( Delivered on 8/1/2019)      

Per Hon’ble B.A. Shaikh, Presiding Member

1. This is an appeal filed by the original opposite party ( for short OP) Nos. 3,4 and 5, feeling aggrieved by an order dated 10/8/2016 passed by the Addl. District Consumer Forum, Nagpur  by which the consumer complaint bearing No. CC/15/113 has been partly allowed.
2. The case of the original complainant/respondent No. 1 herein as set out by him in the aforesaid consumer complaint in brief is as under.

1. The respondent No. 2 is the dealer of a car manufacturing company namely Mahindra & Mahindra Ltd.   The respondent No. 2 is its Area Manager. The appellant  Nos. 1,2 and 3 are respectively the General Manager, Chairman and Vice Chairman of the said Mahindra & Mahindra Ltd.   The respondent No. 1 purchased one car bearing registration No. MH-31/EA1681  from the respondent No. 2 as manufactured by Mahindra & Mahindra Ltd.  He paid  Rs. 11,59,462/- towards price of the said vehicle, Rs. 96,257/- towards RTO registration charges, Rs. 35,667/- towards insurance policy and Rs. 23,904/- towards Municipal Corporation Taxes to the respondent No. 2. The said car was delivered to the respondent No. 1 by the respondent No. 2 on 11/4/2012 upon payment of the aforesaid amount to  it. The respondent No. 1 used that car for his personal purpose.
2. However, the said car started giving mechanical trouble within 40 days of its purchase. The said car was used for running  up to 2842 km only till June 2012. However the said car started creating noise, displacing ANG, problem in clutch and its all doors were creating noise  in running condition of the car. 
3. The said car all of sudden stopped while running on the road  while using its second  gear. The vehicle which was coming from its rear  side gave dash to it. The said car was damaged to little extent due to  that reason. Its only back side assembly  was damaged. The said car had stopped all of sudden due to mechanical effect on the road and there was also failure of break system of that car. The respondent No. 1 took that car service to the Ops where upon  they charged Rs. 7,822/- for repairing though the vehicle was under period of warranty.
4. The car was taken from time to time to the service center by the respondent No. 1 as there were various mechanical defects in the said car.  Those were namely the car was creating noise. There was cluster cover noise, front suspension noise. There was difficulty in changing of the gear, and the car was being stopped at the time of changing of the gear. There was also alignment noise , clutch and break system were not working. The respondent was always driving the vehicle under fear of accident due to mechanical defects in the car. The car was taken to the service center of respondent No. 2 on 8/1/2013, 15/3/2013, 11/12/2013, 10/02/2014, 16/4/2014, 18/06/2014, 9/10/2014, 6/1/2015, 15/2/2015, 18/3/2015 and on other dates for repairing  and removal of mechanical defects of the car. The car was taken total 25 times to service center for repairing. However, on all those occasions, the mechanical defects  of the car were not removed by the respondent No. 2/service center.
5. The respondent No. 1 therefore issued notice dated 6/3/2013 through his advocate to the appellants and the respondent Nos. 2 and 3 requesting them to replace the vehicle by new vehicle or to refund him the price of the vehicle with insurance charges, taxes, registration fees and interest paid by the respondent No. 1 over vehicle loan. They received the notice and assured the respondent No. 1 for removing defects. They extended the warranty till 21/10/2016 or till the running of the vehicle up to 100000 km whichever is earlier. They also paid compensation of Rs. 1,00,000 to the  complainant as car was required to be brought to service center for repairing from time to time. They had also assured the respondent No. 1 that they will  completely remove all the mechanical defects of the vehicle and the vehicle will be roadworthy. However, there after also the defects were not removed. Hence the respondent No. 1 took that vehicle to the service center on 15/3/2015 for repairing but the defects were not removed. Hence the respondent No. 1 made complaint by sending email. The respondent No. 1  found  that there are  manufacturing defects in the vehicle. Hence she issued notice dated 2/5/2015 to the appellants and the respondent Nos. 2 and 3 requesting them to replace the vehicle by new vehicle or otherwise to refund him its price and other expenses. However they did not replace the vehicle nor did they refund the aforesaid amount to the respondent No. 1.

3. Thus, the respondent No. 1 alleging deficiency in service   on the part of the appellants and respondent Nos. 2 and 3 also alleging that they adopted unfair trade practice, filed consumer complaint under Section 12 of the Consumer Protection  Act, 1986 before the District Consumer Forum, Nagpur seeking following relief.  

1. Direct the appellants and respondent Nos. 2 and 3/original OP Nos. 1 to 5  to replace  the aforesaid vehicle by new vehicle or alternatively to refund him its price of Rs. 11,59,462/- with expenses incurred by him  Rs. 96,257/- towards registration of the vehicle with the RTO, insurance premium of Rs. 35,667/- paid by him  and the municipal corporation taxes of Rs. 23,904/- paid by him and the prices for accessories of Rs. 50,000/- paid by him. He thus, alternatively  claimed total amount of Rs. 13,65,290/- with interest at the rate of 18 percent per annum from the appellants and respondent Nos. 2 and 3.
