JUSTICE DEEPA SHARMA (ORAL) THROUGH VIDEO CONFERENCING

1.      The present revision petition has been filed by the petitioner i.e. the manufacturers, who was named as opposite party no.2 & 3 in the original complaint filed by the respondent no.1/complainant in his Complaint No.377 of 2016 before the District Forum.  Learned District Forum vide its order dated 19.06.2018 allowed the complaint.  Aggrieved by the said order, the petitioners filed the Appeal No.459 of 2018 before the State Commission and the State Commission vide impugned order dated 18.3.2020 dismissed the appeal. 

2.      The brief facts of the case are that the respondent No.1 (herein after called as complainant) had purchased one Renault Kwid Car on 30.03.2016 from respondent no.2/dealer of the petitioner.  The contention of the complainant was that the car, on the same day on which it was purchased, started giving “shrill and crackling sound” in the engine.  The complainant approached the dealer/respondent no.2 (herein after referred as dealer), Mr.P.S.Sandhu himself inspected the vehicle and took a long drive and was aware of the defect but had failed to remove the defects and it was considered a manufacturing defect in the engine.  His allegations were that the dealer wanted the complainant to give certificate showing that he was satisfied with the service done to the Car to which he refused.  He thereafter approached the Production Manager of the petitioner and sent a letter describing the grievances, but the petitioner refused to accept the same.  He came to know about a report published in the newspaper Times of India dated 18.05.2016 wherein it was reported that the engine installed in Renault Kwid Car was having a manufacturing defect and that is why the company i.e. the petitioner were stopping the production of the said car with the said engine.  The complainant thereafter approached the dealer several times and finally one Mr. Vivek Bhardwaj assured him that the engine would be replaced and for that reason, the dealer sent a person on 22.7.2016 with an authority to take the car.  Accordingly, the dealer collected the car from the complainant and when the car was returned to him, he found that the defect had not been removed and his grievances were not looked into by either the dealer or the petitioner.  He then approached the District Forum.

3.      Before the District Forum, the dealer had admitted contentions of the complainant relating to that vehicle had been not brought to them with problem in the engine and that a long drive was taken to ascertain the problem and the problem which the engine was giving could not be removed.  It is also admitted that the car was again brought to service station on 22.7.2016 and thereafter returned to the complainant. 

4.      The objection raised by the petitioner was that there was no evidence on record to show that there was a manufacturing defect in the vehicle.  The objection was also taken that the defects could only be ascertained by proper test and analysis and no expert opinion had been obtained by the complainant.  It was also contended that they have no liability against the complainant because the transactions ended when the vehicle was delivered to the dealer and they cannot be held liable for any defect in the vehicle.  It was also contended that the complaint was malafide. 

5.      Parties led their evidences before the District Forum and the learned District Forum after perusing the evidences and hearing the arguments of learned counsels and going through the case laws, held as under :

“8. Precisely, the case set up by the complainant is that he purchased one Car Renault Quid from the OP No.1 on 30.03.2016, after purchasing, the car was duly got registered with the office of DTO and registration number is PB-08-DH-3866, but since the day of purchase, there was a defect in the car i.e. “shrill and crackling sound of engine”, regarding that defect, matter was brought to the notice of OP No.1, who could not able to rectify the said defect and even the matter was brought to the notice of the OP No.3, who is a Production Manager of the Manufacturing Firm/OP No.2, but all the efforts of the complainant remained fruitless and ultimately, the instant complaint filed.

9. The claim of the complainant refuted by the OPs simply on the ground that there is no manufacturing defect in the car, if so then, the complainant is not entitled for replacement of the car, refund of the price of the car and moreover, whenever complainant made any issue in regard to defect in the car, then OP always cooperate with the complainant and checked the car, but no defect was found at any stage and as such, the instant complaint of the complainant is without merits and moreover, there is no expert evidence came on the file just to prove that there is a manufacturing defect and thus, complaint is not maintainable. In support of this version, the counsel for the OP made a reliance upon a pronouncement of Hon'ble National Commission, cited in 2009 (3) C.P.J. 229, titled as “Maruti Udyog Limited Vs. Hasmukh Lakshmichand and anothers”, 2013 (3) C.P.J. 196 NC, titled as “Khanna Authomobiles and another Vs. Rajesh Kumar” and 2014 (1) C.P.R 717 NC, titled as “Tata Motors Ltd. Vs. Ashish Aggarwal”.

