1. These two Revisions Petitions have been filed assailing the order of the District Commission passed in CC/36/2006 dated 28.03.2008 as well as the orders dated 17.05.2010 passed in FA/822/2008 and FA/846/2008 arising there from whereby the order of the District Commission has been modified to an extent while maintaining the findings of deficiency in service against the Petitioners and the compensation awarded in lieu thereof.
2. The dispute centers around the purchase of a Mitsubishi Lancer (diesel) vehicle purchased by the Complainant/Respondent from M/s Northern Motors Pvt. Ltd., the Petitioner in RP/2853/2010 for a sum of Rs.9,32,829/- in the year 2004. The vehicle was insured with the third Respondent M/s HDFC Chubb General Insurance Co. for the period 01.05.2004 to 30.04.2005. The insurance was renewed with the Oriental Insurance Co. thereafter for the period from 01.05.2005 to 30.04.2006.
3. According to the Complainant/Respondent, the vehicle while being driven on 07.01.2005 developed serious trouble and had several other defects of mileage and noises which according to the Complainant/Respondent had arisen during the warranty period. According to him, it was a manufacturing defect and even otherwise services rendered by the dealer for rectifying the defects suffered from deficiency in service as the vehicle never improved. Persistent problems were faced by the Complainant/Respondent and the vehicle had to be repeatedly sent for repairs for which payments were made. The trouble again occurred on 21.06.2005 when the vehicle suddenly stopped and the engine seized that had to be towed to Chandigarh to M/s Premier Motor Garage but on their advice the vehicle was again towed to Jalandhar where it was deposited with M/s Northern Motors Pvt. Ltd. where the vehicle continued to be parked. In the absence of any Redressal the complaint was filed before the District Commission and after assessment of the evidence on record, the complaint was allowed directing the replacement of the car with a new defect free vehicle upon return of the old vehicle. In addition thereto a compensation of Rs.50,000/- was also awarded.
4. Since the complaint had been allowed against both the manufacturer and the dealer, both of them filed appeals, FA/822/2008 by the dealer and FA/846/2008 by the manufacturer.
5. The State Commission modified the order of the District Commission by setting aside the direction of replacement of the entire vehicle and substituting it with a direction that the engine of the vehicle shall be replaced with a new engine free of cost. The amount raised for repairs of Rs.81,000/- was also found to be refundable as the vehicle was still under warranty. and therefore a refund of this amount was also directed. The compensation of Rs.50,000/- awarded by the SCDRC  was maintained and an additional compensation of Rs.1 lakh was also awarded against the manufacturers. The amount deposited with the State Commission was also directed to be disbursed and it was clarified that the sum of Rs.81,000/- that was directed to be refunded on account of the expenses of the repair of the car, can be recovered by the dealer from the manufacturer.
6. We have heard Mr. Kapil Kher and Ms. Rupa Paul for the Petitioners in both the Revision Petitions and Mr. VM Popli for the Respondent No.1, Complainant in both the Revision Petitions. Ms. Suman Bagga has appeared for M/s HDFC Chubb General Insurance Co. Ltd. and Mr. JPN Shahi for M/s Oriental Insurance Co. Ltd. We may clarify at the outset that the Oriental Insurance Co. Ltd. is nowhere made liable for any claim and the contest is only by the third Respondent Insurance Co.
7. Learned Counsel for the Petitioners in both the cases have urged that the vehicle had met with an accident which is evident from the evidence on record and there was nothing to substantiate any manufacturing defect in the vehicle or any deficiency in service. It is for this reason that the Complainant himself had made the Insurance Co. a party in these proceedings which aspect has not been appropriately dealt with either by the State Commission or by the District Commission. It is urged that this was a clear case of an accident of the vehicle which documents were on record and which proved that the vehicle had suffered losses on account of the accident for which a claim could have been made against the Insurance Co. if at all. In such circumstances the claim of the Complainant/Respondent is unfounded and no expert evidence has been led to establish any manufacturing defect. The inferences drawn by the State Commission as well as by the District Commission on this count are speculative and without the backing of any cogent material.
8. Learned Counsel for the Petitioners have also pointed out to the jobcards, the bills of payment as also the affidavit of the surveyor of the Insurance co. to urged that the vehicle had been damaged on account of the accident. It is further pointed out that the report of the expert as called for by the District Commission nowhere records any manufacturing defect or deficiency in service and therefore the District Commission as well as the State Commission have committed an error in recording findings contrary to the weight of evidence on record.
9. Mr. Kher has also urged that the Complainants, in spite of the accidental case of the vehicle, did not lodge any claim before the Insurance Co. nor any relief has been sought against them, yet they have been made parties which explains the apprehension in the mind of the Complainant/Respondent about an accidental claim. The entire story of a manufacturing defect has been set up for which there is no foundation and due to lack of evidence on this count, there was no occasion either for the District Commission or for the State Commission to have decreed the claim of the Complainant.
