This revision petition has been filed by the petitioner Maruti Suzuki India Ltd., which was the opposite party No.3 before the District Consumer Disputes Redressal Forum, Chitradurga, (in short ‘the District Forum’) in the original complaint case no.98/2010 against the order dated 20.02.2014 passed by the State Consumer Disputes Redressal Commission, Karnataka, (in short ‘the State Commission’) passed in Appeal No.933 of 2011.

2.      Brief facts of the case are that the respondent No.1/complainant purchased a Maruti Suzuki Swift Dizire VDI car from respondent No.2/opposite party No.1 on 03.08.2009 for a consideration of Rs.5,81,088/-.  From the early stage of purchase of the vehicle the vehicle started giving trouble and there was a break down at 757 KMs.  The complainant kept the car in his compound and he approached respondent no.2 through telephone.  Opposite party No.1 informed him that he would send a mechanic on 17.08.2009.  On instructions, few persons came to the house of the complainant on 18.08.2009 and tried to start the vehicle but it did not start.  Opposite party No.1 then by towing the vehicle took it to Shimoga.  The complainant being not satisfied with the work carried out by opposite party No.1 addressed a letter dated 25.08.2009 requesting to refund the amount paid by him with interest from 03.08.2009 or for replacement of the vehicle with another new vehicle.  On 26.10.2009 also the car after running 1655 kms. broke down suddenly near Tumkur.  Opposite party No.1 was informed by the complainant.  Complainant then took the vehicle to Tumkur for repairing the same at a service center with a complaint of engine over heating but in vain.  It was alleged by the complainant that there was manufacturing defect in the car and the complainant went through mental agony and hardship.

3.      The complainant filed a consumer complaint before the District Consumer Forum, which was allowed vide its order dated 24.01.2011 as follows:-

          “1).    Complaint is partly allowed.

2).     The opponent no.1 and 3 are directed to deliver a new Maruthi Suzuki DZIRE VDI Car of the same Model and to pay life Tax, insurance and Registration charges to the complainant by retaining the complainant’s car bearing Reg. No.KA-16/M-4569 which is with the O.P.No.1.

3).     The opponent No.1 and 3 are jointly and severally liable to refund the Sale price of Car of Rs.5,81,088 with 10% interest from 3-8-2009 to the date of realization by deducting Rs.40,000/- paid by the opponent No.1 through D.D. dated 13/12/2009.

4).     The opponents 1 and 3 are jointly and severally liable to pay Rs.75,000/- compensation towards mental agony, communication and travelling expenses.

5).     O.P.1 and 3 shall pay Rs.4,000/- as cost of the complaint.”     

4.      Aggrieved with the above order of the District Forum, the opposite party no.3/petitioner herein filed an appeal bearing no.933 of 2011 before the State Commission, which was dismissed vide its order dated 20.02.2014.

5.      Hence the present revision petition.

6.      Heard the learned counsel for the parties and perused the record.  Learned counsel for the petitioner stated that the finding of manufacturing defect has been given by the fora below, however, there is no expert report which confirmed the manufacturing defect.  Learned counsel further stated that the order of the District Forum is based only on the fact that the dealer has not taken consent of the complainant.  It was further stated by the learned counsel that if there was any defect within the warranty period, it is only the defective parts, which are replaced and not the whole car.  In support of his contention, learned counsel referred to the judgment of Hon’ble Supreme Court in C.N.Anantharam Vs. Fiat India Limited and ors., (2011) 1 SCC 460, wherein the following has been observed:-

“18. In support of the aforesaid submissions, reference was made to the decision of this Court in Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra [(2006) 4 SCC 644], in which it was, inter alia, held that if the manufacturing defect was established, then replacement of the entire item or the replacement of the defective parts, is only called for. In fact, reference was made to the warranty condition which referred only to replacement of only the defective parts and not the car itself. This Court held that from the various documents exhibited it would appear that the  14manufacturer had indicated that it was necessary to download the engine to trace the problem which has been complained of, but there was no agreement to replace the engine. Moreover, when the manufacturer asked for the vehicle to be brought in for the purpose of downloading the engine, the Respondent did not do so and, accordingly, to infer that there was any manufacturing defect in the said background was without any foundation. However, the relief was moulded so that the defective part could be replaced without requiring the purchaser to pay any charge.

7.      Thus, it was stated by the learned counsel for the petitioner that the order of replacement of car is not justified.  The full engine was already replaced.  However, the car is still lying with the dealer and the complainant has not taken the car even after replacement of the engine.