10. We have considered the respective submission and also gone through the pleadings as well as aforesaid judgments and found that the complainant in order to substantiate his claim, produced on the file his own affidavit Ex.CA, whereby reiterated the entire story as elaborated in the complaint in regard to prove that there is a manufacturing defect in the car and further complainant proved on the file Bill of the Car Ex.C-5 and one news item published in the Newspaper “Times of India” on 13.10.2016 and photostat copy of said news item is produced on the file Ex.C-4 and original complete newspaper also produced on the file by the complainant, if we go through the said news item, which is under the heading “Renault-Nissan recalls 51,000 units of Kwid and redi-go”. Due to some defect, the OP No.2/Manufacturing Firm has recalled huge quantity of car due to some defect and car of the complainant is also of the car, which covered under the said cars, which had been called by the manufacturing firm. So, one thing is admitted that the car so purchased by the complainant is having some defect and due to that reason, the said model of the car had been called by the manufacturing firm. The said news item is alleged by the complainant in the complaint and the same has not been denied by the OP No.2 and 3 i.e. manufacturing firm rather gave an evasive reply that the news item came in the Newspaper is a secondary evidence, but we do not agree with this version of the OP because if the said news had not been got published by the manufacturing firm, then the OP has take specifically plea in the written reply that the said news was never got published by the OP. So, with these observations, we are of the considered opinion that the said news was got published by the OPs i.e. manufacturing firm and from that angle, the car so purchased by the complainant is covered under the cars, which generally having a defect and as such, the complainant is not required to prove and produce on the file any expert witness because the OP itself established that there is a defect in the car.

11. Apart from above, the complainant has taken a plea in Para No.3 of the complaint that he reported the matter to the OP No.1, who appointed the Head Mechanic Mr. PS Sandhu, who inspected the car and took a drive in the said car and these factum has not been denied by the OP No.1 rather the OP No.1 categorically admitted that the said Mr. PS Sandhu had inspected the car and took a drive, if the mechanic of the OP No.1 inspected the car, on the complaint of the complainant that there is a some defect, then ball goes in the courtyard of the OP to disprove the allegation of the complainant by examining the said Head Mechanic Mr. PS Sandhu, who inspected the car, but for the best known reason, the OP has not examined the said Head Mechanic, who mechanically inspected the car, so non-examination of said mechanic of the OP No.1, it is presumed that there is a defect in the engine of the car, which gave shrill and crackling sound of the engine.

12. In the light of above detailed discussion, we find that the complainant has not required to produce on the file any expert witness and thus, the rulings referred by the learned counsel for the OP (Supra) 2009(3) C.P.J. 229, 2013(3) C.P.J. 196 and 2014(1) C.P.R. 717, are not applicable in the present case being the facts of that ruling of Hon'ble National Commission are not identical to the facts of the case in hand. Ultimately, we reached to the conclusion that the complainant is able to prove his case and therefore, we conclude that he is entitled for the relief as claimed.”

6.      On the basis of these findings, the District Forum issued the following directions :

“13. In the light of above detailed discussion, the complaint of the complainant succeeds and the same is partly accepted and OPs are directed to replace the engine of the car, which having a manufacturing defect and further, the OPs are directed to pay compensation to the tune of Rs.20,000/-, to the complainant for mental and physical harassment and OPs are also directed to pay litigation expenses of Rs.7000/-.The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.”

