This revision petition has been filed by the petitioner M/s. Hyundai Motors India Ltd., against the order dated 21.11.2008 of the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission”) passed in Appeal No.444 & 844/ 2007.

2.      Brief facts of the case are that the respondent No.1/complainant got the delivery of the car on 25.08.2003.  The car was purchased from respondent No.2 and was manufactured by the petitioner.  Finances were arranged from respondent No.3.  It was the case of the complainant that right from the date of purchase an abnormal sound was noticed while driving the car.  It was alleged that many times car was sent to the workshop for repair, but abnormal sound did not vanish. Even joint inspection was carried out but the abnormal sound was still noticed.  Then the complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum, (in short’ the District Forum’).  The complaint was resisted by the petitioner by filing the written statement as opposite party No.2. Other opposite parties did not file any written statement.  They were proceeded ex-parte.  The District Forum vide its order dated 30.04.2007 did not find any justification for replacement of the vehicle or for allowing cost of the vehicle refunded to the complainant by the opposite parties. However, a compensation of Rs.50,000/- was awarded to the complainant.

3.      Aggrieved with the order of the District Forum, the complainant/respondent No.1 and opposite party No.2/petitioner herein preferred appeals bearing No.FA-2007/444 and FA-2007/844 respectively before the State Commission.  The State Commission disposed of these appeals by the common order dated 21.11.2008, which reads as under:-

“20.  In view of the defect being of manufacturing that it is not removable we allow the appeal of the complainant in the following terms:-

        (i)   Respondent No.2 shall refund the cost of the vehicle on return of the vehicle by the complainant within one month.We are not passing any order for depreciated value as such a value shall be deemed as compensation for mental agony and harassment suffered by the complainant.

       (ii)   Appeal of respondent No.2 is dismissed.

21.  Payment shall be made within one month from the date of receipt of this order.

22.     Both the appeals are disposed of in aforesaid terms.”

4.      Aggrieved by the order of the State Commission, the present revision petition has been filed by opposite party No.2/petitioner.

5.      Despite notice, none of the respondents appeared, therefore, they were proceeded ex-parte. Respondent No.1/complainant was proceeded ex-parte vide order dated 31.08.2015 and respondent Nos.2 and 3 were proceeded ex-parte vide order dated 29.04.2016. Therefore, the learned counsel for the petitioner was heard. 

6.      Learned counsel for the petitioner stated that there was no finding of the trial court i.e. the District Forum in respect of any manufacturing defect and the District Forum has clearly observed that no manufacturing defects have been proved, still the District Forum has allowed the compensation of Rs.50,000/- for mental harassment etc.  The District Forum had ordered Delhi IIT to give the expert report on the vehicle vide its order dated 07.03.2005.  The District Forum even after going through this report has observed that nothing has been found about any manufacturing defect. The petitioner herein is the manufacturer and until any manufacturing defect is found, the petitioner, cannot be held liable.

7.      It was further stated that the IIT, Delhi Professor R.R.Gaur inspected the vehicle on 21.05.2005, but the inspection was done in the absence of the petitioner and no information was given to the petitioner.  The expert submitted his report on 30.05.2005. The opposite party/petitioner filed objection to this report.  However, the District Forum still allowed the complaint and ordered only Rs.50,000/- as compensation.  Both the parties preferred appeal before the State Commission and the State Commission allowed the appeal of the complainant and ordered payment of cost of the vehicle to the complainant after the complainant submits the car to the petitioner. 

8.      Learned counsel further argued that the expert of IIT Delhi has observed that there was an abnormal humming sound over and above the normal engine sound particularly noticeable in the speed range of 1000-2500 r.p.m. It was argued by the learned counsel that in the joint inspection there was no such sound found and the complainant had agreed in observing that there was no such abnormal humming sound. However, later, he again complained of the abnormal noise. Even if the report of the expert is accepted without considering objection filed by the opposite party, then also the question arises whether this will be called manufacturing defect.  The learned counsel stated that this was not creating any problem in driving or in the comfort of the journey being performed by the car.  The District Forum has already compensated for whatever inconvenience was faced due to this sound. Therefore, the complainant does not deserve any more compensation and the order of the State Commission is liable to be set aside. 