2. However, direction is sought to the appellants and respondent Nos. 2 and 3/original OP Nos. 1 to 5 to pay him compensation of Rs. 3,00,000/- and litigation cost of Rs. 1,00,000/-

4. The original complainant/respondent No. 1 herein in support of the complaint filed copies of the documents namely, application form submitted for vehicle to the respondent No. 2, payment receipts, invoice, delivery memo, octroi payment receipt, registration certificate  of RTO, bank account statement, vehicle history from 11/7/2012 to 20/3/2015, six job request forms,  workshop vehicle inventory, e-mail correspondence, both notices, acknowledgments about notices, extended warranty certificate, letter from the respondent No. 2. 
5. The respondent No. 1 herein also filed his counter reply on affidavit by way of evidence in support of the complaint. He also filed before the Forum below written notes of arguments  through his advocate.
6. The additional District Forum, Nagpur issued notices of the consumer complaint to the appellants and respondent Nos. 2 and 3 herein. They were sent by Registered Post A.D. The notices  were served to the appellants and respondent Nos. 2 and 3 as issued by the said Forum to them. The respondent No. 1/original complainant produced before the Forum below, postal track report obtained from India Post website about service of notice. He also filed his own affidavit on 6/11/2015 about service of notice. The District Forum below after considering  the said track report and the affidavit held that notices have been duly served to all the OPs Nos. 1 to 5. The original OP Nos. 2 to 5 failed to appear despite service of notice as above. Therefore the Additional District Consumer Forum, Nagpur, passed an order to proceed exparte against the appellant Nos. 1, 2 and 3/original OP Nos. 3,4 and 5 and the original OP No. 2 /respondent No. 3 herein
7. The original OP No. 1/respondent No. 2 herein filed reply to the Consumer complaint of the respondent No. 1  and thereby resisted the said complaint. The defence raised by respondent No. 2 herein in its reply in brief is as under.

1. The complaint  filed by the respondent No. 1 is false and misleading. There is no manufacturing defects in the vehicle purchased by respondent No. 1 from respondent No. 2. The respondent No. 1 himself is responsible for defects that occurred in his vehicle from time to time. He drove  the said vehicle negligently and did not take its proper care which caused defects from time to time in the vehicle. The respondent No. 2 repaired the said vehicle from time to time whenever it was brought to its service centre by the respondent No. 1. The original complainant/respondent No. 1 herein had inspected the vehicle after its due repairing and after his full satisfaction that the vehicle was properly repaired, he signed a letter of satisfactory work.
2. However as the respondent No. 1 is the customer of respondent No. 2 in order to maintain  relationship as  a seller and the consumer, the compensation of Rs. 1,00,000/- was paid to him for settlement of his claim by issuing cheque No. 002861, dated 21/10/2013. The respondent No. 1 gave writing  on 22/10/2013 about acceptance of the said cheque of Rs. 1,00,000/- towards settlement of his full claim. Hence his claim is not survived after his  acceptance of cheque of Rs. 1,00,000/-. It was therefore requested by respondent No. 1 that complaint may be dismissed with cost.

8. Advocates of respondent Nos. 1 and 2  had filed their respective written notes of augments  before the Addl. District Consumer Forum. Thereafter, the aforesaid consumer complaint was finally heard before the said Forum. The learned Addl. District Consumer Forum, Nagpur  after hearing both the parties and considering  evidence brought on record passed the impugned order by which it partly allowed the complaint. The Forum under the impugned order came to the conclusion in brief that as the original OP Nos. 2 to 5/ appellants Nos. 1,2 and 3 and respondent No. 3 herein did not appear before  the Forum despite service of notice and as they did not file reply to the complaint, their  defence has not came on record to rebut allegations made in the complaint. Moreover, the defects occurred in the vehicle from time to time have been specified in the complaint and that the vehicle was required to be taken many times to the garage for repairing which  it shows that there is manufacturing defects in the vehicle. The job cards of the vehicle also proved that for the same reason, the vehicle was taken to the garage  for repairing  from time to time and hence it can be said  that the said defects were not removed and that it also proved  that there is manufacturing defects in the vehicle. Thus, the Forum below held that the entries recorded in job card produced on record are sufficient to prove manufacturing defects in the vehicle. The Forum also held that all the said defects were occurred within a period of warranty of the vehicle The addl. District Consumer Forum below also considered authorities cited before it and held that the original OP Nos. 1 and 2/respondent Nos. 2 and 3 are not liable for manufacturing defects as they provided proper service whenever  vehicle was brought to the service centre for repairing. The Forum also held that the respondent Nos. 2 and 3/OP Nos. 1 and 2 are responsible only for making compliance of the order through the original OP Nos. 3 to 5/appellants. The Forum therefore directed the original OP Nos. 3 to 5/appellants to replace the vehicle   having manufacturing defects  by new vehicle and provide  respondent No. 1  accessories and not to claim  from him any taxes and registration charges and OP Nos. 3 to 5/appellants shall bear expenses for the same and to issue new warranty along with all the documents of the new vehicle to the respondent No. 1/original complainant. The Forum also directed that upon making of the aforesaid compliance, the OP Nos. 1 and 2/respondent Nos. 2 and 3 herein shall return the defective vehicle lying with them to the original OP Nos. 3 to 5/appellants and shall obtain the acknowledgment about the same from them.
