PER MS. JUSTICE DEEPA SHARMA, PRESIDING MEMBER

         The present Revision Petition has been filed challenging the order dated 22.08.2017 of the State Commission in Appeal No. 867 of 2014 whereby the Appeal of the Petitioner was dismissed.  The said Appeal had been filed by the Petitioner challenging the order dated 08.07.2014 of the District Forum in Complaint No. 629 of 2004 whereby the District Forum while allowing the Complaint, directed the Petitioner to pay a sum of Rs.3,00,000/- on account o deficiency in service and a sum of Rs.50,000/- towards harassment and litigation expenses.  Vide the impugned order the order of the District Forum was confirmed.

2.      In the present Revision Petition the Petitioner has challenged the findings on the ground that there was no evidence on record to prove that the subject vehicle was having any manufacturing defects and hence the Foras below have wrongly concluded that the vehicle was having a manufacturing defect and thus has wrongly put the liability on the Petitioner to compensate the Complainant. It is argued that no expert opinion had been sought regarding the manufacturing defect.  In support of its contentions the Ld. Counsel for the Petitioner has relied on the findings in the case of Maruti Udyog Limited Vs. Hashmukh Lakshmichand & Anr., 3(2009) CPJ 229(NC),  Sushila Automobiles Vs. Birendra Narain Prasad & Others, III (2010) CPJ 130(NC),  Raj Bala Vs. Skoda Auto & Others, 2013 SCC OnLine NCDRC 945, Classic Automobiles Vs. Lila Nand Mishra & Another, 1 (2010) CPJ 235 (NC),  State of H.P. Vs. Jai Lal & Others, 1999 (7) SCC 280 and Hindustan Motors Ltd. Vs. P. Vasudeva, 2006 SCC OnLine NCDRC 37: (2006) 4 CPJ 167.

2.      The Respondent No. 1 i.e. the Complainant however has argued that the Petitioner, by way of this Revision Petition is actually seeking re-appreciation and re-assessment of the evidences and wants this Commission to substitute its findings on facts which is not permissible in the revisional jurisdiction.  It is further argued that the very fact that the Petitioner is contending that the conclusions arrived at by the Foras below is wrong, shows that the Petitioner, in fact, urging this Commission to exercise appellate jurisdiction instead of exercising its revisional jurisdiction.  It is argued that even if there could be any other opinion on the facts proved by the Foras below, this Commission cannot in exercise of its revisional jurisdiction substitute it.

3.      I have given thoughtful consideration to the arguments of the Ld. Counsels and have perused the relevant record.

4.      The brief facts of the case are that the Petitioner is the Maruti Suzuki India Ltd. which has been manufacturing the cars since long.  The Complainant had purchased Maruti Esteem VXL, Petrol car manufactured by the Petitioner from Respondent No. 2 on 26.06.2002 for a sum of Rs.5,99,068/-.  The case of the Complainant was that from the very inception of the purchase of the car the car had started giving problems.  He had reported the defects in the car i.e. noisy suspension door and the music system within one week of the purchase of the said vehicle, which was acknowledged by the Respondent No. 2.  The said vehicle was taken for its first service on 17.09.2002 and it was pointed out to R-2 that the vehicle was producing annoying noises from its shockers yet the necessary repairs were not done by Respondent No. 2, the authorized dealer of the Petitioner. Only the engine oil and oil filter assembly was changed.  It was contended that on 27.02.2003 when the vehicle was taken for its second service to the workshop of R-2 the defects were again pointed out to R-2 and it was recorded in the job card that the shockers and brakes of the vehicle was giving disconcerting noises. Also the right front door of the vehicle was making noises and it was found that fuel gauge was also not working.  R-2 carried out the repairs in respect of rear suspension and changed rear suspension assembly, replaced the rear shockers etc. but despite that the problem persisted.  The Complainant had to again visit the R-2 on 07.06.2003 with the same complaint. Since the problem persisted the Complainant wrote a letter dated 09.09.2003 to R-2 with a copy to the Petitioner, regarding the problems which the vehicle continued to suffer with. Pursuant to the said letter Respondent No. 2 advised the Complainant to bring the car and meet the Customer Care Manager for the removal of the defects.  On 24.09.2003 the vehicle was again taken to R-2 who replaced the spring rear coil of the vehicle and the Complainant was assured that the shockers had been replaced and the problem has been resolved.   The Complainant, however, did not find any change in the working of the suspension and it continued to be noisy.  It was revealed to the Complainant by R-2 that the problem was persisting because of the alloy wheels which were fitted by the manufacturer i.e. the Petitioner themselves.  He again showed his dissatisfaction about the working of the car on 01.10.2003.  Vide letter dated 15.10.2003 the Respondent No. 2 again advised the Complainants to bring the said vehicle to the workshop, for removal of the problem.  However, R-2 could not remove the problem of noisy rear suspension despite repeated visits and the Complainant stopped using the said car. Aggrieved he filed the Complaint. 

