Raghava Menon Son Of Kasturi ... vs Kuttappan Nair, Proprietor, ...

on 29 March, 1962

Kerala High Court

Raghava Menon Son Of Kasturi ... vs Kuttappan Nair, Proprietor, ... on 29 March, 1962
Equivalent citations: AIR 1962 Ker 318
Author: T Raghavan
Bench: T Raghavan
ORDER T.C. Raghavan, J.

1. The plaintiff in S. C. S. No. 157 of 1959 on the file of the Court of the Munsif of Trichur questions
in this Civil Revision Petition the correctness of the dismissal of his suit by the learned Munsif. The
facts that led to the suit may be briefly noted.

2. The plaintiff purchased a Kenson Dayter Wrist-watch from the Trichur branch of the
defendant-Company on 10th August 1957 for Rs. 172.64 nP. and also a chain for Rs. 11.22 nP. Along
with the watch the Company issued the guarantee certificate Ext. P3. Within about three weeks the
plaintiff found that the watch was not working properly and therefore he handed over the watch at
the Trichur branch of the defendant-Company. It was kept there for a few days and was returned to
the plaintiff. A few days thereafter it was taken by the plaintiff to the Head office of the
defendant-Company at Ernakulam and was handed over to the Head-office. After several days the
plaintiff got back the watch through the Trichur branch with the assurance that the defects were set
right and the watch would not give any further trouble. Within a week the trouble reappeared and
on 17th October 1957 the watch was handed over again at the Trichur branch and the person in
charge of that branch made an endarse-ment on the guarantee certificate to the effect that the watch
was received at that branch for adjustment. The watch was not thereafter taken back and is still with
the defendant-Company.

3. On 4th November 1957 the plaintiff caused a registered notice to be issued through his lawyer to
the defendant-Company demanding back the price of the watch and chain with 6 percent interest.
To that letter the Company sent a reply on 13th November 1957 and they alleged therein that the
irregularity or defect discovered in the watch was due to insufficient winding. They also alleged that
the guarantee certificate issued by them was only for servicing, if necessary, and that they were not
bound to replace the watch, if it was found to be defective. They further alleged that it was not their
practice to take back goods once sold, nor to exchange them for other articles, similar or otherwise,
and as such they were not prepared either to give the plaintiff a new watch or to refund the price
paid by him. Finally they offered that, for the sake of the plaintiff's satisfaction, they, if necessary,
were prepared even to have it tested by any competent and reputed firm of watch-importers. To this
letter the plaintiff's counsel replied on 19th March, 1958. In this reply the plaintiff agreed to have the
watch tested by the West End Watch Co. at the expense of the defendant and he was also prepared
to abide by the decision, of that Company provided that the watch, after the test, was forwarded to
the plaintiff direct by the West End Watch Co. with their opinion. To this letter the defendant sent
no reply and consequently the suit followed.

4. The lower court agreed with the contention of the defendant that the guarantee was only for
servicing and for repairing for one year and did not include any undertaking to replace the watch.
The lower court further held that the watch had no mechanical defect and therefore the plaintiff was

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 Raghava Menon Son Of Kasturi ... vs Kuttappan Nair, Proprietor, ... on 29 March, 1962

not entitled to repudiate the contract and demand the price back. It also held that the plaintiff had
not proved the quantum of damages. In the result the lower court dismissed the suit.

5. The first question for consideration is the effect of the guarantee certificate; namely, whether it
guarantees only servicing and repairing during one year or whether it includes a guarantee for the
replacement of the watch itself, if necessary. The guarantee certificate is as follows :

"This is to certify that the undermentioned Kenson Watch which has been sold this day is
guaranteed for a period of One Year, unless unfairly used or damaged by accident, water or
perspiration.

IMPORTANT: i. This guarantee becomes null and void if the article is entrusted to any other person
for repairs or for any other attention.

ii. Claims for repairs within the guarantee period must be accompanied by this certificate."

On the wording of this guarantee certificate it cannot be held that it only contemplates a guarantee
for servicing and repairing for a period of one year and it dees not guarantee any replacement. A
watch costing about Rs. 175/- normally does not require any servicing or repairing during the first
year. If the guarantee is only for servicing and repairing, it is meaningless. Therefore, I have no
hesitation in holding that the guarantee includes a guarantee for replacement as well in appropriate
rases. It may be mentioned, in fairness to the learned advocate of the respondent, that he concedes
that this guarantee may include a guarantee for replacement as well. There fore, on this ground the
contention of the defendant is unwarranted and the decision of the learned Munsif is wrong.

6. From the facts already stated what emerges is this. Within three or four weeks of the purchase of
the watch the plaintiff appears to have approached the defendant with complaints regarding the
watch. The Trichur branch took back the watch once; the Ernakulam Head-office took it for second
time; and finally on 17th October 1957, that is within about two and a half months, the Trichur
branch received it for a third time for attention. The plaintiff in his registered letter dated 4th
November, 1957, claimed a new watch or the return of the price on the basis of the guarantee
certificate; and the defendant, in their reply, took their stand that the guarantee was only for repairs
or for attention and not for replacement. The defendant further suggested in their reply dated 13th
November 1957 to have the watch tested by another firm, which was accepted by the plaintiff,
though the acceptance was a bit belated; but when the acceptance came, the defendant did not even
reply.

