1. This revision petition has been filed under section58(1)(b) of The Consumer Protection Act, 2019 in challenge to the Order dated 25.04.2023 passed by the State Commission in First Appeal No.36 of 2022 arising out of the Order dated 13.01.2022 passed by the District Commission in Complaint no. 445 of 2018.
2. Heard learned counsel for the petitioner and perused the entire record including inter alia the impugned Order dated 25.04.2023 passed by the State Commission, the Order dated 13.01.2022 passed by the District Commission and the memo of petition.

3.   It appears that a complaint was made before the District Commission according to which, the complainant purchased a “Honda City 1.5VMT (i-DTEC)’’ on 30.12.2016 in lieu of Rs.11,44,018/-. The opposite party no.1 was the manufacturer of the car and the opposite party no. 2 was the authorized dealer of the same. An amount of Rs. 21,500/- was spent on insurance apart from the other incidental payments towards obtaining registration etc.  The warranty of the car was for 24 months or 40,000 K.M.s whichever was earlier from the date of sale. The warranty was also got extended for another year. After some time, the car started presenting serious problems which included problems like non-ignition / non-starting. Besides that, a strange noise started coming from the engine and the car started emitting excessive smoke. Due to the said problems the opposite party no. 2, the dealer was approached and the defects were reported. On the asking of the opposite party no. 2, the car had to be left in the workshop. The complainant thereafter kept approaching the opposite party no. 2 from time to time as was natural and wanted to know the exact defects and its nature but was not provided with any definite answer initially. The complainant was made to visit the dealer a number of times and somehow could come to know that the reported defects have been taken care of. But at the time of returning the car it got revealed that the detected defects required an overhaul of the engine. The car had run not more than 15,000 K.M.s by then, so the complainant expressed his anguished surprise on such a situation. However he was persuaded to believe that the car would not have any future problems. The complainant appended his remarks on the note that he would sign only after running the car for further 1,000 K.M.s. The complaint also alleges the difficulties which the complainant faced during the 20 days when the car remained in the workshop of the dealer. At the time of the delivery of the car after repairs, an invoice of Rs.36,809/- was raised despite the warranty cover. The invoice demonstrated that the engine had required to be overhauled and opened. Various parts thereof had been changed. The allegation is that such kind of details of defects made it manifest and apparent that the car having run only for about 15,000 K.M.s in a span of 8 months was definitely having inherent manufacturing defects necessitating overhauling of the engine itself and replacement of various other parts thereof. Later on, again troubles started recurring and the problem of engine noise and perfuse emission of smoke resurfaced. Again the dealer was approached, service was done and necessary things were changed and assurance was given that further problem shall not appear. But again the engine noise continued and perpetuated. Details of the repeated recurrence of the problems and visits made by the complainant to opposite party no. 2 have been dwelt upon in detail in the complaint which inter alia described his visits; on 11.04.2018, 24.04.2018, 28.04.2018, 02.05.2018, 18.07.2018, 02.08.2018 and 17.08.2018. The allegation is that during the testing of the car the front fender was also damaged in the workshop. In the wake of all this continued harassment faced by the complainant, a registered letter was sent requiring replacement of the car. It has also been alleged that since 17.08.2018 the car remained with the opposite party no. 2 and on enquiry he was informed that in view of the nature of the defects the officials of manufacturing company itself would visit and evaluate the same, upon which shall depend the future course of action. It also appears from the perusal of the complaint that in the wake of the problems impending a substitute car was also made available to the complaint. It has alleged that the complainant and his family had to undergo discomfort, mental agony and harassment not to speak of deprivation of the enjoyment which he aspired after investing his hard earned money. In the wake of all these facts demonstrating deficiency of service, relief was sought from the Consumer Commission in the form of replacement of the old car with a new one and to provide compensation for the harassment and mental agony along with cost of litigation which the complainant was subjected to. Refund of Rs. 36,809/- was also sought for having been charged during the term of warranty.

4.   It appears that the District Commission proceeded with in accordance with law and after affording opportunity of hearing to all parties allowed the complainant making the following award:

             In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under:-

1. to refund sale price of the vehicle in question i.e. Rs.11,44,018/- to the complainant upon return of the vehicle by him. However, no interest is being awarded on this amount as the vehicle is in the custody and control of the complainant and he used it at least for 1 year 9 months prior to the date of institution of the present consumer complaint.
2. to pay an amount of Rs.35,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.20,000/- to the complainant as costs of litigation.

