APPEARED AT THE TIME OF ARGUMENTS

In R.P. No. 1164-1165/2011

In R.P. No. 2235-2236/2011

PRNOUNCED ON:     29^th   APRIL,  2016

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          These revision petitions have been filed against the impugned order dated 10.01.2011, passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as “the State Commission”) in First Appeal No. 736/2005, M/s. Maruti Udyog Ltd. vs. Maman Chand & Ors. and in First Appeal No. 913/2005, M/s. Apra Auto (India) Pvt. Ltd. & Anr. vs. Maman Chand & Ors., vide which, while disposing of the said appeals, the order dated 01.03.2005, passed by the District Forum in consumer complaint no. 418/2003, allowing the said complaint, was ordered to be modified. 

2.      In brief, the facts of the case are that the complainant, Maman Chand purchased a Maruti Van Car (Omni), registration no. HR36E3513 from the opposite party no. 2 and 3, dealer, Apra Auto India Pvt. Ltd., manufactured by the opposite party no. 1, Maruti Udyog Ltd. on 28.05.2003.  The complainant alleged in his consumer complaint that the said vehicle was suffering from a number of defects from the very beginning. There was noise in the engine, bubbling in the wheels, slippage of gear, low pick up, less mileage and leakage of oil from the engine of the vehicle.  The complainant brought these defects to the knowledge of respondent no. 2, who assured him that there were minor defects in the vehicle, which would be removed after one or two services.  The complainant had the first service of the car done on 06.06.2003 and the second service on 18.07.2003, when he was assured by the opposite party no. 2 that the vehicle shall run properly in future, otherwise they shall get the vehicle changed.  The complainant alleged that when he was going with his family in the vehicle on 20.07.2003, it broke down at 7.00 pm on the same day.  The complainant was put to a lot of harassment, as he had to spend the whole night near the vehicle and on the next day, he brought the vehicle to the opposite party no. 2, after paying the towing charges.  It is the say of the complainant that despite contacting the opposite party no. 2 several times, they did not take adequate steps to repair the said vehicle.  He, therefore, filed the consumer complaint in question, seeking direction to the opposite parties to change the vehicle or to refund the actual price of the vehicle alongwith 18% interest, besides compensation against mental harassment amounting to Rs. 2 lakhs and Rs. 5,500/- as cost of litigation.

3.      The complaint was resisted by the opposite party no. 1, Manufacturer, by filing the written version before the District Forum in which, they stated that there was no negligence or deficiency in service on their part.  Further, the complainant had concealed the material facts that he drove the vehicle in deep water-logging, which resulted in hydrostatic locking due to ingress of water in the engine compartment.  The Service Engineer found the cylinder block cracked due to ingress of water.  There was presence of water in the air filter and moisture in the spark plug.  The complainant was, therefore, told that the engine had broken down due to his own negligence and carelessness and hence, the job could not be done under the warranty.  The District Forum, after taking into account the contentions raised by the parties and considering the documents on record, allowed the consumer complaint, saying that the vehicle had inherent manufacturing defects and it required replacement.  It directed the respondent to replace the vehicle in question, failing which, the complainant will be entitled to recover the actual price of the vehicle, alongwith interest @ 9% per annum from the date of filing the complaint.  A compensation of Rs. 40,000/- for mental harassment/agony and Rs. 400/- as litigation charges were also awarded to the complainant.  The District Forum relied upon the report of Sh. Satpal, machinery expert, whom they had appointed as Local Commissioner to examine the vehicle.

4.      Being aggrieved against the order of the District Forum, the petitioner/manufacturer as well as the opposite parties no. 2 and 3 challenged the same in appeal before the State Commission.  The State Commission disposed of the two appeals with the directions that only the engine of the vehicle should be replaced by the opposite parties and not the entire vehicle.  They upheld the order for giving compensation of Rs. 40,000/- to the complainant.  Being aggrieved against the said order, the opposite party no. 1, Maruti Suzuki India Ltd./manufacturer is before this Commission by way of Revision Petitions No. 1164-1165/2011.  The complainant has also challenged the said order by filing revision petitions no. 2235-2236/2011. 

5.      During hearing before me, the learned counsel for Maruti Suzuki India Ltd., stated that the vehicle was brought to the workshop of opposite parties no. 2 and 3 on 06.06.2003 and 18.07.2003 for service and at that time, there was no specific complaint about the vehicle, although the vehicle had travelled 1024 kms, just within a few days, when the vehicle was brought for first service on 06.06.2003.  The vehicle had travelled 5008 kms, when it was brought for second service on 18.07.2003.  Referring to the case of the complainant that the vehicle came to a halt on 20.07.2003, the learned counsel stated that the same was due to ingress of water in the vehicle and not due to any manufacturing defect.  Referring to the report of the Local Commissioner, Sh. Satpal, appointed by the District Forum, the learned counsel stated that the said report was not based on any technical test or analysis.  The report was evidently without any solid basis and in any case, the Commissioner had no locus-standi to recommend that the vehicle should be replaced.  The opposite party/respondent no. 1 had filed written objections to the inspection report of the Local Commissioner before the District Forum, in which, it was mentioned that the said Satpal had no facilities for testing the quality of the particular component and he did not have any qualification of an approved laboratory.  The learned counsel also stated that the insurance claim filed by the complainant had also been rejected.  Referring to the negligence of the complainant in the matter, the learned counsel further stated that they had sought cross-examination of the surveyor before the District Forum, but his request was not accepted.  They had also requested the District Forum that the matter should be referred to an appropriate laboratory for getting the report, but the request was declined.  The learned counsel, further, stated that the vehicle in question was being driven by a hired driver and hence, it was being used for a commercial purpose.  The learned counsel further stated that the complainant had not given proper attention to the instructions given for proper driving of the said vehicle in the Owner’s Manual.  Had they followed the guidelines contained therein, the problem would not have arisen.

