1.     This revision petition under section 21 (b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Disputes Redressal Commission, Haryana, Panchkula (in short, ‘State Commission’) in Revision Petition No. 24 of 2016 dated 15.09.2016 arising out of order dated 19.01.2016 of the District Consumer Disputes Redressal Forum, Panchkula (in short, ‘District Forum’) in Consumer Complaint No. 114 of 2015.

2.      Briefly stated, the facts of the case are that on 04.06.2012 the respondent/complainant purchased a Mahindra XUV 500 vehicle bearing registration number HR-03-P-0303, chassis no. C6E86166 from respondent no. 2, an authorized dealer for the petitioner. Alleging deficiency in service since the vehicle required frequent repairs which amounted to a manufacturing defect in the vehicle, respondent/complainant filed a consumer complaint no. 86 of 2013 before the District Forum seeking refund of the entire sale consideration of Rs.12,90,697/- with interest @ 9% and compensation on 19.06.2013. The District Forum allowed the complaint vide order dated 01.04.2014 and directed either replacement of vehicle or refund of the full price with interest @ 9% with effect from 04.06.2012 till payment with compensation of Rs 20,000/-. In appeal, the State Commission set this order aside on 27.08.2014 with the direction that the defects were rectifiable and which should be done to the satisfaction of the complainant, if required through replacement with new parts, after certification by 2 engineers of Mahindra & Mahindra, and additional cost of Rs 30,000/- in addition to Rs 20,000/- imposed by the District Forum with liberty to approach the competent forum for redressal of grievances, if dissatisfied.

3.      In compliance with this order, a thorough inspection of the vehicle was undertaken by two engineers of Mahindra & Mahindra, the petitioner herein, and a certificate issued confirming that the issues pertaining to brake noise, left hand side (LHS) front wheel noise, vehicle pulling to right side, front suspension noise, wiper and horn problems had been addressed and that the required parts including, inter alia, brake pad kit and brake disc, front LHS shock absorber, stabilizer bar bushes, washer nozzle, replaced and wheel alignment done and horn pad adjusted and a fitness certificate issued. 

4.      A second complaint (CC No. 114/2015) was filed on 17.06.2015 before the District Forum by the respondent/complainant after a gap of almost 8 months and after the vehicle had been driven for several thousand kilometers on the same cause of action and on the same set of facts seeking relief of replacement of vehicle or refund of cost paid, insurance and registration charges and service charges with interest @18% from the date of purchase till payment. The petitioner contends that the liberty granted by the State Commission was misused and that the complaint was filed even though defects had been removed and after the vehicle had covered over a lakh kilometers and was outside the warranty period. It is stated that no fresh cause of action had arisen as the previous defects did not recur and the consumer complaint was barred by limitation.

5.      The District Forum directed the inspection of the vehicle by the Government Central Workshop, Chandigarh based on an application by the respondent/complainant which returned the finding that the brakes required adjustment, defect in LHS front wheel was due to wear and tear, vehicle alignment and wheel balancing needed adjustment, horn was working properly and engine noise was due to excessive vehicle usage. Regarding the suspension it was opined that “Though the suspension system is of wear and tear nature but it may be manufacturing defect, as per the vehicle repair history….specific opinion can only be given after overhauling the suspension system”. The petitioner contends that such an opinion is not valid since the vehicle been heavily used covering over a lakh kilometers over 3 years and it was noted that the suspension noise was one of a wear and tear nature and, therefore, could not be considered a ‘manufacturing defect’.

6.      The order of the District Forum dated 19.01.2016 directing petitioner to get the entire suspension system overhauled at their own cost to enable the expert to give a definite opinion in the matter was challenged before the State Commission in RP No. 24 of 2016 by the petitioner on the ground that as per settled law the burden of proof to prove his case lay on the complainant and that the cost of overhaul was expected to exceed Rs.1.00 lakh which would amount to finally deciding the issue. This RP was dismissed by the State Commission vide its order dated 15.09.2016 and is impugned before this Commission on the ground that the lower fora failed to consider the serious cost implication of the order of overhaul of the suspension system and that the burden of proof could not be shifted to the petitioner. The petitioner also relies upon sections 102 and 103 of the Indian Evidence Act in this context.  

