Ms Automobiles V Bhagwan Das

State Consumer Disputes Redressal Commission
M/S Shimla Automobiles Pvt. Ltd & ... vs Bhagwan Dass Jassal & Anr. on 5 April,
2008
H
H.P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, SHIMLA
Date of Decision 05.04.2008.
Appeal No. 187/2005
1.
2008
Indian Kanoon - http://indiankanoon.org/doc/168090666/ 1
M/s Shimla Automobiles Pvt. Ltd., through its
Managing Director Kachhi
Ghati (Tara Devi), Shimla 171-10
2.
M/s Shimla Automobiles Pvt. Ltd. through its
Branch Manager Mubarakpur Road, Amb, Distt. Una 177 203.
. Appellants.
Versus
1.
Sh. Bhagwan Dass Jassal S/o late Sh. K.R.Jassal
R/o VPO Amb, Tehsil Amb, Distt. Una, HP.
. Respondent.
2008
2. M/s Mahindra &
Mahindra Ltd., through its Managing Director
SHQ Mahindra Towers, Worli Road No.13, Mumbai 400 018
3. M/s Mahindra &
Mahindra Financial Services Ltd.,
through its
Managing Director
Mahindra Towers,
Worli, Mumbai 400 018.
. Proforma
respondents.
For the Appellants. Mr.
Ratish Sharma, Advocate.
For the Respondent No.1. Mr. Anoop Rattan,
Advocate.
For
the Respondent No. 2. Mr. Rahul Mahajan, Advocate.
2008
Appeal No. 193/2005.
Sh.
Bhagwan Dass Jassal S/o late Sh. K.R. Jassal R/o
VPO
Amb, Tehsil Amb, Distt. Una, HP.
. Appellant.
Versus
1.
The Managing Director Mahindra & Mahindra Limited
SHQ Mahindra
Towers Worli, Road No.13, Mumbai 400
018,
2008
2.
The Managing Director, Mahindra & Mahindra,
Financial Service Limited, Mahindra Towers Worli-18,
400 018,
3.
The Managing Director M/Shimla Automobile Private
Limited, Kachhi Ghati (Tara Devi ) Shimla 171010,
4.
The Branch Manager, Mahindra & Mahindra, Shimla
Automobile Mubarakpur Road,
Amb, Distt. Una, HP 177203.
. Respondents.
For
2008
the Appellant. Mr. Anoop
Rattan, Advocate.
For the Respondents No.1 & 2 & 4. Mr.
Rahul Mahajan, Advocate.
For
the Respondent No.3. Mr. Ratish Sharma,
Advocate.
Honble Mr.
Justice Arun Kumar Goel, President.
Honble
Mrs. Saroj Sharma, Member.
Whether Approved
for reporting? Yes.
2008
O R D E R:
Justice Arun Kumar Goel (Retd.) President (Oral) Since both these appeals have b
een arisen out of
the order passed by the District Forum Una, in Complaint No. 129/2002, on 17.5.2
005, as such
these have been heard together and are being disposed of by this order.
2. Admittedly Mahindra & Mahindra Limited, is the manufacturer of the vehicle wh
ich is subject
matter of these appeals. It was financed by Mahindra & Mahindra Finance Limited.
Vehicle was sold
by the manufacturer through its authorized agent like appellant in Appeal No. 18
7/2005 at Amb,
where it was having its sale-cum-office at Mubarakpur Road, Tehsil & District Un
a. In this case the
vehicle was sold on 26.7.2001 under a Hire Purchase Agreement. It was financed b
y the financier
after receipt of margin money from the purchaser i.e. Bhagwan Dass Jassal. After
calculating the
amount of interest etc., repayment of the total amount including interest was to
be made in monthly
installments of Rs. 14,660/- by purchaser of vehicle i.e., Bhagwn Dass Jassal.
