JUSTICE J. M. MALIK, PRESIDING MEMBER

          Hira Lal, the complainant/petitioner purchased a car-Toyota Innova Model DLX 1, Grade G1-D, Super White bearing registration No. HR-55 D-2633 from MGF Toyota Gurgaon Capital Vehicles Sales Ltd. on 26.12.2005.  The complainant went to Jaipur on 31.12.2005 by the said car and it transpired that car was emitting heavy black smoke.  The complainant came back to Delhi and lodged a complaint with the opposite party.  On 17.1.2006, the opposite party checked up and effected the necessary repairs.  On 17.3.2006, the vehicle again started emitting black smoke.  Till then the car had covered a mileage of 5348 km.  It also came to light that the vehicle was giving low average and the fuel consumption was excessive. On 24.3.2006, the vehicle was returned to the petitioner with the assurance that the defects had been rectified.  The problem of emitting smoke again started on 18.7.2006.  Till then the vehicle had covered a mileage of 10000 kilometers.  According to the complainant, the respondent admitted that there was some major problem and took photographs on black smoke.  However, those defects continued.  On 13.5.2008, the vehicle had covered 40000 kilometers.  The opposite parties had changed some parts like converter etc. but the said defects persisted.  The opposite party did not take any concrete action. 

2.      The petitioner filed a complaint before the District Forum, Gurgaon and prayed for replacement of the car in question or refund of the price of the car with interest at the rate of 18% p.a. besides payment of compensation in the sum of Rs.2 lakh towards mental agony, harassment etc.  The petitioner also filed an expert report prepared by Pal Enterprises dated 16.10.2009, who after examining the vehicle opined that engine of the car has inherent manufacturing defect and only remedy was replacement of the same.  As prayed by the respondent, car was produced before the respondent and they also submitted the expert report on 19.8.2010.  District Forum directed the opposite party to replace the car or refund the price of the car to the complainant with costs of Rs.25,000/-. 

3.      The opposite party filed an appeal before the State Commission.  The State Commission modified the order of the District Forum and directed the opposite party to repair and remove the defects in the car and also replace the defective parts as may be pointed out by the complainant, free of costs. 

4.      Aggrieved by this order, the present revision petition has been filed.  We have heard the learned counsel for the parties.  Learned counsel for the complainant has invited our attention towards the report dated 16.10.2009 given by Pal Enterprises.  In his report, he has explained that engine is consuming more diesel and mobil oil than that being consumed normally and developing less horse power.  He further opined that ‘on his minute examination, he found that the engine in question is of 4 cylinders Vertical-In-Line Type but due to above smoky gas emission fault in the engine, he concluded that the engine has got Inherent Manufacturing Defect.  The 4 cylinders in the block of engine supposed to be Vertical-in-Line are not exactly vertical-their bores are not perpendicular to the surface of the block and the crank shaft of the car.  They are somewhat misaligned from vertical line.

5.      Learned counsel for the petitioner has also invited our attention towards Vehicle History Inquiry, annexure P3.  It goes to reveal that on 17.1.2006, the vehicle was emitting smoke.  The vehicle was checked for a number of times. 

6.      Learned counsel for the petitioner also pointed out that confidential report of the MGF Toyota clearly shows that the car was having black smoke problem.  Para 10 is reproduced as follows:

                             “10. Conclusion

·        After revving up the engine 9-10 times, no black soot emitted from exhaust pipe.  So soot deposited in exhaust pipes only, no manufacturing defect in the engine.

·        Latest ECU calibration is found, modified CAT CON already fitted in vehicle

·        Engine data list found ok & compared with same odometer vehicle and found ok

·        Active test: Power balance & Fuel leak test found ok in the vehicle.

·        Mostly vehicle used in city condition, double mats used so accelerator pedal not able to fully depress, Rear guard also obstructing emission of exhaust gases.

·        From above observations, it is clear that there is no black smoke & no manufacturing defect in the engine.   

7.      Learned counsel for the petitioner has invited our attention towards few authorities.          In Hyundai Motors India Ltd. vs. Affiliated East West Press (P) Ltd. I (2008) CPJ 19 (NC) a brand new car was required to be repaired repeatedly.  The opposite party was not in a position to find solution to control emission of white/black smoke-EGR System were replaced under warranty.  The State Commission directed the opposite party to replace the defective Accent Car manufactured by the petitioner with a new defect free vehicle of the same model and to pay of compensation of Rs.10,000/-.  The decision taken by the State Commission was upheld from National Commission.  However, in para 18, it was held that since then the vehicle was parked at home and was not used.  Consequently, the vehicle was not got repaired.