5.   The perusal of the Order passed by the District Commission indicates that a number of facts were considered by the District Commission, including the fact that the consumer / complainant had to pay Rs. 36,809/- in the month of August 2017 itself in the duration when the warranty was still in operation. It was also found that the engine of the car suffered with recurring problems in the form of non-ignition or non-starting, noise coming from the engine from time to time and excessive emission of smoke. It was also found that as a result of the recurring problems the car had to be inspected at least on 8 occasions i.e. 28.3.2018, 11.04.2018, 24.04.2018, 28.04.2018, 02.05.2017, 18.07.2018, 02.08.2018 and 17.08.2018. It was also duly noted that the fact that aforesaid inspections have been done with regard to the nagging complaint was admitted by the opposite party no.2 in its reply. It was also duly noted that the harassment caused to the complainant impelled him to send a registered complaint on 04.05.2018 which narrated the troubles which the car presented.

      The fact also weighed with the forum of first instance that harassing troubles were not attended to with any permanent or long lasting solution by either of the opposite party. The complainant was also made to pay Rs. 36,809/- for the repairs which were done with regard to the problems which were creeping up.

      After hearing both the sides, the inspection of the vehicle was also got done from the Punjab Engineering College, Chandigarh and the expenses were borne by the complainant which amounted to Rs. 23,600/-. The team of experts comprised of Prof. Dr. Sushant Samir, Asstt. Prof Mr. Ankit Yadav and Mr. Gopal Dass W.I. from mechanical engineering department of Punjab Engineering College, Chandigarh. The report furnished by the experts team shows that the emission of black colour smoke was seen coming out from the vehicle during test drive. However, as in the wake of the complaint of troubles and faults which were reported from time to time, the engine had already been overhauled, the expert term could not ascertain and did not give any conclusive opinion about manufacturing defects. But the factum appears to have weighed substantially with the fora below that during the test drive just after driving 8 K.M.s, a black colour smoke emission had started coming out from the car which made the defect in the engine demonstrably manifest and which could not be obviated even after the car had been sent to the workshop for about a dozen times. The extent of problem could be gauged from the very fact that the engine of the vehicle had to be overhauled. The District Commission had opined that the substantial amount of Rs. 11.44 lakhs was invested by complainant reposing trust in the ‘brand’ of Company but the consumer had to run from pillar to post because of perpetuating serious troubles which the car presented during the warranty period itself. The District Commission thought it fit to direct the refund of the sale price of the vehicle itself and also the compensation and litigation expenses as have already been mentioned above.

6.   Feeling aggrieved by the District Commission’s Order, the Appeal No. 36 of 2022 was filed by the petitioner herein, while Appeal No. 44 of 2022 was filed by the dealer, the respondent no. 2 herein and another Appeal No. 49 of 2022 was filed by the respondent no. 1 i.e. complainant before the District Commission. All the appeals were decided by a common Order dated 25.04.2023 which has been impugned before this Commission by the petitioner / opposite party no.1.  

7.   The perusal of the Order passed by the State Commission, shows that it took a balanced view of the matter. The entire facts and evidence were considered by the State Commission and it was found that apart from the nagging, recurring problems presented by the engine of the car, there was nothing to indicate that other parts of the car were also defective. In this view of the matter after considering the relevant law on the point it did not think it fit to confirm the refund of the entire sale price. Instead of it, the State Commission has found it appropriate only to replace the engine of the car. The harassment and mental agony and the deficiency in providing service, all such  factors were taken note of and eventually the following award was made by the State Commission:

     15.  Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Commission, ordering the opposite parties, to refund to the complainant, the amount paid in respect of the vehicle in question, being not based on the correct appreciation of evidence and law on the point, suffers from illegality and perversity, needs interference of this Commission and is accordingly set aside.  Consequently all these appeals are disposed of, in the following manner:- 

1. Opposite parties no.1 and  2 (Honda Cars India Limited and M/s Joshi Automotive Pvt. Ltd.) are directed to replace the defective engine of the vehicle in question, with a brand new one of the same specification, free of cost, as the defects arose in the engine of the vehicle within warranty period and make the vehicle defect free, within a period of 15 days, from the date of receipt of vehicle from the complainant-Manish Kumar, failing which they shall be liable to pay penalty @ Rs.200/- per day, till realization.
2. Opposite parties no.1 and 2 jointly and severally shall pay compensation to the tune of Rs.50,000/- to the complainant-Manish Kumar for causing him mental agony and harassment and also deficiency in providing service and also to pay cost of litigation to the tune of Rs.20,000/- within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amounts shall carry penal interest @9% p.a. from the date of passing of this order till realization.

