JUSTICE DEEPA SHARMA (ORAL) THROUGH VIDEO CONFERENCING

The present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) is filed challenging the order dated 23.09.2019 of the State Consumer Disputes Redressal Commission, Karnataka (for short “the State Commission”) in Appeal No.2161 of 2011 whereby the order dated 07.06.2011 of the District Consumer Disputes Redressal Forum, Bangalore (for short “the District Forum”) in CC/591/2012 was confirmed and the Appeal was dismissed.

2.      The present Revision Petition has been filed by the Petitioner, Opposite Party No.2 in the original complaint, alleging that the order of the Foras below needs to be set aside as it suffers with illegality and infirmity.  It is submitted that the Foras below have failed to take into account the fact that there was no expert opinion regarding the defect in the car and therefore, the finding that the car was defective is erroneous.  Reliance has been placed on “Maruti Udyog Limited vs. Hasmukh Laxmichand & Anr., 2009 SCC Online NCDRC 74”, “Gopal Aggarwal vs. Metro Motors & Anr., 2019 SCC Online NCDRC 754”, “Amar Kumar Saraswat vs. Volkswagen Group Sales India P. Ltd. & Anr., RP 567/2017 dated 18.03.2020, NCDRC”, “Hyundai Motor India Limited vs. Surbhi Gupta & Others, 2014 SCC Online NCDRC 487”, “Classic Automobiles vs. Laila Nand Mishra & Anr., I (2010) CPJ 235 (NC)”, “S. Suncon Realtors P. Ltd. Vs. Nissan & Ors., FA 1744/2019 dated 20.08.2019 (NCDRCDC)”, Md. Hasan Khalid vs. General motors India P. Limited, 2018 SCC Online NCDRC 667”, “Maruti Udyog Limited vs. Susheel Kumar Gabgotra & Ors., (2006) 4 SCC 644” and “Easy Elevators India P. Ltd. Vs. Nissan Motors & Anr. 2018 SCC Online NCDRC 1430”. 

3.      It is further argued that the Respondent no.1, the Complainant is a Company and since the Company has purchased this car, it cannot be said that it had been purchased for personal use and therefore, the Complainant is not a Consumer.  It is further argued that every time when the car had been brought to the service station, i.e., to Respondent no.2, the car was repaired and the Complainant had signed a satisfaction note.  It is further argued that since all the documents had been produced by the Complainant, there was no requirement on the part of the Petitioner to produce any document and hence, the Foras below have erred in giving the findings against the Petitioner simply on the basis that the Petitioner did not produce any evidence.  It is further argued that the vehicle had already run for more than 58,000 kms. by the date the Complaint was filed and it is still roadworthy and therefore, the finding that the vehicle had suffered with manufacturing defect is erroneous.  It is further argued that the District Forum has erroneously relied upon an internet download.  It is argued that the impugned order whereby the order of the District Forum was upheld needs to be set aside.

4.      I have given thoughtful consideration to the arguments of learned Counsel and have also perused the relevant record.

5.      The brief facts of the case are that the Complainant/Respondent no.1 had purchased a Skoda Fabia Ambientee car manufactured by the Petitioner, Opposite Party No.2, from the Opposite Party No.1, the Respondent no.2, the dealer for a sum of ₹8,76,057/- on 24^th January 2008.  By the time it had filed the Complaint, it had been taken to the service station for repairs 25 times.  The details of the repairs done by Respondent no.2 are mentioned in the job cards produced by the Complainant/respondent no.1.  No evidence has been produced by the Petitioner in contrast to the contentions of the Respondent no.1/Complainant.  The finding of the Foras below regarding defects in the car is based on these evidences, i.e., the job cards which are admitted documents.  It is clear that the Respondent no.2 who did the repair job and is authorised dealer of the Petitioner did not file any Written Statement.  There is no evidence on record to show that these job cards are not genuine documents.  Even the genuineness of these job cards is not disputed by the Petitioner. 

