R. K. AGRAWAL, J., PRESIDENT

1.       These two First Appeals by M/s. Mitsubishi Motors Corporation, Opposite Party No.3 in the Complaint (Appellant in First Appeal No. 564 of 2019/Respondent No.4 in First Appeal No.581 of 2019) and M/s. Hindustan Motors Finance Corporation Ltd., Opposite Party No.5 in the Complaint (Appellant in First Appeal No.581 of 2019/Respondent No.4 in First Appeal No.564 of 2019), are directed against the Order dated 13^th December, 2018 passed by Delhi State Consumer Disputes Redressal Commission (for short, ‘the State Commission’) in Complaint No.709 of 2016. By the impugned Order, the State Commission has partly allowed the Complaint filed by the Complainant/Respondent No.1 in both these Appeals and directed the Opposite Party Nos.1, 2, 3, and 5 to, jointly and severally, refund a sum of ₹10,12,500/- being 50% of the price of the vehicle in question along with compensation of  ₹1,00,000/- for mental agony and ₹50,000/- as litigation expenses. The Order was to be complied by them within 45 days of receipt of a copy of the Order failing which the awarded amount was to carry interest @9% p.a. from the date of Order till the date of refund. Opposite Party No.4, Tata AIG Insurance Company Ltd. was exonerated from any liability.  

2.       Since both these Appeals emanate from the same impugned Order, they are being disposed of by this common Order.

3.       The facts material to the case are that the Complainant/Respondent No.1 (hereinafter to be referred to as, the “Complainant’’) purchased a “Mitsubishi Outlander” vehicle from the Respondent No.2 (hereinafter to be referred to as the “Authorised Dealer”) which is an Authorised Dealer for sales and service of the said vehicle, for ₹20,25,000/- on 03.11.2010, with one year warranty period. The vehicle was insured with the Respondent No.5 herein (to be referred to as the “Insurance Company”). It is averred that the Complainant had purchased the said vehicle by obtaining finance from HDFC Bank which was to be repaid in EMIs of ₹37,884/- each for a period of 36 months from 05.12.2010 to 05.10.2013. The HDFC Bank was to charge an interest of ₹1,63,824/- on the amount of finance. The said vehicle was hit by a flying stone on 20.03.2016 from a vehicle which was moving ahead and the windshield of the vehicle got cracked. The vehicle was sent for repairs to the Authorised Dealer. It is averred that while taking back the delivery of the vehicle from them on 23.03.2016, the Complainant, having noticed loud noises in the vehicle, immediately contacted their Officials and complained about the noises coming from the vehicle. The Complainant neither took the delivery of the vehicle nor settled the bill for repairs. The vehicle was called back by the Authorised Dealer. On 24.03.2016, the Complainant was informed that the noise could be due to Continuously Variable Transmission (For short, the “CVT”) for which the fluid of CVT was to be replaced. Since, the CVT Fluid was not available in Delhi, it was requisitioned from Chennai. However, the Complainant was again informed that the oil requisitioned from Chennai has been contaminated and fresh stock was, therefore, called for. The oil was replaced after almost three weeks and trials were conducted. However, the vehicle was still giving noises. The Authorised Dealer and the Opposite Party No.2, M/s. Hindustan Motors Ltd. suggested that noises may be result of some problem with the gear box. A week thereafter, the Complainant received a mail dated 04.05.2016 from the Opposite Party No.5, Hindustan Motors Finance Corporation Ltd. (the Authorised Distributor of the Opposite Party No.3) stating that there was contaminated fluid inside the CVT Unit. However, as per the Opposite Parties themselves, the CVT Unit was a sealed Unit and if it was a sealed Unit, the fluid inside it could not be contaminated.  It was stated by the Complainant that there was some manufacturing and inherent defect in the vehicle which is being concealed by the Opposite Parties. Even after three months, the Opposite Parties could not detect the reason for noises in the vehicle. On 10.05.2016, the Authorised Dealer informed the Complainant that noise is perhaps due to some problem with under belly bolt or a valve and an assurance was given to the Complainant to resolve the issue. It was further stated by the Complainant that there appears to be some manufacturing defect in the vehicle as on an earlier occasion, in July, 2012, the Authorised Dealer on its own replaced the Fuel Pump Assembly costing ₹21,451/- without any charges. On 24.04.2016, being dissatisfied with the efforts of the Opposite Parties, the Complainant raised the issue of noise in the vehicle before the President and CEO of Mitsubishi Motors, Tokyo, Japan (the Manufacturer). Vide mail dated 20.05.2016, they expressed their apology and stated that the grievance of the Complainant has been forwarded to their Customers Relations Department and their Authorised Representative in India shall provide all assistance to the Complainant. However, when the issue was yet not resolved, the Complainant sent a mail dated 13.06.2016 to the Authorised Dealer and Hindustan Motors Ltd. asking a specific time by which the vehicle can be made available to him in running condition. Being deprived from the use of vehicle, finally, the Complainant wrote letter dated 16.06.2016 to the Manufacturer, Authorised Dealer and Hindustan Motors raising a debit note of ₹25,87,207/- towards the amount spent by him on the vehicle. In response to the said mail, the Authorised Dealer vide mail dated 18.06.2016, apologized for the delay and informed the Complainant that the valve body and Reverse Clutch parts of the vehicle had been changed, but still the noise is coming from vehicle and finally they had come to the conclusion that there was need to change the entire CVT unit. Further, as the vehicle was not under warranty, the Complainant had to bear the expenses. It was averred by the Complainant that sale of the Mitsubishi Outlander vehicles had been discontinued in India due to several complaints from its users. Hence, alleging Restrictive and Unfair Trade Practices as well as deficiency in service on the part of the Opposite Parties, the Complainant filed Complaint before the State Commission.