3. It is admitted case of the financier that the owner of the vehicle had only p
aid 7 installments, 4
were paid in time and 3 were paid belatedly. This vehicle was taken over by the
financier on
29.9.2002 due to persistent defaults, and was sold on 10.2.2003 for Rs. 1,52,000
/- on as is where is
condition.
4. From this fact it can safely be inferred that the vehicle was not roadworthy,
otherwise there was
no occasion for the financier to sell it on as is where is condition. What is it
s effect, will be dealt with
hereafter.
5. On the other hand case of Bhagwan Dass Jassal hereinafter to be referred as t
he complainant was,
that immediately after purchase of the vehicle it started giving trouble like so
und in hissa,
overheating of engine and also defect being there in the gear box. Defects were
there from the very
beginning is otherwise established from the material placed by the parties on re
cord. As also on the
basis of the admission of the manufacturer and the other two respondents who are
the clients of Mr.
Ratish Sharma. At this stage, Mr. Mahajan pointed out that his clients i.e. Manu
facturer and
Financier both have specifically disputed that there was any manufacturing defec
t or anything was
brought to their notice in that behalf. This plea has no merit in the face of th
e stand of Mr. Ratish
Sharmas client as well as in view of the affidavits of mechanic, cleaner of the
vehicle and of the
2008
complainant. As such this plea is being noted simply to be rejected for the simp
le reason that the
complainant was dealing with the clients of Mr. Sharma who had admittedly sold t
he vehicle in
question as authorized dealer of the manufacturer and had not disputed either th
e defects or those
having been attended upon those.
6. It is further evident from the record and we are fully satisfied that there i
s adequate material to
suggest that the vehicle was suffering from inherent manufacturing defect right
from the day one
which were brought to the notice of the clients of Mr. Sharma at Amb, who did ma
ke some attempts
to remove those.
7. Here the affidavit of mechanic who was employed by the clients of Mr. Sharma,
i.e. of Mr.
Chaman Lal assumes significance. Its perusal completely negates the case as well
as demolishes the
stand of Mr. Mahajan that the vehicle was not having any manufacturing defect. T
his affidavit has
remained completely unchallenged. This man has specifically stated that he was a
duly trained
mechanic of Mahindra & Mahindra Company and was employed in this Company. He had
spoken
about the vehicle HP-19A-1277 having been delivered after due test. Per him even
at that point of
time there was some typical noise in the hissa of the vehicle which fact the mec
hanic had brought to
the notice of Manager Service Engineer (Area) of the Company at Chandigarh on te
lephone. As per
telephonic advice of the Area Engineer, he changed the oil and for that purpose
the hissa was
opened on a number of occasions, but it could not be rectified.
8. When it could not be repaired, then the Area Engineer asked it to be replaced
within 10 or 15
days. This was not changed till 4th month of 2002. Again this mechanic Mr. Chama
n Lal has stated
in his affidavit that in the end of 4th month there was trouble in gear box whic
h was adjusted, but
again it could not be rectified. Vehicle was again brought to the workshop on 4.
5.2002 and with
great difficulty on 29.5.2002 incomplete parts were collected from many places,
some old parts were
used to make the vehicle roadworthy. But still it was not fully repaired. Custom
er on the satisfaction
certificate on 1.6.2000, had written a note at the instance of the Manager. Furt
her according to this
deponent Manager himself told that when the parts were not available, he cannot
do anything. All
these facts were brought to the notice of DO, Chandigarh and to Mr. Jagar Nath S
harma, Financial
Manager because this matter was discussed in the office on a number of occasions
. Almost to the
similar effect is affidavit of Mr. Rakesh Kumar cleaner of the vehicle who was e
mployed with the
complainant on the vehicle in question, from October 2001 to August, 2002 when h
e left the job. To
the contrary, there are affidavits of Mr. Praveen Kumar, his first affidavit is
on behalf of the
respondent No.2-the financier and is at pages 46 onwards of the complaint file.
Another affidavit
filed by him is on behalf of respondent No.1, i.e. the manufacturer, and of resp
ondent Nos. 3-4 i.e.
the clients of Mr. Sharma. This is at page 60 onwards.