From these I am inclined to think that the stand taken by the defendant was not bona fide for two
reasons; firstly, that their case that the guarantee was only for repairs was not justified, and
secondly, that their refusal to send a reply to the letter of the plaintiff accepting the proposal for the
watch being tested by another firm was neither fair nor reasonable. Added to this, the plea of the
defendant, that their practice, as shown in the tills issued to their customers, was not to take back
goods once sold, is also not justified, for, such a recital at the foot of the bills is of no avail in cases
covered by the guarantee. In these circumstances, I have to proceed on the basis that the watch

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 Raghava Menon Son Of Kasturi ... vs Kuttappan Nair, Proprietor, ... on 29 March, 1962

within three or four weeks of its purchase started giving trouble in not keeping proper time and the
plaintiff produced the same before the defendant thrice within about two months and a half. The
question is whether the plaintiff is entitled to have another watch or his money back under these
circumstances.

7. The normal rule in such cases is contained in the maxim caveat emptor, which means that the
buyer takes the risk as to the quality and condition of the goods. If he wants to protect himself, he
may do so by an express warranty or condition; and that is what obtains in this case in the guarantee
certificate. Moreover, under Section 16 of the Indian Sale of Goods Act two or three exceptions are
also recognised to the rule of caveat emptor. The first is contained in Sub-section (i) of Section IB,
which provides that where the buyer makes known to the seller the particular purpose for which the
goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the
goods are of a description which it is in the course of the seller's business to supply, whether as
manufacturer or producer or not, then there is an implied condition that the goods shall be
reasonably fit for such purpose. There is a proviso added to this Sub-section and that enacts that if
the article is one specified under its patent or other trade name, then there is no implied condition
as to its fitness for any particular purpose.

The second exception, contained in the next sub-section, provides that where goods are bought by
description from a seller, who deals in goods of that description, whether he be the manufacturer or
producer or not, there is an implied condition that the goods shall be of merchantable quality. The
proviso to this Sub-section adds a rider that, if the buyer has examined the goods, there shall be no
implied condition ss regards defects which such examinatian ought to have revealed. The next
exception to the rule is that, it in a particular trade an implied warranty or condition as to quality or
fitness for a particular purpose is annexed by the usage of the trade itself, than that warranty or
condition applies. It may be noted that these are in addition to the express warranty, if any, agreed
to by the parties, as the guarantee certificate in the present case.

8. In the case before me the plaintiff is a layman and he approaches a fairly reputed firm like the
defendant dealing in watches and purchases a watch from them, not for any special purpose, but for
the common purpose of knowing the correct time. In such a case. Section 16(1] of the Sale of Goods
Act must apply, because the buyar makes known to the seller, by implication, the purpose for which
he purchases the watch and also relies on the seller's skill or judgment. To put it differently, the
purpose being only the common purpose and not any special purpose, the seller knows it, and the
purchaser being only a layman, he relies on the seller's skill or judgment Moveover, the goods,
namely the watches, are of a description which it is in the course of the seller's business to supply.
Therefore, Sub-section (1) to Section 16 applies, unless the case comes within the proviso to that
subsection. There is no evidence in the case to show that the plaintiff wanted a particular watch of a
particular trade name or patent and did not rely on the seller's skill or judgment; and therefore the
proviso has no application. Moreover, Sub-section (2) of Section 16 may also apply to the facts of
this case; for, in this case a layman purchases a wrist-watch, just by description, from a dealer who
deals in goods of that description and the defect detected in the watch is not one which could have
been found out by examination, and a watch which does not keep correct time cannot be said to be
of merchantable quality (vide Grant v. Australian Knitting Mills: 70 Mad LJ 513 : (AIR 1936 PC 34),

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 Raghava Menon Son Of Kasturi ... vs Kuttappan Nair, Proprietor, ... on 29 March, 1962

where the Privy Council says that a thing is not merchantable if it has defects making it unfit for its
only proper use but not apparent on ordinary examination). To cap, there is evidence in this case
that Kenson Dayter Watches are available only with the defendant-Company and thus they have a
special responsibility regarding the fitness of such watches and there is the guarantee certificate as
well.

9. In the aforesaid circumstances, I am of the opinion that the defendant is bound to replace the
watch under the guarantee certificate and is liable for damages for breach of warranty under the
Sale of Goods Act. There fore, the Civil Revision petition is allowed and the defendant is directed to
supply another Kenson Dayter Wrist-watch and chain of the description of the watch and chain in-

volved in the suit. In the alternative the plaintiff is granted a decree for Rs. 183.85 nP. with
proportionate costs in the lower court. If the watch and chain are not supplied within a month, the
plaintiff may execute the decree. In other regards, no costs.

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