i. Consumer Protection Act, 1986 - Section 11 (2) (b) - Jurisdiction - Defects alleged in car purchased by Complainant from OP No. 2 in Mumbai - OP No. 1 contending that as terms and conditions of allotment of cars, dispute between OPs and purchasers of cars was subject to jurisdiction of courts at Baroda (Gujarat) - Such a term in any agreement or contract being against provision of law must be held to be not binding on customers. (Para 9)   ii Consumer Protection Act, 1986 - Section 2(1)(d)(ii) - Commercial purpose - Complainant company purchased two cars for its use, one of which was found to be suffering from defects - Company is not in the business of selling cars - It had purchased two cars for its business purpose - That does not mean that Complainant company had purchased the vehicles for commercial purpose. (Para 10)   iii Consumer Protection Act, 1986- Section 2(1)(f) - Manufacturing defects alleged in one of the cars - Complainant has not adduced evidence of any expert to prove that car was having manufacturing defects - During warranty period, all defects were rectified free of charge - No complaint of any nature mentioned in job cards could be said to be pertaining to manufacturing defects as alleged by Complainant company. (Para 11)   iv Consumer Protection Act, 1986 - Section 2(1)(r)(i) - Unfair trade practice - Complainant company alleged that OP No. 1 had put in advertisements in newspapers and its brochures that Opel Astra cars purchased by Complainant company were manufactured on German technology, but engine of the car was manufactured in Australia which amounted to unfair trade practice - There is nothing wrong on the part of OP No. 1 in putting engine manufactured by its subsidiary in Australia, when on the whole Opel Astra car supplied to Complainant company was manufactured based on German technology - There was no unfair trade practice. (Para 14)   Result: Complaint dismissed.   ORDER P N Kashalkar, Member -
1.	This complaint has been filed by the Complainant company against General Motors India Ltd, the manufacturer of cars and M/s Shiraj Motors, a Dealer of Cars.
2.	The grievance of the Complainant is that it is registered Company and it had purchased from OP No. 2 two cars manufactured by OP No. 1. One car was delivered on 29.01.1997 and another car was delivered on 17.02.1997. Both cars were Opel Astra. Each car was having value of Rs. 7,48,385/-. The Complainant also paid insurance charges and RTO tax. It is the case of the Complainant company that car manufacturer and dealer had assured that Opel Astra car was a product of meticulous "German Craftsmanship" and Complainant therefore presumed that engines were manufactured in Germany and not in Australia. However, the Complainant company alleged that the said cars were having engines of Australian manufacturers. According to Complainant company, after taking delivery of the cars, on 30.05.1997 OP No. 1 was informed that car bearing no. MH-04-X-9005 was not having German engine and it was giving some problems like producing rattling noise from the muffler/exhaust pipe with lots of vibration transmitted and car also suffered from poor acceleration and power loss, delayed starting and rough idling, engine vibrations noise and higher fuel consumption. The OP No. 1 directed Complainant to send the car to M/s Shiraj Motors, OP No. 2 for repairs but till filing of the complaint the Company pleads that said defects have not been rectified by the Dealer. The Complainant also pleaded that central locking control system was also defective, acceleration, power and pep of car was disappointing one and still that problem exists. The Complainant pleaded that control switches are located on the wrong side of the steering wheel and right hand drive of the car is not comfortable with such situation. The Complainant company also pleaded that engine performance continues to be unsatisfactory and operational cost of the car is heavy. The company approached Dealer for repairs and also sent letter to the General Manager of OP No. 1 manufacturing company, but till 11.09.1997, grievances of defects in the car were not rectified to their satisfaction.
3.	The company further pleaded that it feels that car of poor quality has been sold to the Complainant company on account of sheer misrepresentation. The Complainant company pleaded that there was element of cheating of customers at large by OP No. 1 and 2 by inserting advertisements lauding all the good qualities of the car but it was not in fact so. It also pleaded that after-sales service rendered by OP No. 2 was also unsatisfactory and therefore Complainant company prayed that the Respondents be directed to exchange defective models of cars by delivering fault free cars or entire money with interest @ 24% p.a. and exemplary cost of Rs. 5,00,000/- should be awarded by this Commission and both the OPs be directed by an order of injunction from publishing misleading advertisements to lure the customers.
