1.      These two appeals have been filed against the common order dated 25.03.2009 of the State Consumer Disputes Redressal Commission, Delhi, (in short ‘the State Commission’) by Nissan Motor India Private Ltd and M/s. Pushpanjali Motors Ltd. respectively passed in Complaint No.C-08/188.

2.      Brief facts of the case are that the complainant/respondent No.1, Giraj Kishore Bansal, purchased a vehicle Nissan X Trail (SUV) car, Registration No.UP 80 AY-2122 for Rs.21,50,000/- on 16.08.2007 from the appellant in appeal no.276 of 2009, M/s. Pushpanjali Motors Ltd./OP-2, who is a dealer of OP-1/appellant in first appeal no.250 of 2009.  The first service of the vehicle was performed on 24.08.2007. It has been alleged by the complainant that the vehicle broke down in the middle of Agra-Delhi Highway on 24.08.2007.  The engine got over heated and emitted white smoke.  Vehicle was towed to the workshop of OP-2 and was repaired. On 13.11.2007, the vehicle again broke down with engine emitting lot of smoke. OP-2 again repaired the vehicle and returned on 15.11.2007 with promise that it will not be over-heated again.  On 25.11.2007, the vehicle again suffered from malfunctioning and there was again dense smoke coming out of the engine and the vehicle remained for 10 days for repairs with OP-2.  The vehicle again breaks down on 27.12.2007 with same problems and the vehicle was repaired and received by the complainant on 15.01.2008 i.e after about three weeks.  On 16.01.2008, OP-2 gave a letter to the complainant that the OP-1 is ready to replace the engine of the car as a gesture of goodwill.

3.      The complainant then gave a legal notice and filed a consumer complaint before the State Commission alleging that the vehicle had manufacturing defect.  The complaint was resisted by OP-1 & 2 on the ground that there was no manufacturing defect in the vehicle and whatever minor problems were reported by the complainant, they were rectified under warranty clause.  Though the vehicle did not suffer from any major defects, but, the OPs had already offered to change the engine of the vehicle for the satisfaction of the customer and as a gesture of goodwill.  The State Commission vide its order dated 25.03.2009 allowed the complaint and passed the following order:-

“21.  Thus in our view the safest and feasible course is to direct the OP to refund the cost of the vehicle.  But since the vehicle has already run 27,000 kms and keeping in view the vehicle taken for repairs 3-4 occasions and other financial loss and mental agony and harassment suffered by the complainant, in our view, by directing the OP to refund the entire cost of the vehicle which shall include compensation besides Rs.20,000/- for cost of litigation would meet the ends of justice.

22.  In view of the above discussion the complaint is disposed of in the following terms:-

(i)  OP shall refund Rs.21,50,000/-, the entire cost of the vehicle to the complainant and the complainant shall complete all the requisite formalities for transfer of the vehicle in the name of the OP.

(ii)  OP shall pay Rs.20,000/- to the complainant as cost of litigation.

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

4.      Aggrieved with the above order of the State Commission, these appeals have been filed. 

5.      Heard the learned counsel for the parties and perused the record. 

6.      Learned counsel for the appellant/OP-1 stated that heating of the engine was due to lack of coolant in the engine.  The vehicle had already run 18,000 km. till January, 2008.  No defect was pointed out during the first free service of the vehicle, which was performed on 24.08.2007.  The affidavit filed by the complainant on 15.02.2010 reveals that the vehicle had covered 56,000 km. by then.  Thus, the vehicle has been running properly and has covered the distance as normal vehicle would have covered.  Moreover, State Commission has ordered replacement of vehicle or its cost to be paid without any expert report confirming any manufacturing defect.

7.      Learned counsel for the OP-1 also mentioned that the OP-1 is only the importer of the vehicle and the main manufacturer is located in Japan and OP-1 is the Indian subsidiary of that manufacturer.  The complainant had not made the main manufacturing company as a party in the complaint case. For any manufacturing defects, the main manufacturer should have been arrayed as a party, otherwise, the complaint is not maintainable for non-joinder of necessary parties.  This issue was already raised in the written statement filed by the OP-1.

