Per Mr B A Shaikh, Hon’ble Presiding Member
1. All these 18 appeals are being disposed of by this common order as common question of law & facts is involved in them. The nine appeals bearing Nos.FA/13/230 to FA/13/238 are filed by the original opposite party (for short O.P.) No.2 dealer of vehicle and rest of the nine appeals Nos. FA/13/239 to FA/13/247 are filed by original opposite party (for short O.P.) No.1 – manufacturer of the vehicles. All these 18 appeals are directed against 18 identical orders passed by District Consumer Forum, Yavatmal in 18 identical complaints filed by the respective complainant / respondent No.1 in all these 18 appeals.
2. The common case of all the complainants / respondent No.1 herein as set out by them in their respective complaint in brief is as under.
The complainants had purchased four wheeler goods vehicles for earning their livelihood from the dealer – O.P.No.2 as manufactured by O.P. No.1 by obtaining loan by them from financer. However, all those vehicles had manufacturing defect. Therefore, those vehicles were having various problems while driving them as specified in respective complaint in detail. The vehicles were taken from time to time to the workshop of O.P. No.2 – dealer for repairing as specified in all the complaints. The O.P.No.2 could not remove those manufacturing defects though vehicles were taken from time to tome for repairing. Therefore, respective complainants of 18 complaints were filed before the Forum below against the same O.P. Nos.1 & 2, making common request that O.P.Nos.1 & 2 may be directed to refund each of them the price of the respective vehicle, paid by them and also to pay them expenses incurred for repairing of the vehicle and also to pay interest as specified in those complaints for the aforesaid amount and also to direct them to pay interest over the loan amount to a financer namely Shriram City Union Finance and also to pay each of them compensation of Rs.10,000/- for physical & mental harassment and cost of Rs.5,000/-.
3. The O.P.Nos.1 & 2 appeared before the Forum and resisted all those 18 complaints by filing their reply on the same grounds. They denied that there is manufacturing defect in the said vehicles. However, they admitted that the vehicles were brought from time to time to the workshop of O.P.No.2 for repairing and accordingly, they were repaired and taken back by the respective complainants / respondent No.1. In complaint No. 221/2009, it is also stated that the complainant had filed the complaint bearing No.276/2008 and it has been disposed of and hence the second complain bearing No.221/2009 is barred by principle of res judicata. According to the O.P.Nos.1 & 2, the vehicles after repairing were returned to the respective complainants. They were fully satisfied about the proper repairing. They, therefore, requested that all these complaintsmay be dismissed with cost.
4. The Forum below after hearing both the parties and considering evidence brought on record came to the conclusion in complaint bearing No.221/2009 that principle of res judicata is not attracted when after change of the engine in vehicle, the manufacturing defect was not removed and therefore the second complaint is maintainable in law. The Forum below also made common observation in impugned orders passed in the said 18 complaints that O.P.No.1 has provided defective vehicles and O.P.No.2 has not removed those defects from those vehicles and therefore they have provided deficient service to the complainants. The Forum held that all the complainants in the said 18 complaints are entitled to refund of the price of the vehicles with interest, compensation and cost. The Forum below passed identical orders in all those complaints directing O.P.No.1 – manufacturer to refund price of the vehicles specified in the order with interest @ 10% p.a. from the respective date of the complaint within 30 days of receipt of the said order and in case of default, the said amount will carry interest @ 12% p.a. The Forum below further directed the O.P. Nos.1 & 2 to pay jointly & severally to the respective complainant compensation of Rs.1.00 Lac to each of the complainant towards loss of income. The Forum below also directed O.P.No.2 to pay each of the complainant Rs.25,000/- for providing deficient service to them. The Forum below also directed the O.P.Nos.1 & 2 to pay interest over outstanding loan, if any. The Forum also directed O.P.Nos. 1 & 2 to pay each of the complainant compensation of Rs.5,000/- for physical & mental harassment and cost of Rs.2,000/-. The Forum below further directed O.P.Nos.1 & 2 to comply with the order within 30 days from the date of receipt of that order and in case of default, the compensation of Rs.1.00 Lac and Rs.25,000/- awarded as above will carry interest @ 9% p.a.