4.	OP No. 1 filed affidavit in reply and pleaded that no cause of action has been disclosed against it and therefore complaint should be dismissed since it was filed with the ulterior motive to harass and defame this OP. It further pleaded that the car was allotted to all the customers subject to jurisdiction of Court at Baroda, Gujarat State. So this Commission has no jurisdiction to entertain and try to such a complaint. It also pleaded that cars were purchased for commercial purpose for the business of the Complainant company. On this ground also, the complaint should be dismissed. It further pleaded that Opel Astra car manufactured by General Motors is fully German designed car. Engine of the said car is manufactured according to German technology and engineering. The car is assembled using thousands of components from various manufacturing units specializing in various fields. The engine used in the car has been developed by the German Engineers and same was manufactured by the subsidiary of OP No. 1 according to German technology. The engine was manufactured by Holden at Australia which is a subsidiary of OP No. 1. The OP No. 1 pleaded that opting of Complainant for Opel Astra cars was his own decision and he must have purchased it after test-driving the cars. It denied that cars manufactured by OP No. 1 suffered from any deficiency as alleged. Whenever Complainant alleged defects in the cars, they were promptly attended to and rectified. Pick-up and acceleration of the cars was checked and found to be okay. The fuel consumption of the car is heavily influenced by traffic condition, driving style, tyre inflation, etc, Grievance of vibration during the idle were checked and found to be within the specification. The central locking system was attended under warranty. The OP pleaded that over 32 million customers were using Opel Astra cars all over the world. Moreover there were no complaints whatsoever which could be attributed as manufacturing defects. Engine of the car was suitably adapted to Indian condition. It was of high quality. No abnormality was detected in the engine of the Complainant's car.
5.	It pleaded that it had not made any misrepresentation in the press advertisements or in the brochures issued by the company. The letters sent by Complainant were duly replied by the company's advocate. In reply, the company suggested that car be sent for inspection but the Complainant did no send car for inspection. It therefore prayed that complaint should be dismissed with cost.
6.	OP No. 2 also filed written statement and took a firm stand that it was simply authorised dealer of OP No. 1 and as such for any defects in the car dealer cannot be held responsible. It pleaded that U/s 2(1) (g) 1 of Consumer Protection Act, he cannot be styled as "Trader". It further pleaded that Complainant was given a brand new car and there was no manufacturing defect in the car at the time of taking delivery. He even executed receipt - cum -owner's satisfaction note while taking delivery without any protest or demur. It pleaded that consumer authorities have no jurisdiction to try such cases which are in the nature of breach of terms of contract. Since Complainant alleged fraud, cheating, forgery, it pleaded that such a case having such allegations cannot be tried in a summary jurisdiction of this Commission and parties should be directed to approach Civil Court. It further took up the plea that the vehicles were purchased by the Complainant company for its business, which is a commercial purpose, and therefore it should not be taken cognizance of by this Commission.
7.	It further pleaded that allegation of Complainant about engine make is a figment of imagination without having regard to the facts and circumstances. The defects alleged in the complaint were properly attended to in the course of servicing given to both the cars of the Complainant. On account of short circuit, central locking control was not operational and same was duly rectified. Engine of the car was of supreme standard. It pleaded that Commission may direct inspection of the car by an independent authority to ascertain whether the car is roadworthy or not. It pleaded that OP No. 2 diligently attended to all the complaints made by the Complainant in all earnest and no grievance can be attributed against it by the Complainant. It pleaded that during warranty period, it had given best of servicing to both the cars and after warranty period too by taking charges. OP 'No. 2 was always ready and willing to help the customer to maintain the cars properly. It therefore pleaded that there was no deficiency of any kind on its part and the complaint as such should be dismissed with cost.
8.	Now the following issues arise for our consideration. The issues and our findings thereon are as under:
	i)	Does OP No. 1 prove that this Commission has no jurisdiction to entertain and try this complaint since sale transaction was subject to Baroda (Gujarat) Court jurisdiction? - No.
	ii)	Whether the OPs prove that the transaction between Complainant and OPs could be styled as "commercial transaction" and, as such, it is beyond the purview of Consumer Protection Act? - No.
	iii)	Whether the Complainant proves that there is manufacturing defect in the Car No. MH-04-X-9005 sold to him by OP No. 2 which was manufactured by OP No. 1? - No.
	iv)	Whether the Complainant proves that there was deficiency in service on the part of OP No. 1 and 2 with regard to the car purchased by the Complainant company? - No.
	v)	What order if any? - Complaint stands dismissed.
Reasons:
9.	Issue No. 1 - It was the contention of the OP No. 1 in their written statement that as per clause 23 of terms and conditions of the allotment of the car, dispute, if any, between car purchaser and OP No. 1 or its Dealer was subject to the jurisdiction of Court at Baroda (Gujarat State). However, even if there be any such term made known to the customers by the company while selling the cars, such term is not binding on the customers for the simple reason that such a term in any agreement or contract being against the provision of law must be held to be not legally binding on the customers and such a term will have to be ignored in toto. A term to that effect is clearly against the provision of Consumer Protection Act and since car was purchased from OP No. 2 at Mumbai, this Commission has jurisdiction to entertain and try this complaint in terms of provision contained in Sec. 11 (2) (b) of Consumer Protection Act. As such, submission made in this behalf by OP No. 1 and 2 is devoid of any substance and we hold that this Commission has jurisdiction to entertajn..and try this complaint. We therefore record our finding on issue No. 1 in the negative.