8.      On the other hand, learned counsel for the respondent/complainant stated that the manufacturer and the dealer both have accepted the manufacturing defect in the car. The vehicle started giving trouble within 15 days of its purchase.  The vehicle was taken thrice to the dealer for repairs.   However, even after repair the vehicle gave the same trouble and finally it was agreed by the dealer and the manufacturer to replace the engine.  This Commission has already released the amount of Rs.6,00,000/- deposited by the petitioner to the respondent No.1/complainant on 09.04.2015.  The petitioner has filed one IA that an expert be appointed to examine the car and second IA has been filed that the complainant be directed to take the car from the dealer/workshop.  Learned counsel for the complainant stated that this application could have been filed when the case was at the initial stages.  The fact is that the vehicle has already become junked and no purpose will be served if any inspection is carried out by an expert at this time.    Even if the vehicle is repaired now, it cannot be restored to its original form, when it was purchased as a new vehicle.  The only remedy for the complainant is to get the payment of the price of the car.

9.       I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record.  This Commission has already allowed the disposal of the car by the opposite party vide its order dated 11.02.2015.  It is a fact that no expert report was sought.  It is seen that the opposite party No.1/dealer has already given Rs.40,000/- to the complainant.  Moreover, District Forum has observed the following:-

42.   … He had taken a private vehicle on hire basis for which he incurred more than Rs.50,000/- as traveling expenses.  So Opponents No.1 to 3 are jointly and severally liable to pay the loss caused to the complainant.  The acts of the Opponents No.1 to 3 has caused mental shock and agony to complainant.  As such they are liable to pay the compensation.  Many of the complaints of the vehicle is admitted by O.P.No.1 & 3, & they replaced the engine assembly without consent and they made delay in attending those complaints.  Under the said circumstance, separately Expert report is not necessary, even though authorised dealer repaired defects subsisted, which show that there is a manufacturing defect in the vehicle. ..”

10.    The District Forum has also given the following details as admitted by the opposite party No.1:-

“18.   The complainant has not given permission for repair of the vehicle for inspection of the vehicle to the O.P.No.1. But on 22/8/2009, the complainant has intimated the O.P.No.1 through phone permitting to open the Engine and do necessary inspection of Engine.  Accordingly vehicle engine was opened on 22/8/2009 and observed that there is a problem in “Head Gasket” due to excess over heat……….”

11.    From the above, one thing is clear, that the engine was not functioning well and was getting heated while running.  Thus, clearly there was a manufacturing defect.  It is true that under warranty clause defective components are to be changed as held by the Hon’ble Supreme Court in C. N. Anantharam Vs. Fiat India Limited & Ors. (2011) 1 SCC 460.  In the present case, clearly, the engine was defective and therefore, the same should have been replaced by the opposite party at the first instance. Though the engine was replaced by the opposite parties later on, however, the complainant did not accept the car and filed a consumer complaint. The engine is a major part of the car and now the vehicle has been ordered to be disposed of by the petitioner and as the vehicle would have lost its character as a new vehicle if not already become a junk, therefore, there seems to be no question of ordering possession of vehicle to be taken by the complainant at this stage.   It is the case of the opposite party that engine was changed on 20.05.2010 and the car was made totally roadworthy.  When person purchases a new car and some defect is found in the engine of the car, the whole zeal and enthusiasm as well as the satisfaction of having a new car goes away.  The person has to suffer lot of mental agony and physical harassment while going to the workshop many times for repair in connection with the manufacturing defect.  This Commission has already released Rs.6,00,000/-, deposited by the petitioner with this Commission vide order dated 09.04.2015 and also ordered the petitioner to dispose of the car. In a way, the car has been given for disposal to the petitioner and whatever money is received after disposal that will be of the petitioner.  Rs.40,000/- was already paid by the opposite party No.1/dealer to the complainant.  Thus, the complainant has already received a sum of Rs.6,40,000/- in total.  As the car would become 10 years old now and the vehicle is lying with the dealer, if not yet disposed there is no point in ordering the return of the car to the complainant when this Commission has already ordered for disposal of the car by the petitioner.  The only way to compensate the complainant is to give compensation in lieu of the manufacturing defect in the car.  In my view, the balance of justice would be achieved, if the complainant is allowed to retain Rs.6,00,000/- released by this Commission on 09.04.2015 and the car or its sale value is  retained by the petitioner.  Accordingly, the order of the District Forum and the State Commission stand modified.  No further payment shall be made by the petitioner/opposite party to the complainant.  The order relating to award of Rs.75,000/- by the District Forum is set aside.  However, the petitioner shall pay the cost of litigation of Rs.4,000/- ordered by the District Forum to the complainant.   Revision Petition No.2680 of 2014 is disposed of in terms of this order.