8.      Learned counsel for the petitioner has cited other authorities reported in Nachiket P. Shirgaonkar vs. Pandit Automotive Ltd. & Anr. II (2000) CPJ 308 (NC) and the order dated 1.11.2012 of the Delhi State Commission in complaint case No. 116 of 2008 titled as Vinay Sagar Sahgal and another vs. Scoda India Private Limited.

9.      So far as replacement of the car is concerned we clap no importance to these arguments.  This is an undisputable fact that car has already run 151000 kilometers at the time of hearing of this argument.  Secondly, the petitioner could not prove that the opposite party had changed a single internal component of the car.  Although, the above said defects cropped up during the period of warranty, yet, the record reveals that the same were rectified.  Mr. Satyapal, the mechanic produced by the petitioner did not open the engine and yet went on to say that there is manufacturing defect.  His report is incomplete.  The State Commission has placed reliance on the Apex Court authority reported in Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra & Anr. I (2006) CPJ 3 (SC).  In that case, the request was made that due to manufacturing defect the car should be replaced.  The Supreme Court held that the obligation of the respondent under warranty was only to repair or replace any part found to be defective.  The respondent was directed to carry out the repair and replace the components, free of charges during warranty period.  Costs of Rs.50,000/- was granted.

10.    Learned counsel for the respondent has also invited our attention towards another authority reported in Maruti Udyog Limited vs. Hasmukh Lakshmichand & Anr. III (2009) CPJ 229 (NC) wherein it was held as under:

“23. The vehicle was sold to the complainant in the year 1998.  When the matter had come up before the State Commission, the vehicle had already run 20,000 kilometres.  At the time of filing of the revision petition, it was stated in the “Grounds of Revision Petition” that the vehicle had run 80,000 kilometres.  Today, in the Court, learned Counsel for the petitioner contended that the vehicle is still running and it had already run approximately 1,20,000 kilometres.  This shows that the vehicle is in running condition and is being used by the complainant on regular basis.  It also shows that there was no “manufacturing defect” in the car in question.  Had there been a “manufacturing defect”, the car could not have run for nearly 11 years and covered approximately 1,20,000 kilometres.  It seems that the complainant is only interested in getting the vehicle replaced but such request/wish cannot be granted.

11.    Learned counsel for the respondent has also cited an authority reported in Classic Automobiles vs. Lila Nand Mishra & another I (2010) CPJ 235 (NC) wherein it was held:

“16. The District Forum could have appointed an expert of its own, based upon whose findings, a finding could be recorded with regard to the manufacturing defect.  In the absence of any expert evidence, merely on the fact that the car was repeatedly brought to the service station for repairs/rectifications, it cannot be held that there was a manufacturing defect in the car.  Whenever, the car was brought to the service station, it was attended to by the petitioner.  The petitioner is the service provider of the car and Counsel for complainant/respondent No. 1 was unable to show any deficiency on the part of the petitioner in attending to the car whenever it was brought to the petitioner’s service station.

12.    Learned counsel for the petitioner relied upon another authority reported in State of Himachal Pradesh vs. Jai Lal and Ors. AIR 1999 SC 3318.

13.    It is, thus, clear that the vehicle cannot be replaced. 

14.    Now, we turn to the question of compensation.  It is apparent that the diesel vehicle was not a plier but proved to be pain in the neck.  The complainant is not supposed to visit the service centre time and again.  The complainant had to go to the service centre for about 17-18 times.  Even if it is assumed that emitting of smoke was not a manufacturing defect but it causes harassment, mental agony, anger and sadness to the complainant.  He wasted a lot of time towards this newly purchased car in the year 2005.  Even after lapse of 7-8 years, he is suffering from that defect. 

15.    Under the circumstances, the order passed by the State Commission that defective parts be replaced cannot be faulted.  However, the compensation granted in favour of the petitioner is on the lower side and we enhance the compensation from Rs.20,000/- and litigation expenses of Rs.5,000/-  to Rs.50,000/- in all.  The defects in case the vehicle is produced before the respondent, be removed within 45 days and the total compensation be paid within 45 days, otherwise it will carry interest @9% p.a. till its realization.

          The revision petition is disposed of accordingly.