1.      Revision Petition No.2768 of 2011 has been filed by the petitioner, Mandovi Motors Pvt. Ltd. against the order dated 15.02.2011 of the State Consumer Disputes Redressal Commission, Karnataka, (in short ‘the State Commission’) passed in Appeal No.258 of 2011.  Revision Petition No.1804 of 2012 has been filed by the petitioner, Maruti Suzuki India Ltd. against the order dated 02.11.2011 of the State Commission, passed in Appeal No.107 of 2011. 

2.      The brief facts of the case are that respondent No.1 in these two revision petitions, complainant purchased an Alto –LX car on 11.08.2009 from the opposite party No.2, manufactured by opposite party No.1 for Rs.2,95,540/-.  Son of the complainant drove the vehicle long distance and complained that the vehicle was making guddering noise when it was speeding beyond 70 kmph.  It was further found that at a speed of 100 kmph, the rattling and other noises increased, which was not normal for a new car.  The complainant then made the complaint about this defect with the dealer and as per the dealer the same was rectified.  However, the complainant was not satisfied and he filed a consumer complaint No.299 of 2009 before the Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore, (in short ‘the District Forum’).  The complaint was resisted by the opposite parties on the ground that there is no defect in the vehicle sold and manufactured by them.  The District Forum, finally decided the complaint vide its order dated 30.11.2010 by passing the following order:-

“The complaint is allowed.  Opposite Party No.1 and 2 is hereby directed to refund the entire amount of Rs.2,95,540/- (Rupees two lakh and ninety five thousand five hundred forty only) spent on the vehicle to the complainant on return to the opposite parties along with RC, insurance and other documents and also pay Rs.10,000/- (Rupees ten thousands only) as cost of the litigation expenses to the complainant.  The vehicle shall be returned to the opposite parties immediately on receipt of the above said amount.  The above direction shall be complied within 30 days from the date of this order.”

3.      Both the opposite parties No.1 and 2 preferred separate appeals Nos.107 of 2011 & 258 of 2011 before the State Commission. Appeal No.107 of 2011 filed by the opposite party No.1, Maruthi Suzuki India Ltd., was dismissed vide order dated 02.11.2011 of the State Commission.  Similarly, appeal No.258 of 2011 filed by the dealer, Mandovi Motors Pvt. Ltd., opposite party No.2, was also dismissed vide its order dated 15.02.2011 of the State Commission.

4.      Hence the present revision petitions.

5.      Learned counsel for the opposite party No.1/Maruti Suzuki India Ltd. stated that there was no manufacturing defect in the car manufactured by opposite party No.1 and sold by opposite party No.2 to the complainants. Every new car takes some time to adjust and that is why free services are provided by the manufacturing company/dealer.  If new car is run at a very high speed it will require some initial adjustments, which are taken up at the time of free servicing.  The only defect mentioned in the complaint is regarding juddering of the vehicle at a speed of 70 Kmph.  The vehicle was taken a few times to the workshop of the opposite party No.2, which took necessary care and every time rectified the defects/ problems that were told to them.  They assessed after rectifying of the defects the vehicle was running all right and the complainant was also satisfied.  However, later on he filed a consumer complaint. The District Forum has treated the alleged defect as manufacturing defect and has ordered payment of the full value of the car.  There was no expert report to prove that there was any manufacturing defect.  Moreover, the vehicle had run more than 30,000 Kms by the year 2013 and in a recent affidavit filed by the complainant on the direction of this Commission, it has been stated that the vehicle has run more than 49,000 km.  This clearly shows that the vehicle is in good running condition and is running satisfactorily and in these circumstances there cannot be any manufacturing defect in the vehicle.  The learned counsel referred to the judgment of this Commission in the matter of Ajay Kumar Thakur Vs. M/s. Jaiswal Motors & 2 Ors., RP 2942 of 2016 (NC), wherein this Commission has not allowed replacement of the vehicle or refund of the vehicle in similar circumstances, where a manufacturing defect was alleged and the vehicle was taken to workshop many times and its certain parts were changed. 

