated that the statement of the complainant gets defeated from the fact that the car had successfully run for more than 5 years. It has also been stated that longevity of the vehicle or engine wholly depends on how the same is being handled. Complainant has failed to take proper care of vehicle/engine. As per the warranty only six months or 50000 kms is valid form the date of installation of the engine but while the complaint was reported period of warranty was already expired. Further stated that the opposite party no. 2 and 3 is a dealer of M/S Hindustan Motors Ltd, who is the manufactures of ambassador car and its engine. The relationship between ESS PEE AUOMOTIVES LTD. and Hindustan Motors ltd. is principle to principle. Thus without prejudice it is submitted that the defect, if, any, is a manufacturing defect for which only manufacturer alone is liable and not answerable the opposite party no 2 and 3 who is a dealer. And referred the decision referred by (Rfd- FORD INDIA. VS RAJ DEEPAK RASTOGI AND ANOTHER. IV (2005) CPJ 612). Lastly it has been submitted that this complaint is fit to be dismissed. From the pleadings as above filed by both the sides following issues are relevant to consider:
1. Whether this complaint case is barred by law of limitation form the date of cause of action
2. Whether complainant purchased defective car and got replacement of the engine within the period of warranty,
3. Whether complainant is entitled to a claim as prayed for pleadings.
Issue no 1 is taken for consideration- on behalf of opposite party no. 2 and 3 it has been submitted vehemently that in this case there is delay of 6 years in filing of the complaint and there is no petition for condonation delay in filing the complaint case because of the fact that car in question has been purchased on 07.12.1998. In this regard he has relied upon the order passed in CPJ II (2009) CPJ 29(SC). It is relevant to mention that whatever the submission has been advanced same is acceptable and to follow accordingly but Learned counsel on behalf of the complainant submitted in contrary of submission that there is statutory provision that the complaint petition has to file within two years but it would be relevant to take into account that even in a decision referred by the opposite party no. 2 and 3 as indicated above shows at Para 11 there it has been observed that “the SC debars any Fora setup under the act, admitting a compliant unless the complaint is filed within 2 years from the date of which the cause of action has arisen” which impliedly shows that court has to consider about the cause of action also. The cheques through which the money have been paid which finds mentioned at Para no. 12 of the complaint petition would show that same cheques bears the date of the year 2004, as well as for the months they are March and May of the same year. Legal notice was also sent on 10.04.2006 which is Annexure 3. The annexure would show that they are relating to the repairs of the engine which are in support of repairing which would also show that they are related with the year 2004 and 2005. Learned counsel on behalf of the complainant submitted that the cause of action must be in continuity then the period of the limitation shall be taken into consideration accordingly and also relied up on 2022 Volume iv Supreme Court at cases 103 and also relied upon the decision of Hon’ble Supreme court of India passed in civil appeal No. 4000 of 2019, decided on 11.01.2022. This point has taken up primarily as opposite party no. 1 and 2 have hammered too much in argument and submitted that there is nothing on record after the day of the purchase of a car in the year 1998 and before of year 2004 whatever the decision have been referred undoubtedly acceptable and to take guideline accordingly. As stated above that on behalf of opposite parties also decision has been referred on the point of limitation and it has been submitted forcefully that as soon as the prescribed period under the law for filing compliant is passed then even in a case of continuity of the cause of action available prayer of condonation of delay must have been there but no prayer for condonation has been submitted. We see the point raised by the opposite parties is correct one and find that infact there is no such a obvious step in writing brought on record. Only it appears that there is said to have been made oral complain regarding defects in purchased car continuously. But the purchase of engine is not in dispute. Even after change of the engine and the said car was sent to workshop of opposite party no. 2 on 17.01.2016. The case of the complaint is also that after the purchase of the engine it also became defective and the change of the engine in the year 2004 shows the contention of the complainant for the defects in the car which would have been from before and they had the defects removed. In this regard the learned counsel on behalf of opposite party has submitted that no job sheet or service report has been brought on record to show the proof but it appears that the purchase of the engine and thereafter the same has been found defective has not been specifically denied. Therefore, after considering the facts moving around in toto from beginning to its filing of the present case this case appears to be maintainable particularly considering the point of change of engine which even in absent of the specific proof of being defective a purchased car relating to continues cause of action there appears strong presumption regarding the delay in filing the complaint application accordingly issue no. 1 is decided.
