PER MR PREM NARAIN, PRESIDING MEMBER

This revision petition has been filed by the petitioner Maruti Suzuki India Limited challenging the order dated 30th April 2015 passed in first appeal Nos. 279 and 383 of 2012 by the Kerala State Consumer Disputes Redressal Commission (in short the State Commission).

2.     The brief facts of the case are that the opposite party nos.2 and 3 are petitioners herein and complainant and opposite party nos. 1 and 2 are respondents herein.

3.     Complainant an advocate by profession, got transferred the booking originally done by one Mr Binu of Maruti Swift Diesel Car by paying Rs.50,000/- in his favour and subsequently, purchased the said car on 29.10.2010 by paying Rs.5,86,094/-. Soon after purchase the vehicle started giving problem of excessive consumption of oil, but the same could not be fixed by the opposite parties despite inspection of the vehicle/ rectification work done on the vehicle. Being aggrieved, complaint was filed before the District Forum.

4.     The District Forum directed the opposite party nos.2 and 3 to repair the defect of the vehicle to the full satisfaction of the complainant and to give warranty of one year or 50,000 kms for the engine. The said opposite parties were also directed to pay Rs.25,000/- for mental agony and Rs.2,000/- towards costs. Time for compliance 30 days failing which the awarded amount shall carry interest @ 12% per annum from the date of default.

5.     Being aggrieved, the complainant as well as opposite party nos. 2 and 3 filed cross appeals before the State Commission.

6.     The State Commission dismissed the appeal filed by the opposite party nos. 2 and 3 and allowed that of the complainant and directed the opposite party nos. 2 and 3 to replace the engine of the vehicle and provide warranty of one year or 50,000 km within two months failing which the complainant would be entitled to refund of the price of the vehicle with interest @ 12% per annum from the date of complaint till realization. Rest of the order of District Forum was upheld. Cost of Rs.5,000/- was allowed to the complainant for the appeals.

7.      Heard the learned counsel for the parties and perused record. The learned counsel for the petitioner stated that the vehicle had run about 80,000 km in 26 months from the date of purchase. This run is generally covered by a normal vehicle in 7 to 8 years. Thus the vehicle was being run excessively and therefore more consumption of engine oil may be expected. There is nothing unusual about it. This mileage also confirms that there was no manufacturing defect otherwise, the vehicle may not have run about 80,000 km in about 2 years.

8.     It was argued that the learned State Commission passed an order of replacement of engine of the vehicle without examining any expert and merely relied upon the witness produced by the complainant PW 2 who was working as mechanic in the Automobile Engine Recondition Unit workshop at Kottayam. By any stretch of imagination, evidence of such person cannot be in any manner be construed as expert evidence and, therefore, the impugned order is liable to be set aside on this ground alone.

9.     The learned counsel further stated that it is evident from the vehicle history that as on 29.01.2013, the vehicle has already done a mileage of 79,831 Kms and was still in a road worthy condition. There have been total 18 visits of the vehicle to the service center till 29.01.2013 and from the vehicle history it is evident that on number of occasions, there was no complaint of excessive consumption of engine oil.

10.   It was pointed out that the complainant brought the vehicle to the workshop of Indus Motors Co. Pvt. Ltd., (authorized service center of the petitioner) on 21.04.2012 at the mileage of 52,292 for running repairs and on 06.07.2012, 20.12.2012 and 29.01.2013 at the mileage of 59,674, 70,017 and 79,831 respectively for paid service. During the aforesaid visits neither the complaint made any complaint with regard to the engine oil consumption nor dealer noticed any abnormality in the vehicle. The aforesaid fact itself proves that the vehicle was not having any manufacturing defects.

11.   The learned counsel for the petitioner further argued that the vehicle has come 18 times to the service station, however, the complaint of excess consumption of engine oil was only reported on 15.12.2010 and the complaint was set right. After this, there was no complaint of excessive consumption of engine oil.

12.   It was very vehemently argued by the learned counsel for the petitioner that the complainant has sold the vehicle in question in the year 2018 and hence the complainant is not a consumer now. Consequently the revision petition needs to be allowed as the order of the State Commission cannot be implemented presently. Now the respondent complainant does not have any interest in the vehicle and his complaint has become infructuous.

