At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. JUSTICE L. MANOHARAN
By, THE HONOURABLE PROF. K. MADHURI LATHA
By, MEMBER & THE HONOURABLE MR. PROF. R. VIJAYAKRISHNAN
For the Appellants: T.R. Ajithkumar, Advocate. For the Respondents: U.K. Ramakrishnan, E.K. Madhavan, V. Krishna Menon, Advocates.
L. Manoharan, President:
1. Complainants in O.P. 1113/97 on the file of the Consumer Disputes Redressal Forum, Thrissur is the appellant. The complainant alleged before the District Forum that the first complainant purchased a Leyland bus from the second opposite party manufactured by the first opposite party. The vehicle is a stage carrier which had permit for Thrissur Pulpally route. Defect arose within three days from the date of purchase. The engine used to get heated at a short distance run, the oil pressure of the engine was very low. The diesel consumption and engine oil consumption were excessive. Though the opposite parties agreed to replace the engine when the defect were intimated they have not done so inspite of demand. The opposite partie
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in their version among other contentions took up the contention that the purchase of the vehicle being for commercial purpose the complainants are not consumers and the opposite parties also raised contention to the effect since the first complainant sold the vehicle to the second complainant, the complainants are not entitled to the benefits of the warranty and that since the complainants are not consumers, the complaint is not maintainable. The first point raised by the District Forum was whether the complaint is maintainable. The District Forum entered the finding that the complaint is not maintainable and accordingly dismissed the complaint. It is the said dismissal that is under challenge in this appeal.2. Learned Counsel for the appellant sought to maintain that the view taken by the District Forum is opposed to law, accordingly the learned Counsel “implied warranty under Section 16 of the Sale of Goods Act cannot be taken away by the warranty conditions and since the defect arose within the warranty period even assuming that the purchase was for commercial purpose, so far as the service under the warranty is concerned himself is a consumer under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. It is also sought to be maintained by the learned Counsel that though the purchase was for commercial purpose since the same was bought and is being used by the first complainant exclusively for the purpose of earning his livelihood by means of self-employment he is a consumer under Section 2(1)(d)(i) also. On the other hand the learned Counsel for the respondent sought to support the conclusion of the District Forum pointing out that since Ext. B1 the warranty is inconsistent with Sub-clauses (1) and (2) of Section 16 of the Sale of Goods Act by the force of Sub-section (4), the written warranty would supercede the implied warranty. He pointed out that the warranty, that the vehicle sold by the manufacturer is free from defects in material and workmanship is subject to the condition that the warranty extends to the first registered owner of the vehicle only and that in the event of transfer or alienation of the vehicle during the period of warranty the warranty shall stand terminated, unless the prior written consent of Ashok Leyland is obtained. The implied warranty under Section 16(1) of the Sale of Goods Act is to the effect that the goods shall be reasonably fit for the purpose for which the buyer purchased the same and the other is that the goods shall be of mercantable quality. Sub-section (4) of Section 16 of the Sale of Goods Act states that the express warranty or condition would not negative a warranty or condition implied by the Act unless is inconsistent with the implied warranty. As already noticed the implied warranty is that the goods would be reasonably fit for the purpose for which the same was purchased and the same is of mercantable quality. The express warranty is to the effect that it would be free from defect in material and workmanship but the same is subject to the Condition No. 2 in Ext. B1. It is stated that if it is sold during warranty period the warranty would not be available. The warranty offered in Ext. B1 takes in the implied warranty, the condition therein thus is inconsistent with the implied warranty, because Section 16 does not say that the implied warranty would cease on the sale of the vehicle. So far as that aspect is concerned this condition in the warranty is inconsistent with the implied warranty under Sections 16(1) and (2). Consequently by the operation of Sub-section (4) there of the express warranty alone will prevail. As regards the scope of the said provision A. Ramaiya in his Commentaries on Sale of Goods Act - 4th Edition it is stated “It is only when an implied warranty is inconsistent with an express provision of the contract that all implied warranties are merged in, or superseded by, the express provisions of the contract. In other words, warranties are not implied in conflict with the express terms of the contract”. Confronted with the same the learned Counsel for the appellant brought to our notice the decision of the House of Lords in 1932 AC page 562, M. Alister v. Stevenson, to maintain that the Consumer Law must be given wider interpretation and scope. In the said decision, the House of Lords held that the manufacturer is liable to the ultimate consumer. This is relied on to show that by the mere factum of transfer, implied warranty cannot be taken away. House of Lords held that the manufacturer of an article of food, medicine or the like sold by him to the distributor in circumstances which .prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from defect likely to cause injury to health. This decision cannot support the case that the implied warranty- could survive express contract which is inconsistent with the implied warranty when there is a statutory provision the statute alone may be looked into. At page 5 of the “Commentaries of Indian Contract Act” of Pollack and Mulla, 10th Edition it is stated “When the law is codified it is of little avail to enquire what is the law apart from such codification. The Code itself must be looked to as the guide in the matter. When a statute clearly covers a case, it is hardly necessary to refer to decisions”. Having regard to the said the legal position we are of the view that inasmuch as the complainant himself has admitted in the complaint that the vehicle in question has been sold to the second complainant, that would be breach of the condition in Ext. B1 warranty and, therefore, the complainant is not entitled to claim on the basis of the warranty.3. It is stated in the impugned order itself that the complainant has no case that himself drives the vehicle; there is also no acceptable material to show that either the complainant or any member of his family actually drives the vehicle. The very user of the bus would demonstrate that the same is for commercial purpose. Under Section 2(1)(d)(i), the consumer will not include a person who had obtained the goods for resale or for commercial purpose. The Explanation to the said section it is stated that commercial purpose would not include use of the goods by the consumer himself exclusively for the purpose of earning his livelihood by means of self-employment. Used by him could include members of his family also. Here as noticed there is no case in that regard. Thus the complainants are not consumers answering the description under Section 2(1)(d) of the Consumer Protection Act. Consequently the finding of the District Forum cannot be said to be faulty. We see nothing to interfere, appeal fails the same is dismissed. But in the circumstance of the case there will be no order as to costs.
"2001 (2) CPJ 117,"