2008
9. Another very strange feature of this case is needs to be noted, is that all t
he four OPs were being
represented by the same counsel in the proceedings before District Forum. Here a
lternate plea
raised by Mr. Sharma on behalf of his clients, that if ultimately it is held tha
t there is any liability,
then since there was manufacturing defects, therefore, liability is of Mr. Mahaj
ans client the
manufacture-respondent No.1. This directly spells out the conflict of interest b
etween the OPs
inter-se in the complaint.
10. Faced with this situation, Mr. Mahajan again forcefully reiterated that neit
her the clients of Mr.
Sharma nor the complainant ever informed regarding manufacturing defect to the A
rea Manager of
his client the manufacturer. This plea is being noted again to be rejected for t
he simple reason that
the averments made by the mechanic who was there at the time of the vehicle havi
ng clearly stated
in unambiguous terms that he had informed the Manager and Area Engineer of manuf
acturer at
Chandigarh and on whose advice, action was taken for repairing the vehicle.
11. While contesting the claim of the clients of Mr. Sharma, as well as the comp
lainant, it was
pointed out by Mr. Mahajan on behalf of the manufacturer and financier, that ass
uming everything
for the sake of argument without conceding against his clients, still on the ple
aded facts, no relief
can be given to the complainant in the appeal filed by him.
12. First and foremost requirement of law to be established by him was that the
vehicle in question
was purchased by him for his self employment. There is no averment in the compla
int to that effect,
therefore by referring to a number of decisions, he submitted that the complaint
is liable to be
dismissed on this short ground alone.
13. Looking to the overall facts and circumstances of this case and even otherwi
se cumulative effect
of the above referred number of defects this is purely a case of sale of a defec
tive vehicle from day
one when it was sold to the complainant. This was his misfortune that the counse
l had not pleaded
that the vehicle was purchased by him for his own employment, still we are of th
e view that it does
not give a license to the manufacturer to supply anything and everything whether
defective or not.
Ordinarily it should have been pleaded by the complainant that the vehicle purch
ased by him was
meant for his self employment. But can on this ground alone the complaint merits
dismissal. In our
opinion the complainant cannot be non-suited when the mechanic of the clients of
Mr. Sharma has
specifically stated that the hissa was giving abnormal sound even on the date of
sale before other
defects came to surface.
2008
14. Next ground urged by Mr. Mahajan was that the vehicle had been purchased by
the appellant for
commercial purpose and in his pleadings i.e. in the complaint he had spoken that
he had employed a
driver and conductor for plying the vehicle in question. Ordinarily this plea sh
ould have been
upheld, but for the view that we have taken that by supplying a vehicle which in
herently from day
one had manufacturing defects, manufacturer cannot be absolved of its responsibi
lity not to have
rolled such a defective vehicle for sale in the market.
15. In this behalf while rejecting the submission of Mr. Mahajan, we may further
observe that an
attempt was made by him to support the plea of his client, i.e. manufacturer, bu
t in the face of the
alternate plea of Mr. Sharma to hold the manufacturer liable for the manufacturi
ng defects, this plea
of Mr. Mahajan is again rejected. Case of the complainant is further supported f
rom his own
affidavit which is already there on the file. And when it is read with those two
affidavits of Mr.
Praveen Kumar, and of the mechanic and cleaner filed by him i.e. the complainant
, then on the basis
of such affidavits case fully tilts in favour of complainant and we hold accordi
ngly.
16. Another serious contention raised by Mr. Mahajan was that after filing of th
e complaint the
vehicle was sold on 10.2.2003, whereas complaint was filed on 3.8.2002. Notice o
f this complaint
was served upon the financier (who sold the vehicle), on 19.9.2002 as is evident
from the
acknowledgment which is at page 161 of the complaint file and it bears the stamp
of the said
financier. Whether it could and it should have sold the vehicle after having com
e to know about the
filing of the complaint and grievance being made by the complainant is another f
act that calls for
adjudication in this appeal. Position of the complainant can be better imagined
than explained.
