1.      The present Revision Petition has been filed under Section 58(1)(b) of the Consumer Protection Act, 2019 (the “Act”) against impugned order dated 09.06.2022, passed by the State Consumer Disputes Redressal Commission, UP Lucknow (‘State Commission’) in First Appeal No. A/570/2017. In this Appeal, the Petitioner/OP-1 appeal was dismissed, thereby affirming the Order dated 22.02.2017 passed by the District Consumer Disputes Redressal Forum, Ghaziabad (“District Forum”) in CC No.149 of 2014.

2.      For the convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3.      Brief facts of the case, as per the Complainant, are that he purchased a Mahindra XUV-500 JC Car Regn No.UP-14 BN 0044 from the Respondent No.2/OP-2 on 07.12.2011 for Rs.13,32,000/-. Ignition, braking, light and auto central lock faults started surfacing soon after the car was purchased. OP-2 promised to remove the faults after the first service. However, they persisted and, even after repeated notifications to OP-2, only assurances were given. As a result, the vehicle got damaged in accident. The problem with the ignition persisted when on 19.12.2012 the vehicle crashed, and the Complainant and its driver narrowly escaped. On being informed, OP-2 got the car towed and it was repaired. However, the faults persisted. The ignition, braking light, auto central lock and clutch were impaired on 14.03.2013. The information was given, but OP-2 gave only assurances, and the vehicle was not repaired. Further, as the brakes were worn out numerous times, OP-2 picked up the car by crane and returned after assurance of repair. But the vehicle was not functioning properly. He requested them to replace the vehicle but OPs did not pay any heed despite legal notice dated 20.03.2013. Being aggrieved, he filed a complaint before the District Forum.

4.      In reply, Petitioner/OP-1 stated that the car was sold by OP-2 to the Complainant in perfect condition. Free servicings were also provided to him at the relevant times, but no defect was noticed in the car. Denying the allegations OP-1 sought the complaint to be dismissed. In reply, OP-2 pleaded that the car was running smoothly. As and when it was brought to workshop of OP-2, it was checked and repaired to the Complainant’s satisfaction.

5.      The learned District Forum vide order dated 22.02.2017, allowed the complaint and directed the OPs as follows:

 “Complaint of the Complainant is accepted. The Opposite Party No.1 is directed that Opposite Party No.1 shall take the disputed vehicle back and replace it with new vehicle or pay its cost Rs.13,32,000/- within 60 days.  That Complainant shall be entitled to interest at the rate of 10% from the date of purchase in case of failure to make payment within such stipulated time. Opposite Party No.1 is liable to make payment of Rs.10,000/- as damages and Rs.5,000/- as litigation expenses within 60 days.”

(Extracted from translated copy)

6.      Being aggrieved by the impugned order, the Petitioner/OP-1 filed an Appeal and the learned State Commission, vide order dated 09.06.2022 dismissed the Appeal with the following observations:

“7. We have heard Ld. Counsel Shri Prakhar Mishra, on behalf of the appellant and Shri Piyush Mani Tripathi on behalf of the Respondent. We have perused through the entire record. Thereafter the judgement of this Hon'ble Bench is as follows:

8. The Ld. District Forum has decided the matter on the basis of report by Tire Wheel Expert Driver, Jr. Engineer Shri Mukesh Kumar. It has been stated by Respondent No.1/ Complainant that after 2 months of the purchase of new vehicle problems regarding ignition/starting arose in the vehicle, which have not ended till the date of institution of this complaint. Appellant has stated that there is no technical problem in the vehicle and this is proven from the evidence as well. In addition the evidence placed on record by Respondent No.1/ Complainant are not independent expert reports. Thus the judgement on such basis is incorrect and the Respondent No.1/ Complainant has run the vehicle continuously. If the vehicle had any technical problem or manufacturing defect it would not have run. Such heavy running of the vehicle by Respondent No.1/ Complainant proves that the allegations are false. On the basis of the judgement under consideration and detailed submission of the parties, the following questions arise for consideration:

(i) Whether the appellant has sold a vehicle with manufacturing defect to the Respondent No.1/ Complainant?

(ii) Whether the judgement could not have been pronounced on the basis of expert reports filed by Respondent No.1/Complainant and whether the complainant has failed to prove these reports?

(iii) Whether on the basis of continuous running of vehicle by Respondent No.1/ Complainant, it can be concluded that the vehicle had no manufacturing defect?

(iv) Whether the complaint by Respondent No.1/ Complainant has been correctly decided?

9. In relation to the first point it is necessary to see that when was the vehicle presented for repair and how many times. It is essential to note that after 2 months of purchase of vehicle the problem of starting/ignition was reported, which is being reported even today.