4.      The Complaint was contested both by the Petitioner as well as by R-2.  Petitioner had denied that the vehicle had any manufacturing defect and submitted that the vehicle had undergone stringent quality control tests before dispatch to dealer and that the dealer also carried out pre delivery inspection.  It was also alleged that the Complainant was not entitled for any repair or replacement not covered under the warranty and was given all the free services.  R-2 had also contended that he had conducted pre delivery test on the vehicle and the vehicle was taken by the Complainant after being fully satisfied. 

5.      Parties led their evidences before the District Forum and the District Forum after hearing the parties and perusing the record reached to the following conclusion:-

“We have considered the rival case, evidence and submission & material on record. Though OP1 is denying any defect in the car, the job cards and no. of repairs done by OP in during free service, however speak otherwise.  It was for OP1 to explain how despite replacement of parts, the problem persisted.  This points out to the problem in the assembly stage of the car and outside replacement cannot be substituted for assembly in workshop as an integrated work.  In the light of evidence on record, we find that OP failed to get enjoyment and satisfaction of having a new car and got involved in repeat, visits to workshops for noisy problem, which even after change of parts persisted. 

          In the circumstances, we hold OP1 guilty of selling an imperfect car due to problem of manufacturing.  After considering the entire case, we find that at this stage in 2014, replacement is not possible, as the car is out of production, and noted the car has served 12 years.  In the given circumstances, we can only compensate the complainant.  We award Rs. 3 lakhs for the deficiency and problems faced by him in new car.

          We also award Rs.50,000/- for harassment and litigation expenses.”

6.      The appeal thereafter was filed by the Petitioner before the State Commission challenging the impugned order.  The State Commission after re-appreciating and re-assessing the evidence has held as under:-

“8.          Aggrieved by the aforesaid order of the Ld. District Forum, the appellant/OP-1 i.e. Maruti Udyog Ltd., has filed the present appeal.  There is no dispute between the parties about the purchase of the car and also there is no dispute between the parties that the vehicle of the respondent-1/Complainant was taken several times to the authorized workshop for the complaint of noisy suspension, shockers, door and the music system and the defects were admitted by the Ops right from the very beginning.  It is an admitted fact that the vehicle of the respondent-1/complainant went to the service station of respondent-2/OP-2 i.e. on 17.09.2002, 27.02.2003, 07.06.2003 & 24.09.2003.  Thus it is proved that vehicle in question is defective from the date of purchase which attracts that the expression “defect” as defined in Section 2(1)(f) of the Act, which reads as under:

“The expression ‘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.”

