These revision petitions have been filed against the order dated 2.7.2011 passed by the State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram (for short, ‘State Commission’) in First Appeal Nos. 451/10, 582/10 & 184/11.

2.       Brief facts of the case for deciding the present revision petitions are that respondent no.1 in R.P. No.3157/2011 / complainant   purchased  a    HM COSMO PASSENGER vehicle from respondent no.2/ Geo Motors on 22.3.2005 for Rs.4,85,000/-.  On 28.4.2005, the vehicle brought for service after being driven 3107 kms. and again on 27.6.2005 after 5470 kms.  The vehicle was brought for routine service on 10.11.2005.  Alleging manufacturing defects with respect to function of its clutch assembly and gear box,  complainant filed complaint before District Forum, Eranakulam in February, 2007.

3.       The complaint was resisted by the Petitioner/Hindustan Motors Ltd. by filing reply dated 4.11.2008 contending that the defects were only temporary defects and whenever the vehicle was brought for repairs, the same were rectified free of cost. There was no manufacturing defects in the vehicle and the problems were mainly on account of regular wear and tear.  However, by order dated 10.6.2010, the District Forum allowed  the complaint and directed the petitioner, Hindustan Motors and respondent no.2, Geo Motors  to jointly and severally pay a sum of Rs.4,36,500/- to the complainant alongwith interest @ 9% p.a.

4.       Aggrieved by the order of District Forum, the OPs and  the complainant preferred appeals before the State Commission and  the State Commission vide order dated 2.7.2011   dismissed the Appeal no.184/11  filed by the complainant  and partly allowed the Appeals nos.582/10 and 451/10   filed by the OPs as under:

“Hence the order of the Forum is modified to the extent that the opposite parties would be liable to pay a sum of Rs.3,50,000/- to the complainant with interest at 7% from the date of the order of the Forum. Being  a manufacturing defect, the responsibility is mainly on the manufacturer.  The dealer also cannot be absolved as it is on the representation of the dealer that the complainant would have purchased the vehicle and the dealer is also getting profits in the sale of the vehicle.  Being a manufacturing defect the ultimate liability is that of the manufacturer.  Hence the complainant may realize the amounts from the opposite parties jointly or from any of the opposite parties and the 1^st opposite party/dealer will be at liberty to realize the amount if paid by the dealer from the manufacturer.  If the amount is paid by the dealer, the dealer can execute this order against the manufacturer also.  The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% from 2/7/2011, the date of this order.   The complainant will hand over the vehicle to the opposite parties after receiving payment as ordered by this Commission.

In the result appeals-451/2010 & 582/2010 are allowed in part as above and 184/2011 is dismissed.”

5.       Aggrieved by the order of the State Commission, the OP No.2/petitioner herein has preferred R.P. No.3157/2011 and the complainant has preferred R.P. No. 1205/2012.

6.       Heard the learned counsel for the complainant and learned counsel for OP-2/ Hindustan Motors Ltd.. None is present on behalf of respondent no.2/OP-1, Geo Motors Ltd.

7.       Learned counsel for Hindustan Motors Ltd. stated that the complainant had purchased the vehicle in question for commercial purpose as it was being used as a contract carriage.  The vehicle is a mini bus meant for carrying 13 passengers. It has not been  claimed that the vehicle was being used for earning livelihood  through self-employment. Accordingly, the complainant is not a consumer. To support his contention, learned counsel for the Hindustan Motors Ltd. has relied upon the judgment passed by this Commission in JCB India Ltd. vs. Mallappa Sangappa Mantri and another in R.P. No.4260 of 2010 decided on 19.2.2015 wherein it has been observed as under:

          6.  The first question xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

 In the absence of averment and evidence to the effect that he complainant had used either himself or with the aid of an employee the machine for the purpose of earning his livelihood by means of self-employment he would not come within the purview of the explanation attached below Section 2(1)(d) of the Consumer Protection Act, 1986 at the relevant time. In our opinion, it was not sufficient for the complainant to claim that he had purchased the machine for his livelihood purpose. He ought to have pleaded and proved that it was for earning livelihood by means of self-employment. More importantly, he was also required to plead and rove that the machine was used by him either personally or through some employee engaged by him.  That having not been done there is no escape from the question that the complainant cannot be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986, as regards JCB machine purchased by him. The complaint is liable to be dismissed on this short ground alone.”