Because vehicle was having manufacturing defect from the very beginning and was
not in a
roadworthy condition when sold. It is not the case of the complainant that it ha
d not got the vehicle
financed and or that he was not liable to pay the installments. Wherefrom he was
to pay those, Mr.
Mahajan said in reply to our query that it was for the complainant to arrange re
payment in terms of
the Hire Purchase Agreement and it was not the concern of the financier.
17. So far Hire Purchase Agreement is concerned, it speaks of not only regarding
payment of
installments, but also other rights of the purchaser including right to reposses
s by him i.e.
purchaser.
According to us, this agreement is meaningless and no benefit can be derived by
it for the simple
reason that it contemplates the financier as the registered owner of the vehicle
i.e. the purchaser,
whereas it had only provided money for its purchase to the registered owner i.e.
the complainant.
Therefore, no benefit from any of the clauses can be derived by the financier. A
s prima facie when
such an agreement is there, then the financier is the purchaser and the person w
ho is financed like
complainant in this case is the hirer, that being the position the entire bottom
of the case of Mr.
2008
Mahajan is knocked.
18. We may hasten to add here that the complainant having derived benefit from t
he client of Mr.
Mahajan in law is bound to restore the same under the law of contract. How and i
n what manner it
has to proceed is a question to be decided by the financier. Though Mr. Mahajan
submitted that the
finding regarding the Hire Purchase Agreement may not be recorded by us, but we
do not agree with
him and repel this contention, because Hire Purchase Agreement pre-supposes the
financier to be
the purchaser from whom the complainant had hired the vehicle as hirer. Above al
l the case of the
financier is based on the Hire Purchase Agreement. It had repossessed the vehicl
e and sold it in
terms of this agreement.
19. Mr. Mahajan submitted that no relief is claimed against his client in the co
mplaint, as such
agreement cant be now allowed to be challenged by the complainant and this Commi
ssion should
not go into this question. We have already dealt with this aspect, therefore, we
reject this plea of Mr.
Mahajan.
20. Sale of vehicle during pendency of the complaint after receipt of notice tan
tamounts to an unfair
trade practice on the part of the financier i.e. the client of Mr. Mahajan. Face
d with this situation he
pointed out that stay should have been obtained by the complainant against the s
ale of the vehicle
by the complainant. We are of the view that when the matter was pending, it was
also the duty of the
financier to have sought permission of the District Forum below to sell the vehi
cle, why this was not
done, Mr. Mahajan had no explanation save and except that it was the duty of the
complainant. We
are not at all satisfied with this reply of financier that it was the duty of th
e complainant.
21. No doubt the complainant should have taken care of by filing an application
before the sale of
the vehicle. Application was in face filed by the complainant on 30.11.2002 whic
h was at page 119
onwards and a prayer was made seeking direction against the client of Mr. Mahaja
n, as well as Mr.
Sharma to restore the vehicle as it was till the final decision of the complaint
.
22. It is a different matter that the District Forum below on 30.11.2002 chose n
ot to decide the same
and finally rejected it on 30.4.2004. Submission of Mr. Mahajan that no request
was made after
filing of the application is without any substance, because looking to the situa
tion it was incumbent
upon the District Forum below to have either allowed or disallowed the said appl
ication, instead of
doing so it slept over the matter for reasons best known to it.
2008
We may observe that in the matter of the present nature particularly the financi
er being a high
contracting party and complainant is left with no option, as such called upon th
e District Forum
below to dispose of the said application. In fact by its act, the financier has
tried to take undue
advantage of its position after taking over the vehicle in question and then sel
ling it despite
knowledge of filing of the complaint and stay application.
23. It hardly needs to be pointed out that ad interim order can be challenged at
that stage and if not
challenged, then there is no prohibition of its being challenged in the appeal a
gainst the final order
under law.
24. Now coming to the question as to what relief can be given to the complainant
in these appeals.