8.      When the vehicle first broke down, the job card dated 22.10.2007 clearly shows that only oil filter and air filter were changed and no major work or change of parts were carried out then. Job card dated 14.11.2007 also reveals that no major repair or replacement of parts was done.  Another job card dated 17.01.2008 mentions the change of air filter, oil filter, fuel filter and coolant and no major repair work or change of part was carried out.  Thus, it is clear that whenever the complaint was mentioned in the vehicle, it was repaired with minor jobs like change of oil filter, air filter etc., which in the normal course of running are required to be changed due to normal wear and tear. No work was ever done in the engine.  The offer to change the engine was given only as a gesture of goodwill towards Indian customers of Nissan Motor and to earn their confidence.  The State Commission has wrongly adjudged this goodwill gesture as admission of shortcomings in the engine, which is not true.  The complainant did not come forward for replacement of engine ever after offer of the Company.  Under the warranty clause, it is only the defective parts, which could be changed and there is no provision for change of whole vehicle. In this regard, the learned counsel relied on the following judgement.

(i) “Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr., MANU/SC/1519/2006, wherein the following has been held:- Consumer- Replacement of Vehicle- Complainant had purchased a Maruti Car from the appellant through its authorized dealer- After delivery of the car, the complainant noticed that the clutch of the car was not functioning properly- Inspite of repeated visits to the dealer as well as the servicing center the car proved to be defective- On complaint made to the Consumer Forum, the Consumer Redressal Commission, which ordered for replacement of the car- On appeal, the High Court confirmed said order- Hence, present appeal- Held, the warranty condition referred only to the replacement of the defective part and not of the car-  There was no agreement to replace the engine system-  The High Court as well as the Commission were not justified in directing replacement of the car- having regard to the facts of the case and the hardship undergone by the complainant, appellant directed to remove all defects in the car and to pay a consolidated sum as compensation-  Appeal allowed.”

9.      Learned counsel for the appellant submitted that no deficiency can be attributed to the appellants on the basis of their good will gesture to replace the engine. The learned counsel cited the following judgement in support of his argument.

“Ravneet Singh BaggaVs. KLM Royal Dutch Airlines &Anr., (2000) 1 SCC 789.  It has been held that:-

6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”    

10.    It was also pointed by the learned counsel for the OP-1 that the State Commission has reached to the conclusion of manufacturing defect in the vehicle without any expert report. The following judgement of this Commission has been referred.

H. Vasanthakumar Vs. M/s. Ford India Ltd. &Anr. , FA No.490 of 2004, decided on 10.02.2009 (NC).  It has been held that:

“Even on merits, facts with regard to the car having run 18,000 k.m. within the first year of its purchase and complaint having been filed long after the expiry of the period of warranty when the car had covered 34861 kms. have to be considered in the context of the defects pointed out by the complainant and repairs undertaken by respondent No.2.  The State Commission, in our view, has rightly held that the defects mentioned in the job cards which were duly repaired by respondent No.2 cannot by any stretch of imagination be called as indicative of manufacturing defect.  The opposite party has attended to the vehicle every time, it was brought to the workshop to the satisfaction of the appellant/complainant.  If the defects/problems were of such a chronic nature, the complainant would not have been in a position to use the car for thousands of kms.  Besides nothing prevented him from producing expert opinion/evidence to prove that it was a case of manufacturing defect.  We do not find any deficiency in service on the part of the respondents.”

11.    The learned counsel for the appellant/OP-2 stated that the dealer cannot be held liable for any manufacturing defect in the vehicle as held by the Hon’ble Supreme Court in Hindustan Motors Ltd. &Anr. Vs. N. Siva Kumar &Anr., (2000) 10 SCC 654.

12.    Learned counsel for OP-2 further asserted that whenever the car was brought with complainant, it was repaired as per warranty condition of the vehicle.  The offer to change the engine was given by OP-2 on the advice of OP-1.  So, no adverse inference can be drawn against the OP-2 for admitting his fault in respect of the engine of the car.