9. The Forum also directed the original OP Nos. 3 to 5/appellants that if it is not possible to comply with the  aforesaid order then  they shall pay to the original complainant/respondent No. 1 herein Rs. 11,59,462/- towards refund of  price of the vehicle, Rs. 96,257/- towards the payment made by the original complainant/respondent No. 1 herein for RTO registration, Rs. 35,667/- paid by respondent No. 1 towards insurance premium of the vehicle, Rs. 23,904/- paid by the respondent No. 1 herein towards municipal corporation taxes  and Rs. 50,000/- as paid by the respondent No. 1 towards accessories of the vehicle. Thus, the Forum below directed that  total amount of Rs. 13,65,290/- be paid by original OP Nos. 3 to 5/appellants to the original complainant/respondent No. 1 herein with interest at the rate of 12 percent per annum from 11/4/2012 till its realization by him and also to pay him compensation of Rs. 25,000/- for physical and mental harassment and litigation expenses of Rs. 5,000/- The Forum directed that the original OP Nos. 1 and 2/respondent Nos. 1 and 2 herein shall get complied with the aforesaid order  through original OP Nos. 3 to 5/appellants.
10. Thus, feeling aggrieved by the said order, original OP Nos. 3 to 5/appellants  have filed this appeal. During the pendency of this appeal, with the permission of this Commission, the appellants amended the appeal memo. Moreover, the appellant with the permission of this Commission  also produced typed copy of the job cards of the vehicle. The appellant also produced in appeal with the permission of this Commission warranty booklet which was not produced before the Forum below. The learned advocates of both the parties also filed written notes of arguments  and additional written notes of arguments. We have also orally heard them at the time of final hearing. We have also called record and proceeding of the consumer complaint No. CC/15/113 and perused the same. We have also perused the entire record and proceeding of the present appeal. We have heard Mr. Sachin Zoting, learned advocate who appeared for the appellants and learned advocate Mr. Nalin Majithia who appeared for respondent No. 1. No one appeared for respondent Nos. 2 and 3 at the time of final hearing. However, advocate of respondent Nos. 2 and 3  already filed written notes of arguments which we have considered.
11. Submission of learned advocate of the appellant in brief is as under.
    1. The Forum below did not consider that it has got no territorial jurisdiction to entertain and decide the complaint against the appellants.
    2. The role of the appellants is restricted merely to provide warranty benefits to end  customer like that of the respondent No. 1/the original complainant for a limited period and kilometers mentioned in warranty booklet which is provided to the respondent No. 1 and hence they cannot held responsible for any inaction of the dealer.
    3. No expert opinion is filed in support of the complaint and to prove manufacturing defect it the vehicle. The Forum below has not considered the said material aspects of the case.
    4. The valuation of the subject matter of the complaint exceeds the pecuniary jurisdiction of Rs. 20,00,000/- of the additional District Consumer Forum and hence the complaint filed before Forum below is  not maintainable.
    5. The warranty booklet was not produced before the Forum below intentionally by the respondent No. 1 and therefore he did not come with clean hands before the Forum. The Forum below did not verify the warranty booklet in which there are terms and conditions given as applicable  to the present case.
    6. The vehicle is still in possession of  respondent Nos. 2 and 3 in good condition but they did not appear before this Commission to make oral submission. Proper services were given  as and when called by the respondent No. 1. The complaint is filed by respondent No. 1 only for extracting money from the appellants.
    7. The respondent No. 1 used the vehicle for  several kilometers without any complaint/obstruction in driving of the same. Complaints were made to the service centre only with a view to pressurize  the appellants and the dealership and extract money from them. The vehicle was not used properly and therefore the problem regarding suspension had occurred.
    8. Vague allegations  are made about  defects in the vehicle. The Forum failed to analysis  and appreciate the fact that on all occasions  the vehicle was sent for different types of alleged defects caused due to rash and negligent driving of the vehicle by respondent No. 1. Moreover, the accident was occurred while using the vehicle and the said accident is not covered under  manufacturing defect and the complainant has to bear the cost of the repair for the same.