4.       Opposite Party No.5, the Authorised Distributor of the Manufacturer, contested the Complaint by filing its Written Statement.  It was pleaded that the Complainant was required to get the vehicle serviced once in every six months or 10000 kms, whichever was earlier; the vehicle was brought for its third free service at 9160 kms on 25.11.2011; the next service was due after six months on or before 25.05.2012, however, the Complainant brought the vehicle for service on 21.05.2014 after about nearly 30 months of its last service on 25.11.2011; again, the Complainant was required to bring the vehicle for service on 21.11.2014, however, the Complainant never brought the vehicle for periodic maintenance/service after 21.11.2014; only on 23.03.2016, the Complainant sent the vehicle to the Authorised Dealer for replacement of the windshield;  as the Complainant claimed insurance limited to the expenses of glass replacement, no road test was conducted by the Authorised Dealer; since the Authorised Dealer was examining the vehicle after nearly two years on the complaint of noise in vehicle, they had to take a complete diagnostics; a team of experts from Chennai was sent to find out the actual problem in the vehicle; on 04.05.2016, the Complainant was informed that the CVT Unit was required to be replaced; since the warranty of CVT Unit was either 2 years or 40000 kms, whichever is earlier and the subject vehicle was more than 5 years old, the Authorised Dealer did not replace the CVT Unit free of cost and asked the Complainant to bear the expenses for replacement of CVT Unit;  as the Complainant did not give his consent for replacement of CVT Unit, the vehicle is still lying in the premises of Authorised Dealer; as no service was done for the last 21 months, therefore, the Opposite Parties were not able to ascertain as to when the oil in CVT Unit became contaminated; the vehicle was poorly maintained and sparingly used because for nearly last two years the vehicle ran only 2973 kms.; the CVT oil was needed to be replaced after 48 months and it would have been replaced if the vehicle had been brought for service; the oil could not be contaminated in CVT Unit as it was a sealed Unit;  there was no manufacturing defect in the vehicle; the suggestion to replace the Valve body and Reverse Clutch parts was given to minimise expenses of Complainant.

5.       Mitsubishi Motors Corporation, Appellant in F.A No.564 of 2019 resisted the Complaint stating, inter-alia, that the Hindustan Motors Finance Corporation was its Authorised Distributor and they had adopted its Written Statement; they were not aware of any incidents/communications/ transactions  took place between the Complainant and their Authorised Distributor; there was no manufacturing defect in the vehicle; the vehicle was assembled by their Authorised Distributor and CVT fluid was added at its factory; Complainant had used the vehicle for almost 5½ years and it had not given any problem till 24.03.2016; the vehicle might be giving problem due to type and extent of use by its owner or due to improper or incorrect maintenance by the owner; the problem in the vehicle had arisen after lapse of warranty; the free repair/replacement of the fuel pump assembly in July, 2012, had nothing to do with the CVT problem which had occurred in the year 2016; production of the vehicle, in question, has not been stopped in India, however, the Authorised Distributor has not introduced the new “Outlander” model; Complainant had not adhered to the schedule of recommended services and periodic vehicle maintenance including CVT maintenance over a period of many years.

