Heard learned counsel for the petitioner/complainant and learned counsel for respondent no.3/manufacturer. 

No one has responded on behalf of respondents no. 1 and 2/dealer.

The petitioner/complainant purchased a Hyundai Santro Car on 28.03.2009 for a sum of Rs.3,45,913/-.  According to the petitioner/ complainant, the vehicle was defective, inasmuch as the wheels used to start wobbling as the car picked up a speed of 40 kmph.  This defect was reported to the dealer.  Learned counsel for the petitioner/complainant has invited the attention of the Bench to a chart that has been produced from page 145 to 153 of the paper-book giving the date-wise visits to the dealership for repairs.

It is urged that the said defects were initially looked into and attempted to be rectified but inspite of replacing the wheels and tyres, the wobbling continued to persist.  According to the petitioner/complainant, there were 40 to 50 repetitive visits which were made to the dealer but with no effective response and the defects continued with the wheels of the vehicle wobbling soon after its purchase.

The dealer had contested the matter by contending that every defect was attended to and removed and that there was no deficiency in service at all so as to warrant the filing of any complaint.

However, dissatisfied, the petitioner/complainant filed Complaint Case No.27 of 2011 on 18.02.2011 alleging defects and deficiencies and initially impleading the dealer only who are the respondents no. 1 and 2 respectively.

It appears that during the pendency of the complaint itself, since the manufacturer had not been made a party to the proceedings, an impleadment/amendment was moved and then the manufacturer, respondent no.3 herein, was also impleaded.

However, before impleading the manufacturer, the petitioner/ complainant had moved an application on 23.11.2011 requesting the District Forum/Commission for appointing an expert/specialist.  The application proposed the names of Mr. Manas Kumar Aaich, Mr. Hemraj Singh or anybody from the Government Polytechnic College and Training Institute at Ambikapur.    

The District Commission in its wisdom called upon Mr. Manish Kumar Aaich to carry out an inspection and submit a report.  The said report dated 30.12.2011 is on record and is as follows:  

“INVESTIGATION REPORT

I, Manas Kumar Aaich, S/o Mukund Bihari Aaich, resident of Ambikapur, District Sarguja. I am serving as a vehicle mechanic for last 15 years. And I hold a post and working as specialist in Shri Sai Baba Bus and Transport since years I have been appointed for inspection of the disputed vehicle Hyundai Santro Zing CG15B4355 by the Hon'ble Court of Consumer Disputes Redressal Forum, Ambikapur.

After receiving the above said order the notice has been issued to the parties by me and examination of disputed vehicle Hyundai Santro Zing No. CG15B4355 has been done by me in presence of the parties, the details of which is mentioned hereinafter:-

1. In the disputed vehicle there is a problem of wobbling. For this the alignment and wheel balance has been checked which is fit in the vehicle.
2. The investigation of drum of wheels and entire wheel of the disputed vehicle has been checked, which is fit. But the rubbing in the wheels has been found only at one side, generally such position in the vehicle is seen in the vehicle only on alignment, outing of wheel balancing.
3. In the disputed vehicle, the spandle was also checked, which is found fit. After entire check in the ordinary circumstances, the vehicle was plied, in which the wobbling was remained as it is.
4. The suspension (shocker) spandle, break drum of the disputed vehicle were also checked. If the shocker or spandle was bad then it could be treated as a reason of wobbling but in the present disputed vehicle there is wobbling. The experience of this is done immediately on plying the vehicle that the wheel of the vehicle waves inside, there is extreme wobbling in the vehicle.
5. According to my opinion, there is a manufacturing defect in the disputed vehicle which cannot be repaired. In the structure of this there is a manufacturing related fault, which is not liable to be repaired probably.
6. In the disputed vehicle there is much extreme wobbling that any accident can be happened at any time, there is also the possibility of rebounding the vehicle at the time of taking turn.
7. The rubbing done in the wheels formally seen in the disputed vehicle from outside is only the proof of this fact that there is a defect in the vehicle. For this, the wobbling has not been decreased on improving the alignment wheel balancing by inspecting.
8. In the disputed vehicle there manufacturing defect which cannot be improved. In any vehicle, such type of defect can be improved which is caused due to the accident, friction, fragments, damages of parts. The repair of the manufacturing defect cannot be done. Hence the changing of vehicle is safe and is proper and necessary for the purpose of safety.
9. The experience of problem of wobbling in the vehicle is also done due to the reason of fundamental (manufacturing related defect) in the structure (chassis and body) of the disputed vehicle. Meaning thereby any defect/fault is remained in the structure due to which there is wobbling in the vehicle, hence is not liable to be repaired.