    9. The service chart demonstrated that there was no deficiency in service on the part of the appellants. The respondent No. 1 has failed to make out the case of manufacturing defects and other defects alleged in the complaint. Moreover, the manufacturing defects do not cover consumable items such as oil and defect was caused due to rash and negligent driving  and use of the vehicle by respondent No. 1. Merely because vehicle was sent to service center number of times, it does not prove the fact that  there are manufacturing defects in the vehicle. The warranty book shows the terms and conditions relating standard vehicle warranty, emission warranty, pre requisites for warranty, office details are given by the appellant’s advocate in his additional written notes of arguments filed on 28/11/2018. The impugned order is erroneous and it needs to be set aside.
12. The learned advocate of the appellants relied on the decisions in the following cases.
    1. Maruti Udyog Limited Vs. Veeren Thakkayil & Anr.  reported in 2007 1 CPR 191. In that case the Maruti  vehicle purchased by complainant was found to have defect of oil leakage from engine as noticed during 1^st free service. The said defect was attended to by replacing half of engine. The District Forum had allowed  complaint against manufacturer/ appellant  and awarded compensation of Rs. 50,000/-. It was held that  obligation of manufacturer was only to repair or replace the part or parts found defective. Repair was done and parts were replaced free of cost. Forum rightly did not order replacement of vehicle when defect was reparable. No evidence is brought on record in support of complainant’s case that resale value of vehicle was reduced by replacement of half of engine. The complainant’s contention remained only an assumption & dealer was exonerated from any liability by Forum though vehicle was returned after 27 days of  repair. It is held that manufacturer  could not be burdened with compensation and impugned order was liable to be set aside.
    2. Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Anr.  reported in ( 2006) Supreme Court Cases 644. In that case, it was held that manufacturing defects if established, on facts relief of  replacement of the entire item or replacement of defective parts only called for purchase of car. Defect was in a part. It was alleged that there was delay and negligence in removal of defect. There was also  warranty undertaking to repair or replace the defective part free of cost. Clutch assembly developed defect. Seller erroneously advised  the buyer to take the car to another city for repairing  and buyer did  accordingly. Realising the error, the seller asked  the buyer to leave the vehicle at the workshop for downing of the engine but the buyer did  not agree. It is held that in  such circumstances inference of any manufacturing defect in the car, is not justified. Hence Hon’ble  High Courts direction for replacement of the car held not justified. Thus,  defective part ( clutch assembly) was directed to be replaced without  any charge and a consolidated sum of Rs. 50,000/- was awarded to the buyer for cost of travel, for  inconveniences resulting from seller’s acts and towards cost of litigation.
    3. Maruti Udyog Ltd Vs. Susheel Kumar Gabgotra, reported in 2006 0 AIR (SCW) 1681.  In that case, there was defect  in clutch system.  The dealer offered  to rectification by bringing down the engine. Complainant did  not co-operate and insisted  for replacement of the vehicle. Warranty  of vehicle only assured  replacement of defective parts. It is held that  High Court was not justified in ordering replacement of the vehicle. The Hon’ble Supreme court directed  free replacement of defective part and  granted compensation of Rs.  50,000/-
    4. Chandeshwar Kumar Vs. Chairman, TELCO Ltd & Ors. reported in 2006 3 CPR (NC) 402. In that case, allegation was of manufacturing defects in bus purchased by complainant. Bus was manufactured by respondent TELCO Ltd. The complainant  alleged  deficiency in service. Complaint was dismissed by State Commission. No expert opinion was produced on record as to whether vehicle had any manufacturing defects. The  evidence on record  showed that petty repairs were carried out by complainant by paying negligible amounts on filters, gear, lever, radiator, engine oil, steering etc. No additional material or evidence was  brought on record to prove allegation of vehicle having any manufacturing defect. It was held that State Commission rightly held that complainant failed to prove his case. It was thus  held that the impugned order of State Commission does not warrant any interference.
    5. Rakesh Gautam Vs. Sanghi Brothers Ltd. and Ors. Reported in 2010 (3) CPJ 105.  Vehicle in question had suffered only minor defects in the nature of clutch plate, assembly, tool pump, valve, cylinder, slibs, piston ring, etc.  It is held that these cannot be termed as manufacturing defects, specially when the vehicle has been extensively used. Onus was on the petitioner/ complainant to prove the manufacturing defects, which he has failed to discharge. Question of replacement of the vehicle or refund of the cost of the vehicle, therefore does not arise. Respondents /opposite parties are directed to compensate the petitioner/ complainant to the tune of Rs. 50,000/-.