9.           In order to establish “defect” in any goods, it has to be proved that (a) there is a fault, imperfection or shortcoming; (b) such fault, imperfection etc. is in the quality, standard, etc.; (c) which is required to be maintained by or under any law for the time being in force; or (d) which is claimed by the trader in any manner whatsoever in relation to any goods.  As noted above the vehicle in question is manufactured by an internationally renowned company with brand name “Suzuki”.  A person purchasing a vehicle of the said brand takes it for granted that the quality and standard of the vehicle would be world class and hassle free. The problem of noisy rear suspension for which during the period from September 2002 to September, 2003 the vehicle had to be taken to the workshop of the Dealer four times; for the problem of annoying noises from shockers on 17.09.2002, for noisy shockers and breaks, disconcerting noise from right front door and defect in fuel gauge on 27.02.2003; for noisy suspension on 07.06.2003 to 24.09.2003.

10.         In our opinion, such repeated visits to the workshop are more than sufficient to demonstrate that the vehicle had some fault, which was brought to the notice of the ‘dealer’ within three months of the purchase of the vehicle, and was admittedly repaired, during the warranty period.  The bare fact that a brand new car needs to be taken to the workshop number of times, is per se demonstrative of the fact that there were shortcomings in the car. It was suffering from defects and was much below the expected quality and standard of the vehicle manufactured by “Suzuki”.

11.         In our view, the Ld. District Forum rightly observed that number of repairs done by respondent-2/OP-2 during free service period are evident of the defects and now despite replacement of parts, the problem persisted.  The Ld. District Forum observed that all that points to problem in the assembly stage of car and outside replacement cannot be substitute for the same.  Hence, the vehicle in question suffers from manufacturing defects.  The appellant/OP-1 has stopped the production of the said car. Thus, the respondent/complainant is suffering major difficulty to get it repaired now.  It is further stated that from the District Forum’s order dtd 08.07.2014 till date the respondent/complainant has spent Rs.1,00,000/- (One Lac) on repairs and to get insurance and pollution certificates. 

12.         Hence in our view, the Ld. District Forum has rightly arrived at the conclusion that the subject vehicle has a manufacturing defect.  The compensation and litigation cost has also been rightly awarded after considering the totality of facts and circumstance.  We find no illegality in the impugned order passed by the District Forum and dismiss the appeal.”  

7.      This order is impugned before me alleging that the Foras below have wrongly concluded that there was a manufacturing defect in the vehicle since there was no sufficient evidence to prove it and that no expert had been examined by the Complainant and, therefore, the findings are incorrect. 

8.      It is a settled preposition that in exercise of its revisional jurisdiction this Commission cannot re-appreciate and re-assess the evidences and substitute its own conclusion to that of concurrent findings of the Foras below.  It has been held in numerous pronouncements by Hon’ble Supreme Court that where two conclusions are possible on the same facts this Commission cannot in revisional jurisdiction replace the conclusion arrived at by the Foras below especially when findings are concurrent.  It has been so held in “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”.

 9.     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.”   

10.    In T. Ramalingeswara Rao  (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019passed 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.”

11.    Keeping in mind the afore-said proposition of law, while re-examining the present Revision Petition it is apparent that the Ld. Counsel contends and argues that the conclusion arrived at by the Foras about the manufacturing defect is incorrect and wrong.  This Commission has discussed above that it can only interfere with the findings of the Fora baelow if the findings are perverse or there is a wrong exercise of jurisdiction.  The findings can be said to be perverse when it is based on no evidence and when the material evidence has not been considered.  In the present case while reaching to the conclusion that there was a manufacturing defect in the vehicle the Foras below have relied on cogent evidences of the nature that the vehicle had to be taken repeatedly for services on number of occasions immediately after purchase for the rectification of defects, which the Respondent No. 2 the Authorized Dealer had failed to rectify.  The Petitioner/Manufacturer although contended that there was no manufacturing defect yet it did not produce any expert opinion to prove that there was no manufacturing defect in the vehicle, although the law permits either of the parties to obtain expert opinion.  There were sufficient evidence before the District Forum to reach to the conclusion that the vehicle was having manufacturing defect and so the District Forum did not feel any necessity to call on its own the expert opinion. 

