This revision petition has been filed by Skoda Auto India P. Ltd. & Anr. against the order dated 09.10.2013 of the State Consumer Disputes Redressal Commission, Kerala, (in short ‘the State Commission’) passed in Appeal No.73/13. 

2.      Brief facts of the case are that the respondent/complainant purchased a vehicle Skoda Octavia Elegance-AT 1.9 TDI Diesel car in the year 2005.  The vehicle started giving trouble and the complainant contacted the opposite party, Skoda Auto India Pvt Ltd. The delivery was taken on 01.01.2005 and the vehicle was repaired from time to time particularly the transmission assembly was replaced in July, 2005. Even after this, vehicle again started giving trouble. Therefore, the complainant filed a complaint bearing No.417/2005 before the Consumer Disputes Redressal Forum, Kozhikode, (in short ‘the District Forum’).  The complaint was resisted on the ground that they have already replaced the transmission assembly and the vehicle is being run by the complainant without any trouble.  The District Forum, also appointed an expert, who submitted his report in the year 2010.  Then the District Forum, finally partly allowed the complaint vide its order dated 07.11.2012 as under:-

“Hence we are of the opinion that complainant is entitled for a compensation of Rs.50,000/- for his mental agony.  Complainant has already deposited Rs.12,500/- half the bill amount issued by the opposite party on 30.07.2010.  We are of the opinion that as the complainant had to get the vehicle repaired continuously he is not liable to pay the bill amount of Rs.25,047/- to the opposite party.  Moreover complainant is at liberty to get released the mount of Rs.12,500/- in his favour from the forum.  Opposite parties are directed to pay Rs.37,500/- (i.e. After deducting 12,500/- from 50,000/-) which is ordered by the forum.  Opposite parties are directed to pay the amount within 30 days of receipt of copy of the order.”

3.      The complainant then preferred an appeal bearing No.73/13 before the State Commission, which has been decided vide impugned order dated 09.10.2013 as follows:-

       “In the result the appeal is allowed.  The impugned order of the Forum is modified to the effect that complainant is entitled to refund of the price of the vehicle i.e. Rs.13,51,039/- and Rs.40,000/- being the insurance and registration charges.  He is also entitled to a compensation of Rs.2,00,000/- and a cost of Rs.5000/-.Complainant is entitled to interest at the rate of 12% per annum from the date of this complaint till realization.”

4.      Hence the present revision petition.

5.      Heard the learned counsel for the parties and perused the record.

6.      Learned counsel for the petitioners stated that the vehicle was purchased in the year 2005 and the vehicle has run more than 1,00,000 kms.  Initially when the trouble was brought to the notice of the petitioners, the transmission assembly was replaced in the year 2005 as the vehicle was under warranty.  The expert appointed by the District Forum vide his report dated 09.10.2010 has found three major defects relating to transmission system mainly and therefore, the petitioners again replaced the transmission system free of cost and other repairs worth Rs.84,789/- were also not charged as is clear from the affidavit of the dealer dated 04.02.2015.  From the repair invoices, the learned counsel established that the vehicle had run 99,156 kms by 04.02.2012 and 1,38,435 kms by 30.9.2016.  The learned counsel argued that if vehicle has run about 1,38,435 kms and has run for about 13 years, there cannot be any question of manufacturing defect.   To support his contention the learned counsel for the petitioners relied upon the following judgments:-

1.   Maruti Udyog Ltd. Vs. Hasmukh Lakshmichand & Anr., III (2009) CPJ 229 (NC).  It has been held that:

  23. The vehicle was sold to the complainant in the year 1998. When the matter had come up before the State Commission, the vehicle had already run 20,000 kilometers. At the time of filing of the Revision Petition, it was stated in the Grounds of Revision Petition that the vehicle had run 80,000 kilometers. Today, in the Court, learned Counsel for the petitioner contended that the vehicle is still running and it had already run approximately 1,20,000 kilometers. This shows that the vehicle is in running condition and is being used by the complainant on regular basis. It also shows that there was no manufacturing defect in the car in question. Had there been a manufacturing defect, the car could not have run for nearly 11 years and covered approximately 1,20,000 kilometers. It seems that the complainant is only interested in getting the vehicle replaced but such request/wish cannot be granted.”

2.    Hyundai Motor India Limited Vs. Surbhi Gupta, 2014, RP No.2854 of 2014, 2014 SCC OnLine NCDRC 487.  It has been held that:

“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.  Had the suspected defect been serious, the owner of the vehicle would not have been able to drive it for more than 3½  years and to the extent of 48,689 kms. …………….”