13.    On the other hand, the learned counsel for the respondent stated that the vehicle started giving trouble right from the beginning of its purchase and particularly there was increased consumption of the engine oil. Vide letter dated 02.04.2011 the 2^nd respondent maintained that there was no defect in the engine. However, the 2^nd demanded requested for production of the vehicle for opening the engine of the vehicle. The letter reads “since all the checking methods and diagnostic steps as explained by MSIL have been done we have to do the following procedure also:

1. Bore diameter, roundness and dapperness;

2. Piston ring position and orientation;

3. Oil traces on piston top;

4. Oil traces rear value seals;

5. Oil quantity in the inter cooler

This can be done only by opening the engine; accordingly, we need your approval for the further process. We are requesting the vehicle at your convenience.

The 1^st respondent/ complainant was not willing to give the vehicle for opening the engine as it would affect the performance, mileage and life of the vehicle.

14.   It was further argued by the learned counsel for the respondent complainant that the District Forum has observed the following:

“so it is very clear from the deposition of Dw1 and Dw2 and Pw1 and the documents show there is a major consumption of oil for the vehicle and there is a major decrease of oil lever of the vehicle within a few kilometers and oil top up has to be done in the vehicle continuously”.

15.   It was stated by the learned counsel for the respondent complainant that the above observation of the District Forum confirms that the vehicle was consuming increased oil. In a new vehicle; the increased oil consumption will only mean that the vehicle had a manufacturing defect. The State Commission has rightly relied upon the opinion given by the engineer of the automobile engine recondition unit workshop who is an expert in the functioning of car engines.

16.   In respect of the sale of the car, the learned counsel for the complainant stated that the car was purchased in the year 2010 and since then the car was giving trouble and in spite of the orders of the fora below, the OPs neither repaired the car nor changed the engine of the car and therefore, out of sheer disappointment, the complainant sold the car in the year 2018 just to get rid of the car which never performed properly. However, the complainant is entitled to get the compensation for the trouble and agony that he has suffered for the past eight years on account of the deficiency of service on the part of the opposite parties. It is wrong to say that the complainant does not have any interest in the car and he is not a consumer. The fact is that his status as consumer is required to be seen at the time of filing of the complaint. 

17.   We have carefully considered the arguments advanced by the learned counsel for the parties and have examined record. In a sense, both the fora below have given concurrent finding that the vehicle suffered from manufacturing defect. The District Forum ordered repair of the vehicle along with compensation of Rs.25,000/- and the cost of litigation as Rs.2000/-. The opposite parties in their appeal before the State Commission have stated that they do not find any defect in the engine and therefore there was no question of repair of the vehicle. Therefore the State Commission ordered the replacement of engine or refund of the price of the vehicle. It is an accepted principle of law that if a component of the vehicle is defective, then the same needs to be changed under the warranty and the whole vehicle is not required to be changed. Thus, clearly the order of the State Commission for refund of the price of the vehicle was not justified. So far as the order relating to replacement of engine is concerned, this seems to be a reasonable order supported by some evidence. There is concurrent finding by the fora below about the defect in the engine and this Commission cannot reassess the fact as held by the Hon’ble Supreme Court in the case of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 as under:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

18.   As the complainant has sold his vehicle during the pendency of this revision petition, even if the order of the State Commission is upheld, it is difficult to get it implemented as the engine cannot be changed in the vehicle. We have already found that the order of the State Commission for refund of the price of the car is not sustainable. In these circumstances, the complainant has to be compensated for the trouble and agony that the complainant has suffered during the ownership of the car which was found to be defective. However, there seems to be some force in the argument of the learned counsel for the petitioner that the vehicle has run about 79,000 kilometers within a period of 26 months from the date of its purchase and therefore there may not be a manufacturing defect which will hinder the performance of the vehicle. This fact is to be considered while deciding the compensation. In our view, the ends of justice would meet if the petitioner/ opposite parties 2 and 3 are directed to pay a composite compensation of Rs.75,000/- to the complainant in this regard.

19.    Based on the above discussion, revision petition No. 2350 of 2015 is disposed of with the direction to the petitioner/OP No.2 and 3 to pay a composite compensation of Rs.75,000/-to the complainant within a period of 45 days from the date of receipt of this order, failing which the amount will attract interest @ 6% per annum from the date of this order till actual payment. The orders of the fora below stand modified accordingly.