8.   Learned counsel for the petitioner has submitted that car is being constantly used by the consumer and has travelled substantial distance from its date of purchase which is indicative of the fact that there was no defect in the car. It has also been submitted that there was no expert opinion to prove any manufacturing defect and in the absence of such expert opinion, liability should not be fastened on the petitioner. It was also submitted that during the repair work, the presence of water in the engine was detected which indicated negligent use of the car by the purchaser. Submission is that if the consumer himself was negligent in the use and drove the vehicle in water where it could enter in its engine, the warranty assurance will be of no avail and the consumer himself is to blame for the reported defects and faults which are said to have arisen in the car. Submission is that these aspects have not been considered by the State Commission which makes the impugned Order unsustainable.

9.   Record has been pursued in the light of the submissions made by the learned counsel.

10. The perusal of the impugned Order shows that all the submissions made at the bar have been duly weighed and considered by the State Commission. The submissions made before this Bench are only reiteration of the submissions made before the State Commission and all of them have been incorporated in the impugned Order. But the State Commission after considering the entire record and evidence before it seems to have struck a chord of balance and proceeded with caution and circumspection. Even though, the concept of conscionable justice was duly taken care of. It did not adopt a unilateral approach in favour of the complainant. Sympathy for the consumer was not allowed to sweep the forum below off its feet. If the evidence with regard to the defects in other parts of the car was found lacking, the State Commission did not hesitate to set aside the District Commission’s Order to that extent whereby the entire sale price of the car was awarded by it. It may be apt to quote herein below the relevant extracts from the impugned Order which succinctly captures the relevant aspects involved in the matter:

12.  At this stage, it is significant to mention here that it is coming out from the record that the vehicle in question was for the first time taken to the workshop of the opposite parties on 20.08.2017, with a defect in its engine and as such, vide job card dated 20.08.2017, Annexure C-4, the entire engine was opened; number of parts were replaced and fitting was done with lathe work. Defect qua missing problem and water inside engine was also found, which was removed and the vehicle was handed over to the complainant thereafter. It is further coming out from the record that the vehicle in question was again taken to the workshop of the opposite parties with the engine problem and also missing problem, whereafter, number of engine parts were again replaced vide job card dated 23.02.2018, Annexure C-5. Again on 28.03.2018, 11.04.2018 and 24.04.2018 vide job card Annexure C-6 colly., the vehicle was reported to the workshop of the opposite parties with the defect of engine noise.  Thereafter, number of engine parts were again replaced on 19.07.2018 and vehicle was delivered to the complainant on receipt of labour charges of Rs.20000/-, as is evident from job card dated 19.07.2018 (at page 30 of the paper book of District Commission). Thereafter also, the vehicle was taken to the workshop on 02.08.2018 and 17.08.2018 with the defect of engine noise. Thus, the sequence of events narrated above, clearly goes to prove that it was on account of defective engine that the vehicle had been taken to the workshop of the opposite parties, a number of times, yet, despite replacing number of parts therein, the black smoke was still found by the experts of PEC Chandigarh on  14.02.2020, while inspection and test drive, which was not desirable, as  opined by the said experts. However, since it was found by the said experts that the engine of the vehicle has been overhauled by the opposite parties, as such, they showed their inability to give any opinion qua manufacturing defect therein --- --- ---.” 

11. The defence plea raised by the learned counsel regarding negligent driving of the car exposing it to water has also not remained unconsidered by the State Commission. In this regard, the forum below proceeded to observe as follows: 

“ --- --- --- Though opposite party no.1 has tried to wriggle out of the situation by contending that it was on account of water logging, as a result of which, cylinders and pistons were broken and the engine was overhauled, yet, in our considered opinion this contention is not supported by any documentary evidence and as such cannot be taken into consideration. --- ---- ---.”

Again the state Commission proceeded to observe further as follows:

      13.    Be that as it may, it has been proved on record, as per the job cards/documents, referred to in preceding para of this order, that number of parts of the engine of vehicle in question were replaced for more than three times, even then the problem in the engine persisted and also black colour smoke was still found to be emitting therefrom. As such, this fact leaves no doubt with this Commission to hold that only the engine of the vehicle in question was suffering from defects, which are beyond repairs. However, when counsel for the opposite parties were confronted with the situation, they tried to wriggle out of the situation by placing reliance on the judgment-Maruti Udyog Limited Vs Susheel Kumar Gabgotra, 2006 (4) SCC 644 and stated that the only liability of opposite party no.1 is to replace or repair the defective engine of the vehicle in question and in no manner, refund of the amount paid can be fastened upon the opposite parties.

