ORDER

REKHA GUPTA

Revision Petition No. 2920 of 2013 has been filed by the petitioner/complainant against the order dated 30.04.2013, passed by Punjab State Consumer Disputes Redressal Commission, Chandigarh (short, “State Commission”) in First Appeal Nos.1140/2010 & 585/2010.

2.       The facts of the present case as per complaint are that the petitioner/complainant purchased a Bolero SLX made Mahindra & Mahindra Chassis No.82G10444, Engine No.GA84G41190 bearing Registration No.PB-12 K-7856 from the respondents/opposite parties on 6.8.2008. The vehicle Bolero had a manufacture defect. Whenever there was rain, water drops from the rear side of the dashboard and doors would fall on the front mats and within few minutes it would become a pool of water inside the vehicle.

3.       The petitioner on number of times gave his vehicle to the respondent no.2/opposite party no.2 for the repair of above mentioned problem but till today the same problem exists.  First time when the petitioner detected the problem in September, 2008, he brought it to the notice of respondent no.2 on 4.9.2009, then the vehicle was held up for 2 days by the respondent no.2, but the problem was not rectified.  The petitioner brought this fact to the notice of respondent no.1/opposite party no.1 at customer care through E-mail.

4.       Till December, 2008 the vehicle was held up by the respondents 2-3 times for more than 3-4 days on every occasion for repair and in lieu of that no alternative vehicle was provided to the petitioner. Yet the problem was not rectified by the respondents.  Moreover, during the time of repairs the ceiling of cabin, floor mats of driver side had been totally filled with dust and two plugs of dashboard assembly to cover the mounting bolts had been misplaced by the respondent no.2.  The above facts and circumstances were explained and brought to the notice of the Customer Care Centre of the respondents by the petitioner on various occasions, but no one turned up for feedback.  When the problem was not handled/repaired by the respondents, the petitioner demanded from the respondents that they either change the vehicle or refund the price of the vehicle. The petitioner was instructed by the respondents to wait for same time as the demand of the petitioner had been forwarded for further action.  In his complaint before the District Forum, petitioner prayed that in the interest of justice, the respondents should be directed to pay him the following relief :

1. Replace the vehicle with new one or refund the price of the vehicle Balero SLX Rs.6,00,000/-
2. Rs.2,00,000/- as compensation for the harassment, inconvenience, frustration and mental agony suffered by the petitioner.
3. Rs.5,000/- towards cost of litigation and other expenses.

5.       Respondent no.1 in their reply before the District Forum raised the following preliminary objections/submissions ;

• That there has been no deficiency in service on the part of the respondent at any point of time, which is a condition precedent for filing the present complaint under Consumer Protection Act, 1986, and as such, the complaint is not maintainable on merits.
• That the complaint against the opposite party no.1 is false and frivolous to the knowledge of the complainants and merits dismissal with heavy costs.
• That the matter does not fall within the provision of Consumer Dispute, which is against a condition precedent for maintaining the complaint under Consumer Protection Act, 1986 as such the complaint is not maintainable and merits dismissal.
• That since a complicated question of law and evidence has been involved in the present case and a lengthy process of examination and cross examination of witnesses including summoning of witnesses and record which will be voluminous and as such, the Forum has no jurisdiction to try and decide the present complaint.
• That before the delivery of any new vehicle to a customer, a complete check-up of the vehicle is done by a team of technical experts, where each and every part of the vehicle is checked for any defects.  Therefore, there is no scope of having any technical defect in the vehicle.
• That whenever the complainant had raised the issue of any kind water leakage with the answering respondent no.2, mainly being on 4.9.2008, 9.13.2008, 21.10.2008, 11.11.2008, 3.3.2009 and 27.4.2009, the same were than rectified to the satisfaction of the complainant and satisfaction notes to this effect have been signed by the complainant.
• That the complainant had bought the said vehicle in question for servicing on the 28.7.2009 and 13.10.2009 and on both the said occasions no complaint as to any water leakage was reported by the complainant.
• That due to the above mentioned reasons the said vehicle in question cannot be replaced with a new one or a refund of the price of Bolero SLX amounting to Rs.6,00,000/- can be made.