10. The complainant had purchased the vehicle XUV-500 admittedly on 7.12.2011. Respondent No.1/ Complainant has stated that the starting problem came in the vehicle right after its purchase. The OP has stated in para 6 of the written version that the Respondent No.1/ Complainant reported the problem in starting of the vehicle on 16.12.2011, which was corrected and given back. Upon perusal of job card it is evident that vehicle was given for repair on 16.2.2012 that is within 2 months, in which it is stated that "customer demanded repair". In this job card it is stated within "vibration in wheel, brake noise and demanded repair" after this upon perusal of job card it is clear that on 9.3.2012 again the problem regarding suspension noise, brake noise were highlighted. Thereafter on 15.5.2012 vehicle was again given for repair. Thereafter on 11.6.2012 it is noted in the job card for vehicle repair stating "brake noise", "suspension noise". After this on 11.7.2012 and on 23.7.2012 it is again described that the vehicle was again given for repair. Although in these two job cards it is described as "accidental repair" thereafter there is again a description of repair on 28.7.2012 in which problem in ignition switch and non-functioning has been indicated. Thereafter on 19.9.2012 non-functioning of cruise control, body noise and brake noise has been reported. Thereafter on 23.9.2012 vehicle repair is recorded. Thereafter on 12.12.2012 again the complaint of brake noise is reported and vehicle was also sent for repair on 28.12.2012. The recurrent problem in starting of the vehicle has started after 14.3.2013 which is also recorded in the job cards wherein it has also been stated that the vehicle has been repaired. Further the problem in ignition/starting of the vehicle has been recorded on 5.12.2013 alongwith other shortcoming mentioned in the job card. Further on 27.6.2013 the problem of ignition has been reported alongwith the problem in braking and siren noise. In the aforesaid job card Respondent No.1/ Complainant has mentioned that service center is not able to repair. Thereafter on 2.8.2014 the problem of car starting and recurrently switching off has been reported. In the relevant job card of the year 2014, it has been mentioned that sometimes the vehicle does not start and continues to emit smoke. Again on 27.8.2014 the problem of ignition in the vehicle, indicator bulb and repair of other shortcomings has been mentioned. On the basis of letter dated 6.1.2014 sent by Respondent No.1/ Complainant the job card dated 7.1.2014 has been prepared in which the problem of ignition/starting has been mentioned. Again on 5.2.2014 it is mentioned that the vehicle was starting from 4.2.2014. Again in job card dated 5.2.2014 the problem in starting and other shortcomings are described. The Respondent No.1/ Complainant in its letter dated 29.3.2014 has again described the problem in ignition has been described on that basis the job card dated 29.3.2014 has been prepared which is on record all the job cards and complains made by the complainant clarify that after purchase of the vehicle on 7.12.2011 and 16.12.2011 the starting problem in the vehicle has been present which could not be rectified despite several repairs till the year 2014. In between the Respondent No.1/Complainant issued legal notice and filed the present complaint. It is clear from the perusal of the aforementioned job cards that the vehicle of Respondent No.1/Complainant was sent on several occasions for the ignition/ starting problem and brake noise.  In spite of several repairs the OPs were not able to remove the problem. 

11. In this regard the judgement of Hon'ble National Commission in Hyundai Motors India Ltd. vs Affiliated East-West Press Pvt Ltd (2008) CPJ 19 (NC) is relevant. In this matter the complainant purchased a vehicle which started to have a problem from very beginning. Hon'ble National Commission in its judgement observed that, in a new vehicle if the problem start to surface from the very beginning and the shortcomings could not be rectified, then it would be considered technical and manufacturing defect. The relevant para 25 and 27 of the judgment reads as follows:

"In our view, as stated above, the car was required to be repaired on several occasion. The car was, although out, emitting smoke which defect could not be rectified by the petitioner...

In our opinion, form the admission made by the petitioner. It is clear that the vehicle had gone to them on several occasion for repairs. In our view, there is no necessity for a new car to go to workshop is more car on several occasion for repairs."

12. It would also be appropriate to consider the judgement of Hon'ble National Commission in the matter of Satyam Auto Motors Pvt. Ltd. vs Mukesh Singh 2016 3 CPJ 250 (NC). In para 2 of this judgement it is mentioned that problems arose in the new vehicle within 2 months of its purchase for which the vehicle had to be taken to garage on several occasions. Hon'ble National Commission has upheld the judgement of Ld. District Consumer Forum that the vehicle purchased by Respondent No.1/ Complainant suffered from manufacturing defect.