12.    The Ld. Counsel has relied on the findings of the case of Maruti Udyog Ltd. Vs. Hasmukh Lakshmichand & Anr. 3(2009) CPJ 229 (NC) and has argued that the defects of the nature, alleged by the Complainant, are not of the nature that it can be said that the vehicle was suffering with a manufacturing defect.  It is apparent that the findings given in the Hasmukh (supra) has been given on the facts and circumstances and the evidences in that case. From perusal of the orders it is apparent that the facts of case of  Hasmukh (supra) were entirely different from the facts before this Commission.  The facts in Hasmukh (supra) case relates to  leaking of electric current through the steering wheel and the whole body of the said car.  The defects were electrical in nature and the Court on the evidences led before it had concluded that since there was no expert opinion in that case to prove such a defect was a manufacturing defect, dismissed the Complaint. 

13.    The Petitioner has also relied on Sushila Automobiles Vs. Birendra Narain Prasad & Others, III(2010) CPJ 130 NC.  Facts in this case are different from the facts of the present case.  The facts in that case relates to some metallic sound in the car coming from the suspension kit  and the defects which were in that car were duly repaired and in the light of these facts that the defects were repaired, the contention of the Complainant therein that vehicle was suffering with manufacturing defect was rejected.  In the case of Raj Bala Vs. Skoda Auto & Others, 2013 SCC OnLIne NCDRC 945 the defects mentioned were also entirely different than the defects which the Complainant herein has mentioned.  The defects therein were tilting of the vehicle towards left side and instability in steering wheel, gross bubbling in the clutches etc. and it were these defects which were not found manufacturing defects.  Also there was an expert report filed before District Forum in that case in which it was observed that there was no inherent defect in the vehicle.  It was in the light of those facts that the decision in the case of Raj Bala (supra) was passed.  The Ld. Counsel for the Petitioner has also relied on the findings of the case of Classic Automobiles Vs. Lila Nand Mishra & Anr.  I (2010) CPJ 235 (NC) wherein this Commission has held that the District Forum could have appointed an expert on its own and that in the absence of expert evidence barely on the fact that the car was repeatedly brought to the service station for repairs and rectifications, it could not held that the car was suffering with manufacturing defects.  These findings were given by this Commission on the facts alleged therein.  The defects which were reported by the Complainant therein were related to the involuntary glowing of the check light on the indicator panel even during the normal running of the car and absence of the Catalytic Converter in the car despite the fact that the money was charged for that.  It was on these facts that this Commission has held that the expert opinion ought to have been called for in the matter.  The Ld. Counsel for the Manufacturer has also relied on State of H.P. Vs. Jai Lal & Ors. (1999) 7 SCC 280.  This case is not relevant for the purpose of the present case. In this case the Complainant was related to large scale bungling and misappropriation of Government money. It does not relate to consumer complaint.

14.    The Ld. Counsel for the Petitioner has also relied on Hindustan Motors Ltd. Vs. Smt. P. Vasudeva & Anr.  (2006) 4 CPJ 167 (NC) of this Commission. In this case the defect reported by the Complainant related to the defective and overheating of engine of car on the use of the AC.  It is apparent that the nature of defects which were found in the subject case is entirely different then the defects noted in the cases supra. 

15.    The findings can be said to be relevant only when it has come on the similar set of facts and circumstances.  As observed above the Foras below have concluded on the basis of the evidences before it. In this case it is apparent that the defects could not be removed by the dealer even by replacement of the parts and the Complainant had to repeatedly bring the subject vehicle to the service station.  In the absences of any evidence to the contrary, it cannot be said that the findings are perverse. It is apparent that the findings of the State Commission are based on the evidences and is not a case of no evidence. There is no perversity in the impugned order.  I also find no illegality or infirmity in the impugned order.  The present revision petition has no merits and the same is dismissed.