Holding

A consumer whose goods are defective at the time of delivery is entitled to have them repaired at a garage of his choice, with the cost payable jointly and severally by the manufacturer and dealer.

Summary

The appellant purchased a new diesel car from Premier Automobiles Ltd. through its dealer, but upon delivery the vehicle had paint defects and faulty piston rings. Despite repeated repairs, the defects persisted, leading the appellant to file a complaint before the District Consumer Dispute Redressal Forum seeking replacement or refund. The Forum, based on a commissioner’s report, ordered free repair and replacement of the engine; the State Forum modified this to only free repair. The National Consumer Disputes Redressal Commission dismissed the appellant’s revision. The Supreme Court held that the defects existed at the time of delivery, entitling the consumer to have the car repaired at any reputable garage of his choice, with the cost to be paid jointly and severally by the manufacturer and dealer, and also awarded compensation for mental agony and costs.

Issues considered

Whether defects in a motor vehicle existing at the time of delivery give the consumer a right to repair at his chosen garage under the Consumer Protection Act, 1986.
Whether the consumer is entitled to replacement of the engine or a new car.
Whether the manufacturer and dealer are jointly and severally liable for the cost of repair.
Whether compensation for mental agony and legal expenses is recoverable.

Legislation cited

Consumer Protection Act, 1986

Subjects

Consumer ProtectionDefective goodsMotor vehicleRepair at consumer's choiceJoint and several liabilityMental agony compensationConsumer dispute redressal

Judgment

JOSE PHILIP MAMP!LLIL A
v.
M/S. PREMIER AUTOMOBILES LTD. AND ANR.

JANUARY 27, 2004

[S.N. VAR!A VA AND H.K. SEMA, JJ.] B

Consumer Protection Act, 1986-Defect in newly purchased car-At the
time of delivery-Complaint with District Consumer Forum-Commissioner
appointed by Forum found large number of defects-Direction by District C
Farum to repair the car ft"ee ofcost and replacement ofengine-State Consumer
Forum directed the repair ft"ee of cost, while refused replacement of engine-
Revision before National Commission dismissed-On appeal, held: Since defects
proved to be at the time of delivery, consumer entitled to get the car repaired
ft"om the mechanic of his choice, payment whereof to be made by opposite
party. D
Appellant placed order for purchase of a car, manufactured by 1st
respondent-the manufacturer, through 2nd respondent-dealer of 1st
respondent. At the time of delivery there was defect in the paint and in
the piston rings of the engine. Despite the car being sent repeatedly for
repair, the defects were not cured. Respondent No.2 had acknowledged E
the defects.

Appellant filed complaint before District Consu.mer Dispute
Redressal Forum claiming direction to respondents to replace the car with
a new defectless car or to refund total value with 24% interest thereon. F
District Forum appointed Commissioner who after inspection found large
number of defects in the car. Relying on the report of the Commissioner,
the Forum directed repair of the car free of cost and replacement of the
engine. State Consumer Dispute Redressal Forum held that there was no
need to replace the engine, but directed repair of the car free of cost.
Revision before National Consumer Disputes Redressal Commission was G
summarily dismissed. Hence the present appeal.

Disposing of the appeal, the Court

HELD: 1. From the material on record, it is clear that the car was
I®S H
1096 SUPREME COURT REPORTS [2004] I S.C.R.

A defective at the time of delivery. There is no doubt that there were defects
in the paint and that the piston rings of the engine had gone. It cannot be
said that the piston rings got spoiled after the delivery was taken. The
agent of the 1st Respondent, i.e. 2nd respondent, had acknowledged that
the piston rings were defective. They would not have so acknowledged
B unles5 it was a defect at the time of the delivery. Had this defect occurred
by virtue of the Appellant's misusing the car, 2nd Respondent would never
have accepted responsibility for repair of the piston rings.
I 1097-H; 1098-A, BJ
2. It is shameful that a defective car was sought to be sold as a brand
C new car. It is further regrettable that, instead of acknowledging the defects,
the 1st Respondent chose to deny liability and has contested this matter.
For this failure in service the Appellant is entitled to get the car repaired
from any reputed garage or mechanic, at Kottayam, of his choice. The
repair work will then be done and the cost thereof will be paid by the
Respondents. The liability to pay the repair cost will be joint and several
D of both the Respondents. It will not be open to the Respondents to dispute
the nature of the work or repairs to be carried out. (1098-E-FI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3611 of
2002.
E From the Judgment and Order dated 7.12.2000 of NCDRC, New Delhi
in R.P.No. 888/98.

