JUSTICE J.M. MALIK 1. This common order shall decide two revision petitions detailed above which arise from the same common order rendered by the State Commission, Delhi, passed in two First Appeals, one filed by the complainant, Sh. Krishanpal Singh and the other by Tata Motors Ltd. 2. The complainant, purchased a Tata Indigo Car from HIM Motors Pvt. Ltd., OP2, the Dealer of Tata Motors Ltd, which was arrayed as OP1, in the original complaint. The complainant paid a sum of Rs.4,63,341/- and took the delivery of the same on 15.12.2006. From the very start, the car was malfunctioning and revealed the symptoms of basic defect of the product. On 05.08.2008, the complainant informed M/s. Tata Motors Pvt. Ltd, OP3 that the said car had a number of defects. He also referred to the previous complaints made by him to the OPs. Again, a reminder was sent on 20.08.2008. The complainant also prayed that its cost should be returned. 3. On 18.07.2008, the complainant handed over the car to OP1 for repairs. OP1 assured that in addition to the change of gear box and fuel pump, any other defective part would be repaired, if so required. OP also informed the complainant that it would pay the charges of the taxi. The complainant also received a letter from OP2 expressing regret in respect of inconvenience, on 11.08.2008. 4. The complainant listed the following defects in the car:- . Leakage of engine oil which could be rectified only after opening engine chamber 3-4 times. b. Frequent failure of power system of the vehicle resulting in break/steering failure while driving which could have turned out to be major accident. c. Failure of AC/Heater system. d. Disbalance of Kamani ultimately leading to replacement of shocker. e. Failure to meet pollution specifications f. Low mileage 5. The complainant claimed that some of the problems faced are repetitive in nature, which included the following :- Sl.No. Complaint No. of times attended 1. Brake jam 7 times 2. Steering jam 5 times 3. Gear problem 5 times 4. AC/Heater failure 7 times 5. Engine leakage 4 times 6. Poor pick-up 10 times 7. Low fuel average 4 times 8. Excessive smoke 5 times 9. Clutch problem 3 times 10. Noise in engine 3 times 6. Ultimately, the complainant filed a complaint before the District Forum, with the following prayers :- . Issue an appropriate order and direction thereby directing the respondent to pay the cost of said car Rs.5,46,119/-. 2. Issue an appropriate order and direction thereby directing the respondent to pay Rs.25,000/- (inadvertently/wrong mentioned as Rs.2,500/- in legal notice), for and on account of expenses incurred by the complainant for accessories/addition parts fitted in the car. 3. Issue an appropriate order and direction thereby directing the respondent to pay the sum of amount of Rs.3.00 lakhs in lieu of Taxi charges from dt. 18.07.2008 till date at the rate of Rs.2,000/- per day. 4. Issue an appropriate order and direction thereby directing the respondent to pay Rs.10,00,000/- on account of harassment, inconveniences, mental agonies, financial losses suffered by the complainant and his family members 7. The District Forum partly allowed the complaint and passed the following order :- eeping in view the facts above, we find this is a fit case for ordering replacement of the car or refund of the cost thereof. It is noted by this Forum that in such type of cases, this Forum as well as Honle State Commission have been taking a view that cost of the goods should be refunded so as to end the dispute once for all as replacement of any defective goods by new goods is not a solution as such replacement of the goods may not be up to the satisfaction of the consumer and this may relegate the parties to a second bout of litigation. Further, since vehicle in question has already run for more than 37,000 kms. It is for consideration for this Forum whether OP can be ordered to refund full cost of the vehicle. In a similar situation, in the case supra of M/s. Hyundai Motors India Ltd. Vs. M/s. Affiliated East West Press (P) Ltd., National Commission observed as under :- t is also contended by the learned counsel for the petitioner that the car was used by the complainant for more than one year and, therefore, appropriate deduction in the amount payable to the complainant be made. In our view, this submission cannot be accepted because the complainant has also invested money for purchase of the said car and on the same amount he has lost interest. The car was required to be used after its repeated repairs. In such a case, it was the duty of the petitioner to replace the car as they were not in a position to rectify the defect Keeping in view above, we direct OP2 and OP3 jointly or severally to refund to complainant Rs.4,63,341/- (Rs. Four lacs sixty three thousand forty one only) towards cost of the vehicle along with a compensation of Rs.50,000/- (Rs. Fifty thousand only) for the harassment caused to the complainant and also Rs.10,000/- (Rs. Ten thousand only) towards litigation cost. In compliance of this order, the complainant will not have claim on the car in question lying with the OP1 and he shall complete formalities for transfer of ownership of the vehicle to OPs/their assignees. The OPs shall comply with the above orders within one month 8. Aggrieved against the order of District Forum, two First Appeals were filed by Tata Motors Ltd., before the State Commission. The State Commission partly allowed the appeal and while holding that there was no manufacturing defect, passed the following order :- he appeal is partly allowed and the impugned order dated 18.11.2009 is modified to the extent that the appellant shall pay Rs.3.00 Lac (Rupees Three Lac only) to the respondent being the refund of the price after depreciation. The appellant shall also pay Rs.50,000/- to the respondent as compensation for mental agony, harassment and sheer suffering and Rs.10,000/- as the litigation cost. The vehicle in question shall be delivered by the complainant to the appellant. We direct accordingly 9. Both the parties filed revision petitions against this order. 