3.        N.K.Sethi, (since deceased Thr. LRs.) Vs. Maruti Udyog Ltd. & Anr., III (2016) CPJ 670 (NC).  It has been observed:-

“7.     I have carefully gone through the records and have considered the arguments advanced by both the parties. It is important to note that the vehicle had run about 92000 kms till Sept 2007 and must have run more till now. Obviously, no case is made out for replacement of the vehicle at this stage. Had there been any serious manufacturing defect, it would not have been possible to run the vehicle for so many kilometers. The circumstances and later developments in the case have itself negated the order of the District Forum to a great extent. I do not find any justification for replacement of vehicle or reimbursement of the cost of vehicle which has already run for more than 92000kms in first five years and must have run more by now. On the other hand, I am of the considered view that the complainant has suffered lot of inconvenience and misery due to improper functioning of the vehicle right from the first day of purchase. No purchaser of a new vehicle would ever think that he would be going to garage to get the vehicle repaired so often even if the repairs may be minor.    If this has happened, the purchaser is definitely liable to receive some compensation for inconvenience and mental agony faced by him due to supply of vehicle having some defects. I find that the compensation awarded by the District Forum and upheld by the State Commission is reasonable and just. However, I am of the opinion that it must carry interest from the date of order of the State Commission.”

4.       P.C.Sunil (Dr.) Vs. Tata Engineering & Locomative Co. Ltd. & Anr., III (2016) CPJ 236 (NC).  It has been held that:-

“8.  Coming to the merits of the case, it is an admitted position that the vehicle had been driven by the complainant for more than 1 lac kms by the time it was examined by the Commissioner on 28.12.2010, the meter reading of that date being 106929. The said reading was 105495 when the vehicle was serviced on 08.09.2010. It is thus evident that there could be no serious defect not to talk of a manufacturing defect in the vehicle and that is why the complainant could drive it regularly for more than 1 lac kms. The State Commission noted in this regard that the vehicle was regularly taken for service and was being plied after the said servicing. It is also an admitted position that pursuant to the order of the District Forum dated 14.06.2002, the vehicle was taken for removing the defects pointed out in the report of the Commissioner, Ex. C-1. We are in agreement with the State Commission that in the absence of a finding as to which of the defects noted in the report, Ex. C-1 had not been rectified, there was no reason to pass the subsequent orders which the District Forum came to pass in this case. The expert appointed by the District Forum did not opine that the vehicle suffered from a manufacturing defect. It is only in a case of manufacturing defect that the manufacturer can be asked to either replace the vehicle or refund the sale consideration to the buyer. The normal defects which a vehicle develops due to regular use and wear and tear are to be rectified free of cost during the period of warranty but once that period is over, the buyer has to pay for any defect which the vehicle develops thereafter. In fact, the engine of a car otherwise becomes due for an overhaul, once it has been driven for more than one lac kms. The State Commission rightly felt that under the garb of seeking rectification of the defects mentioned in the report, Ex. C-1, the complainant was seeking rectification of the defects which the vehicle developed thereafter. Such defects could not have been addressed by the District Forum in the execution petition filed before it.”

5.    Classic Automobiles Vs. Lila Nand Mishra & Anr., I (2010) CPJ 235 (NC).  It has been held that:-

“14.  It has been observed that the car was brought for repairs/rectifications repeatedly within the warranty period which shows that there was a manufacturing defect. Manufacturing defect would be a defect without which the car cannot function.  There was no complaint regarding the functioning of the engine of the car.  The only problem was that the “check light” glowed on the indicator panel even during its normal running which was explained to the complainant/respondent No.1.  This defect cannot be termed as manufacturing defect with which the car could not run.  Glowing of “check light” cannot be termed as a manufacturing defect. 

6.  Sushil Automobiles P Limited Vs. Dr. Birendra Narain Prasad & Ors.,III (2010) CPJ 130 (NC).  It has been held that:

“6.  At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect.  Opinion of an expert body in such cases would be an essential input.  The Hon’ble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. …………………….......”

7.       Hyundai Motor India Ltd. Vs. Er. Gopal K. Sahi & Anr., III (2009) CPJ 131 (NC).  It has been held that:-

“16.    On the question of replacement of the vehicle, it is now settled that the manufacturer need not replace the car and only those parts, which are found to be defective, are required to be replaced.  This position emerges from the rulings upon which reliance has been placed and which have already been referred to above.  If the defect is found in any part of the vehicle, the said part can be replaced and the manufacturer cannot be asked to replace the entire car or to pay its total value. …………………………………………………………….”