6.      The District Forum in its order dated 07.06.2011 had framed the following issues on the basis of the contentions of the parties.  The relevant paragraphs are reproduced herein:

4.       The points that arise for our consideration are:-

POINTS:-

1. Whether there is deficiency in service?

2. Whether the complainant is a consumer?

3. What Order?

    

   7.      The District Forum has also observed the following facts:

37.       The opposite party No.2-has admitted in its version and affidavit on 06.11.2008 the vehicle has been repaired by it and the blower was replaced. Why the opposite party has not produced the documents with respect to this service or job-card and any other documents which are available with it. The opposite parties has admitted that on 24.04.2009, 24.06.2009, 17.08.2009, 29.12.2009, 03.03.2010, 21.04.2010, 01.09.2010, 21.09.2010, 26.10.2010 the vehicle had been brought, to it for AC malfunctioning and it has stated that it has attended to. Why the concerned job-card and the alleged materials, alleged documents were not produced by the opposite parties? This itself clearly goes to show that on eight occasions that too within one year five months from the date of purchase of the vehicle it had problems, sometimes more spare parts has been replaced, this itself clearly goes to show that the entire mechanism of the vehicle was wrong it has manufacturing defect.

38.       Further it is seen that on 08.02.2010 and in May-2010 the vehicle had been brought to the opposite parties. According to the opposite parties for electrical problems which has replaced certain parts taking money from the complainant within one year from the date of purchase of the vehicle had electrical problems. Within one year two months the vehicle had several problems! how could that happen? There is no answer.

39.       Further the opposite parties admits that regarding ABS, braking system, blower noise and AC malfunctioning, steering hard, the vehicle has been brought to it on 29.01.2010, 08.02.2010, 22.02.2010, 03.03.2010, 21.04.2010 and 05.05.2010. This itself clearly goes to show that, the vehicle had several manufacturing defects within 27 days from the date of purchase of the vehicle. Whether it is within warranty or after warranty; how could the vehicle develop these problems? There is no answer.

40.       That means within a gap of two years the vehicle had been taken to the opposite parties for repairs more than 25 times and the opposite parties has charged Rs.98,983/- for repair and service charges. This clearly goes to show that the vehicle had manufacturing defects. How can a new car develop all these things that too within a year from the date of purchase. Taking the vehicle for large number of time for repairs within two years itself proves that the vehicle had manufacturing defects. This view is fully corroborated by IV (2007) CPJ 1 (NC), 111 (2008) CPJ 107, III (2008) CPJ 17 (NC), III (2008) CPJ 32 (NC), 11 (2008) CPJ 468, II (2008) CPJ 308, IV (2008) CPJ 369, IV (2008) CPJ 130, III (2004) CPJ 637, I (2006) CPJ 196. Discussing or quoting elaborately judgment  of Higher Court is prohibited by law in the regulation No. 18(5) of the Consumer Protection Regulation 2005; Quoting these judgments will only bulk and bulge the records. This is also with respect to the litigation in the (2008) CPJ 111 (NC) and in SLP(c) 21178-21180 of 2009 by the Apex Court dated: 24.11.2010 in a case between Sri. C.N. Anantharam -V/S- Fiat India Limited and Another cited by learned counsel for the opposite party.

41.       The contention of the opposite party No.2 is that they have no objection to get the vehicle examined by any expert and they are ready for it. If the opposite parties had any iota of truth regarding this they should have made an application seeking appointment of an expert at the cost of the opposite parties, got it examined and given the report, but that has not been done. The voluminous records produced by the complainant establishes that the vehicle had the manufacturing defect. These records are the records of the opposite parties; per contra opposite parties never produced even a scrap of paper to substantiate their claim. Even the job-cards and other allied records which are available with the opposite parties are not produced. Hence an adverse inference has to be drawn against the opposite parties in this regards. what prevented the opposite parties from seeking appointment of an expert to give their opinion? There is no answer.

42.       The opposite party itself is the manufacturer of the car therefore they themselves are the expert; the opposite party would have get the car  examined by their expert regarding the allegations made by the complainant in annexure-1 and 2 by the complainant along with their records and taken his opinion and produce it before this forum. Even that has also not been done. Hence an adverse inference has to be drawn against the opposite parties. Thus it lies ill on the mouth of the opposite parties to say that they are ready to get any expert appointed in this case. Nobody has sought the permission of the forum or intervention of the forum for the appointment of any expert. Under these circumstances there is no necessity that is required for appointment of an expert as rightly contended.