6.      On the other hand, the learned counsel for the complainant stated that the order passed by the District Forum was based on the report of an expert duly appointed by that forum.  Referring to the instructions contained in the Owner’s Manual, the learned counsel stated that the complainant was an illiterate person and hence, it is beyond his reach to read the instructions contained therein.  The learned counsel has drawn attention to an order passed by this Commission in R. P. No. 958/2007, M/s. Hyundai Motors India Ltd. Vs. M/s. Affiliated East West Press (P) Ltd. & Anr., decided on 29.11.2007, in which, it was held by this Commission that if the vehicle had gone to the opposite parties on several occasions for repairs within a short span of one year of its purchase, it was the duty of the opposite parties to replace the said vehicle, as they were not in a position to rectify the defects.  The learned counsel for the petitioner has also drawn attention to an order passed by the Hon’ble Apex Court in C. N. Anantharam vs. Fiat India Ltd., 2011 (1) SCC 460, in which it has been stated that if an independent technical expert was of the opinion that there was inherent manufacturing defect in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and the life time tax and EMI alongwith interest @ 12% per annum.

7.      I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

8.      A perusal of the material on record indicates that to verify the defects in the vehicle, the District Forum appointed a Mechanical Engineer, Sh. Satyapal, who has the qualification of B. Tech., Mechanical Engineer from IIT, Delhi, vide their order dated 25.03.2004.  The said Commissioner submitted his report on 15.04.2004, after inspecting the vehicle in the presence of both the parties and their counsel.  The said surveyor reached the conclusion that there was inherent manufacturing defect in the said vehicle.  The Local Commissioner stated as follows in the concluding part of his report: “from my observations and discussions, I am of the definite opinion that the mishap in the form of breakage of connecting rod at lower portion and cylinder block of the engine at lower portion was due to inherent manufacturing defect in the vehicle”.  The expert, mechanical engineer, recommended that for smooth working of the vehicle, it should be replaced by a new vehicle.

9.      It is adequately made out from the report of the qualified Mechanical Engineer that the vehicle suffered from an inherent manufacturing defect.  The said report was prepared after examining the vehicle in the presence of the parties and their counsel.  There is no material on record, which could falsify the contentions raised by the Commissioner in his report before the District Forum, rather, on the other hand, the opposite parties have not produced any material evidence to prove their version that the defect in the vehicle was due to the ingress of water.  It has also been stated by the District Forum that the respondents/opposite parties failed to tender affidavit of report of Sanjay Rustogi, surveyor, who allegedly opined that the damages occurred due to negligence of the complainant.  The State Commission, while passing the impugned order has also observed that the opposite parties had failed to rebut the report of the Mechanical Engineer.  The State Commission also observed that the respondents have admitted that the vehicle was within warranty when the engine seized.  The State Commission also observed that the complainant had been able to discharge the onus cast upon him to prove that there was manufacturing defect in the said vehicle.  The State Commission, however, gave directions that the engine of the vehicle should be replaced as there was problem in the engine only.  As per the order passed by this Commission in M/s. Hyundai Motors India Ltd. Vs. M/s. Affiliated East West Press (P) Ltd. & Anr. (supra), this Commission explained in no uncertain terms that where a new car had to go to workshop on several occasions for repairs within a short span of one year of its purchase, it was the duty of the opposite parties to replace the vehicle as they were not in a position to rectify the defect.  In C. N. Anantharam vs. Fiat India Ltd. (supra), the Hon’ble Supreme Court upheld the order passed by this Commission in Revision Petition No. 2431/2016, 1585/2006 and 1713/2006, in which this Commission had directed the dealer and the manufacturer to remove the defects in the vehicle and make it road-worthy and then deliver the vehicle to the complainant in the presence of an independent technical expert, who shall certify that the vehicle is free from any defect.

10.    In the present case also, when the vehicle was left with the opposite parties for repairs, it was their duty to take steps to ensure that the said defects were removed as the vehicle was within the period of warranty and then the vehicle was delivered to the complainant in a road worthy condition, but the opposite parties failed to discharge their responsibility in its record. 

11.    At the present juncture, when the vehicle has become about 13 years old, no useful purpose will be served by making attempts to remove the defects in the vehicle by replacement of certain parts.  In the interest of justice, therefore, it is directed that the opposite parties shall be liable jointly and severally to refund the depreciated value of the vehicle as was on the day the vehicle was left by the complainant with the opposite parties no. 2 and 3 for repairs.

12.    Both the revision petitions are, therefore, disposed of with the direction as stated above and the orders passed by the consumer fora below are set aside.