    6. Kumari Namrata Singh Vs. Manager Indus- A Division of Electrotherm & Anr.  Reported in 2012(3) CPR 570 (NC). It is held in the said case that only on the  basis of repairing of vehicle on few occasions, it cannot be said that vehicle was having manufacturing defects. For proving manufacturing defect expert opinion is necessary which is lacking in present case. Hence revision petition was dismissed with cost of Rs. 5,000/-
    7. Yogeshwar Vs. M/s. Saluja Motors Private Ltd.. & Anr. Reported in 2017 1 CPR 23. In that case as per report of local Commissioner mileage of vehicle was  15.91 kms per litre. There was no evidence on record that local Commissioner has hostile animus against opposite parties at any point of time. Report of local Commissioner was affirmed by District Forum.  It is held that report of local Commissioner is trustworthy, reliable and inspire confidence. Manufacturing defect is always proved by way of adducing expert report. In the absence of  any manufacturing defect report on record, manufacturing defect is not proved in the said  complaint. However, dealer cannot exercise unfair trade practice by way of advertisement for the purpose of increasing his sale. Dealer has used unfair trade practice by way of misleading advertisement. Therefore it was directed that dealer shall pay sum of Rs. 25,000/- by way of compensation to the complainant along with cost of Rs. 3,000/-.
13. On the other hand, the learned advocate of the respondent No. 1 supported the impugned order and submitted in brief that the warranty book filed on record of the appeal for the first time  is irrelevant  and cannot be considered as it was not filed before the Forum below. The job cards produced on record were sufficient to prove manufacturing defects and the Forum below has rightly considered the same. The defence raised for the first time by the appellants/original OP Nos. 3 to 5 in appeal cannot be considered as they did not file reply to the complaint to resist the same. There is no substance in the submission made in the appeal memo and in the arguments advanced by appellant’s advocate. He therefore requested that appeal may be dismissed. He relied on the decisions  in the following cases.
    1. Don Paul  Vs. Durga Hyundai & Ors. Reported in III ( 2015) CPJ 514 (NC). In that case manufacturing defect was alleged. District Forum allowed the complaint. The State Commission partly allowed appeal. Hence revision petition was filed. The complainant could not ply vehicle even after change of engine. It was found that vehicle can cross a flyover but cannot go up the high situated hill at considerable height. Vehicle suffers from inherent defect. Manufacturer is directed to pay Rs. 4,96,512/- to complainant with interest @ 12 percent per annum.
    2. Tata Motors Ltd. & Anr. Vs. Dr. Anuj Paul Maini & Ors. Reported in I (2014) CPJ 450 (NC).  In that case it was found that the vehicle had been taken for repairs to workshop for about eleven times. There was no  guarantee that steering was 100 percent rectified and accident did not occur due to steering problem. It is held that possibility of occurring of accident due to steering and other defects cannot be ruled out. Hence compensation was awarded. 
    3. SAS Motors Ltd. Vs. Anant Haridas Choudhari. Reported in III 9 2013) CPJ 520 (NC). In that case, vehicle was purchased on 5/2/2005 and it was taken for repairs within 12 days i.e. on 17/2/2005. The vehicle remained in showroom for 38 days for repairs. Defects listed in complaint were corroborated by job cards placed on file. It is held that facts speak for themselves & that no expert advice was required and that manufacturing defect is proved. 
    4. Manager, Regional Office John Deere India Pvt. Ltd. Vs. Laxmi Narayan Patel & Anr. Reported in 2016 ( I) CPR 38  (NC). In that case, tractor was repaired five times during running 853 hours & report from laboratory was withheld. Complainant filed  affidavit of mechanic who stated about manufacturing defect in tractor. Hence  opposite party No. 1 was directed  to pay value of tractor &  also  directed to pay Rs. 68,870/- amount incurred for repair of vehicle, along with interest @ 9 percent per annum,  Rs. 5,000/- towards mental harassment and Rs. 2,000/ towards costs.
    5. Vinayak Ran Singh Vs. Kamlakar Krishna Holkar &b Anr.  Reported in 2015 (4) CPR 343 (NC). In that case, tractor Engineer after inspecting tractor stated that there is no manufacturing defect but some minor defects. The manufacturer did not place on record any job card with regard to repairs done by it. There was no  rebuttal to a report of Commissioner from  the side of manufacturer as well as its dealer.  It was held that it  stands clearly established from record that there is deficiency in service on the part of manufacturer as well as dealer.   
    6.  Ashok Leyland Ltd. Vs. Gopal Khan & Ors. Reported in I ( 2013) CPJ 201 (NC).  In that case, allegation made was of manufacturing defect. Block Cylinder burst & refund of repair charges was claimed.  It was held that there is manufacturing defect in vehicle during warranty period & it  is not necessary to obtain expert report separately. Three pistons had ceased and block of cylinder had burst which itself proves manufacturing defect. Non examination of another expert was not essential.  Hence refund was directed .