10.	Issue No. 2 - The Complainant who is registered public company having registered office at Prabhadevi, Mumbai had purchased two Opel Astra cars from OP No. 2 manufactured by OP No. 1. The company is not in business of selling cars. It is having business of lithography as the' name of the Complainant company would suggest. It had purchased two cars for its business purpose. That doesn't mean that it can be held that Complainant company had purchased the vehicles for commercial purpose. If public limited company purchases car for its Director's use and car is found to be defective or the Dealer is not giving after-sale service properly, then legal action for such deficiency in service can very well be brought by the Compliant company in the Consumer Fora and there is no legal hitch in entertaining such a complaint. Simply because two cars were simultaneously purchased that doesn't mean that Complainant company purchased those cars for its commercial purpose. Hence, there is no merit in the second contention raised by OP No. 1 and 2 to stall us from entertaining this complaint. The objection taken in this behalf will have to be turned down being without substance. We therefore record our finding on issue No. 2 in the negative.
11.	Issues No. 3 and 4 - Complainant has not adduced any evidence of any expert to prove that one of the two cars purchased by it was having manufacturing defect and therefore it needs to be exchanged or OP No. 1 company should be asked to refund back the entire amount of consideration of one car as was its prayer in column 'A' of the prayer clause. The car in question was sent by Complainant company to garage of Mis Shiraj Motors, Santacruz (E), Mumbai for servicing on 28.07.1997. Its number is MH-04-X-9005. Two complaints were made and as per job card, the jobs were performed and defects rectified. At that time the car had travelled distance of 5971 Km. It would mean that after taking delivery of this car, car had travelled quite nicely and it was not lying idle. If there would have been manufacturing defect, the car would not have run to this extent. The job was performed properly and the person taking delivery had recorded customer's satisfaction. There is another job card dated 28.10.1997 having Km reading of 5934. The two repairs were sought and Mis Shiraj Motors carried the job free of cost since it was in warranty period. Another job card mentions five grievances on 25.01.1998 and to the satisfaction of the customer, job was carried out free of cost. From these job cards it is crystal clear that the OP No. 2 had given the car for after-sales service and whatever defects or lacunae were noticed in the car, were removed or rectified to the satisfaction of the customer. When due after-sale service has been given in warranty period free of cost, the Complainant company cannot be heard to say that it was given a car which was having manufacturing defect and every now and then it was required to be taken to the garage of OP No. 2 for repairs. During warranty period all defects were rectified free of cost and the nature of complaint would go to show that complaints were minor in nature and they were duly rectified by OP No. 2. After going through all the documents, we are of the view that the defects pointed out to the Dealer by the Complainant company were virtually minor in nature and they were duly rectified by giving free servicing by OP No. 2. No complaint of any nature mentioned in the job cards could said to be pertaining to the manufacturing defects as alleged by the Complainant company.
12.	In the course of arguments Learned Counsel for the OPs claimed that even today the Complainant company was using both the cars without any defect and therefore we are of the view that there is no substance in the complaint that car supplied to it by OP No. 1 and 2 was inherently defective and needs to be replaced or exchanged by new one. We therefore record our finding on issue Nos. 3 and 4 in the negative.
13.	Issue No. 5 - In the light of the discussion made above we find that the complaint is without any substance. The cars supplied by the OP No. 2 and manufactured by OP No. 1 were best quality cars and after delivery in the course of warranty period, OP No. 2 had given free servicing and whatever defects and repairs were needed to the car in question were rectified or attended to and so there was no deficiency of any kind on the part of OP Nos. 1 and 2.
14.	It was contended that OP No. 1 had put in advertisement in newspapers and in brochures that Opel Astra cars were manufactured on German technology but engine of the car was manufactured in Australia. Adapting German technology is one thing and manufacturing a particular part is quite another thing. The car as a whole was manufactured based on German technology but engine was got manufactured in Australia from a company, which was subsidiary of General Motors. So, it cannot be said that OP No. 1 manufacturing Company had cheated Complainant company by providing a car of which engine was manufactured in Australia. Car manufacturing companies often purchase some parts from a smaller companies when demand exceeds the manufacturing capacity of its plant. So, there is nothing wrong on the part of company like OP No. 1 in putting engine manufactured in Australia when on the whole Opel Astra car supplied to the Complainant company was manufactured based on German technology. In this view of the matter, there was no unfair trade practice or deficiency in service of any kind on the part of OP No. 1 and 2 in supplying cars to the Complainant company. As such the complaint is appearing to be baseless and deserves to be dismissed. As such, we pass following order: 1. Complaint stands dismissed. 2. Parties are left to bear their own costs.
Complaint dismissed.