10. Another argument has been advanced by pointing out to the fact that the Complainant had initially filed Complaint No.92 of 2005 before the DCDRC, Nawanshahr on 08.07.2005 on which notices were issued initially on 12.07.2005 but the same was withdrawn on account of formal and technical defects on which an order was passed on 19.12.2005. A copy of the said complaint has been filed and it is pointed out by Mr. Kher that the amount claimed therein was Rs.5 lakhs as compensation together with a refund of Rs.87,971/- that was paid under protest to the Opposite Party Ms. Northern Motor Pvt. Ltd. for the repair of the Vehicle. It is urged that this claim of compensation of Rs.5 lakhs was suddenly enhanced to Rs.18.5 lakhs which is more than a threefold increase in the claim shortly thereafter when the second complaint giving rise to these petitions was filed. For this Mr. Kher has invited the attention of the Bench to the prayer clause of the second complaint no: CC/36/2006 that has given rise to the present Revision Petition. It is therefore submitted that this inflated, exaggerated and highly overvalued complaint itself explains the intention of the Complainant to unjustly enrich himself without there being any manufacturing defect or deficiency in service.
11. Mr. Kher has invited attention of the Bench to the jobcard of M/s Harit Motors to urge that the said document records damage found. He has then referred to the jobcard of M/s Northern Motors, the Petitioner herein, to substantiate his submissions about the damage caused to the vehicle which reflects according to him of an accidental nature. He has then invited the attention of the Bench to the satisfaction note dated 22.01.2005 endorsing the accidental repairs by the owner Complainant himself. He has then urged that when the claim had been forwarded to the Insurance Co., the surveyor sent requests and reminders which are on record calling upon the Complainant to submit the duly filled in claim form which was avoided by the Complainant for reasons best known to him and accordingly the surveyor on 07.03.2005 recommended closure of the claim.
12. He has then invited the attention of the Bench to the jobcard placed as annexure P12 and other documents of 2004 to urged that there were minor defects which were removed and satisfaction notes were issued by the Complainant. Thus, there were no manufacturing defects either before the Complaint or even thereafter. The claim of the repairs was therefore on account of the accident which fact has also been admitted in the affidavit in the affidavit of the surveyor that was filed in the proceedings and is available as Annexure P15 on record. Mr. Kher has pointed out towards paragraph 6 of the said affidavit to urge that the car had been hit and external damage had been caused as such the case was one which was accidental. He has then pointed out to the report of the expert appointed by the District Commission who had conducted the inspection on 07.07.2007. The report is available on record at page 140 to 143 of the compilation. It is urged that this report nowhere indicates any manufacturing defects and as such in the absence of any such expert evidence the conclusion drawn about a manufacturing defect is patently imaginary.
13. Responding to the said submissions, Mr. Popli, learned Counsel for the Complainant/Respondent has urged that this case of accident is a cooked up story  and the entire bills vouchers and the payment receipts are in respect of the repair or overhauling of the engine and the defects which were attempted to be cured by the dealer. The said defects nowhere relate to any accident and the mention of the word accident in some of the documents is of no consequence inasmuch as the vehicle had never met with an accident nor any such claim had been set up by the Complainant from the Insurance Co. He also submits that as a matter of fact, it is evident and is admitted, that the intimation to the Insurance Co. was not given by the Complainant about any accident and it was the workshop which had sent the intimation on its own. In such circumstances the claim of the Petitioner about the Complainant having gone to the Insurance Co. is patently incorrect. It is therefore submitted that this was a clear case of several defects in the vehicle including manufacturing defects and the vehicle had to be towed after the engine had seized and could not be restarted. The jobcards which indicate the damage are not accidental damages at all and clearly relate to the defects as alleged. The loss suffered by the Complainant is sought to be indemnified on account of the manufacturing defects that are evident on record and there was no occasion for the Complainant to have approached the Insurance co. for any accidental benefit.
14. Mr. Kher learned Counsel for the Petitioner has urged that there was no occasion for the State Commission to have granted relief of refund in respect of accidental repairs of Rs.81,000/- for which the claim could have been made from the Insurance Co. and hence the direction for refund is absolutely unjustified as there was no deficiency in service at all much less a manufacturing defect.
15. Ms. Suman Bagga, learned Counsel for the Insurance Co. has urged that there was no claim against the Insurance Co. regarding any accident and as such there is no question of relief being awarded to the Complainant from the Insurance Co.
16. We have heard learned Counsel for the Parties and we find that the District Commission has narrated the facts in about 18 paragraphs and then has recorded its conclusions only in a couple of paragraphs 19 and 20 which are extracted hereinunder:

“19. In this case, the respondents have not produced any affidavit of Panipat from where the complainant got the alleged repaired to prove their story of accident. In this case, Sanjiv Khanna surveyor had not proved extensive damage to the car by alleged accident and that is why. the engine had ceased due to that accident. But the photographs shows that the damage to the car has been made, to the outer part of the body to some limited extent and there is no damage to the oil coolant. In this case, the complainant had examined Didar Singh expert witness to prove that car was having manufacturing detect.

20. Therefore, we hold that merely the insurance company was made as party, so this is no ground to hold that the car suffered accident. The story of the respondents that the car had suffered material damages due to that accident cannot be relied upon. Therefore, the complainant has proved that the car is suffering from manufacturing defects and that is why it had been breaking down time and again. The complainant had to tow it to the garage of the opposite parties, as such manufacturing defect is proved in the car.  The complaint is allowed against the opposite parties no.1 and 2. They are jointly and severally directed to replace the car with a new defect free car and they can keep the old car with them. The opposite parties are directed to pay Rs.50,000/- as compensation to the complainant for mental harassment and agony faced by the complainant due to long detention of the car by OP No.2. The opposite parties are directed to comply with the above directions of this Forum within one month from the receipt of the copy of this judgment.”

17. The District Commission disbelieved the story of accident and turning towards the affidavit of the surveyor Mr. Sanjeev Khanna inferred that since there is no extensive damage on account of any accident the same had not been proved. This stood corroborated by the statement of the expert witness Mr. Didar Singh that there was no accidental damage caused to the vehicle. Consequently, the inference drawn was that the car was suffering from manufacturing defects and that is why it had been breaking down time and again. Accordingly, the replacement was ordered together with Rs.50,000/- damages.
18. On appeal, the State Commission also proceeded to record all statements and submission in 51 paragraphs and then has proceeded to analyze the facts from paragraph 52 onwards concluding that the vehicle was suffering from defects and major problem of the engine jam, as a result whereof the manufacturing defect stood proved. The defense taken by the Manufacturer and the dealer about the car being driven rashly and about the accident was rejected as is evident from a perusal of the recitals contained in the order of the State Commission.
19.  The State Commission however, did not agree with the relief of replacement granted by the District Commission, on the ground that the Complainant did not take back the vehicle after repairs after 22.06.2005, and therefore this fault was on the part of the Complainant and not with the dealer or the manufacturer. Hence there was no justification for the replacement of the vehicle but it directed the recovery of Rs.81,000/- of the cost of repairs that had been paid by the Complainant. Since the State Commission had arrived at the conclusion that there was a manufacturing defect in the engine it also directed for replacement of a new engine free of cost and compensated the Complainant with a sum of Rs.1 lakh and in addition thereto the sum of Rs.50,000/- that was awarded by the District Commission. The reliefs have been modified and extended which stands recorded in paragraph 71 to 79 of the impugned order of the State Commission together with observations in respect of the adjustments to be made.
20. The first issue that needs to be resolved is about the existence of any manufacturing defect in the vehicle. The contention of the learned Counsel for the Complainant/Respondent to this extent that the engine was overhauled and the bills and the payments relating thereto coupled with the jobcard demonstrate the extensive repair of the engine seems to be correct. This is evident from the invoice annexed as P7 and has been filed on record at page 87 and 88 of the paper book. This clearly demonstrates that the engine seems to have seized. It is also evident that time and again the vehicle had been sent to the garage for one repair or the other and therefore even if there were minor defects it is evident that there were defects which were required to be removed. The question however is as to whether the same would amount to any manufacturing defect or not. As to what is a manufacturing defect has been dealt with in several cases by this Commission. The judgments of this Commission need reference.
21. In the case of Annad Kumar Bansal Vs. Premier Ltd. & Anr. 2019 SCC OnLine NCDRC 1048, this Commission while dealing with the word defect and manufacturing defect has observed as under:

“12. At this juncture it is relevant to reproduce Section 2(1)(f), which deals with the definition of ‘defect’, as defined under the Consumer Protection Act, 1986:—

“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or [under any contract, express or implied or] as is claimed by the trader in any manner whatsoever in relation to any goods;

13. The term ‘Manufacturing Defect’ as defined by Black's Law Dictionary is a deviation from design specifications during production resulting in a product's defect, frailty or shortcoming.”

22. In an earlier case, this Commission in dealing with an issue of manufacturing defect in the case of Maruti Udyog Limited v. Hasmukh Lakshmichand & Anr. 2009 SCC OnLine NCDRC 74 observed as under:

““Manufacturing defect” as per P. Ramanatha Aiyar's Advanced Law Lexion, 3^RD Edition, Volume 3, 2005, defines to mean as:—

“An unintended aspect of finished product due to error or omission in assembly or manufacture, that causes injury.”

Business Dictionary.com defines it to mean:—

“Frailty or shortcoming in a product resulting from a departure from its design specifications during production.”