8.       The three free services were provided satisfactorily by the dealer and these problems were not  reported. Whenever the vehicle was brought for repairs in the workshop, the vehicle was repaired free of cost.  The wear and tear in the clutch assembly and gear box was the result of the vehicle not being driven properly. There was no expert opinion confirming any manufacturing defects. The report of the Expert Commissioner is a report given by a retired Reginal Transport Officer (R.T.O.),  who may not be having any expert knowledge in the matter.  Even the report of the Expert Commissioner  only mentions that there has been frequent repair of clutch assembly and gear box. Even under warranty, only the defective parts can be changed and not the whole vehicle. Thus, in no way the order of the District Forum for returning roughly the whole price of the vehicle or the order of the State Commission for refunding Rs.3,50,000/- is justified. Even the Expert Commissioner has not mentioned any manufacturing defect in his report. In the conclusion part, the Expert Commissioner  only recommended the replacement of the gear box and the clutch assembly those manufactured by Mahindra and Mahindra. Even the Expert Commissioner has not given any recommendation  for replacing the vehicle or that the vehicle cannot be used after the change of the gear box and clutch assembly.  Thus, even if this report is believed, the fora below should have ordered only for replacement of clutch assembly and gear box or for payment in that respect. The vehicle had already run about 39000 kms. when the complaint was filed and it must have run more by now and if the vehicle has run such a long distance, it cannot be said that there was any manufacturing defect.

9.       Learned counsel for the petitioner further argued that even if the vehicle was taken five times to the workshop for repairs and the vehicle has been repaired, this does not justify the presence of manufacturing defect. To support his case, the learned counsel relied upon the judgement of this Commission in Tata Motors Ltd. vs.  Deepak Goyal and others , R.P. No.2309 of 2008  decided on 30.1.2015 wherein it has been held:

8.   Learned Counsel for petitioner submitted that merely because vehicle was taken for repairs repeatedly, no manufacturing defect can be presumed in the absence of expert evidence as held by this Commission in 1 (2010) CPJ 235 (NC)- Classic Automobiles Vs. Lila Nand Mishra & Anr. Perusal of job cards reveals that, apparently, complaints made in job cards does not come within the purview of manufacturing defect but it appears that repairs were required on account of excessive running of the vehicle, road conditions and manner of driving the vehicle. Merely because vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects particularly when the vehicle had run more than 56,000 kms in a short span of one year as evidenced by bill dated 30.7.2004 of M/s. Mirkana Engg. Pvt. Ltd. in which mileage has been shown as 56874 kms. Perusal of job cards further reveals that on 13.11.2003, mileage of the vehicle was 5364 kms whereas on 25.11.2003, mileage of vehicle was 11131 kms, meaning thereby, vehicle had run about 5800 kms in a short span of 12 days. Had there been any manufacturing defect in the vehicle, vehicle could not have run 5800 kms in 12 days and more than 56,000 kms in a period of one year. Respondent has not placed any report of expert to substantiate the argument that there was manufacturing defects in the vehicle. In the absence of any expert report and as vehicle had run more than 56000 kms in one year and by this time, it would have run lakhs of kms as vehicle was purchased before 11 years, by no stage of imagination, it can be inferred that there was any -6-   manufacturing defect in the vehicle. Learned Counsel for petitioner has placed reliance on judgment of this Commission dated 7.5.2010- Sushila Automobiles Pvt. Ltd. through its Manager Shri Kamlesh Kumar Singh Vs. Dr. Birendra Narain Prasad & Ors., in which judgment of Surendra Kumar Jain Vs. R.C. Bhargava & Ors. reported in III (2006) CPJ 382 (NC) was referred and observed that even if vehicle has been taken to workshop for 11 times for removing minor defects, it cannot be said to be a manufacturing defect. Learned State Commission in para 9 of the impugned judgment has wrongly observed that the onus to prove that vehicle does not suffer from manufacturing defect, shifts to the manufacturer for the purpose of replacement of vehicle because burden was on the complainant to show that vehicle was suffering from manufacturing defects. A vehicle with manufacturing defect cannot run lakhs of kms and running of lakhs of kms by disputed vehicle proves that there was no manufacturing defect in the vehicle and Learned District Forum committed error in allowing replacement of the vehicle and Learned State Commission further committed error in allowing refund of price without any appeal on behalf of complainant.

13. It is not disputed that respondent had taken vehicle to workshop for more than 20 times in a span of two years. It would be appropriate to grant some compensation to the respondent for mental agony and harassment suffered by him for getting his vehicle rectified/ repaired from time to time. In such circumstances, compensation of Rs. 50,000/- should be awarded to the respondent.”  

10.     Further, to support, learned counsel for the petitioner relied upon the judgment of this Commission  in Hyundai Motor India Ltd. vs. Surbhi Gupta and others, R.P. No. 2854 of 2014 decided on 14.8.2014 whereby it has been held as under:

        “8.   I am in agreement with the learned counsel for the Manufacturer, Hyundai Motors India Ltd. that had there been some inherent manufacturing defect in the vehicle it would not have been possible for the vehicle to run for about 48,689 kms for over a period of more than 3½ years.  The likelihood in such a case can be that some parts of the vehicle had a defect in it but the vehicle remained in drivable condition despite that defect.”

