Judgment:
K.C. Gupta, President:
1. Briefly stated the facts are that complainant had purchased a new Mahindra Marshal Deluxe five door and 8 seater jeep from Garg Motors, who is an authorised dealer of OP No. 1 (Mahindra and Mahindra). The delivery of said jeep was made on 6.1.2001 after making payment of Rs. 3,96,850. The copy of the invoice is Annexure C-1.
2. It was next averred that there were certain inherent defects due to which it started giving trouble after running short distance and he had driven the vehicle about 23100 kilometres when the engine got seized and the matter was reported to OP No. 2 which inspected the vehicle but nothing was done. Ultimately jeep was brought to the workshop of OP No. 2 and it agreed to overhaul the engine after great persuasion and it overhauled the engine and he was made to pay for certain parts and the copy of the bill is Annexure C-2.
3. It was further averred that after the engine was overhauled, the jeep did not perform well and the problem persisted and it was brought to the notice of OP No. 2 but it did not do anything and the defects were not removed.
4. It was next averred that apart from problem in the engine, the vehicle suffered from qualitative defect in the chassis as well and the body of the jeep had developed cracks near the joint and in the floor below the feet of middle seat which resulted in dust moving inside the jeep creating problem for passengers and travellers. Even the ceiling of the jeep had become loose.
5. It was further averred that problem did not end here. When complainant was on his way to Hisar, radiator of the jeep gave way and he had to bring it to Sirsa after attaching it and spent Rs. 1,600 and the radiator was got replaced after great hardship. Thereafter fuel tank started leaking from joint which had to be got replaced after paying Rs. 200.
6. Alleging that defective engine had been supplied as there were several defects in engine, the complaint was filed and claimed Rs. 5,28,650 as compensation on account of cost of vehicle and other charges incurred by him.
7. Opposite party Nos. 1 and 2 contested the complaint and filed separate written replies. They controverted the allegations of complaint and stated that the complainant was running a large scale industry under the name and style of Garg Karyana Merchant and the vehicle was being used for large scale business which included transportation of goods and passengers and used as a taxi and thus, complainant was not consumer as it was used for commercial purpose. On merits, they stated that three free services were done but there was no complaint of the jeep on behalf of complainant and at a reading of 21500 kms on 13.4.2001, it was brought to the notice of OP No. 2 of the problem of seizure of engine. The engine had seized not due to inherent defect in the engine but because same was run without mobile/engine oil due to negligence of complainant. The vehicle had indications and warning signals when the mobile/engine oil drops was below the required limits and the customer was required to check the same and take corrective measures. However, complainant continued driving the vehicle even though oil level had fallen much below the required level and it ultimately led to seizure of engine. It further stated that OP No. 2 had carried out repair job under warranty without taking any charges for several parts which were replaced and the labour job was carried out and charges were for only consumable items such as bulb etc. which were not covered under warranty. However, no problem was brought to its notice after 13.4.2001 except on 19.6.2001 when the vehicle had run 39137 kms that radiator had leaked and it was replaced under warranty without charging anything to his entire satisfaction. They denied other allegations and stated that the complaint should be dismissed.
8. Parties adduced their evidence by way of affidavits.
9. We have heard Counsel for complainant Mr. Rahul Pushkarna, Counsel for opposite parties Mr. Pankaj Chandgothia and carefully gone through the file.
10. It is an admitted fact that complainant had purchased a new Mahindra and Mahindra five door and 8 seater jeep from OP No. 2 which is authorised dealer of OP No. 1. The said jeep was purchased on 6.1.2001 vide invoice Annexure C-1. A perusal of documents placed on file shows that all the three free services were carried out i.e. on 15.1.2001 Annexure R-1, 28.2.2001 Annexure R-2 and 19.3.2001 Annexure R-3 and no other defect was ever reported. It was only on 13.4.2001 when the jeep had already run 21,500 kms, it was reported that the engine had seized and seizure had taken place due to oil pump failure in which crankshaft and bearings were replaced. Even the jacket kit was also replaced. Annexure R-6 is copy of the detail of repairs done and the parts replaced to overhaul the engine.The engine had not stopped due to any inherent defect but it had stopped as the shaft of oil pump got broken and due to loss of lubrication the crankshaft and all its bearings and one connecting rod got damaged. There were enough indicators and warning signals to show when the mobile/engine oil was below the required level and it was duty of the customer or driver to check the same and to take corrective measures. Since, jeep was driven without proper oil level and in fact it had fallen much below the required level, so, ultimately it led to seizure of engine. Even then OP No. 2 had carried out overhauling repair job under warranty and charged only for certain parts which were not under warranty.
11. There is no expert report much less of automobile engineer that there were major defects in the jeep. In Mahindra and Mahindra Ltd. v. Mahesh Sukhthankar and Ors., III (2004) CPJ 27 (NC), the Honble National Commission had ordered refund of proportionate amount of cost price of jeep because the engineer had reported that there were major defects in the vehicle. Since, the vehicle was used for 55000 kms. so, 1/3rd cut was made in the compensation awarded by the Commission. In the present case, the engine had not seized due to inherent defects but due to negligence of complainant. Later on radiator had leaked and also there were 1-2 minor defects but these were due to natural wear and tear of the jeep . There is no evidence that body of the jeep had developed cracks near the joint and below the middle seat. There is also no evidence that there was no improvement in the functioning of vehicle. It is not the case that the defective jeep was sold instead of brand new jeep. The authority Jose Philip Mampillil v. Premier Automobiles Ltd. and Anr., I (2004) CPJ 9 (SC)=I (2004) SLT 855, is also not applicable to the facts of the present case. In the above said authority, it was proved that the car was defective at the time of delivery.
12. As far as complainant being consumer is concerned, there is no dispute about it because he had purchased the jeep in his personal capacity for his own use. Even if it was used for business, then it cannot be said that it was purchased for commercial purpose because the personal use also includes its use for running his business but it does not mean that he is not a consumer. There is no evidence that complainant had got replaced the fuel tank after paying Rs. 200 as costs. The fuel tank cannot be replaced for Rs. 200. In fact no receipt has been placed on file. It was incumbent upon the complainant to produce some automobile engineer who could give his report after examining the vehicle whether there were inherent defects in the engine or not. The receipt Annexure C-2 does not show that there were inherent defect in the jeep.
13. In the absence of any expert evidence the claim cannot be allowed. Consequently there is no force in the complaint and as such it is dismissed. However, parties are left to bear their own costs.
14. Copies of this order be communicated to the parties, free of charge.