10. Learned counsel for TATA Motors Ltd., the petitioner, made the following submissions. The State Commission came to the conclusion that there was no manufacturing defect. There was no report of the Expert to bolster the case of the complainant. There is not even an iota of evidence that the vehicle suffered from manufacturing defect. He admitted that, however, some parts were not working and as soon as the vehicle was taken to the workshop of the petitioner, the defects were rectified. It was also argued that the dealings between the manufacturer and the dealers, are on a rincipal-to-principalbasis and there is no privity of contract between the petitioner and the respondent/complainant. Consequently, there is no privity of contract between the complainant and the petitioner/manufacturer. Again, the complaint is conspicuously silent about any manufacturing defect. 11. It was contended that manufacturing defect has been defined by this Commission in Maruti Vs. Hasmukh Lal, (2009) 3 CPJ 229, Para 21, as a defect as a result of which the vehicle cannot function and results in a complete and total breakdown. The manufacturer is liable only in case of manufacturing defect. The complainant has filed service history and Tax Invoices relating to servicing of the vehicle, inter alia, by HIM Motors, besides other Dealers. This Commission, in the following authorities, has observed that, only the Dealer to be liable in cases where no manufacturing defect is established. He has referred to :- i) Tata Motors Vs. Hind Motors & P.K. Marwaha, order dated 24.05.2010. ii) Hind Motors Vs. K.K. Kalsi order dated 24.05.2010 iii) Hind Motors Vs. Balwinder Singh, order dated 24.05.2010 iv) Hind Motors Vs. Bhupinder Singh, order dated 24.05.2010. 12. It was also argued that no findings can be arrived at in the absence of foundation being laid down in the pleadings. The counsel has referred to Supreme Court authority reported in DVVG Satyanarayana Vs. S.V. Raghavaiah, AIR 1987 SC 406. It was also contended that, moreover, the vehicle is lying abandoned since the year 2008. The respondent has not cared to take away his vehicle. In order to embolden his arguments, the counsel for the petitioner cited authorities reported in Manager, Premanchal Motors Pvt. Ltd. and Punjab Tractor Ltd. Vs. Ramdas, Telco Vs. Bachi Ram Dangwal and Tata Motors Vs. Ashok Saraf, decided on 12.01.2009. 13. It was also submitted that the vehicle had limited problem of break-failure and starting-failure, at four times. The service history and Tax Invoice filed by the complainant did not show any starting failure, even though, there is a reference to cold starting problem on 07.02.2008. From the service history and tax invoices, it is clear that break jam was returned on 26.12.2006 and 13.12.2007 and not on seven occasions, as wrongly held by the consumer fora below. The complainant has distorted the symptom of steering noisy on 04.03.2008 and steering hard on 10.03.2008 by misrepresenting steering jam/fail, which shows how minor maintenance issues have been exaggerated and distorted. The petitioner was willing to replace the gear box as a gesture of goodwill even though the warranty had expired. Numerous visits to the workshop does not amount to manufacturing defect. Onus of proof is always on the complainant to lead cogent evidence and expert report. This Commission in Classic Automobiles Vs. Lila Nand Mishra & Anr., I (2010) CPJ 235 (NC) and Tata Motors Vs. Kushal Singh Thakur, vide order dated 21.08.2009 in RP No. 1153 of 2005, held that provisions of Section 13(1) (c) had to be complied with for appointment of Expert who could give a report as to whether the vehicle was suffering from manufacturing defect of the vehicle. 14. It was argued that Expert opinion is a condition precedent for establishing manufacturing defect, as was held by this Commission in EID Parry Vs. Baby Benjamin, I (1992) CPJ 279, Tata Motors Vs. Sunil Bhasin, 2008 (II) CPJ 111, Chandreshwar Vs. Telco, I (2007) CPJ 2, Diamond Cement Vs. Rai Prexim India Pvt. Ltd., I (2003) CPJ 1, Lovely Vs. Harmesh Lal, I (2007) CPJ 312. 15. It was further argued that the petitioner/complainant has concealed some material facts. Firstly, the complainant abandoned the vehicle at the workshop. It is lying with the workshop since the year 2008. The complainant was informed vide letters dated 30.07.2008, 04.08.2008, 11.08.2008, 22.08.2008 and 14.09.2008 that the vehicle had been attended to and to take delivery of the same. The petitioner/complainant was also informed telephonically, but he did not come forward to take the vehicle back. On 14.09.2008, the Dealer made a proposal to the complainant, through a letter, for offering of replacement of gear box as a gesture of good will and also offered the reimbursement of Rs.550/- per day, applicable to his previous visits to workshop, when the vehicle got stranded for more than one day due to major running repairs. The complainant tried to mislead the Forum by not disclosing the fact that he has not taken delivery of the car since the year 2008. The complainant purchased the car on 15.12.2006 and has filed the complaint before the District Forum on 13.01.2009, i.e. beyond the warranty date, i.e., 15.06.2008. 