7.      It was argued by the learned counsel that trial forum i.e. the District Forum has not found any manufacturing defects in the vehicle and the District Forum has commended the services given and prompt repairs done by the petitioners.  The petitioners had already paid the amount ordered by the District Forum to the complainant.  It was argued that the State Commission has wrongly recorded certain facts  e.g. the State Commission has recorded that the vehicle was still with the workshop/garage, whereas the vehicle was handed over to the complainant in the year 2012 itself. Learned counsel stated that the State Commission has based its judgment on the judgment of Hon’ble Supreme Court in C.N. Anantharam Vs. Fiat India Limited and Ors., (2011) 1 SCC 460. In this judgment the vehicle had run 800 kms, whereas in the present case vehicle has run about 1,38,435 kms.  Thus, the judgment of C.N. Anantharam (supra)  is not applicable in the facts and circumstances of the present case and the State Commission has erred in applying the judgment in the present case.

8.      On the other hand learned counsel for the respondent/complainant stated that the vehicle was purchased in January, 2005 and its transmission assembly was replaced in July, 2005.  This fact itself demonstrates that the vehicle had manufacturing defect because the opposite parties have not alleged that any mishandling was done by the complainant. It is immaterial how many kms. the vehicle has covered, because the complaint was filed in the year 2005 itself and the position is to be seen with respect to the period when the complaint was filed.  If there is a delay in decision of the consumer forum, the complainant is not responsible for the same.  In support of his arguments, the learned counsel relied on Satish Kumar Pal Vs. State of U.P. and Ors., 2008 4 AW C3596 ALL wherein the following has been observed:-

“13.  The principle of actus curiae neminem gravabit is founded on common sense to maintain public faith in the administration of justice In Broom’s Legal Maxims (Tenth Edition) Indian Economy, actus curiae neminem gravabit has been elaborated as under: to reproduce:

          The preceding examples will probably be sufficient to illustrate the general doctrine, which is equally founded on common sense and on authority, that the act of a Court of law shall prejudice no man; and in conformity with this doctrine, it has been observed, that, as long as there remains a necessity, in any stage of the proceedings in an action, for an appeal to the authority of the Court, or any occasion to call upon it to exercise its jurisdiction, the Court has, even if there has been some express arrangement between the parties, an undoubted right, and is, moreover, bound to interfere, if it perceives that its own process or jurisdiction is about to be used for purposes which are not consistent with justice (k).”

9.      The learned counsel further stated that the expert appointed by the District Forum has given the details of shortcomings in the vehicle and has also concluded that it is not certain whether the change of the transmission assembly would fully rectify the defect. The defects of the vehicle are evident as the vehicle required frequent repairs even after change of transmission assembly in the year 2005.  Thus, even though the transmission assembly was again changed in the year 2012, it was not final and permanent solution as the vehicle was again taken to workshop many times.  Leaned counsel further stated that now the vehicle further requires some huge money for repairs.

10.    It was pointed out by the learned counsel for the respondent that the expert in his report has clearly stated that the vehicle has gone for repairs for many times and that Rs.3.25 lakhs were required to repair the vehicle at that time.  It was stated that the complainant has already received the amount ordered by the District Forum under protest.  The vehicle has remained with the workshop for repairs on many occasions and for large periods.  When the vehicle was inspected by the expert it was not in a position to move and the same was towed to the workshop as is clear from the report of the expert.  This was in the year 2010 and the vehicle was given back after repairs on 05.02.2012.  Thus, the vehicle remains for two years in the workshop/garage and the complainant was deprived of the facilities of the vehicle during this period.  Learned counsel further drew attention to the evidence and cross examination of RW-1, who has accepted that all the defects of the vehicle could not be removed and the vehicle had inherent defects.

11.    Learned counsel also emphasised that in the evidence of RW-1, it has been accepted by RW-1 that as the model was not successful the Company had withdrawn this model.  If a model is withdrawn from the market, it simply means that the model was not successful i.e. there were inherent defects in the model. Learned counsel referred to judgment of Hindustan Motors Limited and Ors. Vs. Siva Kumar & Ors., (2000) 10 SCC 654, wherein Hon’ble Supreme Court has refunded the purchase amount of the vehicle.  Learned counsel further argued that frequent defects are also considered the deficiency in service as held by this Commission in Mohini Wheat Products Vs. Nalanda Agro work & Ors. I(2008) CPJ 65(NC).