5. Feeling aggrieved by the said orders, O.P.Nos.1 & 2 have filed these 18 appeals.
a. We have heard Advocate Mr Nalin Majithia appearing for the appellant in appeal Nos. FA/13/230 to FA/13/238. We have also heard Advocate Mr S W Sambre for respondent No.1 in these 9 appeals except in appeal Nos. FA/13/235 & FA/13/238. We have heard Advocate Mr Pavan Raulkar for respondent No.1 in two appeals bearing Nos. FA/13/235 & FA/13/238. We heard Advocate Mr P B Thaware appearing for respondent No.2 in all the aforesaid 9 appeals. We have heard Advocate Mr R V Shah appearing for respondent No.3 in appeal Nos.FA/13/231 & FA/13/234.
b. We have heard Advocate Mr P B Thaware appearing for the appellant – manufacturer in rest of 9 appeals Nos. FA/13/239 to FA/13/247. In these 9 appeals, we heard Advocate Mr Sambre appearing for respondent No.1 except in two appeals Nos. FA/13/239 & FA/13/240. In the said two appeals we heard Advocate Mr Pavan Raulkar for respondent No.1. We heard Advocate Mr N Majithia for respondent No.2 in the said all 9 appeals. We also heard Advocate Mr R V Shah for respondent No.3 in two appeals bearing No.FA/13/241 & FA/13/242.
6. We have also perused the copies of the record of the original complaint as placed before us in this appeal. We have also perused the Written Notes of Arguments filed by both parties.
The aforesaid advocates have advanced their arguments on the lines of the respective case of the party to whom they represent.
7. Main submission of the learned advocate of the appellant – Manufacturer Mr P B Thaware in brief is that no manufacturing defect is proved in any of the vehicle by producing expert opinion on record and the Forum erred in partly allowing the complaint without expert opinion.
8. On the other hand, the learned advocates of the original complainant / respondent No.1 in all appeals submitted that the Forum has rightly considered the Job-cards and the facts & circumstances of the present case and rightly came to the conclusion that there are manufacturing defects in the vehicles and they could not be removed by O.P.Nos.1 & 2.
9. The learned advocate of the appellant - dealer also made submission that in the absence of expert opinion the finding given by the Forum above about manufacturing defect in the vehicles cannot be sustained under the law.
10. It is pertinent to note that the two appeals bearing Nos. FA/13/223 & FA/13/224 separately filed by a financer namely Shriram City Finance Co. Ltd., before this Commission, against the identical orders passed in two complaints bearing Nos.271/2008 & 277/2008 have been partly allowed and direction given by the Forum to the said Financer as not to recover the outstanding loan amount from the complainants of the said complaints has been set aside. Therefore, in these 18 appeals the said question about the direction given to the financer in the said two complaints is not being reconsidered.
11. The learned advocate of the appellant in all these appeals relied on the decisions in the following cases.
i. Mercedes Benz India Pvt. Ltd. & Anr. Vs. Intercard (India) Ltd., III (2013) CPJ 48 (NC)
In that case, no manufacturing defect was continued in the vehicles bought by the respondent and therefore it is held that the learned State Commission is not justified in directing the manufacturer to refund cost of the vehicle
and to pay compensation.
- Khanna Automobiles & Anr. Vs. Rajesh Kumar, III(2013) CPJ 196 (NC).
In that case, opinion of the experts produced by the complainant was not found convincing as the expert’s certificate was not produced. Hence, order passed by the Forum allowing the complaint was set aside.
iii. V. Rajendran Nayar Vs. Tata Engineering & Locomotive Ltd. (TELCO) & Ors., IV(2013) CPJ 173 (NC).
In that case, most of the bills were found relating to purchase of lubricant only. Therefore, refund of purchase price was refused.
- General Motors India Pvt., Ltd. Vs. G S Fertilizers (P) Ltd & Anr., II (2013) CPJ 72 (NC).
In this case, there was extensive use of vehicle and therefore it is held that had there been manufacturing defect in the vehicle, it would not have been possible to use it extensively and therefore, the deficiency in service is not proved.
- Tata Motors Ltd Vs. Ashish Agrawal & Anr., 2014(1) CPR 717 (NC).
It is held that question regarding the manufacturing defect
in the vehicle could be decided effectively & successfully only after obtaining expert opinion.
12. On the other hand, the learned advocate of the respondent No.1 / original complainants in all these appeals relied on the observations made in the
following cases.
i. SAS Motors Ltd Vs. Anant Haridas Choudhary, III (2013) CPJ 520 (NC).
In that case, vehicle was purchased on 05.02.2005 and it was taken for repairs on 17.02.2005. The vehicle remained in showroom for 38 days for repairs. The defects listed in the complaint were corroborated by job cards, placed on file. It is observed that the facts speak for themselves and hence expert advice was not required and that manufacturing defect in the vehicle is proved.
ii. Terex Vettmen Pvt Ltd Vs. Meharchand, 2013(1) CPR 178 (Rajasthan)
In that case, it is held that vehicle having mechanical defects must be replaced.
iii. Tata Engineering & Locomotive Ltd. & Anr. Vs. Subhash Ahuja & Anr., II (2013) CPJ 743
In that case, it was found that it is a case of res ipsa loquitur as almost every part of the vehicle had some problems or other and therefore, evidence in form of opinion of Technical expert is not required to prove the case.