16. It was also argued on behalf of the petitioner that after the warranty period, no right to demand any damages or compensation for loss or inconvenience lies with the consumer. In Bharati Knitting Vs. DHL Courier, (1996) 4 SCC 704, the Honle Supreme Court held that the parties are bound to follow the contract entered into and signed by them. In Maruti Vs. S.K. Gabgotra, (2006) 4 SCC 644, the Honle Apex Court set aside the order of replacement of vehicle. This order was followed by this Commission. 17. The vehicle in question has covered 36,000 kms and one-and-a-half years have elapsed. Consequently, the question of manufacturing defect cannot arise in view of Telco Ltd. Vs. Gajanan Mandrekar, AIR 1997 SC 2774 and Tata Motors Vs. Kushal Singh Thakur (supra). Both the fora below have wrongly concluded that the vehicle was having manufacturing defect. The complainant had not availed the second free service and waited for two years to file the complaint after covering 40,000 kms. The complainant failed to show having suffered any loss or injury on account of negligence by the petitioner. As per Honle Supreme Court authority, reported in Consumer Unity & Trust Society Vs. Chairman & Managing Director, Bank of Baroda, (1995) 2 SCC 150 and Union of India Vs. Seppo Rally, (1999) 8 SCC 357 , Godfrey Philips Vs. Ajay Kumar (3) 2006 CPJ 178 (NC) and Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65. 18. The learned counsel for the petitioner contended that the complainant had exaggerated the number of visits for repairing purposes. According to the petitioner, the complainant did not visit the premises for about 53 times and at another stage for about 35 times. However, the counsel for the petitioner admitted at Bar that the complainant visited for 26 times, for which the petitioner is ready to compensate @ Rs.550/- per visit. 19. We find force in the arguments canvassed by the counsel for Tata Motors Ltd. The job cards, Annexure P-1 (colly) are attached with the file. It goes to show that there was brake jam after 10 kms., low pick up, defect in regulator handle checkup and steering wheel was found to be centralised. Service card still reveals that rake and starting fail, B1 brake grabbling/jam, replace brake pad (paid), brake cleaning, Misc., N, cooling, a/c cooling low check down Another history card shows that teering noisy, noise from Engine, steering system hard. There are number of job cards All these facts clearly go to show that the complainant visited the Service Station, time and again, for the rectification of above said defects. The complainant claimed that he visited the Service Station for 53 times. The opposite party has denied this fact but admitted that he must have gone for getting the service and defects removed, for as many as 26 occasions. The admission of the facts comes out from the horse mouth itself. The opposite party, Tata Motors Limited issued a letter dated 11.8.2008 to the complainant, wherein the relevant extract runs, as follows: e sincerely regret the inconvenience that you had to go through. However please be assured of the quality of jobs that have been carried out by our dealer. As we are concerned on the performance of your car, and accordingly we have got the car checked by our representative as well. We once again would request you to please take the delivery of the car and be assured of the best possible support from us in the future. Vide letter dated 14.09.2008, issued by HIM Motors (P) Ltd, to the complainant, it is apparent that the petitioner has replaced the Gear Box and Fuel Injection Pump, etc. 20. Dr.Vijendra Mahnidyan, learned counsel for Sh. Krishan Pal Singh, the complainant, has argued that the life of the complainant and his family was put in danger. The opposite parties made repeatedly fake assurances after each repair to the effect that the vehicle would run smoothly thereafter. However, the defects could not be cured. The vehicle remained in the garage of the opposite party whereas the complainant had to pay the installments of car loan as well as the interest thereon. The complainant, vide his letter dated 05.08.2008, which letter runs into five pages, made the following request to the opposite parties, addressing one Mr. Rajiv Dubey, (President-Vehicles), Tata Motors Limited, Mumbai. The relevant extract germane to this controversy, runs as follows: ir, when a person buys a car, he makes sure that he will benefit from the car in terms of physical exertion, relaxing, mental peace, business and this car would help him to expand business and bring growth to lives but buying this car from Tata motors, I have been losing my mental peace and faced financial loss and now it nearly unbearable and I request you to fulfill my loss (mental and financial), else I will have to go to court and media. Hence, I again kindly request you to understand my unbearable problem as a quite high post officer, who is working for big multinational company and oblige youe your efforts will be highly appreciated 21. He wrote another letter dated 20.08.2008. In both these letters, the complainant discussed the defects prevalent in the car. In the end of this letter, he requested the opposite parties to refund the amount paid by him to Tata Motors and also to repay the cost for spending the money on the additional car accessories. 