13. It would also be appropriate to consider the judgement of Hon'ble National Commission in the matter of Ford India Pvt. Ltd. us Michael Edinberg (2016) SCC Online (NCDRC) 1171. In this matter it was noted that the vehicle purchased by complainant had the problem of engine noise and jerk during shifting of gear. The problem could not be resolved despite several repairs. Hon'ble National Commission held that it would be correct to hold that vehicle had manufacturing defect and in such a condition the refund of cost of the vehicle was justified.

14. It would also be appropriate to consider the judgement of Hon'ble National Commission in the matter of Satna Motors Put Ltd. va Krishna Bhatia (2020) III CPU 176 (NC). In this matter there was continuous discharge of the liquid from the vehicle which caused problem in the color of the vehicle. This problem could not be repaired. Hon'ble National Commission held the order directing refund to be appropriate. In view of the aforesaid judgements of the Hon'ble National Commission, it would be clear that in the present matter the vehicle was sent for repair time and again and despite this the problem could not be rectified. Thus it would be appropriate to conclude that a defective vehicle has been sold which could not be corrected in spite of repairs.

15. Upon perusal of the impugned judgement, it is clear that complainant has placed the expert report of Mr Prashant Kumar, Proprietor, Tire Wheel Experts, dated 10.7.2016 which indicates serious problems in nut and stud. Further, in the report of private driver namely Tribhuvan Goswami it is stated that there is vibration in the vehicle and clutch and gear box are not appropriately functioning. Engine is also missing. Apart from this the Jr. Engineer has stated in his report that there is manufacturing defect in the vehicle. Upon running of the vehicle Nut and Bolt of the vehicle stick together. On this basis impugned judgement has been rendered. It has been contended on behalf of the OP that the report is furnished purportedly by an expert appointed by the complainant. Thus the report is biased and cannot be treated as independent. On this basis judgement cannot be given in favour of the complainant. In relation to the aforementioned submission, it is relevant to place reliance on the judgement of Hon'ble National Commission in the matter of Mahindra & Mahindra Pvt. Ltd. vs Nand lal & Ors. RP 3327 of 2013 dated 31.5.2013. in this judgement the Respondent No.1 /complainant established the defect in the vehicle on the basis of his own affidavit. The complainant also placed on record the affidavit of Salesman of seller namely Jagdish Prashad Mali and Mechanic Khemraj, Laxman Singh Driver Mechanic and Suleman Mechanic. All these mechanics have stated in there evidence affidavits about manufacturing defect. Hon'ble National Commission held that the OPs have not given any evidence affidavit to challenge the evidence placed on record by the complainant. Thus, it cannot be held that the reports presented by the complainant cannot be relied:

"the appellant have not produced any evidence before the District Forum which rebut these evidences. The complainants have proved their case that tractor has the manufacturing defect. While the appellants albeit having the team of expert and even after the order of commission could not examine the tractor in presence of the complainants."

16. It would also be appropriate to consider the judgement of Hon'ble National Commission in the matter of Skoda Auto Volkswagen India vs Meghna Corporation Pvt. Ltd. (2020) 4 CPJ 14 (NC). The complainant has reiterated the faults surfacing in the vehicle through this judgment. Complainant has presented 25 job cards, which repeatedly mention the faulty condition of the vehicle. It has been recognized by the Hon'ble National Commission that the seller had enough chances to have consulted an expert, so as to disprove the evidence presented by the complainant, but no such request was made by the seller/manufacturer. No contentions apart from this one have been made to disprove the submissions of Respondent No.1/ Complainant, thus the submissions made by Respondent No.1/Complainant shall be deemed to be proven and if under section 13(1)(c) of the Consumer Protection Act 1986 the expert opinion has not been presented from the side of the court even then on the basis of the submissions made by Respondent No.1/Complainant it is safe to assume that there was a manufacturing defect in the vehicle in question. Hence considering the manufacturing related defects in the vehicle of Respondent No.1/Complainant the complaint is held to be maintainable.

17. The above mentioned decision passed by the Hon'ble National Commission is applicable in this case. the complainant has appointed an expert himself and has submitted the expert report in front of the Ld. District Consumer Forum, but it cannot be said that just because there were no contentions with appellant/OP to disprove the expert report, the report holds no value. Keeping in mind that there was manufacturing defect in the vehicle in question from the start which could not be removed even after repeated repairs, it is safe to hold that there existed manufacturing related defects in the vehicle on the basis of the evidence produced by the complainant.