Respondent/complainant failed to show by leading any evidence whatsoever to prove any “manufacturing defect” in the vehicle. The “manufacturing defect” is much more than an ordinary defect which can be cured by replacing the defective part. “Manufacturing defect” is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect, opinion of an Expert is necessary which is not forthcoming in the present case.”

23. A perusal of the ratio of the aforesaid decisions therefore emphasizes on the need of an expert opinion in order to locate a manufacturing defect which is not an ordinary defect but a defect occurring during the manufacturing process. As is evident from the present case this evidence of an expert is wanting.
24.  The question, however, is as to whether there was still such a defect which could be treated to be a deficiency in the background when the vehicle suffered losses within the period of warranty and as per the jobcards, the engine of a new car had to undergo complete overhauling. It is on record that the engine was overhauled once within a few months of purchase where after the vehicle was taken by the Complainant after payment of Rs.81,000/- and then again within a span of 5 months, the engine again suffered a setback where after the vehicle did not start where after the vehicle was towed to the garage of the dealer where it is lying till date.
25. In order to ascertain as to whether there was a manufacturing defect or not the District Commission seems to have invoked the powers under section 13(1)(c) of the 1986 Act which is extracted hereinunder:

“13. 1 [Procedure on admission of complaint].—(1) The District Forum shall, 2 [on admission of a complaint], if it relates to any goods,—

(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum’

26. The expert appointed by the DCDRC was Mr. Didar Singh Rooprai an engineer investigator-cum-surveyor who was entrusted with this task of inspecting the vehicle and reporting the matter to the District Commission at Kapurthala. The report that was prepared on an inspection carried out on 07.07.2007 is extracted hereinunder:

“Reply to Notice received from District Consumer Disputes Redressal Forum, Kapurthala.

The Under-signed visited Balachaur and contacted Sh. Bahadur Singh S/o Sh. Tarsem Singh the owner of Car No.PB-20- A-0007 and recorded his Statement on 06.07.2007 in Black & White as under:-

Statement of Bahadur Singh S/o Sh. Tarsem Singh:

I Bahadur Singh S/o Sh. Tarsem Singh C/o Soori Medical Store stated that I have purchased a Car No.PB-20-A-0007 from M/S Northern Motors Private Limited, Road, Jalandhar and regularly serviced by the Company. During Servicing it was always pointed out that there is less pick up during running condition and also there was noise from front right side portion. The Vehicle went towards Delhi side and on the wayback there was noise from the Engine and the vehicle was stopped on the side of the road and shifted to Jalandhar workshop M/S Northern Motors Private Limited.

I reported to the Workshop Incharge regarding same type of Trouble in the Engine reported earlier, but the Incharge assured that all the faults will be removed by themselves by compensating through Insurer M/s HDFC Chubb General Insurance Company by lodging a Claim. Intimation and Blank Claimform was signed by me. Later on demanded amount without rating the figure. But the vehicle was not repaired instead Engine and some of the body parts were dismantled. Although a registered Letter was sent to be by Sh. Sanjeev Khanna Surveyor. He intimated that Claim will be treated as 'No Claim'. I was surprised to receive this Letter whereas I never demanded compensation from Insurance Company, the Assurance was only by the workshop Incharge. The defect in the Engine was only manufacturing defect which was reported earlier Bigeon No.4 was giving problem which is very much clear from the Service record. The supplier/distributor are un-necessarily harassing me instead of giving proper services. The Market Value left is approximate ¼ whereas I am paying regularly the Balance amount in Installments. This Vehicle is not in used since last two Years.

The above statement is True and not stated under anybodies pressure.

Sd/- (Smt. Varinder Kaur Thandi)

M.C. Balachaur

Sd/-

(Bahadur Singh)

The under-signed issued a Letter No.DSR/2007/SPL-II dated 03.07.2007 to M/S Northern Motors Private Limited for the Inspection of Car No.PB-20-A-0007 against Letter No.208/ 29.05.2007 of District Consumer Disputes Redressal Forum, Kapurthala with a copy to Insurance Company and main suppliers and visited on 07.07.2007 M/S Northern Motors Private Limited and contacted Sh. Rajeev Kumar Parts Manager and Sh.Jatinder Kumar Service Executive. There was Heavy Rains during my visits and the Car No.PB-20-A-0007 kept in open on the top Floor. The under-signed observed as under:-

OBSERVATIONS:

1. A number of Photographs were taken in order to clarify the repairs carried out.

2. Photographs of Chassis No. & Engine No., Registered No. were taken.

3. Engine was Dismantled and parts were kept in the Cabin & Dicky.

4. The Vehicle was kept in open at the top of roof and partly the vehicle was rusted.

5. The working of the vehicle could not be Judged under such conditions.

6.The Affidabit submitted by Sh. Sanjeev Khanna Surveyor has taken Photo-graphs of the Vehicle but Oil Coolant Photo-graphs were taken without any Number Plate/Identification.