6.       Opposite Party No.1, M/s. Asian Motors/Asian Automobiles India Pvt. Ltd. in its Written Statement pleaded that the vehicle was received by it from the Complainant on 23.03.2016 vide its job card No. 2858 for repair of broken Windshield; the vehicle after repairs was received by the Complainant on 25.03.2016 vide Gate Pass No.2288; upon noticing the noise in the vehicle, the   Complainant again brought vehicle on 26.03.2016  under a different job card no.2597; they extended all the cooperation and made all the efforts to get repaired the vehicle; the vehicle was still lying with them; as they were only dealer, they  were not liable to compensate for any manufacturing defect;

7.       Based on the evidence adduced and the pleadings put forward, the State Commission partly allowed the Complaint with the afore-noted directions. It was observed as under:-

 “       I have considered the rival submissions of the parties and not convinced that mere failure to take the vehicle for service is enough to exonerate the OP.  There is no explanation from the OP as to why CVT oil was not changed at the time of 4^th service which was approximately 3 years after purchase of the vehicle. From the same it can be safely inferred that there was no need to change the CVT oil.

          OP had admitted in its pleading that CVT is an important component of the vehicle. It has taken contradictory pleas regarding CVT being sealed.  At one place it has mentioned that CVT is not sealed.  At another place, it has mentioned that seal of the CVT was broken due to force from some object.

          OP had also admitted in his pleading as well as evidence that it recalled the fuel pump all over the world and replaced the same free of costs.  Had there been no problem with the fuel pump, no manufacturer would recall the same for replacement free of costs.   All this shows that OP had detected same inherent defect and was trying to put a curtain on the affairs by simply changing the fuel pump. 

          Complaints made by other purchasers find place on the internet and copies of extract thereof have been placed on file by the Complainant. The same strengthens the case of the Complainant.  Counsel for the OP tried to escape the same by contending that those complaints are not final and relevant.  I am unable to appreciate the arguments.  Lot of consumers cannot make simultaneous without complaint, though there being need to do so.

          A person when purchasing a costly vehicle, expect comfort.  He is not supposed to take the car repeatedly to service station.  If the usage of the car is less, it does not mean that the owner does not handle the same carefully.  Rather in such circumstances, a manufacturer/dealer should not be allowed to take the plea that the warranty has expired.  Warranty must have some correlation with the use of vehicle and kilometres run by it.”    

8.       Hence, these Appeals by Mitsubishi Motors Corporation and M/s. Hindustan Motor Finance Corporation Ltd.

9.       M/s Asian Motors/Asian Automobiles India Pvt. Ltd., the Authorised Dealer of Mitsubishi Outlander Vehicle, has not been served with the notice. Heard the learned Counsel for the Parties at length, perused the material facts available on record and evidence adduced by the Parties as well as the Written Submissions.