    7. Tata Engineering and Locomotive Co. Ltd.  & Anr. Vs. Subhash Ahuja & Anr. Reported in II ( 2013) CPJ 743 (NC). In that case, manufacturing defect was alleged. Engine was replaced. There were major problems with various other parts. State Commission had allowed complaint.  Contention was raised in revision petition that  even though there was no manufacturing defect in engine, it was changed as a gesture of good will after the warranty period. But it was not accepted.  It is held that no car manufacturer would change an engine if it could be rectified through repairs. Almost every part of vehicle has some problem or other. Vehicle had to be taken to workshop on 36 occasions during warranty period.  Hence evidence in the form of opinion of technical expert is not required. Case is of  res ipsa loquitur. Thus,  Compensation of Rs. 2,50,000/-  was rightly awarded.
    8. Radha Gardens & Ors. Vs. Volkswagen India Pvt. Ltd. Reported in IV( 2014) CPJ 714 (NC). In that case, allegation was made about manufacturing defect in a vehicle & replacement was sought. District Forum dismissed the  complaint. State Commission had allowed appeal. Hence revision petition was filed. Complainant opted for replacement of car with new car of highline model. It is held that the complainant is required to pay differential  amount i.e.  cost of highline model minus cost of comfortline model.
    9. Balaji Motors Vs. Devendra & Anr. Reported in II ( 2013) CPJ 534 (NC). In that case, allegation was made about manufacturing defect in a vehicle. District Forum allowed complaint. State Commission dismissed the  appeal. Hence revision petition was filed. It is held that since complaint was made within warranty period, it was the duty of dealer to attend to the same and repair the vehicle. In case, dealer thinks that there is no defect in vehicle, it can give a certificate to this effect that vehicle is fit from all angles. Such certificate shall be open to scrutiny by any expert/specialized agency. However, dealer cannot escape his responsibility of attending to complaint if made before it during warranty period.
    10. Escorts Limited Vs. K.V. Jyarajan & Anr. Reported in I ( 2014) CPJ 595 (NC). In that case,  there was break down of the vehicle & repeated repairs of vehicle were required. District Forum partly allowed complaint. The  State Commission allowed appeal and directed refund of cost of vehicle with 9 percent  per annum interest together with compensation and cost. Hence revision petition was filed. Vehicle was manufactured by petitioner and sold by dealer. Vehicle was sent to dealer for repairs and was thereafter lying with it. It was held that joint and several liability cannot be fixed on manufacturer. Impugned order was set aside  to the extent of liability fixed on manufacturer.
    11. Hyundai Motor India Ltd. Vs. S.T. Patil & Anr. Reported in I (2016) CPJ 401 (NC). In that case there was  breakdown of car on account of damage to oil sump. The repair was  not done perfectly. Engine was not replaced.  District Forum partly allowed complaint. State Commission modified order. Hence revision petition was filed. There was no  evidence that vehicle ever met with accident. Fact of vibration in car was  admitted. Even after replacement of oil sump, vibration in engine was continued. Petitioner attempted to repair vehicle. But they could not do needful.  It is held that it was duty of opposite parties  to ask complainant to take vehicle and its letter should have been accompanied by a certificate stating that vehicle was roadworthy. Hence opposite parties were  directed to repair car, because it has already run to the  extent of 49000 kms, within 15 days from receipt of copy or order & fresh warranty of two years shall be given. If needful is not done, within 15 days, petitioner was further directed to pay Rs. 8,00,000/- to complainant, instead of replacement of car. Petitioner will also pay compensation of Rs. 3,00,000/- and legal expenses of Rs. 1,00,000/- within  15 days or, otherwise same will carry interest @ 12% per annum till realization.
    12. M/s Satyam Automobiles Pvt. Ltd. Vs. Mukesh Singh & Anr. Reported in 2016 (2) CPR 39(NC). In that case allegation made was about automobile manufacturing defect. Complaint was allowed. It was found that ever since its purchase, vehicle time and again developed troubles and complainant was never able to ply vehicle properly. Vehicle was taken number of times to workshop of petitioner for repairs. Engine of vehicle was replaced within a short period of one year from date of purchase. It is held that there was been  inherent defects in the vehicle, otherwise there was no occasion for replacing engine. Plea of petitioner that no expert was appointed in that  case is not sustainable in view of admission made by petitioner itself that engine of vehicle has been replaced. It is further held that it  is a case of Res ipsa Loquitor. Reasonings of State Commission are based on correct appreciation of evidence on record. Hence Revision petition was dismissed.
    13. Hyundai Motor India Ltd. Vs. Lt. Col. S.P.S. Rekhi & Anr. Reported in III( 2015) CPJ 131(Del.). In that case, allegation was made about manufacturing defects in a vehicle. There was frequent breakdown in that vehicle and replacement was denied. District Forum partly allowed complaint.  It was contended that complainant did follow suggestions made in Manual Book. The said contention was not accepted. It is held that in modern times life is extremely busy, people don’t have time to take their brand new car to workshop frequently for removing defects. A brand new car of very high quality and potency is expected to run to 70000  to 80000 km. without any problem. Complainant suffered a lot in getting his car repaired time and again. Hence no fault was found in impugned order.  
