REKHA GUPTA, PRESIDING MEMBER

                The present revision petition has been filed against the judgment dated 15.12.2017 of the Assam State Consumer Disputes Redressal Commission, Guwahati, (‘the State Commission’) in First Appeal no. 48 of 2014.

2.     The brief facts of the case as per the petitioner/ complainant are that on 17.03.2011 the petitioner/ complainant had purchased a Chevrolet Cruze car, bearing registration number AS 03 K 0009 manufactured by the General Motors India Pvt., Ltd., at a price of Rs.13,55,541/- from the authorised dealer Radiant Motors Pvt. Ltd., Pulibor A T Road, Jorhat - respondent no. 2.

3.     According to the petitioner, after 9-10 months of purchase of the said car, on 11.01.2012 the vehicle started giving trouble for which, he took the car to respondent no. 2 firm and the same was duly repaired. On 17.01.2012 the car again broke down on the road and the vehicle failed to take start and the car was taken to the dealer for repairing. The petitioner stated that the vehicle was not fully repaired by the dealer for which, he had to issue legal notice to the manufacturer demanding replacement of the car as it had a manufacturing defect. Ultimately, the car was repaired and handed over to the petitioner on 30.03.2012. However, the car once again developed starting problem on 03.04.2012 and it was taken to the dealer for repairing. Other problems like jerks during the journey also allegedly developed in the car. The car was repaired and handed over to the petitioner by the end of July 2012. On 26.09.2012 again the car failed to take start. The dealer reportedly informed the petitioner vide letter dated 08.10.2012, that one dead cell of the car battery needed replacement. The petitioner thereafter intimated the dealer that he was ready to replace the battery on condition that if the same problem persisted, the respondents should be liable to replace the defective vehicle with a new one with compensation. The petitioner stated that after receipt of the said communication, the respondents did not submit any reply nor did they replace the defective car. According to the petitioner, the car suffered from manufacturing defects for which, the respondents are liable to replace the car with a new car. Hence, the petitioner filed a consumer complaint with the following prayer:

1. Directing the respondents to immediately replace the defective vehicle of the petitioner with a new one of same model;

2. To direct the respondent to pay a sum of Rs.2,00,000/- as compensation in regard to the loss of income, defective and negligent in providing proper and adequate service to the petitioner and also for physical and mental harassment to the petitioner;

3. To direct the respondents to pay a sum of Rs.10,000/- for cost of litigation;

4. Any other relief which the petitioner is entitled to get as per the provision of the law and for this act etc.,

4.     In their written statement, the respondents have submitted that the records of the vehicle history and maintenance revealed that as on January 11, 2012 (the date on which the starting problem was allegedly first detected), the car had covered an aggregate mileage of more than 25,000 kms and had been running a daily average of 85 kms which itself was a testimony that the car had no manufacturing defects. If there had been any manufacturing defect leading to any starting problem, then that would have manifested at a very initial stage. The problems reported by the petitioner, according to the respondents were nothing but on account of normal wear and tear. Further,  the fuel used in the car was of not required purity.

5.     The District Consumer Disputes Redressal Forum, Jorhat (‘the District Forum’) vide its order dated 03.06.2014 while allowing the complaint, ordered as under:

“Following my discussion in the foregoing paragraphs this Consumer Complaint petition is allowed with a direction to all the OPs to replace the Chevrolet Cruze Car of the complainant with a new one of the same make and model within one month from the date of the judgment. If the OPs fail to comply with the order they are directed to pay the price of the vehicle of Rs.13,55,541/- and compensation of Rs.80,000/- within two months from the date of the judgment. If the OPs failed to comply with the order within the stipulated period the entire amount of Rs.14,35,541/- would accrue 10% interest from the date of judgment till the date of actual payment.”

6.     Aggrieved by the order of the District Forum the respondent/opposite party filed an appeal before the State Commission. The State Commission while allowing the appeal observed as under:

“At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of any expert automobile/ mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential input. The manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. Manufacturing defect is fundamental basic defect which creeps while manufacturing machinery. To prove such a defect, opinion of an expert is necessary which is not forthcoming in the present case. The Hon’ble Supreme Court as well as National Commission in a number of cases has held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/ or replacement of the defective parts.

When the present case is considered in this backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Merely because the car had been taken to the workshop of the dealer several times or because a number of letters/ complaints had been addressed to various functionaries and authorities of the opposite party-manufacturing company, it will not by itself amount manufacturing defect.