Issue no. 2 and 3 is taken together for consideration- It has been contented on behalf of opposite party no. 2 and 3 that the car is said to have been purchased on 07.12.1998 and after cracking of engine it is said to have been changed which had taken place in the month of March 2004, but complainant did not have brought a single instance in writing that after the purchase of the car there was defect and for its removal they have consulted to opposite party no. 1 and 2. Neither there is register of service nor job sheets then how can a plea which is not at all sustainable from its root can be made acceptable. It has also been submitted that the purchased engine also became defective and the block of the engine was cracked but from where engine is said to have been purchased he has not been made party. Opposite parties have only fitted engine in the car, therefore, submitted that in any view of the matter opposite parties are not at all liable to compensation as prayed. Compensation always amounts in which first to show the damage and thereafter to show that who has caused damage. Unless it is established that at whose fault there is damage No third person can be allowed to be make liable for the same. In the argument learned counsel on behalf of opposite party it has also been submitted that there is M.V.I report and same has been received in the office vide letter no. 202 dated 24.04.2010. No doubt in the same report it has been reported that M.V.I had found the block of BR-IL-9972 torn and bearing of crank was found broken but same report is not acceptable as the same has not been verified in presence of the opposite party, therefore, the report so submitted without the knowledge of the party cannot be such a document which can be made enforceable and also submitted that after the above for a moment the report of M.V.I is accepted same is for the year 2010 and by face is not maintainable. Learned Counsel on behalf of opposite party no 2 has submitted about the annexures they are the bills issued form ESS PEE Automobile ltd. The bills are for the year 2004 and 2005, which are in annexure A and B series. After all as above it can be gathered that opposite parties have got clear stand in this case that this case is not maintainable.
Learned counsel on behalf of the complainant submitted forcefully point wise in contrary to the submission of the opposite parties as well as in support of its case. First he has referred the Annexure 1Which is the purchase receipt of the car which is not in dispute. Annexure 2 and 4 are in proof of draft and cash receipt and other annexures are relating to certificate of registration and receipt annexure 8 is the invoice of the purchase of engine which is for Rs 103000/- dated 07.05.2004 annexure 9 is dated 17.01.2006 which is break down i.e. the Job card annexure 10 dated 11.02.2006 which is a letter in relation to quotation for repair of car bearing no BR-IL-9972. Annexure 11 is also of quotation issued form ESS PEE Automobile Ltd annexure 13 which is dated 10.04.2006 a legal notice to the opposite parties. All these are not in specific dispute and it is obvious that most of the papers are said to have been issued form ESSPEE Automobile Ltd. There is only dispute as discussed hereabove and point no. 1 relating to the limitation otherwise the story relating to change of engine and other defects have not specifically been denied the job card filed on behalf of the opposite parties are related to annexure series form the office of ESS PEE Automobile ltd. Though they are receipts for the period 20.03.2004 upto 21.01.2006 which covers the expenses made upon car BR-IL-9972 other than the purchased cost of the engine. As discussed above that specific paper during the period of year 1998 to 2003 have not been brought on record that the car purchased was defective and it was not functioning properly but orally it has been connected but from the period of purchase of the engine i.e. for the year 2004 up to filing of this case before this commission are on record filed from both the sides they are the jobcards and the receipt of the purchase of engine as well as the expenses incurred to remove the defects. As indicated above that the report of M.V.I vide letter no 202 dated 24.04.2010 has been brought on record wherein it has been reported that block of the engine and bearing of crack relating to BR-IL-9972 was found. Though on behalf of opposite party it has been disputed but it appears that same is in support of the contention of the complainant. To be crack in engine cannot be a event for months rather as it would have been defective from before, which even after the efforts did not be cured and ultimately it was cracked. Therefore, cause of action is in continuance from much before.