22. According to the complainant, the OP had tried to settle the matter. The document was prepared by the opposite parties, as a condition precedent to be signed by the complainant before taking delivery of the vehicle. 23. The learned counsel for the complainant has cited an authority reported in Tata Motors Limited. Vs. Lachia Setty I (2008) CPJ 151 (NC), wherein the opposite parties could not rectify the manufacturing defects despite repeated complaints and taking the vehicle to workshop, this Commission held that deficiency in service stood proved. In that case, it was held that the complainant after being fed up with the defects, surrendered the vehicle within three months of purchase. The order passed by the fora below to replace the car or pay the cost of the car was upheld. It was argued that in the judgments relied upon by the petitioner in Sushila Automobiles Private Limited through its Manager Shri Kamlesh Kumar Singh vs. Dr. Birendra Narain Prasad, Revision Petition No. 1652 of 2006 decided on 7.5.2010 1652 of 2006 and Classic Automobiles vs. Lila Nand Mishra & Anr. I (2010) CPJ 235 (NC), there were only minor defects. 24. It must be borne in mind that the car is lying with the opposite party/ dealer since the year 2008. A number of requests, either in writing or in oral, were made to the complainant to take the car back. The contention of the complainant that he had written two letters, dated 5.8.2008 and 20.8.2008, does not absolve him from his liability to take the car back. 25. On the other hand, the case of the opposite party also smacks of negligence when the car was having so much problem. The Manager should have issued a letter that the vehicle was roadworthy. However, needful was not done. It appears to be a case of contributory negligence. If the assurance was given by the opposite parties to the complainant , then he could have taken his car back, with confidence. 26. This must be borne in mind that this is a peculiar case and where the complainant had to visit the service station, according to him, for 53 times and according to the opposite party, for 26 times. Normally, in such like situation, the onus of proof should be shifted to the side of the OP when the manufacturing defects are visible on its face and the OP has no explanation to make, the manufacturing defect, ust be assumed Section 13 (1) (c) is wee bit unfavourable to the consumers. The consumer is a poor fellow. He cannot be equated with OP1. Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like OPs, to appoint their own Experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect. The General Manager of Tata Motors should certify that the vehicle is road-worthy and it will not endanger the life of the complainant or his family members. 27. However, we are bound by the law laid down by the Honle Apex Court in several authorities, cited by the counsel for the petitioner/Tata Motors. The car can neither be replaced nor its amount can be refunded. Keeping in view these facts and circumstances, we hereby modify the order passed by the State Commission and hereby order that no refund be made as already ordered by the District Forum and the State Commission. It is hereby ordered that the vehicle which is lying with HIM Motors Pvt. Ltd., OP2, shall be repaired and the General Manager of Tata Motors will issue a certificate to the effect that the car is roadworthy and it will not endanger the lives of the complainant and his family members. The roadworthy car be handed over to the complainant/ consumer, within a period of 30 days from the receipt of this order. Thereafter, the warranty period shall stand extended by 12 months. This will be one of the conditions on the warranty card issued to the complainant. 28. This is an admitted fact that the complainant visited the service station for 26 times. He will get compensation in the sum of Rs.5,000/- per visit, total being, Rs.1,30,000/-, payable within 30 days from the receipt of this order. The complainant will also get litigation charges and costs of this case, including the Advocate fee, in the sum of Rs.50,000/-, within a period of 30 days from the date of receipt of this order. Order shall be complied with accordingly. Otherwise, the said amounts will carry interest @ 9% p.a., after 30 days, till their realization, against both the OPs, jointly and severally. 29. If the car is not repaired within the above said period of 30 days, both the OPs will have to pay penalty in the sum of Rs.500/- per day, jointly and severally, till the complainant gets the possession of the same. The car should be handed over, without any defect. 30. Before concluding, we must mention that although, the District Forums are quick in passing the orders in favour of the consumers, irrespective of the fact, whether the case of the complainant is bolstered by cogent and plausible evidence, or not, yet the said forums never take the trouble to adhere to Section 13(1)(c) of the C.P. Act. If District Forums follow the law, most of the problems will come to an end. If the consumer is to be helped permanently, the provisions enshrined in Section 13(1)(c) should be followed, strictly. In that event, it would be easier for the fora to winnow truth from falsehood. The revision petitions stand disposed of.