In our considered opinion, in the present case also, since the complainant has failed to place on record any evidence to prove that any other parts of the vehicle in question were also found defective, apart from the engine thereof, as such, in our considered view, in these circumstances, the District Commission was required of, to give directions to the opposite parties to replace the defective engine with a new one, free of cost, as the defect arose during the warranty period only, keeping in mind the law laid down by the Hon’ble Supreme Court in Maruti Udyog Limited’s case (supra) but it fell into an error, in holding to the contrary. The order of the District Commission ordering refund of the amount paid in respect of the vehicle in question, thus, needs to be set aside.

12. We also find that while considering harassment faced by the complainant, the State Commission observed:

14.            “--- --- ---it may be stated here that though it has been held above that the complainant is not entitled to get refund of the amount paid in respect of the vehicle in question and on the other hand, only the engine of the vehicle needs to be replaced, free of cost, being under warranty period, yet, this Commission also cannot lost sight of the fact that the complainant had to take his new vehicle for repairs, number of times, to the workshop of the opposite parties, as referred to above. Consumer Protection Act is a benevolent social legislation and is aimed to provide better protection of the interests of the consumers as defined in the preamble to the Act itself. Whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from, any kind of fault or imperfection or shortcoming in the quality, potency and standard which is required to be maintained. Whenever a consumer goes for purchase of a brand new goods like vehicle in this case, his expectation is that he would not encounter or face any inconvenience or hardships from the very beginning. If he has to take the vehicle time and again to the workshop for removing defects, he suffers immensely in terms of loss of time, business, physical discomfort and emotional suffering, having not reaped the fruits of paying hard earned money for purchase of a new vehicle. One can imagine the plight of the complainant, who purchased a costly brand new vehicle for his comfort but on the other hand, it became a headache for him, as defects occurred in its engine, within a few months of its purchase. Under these circumstances, the complainant is definitely entitled to get compensation for mental agony and harassment, which in our considered opinion if awarded to the tune of Rs.50,000/-, shall be fair, adequate and meet the ends of justice. --- --- ---”

13. The bench has quoted the relevant extracts at some length as such only with the purpose to show that all the relevant aspects which have been reiterated here on behalf the petitioner have been duly and thoroughly considered by the State Commission. In the matter at hand, the factum of the emission of smoke is not a disputed question of fact. The team of the professors of engineering college was constituted and the unbiased nature of report is apparent on the face of record and the contents of the same speak impartially and lend an independent authenticity to the report given by such experts. The professors of the engineering college were not laymen and they have not said anything which can be adversely commented upon. If during the test drive the ignition problem did not occur, the same has been fairly mentioned in the report. If because of the engine having been overhauled already conclusive ascertainment of manufacturing defect could not be made, they have mentioned the same fairly in its report. But who is to blame. Can the complainant be blamed for the overhauling of the engine. The engine was Overhauled by the opposite party not for fun. It was because of nagging continual troubles which it was presenting to the extent which necessitated the overhaul and made it incumbent. The complainant cannot be faulted for that. What else he could have done than to report the defects and problems to opposite party which it did. The degree and extent of the problem was obviously more than which could be addressed or cured on a permanent basis. It kept on raising its head again and again. The mere plea of negligence on the part of the complainant in the absence of any evidence to substantiate the same does not appear to have not impressed the State Commission. The relevant law as laid down by the Hon’ble Apex Court was also duly considered and relied upon and the disproportionate award made by the District Commission was chiselled down to become a reasonable and proportionate one as would be very well borne out and appear from the neatly balanced award made and articulated by the State Commission.       

14. Suffice is to say that the Bench finds the Order passed by the State Commission to be well-appraised and well-reasoned. The Bench does not notice any jurisdictional error or material irregularity as may go to vitiate the findings. The Bench also does not find any reason to make fresh de novo re-appreciation of the evidence in revision. The Commission therefore finds no good ground for interference in the impugned Order in the exercise of the revisional jurisdiction of this Commission. It has also not been able to come across any streak of perversity in the findings nor has it been able to discern any legal principle having been overlooked or wrongly ruled by the State Commission. Certainly the State Commission cannot be castigated either to have overstepped or transgressed its jurisdiction or to have omitted to exercise the same rightfully. The facts and circumstances appear to have been weighed and vetted well and to our satisfaction. It also goes without saying that while exercising its revisional jurisdiction, this Commission has to act and operate within the strict confines of the statute as provided under the Act and is loath to take overreaching or transgressing leaps beyond the jurisdictional aspect of the matter.

15. The bench has considered the Order passed by the State Commission and the relevant record available, but feels constrained to observe that there is hardly any good reason which may persuade the Bench to take a different view in the mater other than what has already been taken and adopted by the State Commission below.

16. The present petition being bereft of merits stands dismissed as such.

17. The Registry is requested to send a copy each of this Order to the parties in the petition and to the learned counsel for the petitioner as well as to the two fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.