Thereafter on the facts of the case, they stated that ;

• There were no water drops falling from the rear side of the dash board and doors on the front mat during rains, which could have resulted in formation of water pool inside the said vehicle.  Further each and every vehicle is completely checked by a team of experts before delivery.  It is also submitted that the defect which was mentioned by the complainant was not in nature of manufacturing defect. It was caused due to bad handling of the vehicle which cannot be said to be a manufacturing defect.
• It was admitted that the complainant had given the said vehicle for mandatory servicing on various occasions, where he had highlighted the said problem of water leakage, but the same was rectified to the satisfaction of the complainant and it was informed to him that it occurred due to bad handling of the vehicle and satisfaction notes to that effect were signed by the complainant.
• The complainant did not visit the respondent no.2 on 28.2.2009 therefore, no claim of any sought was raised by the complainant.  Further, the complainant had given his car for servicing on the 13.10.2009 and the complainant did not report of any water leakage and the said vehicle was delivered to the complainant to his satisfaction.

6.       Respondent no.2/opposite party no.2 while raising the some preliminary objections, on merit stated that ;

• The complainant had lodged a complaint regarding that ‘water enters in the vehicle’ at the time of rainy season.  Whenever the complainant came with the above said water leakage problem, the qualified engineers of the opposite party satisfied the customer by water spray test and the complainant after fully satisfying himself had signed the satisfactory vouchers.

7.       District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (short, ‘District Forum’) vide their order dated 11.3.2010, allowed the complaint and passed the following order ;

       “As regards the second point, not even a month had passed, when the jeep started leaking in the first rain itself.  The matter was reported to the opposite parties who have admitted the same in their written statements.  They, however, say that the defect was rectified.  Keeping in view the stand taken by the opposite parties in their written statement, the answer to the second point is also in the affirmative as the opposite parties have put forth a contradictory stand.  Whereas on the one hand, they say that the vehicle was checked by specially trained mechanics, on the other hand they are themselves admitting the fact that the water leakage problem in the jeep of the complainant was rectified time and again to the satisfaction of the complainant.  This stance of the opposite parties goes on to prove that there was defect in the jeep which they have not been able to rectify.

    The opposite parties that when the jeep was brought to them on 28.7.2009 and 13.10.2009 for service, the complainant did not report the defect in question to them.  However, it is only during rain that water seeps into the body of the jeep through backside of the dash board. It appears that there was no rain on the aforesaid two dates and the problem was not reported.  The CD of the interior of the glove box in the dash board of the jeep meant for keeping articles therein has been seen by us and clearly shows water being taken out of the same. The opposite parties are not proved to have been able to solve the problem of leakage through dash board and obviously it is a manufacturing defect.  The opposite parties are clearly guilty of deficiency in service as manufacturer and dealer of the jeep are liable either to replace it or to pay its price to the complainant.

For the reasons recorded above, the complaint is allowed. The opposite parties are directed to replace the jeep in question with a new defect free jeep of the same specifications within a period of one month from the date of receipt of a certified copy of this order, failing which they shall be liable to refund to the complainant its sale price to the tune of Rs.6,00,000/-.  In the second eventuality if the opposite parties do not refund the sale price of Rs.6,00,000/- to the complainant within two months from the date of receipt of a certified copy  of this order, they shall be liable to pay interest thereon @ 9%  p.a. from the date of institution of the complaint i.e. 23.9.2009 till the date of payment.  Since, the complainant has been plying the jeep so far, no separate compensation for harassment is allowed to him.  He is, however, allowed litigation costs to the tune of Rs.2,500/-.  The liability of both the opposite parties to comply with this order shall be joint as well as several.”

8.       Aggrieved by the order of the District Forum, respondent no.1 filed  appeal No.585 of 2010 and respondent no.2  filed appeal No.1140 of 2010 before the State Commission.  State Commission, vide their order dated 30.4.2013, modified the order of the District Forum holding that ;

    “The version of respondent no.2, as made out from its appeal i.e. FA No.1140 of 2010, that it is only a dealer and not the manufacturer and the liability regarding the manufacturing defect, if any, is of the manufacturer respondent no.2 has only sold the vehicle as received from the appellant, Mahindra & Mahindra Co., who is manufacturer and the order passed by the District Forum is liable to be set aside.