13.    Learned counsel for the complainant/respondent no.1 argued that the vehicle started giving trouble within the first month of its purchase and broke down four times within a period of one year.  Every time, when the vehicle was repaired, assurance was given that it will not break down any further.  However, the vehicle kept on breaking down with the same defects as overheating of the engine and dense smoke coming out from engine.  Even the letter sent on 16.01.2008 by OP-2 for offering to change the engine mentions the complaint of leakage of oil from the engine.  This itself means that the engine was also leaking and it cannot be considered usual or normal for a new vehicle with such sophisticated features as mentioned in its brochure.  It is true that the vehicle had run 56,000 km. by the year 2009, but since then the vehicle is not running and is parked permanently and has become junk now.

14.  The learned counsel for the complainant also asserted that as the Company offered to change the engine, this clearly shows that they had realised that there was some defect in the engine.  No commercial Company will change the engine as a gesture of goodwill.  The State Commission has rightly considered this as admission of OPs for defects in the engine and the State Commission has relied on Order XII Rule 6 of the CPC.  For the new car, if there is defect in the engine, why should the purchaser agree for change of the engine only and why should any purchaser of any new car accept a car with defective engine or with replaced engine and that is why the State Commission has rightly ordered the return of cost of the vehicle.  The complainant could not use such a costly vehicle for any of his purposes and is thus entitled to replacement of new car or the full refund of the cost of the vehicle.          

15. Learned counsel for the respondent has cited the following judgments:

         (i)      “Hyundai Motors India Ltd. through its authorised signatory, Mr. Abhijit Kumar (Legal and Secretarial) Vs. Affiliated East West Press (Press (P) Ltd. through its Managing Director, Mr. Sunny Malik, I(2008) CPJ19(NC).  It has been held that:-

1.       The question which arises for consideration in this case is if a luxury car, namely, Accent Car CRD Diesel Model, gives trouble within one or two months of its purchase, would the consumer be satisfied with such a car? Whether the multi-national company manufacturing such a car, is justified in not replacing the car or refunding purchase price and instead engaging in protracted litigation?”

2.     In our view, if a brand new car gives trouble within a few days of its purchase, the consumer would be dissatisfied.Further, in such cases, the manufacturing Company is not justified in protracting litigation, merely because it has the money power.

25.  In our opinion, from the admission made by the petitioner it is clear that the vehicle had gone to them on several occasions for repairs.  In our view, there is no necessity for a new car to go to work shop ‘on several occasions’ for repairs within a short span one year of its purchase.”

(ii)   “Tata Motors Ltd. and Ors. Vs. LachiaSetty, I(2008) CPJ151(NC).  It has been held that:

12.  The undisputed facts of case are that the complainant had purchased Indigo LX Euro vehicle from Concorde Motors Limited an authorised dealer of Tata Motors which manufactures these vehicles and that the buyer had frequently complained to the dealer about the defects in the clutch system and gear box in the transmission system and further that the vehicle was taken to the workshop of the dealer time and again for the repair for which job cards were opened.  At no point of time purchaser has given a satisfaction report after repair of the car.  There were occasions when the car was not returned after repair on the same day e.g. car was taken to the dealer on 1.4.2004 and was returned on 7.4.2004.”

(iii)       Skoda Auto India Pvt. Ltd. Vs. Pawan Kumar MahabirprasadBhageria&Ors., IV(2011) CPJ548(NC).  It has been held that:

11. Now, coming to the merits of the case, District Forum in its order has held:

15. The fact that from the purchase of the vehicle by the complainant on 1.9.2006, defects of one or another nature are cropping up in the vehicle, has been accepted by the respondents in their say. Out of those defects, the defect in horn which was of trivial nature, was removed by the respondents free of cost. After purchase of the vehicle, on 4th day, when the vehicle was taken to Hyderabad the tyre of the vehicle got burst. As contended by the respondents, this may be due to the bad condition of the roads. However, when the complainant made a demand that the cost of the tyre be given to the complainant, no heed was paid to the said demand. But, after getting the notice of the present complaint filed before this Forum, the respondents have sent a cheque of Rs.5,500/- and there is no mention about this fact in their say. We have taken of this fact.”