43.       The other contention is that the vehicle had run for about 58,000 kilometers in a span of these two years, which nullifies the contention of the complainant that the vehicle had any manufacturing defects. This is an untenable contention. We are in India. A person marrying another person, without knowing that the other person is nagging, the person pulls on for some time for a year, two or three and when it becomes untolerable then the person goes to the court and not otherwise. The same thing happened in this case. The vehicle has been purchased by the complainant, weighted for two years pulled on the vehicle for 58000 kilometers, it does not mean that the vehicle had no manufacturing defects. The problems are still existing. It is seen that regarding the same model of SKODA Fabia car Jyoti Madan and 30 others had given complaint to the opposite party and have agitated as seen from the internet downloads produced by the complainant. None of these things have been challenged by the opposite parties. That mean this model of the SKODA Fabia car is having manufacturing defect; it is not the one car but almost all the cars of the same model. Hence we hold the above points accordingly.”

8.      The District Forum vide its order had issued the following directions:

1. The Complaint is allowed-in-part.

2. The opposite parties shall pay ₹4,50,000/- to the complainant within 30 days from the date of this order.On receipt of the amount the complainant shall surrender the SKODA car bearing registration No.KA-04-ME-8736 to the opposite parties within three days from the date of receipt of the amount.

    

3. The opposite parties are also directed to pay ₹2,000/- to the complainant towards cost of this litigation.

    

4. Both the parties are also directed to submit the compliance report to this Forum with necessary documents within 45 days.

    

5. The opposite parties shall send the amount as ordered above in Serial Nos.2 and 3 by way of D.D. to the complainant through registered post acknowledgement due.

6. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

7. Send a copy of this order to both parties free of costs, immediately.

9.      The State Commission in Appeal after re-appreciation and re-assessing the evidences on record, taking note of the various defects the vehicle was suffering with and for which it was taken to service station for 25 times within a short span and relying on the job cards produced by the Complainant has held as under:

8. The District Forum noted that life span of vehicle as 15 years and vehicle had run 58,000 kms.It appears the complainant has taken vehicle for service frequently because of manufacturing defect.In the circumstances, it also appears though some free services are provided for 3 years and replacement of spare part, the fact remains that vehicle being taken to the authorised service centre of the manufacturer, then necessarily it speaks to the fact that vehicle was defective.Materials speak to the fact problems arose during warranty period itself.Complainant had taken vehicle for repair on many times is not at all in dispute.When such is the situation, Opposite Party/appellant should have placed job cards to indicate nature of repairs effected by them on many times.It is not explained by appellant/Opposite Party as to why they did not produce job cards before District Forum.In that view of the matter, it corroborates say of complainant regarding repeated troubles of the vehicle throughout which itself indicates about manufacturing defects of the vehicle.For repairs more than ₹98,983/- has been spent by the complainant and they are ready to surrender the vehicle.In the circumstances, it is to act according to the order of the District Forum.It is for the manufacturer/appellant herein to pay amount of ₹4,50,000/- within two months from the date of this order, failing which, it shall carry interest at 6% p.a.It is for the complainant to surrender the car.Accordingly, the following

ORDER

     The above appeal is dismissed.

The amount in deposit shall be transmitted to the District Forum for disbursement.

10.    It is argued that there is no compliance by the District Forum of Section 13(1)(c) of Consumer Protection Act, 1986.  Section 13(1)(c) is reproduced as under:

13.  Procedure on admission of complaint. — (1) The District Forum shall, on admission of a complaint, if it relates to any goods,—

(a) xxxxxxxxxxxxx

(b)xxxxxxxxxxxxxx

(c)         where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum.
 

11.    From the bare reading of this provision, it is apparent that the District Forum is required to obtain the expert opinion only when it is of the opinion that the defects as mentioned in the Complaint could not be ascertained without proper analysis or test of the goods.  In the present case, there were 25 job cards showing the repair and replacement of various parts of the car, which were based on evidences on record filed by the Complainant along with its Complaint and were sufficient for the District Forum to determine the nature of the defects in the vehicle.  The Petitioner after receiving the notice of the Complaint wherein the Complainant had alleged that there were defects in the car, had the opportunity to move an appropriate application for obtaining the expert opinion to contradict the allegations of the Complainant.  That opportunity was not seized by the Petitioner.  In fact, not even a single piece of evidence has been produced by the Petitioner to contradict the contentions of the Complainant/Respondent no.1.  Non-compliance of Section 13(1)(c) of the Act therefore it not fatal to this case.  The findings on which the Petitioner has relied upon were given on the facts and circumstances of those cases and the facts and circumstances of this case are entirely different.  It is apparent that within a span of 3½ years till the filing of the Complaint, the vehicle which was new had to be taken for repairs to the repairing centre of Respondent no.2 for 25 times.  This itself shows that the goods supplied were defective. 