Respondent no.1 has been complaining time and again.  The major defect is in the dashboard and the doors and it is settled law that the defective parts are only required to be replaced.  The District Forum, instead of following the law laid down by the Hon’ble Supreme Court, ordered the appellant and respondent no.2 to replace the jeep in question with a defect free new jeep failing which, to refund the sale price to the tune of Rs.6 lakhs.  The District Forum also awarded interest and litigation costs. The order of the District Forum is not sustainable in the eyes of law.  Way back, the Hon’ble Supreme Court is case reported as “Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr.” 2006 (2) Consumer Law Today – 150 (SC) held that only the defective parts can be replaced, but not the whole vehicle.

In view of the above discussion and the law laid down, the present (Appeal No.585 of 2010) is accepted and the impugned order under appeal dated 11.3.2010 passed by the District Forum is modified to the extent that the appellant and respondent no.2 shall replace the dashboard and the doors through which the water is entering in the vehicle in question and is falling on the front mats, with a new dashboard and doors and shall make sure that no water/water drops enter through the dashboard or the doors and collect on the mats.  The appellant and respondent no.2 are also directed to pay compensation of Rs.20,000/- each to respondent no.1/complainant along with Rs.10,000/- as litigation expenses, jointly and severally.  With this modification, the appeal stands disposed of.  Order be complied within 45 days of the receipt of copy of the order.

In FA No.1140 of 2010 – In view of the reasons and discussion held in FA No.585 of 2010 (Mahindra & Mahindra Ltd. Vs.Satnam Singh & Anr.) the First Appeal No.1140 of 2010 (Goel Motors Pvt.Ltd. Vs.Satnam Singh & Anr.) is partly accepted and the impugned order under appeal dated 11.3.2010 passed by the District Forum is modified to the extent mentioned above.”

9.       Hence, the revision petition.

10.     The main grounds for the revision petition are that ;

• That the present respondent no.1/opposite party no.1 has admitted in their reply to the complaint in para no.7 of the preliminary objections and in para no.2 and 3 of the reply on merits admitted the fact that the present appellant/complainant has reported the problem in vehicle to them.  The respondents/opposite parties further also admitted that they have many time rectified the said problem.  But despite keeping the vehicle for days the respondents/opposite parties failed to rectify the problem meaning thereby the problem in question is a manufacturing defect and change of some part of the vehicle in question is of no use.  If the problem in the vehicle was rectified by changing some part, the respondents/opposite parties must have changed the same at very early stage. 
• That the case set up by the respondents/opposite parties is that the problem occurred in the vehicle in question is due to the bad handling of the vehicle by the appellant and on the other hand the appeal filed by respondent no.2/opposite party no.2, the respondent has leveled allegation of fraud against the appellant/complainant that the complainant has filed the complaint just to extract money from the respondents/opposite parties.  Even after such type of serious allegation both the forums while deciding the matter found the respondents/opposite parties guilty of the facts mentioned by the appellant/complainant in his complaint.
• That since the day of the purchase of the vehicle in question till today the water is constantly coming inside the vehicle and only changing the dash board and the doors will not redress the problem of the appellant/complainant, rather it will give rise to some other problems as when the new dashboard will be installed the whole front body of the vehicle will also be destroyed as it has been done in previous repairs.
• That the appellant/complainant is fighting a long legal battle against the strong respondents since 2009, and did not want to give up the case by accepting the compensation.

11.     We have heard the petitioner in person and counsel for respondent and carefully gone through the record.

12.     The petitioner as well as counsel for respondents confirm that pursuant to the order of the State Commission, the petitioner had taken the vehicle for repairs and the repairs had been carried out as per the order of the State Commission to the satisfaction of the petitioner.  The petitioner, however, still expressed his dissatisfaction and stated that the rear window of the jeep had fallen down and the present vehicle posed a serious security risk.  He could not explain as to what were the present defects in the vehicle, which according to him were manufacturing defects.  He accepted that the vehicle was almost six years old as it was purchased on 6.8.2008.

13.     It appears from the conduct and arguments of the petitioner that nothing short of the replacement of the vehicle would satisfy the petitioner even though he could not establish that the vehicle had any manufacturing defects or even that the earlier defects persisted.

14.     Hon’ble  Supreme  Court  in  Mrs. Rubi  (Chandra)  Dutta  Vs.   M/s

United  India Insurance Co. Ltd. 2011 (3) Scale 654   has observed ;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”  

15.     Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act.  The  order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with no order as to cost.