The car was sold to the complainant on 11.01.2012 and the vehicle developed alleged starting trouble after 9-10 months of acquisition of the said car. By that time the vehicle had already run an aggregate mileage of more than 25,000 kms and was running at a daily average of 85 kms. This shows that the vehicle was in running condition and was used by the complainant on regular basis. It also shows that there was no manufacturing defect in the car in question. Had there been a manufacturing defect, the car could not have run for nearly 10 months and covered approximately more than 25,000 kms. This circumstances itself is a testimony that the car had no manufacturing defects. The defects in this car, as rightly contended by the opposite parties, were minor in nature and cannot be said to be in the nature of manufacturing defects.

By own admission of the complainant, the starting problem of the car was first noticed on 11.01.2012 and on the same date, the car was repaired by the dealer Radiant Motors Pvt. Ltd., Jorhat. Thereafter, on 17.01.2012, the car reportedly broke down on the road and the vehicle failed to take start. Again the car was taken to the dealer for repairing reveals that the problem was due to a minor loose connection of the connector of the wiring harness which was in the nature of minor wear and tear and the same was duly corrected. The same communication also informed the complainant customer that the fuel used in the vehicle had been found to be containing extra contaminants, which, among other things, adversely affected the pick-up of the vehicle.

According to the complainant, the car once again developed starting problem on 03.04.2012 and it was taken to the dealer for repairing. The car was duly repaired and handed over to the complainant during last part of July 2012. On 26.09.2012 also the car failed to take start as has been alleged by the complainant. The dealer informed the complainant vide letter dated 08.10.2012, that the said problem was due to fault in the car battery as one dead cell of the car battery needs replacement. The complainant thereafter intimated the dealer that he was ready to replace the battery on conditions that if the same problem persists, the opposite parties shall be liable to replace the defective vehicle with a new one with compensation. The further accusation of the complainant is that after receipt of the said communication, the opposite parties did not submit any reply nor they replaced the defective car for which, the car is still lying with the dealer.

The District Forum has thus failed to consider that the complainant had not been able to discharge its onus to prove the manufacturing defect. He neither produced any expert opinion nor could prove from the records such as the job cards that the vehicle suffered from manufacturing defect. Merely because the vehicle suffered from some minor defects, which, however, were attended to by the opposite party, the District Forum has completely erred in holding that the vehicle suffered from manufacturing defect warranting its replacement.

After having considered the contentions of both the parties, we are of the considered view that the car in question was not suffering from any manufacturing defects, and therefore, the complainant is not entitled to receive back the price of the vehicle or replacement of the car, as has been ruled by the District Forum. In the result, this appeal is allowed. We set aside the impugned order and finding of the District Forum and dismiss the complaint petition filed by the respondent car owner leaving the parties to bear their own costs”.

7.     Hence, the present revision petition.

8.     We have heard the learned counsel for the petitioner. The only contention of the learned counsel for the petitioner is that the State Commission has wrongly placed the burden of proof on the petitioner to prove that there was a manufacturing defect in the vehicle. No other point was urged.

9.     It is an admitted fact that even in the legal notice it has been stated that the car was purchased on 17.03.2011 and the first defect manifested on 11.01.2012 when the car “was not taking it start due to manufacturing defects.” The defect was repaired to the satisfaction of the petitioner and he took back the vehicle. Then again on 17.01.2012 the car broke down and was not taking start. It was again repaired. Then on 03.04.2012 the car was taken for repair as it jerked “while running”. The petitioner then sent a legal notice asking for a new vehicle as the problem for starting the vehicle was not rectified even by 26.09.2012.

10.    The respondent/ opposite party in their written reply have stated that:

(d)    From the records of vehicle history and maintenance, it may be seen that the vehicle stands purchased on February 28, 2011. By July 28, 2012 (the last entry in the records of vehicle history and maintenance); the vehicle had covered an aggregate distance of 35,327 km which works out at a daily rate of travel of nearly 70 km.

(e)    After having travelled an aggregate distance of 25,470 km (serial number six in the records of vehicle history and maintenance), the vehicle reported a concern of starting as referred to in paragraph 3 of the complaint petition. The petitioner has alleged, as stated at the outset, the said concern of starting to be an account of manufacturing defect. It is respectfully, submitted that the said allegation, on the face of it, is without any merit. If there had been any manufacturing defect leading to any starting problem; then that would not have waited for more than 25,000 km to  manifest itself. Such manufacturing defect would have manifested itself at a very initial stage itself. The very fact that the first concern of starting problem was reported at an aggregate of over 25,000 km is in itself sufficient to negate all allegation of any manufacturing defect behind such reported concern.

Given the first reporting of starting concern at an aggregate of over 25,000 km, the said concern, on the fact of it, stands to be on account of wear and tear and not any manufacturing defect.