    14. Maruti  Suzuki India Ltd. Vs. Dr. Koneru Satya Kishre & Ors. Reported in I ( 2018) CPJ 157 (NC). In that case,  allegation was made about manufacturing defect in a vehicle. The defects were not removed despite several visits to workshop. The  District Forum allowed complaint. The  State Commission dismissed appeal.  Hence revision petition was filed. It was found that  Vehicle had to be taken to workshop of dealer on a number of occasions with complaints of intermittent jerks, running and harsh noise from gear-box assembly system. Dealer made efforts to remove defects but vehicle could not be made free from such defects. The contention was raised by petitioner that there was no inhernt defect, pertaining to noise in gear box. But it was not accepted. It is held that consumer cannot be expected to take vehicle to workshop on a number of occasions, unless there are defects in a vehicle. Defect in a vehicle may come under category of manufacturing defect or otherwise. A vehicle is said to be suffering from  defect if there is any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard, which was required to be maintained under any law in force. Vehicle did suffer from defects, as it had to be taken to workshop of the dealer from time to time. It was further held that petitioner failed in the task to provide vehicle in road worthy condition to complainant. Dealer did carry out repairs in vehicle as per job cards, but was not able to remove defects in vehicle. It is concluded that refund of purchase price and compensation is rightly awarded and that entire liability to pay amount in question falls on petitioner/OP No. 2 only. 
    15. M/s Maharashtra Motors  Vs. Mahadevrao Singanjude and Anr. Reported in First  Appeal FA/13/230 passed by the State Commission, Circuit Bench Nagpur dated 17/09/2016. In that case, it was  not disputed that the vehicles were purchased by the respective complainants by obtaining loan from a financer and that all those vehicles got various problems during the period of warranty and they were taken from time to time to OP No. 2-dealer’s workshop for repairing. The job cards were  filed in appeal which were  also produced before the Forum showing that the vehicles were taken several times for several problems and defects and they were taken back by the respective complainants after some days. It is held that  when such large number of vehicles  i.e. total 9 vehicles of the same model and same manufacturing company were required to be taken for repairing since beginning of purchase on several occasions for repairing, the principle of res ipsa loquitur is attracted in all theses cases.
    16. Force Motors Ltd. Vs. Shaikh Nayum Shaikh Mohiddin & Anr. Reported in IV (2017) CPJ 333 (NC). In that case allegation of manufacturing defect in vehicle was made but rectification was not done.  District Forum allowed complaint. The State Commission dismissed appeal Hence revision petition was filed. It is held that despite sufficient opportunity, petitioner has not placed on record job cards in respect of repairs, admittedly carried out in all vehicles.  It is also held that in  absence of job cards, nature of defects in all vehicles cannot be ascertained. Problems in gear box and axle, vital parts for smooth running of any vehicle, had to be rectified. There were inherent defects in vehicles in question. Vehicles lacked the perfection, which was required to be maintained in relation to the vehicles, purchased by complainants as a source of their livelihood  and had to be taken to workshop repeatedly for repairs. Moreover, the petitioner proudly claimed  to have carried out repairs free of charge. It is held that subject vehicles sold by petitioner had defects, falling within the ambit of definition of expression defect defined in  Section 2(1) (f) of CP Act, 1986 .
    17. Abhay R. Bhatwadekar & Ors. Vs. Tata Engineering & Locomotive Company Ltd & Anr. Reported in IV (2018) CPJ 366 (NC).  In that case,  allegation was made about manufacturing defect and that vehicle was not in a road worthy condition. The State Commission had dismissed the complaint Hence appeal was filed. It was found that inspection report evidenced that number of repairs and replacements carried out on car is extremely unusual for a new car specifically taking into consideration the mileage at which those repairs were carried out. Perusal of job cards evidenced repeated problems. There are no substantial reasons given by manufacturer/dealer as to why car was not taken back as it is their case that complainant had refused to sign delivery receipt. It was therefore held that deficiency in service on part of manufacturer and dealer is proved. Therefore manufacturer and dealer were  jointly and severally, directed to refund the  amount of Rs. 4,58,853/- excluding insurance & interest @ 6% per annum awarded over the said amount.
14. At the outset, we find that the original OP Nos. 3 to 5/appellant Nos. 1,2 and 3 did not appear before the Addl. District Consumer Forum, Nagpur after service of the notice to them. It is not their case that notices of the complaint were not served to them. Therefore we find that as appellants chose not to appear before the Addl. District Consumer Forum in consumer complaint No. CC/15/113, they cannot raise any defence in the appeal for the first time.