10.     Learned Counsel appearing for the Hindustan Motors Finance Corporation Ltd. strenuously submitted that as per the periodic Maintenance Schedule of the subject vehicle it was mandatory to have the vehicle serviced once every six months or 10,000 Kms., whichever is earlier. On 25.11.2011, the Complainant had brought the vehicle for its third free service at 9160 Kms and the vehicle was required to be brought for next service on or before 25.05.2012. However, the vehicle was brought only on 21.05.2014 i.e. after nearly 30 months from the date of last service.  Thereafter, the vehicle was to be brought by the Complainant for its next periodic service on or before 21.11.2014, but for the reasons best known to the Complainant, he did not bring the vehicle back for its periodic maintenance after 21.05.2014. On 23.03.2016, the vehicle was brought to its Authorized Dealer only for the purpose of replacement of windshield glass. As such, from 25.11.2011 to 23.03.2016, i.e. nearly 4½ years, the vehicle had undergone only one service. As the vehicle was brought only for replacement of the broken Windshield, no road test was conducted by the Authorized Dealer and they were not aware of any noise in the vehicle. The vehicle was delivered to the Complainant on 26.03.2016 after the glass replacement and thereafter, the Complainant informed about the noise from the Chassis. The vehicle was again brought to the Authorized Dealer for inspection. From 27.03.2016 to 04.05.2016, all the efforts were made to find out the reason for noise in the vehicle and Complainant was apprised thereof. Finally, on 04.05.2016, the root cause of the noise in the Vehicle was found in the CVT Unit and the same was required to be replaced. The warranty of the CVT Unit was for 2 years or 40,000 Kms., whichever is earlier. As the vehicle was 5 years old, the Complainant was asked to bear the expenses for replacement of the CVT Unit. It is further contended by him that CVT stands for “Continuously Variable Transmission” and it transmits the power from the Engine to the Wheels.  During the periodic maintenance, the Authorized Dealer would routinely check the quality of the CVT oil/Fluid to rule out the possibility of contamination. But the Complainant did not bring the vehicle for periodic maintenance for nearly two years and hence, it was difficult to find out as to when the oil in the CVT had become contaminated and remained in the CVT Unit. Had the Complainant reported the subject vehicle for service once in every six months, the contamination in oil of CTV could have been easily detected. Even otherwise, the CVT fluid was ought to be replaced after 48 months which could not be done as the Complainant did not turn up for periodic maintenance. It is further submitted by him that though the CVT Unit was a sealed Unit but externally it has oil seals, plugs, wiring harness and breather pipes.  Hence, when the external force is beyond limits there is a possibility of entry of water, dust etc. thereby causing the fluid to be contaminated. During regular maintenance, the oils are checked, drained and refilled if found to be contaminated. There was no manufacturing defect in the subject vehicle as the Complainant had used the vehicle for five years without any problem and even in his mails he had admitted that the vehicle was in perfect and immaculate running condition. He further submitted that the Valve Body and Reverse Clutch parts of the subject vehicle were changed to minimize the expenses of the Complainant, however, it had not proved futile due to extent of damage caused by the contaminated oil. The change of Fuel Pump Assembly free of cost was in no way related to the CVT failure and it was done to adapt the vehicles to the low quality of fuel available in India. The absence of warning light on the display panel was due to the reason that the subject vehicle was driven very rarely and the warning lights would appear on the display panel only after continuous detection of malfunction. He further submitted that this Commission as well as the Apex Court has laid down the principle in catena of judgments that strict compliance of the clauses of the Warranty Agreement by the Consumers is mandatory especially in the case of manufacturing defect in the vehicle. The State Commission has committed a grave error in placing reliance on the Internet Reports produced by the Complainant as reports were merely irrelevant blogs pertaining to defects in unrelated parts of different vehicle models in Foreign Countries. The finding of the State Commission of depreciation to the extent of 50% was not based on any evidence as the Complainant has not adhered to periodic maintenance schedule.

11.     Mr. Nishant Joshi, learned Counsel appearing for Mitsubhisi Motors submitted that the assumption of 50% depreciation by the State Commission is totally baseless as depreciation depends upon road conditions, moisture content in atmosphere, type of fuel used, service history, maintenance, out of market accessories and several other variables. He also submitted that service is an integral part of life of a vehicle and normal wear and tear of a vehicle are overcome by servicing only.  The Complainant never had any problem/issue with the vehicle till 23.03.2016 i.e. for almost six years from the date of its purchase, hence, there was no manufacturing defect in the subject vehicle. The finding of the State Commission that the warranty must have some correlation with the use of vehicle and kilometres run by it, is not tenable inasmuch as in such case, the liability of the Manufacturer would be endless.  The condition of the vehicle gets deteriorated if it is parked for a long time and is not serviced.  Therefore, the warranty clauses have element of both age of vehicle and/or kilometers run. He further contended that as the grievance of the Complainant is against the workshop owner only, no liability can be fastened upon them. Absence of warning on the display panel does not tentamount to any manufacturing defect. The State Commission has wrongly placed reliance upon the Internet Reports and some of the Customers had showed problems faced by them about assorted issues with their vehicles in other Countries.

12.    Per contra, the Complainant while supporting the well- reasoned and detailed order passed by the State Commission, has vigorously submitted that the Complainant himself dropped the subject vehicle to the Authorised Dealer for replacement of Windshield and there was no noise in the vehicle at that time.  Even the Surveyor of the Insurance Company in his Survey Report had mentioned that Windshield of the vehicle had been cracked which needs replacement. He had not observed any other damage and noise in the vehicle. He further contended that the noise was noticed first time by the Complainant when he received the vehicle back after replacement of Windshield. The Opposite Parties had totally failed to detect what was the exact cause of noise in the vehicle.  There was also conflicting stand as to whether the CVT Unit is completely sealed Unit or not. Even if, it is presumed that the oil of CVT Unit has contaminated despite CVT being a sealed unit, as per the service booklet of the Vehicle, it ought to have been changed for the first time at 24 months or 40,000 Kms, whichever is earlier.  However, the same was not changed when the subject vehicle was reported for its fourth service on 25.04.2014. Had the Authorized Dealer conducted the service on the vehicle in the prescribed manner, the alleged problem with the CVT could have been detected. It is emphatically contended by him that the Fuel Pump Assembly was replaced in July 2012 of the subject vehicle without any costs by the Authorized Dealer which shows that there was some manufacturing defect in the vehicle. There were also many complaints from the Customer on the Internet about two models of Mitsubishi, i.e. Lancer and the Outlander.   Hence, the Opposite Parties are liable to refund the price of the vehicle.