9.      It was further argued by the learned counsel for the petitioner that the car was not driven and it was inspected in the steady condition and the same would be clear from the affidavit filed by the expert in February, 2006.  The defect cannot be found out by visual inspection.  The State Commission has not considered these facts and has accepted the report of the expert as it is. It was further pointed out that the car has run about (86752 km.) as on 01.06.2016.  Had there been any manufacturing defect, the car would not have run this mileage.  The car is already with the complainant. 

10.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and have examined the material on record. Learned counsel for the petitioner has admitted that there is no proof filed for alleging that the vehicle has run 86752 km. as on 01.06.2016 but he has stated that this is based on their internal information. As there is no document to support this allegation of mileage run, decision cannot be based on this factor.

11.    The order of the State Commission is based on the report of the expert, who was drawn from Delhi IIT, which is a technical institution of repute. In fact the report of the expert dated 30.05.2005 reads as under:-

   “It was confirmed that there exists an abnormal humming sound over and above the normal engine noise, particularly noticeable at the speed range of 1000-2500 r.p.m. as reiterated by the complainant repeatedly.  This defect in performance of the car stands verified.”

12.    The expert Dr. R.R.Gaur, Professor, Department of Mechanical Engineering IIT Delhi has also filed affidavit confirming his report dated 30.05.2005.  It is important to note the following portion of the affidavit:-

“5.   That the complainant brought his car for inspection to IIT Delhi on 19.05.2005.  The Expert team carried out the necessary investigation in the presence of the Complainant.  The car was visually inspected under idling and driving conditions at different speeds and different terrains.  On the basis of the investigation it was confirmed that there exits an abnormal humming sound over and above the normal engine noise, particularly noticeable at the speed range of 1000-2500 r.p.m. as reiterated by the complainant repeatedly.  The defect in performance of the car stood verified.” 

13.    From the above, the stand of the learned counsel that the vehicle was visually inspected and not driven is not supported by the affidavit filed by the expert.  Thus, it is proved that there was an abnormal humming sound over and above the normal engine noise as has been reported by the expert.  The vehicle was purchased on 25.08.2003 and it was inspected by the expert on 30.5.2005 and the complainant has been making similar complaint right from the very beginning.  He had to ultimately file complaint on 21.02.2004.  This means that this abnormal sound was coming in the new car itself.  The petitioner and the dealer have not been successful in identifying the defect in the car and were not able to remove the defect permanently.  Even the assertion of the petitioner that the joint inspection did not find any such abnormal sound is negated by the simple fact that the same abnormal sound has been found by the expert on a later date.  As this abnormal sound was continuously coming and the dealer and the petitioner were unable to rectify this defect, therefore, this defect will automatically come into the category of manufacturing defect.  Therefore, I agree with the finding of the State Commission that there was manufacturing defect.  It has been argued by the learned counsel that as the vehicle is with the complainant and is being utilised by the complainant continuously for so many years, there should be no question of giving the refund of the total cost to the complainant.  As the State Commission has ordered refund of cost subject to complainant submitting the vehicle to the opposite parties, it means that the vehicle is with the complainant.  As the vehicle has been used by the complainant for so many years and the report of the expert Professor R.R.Gaur of IIT Delhi also does not state whether this humming sound is causing any problem in running of the car or is affecting any particular component of the car or creating any kind of risk in driving the car or rendering the car to be unusable, I am of the view that in such condition, interest of justice would be served if the compensation is awarded to the complainant for this defect of humming sound as the replacement at this juncture does not seem to be justified as it would not be possible to calculate monetary value of usage of the car by the complainant during this period. 

14.    Based on the above discussion, the revision petition is partly allowed and the order of the State Commission and the District Forum are modified to the extent that the petitioner/opposite party shall be liable to pay a compensation of Rs.2,00,000/- for the defect in the car supplied to the complainant instead of replacing the car or returning the total price of the vehicle as ordered by the State Commission.  If the amount of Rs.50,000/- awarded by the District Forum has already been received by the complainant, the same shall be deducted from the payment of Rs.2,00,000/-.  Accordingly, the petitioner/opposite party is directed to comply with this order within a period of 45 days from the date of this order, failing which, an interest @ 8% p.a. shall be payable from the date of this order till actual payment.  No order as to cost for this revision petition.