7.      This Order was challenged in appeal before the State Commission and the contentions raised were that there was no evidence on record that there was any manufacturing defect in the vehicle and therefore the findings of the District Forum were liable to be set aside.  Learned State Commission after re-appreciating and re-assessing the evidences on record and hearing at length the arguments of the parties has held as under :

“13. The respondent No.1/complainant purchased a car Make-Renault Kwid manufactured by the appellants/opposite parties No.2 & 3 from respondent No.2/opposite party No.1- Distributor on 30.03.2016 as per invoice No. VSLA 15000279.The Registration number of the car is PB08DH3866, Ex.C-1.On 22.07.2016, the respondent No.1/complainant brought the car to the respondent No.2/opposite party No.1 with complaint that the engine of car is giving strange shrill and crackling sound, vide Ex.C-5. As alleged by respondent No.1/complainant, Service Head of respondent No.2/opposite party No.1 Mr. P. S. Sandhu contacted the respondent No.1/complainant and he drove the car for a reasonable long run. This has also been admitted by the appellants / opposite party No.2 in its reply that Mr. P. S. Sandhu drove the car but no report of Service Head is produced on record whether the car was found OK or troublesome sound of car engine was there. The appellants/opposite parties No.2 & 3 has not produced any

affidavit of Mr. P. S. Sandhu, Service Head.

14. Although, the respondent No.1/complainant has not produced any expert report to the effect that car engine has

some manufacturing defect but as per news item in ‘Times

Business’ dated 18.05.2016 under heading ‘Renault halts Kwid Output Over Engine Problem”, vide Ex.C-4, the appellants/opposite parties No.2 & 3 has itself admitted the

“Noise Issues” in the engine. The appellants/ opposite parties No.2 & 3 have not denied to publish the news item and also withheld the report of Sh. P. S. Sandhu so adverse inference is to be drawn. Therefore, defect in the engine is presumed to be established.

15. The District Forum has rightly concluded that the complainant is able to prove his case.”

8.      There is a concurrent finding of the Fora below on the issue as to whether that there was a manufacturing defect in the engine of the car or not and findings is that the engine had manufacturing defect.  In the present revision petition, the petitioner has challenged this concurrent findings of Fora below.

9.      It is a settled preposition of law that under Section 58 (1) (b) of the Consumer Protection Act, 2019, this Commission has a limited jurisdiction.  It is not required to re-appreciate and re-assessed the evidences on record and then reached to its own conclusion regarding the facts.  If there is a concurrent finding on facts, this Commission cannot disturb those findings unless it is shown that the findings are perverse.  A finding can be said to be perverse finding when it is based on no evidence or where there are certain material evidences on record which, if considered, would lead to entirely different conclusion. 

10.    Before the coming into operation of this new Act w.e.f. 20.7.2020, Section 21 (b) was the provision dealing with power of revision of this Commission.  This provision is akin to the new provision Section 58 (1) (b) which confers power of revision upon this Commission. The Hon’ble Supreme Court while interpreting power of revision of this Commission under Section 21 (b) of old Act has in numerous cases including “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269” has held 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”.

11.    Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under:

  “17.  The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”   

12.    In T. Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has held as under:

“12.     When the two Courts below have recorded concurrent  findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

13.    In the present case from the facts proved on record it is clear that immediately after the purchase of the subject vehicle, the complainant noticed odd sounds coming out from the engine and he immediately contacted the dealer.  The dealer took note of the problem.  It is admitted by the dealer that Mr. P.S. Sandhu did take a long drive in the vehicle to ascertain the real problem and did notice that odd sounds were being emanated from engine.  No evidence was produced on record that the defect for which the vehicle was brought to the dealer was successfully removed. It is admitted by the dealer that engine of the vehicle was defective.  The complainants contention and apprehension that the car had defective engine, stands corroborated by the news article published in Times of India wherein it was reported that the manufacturers of the Renault Kwid Car were stopping the further manufacturing of said vehicles due to some inherent defect in its engine.  Although, learned counsel has argued before me that this news item cannot be the basis of findings that the engine of the vehicle was having manufacturing defect, yet it is a fact that no evidence had been led by the petitioners before the District Forum that they had not stopped the manufacturing of the Renault Kwid Car and continued with its manufacturer and that the news item had no authenticity.  It is also clear from the impugned order that this news item is not the basis of findings.  This news item is used only as a corroborative evidence.   The impugned order is based on admitted facts and cogent evidences on record. The petitioners have failed to point out any perversity in the impugned order. 

14.    The present revision petition has no merit and the same is dismissed in limine with no order as to cost.