ADDITIONAL FACTS

Inspite of inspecting the disputed vehicle Hyundai Santro Zing CG15B4355 the wobbling is exists in the vehicle. From this I take this conclusion that in the present vehicle there is a manufacturing defect which cannot be made. The travelling in the above said vehicle is completely unsafe and accidents. The is inviting to vehicle manufacturing companies, on coming such type of problem, by giving the benefits of guarantee/warranty to the customers, does proper repair or give second piece. The defect of present disputed vehicle Hyundai Santro Zing CG15B4355 is not liable to be repaired hence the vehicle should be changed.

Sd/ illegible

INVESTIGATOR

MANAS KUMAR AAICH

AMBIKAPUR

DATED 30-12-11”

The said report after assessing and inspecting the vehicle in several paras as highlighted above stated that there appears to be a manufacturing defect in the structure and chassis of the vehicle.

The District Commission proceeded to allow the impleadment of the respondent no.3/manufacturer and it is contended by the learned counsel for the petitioner/complainant that the respondent no.3 inspite of having knowledge of the said report, did not choose to contest the same. 

With all the evidence on record and after discussing it in its entirety, the District Commission allowed the complaint on 29.11.2012 and placed reliance on the expert report of Mr. Manas Kumar Aaich referred to hereinabove. 

The manufacturer M/s Hyundai Motors India Ltd. filed Appeal No. 1 of 2013 and the same was allowed on 22.04.2014, reversing the order of the District Commission.  The State Commission commented upon the manner in which the manufacturer had been belatedly made a party in the proceedings and came to the conclusion that the complaint as against the manufacturer was time barred.  It also went on to hold that the manufacturer had not been impleaded appropriately and discussed the provisions of O-VI Rule-17 of the CPC.

The State Commission concluded, by holding that the manufacturer was not a part of the inspection or the proceedings that culminated in the filing of the expert opinion, therefore the said evidence could not be looked into as against the manufacturer to arrive at a conclusion that the vehicle had a manufacturing defect.

It is assailing this order of the State Commission that the present revision petition has been filed.

Learned counsel for the petitioner/complainant contends that the expert opinion was neither challenged before the District Commission nor any challenge has been raised to the contents of the said report of the expert by the respondent no.3/manufacturer company in the appeal.  Consequently, in the absence of any challenge to the expert opinion, the order of the District Commission could not have been reversed by the State Commission and ought to have been upheld.

It is further submitted that it was on the entertaining of the expert report that it was found necessary to implead the manufacturer who had been impleaded well within time and there was no delay so as to bar the cause of action as against the manufacturer.  Even otherwise, the cause of action was continuing with the complaint having been filed and the expert evidence having been received by the District Commission itself.  Thus, it was during the trial itself that the evidence was taken on record and then the manufacturer was also issued notice and responded to the complaint.  Thus no prejudice had been caused to the manufacturer nor any principles of natural justice were violated, on the basis whereof the manufacturer could raise any ground in the appeal.

The contention is that the cause of action was continuing and there was no bar of limitation nor was any opportunity denied to the manufacturer to contest the matter, hence, the conclusion drawn by the State Commission is erroneous.

On merits, he submits that the car never improved inspite of repetitive requests made to the respondents and since there was no attempt to finally rectify the defects, the opinion of the expert seems to be correct that the vehicle was suffering from a manufacturing defect and was beyond repairs.  It is therefore submitted that the impugned order of the State Commission should be set aside and that of the District Commission should be restored.

Responding to the said submissions, Mr. Prabhakar Tiwari, learned counsel, has appeared for the respondent no.3/manufacturer and he submits that the fact as to whether the vehicle was affected by any manufacturing defect, much less there being a permanent defect, there was no occasion for the District Commission to have allowed the complaint.  He contends that the inference drawn by the District Commission was not in conformity with the evidence on record and even otherwise the District Commission ought not to have proceeded with the matter without touching upon the issue of limitation and belated impleadment of the company.  He therefore submits that the State Commission was justified in proceeding to reverse the order and consequently the order of the State Commission does not require any interference.

He then submits, even otherwise the expert evidence nowhere establishes a manufacturing defect and in such circumstances the State Commission was justified in setting aside the order of the District Commission.