12.    The Petitioner has relied upon the judgment in Maruti Udyog Limited vs. Hasmukh Laxmichand (supra).  The findings in this case are not relevant.  From the perusal of the facts of that case, it is apparent that the manufacturer had moved an application for getting the vehicle checked from an expert but it was not allowed by the Commission.  The findings were given by the Commission taking note of this fact.  In the present case, no application for expert opinion has been moved by the Petitioner and therefore, the findings in this case are of no help to the Petitioner.

13.    In Gopal Aggarwal’s case (supra), the facts are entirely different.  This Commission in this case has observed that the District Forum had failed to decide the preliminary issue and the State Commission also committed error in not remanding the matter back to the District Forum and it was on these facts that the order of the State Commission was set aside.  This findings in this case are also not relevant on the facts of this case.

14.    In Amar Kumar Saraswat’s case (supra), the defects were of minor nature and that is why the Commission was of the opinion that in the absence of expert opinion, in light of minor nature of defect, it was difficult to ascertain that there was a manufacturing defect.  In the present case, however, not only that the vehicle was repaired, several parts of the vehicle were also changed and the  evidences were sufficient to conclude that the vehicle was defective.  Similarly, in Hyundai Motor India Limited’s case (supra), this Commission, on the basis of nature of defects in the vehicle concluded that the defects were not of such nature which could be termed as manufacturing defects.  In the present case, the evidences on record conclude that the goods supplied to the Complainant were defective.

15.    In Classic Automobiles’s case (supra), the facts were entirely different.  The Commission had concluded that there were no sufficient evidences on record to prove that there was any defect in the car.  The car was found to have some missing spare parts which was corrected by the manufacturer.  In the present case, it is apparent that the car was brought to the service station for 25 times and several parts of the vehicle were replaced.  It was a new car and if within a span of 3 ½ years, several parts are required to be changed, the only logical conclusion that can be drawn is that there was some inherent problem in the car which could not be removed despite change of several parts.  In Classic Automobiles’s case (supra), the only defect was that the check light was blowing on the indicator panel even during its normal running.

16.    In S. Suncon Realtors P. Ltd.’s case (supra), the bill which was brought on record, was showing only minor repairs and so, the facts of this care are entirely different from the facts of the case in hand.

17.    In Mohd. Hasan Khalid’s case (supra), on the basis of facts of that case, which were that the car showed the first defect after 9/10 months of its purchase and after it being run for 25,000 kms., that the Commission concluded that the Complainant had failed to discharge the onus. 

18.    In the case of Maruti Udyog Limited vs. Susheel Kumar Gabgotra’s case (supra), the facts of the case clearly show that the Complaint relates to only one part of the car and also the Complainant did not cooperate by giving the car for inspection by the manufacturer.  Hence, the facts in this care totally differ. 

19.    In Easy Elevators India P. Ltd.’s case (supra), the Commission had not gone into the merits of the case and those findings are not relevant.

20.    Moreover, it is also clear that the Complainant had clearly stated that the vehicle had been purchased for personal use.  No evidence has been produced that the vehicle which is car had been used for commercial purpose.

21.    Other contentions of learned Counsel have already been dealt with by the Foras below. 

22.    Even otherwise, it is settled proposition of law that under Section 21(b) of the Act, this Commission has a limited power.  It can only set aside the concurrent finding of facts of Foras below if it is perverse, i.e., not based on cogent evidences on record or where the Fora below have exceeded its jurisdiction.  No such situation exists in the present case.  Both the Fora below have given their findings based on the facts and evidences on record.  In “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269”,  the Hon’ble Supreme Court has held as under:

“23. 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”.

 23.   Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under:

  “17.  The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”   

24.    In T. Ramalingeswara Rao  (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has held as under:

“12.     When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

25.    In view of the above, the Revision Petition has no merit and the same is dismissed in limine.