7. The repairer bill shows that this item has not been replaced.

8. The Hose Pipe & Coolant system height is more than the height of the Lower portion of Bumper and there no question of any damages to Hose Pipe & Coolant system unless the front Bumpen & front portion is damaged.

9. Photo-graphs of fender lining was taken by the Surveyor and not of Coolant system in damaged condition.

10. The Vehicle does not show any accidental damages.

11. Day by day considering such conditions the Market value will be further reduced and required carly repairs.

This is submitted to the Honourable Court for proper decision.

Sd/-

(DIDAR SINGH RUPRAI)

SURVEYOR”

27. A perusal of the said report only records about a complaint of a noise from the front right side portion of the vehicle as recorded in the statement of the owner. However, while recording his observations, he has also indicated that the engine had been dismantled and consequently the working of the vehicle could not be assessed but the fact remains that there is no observation regarding any manufacturing defect in the vehicle.
28. Thus, there is no expert evidence on record to conclude or clinchingly establish a manufacturing defect by virtue whereof it could be concluded thatthere were any manufacturing defects in the vehicle or that the engine had seized on account of any manufacturing defect. Thus, in the absence of any material to infer a definite cause arising out a manufacturing defect, the conclusions drawn by the District Commission as well as by the State Commission on the ground that since accident has not been proved, therefore it is a manufacturing defect, is patently erroneous. In our opinion as there is no relevant material to arrive at this conclusion, therefore renders the impugned orders infirm, irregular and also illegal as against the manufacturer.
29. The finding of the State Commission is that the car had become unworthy of use. There was no proof to indicate that the car had been driven badly or misused. Therefore this cannot automatically result in an inference that there was a manufacturing defect. To the contrary, the argument on behalf of the Petitioners who were the Appellants before the State Commission as also the Insurance co. were noted in paragraph 66 which is extracted hereinunder:

“66. The learned counsel for the appellants and respondentno.2 submitted that the expert witness has not been examined by the respondent to prove that the car was suffering from manufacturing defect. He has also relied upon the judgement of Hon'ble National Commission dated 21.8.2009 passed in Revision Petition No.1163 of 2005 titled as 'Hind Motors (India) Ltd. Versus Shri Kushal Singh Thakur and others'.”

30. It then went on to record findings in paragraph 68 and 69 as follows:

“68. However, in the present case, the car was taken to the workshop of the appellants on 26.05.2004 (EX.C-10) i.e. soon after it was purchased on 1.5.2004. the amount of the pick up and poor adjustment was made immediately thereafter. Again it was taken on 23.7.2004 when the complaint  regarding pick up and doors was made. Ex.C-11. It was again taken on 25.10.2004 when the complaint about the noise of front left side was made, Ex.C-12. It was again taken on 11.11.2004 when the complaint of wobbling. rear side pulling was made (Ex.C-13). It was again taken on 8.1.2005 with major defects specially Engine Jam which needed extensive repairs.

69. Since the vehicle was taken frequently by the respondent to the workshop of the appellants for removal of one defect or the other and for the major problem of Engine Jam, therefore, the manufacturing defect in the car is clearly proved and the deficiency in service on the part of appellants as also of respondent no.2 is also clearly proved even when the expert has not been examined. However, the respondent has never taken back the vehicle from the appellants after 22.6.2005. The fault lay with him and not with the appellants. Therefore, there is no justification about the replacement of the car. ”

31. The conclusion that the car had gone to the workshop for removal of one defect or the other or the problem of the engine jam therefore was a manufacturing defect was proved is a finding that is not based on any expert evidence. To the contrary the expert who had been appointed by the District Commission nowhere indicated any element of manufacturing defect in the car.
32. The complaint of wobbling and the rear side pulling of the vehicle could have been possible due to an accident or otherwise infirm driving but unless there is an expert evidence to hold such defects as manufacturing defects, the State Commission was not equipped with any such expertise to treat the same as a manufacturing defect.
33. So far as the engine is concerned that did go for extensive repairs that was a deficiency which may have occurred for several reasons, but the reason of manufacturing defect has not been located either factually or technically by any evidence. In such circumstances, the findings recorded on manufacturing defect by both the Fora below are bereft of any cogent material or an expert evidence report as desirable in the light of the discussions made hereinabove, hence the impugned orders on that count are unsustainable.
34. On the other hand, the stand taken by the Petitioners that the vehicle had actually met with an accident and the damages were only accidental is a possibility expressed by them but from the nature of the claim and the repairs undertaken, there is no such established external damage to prove the actual occurrence of an accident. The affidavit of the surveyor Mr. Khanna does in paragraph 6 give a reflection on an external hit. Paragraph 6 of the said affidavit is extracted hereinunder:

“6. That during my physical verification of the above said car I observed and found that the car had been damaged from the right front side and this damage was due to the external hit and inspect on it. Due to this hit the front bumper wheel and oil cooler were damaged.”