12.    Moreover, the learned counsel argued that long use of defective car will not disentitled the complainant for relief, which he is otherwise entitled to.  In this regard the learned counsel referred to the following judgment:

Hyundai Motors India Ltd. Vs. Affiliated East West Press Pvt. Ltd., 1(2008) CPJ 19 (NC). It has been held that:

“27.    It 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.  Hence, there is no question of deducting any amount in the present case.”

13.    Learned counsel for the respondent further mentioned that no burden of proof rests on the complainant, once he discharges his initial onus as the onus shifts upon manufacturer to disprove manufacturing defect.  In the instant matter RW1 has admitted  manufacturing defects and the opposite parties have not been able to disprove the inherent defects. 

14.    It is seen from the judgments referred to by the learned counsel for the respondent that case of Hindustan Motors Limited and Ors. (supra) there was already an order for replacement of car and as the model was stopped for production. The Hon’ble Supreme Court has allowed the cost of the original vehicle.  It does not imply that the cost has been refunded because the model was stopped for production.  It is true that if there are frequent failures in the vehicle there is certain deficiency on the part of the opposite parties and this contention of the learned counsel supported by the order of this Commission in Mohini  Wheat Products (supra) is being given due consideration in deciding the present revision petition.

15.              So far as the question of replacement of new car, which has already run for long year is concerned in first case by the learned counsel in Hyundai Motors India Ltd.(supra) the vehicle has travelled for only one year whereas in the present case the vehicle has run more than 13 years.  

16.    I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record.  It is true that the vehicle was purchased in January 2005 and the transmission assembly was replaced by the opposite parties in July, 2005 itself.  It clearly goes on to show that there was some serious defect in the new vehicle purchased by the respondent.  It is also seen that the vehicle has gone to workshop for repairs for many times and the expert in his report dated 09.10.2010 has also found many defects in the vehicle though the major defects related to the transmission system.  Though the petitioners had replaced the transmission assembly again in 2012, the vehicle was not even giving optimum performance and the complainant was still getting the repairs done.  It is also seen from the report of the expert that when he inspected the vehicle the vehicle was not moving and it was towed to the workshop for the repairs where it has taken about two years for repairs.  Though no payment was taken from the complainant by the petitioners for replacing transmission assembly in the year 2012 and for undertaking other repairs for Rs.84,789/-, yet the fact is that the complainant remained denied of the facility of a vehicle during these two years. 

17.    It is also true that the vehicle has now run 1,38,435 kms and thus, there cannot be a manufacturing defect in the vehicle. In observing this I am relying on decisions of this Commission which have been relied upon by the petitioners. It is true that the position of the vehicle when the complaint was filed is to be seen and at that time the transmission assembly was replaced under warranty.  The warranty of the vehicle only allows replacement of the component and accordingly transmission system was replaced. So, at that time  it was  definitely not a case of total replacement of the car.  Clearly the District Forum, therefore, did not allow the replacement of the car or refund of the total price of the car at that time.  However, the history of repairs of the car clearly reveals that the complainant had suffered mental agony as well as harassment and was deprived of the facility of using a new car.  No purchaser of a new car expects this sort of mental agony after purchasing a new car. Clearly in the intervening period when the expert inspected the vehicle the vehicle was found in unusable condition as it was towed to workshop for repairs and the vehicle was handed over approximately after about 2 years.   Clearly the vehicle has run 1,38,435 kms and no case is made out for replacement. However, as the vehicle was in a sub-optimal condition, the complainant had been denied the facility of good running car.  In these circumstances, the complainant deserves compensation.  The expert had given an estimate of Rs.3.25 lakhs at that time for full repairs of the car and after that the major component of transmission assembly has been replaced by the opposite party.  Even after that, the vehicle is not performing well as stated by the complainant and observed by the State Commission.  It is also correct that the State Commission has observed wrongly that the vehicle was with the opposite parties, whereas, the vehicle was already given back on 05.02.2012 to the complainant. 

18.    Based on the above considerations and in the facts and circumstances of the case, in my view a compensation of Rs.3,00,000/- (rupees three lakhs only) would be reasonable and sufficient and the petitioners/opposite parties are liable to pay this compensation to the complainant.  Accordingly, the revision petition is partly allowed and order dated 9.10.2013 of the State Commission is set aside and the petitioners/opposite parties are directed to pay a sum of Rs.3,00,000/- (rupees three lakhs only) over and above the amount already paid by the opposite parties in compliance of the order of the District Forum as compensation to the respondent /complainant within a period of 45 days from today.  If the amount is not paid within 45 days, the amount of Rs.3,00,000/- shall carry an interest of 8% p.a. from the date of this order till actual payment.  No order as to costs for this revision petition.