By referring to a number of decisions, Mr. Sharma submitted that since this is a
case of
manufacturing defect, therefore, liability is that of manufacturer and it may be
held liable after
exonerating his client upon whom the liability has been fixed in the impugned or
der while
exonerating the manufacturer and financier.
25. On an overall examination of the whole case, we are fully satisfied that the
vehicle was having
manufacturing defect from day one, thus we hold at the risk of repetition that n
o direction can be
issued to the financier to restore the vehicle of the complainant at this belate
d stage, as such we feel
that interest of justice will be well served if it is ordered to compensate the
complainant. We feel that
in addition to the amount already allowed by the District Forum below a further
sum of Rs. 2 lacs be
paid to the complainant who is now entitled to Rs. 2.75 lacs which is to be paid
jointly and severally
by the manufacturer as well as by the financier, thus exonerating the client of
Mr. Sharma. Since we
have dealt with the case purely on facts, as such we have not referred to the de
cisions relied upon by
Mr. Anoop Rattan learned counsel for the complainant, as well as by Mr. Ratish S
harma and Mr.
Rahul Mahajan. To be fair to them these are noted in the form of an annexure, wh
ich will for all
purposes form a part of this order.
26. No other point is urged.
In view of the aforesaid discussion while allowing both the appeals it is ordere
d as under;
a)
That the clients of Mr. Sharma are exonerated, as such Appeal No. 187/2005 is al
lowed;
2008
b)
It is held that now a total sum of Rs. 2,75,000/- with interest from the date, a
s well as at the rate as
ordered by the District Forum below shall be payable by the clients of Mr. Mahaj
an i.e. the
manufacturer as well as the financier who are held jointly and severally liable.
Liability on the latter has been fixed because it sold the vehicle despite being
aware of the pendency
of the complaint as also of the application for restoration of the vehicle when
it had not been sold by
the financier; and
c)
Before concluding we may clarify and reiterate that if under law of contract fin
ancier has any
remedy, this order will not bar it to take benefit thereof.
All interim orders passed from time to time in Appeal No. 187/2005 shall stand v
acated forthwith.
Office will place authenticated copy of this order on the file of Appeal No. 193
/2005 Learned
counsel for the parties have undertaken to collect the copy of this order from t
he Reader free of cost
in both these appeals.
Shimla.
5th April, 2008. (Justice Arun Kumar Goel) Retd.
President.
(Saroj Sharma), Karan* Member.
Mahindra & Mahindra Ltd. Vs. Mahesh Sukhthankar & Ors. III (2004) CPJ 27 (NC);
Dr. Kaligounden Vs. N. Thangamuthu, III (2004) CPJ 29 (NC);
K.S. Chug Vs. Premier Automobiles Ltd. & Anr., I (2005) CPJ 719;
Life Insurance Corporation of India & Anr. Vs. Sonal Upanshu Shah, I (2005) CPJ
722;
ICICI Bank Ltd., Vs. Prakash Kaur and others, (2007) 2 SCC 711;
2008
Sipani Automobiles Ltd. Vs. Shivaji Dasharat Babar & Ors, III (2004) CPJ 570;
Tirupati Motors & Ors. Vs. Kanan Kumari Dash, III (2004) CPJ 283.
Mahindra & Mahindra Ltd. Vs. Vasantrao Dagaji Patil & Anr., III (2002) CPJ 79 (N
C);
Nalini Nanjundailh Vs. Bangalore Development Authority & Anr. III (2002) CPJ 81
(NC);
Sooraj Automobiles Ltd. Vs. Satpal Sharma & Ors, III (2005) CPJ 111 (NC);M. Sita
rama Redy Vs.
United India Insurance Company Ltd. & Ors., III (2005) CPJ 112 (NC);
Laxmi Automobiles Vs. Lal Kunwar Choudhary & Anr, 1 (2006) CPJ 54 (NC);
R.P. Khare Vs. Santosh Kumar, 1 (2006) CPJ 55 (NC);
Maruti Udyog Ltd. Vs. Rajiv Kumar Loomba & Anr, III (2002) CPJ 240 (NC).