35. The fact remains that there is no survey report at all about any accident by the surveyor Mr. Sanjeev Khanna. A hit on the right side is by itself no proof of accident.
36. The photographs which have been appended on a perusal do not anywhere indicate a hit on the vehicle on the right side which photographs are at page 135. Even if there was some small hit, the same did not establish the occurrence of an accident so as to damage the engine or the other parts which have been repaired. As against the aforesaid affidavit, the expert appointed by the District Commission Mr. Didar Singh in observation no.10 has categorically stated that the vehicle does not show any accidental damages.
37. It is therefore clear that the claim of the Petitioners that it was only an accidental damage cannot be accepted. A couple of satisfaction notes endorsing about an accident does not in any way connect the invoice and jobcards with any accidental damage. The damage has been caused to some parts and to the engine which had seized but that does not by itself preponderate to a probability of an accidental damage. The inferences by the Fora below are therefore not correct and the findings are not in accordance with the evidence on record. This therefore was not a case of accident or accidental damage.
38. The question then is as to whether the Complainant was still entitled for any claim in deficiency in service.
39. To our mind, we find that there were some defects and then ultimately the engine also suffered a damage. This has happened in 2004 and in 2005. The vehicle had been purchased on 01.05.2004 for a sum of rs.9,32,829/- which had a warranty period of 24 months that is till 30.04.2006 or 40,000 Km whichever was earlier. The defects were being pointed out during the said warranty period itself and therefore the facts in this regard as pleaded by the Complainant and noted by the State Commission in the impugned order need to be referred to. Paragraph 3 to 7 are extracted hereinunder:

“3. It was further pleaded that the performance of the car was not satisfactory. On 26.5.2004, it had covered the mileage of 1350 km. It was taken to the workshop of appellants for 1st free service. The respondent had also lodged a complaint about the defect in the pick up of the said car. Thereafter the respondent had taken the car to the workshop of the appellants on 23.7.2004, 9.9.2004, 24.10.2004 and on 11.11.2004. He had also lodged the complaint regarding the noise from the left wheel of the said car. wobbling, belt noise and pulling towards right side. However the appellants put off the matter by saying that these defects were general wear and tear of the car.

4. It was further pleaded that on 7.1.2005, the respondent went to Delhi along with his dispenser Sh.Hardeep Singh. While in Delhi, the car did not start inspite of best efforts. The respondent managed to carry the car to the workshop of the appellants by towing the same with another vehicle no.PB-20-9119 for which the respondent made the payment of Rs.12,000/- as towing charges. After inspection of the car, the appellants had informed the respondent on 8.1.2005 that engine of the car had seized. The appellants kept the car with them upto 22.1.2005 and raised the bill of Rs87,971/- for the repairing the Engine. The appellant did not allow the respondent to take back the vehicle without payment, although it was within the warranty period. The respondent made the payment of Rs.60,000/- out of this amount of Rs.87,971/- on 22.1.2005.

5. It was further pleaded that the respondent had not lodged any claim with the Insurance Company as there was no accidental damage to the vehicle. However, the appellants had informed the insurer, respondent no.3.

6. It was further pleaded that this car again gave problem. Then it was taken by the respondent to the workshop of the appellants on 28.4.2005 and it was got checked from their workshop. The appellants had charged a sum of Rs.3,046.50p from the respondent, although this time also the car was within the warranty period. On that date, on the insistence of the appellants. the respondent also made the payment of Rs.21,000/- as the balance payment of Rs.87,971/- in full and final settlement.

7. It was further pleaded that again on 21.6.2005 when the respondent was driving the car near Derabassi it stopped. It never re-started. The respondent managed to tow the car and bring the same to Chandigarh by making payment of Rs.1,500/- to M/s Premier Motor Garage, Chandigarh who were dealers of manufacturers M/s Hindustand Motors Limited.respondent no.2. On the advice of M/s Premier Motor Garage, the respondent took the car to Surinder Singh by towing the same and by making the payment of Rs.7,000/- as towing charges. On 22.6.2005, the respondent took the car to the appellants and since then it is lying parked with them.”

40. The denial was made which has been recorded by the State Commission in paragraph 13 to 16 of the impugned order which is extracted hereinunder:

“13. It was denied if the car was having any manufacturing defect or if it had started giving trouble from the dates of purchase or if it had low pick-up or if it was creating extra noise. The respondent had taken the delivery of the car after carrying a pre-delivery inspection. He was fully satisfied about the condition of the car.

14. It was further pleaded that the respondent had brought the car in the workshop of the dealer on 23.7.2004 after the coverage of 6357 kms, on 1.9.2004 after the coverage of 11029 kms., on 25.10.2004 after the coverage of 16652 kms. and on 11.11.2004 after the coverage of 16336 kms. for availing prescribed normal maintenance services. Although the schedule was not maintained by him, the job cards reveal that the respondent had never pointed out any alleged defect to the appellants. Respondent no.2 was having authorised dealers and service stations in and around Delhi. Receipt of Rs.12,000/- was false and fabricated document.