Appellant-in-person.

F Siddharth Dave, Senthil Jagadeesan, V. Ramasubramanian, Ramesh
Singh, Ms. Bina Gupta, Ms. Vanita Bhargava and Ms. Nina Gupta for the
Respondents.

The Judgment of the Court was delivered by

G S.N. VARIAVA, J. This Appeal has been filed by a party in person,
against the Order of the National Consumer Disputes Redressal Commission
dated 7 December, 2000

Briefly stated the facts are as follows:

H The Appellant had placed an order for purchase of a Premier 1.38
J.P. MAMPILLIL v. PREMIER AUTOMOBILES LTD. {VARIAVA, J.) J 097

Diesel Car manufactured by the Ist Respondent. The full price was paid by A
the Appellant. The 2nd Respondent was the Dealer of the I st Respondent at
Kottayam. When the Appellant went to take delivery of tht; O{lf ho found
defects in the paint of the car. He therefore complained to 2nd Respondent.
2nd Respondent promised to rectify the defects \\nd called him again after
some days. The Appellant went after some days. He found that the defects
had not been cured. Therefore, he was not willing to take delivery of the car. B
However, he was persuaded to take delivery of the car on the assurance that
all defects would be cured. At this stage, it was also noticed that the piston
rings of the engine were defective and that there was heavy leakage of oil.
Thereafter the car was repeatedly sent to the dealer for repairs. Each time it
was returned claiming that the defects had bi;!en cured. However, in fact the C
defects were not cured.

The Appellant therefore filed a complaint before the District Consumer
Disputes Redressal Forum claiming that there should be an order directing
the Respondent to take back the car and to replace it with a brand new
defectless car or to refund the total value with 24% interest thereon. He also D
claimed compensation for hardship and mental agony and for costs. The
District Forum appointed a Commissioner to inspect the car. The inspection
was done in the presence of the 2nd Respondent. The Commissioner notes
that the notice had been given to the I st Respondent. However, nobody from
Ist Respondent remained present presumably because their agent was present. E
The Commissioner in his report has set out that a large number of defects
were found in the car. The District Forum acting on this report directed repair
of the car free of cost and replacement of the engine.

Both the Appellant as well as the I st Respondent went in Appeal to the
State Consumer Dispute Redressal Forum. The State Consumer Forum dismissd F
the Appeal of the Appellant. The State Consumer Forum by its Order dated
16th February, 1998, in the Appeal of the 1st Respondent, came to the
conclusion that there was no need to replace the engine, but directed repair
of the car free of cost.

The Appellant then filed a Revision bdore the National Consumer G
Disputes Redressal Commission which has been summarily dismissed by the
impugned Order.

We have heard the parties at great length. We have seen the material
on record. From the material on record, it is clear that the car was defective H
1098 SUPREME COURT REPORTS (2004] 1 S.C.R.

A at the time of delivery. There is no doubt that there were defects in the paint
and that the piston rings of the engine had gone. The submission that the
piston rings got spoiled after the delivery was taken cannot be accepted. The
agent of the Ist Respondent i.e. 2nd Respondent, had acknowledged that the
piston rings were defective. They would not have so acknowledged unless it
B was a defect at the time of the delivery. Had this defect occurred by virtue
of the Appellant's misusing the car, 2nd Respondent would never have
accepted responsibility for repair of the piston rings.