6.      The learned counsel for opposite party No.2, Mandovi Motors Pvt. Ltd. stated that he adopts arguments of learned counsel for opposite party No.1 to emphasise that there was no manufacturing defect in the car.  However, he further added that even if the Consumer Forum had found that there was some manufacturing defect, opposite party No.2, who is only a dealer cannot be held liable for any kind of compensation to be paid to the complainants.  Thus, the order of the District Forum is prima facie wrong wherein the liability for manufacturing defect has also been fixed on the dealer/opposite party No.2.  The learned counsel further mentioned that none of the job cards including those for free services as well, indicates any such complaint about the juddering of the vehicle at a speed more than 70 Kmph.  Certain adjustments are required when new vehicle is sold and the adjustments were carried out in the free services to satisfy the customer. Even certain parts were changed and the defect of juddering at a high speed was rectified.  Thus, no deficiency is attributable to the opposite party No.2.

7.      Learned counsel on behalf of the respondent No.1/complainant stated that the juddering of the vehicle was experienced right from the first day when the son of the complainant drove the vehicle to Bangalore, which was about 300 km. away.  The complainant’s complained to the nearby dealer/opposite party No.2. He had to take his vehicle several times, as mentioned in the complaint to the opposite party No.2 and several parts were changed one by one by the opposite party.  However, the defect could not be rectified.  It was not usual for a new vehicle to be taken to the workshop so often.  What defect is mentioned in the job card depends on the workshop personnel only.  The fact is that in order to remove the main defect of juddering at a high speed, opposite party No.2 had changed several parts which are  mentioned in the complaint.  Thus, there is no doubt that this was a manufacturing defect and the opposite party No.2 could not deal with it and could not rectify the same.  As the defect could not be rectified, it has to be treated as a manufacturing defect.  No expert report is needed in this case because the opposite party No.2 itself had tried to remove the defect, but failed. The judgments of this Commission in the matter of Ajay Kumar Thakur Vs. M/s. Jaiswal Motors & 2 Ors., (supra) referred to by the learned counsel for the opposite parties is not relevant in the present case.  In that case replacement was not ordered by the fora below and only compensation of Rs.25,000/- was awarded.  So far as the running of the vehicle is concerned, it has been argued by the learned counsel for the complainant that when the order of the District Forum was not complied by the opposite parties, there was no alternative for the complainant but to use the car anyhow.  Obviously, the car is not running satisfactorily as it suffers from the manufacturing defects and it cannot be driven at a high speed.

8.      I have carefully gone through the record and have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties.  It is true that the new vehicles are generally not advised to be driven at a high speed initially and they require adjustments, which are generally taken up in the free services. But on the other hand, it is also true that the defect was noticed by the complainant and he immediately approached the dealer/OP-2.  The ordeal of the complainant has been described in the complaint as under:-