18. In relation to para no.3, it was contended by the appellant that Respondent No.1/Complainant repeatedly and on a regular basis kept using the vehicle, the vehicle would not have run this much had it been a manufacturing related defect in the vehicle. In relation to this contention, this argument does not seem to be maintainable because usually having only one vehicle, the driver is compelled to drive it in any way and complete his work. In this situation, the driver keeps on using the faulty vehicle to complete his vehicle. In a matter of the Hon'ble National Commission Hyundai Motors India Ltd. Vs Affiliated East West Press Pvt Ltd 2008 I CPJ page 19 (NC), a new vehicle was purchased on 31.12.2004. Approximately after one month, upon being driven for 2,265 kms a complaint was made regarding oil leakage, which was dismissed. Soon after this complaint was made on 22.03.2005 by that the vehicle had run for 6,133 kms. The complaint was repeated on 06.09.2005, the vehicle had run for 18,460 kms by this time. Like this, the vehicle was driven by the driver even though the faults persisted. Hon'ble National Commission held that even after being driven for so long, it cannot be said that there did not exist manufacturing defects in the vehicle and passed order for recovering of the vehicle cost.

19. The appellant has also raised the contention that a relation on principal to principal basis existed between him and dealer Shiva Auto/OP. Thus soon after the delivering to Respondent No.2 "Shiva Auto Car India Pvt. Ltd", dealer Shiva Auto Car is. answerable for the vehicle in question and the Manufacturer is not answerable for the issues with the vehicle.

20. It would also be appropriate to consider the judgement of Hon'ble National Commission in the matter of Dr. N Farm Equipment Ltd. Vs Somnath Gauda 2002 vol. 1 CPR pg 19 (NC). In this matter the Hon'ble National Commission held that rights of the seller are not affected by the fact there existed a contract on principle to principle basis between the manufacturer and the dealer. The seller will be liable only if he was provided with the information that there exists a relation on principle to principle basis at the time of the sale, otherwise the manufacturer will be held liable for the related manufacturing defects in the vehicle.

21. It would also be appropriate to consider the judgement of Hon'ble National Commission in the matter of Hyundai India Motors Ltd. Vs Shailendra Bhatnagar II 2022 CPJ pg 36 (S.C.). in this judgment, the Apex Court held that if at the time of sale of the vehicle there exists a manufacturing defect in the vehicle, the manufacturer will be answerable and manufacturer is also answerable for informing the seller about the defect at the earliest. Thus the abovementioned decision by the Hon'ble National Commission and by the Hon'ble Apex Court is not applicable and that because there existed a contract on principle to principle basis, the manufacturer is not responsible for any defects emerging in the vehicle.

22. On the basis of the abovementioned decision by the Hon'ble National Commission, the court is of the opinion that even though the vehicle is being driven by the driver regularly and repeated complaints are made regarding manufacturing defects, it cannot be said that the complaint made by the complainant is baseless and there is actually no fault that exists.

23. In view of the aforesaid discussion, it is held that vehicle purchased by Respondent No.1/Complainant was defective and within 2 months manufacturing related defect "starting problem" and brake noise started which could not be rectified even after institution of this complaint. Furthermore the vehicle was sent for repair on several occasions, but the shortcomings could not be removed. This apart the reports of expert and known driver and mechanic by the complainant have been filed by the Respondent No.1/Complainant which establishes that there was manufacturing defect in the vehicle. The appellant/OP has not contested the said evidence. Thus, in the aforesaid conditions it would be appropriate to hold that there was a manufacturing related defect which could not be repaired despite sending the vehicle for repairs on a number of occasions. In these circumstances there does not to be any error on the judgement passed by the Ld. District Consumer Forum directing grant of a new vehicle or if the alternative refund of the price of the vehicle. Thus, the impugned judgement is liable to be upheld and the appeal is liable to be rejected.

ORDER

Appeal is hereby dismissed. The judgment and order passed by Ld. District Consumer Forum is upheld. The parties shall bear their own costs. The typist is expected to upload this Judgemnet/order on the website of the Commission immediately as per rules.”

(Extracted from translated copy)

7.      The learned Counsel for the Petitioner/OP-1 reiterated the grounds in the Revision Petition and asserted that the vehicle of the Complainant covered 1.19 Lakh KM within 6 years of purchase i.e. by 20.01.2017. He further contended that the impugned orders of the learned State Commission and the District Forum are contrary to Section 13(1)(c) of the Consumer Protection Act and the law laid down by this Commission in plethora of judgments and it is for the Complainant to establish the claim for the total replacement of the new vehicle supported by the opinion of an expert automobile that the vehicle suffered from inherent manufacturing defect. He further asserted that had there been any defect in the car, the car could not have covered such an extensive mileage. He argued that the expert report of Shri Prashant Kumar, Proprietor, Tire Wheel Experts dated 10.7.2016 which indicates serious problems in nut and stud, who carried out only a visual inspection and without employing any testing equipment or facilities and contrary to the prescribed procedure. He sought the impugned orders of the lower fora be set aside.  He has relied upon the following judgments:

(i) Hyundai Motor India Ltd. Vs. Surbhi Gupta & Ors., R.P. No.2854/2014 decided on 14.08.2014 by NCDRC;

(ii) Classic Automobiles Vs. Lila Nand Misra & Ors., MANU/CF/0086/2009;

(iii) Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Ors., (2006) 4 SCC 644;

(iv) C.N. Anantharam Vs. Fiat India Limited and Ors., (2011) 1 SCC 470.