- M/s Dewan Chand Atma Ram Vs. Smt Adabala, 2013 (2)
CPR 14 (HP)
It is held that the question and liability of manufacturer is a matter between manufacturer and traders.
v. Rakesh Tegi Vs. Sai Automobiles & Ors., 2013 (2) CPR 11 (HP).
It is observed that the manufacturer is bound to refund price of vehicle, which is suffering from manufacturing defect.
- Ashok Leyland Ltd Vs. Gopal Khan & Ors. 1(2013) CPJ 201 (NC)
In that case, there was manufacturing defect in the vehicle during warranty period. It is, therefore, observed that it is not necessary to obtain expert report separately.
13. We have, thus, considered the submission made by the learned advocates of both parties and also considered evidence brought on record in all these appeals placed before us.
14. It is not disputed that the vehicles were purchased by the respective complainants by obtaining loan from a financer and that all those vehicles got various problems during the period of warranty and they were taken from time to time to O.P.No.2 – dealer’s workshop for repairing. The Job-cards as filed in appeal, were also produced before the Forum showing that the vehicles were taken several times for several problems and defects and they were taken back by the respective complainants after some days. In our view, when such large number of vehicles i.e. total 9 vehicles of the same model and same manufacturing company were required to be taken for repairing since beginning of purchase on several occasions for repairing, the principle of res ipsa loquitur is attracted in all these cases.
15. Minute perusal of the Job-cards, produced on record as maintained by workshop of O.P.No.2, shows that almost major parts of the vehicle had some problems or other and vehicles were taken on several occasions during warranty period as specified in detail in each of the nine complaints. Therefore, in such a case, evidence in the form of technical expert is not required as observed in identical facts & circumstances in the aforesaid cases relied upon by the learned advocate of the respondent No.1. All those defects, found from time to time in those vehicles, are noted in the respective complaint, in impugned orders and also in the Job-cards. It is not necessary to reproduce those defects in each of the vehicle in appeals in this order.
- Therefore, we hold that the Forum below has rightly held that
there is manufacturing defect in those vehicles, which cannot be removed by O.P.Nos.1 & 2 and therefore O.P.No.1 manufacturer is liable to refund the price of the respective vehicle to respondent No.1 / complainant with interest as specified in the respective impugned order. Moreover, the O.P. No.2 – dealer is also liable to pay compensation of Rs.25,000/- to each complainant for deficiency in service in service as observed in the impugned orders. Moreover, O.P.Nos.1 & 2 are also jointly & severally liable to pay interest over the amount due to the financer as observed in the impugned order because the vehicles have been seized by the financer and respective complainant could not repay the loan on time. Moreover, they are also liable to pay compensation of Rs.5,000/- and cost of Rs.2,000/- to each of the complainant as directed by the Forum.
- However, we find that the compensation of Rs.1.00 Lac awarded by the Forum for the loss sustained by the complainants is excessive as the direction has been given under the impugned order to refund price of the vehicle with interest and to clear interest over loan due if any, of the financer.
- Moreover, the complainants have not brought any evidence to show the actual loss sustained by each of the complainant as claimed.
- Moreover, the complainants have not claimed such huge compensation of Rs.1.00 Lac in their respective complaint. In the absence of any such claim, we find that the Forum erred in directing the O.P.Nos.1 & 2 to pay to each of the complainant compensation of Rs.1.00 Lac. We find the said direction given to pay compensation of Rs.1.00 Lac to each of the complainant needs to be set aside by partly allowing the appeal.
- Thus, in the result of the aforesaid discussion, we proceed to pass the following order.
ORDER
i. All these appeals bearing Nos.FA/13/230 to FA/13/247 are partly allowed.
ii. The direction given by the Forum in Clause No.4 of the each impugned order to O.P.Nos.1 & 2 to pay compensation of Rs.1.00 Lac jointly & severally to the complainant / respondent No.1 in all these appeals is hereby set aside. Consequently, the direction given in Clause No.8 of the impugned orders to pay interest @ 9% p.a. over the said amount of Rs.1.00 Lac is also set aside.
iii. Rest of the directions given under the impugned orders to O.P. Nos. 1 & 2 / appellants are hereby maintained.
iv. No order as to costs in all these appeals.
v. Copy of the order be furnished to both parties free of cost.