15. We also find that the job card produced on record are not disputed by the appellants. The original OP Nos. 1 and 2/respondent Nos. 2 and 3 herein also did not dispute that vehicle in question was brought to their service center  for so many times of which details are given in the complaint. They have also submitted that  they provided  proper service for removal of all those defects as occurred in the vehicle. The vehicle was required to be taken for about 25 times to service center for the same problem and defects within a very short period from the date of purchase of the vehicle which itself is sufficient to prove that as there are manufacturing defects in the said vehicle. All those defects could not be removed at the service center/station. It is also pertinent to note that the said vehicle is still lying with the respondent Nos. 1 and 3 for the purpose of repairing. The respondent Nos. 2 and 3 have not issued any notice to the complainant/respondent No. 1 informing  him that the vehicle has been duly repaired  and asking him to take it back. No reply of the notice issued by the respondent No. 1 was given by the respondent Nos. 2 and 3 in whose workshop the vehicle is still lying. A period of more than three years has been lapsed since the vehicle is lying in the workshop of respondent Nos. 2 and 3 herein for repairing. These are material fact which are  sufficient to come to the conclusion that there are manufacturing defects in the vehicle and that  those manufacturing defects  of the vehicle could not be removed by respondent Nos. 2 and 3 since last so many years.
16. In our view, the warranty booklet produced in appeal by the appellants is of no assistance to the appellants  to rebut evidence  adduced by respondent No. 1 by way of job cards and affidavits  which established manufacturing defects in the vehicle.  The job cards prove  that the vehicle was taken for number of times for following complaints.

       There is a noise during operation of the break. There is a problem in changing the clutch. All doors of the vehicle are creating noise in running condition. There is a clutch cover noise, suspension noise, break is not effective. There is a noise while putting break, left side pulling of the vehicle, second gear of the vehicle is not working properly. There is a noise in the rear seat & reverse gear is creating noise.

17. It is seen that repeatedly the aforesaid problems were  occurred in the vehicle as recorded in aforesaid job cards. We find that repeated occurrence  of said major  defects  in the vehicle proves that there is a manufacturing defects in the vehicle. Therefore it is not necessary to have any expert opinion on record to prove the same particularly when the appellants did not file reply to the complaint even after service of notice, the consumer complaint.  The ratio of the aforesaid decisions relied on by learned advocate of the respondent No. 1 are thus applicable to the above discussed facts and circumstances of the present case as they are identical to those of said cases. Whereas the ratio of the decisions relied on by learned advocate of the appellants are not applicable to the  facts and circumstances of the present case as they are totally different  from those of the said cases discussed above.
18. It is pertinent to note that it is not disputed by the appellant that they have paid Rs. 1,00,000/- by way of compensation to the respondent No. 1 herein vide cheque No. 002861 dated 21/10/2013. The said payment was made when the original complainant/respondent No. 1 herein  had made various complaints of manufacturing defects in his vehicle. Reasonable inference therefore can be drawn that Rs. 1,00,000/- were paid by the appellants and respondent Nos. 2 and 3 to the respondent No. 1 only because there is manufacturing defects in the vehicle, which could not be removed by them. However we find that the said compensation of Rs. 1,00,000/- given by them to the respondent No. 1 is insufficient under the facts and circumstances of the case discussed above.
19. We also find that the Addl. District Consumer Forum has territorial jurisdiction to entertain and decide the complaint since the vehicle in question was purchased by the respondent No. 1 from the respondent Nos. 1 and 2 who carry on their business at Nagpur. Moreover, the valuation of the subject matter is within a pecuniary jurisdiction  of the Addl. District Consumer Forum, Nagpur. None of the appellants and respondent Nos. 2 and 3 had raised any objection before the Forum below about the pecuniary jurisdiction and allowed the complaint to be heard and decided by the Addl. District Consumer Forum, Nagpur.
20. We also  find that the appellants/original OP Nos. 3 to 5 are the manufactures of the vehicle and therefore they are liable for replacing  the said defective vehicle by new vehicle or alternatively to refund the price of that vehicle with other charges as paid by respondent No. 1. They  cannot avoid their said responsibility in the present case. We thus find no merits in the aforesaid submission of the learned advocate of the appellant and the grounds raised in the appeal memo. The Forum below has properly appreciated the evidence brought on record and all the facts and circumstances of the case and rightly passed the impugned order by granting partly the complaint as above. Therefore we hold that the appeal is devoid of merits and it deserves to be dismissed

ORDER

1. The appeal is dismissed.
2. No order as to cost in appeal.
3. Copy of the order be furnished to both parties, free of cost.
4. The original record and proceeding of the consumer compliant bearing No. CC/15/113 called from Addl. District Consumer Forum, Nagpur be returned forthwith to the said Forum.