11.     On the other hand, learned counsel for the complainant/respondent no.1 stated that Expert Commissioner’s report was already there which has been given by retired Regional Transport Officer who gives fitness certificate to various commercial vehicles. Thus, it cannot be said that the Expert Commissioner did not have the domain knowledge. Moreover, the OPs have not filed any objection to the report of the Expert Commissioner and therefore, no objection can be raised at the stage of the revision petition. The OPs have not taken the vehicle from the complainant as per the order of the State Commission and they have not paid the amount ordered by the State Commission. Thus, the complainant is suffering in a double manner that he has not received any compensation and has to maintain the defective vehicle which does not serve the purpose of the complainant.  It was further stated by the learned counsel that the complainant had taken loan from the Kerala Transport Development Finance Corporation for purchase of the vehicle. This itself shows that the vehicle was purchased by him for self-employment for earning livelihood.  The OPs have not submitted any document showing that the complainant has some more vehicles to deny the claim of the complainant as a consumer. In the absence of any proof otherwise, the complainant would be deemed to be a consumer as he has purchased only one vehicle. The State Commission has also observed that the production of the vehicle has been stopped by the company, therefore, this further supports the view that the vehicle had manufacturing defects. Obviously, the original parts of the vehicle will not be available now and even if the gear box and clutch assembly are changed, it would be difficult to run the vehicle in a long run.  To support his claim, learned counsel referred to the decision of this Commission in  Hindustan Motors Ltd. vs. Smt. Lalita Tewari and another, R.P. No. 3380 of 2010  decided on 5.3.2012.  In respect of the revision petition  filed by the complainant, the learned counsel stated that the same has been filed for enhancement of compensation as the State Commission reduced the compensation awarded by the District Forum drastically without any proper reasoning. Hence, the compensation of Rs.4,36,500/- as awarded by the District Forum should be restored.

12.     I have carefully considered the arguments of the learned counsel for the parties and examined the record.

13.     First of all, it is seen that the OPs have not filed any proof to support their contention that the complainant was not a consumer. They have not filed any document showing that the complainant had fleet of vehicles  or at least more than one vehicle. On the other hand, the complainant has stated that he had taken loan for purchase of this vehicle and this was the only source of income. Thus, even if the earning of livelihood is not pleaded in the complaint, the circumstances  show that the complainant was a consumer and was running this mini bus for earning his livelihood. Self-employment is evidently proved as he obtained the loan to purchase the vehicle. Thus, he is covered under the explanation attached under Section 2(1)(d) of the Consumer Protection Act, 1986. I also find no substance in the arguments of the petitioner that the report of the Expert Commissioner cannot be considered as expert opinion. In fact, the Expert Commissioner who is a retired Regional Transport Officer is supposed to have deeper technical knowledge in the subject  and he has analyzed the problems of the vehicle  very minutely and has finally given his conclusion as follows:

          “Conclusion:

In the above circumstances the clutch system and the gear box, which are fitted to the COSMO is not strong enough to hold the power generated by the SIMPSON DIECEL S4, 3330 CC engine as this clutch and gear box MSG5S are made for an engine of capacity 1489 C.C. I strongly believe this is the basic reason for frequent complaint of clutch and gear box in COSMO. My assessment on this matter can be made clear if the HM gear box of model MSG5 S and the clutch assembly are replaced and be fitted with 4 speed gear box and clutch of Mahindra & Mahindra make.”

14.     Based on the above conclusion of the Expert Commissioner, it is clear that the clutch assembly and the gear box were defective and from the very beginning, they should have been changed within the warranty of the vehicle free of cost as the defects persisted and as  litigation also lingered on for more time, the complainant was constrained to drive the vehicle even in a defective condition after being repaired again and again. Thus, the fact of the vehicle having run 39000 kms. when the complaint was filed does not have much bearing on the subject whether the defective vehicle was supplied to the complainant or not.  The Expert Commissioner has not clearly indicated manufacturing defect but has only stated that the gear box and clutch assembly were not in consonance with the type  of engine used in the vehicle and thus, suggested replacement of these items by those of other make.  Looking at the time that has elapsed and the fact that the vehicle was running somehow, and that  the vehicle definitely had defective gear box and clutch assembly, I deem it appropriate to order that the complainant should be compensated appropriately by the OPs as the OPs did not replace the gear box and  the clutch assembly under warranty.  No purpose would be served by replacing the vehicle as the vehicle production has already been stopped and the full price of the vehicle or even as ordered by the State Commission cannot be allowed to be refunded as the complainant has used the vehicle for so many years, though not satisfactorily and the complainant was only entitled for replacement of defective components of gear box and clutch assembly free of cost under warranty. In the above set of circumstances, I deem it appropriate to  partly allow R.P. No.3157 of 2011 and to order compensation of Rs.1,70,000/-  (Rupees one lakh seventy thousand only) alongwith interest @ 7% p.a. from the date of order of the District Forum till actual payment to be paid by the OPs to the complainant. Accordingly, the order of the State Commission dated 2.7.2011 stands modified to this  extent.  Rest of the order of State Commission is maintained except that the vehicle will not be returned to the OPs now. This order be complied by the original OPs within a period of 45 days from the date of this order, failing which the interest @ 10% p.a. shall be payable by the OPs from the date of this order till actual payment. Consequently, the R.P. No.1205 of 2012 filed by the complainant stands dismissed.