7.      I have heard the learned counsels for the parties and carefully considered the material on record. Learned counsel for respondent no. 2 adopted the arguments of the petitioner.

8.      It is the case of the petitioner that there is no manufacturing defect in the vehicle and that the defects pointed out by the respondent/complainant had been attended to by the petitioner over a period of time, including free replacements of parts. The impugned order was excessive since it placed the burden of proof on the petitioner and saddled it with a huge cost of approximately Rs 1,00,000/- by its interim direction upholding the District Forum’s order to over haul the suspension in order to determine whether it was responsible for the vehicle’s mechanical issues. It is stated that the Act provides for appointment of an Expert which the District Forum had done. However, his report was not specific with regard to the suspension since it stated that “Though the suspension system is of wear and tear nature but it may be manufacturing defect, as per the vehicle repair history….specific opinion can only be given after overhauling the suspension system”. The impugned order is challenged on the ground that it saddles the petitioner with cost of the replacement of the suspension system when the burden of proof lies on the respondent/ complainant and amounts to settling the issue at the heart of the complaint itself.

9.      The respondent contends that ever since the vehicle was purchased on 04.06.2012, it was repeatedly taken to respondent no. 2 for attending to defects, commencing from the day after the purchase itself. The vehicle continuously developed new defects which the petitioner and respondent no. 2 failed to rectify. Even though respondent no. 2 undertook on 23.07.2012 to repair/rectify the vehicle within 45 days, the vehicle was kept for over 150 days to undertake repairs. As per the statement of dates, the vehicle was required to be sent to respondent no. 2, it is seen that it was sent to the authorized dealer on 28 occasions between 06.06.2012 to 24.10.2013. On most occasions the nature of the defect was brake noise, brake vibration, lack of effectiveness of brakes, suspension noise, LHS front wheel noise, vehicle pulling to right side, front suspension noise, noise from steering, shock absorber problem and wheel alignment. These defects are attributable, according to the respondent, to manufacturing defects which warrant either a replacement of the vehicle or refund of its price in full, with compensation for deficiency in service. The respondent has contested the arguments of the petitioner and relied upon the finding of the State Commission in the impugned order which stated that:

“A reading of the aforesaid report dated October 11^th, 2014 reproduced in paragraph no. 4 of this order, there is no doubt in holding that the defect in the vehicle still persist. The district forum has ordered to overhaul the suspension of the vehicle, which of course was required. Thus, no case is made out to interfere in the impugned order. The revision petition is dismissed.”

Reliance is placed on this Commission’s orders dated 06.05.2013 in Tata Motors Ltd. & Ors. Vs. Ravi Kant Garg in RP No. 254 of 2011 and order dated 02.12.2013 in Hind Motors (I) Ltd. Vs.Lakhbir Singh & Anr. in RP No. 2790 of 2008 which were relied upon by the District Forum in its order dated 01.04.2014 in CC 86 of 2013.

10.    Respondent relies upon the opinion of the Expert (Government Central Workshop, Chandigarh) that a specific opinion regarding the suspension system can only be given after overhauling it. It is argued that although the expert’s opinion records that it was not possible to state specifically whether there was a manufacturing defect in the vehicle after 3 years of its usage, during which time it covered over 1 lakh kilometers, on account of wear and tear issues, since the problem had persisted since 2012 itself despite the petitioner replacing shock absorbers of the front left side and rear right side after the vehicle covered 81,000 and 1,01,000 kms respectively, the persistence of the problem indicated a manufacturing defect for which the petitioner was liable.