15. It was further pleaded that vehicle had met with an accident which fact was kept concealed by the respondent. On 8.1.2005, the car of the respondent was brought by Hardeep Singh, driver of the appellants with the complaint that the car did not start. The respondent had completed all the formalities for getting the insurance claim from the Insurance Company. After carrying out the accidental repairs, the appellants had raised the demand bill for Rs.87,971/-. However, the respondent had made the payment of Rs.60,000/- only on 22.1.2005. He made the further payment of Rs.21,000/- on 28.4.2005 towards the full and final settlement after getting the vehicle repairs to his entire satisfaction. Remaining amount was adjusted by the appellants towards the discount over the accidental repairs of the vehicle.

16. It was further pleaded that the respondent had not made any payment to respondent no.2 nor he has lodged any complaint with respondent no.2 about the alleged defect in the vehicle.”

41. It is therefore evident from these pleadings that the vehicle had been serviced and attended to in 2004 till November 2004 and certain defects which were pointed out had been removed for which satisfaction notes were issued that have been filed along with the Revision Petition. However, as recorded above, the plea of the accident has not found to be proved. There after repairs were carried out and admittedly the vehicle remained with the dealer and upon the repair of the engine, a bill for Rs.87,971/- was raised. As against this, a payment of Rs.81,000/- was made and the vehicle was taken back but it was again brought back after having been driven for 31,744 Km on 22.06.2005.  The car had stopped running and it never restarted as a result whereof it was taken back to the garage after being towed on 22.06.2005 where after the car remained with the dealer in the same condition. The engine had become non-functional.  
42. The finding recorded by the State Commission is as follows. Paragraph 61, 62 and 63 of the order are extracted hereinunder:

“61. Even when the car was repaired by the appellants from 8.1.2005 to 22.1.2005 the car again became unroadworhty on 28.4.2005 and it was taken to the workshop of the appellants. It has already been discussed that on that date, the respondent had made the payment of Rs.21,000/- against Bill dated 22.1.2005. He had also made the payment of Rs.3046.50 which was the amount of fresh bill raised on 28.4.2005.

62. The car had again become unroadworthy on 21.6.2005 and it was taken to the workshop of the appellants on 22.6.2005 and since then the car is lying parked with the appellants.

63. It was stated by the respondent in his affidavit, Ex.C-28, that there was some defect in the Engine, the Bigun Connecting Rod was found damaged. The cranck shaft was damaged from the spot of 4 no. Bigun Connecting Rod. It is even admitted by the appellants that the car was brought to the workshop of the appellants by the respondent on 22.6.2005. It was not denied that the car had become unroadworthy.”

43. The State Commission has further recorded in paragraph 68 as follows:

“68. However, in the present case, the car was taken to the workshop of the appellants on 26.5.2004 (Ex.C-10) i.e. soon after it was purchased on 1.5.2004. The complaint of pick up and poor adjustment was made immediately thereafter. Again it was taken on 23.7.2004 when the complaint regarding pick up and doors was made, Ex.C-11. It was again taken on 25.10.2004 when the complaint about the noise of front left side was made, Ex.C-12. It was again taken on 11.11.2004 when the complaint of wobbling, rear side pulling was made (Ex.C-13). It was again taken on 8.1.2005 with major defects specially Engine Jam which needed extensive repairs.”

44. Even though there is no expert evidence of a manufacturing defect, but the repeated visit of the vehicle to the dealer from the date of its purchase on 01.05.2004 till 22.06.2005 demonstrates that the vehicle has spent a journey of repairs including the complete overhauling of the engine of the vehicle together with other repairs which was within the warranty period.  The engine finally did not start. The vehicle, particularly its engine and some mechanical parts kept on being repaired on one occasion or the other within the warranty period. The engine failed twice within a span of almost one year and even before it could complete the 40,000 km limit of warranty. The defect therefore could not be cured either by repairs or replacement of parts. The vehicle ultimately was grounded in the workshop of the dealer. Even though evidence of an expert certifying a manufacturing defect is wanting, yet the defects have resulted in malfunctioning putting the car in total disuse. Ultimately, the Complainant buyer has failed to enjoy the utility of the goods purchased by him on account of the defects and deficiencies in the vehicle. The defects and deficiencies in the vehicle. The question is as to whether the defects would still be indemnifiable. For this one has to refer to the word defect defined in Section 2(1)(f) of the Consumer Protection Act, 1986 reproduced hereinunder:-

"defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or [under any contract, express or implied or] as is claimed by the trader in any manner whatsoever in relation to any goods;”

45. There is no dispute that the vehicle was under warranty when the failure of the engine and other defects occurred. There is no evidence to attribute any blame of faulty driving or misuse of the vehicle by the Complainant. In such circumstances the warranty coverage protects the Complainant enabling him to claim replacement and repairs free of cost for the engine and other covered defects occurring during the period of warranty. Consequently the defects and deficiencies in the vehicle are liable to be compensated in view of the statutory definition of defects that are within the fold of deficiencies as defined under Section 2(1)(g) reproduced hereinunder:-

“ “deficiency” means any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”

46. Then the warranty period was also available. The terms of warranty had been filed before the District Forum along with the reply of the manufacturer as R1/1 referring to Clause 4(g) and 4(h) thereof that are extracted for reference hereinunder:-

“4(g) Any component and/or assembly which has been subjected to misuse, negligence or accident.