“The complainant submits that the 300 kms journey from Sullia to Bangalore was nothing but Horrific.  Hence on 24/08/09 complainant’s son conveyed the message to the 2^nd Opp. Party and he was asked to get the vehicle inspected at the nearest Mandovi service centre at Bangalore.  Hence he took the car to Mandovi service centre, Yashwantpur two days later i.e., on 26/09/09.  The service personnel took test drive and confirmed the problem.  To the surprise they altered the engine timing & spark plug gap.  But they were unable to further check the vehicle at that speed within the city as it was peak hour late in the evening.  Then the complainants’ son was told to revert back if the problem reoccurred.  On the way back to house he discovered that the problem was still prevalent.  Thereafter the complainant’s son informed them again and he was asked to visit again.  This time they checked the tyres, rim bends, underbody damage so on & so forth.  On his further visits they checked wheel balancing & alignment, carried out wheel rotation, but all efforts in vain.  Still the problem continued and complainant’s son’s visit to Mandovi service sort of became a routine thereby affecting his job.  On 02/09/09, with a hope that the matter will be resolved the complainant’s  son took a day off & checked into Mandovi Bangalore branch again.  They suspected the problem might be with the tyres & hence replaced them with newer ones.  The problem seemed to have rectified.  So one of the front tyres was replaced with the spare tyre & at that moment the problem seemed to have vanished.  But astonishingly again the problem resurfaced and had to return to Mandovi, Bangalore.  They told that they need to check the stabilizer bar and as it was not readily available, they retained the vehicle.  After two days of trial run, it was concluded that the problem was with the Balancer shaft & not drive shafts.  Aptly the stabilizer bar was replaced as per job card dt. 03/09/09 and the vehicle was delivered to complainants’ son residence.  By this time the vehicle had run around 550-600 kms in total out of which around 250 kms of TRIAL/TEST RUN within the city, for which the running expenses were borne by complainant’s son.  It was baffling to notice that the next day problem was still prevalent and complainant’s son informed the service centre Bangalore.  Thereafter on 09/09/09 the car was again taken to Mandovi Bangalore and on 10/09/09 the wheel balancing was done.  Since the problem persisted car was again taken to Mandovi Bangalore and they changed drive shaft and fly wheel of the car.  Thereafter complainant’s son had registered a complaint with Opp. Party’s customer care department, and the complaint no is 9026004637.  They told that they will check the vehicle thoroughly, so they need at least 2 days.  The days passed on, but the problem remained elusive.  After 304 days they told that the problem was with the ENGINE FLYWHEEL & it needs to be changed and on the following day it was informed that the problem was “almost” rectified.  But there were vibrations juddering felt beyond in speeds excess of 100 kmph but not at 70 kmps.  It was also told that they have replaced even the “drive shafts (L & R) in addition to “flywheel” for purpose of checking.  Thereafter complainant’s son was informed that the vehicle was alright & can be delivered on 19/09/09.  During the period the vehicle had covered another 350-400 kms and 1^st free service was carried out as the vehicle had run more than 1000 kms. Then complainant’s some insisted for a trial run prior to delivery and his worst fears came true.  The Opp. Party’s Bangalore personnel was trying to convice that “slight” vibrations at 70kmp & the “massive” juddering at speeds in excess of 100kmph is normal in an Alto as it is a “light” car. And also it is more prevalent in an Alto LX as it is equipped with manual steering.  What is more puzzling was that Opp. Party’s Bangalore personnel was telling that beyond 80 kmps power steering has no power assistance.  Thereafter complainant’s son had no options left but to take delivery of the vehicle after “10 DAYS” of “testing”.  It is further submitted that the problem of juddering is more when the Air-condition is on.  Hence it is clear from the above repairs conducted and parts changed to the car, it has manufacturing defects which even Opp. Parties authorised service center is unable to rectify.  Further Opp. Parties have sold a defective car to  to complainant which amounts deficiency of service.”

 9.     From the above description of the events, it is clear that the opposite party No.2 had tried his best to remove the defects of juddering at a high speed, but was not successful even after replacing many parts.  Thus, it is clear that even if it is not treated as manufacturing defect, sufficient for replacing the vehicle or for refund of the full amount, it was a continuous defect, which gave problem to the complainant in driving a car at a high speed.  The car has by now run about 50000 km and the complainant has reaped the benefit of having a car for so many years.  As per the opposite parties, the defect was rectified.  However, the complainant has alleged that the defect continued and still persists.  No expert report was called by the District Forum and no expert report was filed by the complainant either. In these circumstances, it cannot conclusively be said that the vehicle suffered from manufacturing defect. The complete replacement or refund of its full value is not thus justified at this stage. However, there was a serious defect, which caused constraints in driving and mental agony to the complainant inspite of having purchased a new car. In these circumstances, complainant is entitled to get compensation for its constrained driving and mental agony suffered from the opposite parties.  I do not find much force in the arguments of opposite party No.2 that only opposite party No.1 should be liable for paying compensation because it was opposite party No.2, who actually undertook services as well as repairs of the vehicle, which were not to the satisfaction of the complainant.

10.    Based on the above discussion, these revision petitions Nos.2768 of 2011 & 1804 of 2012 are partly allowed.  The opposite party Nos.1 &2 are jointly and severally held liable to pay a compensation of Rs.1.50 lacs (Rupees one lakh fifty thousand only) to the complainant within a period of 45 days, failing which, this amount shall carry an interest @10% from the date of this order till actual realization.  Accordingly, orders of the fora below stand modified. The compensation and cost of litigation as awarded by the District Forum remains unchanged.