Having considered the submissions raised, the claim of the petitioner/complainant was regarding the defects in the vehicle and for which he applied for an expert who was appointed and an expert opinion was tendered as referred to hereinabove.  The said expert opinion indicates that upon having checked the vehicle, there were no other defects but the wobbling of the wheels was not rectified and therefore an inference was drawn that this continuance of the wobbling was on account of a manufacturing defect in the structure of the vehicle.  This expert opinion and its contents does not seem to have been questioned before the District Commission.  The defence taken by the manufacturing company is that they were belatedly impleaded and therefore they had no opportunity to do so.  This argument has to be noted for being rejected, inasmuch as it is not the case of the manufacturer that it had not been made a party to the proceedings or had not been permitted to take any objection to the same.  The contention raised is that a copy of the inspection report had not been provided.  Be that as it may, it was open to the manufacturer to have obtained a copy and filed an objection to the same as it was on record.  Nonetheless, this opportunity was very much available at the stage of appeal that was filed by the manufacturer.  The appeal having been filed without challenging the contents of the report of the expert, was yet another deficit on the part of the manufacturer whose appeal has been allowed only on the ground that they had been belatedly impleaded and that principles of natural justice had been violated.   

In our considered opinion, the manufacturer had full opportunity to question the correctness of the report of the expert and there were no impediments, legal or otherwise, in questioning the same even at the stage of appeal.

However, what we find is that the issue of limitation was taken to the forefront little realising that the vehicle had been purchased in 2009 and the complaint had been filed in 2011 whereas the impleadment was made immediately after the expert opinion was obtained on 30.12.2012.  Thus, there does not seem to be any delay on the part of the petitioner/complainant in seeking impleadment of the manufacturer who had been introduced at the stage of trial well within time and who had the opportunity to question the correctness of the expert report which does not seem to have been done on the ground that a copy of the same had not been supplied.  As noticed above, this opportunity was fully available at the stage of appeal but the manufacturer does not seem to have questioned the contents of the expert opinion report.

The impleadment of the manufacturer was necessary as the issue of manufacturing defect impelled the arraigning of the manufacturer as it was a proper and necessary party.  The law on this is long settled by the Apex Court in the case of Udit Narain Singh Malpaharia v. Addl. Member Board of Revenue, 1962 SCC OnLine SC 130.  The provisions of CPC are not required to be invoked in summary proceedings under the Consumer Protection Act, 1986 keeping in view Regulation 26(1) of the Consumer Protection Regulations, 2005, extracted hereunder:

“26. Miscellaneous.-(1 ) In all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908):

    Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder.”

Even though it is for the plaintiff to choose a person against whom he wishes to seek relief, the Courts have leaned in favour of this choice on the doctrine of dominus litus coupled with their discretion to add or remove parties as no suit should be allowed to fail because of non-joinder or misjoinder of parties.  In the instant case, the petitioner/complainant rightly exercised the choice for the reasons above and therefore the District Commission was justified in allowing the impleadment of the manufacturer.

It is also imperative to comment on the issue of limitation raised and decided by the State Commission to absolve the manufacturer.  In our opinion, the defect and allegation of deficiency was existing as a cause and it was continuing even upon the filing of the complaint.  Consequently the bar of limitation for impleading the manufacturer would not apply on the facts of the present case.  The cause was continuing regarding the alleged defect as explained by the Apex Court in the case of Samruddhi Cooperative Housing Society Limited Vs. Mumbai Mahalaxmi Construction Private Limited, (2022) 4 SCC 103, Paras 11 to 18.  The report of the expert having arrived during trial therefore required the impleadment of the manufacturer.   

Having said so, coming to the expert report itself, we find that the opinion indicates an inferential conclusion about there being a defect in the structure.  Whether this amounted to a manufacturing defect or not was held in favour of the petitioner/complainant by the District Commission on the ground that the expert opinion indicated that the defects which were pointed out by the petitioner/complainant could not be removed inspite of the vehicle being repeatedly sent to the dealer.  The question as to whether the expert opinion report was worth relying upon or not, was not examined by the State Commission at all nor did the manufacturer question its correctness at the stage of appeal.

Consequently, the correctness of the expert opinion report was not examined either factually or otherwise by the State Commission while disposing of the appeal, and which in our opinion was essential and core to the controversy.  Instead, the State Commission proceeded to allow the appeal on the technical issue of limitation and the belated impleadment of the manufacturer.   

Mr. Tiwari, learned for the respondent no.3/manufacturer has urged that the vehicle had also met with an accident on 06.02.2010 which aspect has not been taken into account.  This has been countered by the learned counsel for the petitioner/complainant contending that this date of accident is much beyond the period when the defects had been pointed out in 2009 itself and raised long before the accident.  This issue shall also be examined by the State Commission.

For the reasons given hereinabove, we do not agree with the findings recorded by the State Commission and we accordingly set aside the order of the State Commission dated 22.04.2014 passed in First Appeal No. 1 of 2013 and remand the matter back to the State Commission for decision afresh in the light of the observations made hereinabove, preferably within six months, for which the parties shall appear before the State Commission for fixing a date on 01.10.2024.

The revision petition is accordingly allowed and the matter is remanded to the State Commission.