It must be remembered that these cars were manufactured in
Maharashtra. During those days the cars used to be driven down to various
C places in India by drivers hired by the I st Respondent. It is a well known fact
that many drivers drove the cars rashly and negligently. The piston rings of
a diesel engine could only have gone if the car had been run for a long
distance without proper lubricants and/or if it was driven rashly. The piston
rings of a diesel engine could never have gone in the small amount of running
which the Appellant did after he took delivery. If by rash and negligent
D driving the piston rings of a new car got spoiled, the effect on other parts of
the car would also be severe. Therefore, it is quite believable that the
suspension would also have got spoilt. This has been so noted by the
Commissioner.

E In our view, it is shameful that a defective car was sought to be sold
as a brand new car. It is further regrettable that, instead of acknowledging the
defects, the I st Respondent chose to deny liability and has contested this
matter. For this failure in service the Appellant is entitled to the following
reliefs:

F (a) The Appellant will get the car repaired from any reputed garage
or mechanic, at Kottayam, of his choice. A notice will be given
by Registered post with acknowledgement due to the 1st and 2nd
Respondent intimating them the name and address of the garage
where the car has been given for repairs. Within a week of receipt
of the notice they shall inspect the car. The repair work will then
G be done and the cost therefore will be paid by the Respondents.
The liability to pay the repair cost will be joint and several of
both the Respondents. The 2nd Respondent is being held jointly
liable as it was the duty of the 2nd Respondent have refused to
deliver a defective car and in any case to have properly repaired
H the car during the warranty period. It is clarified that the Garage
J.P. MAMPILLIL 1·. PREMIER AUTOMOBILES LTD. [VARIAVA, J.] 1099

,.... to whom the car is given will decide what repair work is to be A
carried out. Undoubtedly the work of complete overhaul of engine
and full body paint with necessary tin work on the body must be
~ carried out. It will not be open to the Respondents to dispute the
nature of the work or repairs to be carried out. The purpose of
granting them inspection is merely to enable them to know that
the car has been given to a Garage for repairs and not for the
B
purpose of enabling them to dispute the nature of the work required
to be done.

(b) After the car is got repaired the Appellant shall, before taking
delivery of the car, give a notice to the Respondents that the c
repairs are carried out. They shall within a week of the receipt of
that notice inspect the car to ensure that the work claimed to have
been done has been done. They shall then forthwith pay the amount
claimed by the Garage for repairs. The Appellant shall be entitled
to take delivery of the car. It is clarified that the liability to pay
is, as stated above, joint and several. In the event of the amount D
not being paid forthwith, the District Forum shall ensure execution
..., expeditiously and immediately, if necessary, by making 2nd
Respondent pay initially. It will then be for the 2nd Respondent
to claim reimbursement from the I st Respondent, if in law they
are entitled to do so.
E
(c) There is no doubt that the Appellant has had to suffer mental
agony in taking delivery of a defective car after having paid for
a brand new car and in taking the car again and again to the
dealer for repairs. For this mental agony and torture, we direct
that the Appellant shall be entitled to a sum of Rs. 40,000/-. The F
liability to pay this amount shall also be joint and several of both
the Respondents. This amount is to be paid within a period of one
month from today. The District Forum shall ensure payment, if
necessary, by execution.

(d) I st Respondent had unnecessarily filed an Appeal before the State G
Forum. I st Respondent is therefore responsible. for the expense
incurred by the Appellant in having to contest the matter all the
~
way to this Court. The Appellant claims that he has spend more
than Rs. 3,00,000/- by way of legal expenses. He However, has
no proof that he has spent so much amount. He, however, would H
1100 SUPREME COURT REPORTS [2004 i I S.C.R.

A have spent at least Rs. 50,000. We therefore direct the I st
...
Respondent to pay to the Appellant by way of costs a sum of Rs.
50,000. The same to be paid within one month from today. The
District Forum to ensure payment, if necessary, by execution.

With these directions the Appeal stands disposed of.
B
K.K.T. Appeal disposed of.