16.  I have carefully considered the arguments advanced by the parties and thoroughly examined the record.  Basic facts are not denied that the vehicle was purchased by the complainant/respondent and the vehicle gave trouble starting from initial months of its purchase.  The vehicle has gone to workshop four times in a span of less than one year for repairs.  Though, perusal of the job cards indicated only change of certain items like fuel filter, air filter and oil filter etc., yet the engine was offered for replacement by the opposite parties.  The vehicle remained with the workshop once for 10 days and next time for about three weeks.  Though, the copy of the job card is given to the owner of the vehicle, the fact remains that the job cards are documents of the repairer workshop and are generated there.  There is some force in the argument of the complainant that if only air filter, fuel filter or oil filter was to be changed, the dealer should not have taken so much time in repairing the vehicle.  Moreover, the opposite parties have agreed to change the existing engine with a new engine and it cannot happen until they were convinced that there was some defect in the engine.  Though, it has been claimed by them that it was offered as a gesture of goodwill, even the letter dated 16.01.2008 offering replacement of the engine mentions a reference of the complaint regarding engine oil leakage from the vehicle, which has been admittedly rectified by opposite party No.2.  All these facts go only to confirm that there was some problem in the engine of the vehicle though it is not clearly mentioned in the job cards. Even otherwise, frequent replacement of oil filter, air filter and fuel filter seems abnormal at least for a brand new vehicle.  This also goes to confirm the defect in the engine.  The warranty is clearly not for the total replacement of the vehicle, but extents only to replacement of various components and parts as well as to labour charges in rectifying problems. The complainant was entitled definitely for replacement of the engine, which company had already offered.  As all other parts of the vehicle were not giving complaints, there does not seem any justification for total replacement of the vehicle when the vehicle has run for more than 50,000 Km.   This is more so in the circumstances of the case when the complainant did not accept the offer for replacement of the engine and also did not contact the dealer for further repairs of the vehicle when the vehicle was still giving trouble as per the version of the complainant.

17.  On a specific query, learned counsel for the appellant has stated that the new engine would cost about Rs.3 to 4 lakhs, whereas the learned counsel for the respondent/complainant informed that the cost of engine would be about Rs. 8 lakhs.  As no record has been filed in respect of the price of the engine, we would like to take the word of the learned counsel for the respondent/complainant which seems reasonable too looking to the total price of the vehicle.  The complainant has informed that the vehicle is not in use since 2010, it has totally become unserviceable.  In this scenario, no purpose would be served, if the opposite parties are directed for replacement of engine at this time.  Hence, it is deemed practical that cost of engine is compensated to the complainant for deficiency on the part of opposite parties.

18.  There is merit in the arguments of the learned counsel for opposite party No.2 that for manufacturing defects, the dealer cannot be held responsible as held in judgment of Hindustan Motors Ltd. & Anr. Vs. N. Siva Kumar & Anr. (supra). Relying on this judgment, we would agree that for replacement of engine/paying for its cost opposite party No.2 is not directly responsible.  However, some deficiency is also attributed to him for not clearly identifying the defects in the engine and not revealing the truth before the complainant which led to his harassment and mental agony.  For this deficiency, we order that opposite party No.2 is liable to pay a compensation of Rs.50,000/- to the complainant.

19.  Based on the above discussion, the first appeals are partly allowed and the opposite party no.1, M/s. Nissan Motor India Pvt. Ltd., is directed to pay Rs.8,00,000/- (Rupees Eight Lakhs only) to the complainant/respondent along with interest @5% from the date of order of the State Commission. Opposite party No.2 is directed to pay Rs.50,000/- (Rupees Fifty Thousand only) to the complainant as compensation for inconvenience, harassment and mental agony. Now there would be no need to transfer the vehicle to the OPs. All the ordered payments be made within a period of 30 days from the date of this order, failing which these amounts shall carry an interest @10% from the date of this order till actual payment. Order of the State Commission stands modified accordingly.