11.    From the foregoing, it is manifest that the vehicle in question repeatedly required attention to set right various mechanical issues, ever since its purchase. Even allowing for the visits to the garage for servicing and accident repairs on one occasion, it is apparent that it needed attention during warranty period on over 20 occasions. Such an occurrence is certainly unusual. The replacement of several parts at its cost by the petitioner during this period is pertinent although the vehicle was under warranty period. The persistence of the problem despite such repairs and replacements after inspection of the vehicle by engineers of the petitioner is even more significant. However, it is not categorically established whether this is due to any manufacturing defect or due to normal wear and tear issue. The District Forum had obtained the opinion of the Government Central Workshop, Chandigarh. The order of the District Forum reads as under:

On perusal of the expert report we find that the Service Engineer (Government Central Workshop) has opined that specific opinion with regard to items 3, 4, 5 and 8 could be given only after the overhauling of the suspension system. In the peculiar circumstances of the case, we deem it expedient and in the interest of justice to order the OPs to get the suspension system of the vehicle overhauled at their own cost, with a view to enable the expert to give a definite opinion in the matter. The needful be got done within a fortnight from today. Complainant is directed to bring the vehicle to the OPs. Now to come up on 16^th February 2016 for further proceedings. Parties be informed accordingly.

(Emphasis added)

This order has been upheld by the State Commission.

12.   The petitioner has contended that the onus of proving the manufacturing defect in the vehicle lies with the respondent and therefore the order of the District Forum in directing the replacement of suspension by the petitioner to enable the expert to give a definite opinion is erroneous. It is also contended that the expert has not arrived at any conclusive evidence. The opinion of the Government Central Workshop, Chandigarh is accordingly contested since it is not affirmative and is unsure as to the cause of the defect.

13.      In a matter requiring an expert opinion to establish manufacturing defect, the Act provides for the procedure to be followed in Section 13 (i) as below:

13 (i) Procedure on admission of complaint - (1) The District Forum shall, [on admission of a complaint], if it relates to any goods,— [(a) refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum.]

(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

(d) before any sample of the goods is referred to any appropriate laboratory under clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question;

(e) the District Forum shall remit the amount deposited to its credit under clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in clause (c) and on receipt of the report from the appropriate laboratory, the District Forum shall forward a copy of the report along with such remarks as the District Forum may feel appropriate to the opposite party;

(f) if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory;

 (g) The District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under clause (f) and issue an appropriate order under section.

[Emphasis added]

In this case, the suspension of the vehicle cannot be sent separately for testing to any authorised laboratory without being dismantled from the vehicle. It cannot also be tested in an appropriate laboratory without the vehicle in question being mounted on the suspension. However as per section 14 of the Act, the consumer fora has, apart from ordering replacement of the good or its rectification, the option to award compensation or damages.  While section 13(1)(d) requires that the respondent/complainant deposit the fees with the District Forum, the order of the District Forum in the instant case directs that the petitioner replace the suspension in order to assess the cause of the recurring defects in the peculiar circumstances of the case given the fact that the petitioner is the original equipment manufacturer of the vehicle.

14.    Admittedly, the vehicle has been repaired on multiple occasions by the petitioner including replacement of parts free of cost. There is an Expert’s opinion which points to the possibility of the suspension being the cause of the problem ever since the purchase of the vehicle. However, the opinion does not categorically state whether this is attributable to a manufacturing defect and if so, of which part, or is due to the nature of wear and tear involved in a vehicle which has been in extensive use. A procedure has been prescribed in the Act in order to determine whether the good in question has an inherent manufacturing defect. This procedure under section 13 (i) (d) has not been followed by the lower fora. The ordering of the replacement of the suspension at the cost of the petitioner is also not as per section 13 and is therefore, perverse.

15.    In view of the foregoing discussion, the revision petition is allowed partly. The impugned order of the State Commission is modified to direct the petitioner to comply with the order to overhaul the suspension in the vehicle in question at the cost of the respondent in case he wishes to get the suspension tested. For this purpose, he may approach the District Forum which shall ascertain and inform him the cost of the test in consultation with the Government Central Workshop, Chandigarh.  In case the expert’s opinion is that manufacturing defect is established, the expense incurred on the test shall be remitted to the respondent. However, if it is established that there was indeed a manufacturing defect, then the respondent will be entitled to the cost of repairs and such other compensation/ orders that the District Forum may consider appropriate. The order be complied within 8 weeks from the date of this order.