NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
FIRST
APPEAL NO. 474 OF
1999
(From the order dated 25.10.1999 in Complt. No.
45/98
of State
Commission, UT,
Hindustan Motors Ltd.
Appellant
Vs.
Smt. P. Vasudeva & Anr.
Respondents
BEFORE :
HONBLE SHRI JUSTICE K.S.GUPTA,
PRESIDING
MEMBER
MRS. RAJYALAKSHMI RAO, MEMBER
For the Appellant
Ms. Astha Tyagi,
Advocate
For the Respondent No.1
Shri K.P.S. Rao, Advocate
For the Respondent No.2
N E M O
DATED :
O R D E R
This
appeal is directed against the order dated 25.10.99 of Consumer Disputes
Redressal Commission Union Territory, Chandigarh
whereby appellant/opposite party No. 1 and respondent No. 2/opposite party No.
2 were directed to supply a new Contessa car with AC in place
of old one within a period of three months
failing which amount of Rs.4,50,000/- with interest @ 12% p.a. from date of order, was to be refunded by them to
respondent No.1/complainant.
Complaint was
filed by respondent No. 1, inter-alia, alleging that
he purchased a Contessa car with AC from respondent No.2, authorized
dealer of the appellant on 8.12.97 for a sum of Rs.4,50,000/-. Immediately after purchase the car started
giving trouble. On 21.1.98 it was found that the battery of car was defective and was replaced by respondent No. 2. During the month of April, 1998 when the AC
was put to use the engine of car got over-heated. On this defect being brought to the notice of respondent No. 2
the respondent No. 2 repaired it. It was
alleged that on way to Nahan the engine again got
over-heated. This defect was brought to the notice of respondent No.2 by
writing the letter dated 25.5.98 which was followed by reminder dated
11.6.98. Still the defect was not
removed. It was stated that respondent
No. 1 got the car checked up from Sharma Auto Workshop who found that the paint
of the car was not original. Car sold to
respondent No. 1 was accidental car. Alleging unfair trade practice on the part
of respondent No. 2 and appellant, after serving legal notice dated
20.7.98, complaint was filed seeking refund of the amount of Rs.4,50,000/- with
interest of Rs.72,000/-, compensation for mental agony and harassment of
Rs.50,000/- and cost of Rs.10,000/-, totaling Rs.5,82,000/-.
Respondent No. 2 in its
written version alleged that the car purchased by respondent No. 1 for Rs.4,16,706/- was non AC.
After purchase of car, on respondent No. 1s approaching the replying
respondent an AC was fitted in the car which fact had been deliberately
suppressed by respondent No. 1.
Replacement of the battery is admitted.
It was alleged that before fitting AC in the car it was brought to the
notice of respondent No. 1 that in AC fitted cars of the appellant the radiator
panel in the bottom is cut out to ensure smooth and free air flow to the
radiator for better and effective cooling and if respondent No. 1 desired it
could be done in the car to which she agreed. Radiator panel of the car from
the bottom was, thus, cut out as per H.M. guidelines. Car got over heated while
on way to Nahan before the said job was done. It was further alleged that report of Sharma Auto Workshop would
show that it has been dealing in denting, re-shaping, hydraulic servicing and
painting of the cars. Report is undated
and such a report could be obtained by anyone.
It was pleaded that a second hand car cannot be sold by an authorized
dealer. Once a car is sold by a dealer,
the buyer has to apply for temporary/permanent registration number which
continues for all
times to come. In case the car sold to
respondent No. 1 would have been second-hand it should have carried the old
registration number which was not the case here. Liability to replace the car or refund the
amount as claimed was emphatically denied.
In its written version
the appellant additionally pleaded that though the battery was not covered
under the warranty given still the same was replaced. Defect in battery cannot be construed as
manufacturing defect in the car. Alleged over-heating in the engine was caused due to unauthorized fitment
of AC in the car by respondent No. 1 and there was breach of clause 4 (f) of
the warranty conditions on her part.
We heard Ms. Astha Tyagi for appellant and K.P.S. Rao for respondent No. 1.
The State Commission held
the appellant and respondent No. 2 guilty of unfair trade practice for having
sold an old car to respondent No. 1. Conclusion in regard to car being old one
was reached on grounds of old battery being fitted; paint of the car not being
original/genuine and engine of the car being over-heated within a short span of
the purchase of car. Copy of warranty
is placed at pages 53-55. Bare reading
of clause 1
thereof would show that the defect in batteries, bulbs, tyres, tubes and accessories not originally fitted
by appellant company are not covered under the warranty. Moreover, defect in
battery cannot tantamount to manufacturing defect in a car. Since the defective battery was replaced by
respondent No. 2 apparently as a gesture of goodwill though not covered by
warranty, it could not have been made one of the grounds for passing the
impugned order by the State Commission.
Allegation of the paint
of the car not being original is based on the report of Sharma Auto
Workshop. Bare reading of this report
(copy at pages 4-5 of the additional documents filed on 10.11.05) would show that it
is undated and does not indicate any manufacturing defect in the car. Qualification of the person issuing this
report has not been disclosed therein.
It is significant to mention that the affidavit of the person issuing
this report was not filed by way of evidence by respondent No. 1. In absence of
affidavit this report which is being challenged by the appellant and respondent
No. 2 could not have been taken note of in reaching the conclusion that the car
was second hand.
This
brings us to the defect of over-heating of engine. Respondent No. 2 and appellant allege that at
the time of purchase of car by respondent No. 1 no AC was fitted and AC was
fitted later on by respondent No. 2.
Former part of the plea finds support from the invoice for a sum of Rs.4,16,706/-. Appellant
further alleges that it is not responsible for alleged over-heating of the
engine caused due to unauthorized fitment of AC by respondent No. 1 under
clause 4 (f) of the warranty. During the
course of arguments our attention was additionally invited on behalf of appellant to
clause 4 (b) of the warranty conditions.
Both the clauses which are material, are
reproduced below:-
4 This warranty shall not apply to :
a)
..
b)
Any defective part or parts, which in the opinion of
the company, has or have been injured by wear and tear or by any form
whatsoever, improper use of or from any alteration whatsoever to the car.
c)
.
f)
Any car in or to which any part or accessories not
manufactured and/or sold by the company, has been used or affixed.
In view of these clauses, appellant company is not responsible for the
alleged over-hearing of the engine because of fitment of AC in the car after
its purchase by respondent No. 1.
Over-heating of engine, thus, could not have been validly made as a
ground for reaching the conclusion that the
car sold to respondent No. 1 was second hand. Order passed by State Commission, therefore,
being legally erroneous deserves to be set aside.
Accordingly, the appeal is accepted and order dated 25.10.99 is set
aside and complaint dismissed. No orders
as to cost.
J
(K.S.GUPTA)
PRESIDING
MEMBER
.
(RAJYALAKSHMI
RAO)
MEMBER
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