Manager, St. Marys Hire Purchase (P) Ltd. Vs. N.A. Jose, III (1995) CPJ 58 (NC);
Life Insurance Corporation of India Vs. Dodda Sambaiah & Ors, III (1995) CPJ 61
(NC);
Om Prakash Shashtri Vs. Ashok Leyland Finance Ltd. & Anr, I (2006) CPJ 614;
L.M.L. Limited & Anr. Vs. Parveen Kumar Mittal, 1 (2006) CPJ 618;
Surendra Kumar Agrawal Vs. Telco Finance Ltd & Anr, IV (2006) CPJ 68;
Manjit Kaur & Anr, Vs. Oriental Insurancea Company Limited, IV (2006) CPJ 70;
Charanjit Singh Chandha and Others Vs. Sudhir Mehra, (2001) 7 SCC 417;
Shibu Soren Vs. Dayanand Sahay and Others, (2001) 7 SCC 425;
Orix Auto Finance ( India) Ltd. Vs. Jagmander Singh and Another, (2006) 2 SCC 59
8;
Bihar State Housing Board Vs. Chairman-cum-Managing Director & Ors., 1 (1996) CP
J 228 (NC);
New India Assurance Co. Ltd, Vs. Jadav Narendrabhai Jethabhai, 1 (1996) CPJ 230
(NC);
Bhakthavatchalam Vs. Tahsildar Cuddalore, II (2005) CPJ 490;
2008
Ashok Leyland Finance Limited Vs. Himanshu S. Thumar, II (2005) CPJ 491;
Anasura Vs. Sil Tech Industries, II (2005) CPJ 494;
Chandeshwar Kumar Vs. Tata Engineering Locomotive Co. Ltd & Anr., I (2007) CPJ 2
(NC);
Maya Appliances Pvt. Ltd. Vs. United India Insurance Company Ltd., 1(2007) CPJ 3
(NC);
Eicher Motors Ltd. Vs. Dilip Chandra Kant Vaidya & Ors., 1 (2007) CPJ 51 (NC);
Ranjit Singh (Maj. Gen (Retd.) Vs. Hoffland Share Shoppe Ltd & Ors, 1 (2007) CPJ
55 (NC);
Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr, 1 (2006) CPJ 3 (SC);
State of Karnataka Vs. Parmjit Singh & Ors, II (2006) CPJ 6 (SC);
Surendra Kumar Jain Vs. R.C. Bhargava & Ors, III (2006) CPJ 382 (NC);
Secretary, Gramin Consumers Labourers Association & Anr., Vs. Managing Director
Orissa State
Financial Corporation & Anr., III (1993) CPJ 1686;
Kinetic engineering Ltd. Vs. Uma Shankar Saxena, III (1993) CPJ 1687;
Oriental Insurance Co. Ltd. & Anr. Vs. Krishnavenilakshmanan & Others, III (1993
) CPJ 1690;
Kamla Prasad Tiwari Vs. Junior Engineer, Electricity Dept. & Ors, III (1993) CPJ
1691;
Dr.
Hema Vasantlal Dakoria Vs. Bajaj Auto Limited & Ors, II (2005) CPJ 102 (NC);
National Insurance Co. Ltd Vs. Kashmir Handicrafts Emporium, II (2005) CPJ 103 (
NC);
Swaraj Mazda Ltd. Vs. P.K. Chakkappore & Anr, II (2005) CPJ 72 (NC);
Dr. Kam Inder Nath Sharma & Ors. Vs. Satish Kumar & Ors, II (2005) CPJ 75 (NC);
Punjab Tractors Ltd., Vs. Vir Pratap and Vice Versa, II (1997) CPJ 81 (NC);
Maakamaksha Marble Industries Vs. State of Madhya Pradesh & Anr, II (1997) CPJ 8
3 (NC).
2008

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