8.      On the other hand, the learned Counsel for the Complainant argued in support of the impugned orders passed by the learned District Forum and the State Commission. He further submitted that the expert report of Mr Prashant Kumar, Proprietor, Tire Wheel Experts dated 10.07.2016 indicates serious problems in nut and stud. The most important fact is that Mr. Tribhuvan Goswami, Trand & Certificated Driver by Land Rover, Jaguar Company has stated in his report dated 04.09.2010 that there is manufacturing defect in the vehicle. The existence of defect is proved by the Act of the agency/ dealer vides 25 job cards where they have changed many parts. He sought dismissal of the Revision Petition with costs.

9.      I have examined the pleadings and associated documents placed on record, including the orders of the learned District Forum and the learned State Commission and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

10.    It is a matter of record that the vehicle was purchased on 07.12.2011. Within short span, the car had to be taken several times to the service centre for repairs and the nature of repairs undertaken reasonably established the trend of repetitive problems being faced. It is also undisputed that the vehicle of the Complainant covered 1.19 Lakh KM within 6 years of purchase i.e. by 20.01.2017. Without doubt, this is reasonable usage of the vehicle in normal course and, apparently, the main reason of acute grievance of the Complainant is persistent failures in serviceability of the car, breaking down enroute, repeated visits to garage for repairs etc which resulted in Complainant’s absolute lack of confidence in the vehicle, which he purchased from OP-1 paying Rs.13,32,000/-. The learned District Forum considered appropriate to have the vehicle inspected by an engineer, who had brought out the issues with respect to the car’s engine condition. Thus, the Petitioner was directed by the learned District Forum vide order dated 22.02,2017 to replace the car in question with new vehicle or pay its cost of Rs.13,32,000/-, within 60 days. An interest @ 10% p.a. from the date of purchase in case of failure to make payment within such stipulated time was also granted. Instead of replacing the car or refund the cost as directed, the Petitioner chose to appeal against the order of the learned District Forum. The learned State Commission vide order dated 09.06.2022 affirmed the order of the District Forum and the Petitioner chose to file this Revision Petition reiterating same facts and that the vehicle was covered 1.19 Lakh KM within 6 years of purchase i.e. by 20.01.2017 and that was no manufacturing defect.

11.    The learned District Forum issued a detailed order based on evidence and arguments advanced before it. The learned State Commission, after due consideration of the pleadings and arguments, determined vide a well-reasoned order that no intervention is warranted on the District Forum's order. This was primarily because of consistent and repeated documented faults as part of servicing and repairing itself as well as the expert report of Shri Prashant Kumar, Proprietor, Tire Wheel Experts and Software Engineer dated 10.07.2016 indicating serious problems. This established ‘manufacturing defect’ in the vehicle.

12.    It is a well settled position in law that the scope for Revision under Section 21(b) of the Consumer Protection Act, 1986 and now under Section 58(1)(b) of the Consumer Protection Act, 2019 confers very limited jurisdiction on this Commission. In the present case, there are concurrent findings of the facts and the revisional jurisdiction of this Commission is limited. After due consideration of the entire material, I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by the learned State Commission warranting our interference in revisional jurisdiction under the Act. I place reliance on the decision of the Hon’ble Supreme Court in the case of ‘Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269.

13.    Hon’ble Supreme Court in Sunil Kumar Maity vs SBI & Anr in Civil Appeal No. 432/2022 Order dated 21.01.2022 observed:-

“9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

14.    Similarly, the Hon'ble Supreme Court in Rajiv Shukla Vs Gold Rush Sales and Services Ltd. (2022) 9 SCC 31 has held that:- 

As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

15.    In view of the foregoing deliberations, I do not find any reason to interfere with the Order of the learned State Commission dated 09.06.2022 in First Appeal No.570/2017. The instant Revision Petition No. 1239 of 2022 is, therefore, Dismissed.

16.    All pending Applications, if any, also stand disposed of accordingly. There shall be no order as to costs.