It has been pointed out by the opposite party no. 2 especially that after all if, it is considered that the complainant has been able to prove its case even then the dealer cannot be made responsible for defect of manufacturer in a car and referred 210 Sc (c) at page 654 and also referred the decision passed by Hon’ble NCDRC in revision petition no 1818 of 2009 and the decision of Hon’ble SCDRC Patna passed in appeal no 371/11.
However in this regard learned lawyer on behalf of complainant submitted that all the opposite parties are jointly and severally liable and referred AIR 2004 Sc at page 1525 and submitted that defect in car being sold as brand new car, creates liability of manufacturer and dealer both. Further relied upon 2022 (4) Sc 103, wherein Hon’ble Supreme court has explained the very essence of continue wrong and in this case dispossession and deficiency in service on the vehicle BR-IL-9972 can clearly be deemed to be continue wrong. Therefore, he had also submitted the same in application on the point of limitation also and further, on behalf of the complainant has also been relied upon the decision of National Commission reported in 2015 CJ 498 NC and (2018) CJ 239 NC, wherein it has been observed that if the vehicle was required to be taken to the work shop repeatedly and it was not running smoothly than it cannot be said that the vehicle is free from defect. Opposite party no.1 and 2 have submitted forcefully as discussed hereabove relating to the maintainability of this case on account of limitation by raising the common submission submitted specifically as already discussed that the car was purchased in the year 1998 and defect has been shown in the year 2004 and accordingly engine is said to have been changed and the defects in vehicle were also raised from before same cannot be deemed that the grievance of the complainant after a long period of purchase can be said to be maintainable without any specific guaranty or warranty. After a long period if, the defects are shown for the same the complainant is at fault who did not maintain the car properly and in this regard already the submissions of complainant has been discussed above.
Although elaborate discussion has already been made above, therefore, we confine ourselves and we find from the annexures or from the submissions that purchase of car is not in dispute. Thereafter the change of engine in a such car bearing no BR-IL-9972, is also not under challenge specifically. The payment of Rs 103000/- (one lac three thousand only) to the opposite party no 1 through the cheques as mentioned in Para no. 12 of the complaint is also not specifically denied and further in this job card no 669 dated 17.01.2006 and estimated cost thereafter and prices of parts and repairing charges are also annexed which are annexure 9 to 12, same have not specifically been denied and they are mostly related to ESS PEE Automobile Ltd. But despite of having such a fact we do not consider to allow the prayer of the complainant that purchased car of the complainant be exchanged from a similar defect free brand new car or to pay the prevailing price of a similar brand new car for which this case has been brought after six year of the purchase. There might have been defects and the service for removal of defects time to time could have been received as discussed and raised by the complainant. But the other reliefs relating to purchasing price of a engine in the year 2004 for Rs 103000/- (one lacs three thousand only) and also Rs70000/-(seventy thousand only) for the losses sustained are appearing to be considerable in the light of the facts and the statements and in view of the annexures. To some extent the cost of harassment and mental agony and also the litigations cost as parties are in litigation since 2006, appears to us considerable and payable and they are granted in the manner as noted below. Accordingly, issue no. 2 and 3 is decided and for the same the opposite parties are held jointly and severally liable. However liability to payment shall be considered by the opposite parties themselves in the light of the submissions by the opposite party no. 2 as discussed above if they so consider. In the result, this complaint case stands allowed in part as discussed above and opposite parties are directed to pay Rs 1,73000/- (one lac seventy three thousand only) as a price of the engine and the losses sustained with interest @5% accrued thereon, since the date of filing of this case i.e. 12.06.2006 along with Rs35000/-(thirty five thousand only) for the harassment and mental agony and litigation cost on similar interest from the date of filing of this case. Accordingly, opposite party no.1 is directed to pay the total amount Rs 208000/- (two lacs eight thousand only) within two months of this order. In case of non- payment complainant shall be entitled to recover the amount in due process of law.