4(h) Damages caused by external influences such as chemical pollution, acid rain, flood, traffic, accident, hair sand, slat, stones, fire or disasters whether due to human fault, negligence or act of god.””

47. The aforesaid clauses indicate exclusion of liability under the warranty in the conditions indicated therein. Damage by accident is excluded. As indicated in the findings herein, the stand by the Petitioners about their claim of the vehicle having been damaged in an accident has been found not to be proved. Neither have they been able to lead evidence or prove any misuse of the vehicle or negligence of the owner or any person. The exclusions under the warranty therefore will not apply and the damage to the vehicle cause loss would stand covered under the warranty.
48. The vehicle therefore has been correctly found to be deficient in performance but as rightly held by the State Commission, the entire vehicle did not require replacement. We therefore agree with the conclusion drawn by the State Commission to that extent whereby the order of the District Commission for replacement of the vehicle with a new vehicle has been set aside.
49. However, for the defects and the deficiencies, the contention that the vehicle suffered from damage due to accident could not be proved or established as reasoned out hereinabove. Consequently, the defects that have occurred in the vehicle are not on account of any accident and as rightly concluded by the State Commission, no evidence was led to prove that the vehicle had been driven in a faulty manner or had been misused.
50. Thus, the repetitive visit for removal of defects including the overhauling of the engine and the defects as referred to in the jobcards clearly indicates that the vehicle was not rendering perfect services as expected of the quality and with the make of the vehicle, that too even within the warranty period of two years, and also that the vehicle had done less than 40,000 Km when it came to be parked in the workshop of the Petitioner/dealer on 22.06.2005 recording a mileage of 31,744 Km. We find that the State Commission was justified in directing the replacement of the engine and also directing the refund of the amount of Rs.87,971/- which was the bill raised for the repairs earlier and had been paid by the Complainant to the extent of Rs.81,000/-. We have located this calculation from the facts as recorded in paragraph 41 and 42 of the impugned order of the State Commission.
51. In the background above, the question is to whether at this point of time after 20 years of the purchase of the vehicle and the model of the vehicle being out of manufacture will it be appropriate to maintain the directions issued by the State Commission for replacement of the engine and if so to what extent. We find that the replacement of a new engine of the said model would not be feasible at this juncture. We therefore find it expedient that in lieu of the reliefs as granted by the State Commission, a lump sum amount looking to the nature of the dispute raised and the defective vehicle which the complainant had to bear with, it would be appropriate to substitute the same by awarding a lump sum amount of Rs.5 lakhs to the Complainant/Respondent and to that extent the impugned order deserves to be modified. It needs mention that the Complainant had, originally in the first complaint that was filed by him, claimed a compensation of Rs.5 lakhs.
52. The Revision Petitions are therefore partly allowed in the aforesaid terms holding that there was no manufacturing defect established and therefore the manufacturer namely M/s Hindustan Motors Ltd. cannot be saddled with any liability on that count but at the same time in view of the innumerable defects which were within the warranty period, the manufacturer and the dealer have been rightly held to be jointly liable for compensating the Complainant/Respondent. The coverage under the warranty is not excluded under Clause 4(g) and 4(h) quoted above in paragraph 46 which makes the manufacturers also liable to that extent along with the dealer who is liable for the deficiencies in service. We accordingly modify the impugned order of the State Commission dated 17.05.2010 passed in FA/822/2008 and FA/846/2008 and direct both the Petitioners to jointly and severally pay a sum of Rs.5 lakhs to the Respondent No.1 Complainant for the deficiencies of the vehicle as indicated above. The said amount shall be paid within a period of three months from today. In the event, any default is committed in the payment, the same shall carry an interest of Rs.9% till the actual amount is paid. Any deposits made pursuant to the orders of the Fora below before the SCDRC shall be adjusted towards the above mentioned awarded amount.
53. It is also evident that the vehicle has been lying with the dealer in the workshop and after 20 years the vehicle has almost attained scrap value. We therefore further direct that the vehicle shall be handed over to the Complainant on as is where is basis and it shall be open to the Complainant to either retain or dispose of the vehicle as he may choose to do so. The Revision Petitions stand disposed off with the above directions.