The said concern was examined and, in connection with such examination the fuel of the vehicle was found to be containing extra impurity. Upon such finding, the pollen filter was changed as may be seen from the records of vehicle history and maintenance and the vehicle was handed back to the petitioner with the problem of starting rectified. The petitioner was advised to exercise caution as regard sources of the fuel supply for the vehicle.

(f)     The vehicle reported concern of starting again on January 18, 2012. Because the concern was repeated; the vehicle was comprehensively examined. Apart from a loose connection of the connector of the wiring harness; no other problem was found in the vehicle. The road trial of the vehicle was taken on January 30, 2012 and the vehicle was found to be totally cured of the said reported concern of starting. The petitioner-customer was immediately informed to collect the vehicle. When the petitioner failed to collect the vehicle, repeated reminder, e-mails were promptly sent to the petitioner to collect the vehicle.

After further telephonic requests to collect the vehicle, the petitioner came to the workshop on February 9, 2012 and insisted that he would take delivery of the vehicle only when a letter was given to him promising to replace the vehicle in case starting problem occurred again. When it was pointed out to him that such a letter could not be given as wear and tear could not be ruled out in an automobile vehicle, the petitioner-customer refused to take delivery of the vehicle.

11.    Counsel for the petitioner has brought to our attention the judgment of the National Commission in the case of TATA Motors vs Rajesh Tyagi and Ors decided on 03.12.2013 in RP No. 1030 of 2008.  The facts of the case do not apply to the case on hand. In the case of TATA Motors vs Rajesh Tyagi, the defects occurred within a few days of taking the delivery of the car, when the complainant noticed presence of water inside the car on the floor area under the front passenger seat. This could not be rectified by the OPs. In the present case, it is an admitted fact that the first problem in the car occurred after 9-10 months after the vehicle was brought and after it had run over 25,000 kms. If the vehicle had manufacturing defect it should have been manifested soon after purchase and the petitioner could not have driven over 25,000 kms with a defective car. Further, the defects pointed out were repaired every time to the satisfaction of the petitioner.

12.    A coordinate Bench of this Commission in the case of Baljeet Kaur vs Divine Motors and Anr., decided on 08.06.2017 in RP No. 1336 of 2017 [  III (2017) CPJ 599 (NC) ] held that:

“When a manufacturing defect is alleged, the onus of proof has to be on the complainant. Admittedly, the petitioner/complainant had produced, in support of her allegation of manufacturing defect, her own affidavit along with affidavit of 7-8 more witnesses. The District Forum correctly held – and the state commission concurred- that that these affidavits are no substitute for an expert opinion, to hold that the vehicle was indeed suffering from some manufacturing defect(s)”.

13.    In the case of Suresh Chand Jain vs Service Engineer and Sales Supervisor, MRF Ltd. and Anr., decided on 16.12.2010 in RP Nos. 3845 and 3846 of 2006 [ I (2011) CPJ 63 (NC) ]  it was held that:

“Onus to prove that there was a manufacturing defect in the tyres was on the petitioner which he failed to discharge by leading any cogent evidence. The petitioner did not produce any expert evidence to either show the nature of defect or proof of manufacturing defect. The petitioner has failed to prove that the tyres purchased by him suffered from any manufacturing defect. We agree with the view taken by the Fora below that the petitioner had failed to prove the allegations made by him in the complaints”.       

14.    In the case of NEGI Sign Systems and Supplies Co. vs Rijulize Jacob decided on 07.01.2016 in RP No. 2677 of 2015 [ II (2016) CPJ 19 (NC) ] it was held that:

“The onus was upon the complainant to prove that the machine/printer purchased by him suffered from a manufacturing defect. No technical evidence was produced by him to prove any such defect in the machine.  He could not establish any manufacturing defect in the machine even before the Local Commissioner appointed by the District Forum.  If only a part of the printer was defective, the complainant was entitled to replacement of that part, and not to the refund of the price of the machine.  Therefore the District Forum in my view was absolutely justified in directing only the replacement of the parts identified by the Local Commission at the cost of the petitioner.  No justification for refunding the price of the machine to the complainant is made out in the absence of proof of any manufacturing defect in the said machine.

Even otherwise, the machine has been in possession of the complainant for more than five years.  It is not known whether the complainant has actually been using this machine or not.  But they will hardly be any justification to refund the purchase price after the machine has been in possession of the purchaser for more than five years and he has failed to prove any manufacturing defect in the machine”.

15.    Admittedly in the instant case, the petitioner has failed to provide any evidence to prove that the vehicle had a manufacturing defect either by producing the evidence of an expert or taking the opportunity of submitting an application before the District Forum for appointment of an expert to examine the vehicle for an expert opinion.

16.    In view of the above, we find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986.  The revision petition is dismissed.