13.    Now the core question to be decided by us is whether there was any manufacturing defect in the vehicle warranting replacement/refund of the price?

14.    There is no dispute that the Complainant purchased the subject vehicle on 03.11.2010. The vehicle had three free services on 27.11.2010 at 1083 Kms., on 26.05.2011 at 5340 Kms. and on 25.11.2011 at 9160 kms.  Thereafter, the vehicle was sent for fourth service on 22.05.2014 at 23,618 Kms. After 22.05.2014, the vehicle was brought to the Authorised Dealer for replacement of Windshield Glass which was hit by a flying stone on 20.03.2016. It is also admitted by the Complainant in his mails as well as the Opposite Parties that there was no problem with the vehicle till 23.03.2016 when noise was noticed by the Complainant for the first time except to replacement of Fuel Pump assembly in June 2012 by the Authorized Dealer on its own without charging any costs. The vehicle was given back to the Authorized Dealer for rectification of noise on 24.03.2016. Firstly, it was diagnosed that CVT fluid had got contaminated. It was replaced but no use. The Technical Staff from Chennai was deputed to find out the exact cause of noise and it was informed that there is problem which has extended to Gear Box. Later on, Complainant was informed that there was some problem with Belly Bolt or Value. By mail dated 18.06.2016, the Complainant was informed that the Valve Body and the Reverse Clutch parts of the subject vehicle had been replaced but noise is still emanating from the vehicle and finally it was concluded that the entire CVT Unit was required to be replaced.  Since, the warranty of the CVT had expired, the Complainant was asked to bear the expenses. The main thrust of arguments of the Opposite Parties is that the Complainant had not adhered to periodic maintenance schedule of the Subject Vehicle. The Vehicle was required to be serviced once every 6 months or 10,000 kms. whichever is earlier but it undergone only one service throughout the period from 25.11.2011 to 23.03.2016. They have also taken the stand that there was no connection of replacement of Fuel Pump Assembly in the year 2012 with the problem of noise in the vehicle.  As against this, the stand of the Complainant is that the vehicle was sent for 4^th Service on 25.04.2014 and had the service conducted in the prescribed manner, the alleged problem with CVT could have been detected.

15.    Having given anxious consideration to the rival contentions of the parties, I am of the view that there is no merit in both these appeals for the reasons that the staff of the Opposite Parties could not find out the exact cause of noise from 24.03.2016 to 04.05.2016 and even if it is presumed that the fluid of CVT had got contaminated, they had failed to establish with documentary evidence as to whether the CTV Unit is sealed Unit or not and how the CVT fluid got contaminated which had caused noise in the vehicle. In their email dated 18.06.2016, it had been admitted that CVT box is a sealed unit and there is no possibility for the oil to get contaminated. However, in their written statement, the Authorised Distributor had taken the stand that it is not a completed sealed. Further, in his mail, dated 25.04.2016 to Mr. Chakravarthi of Hindustan Motors Finance Corpo. Ltd., the Complainant had mentioned that he himself had taken the vehicle to Asian Motors’ Marketing Office and from there the vehicle was driven to its workshop located at some other place.  If there was some noise in the vehicle, it might have been noticed while taking the vehicle to the workshop of the Authorized Dealer.  It is not denied by the Opposite Parties that the vehicle was reported for 4^th Service at 23618 Kms. on 21.05.2014 i.e. near about 3½ years from the date of its purchase on 03.11.2010. According to their own admission, the CVT fluid ought to have been replaced after 48 months from the date of purchase.  As per 4^th Service Coupon, the 4^th Service was to be done at 30,000 Kms./18 months and the service operations include the CVT fluid checking.  As per 9^th Service Coupon, the CVT fluid has to be replaced either at 80000 Kms./48 months. Had the Authorized Dealer conducted the service of the Vehicle as per service booklet/prescribed manner, there was all possibility for detection of oil contamination, if it was so.  Even if, as the CVT fluid was required to be replaced after 48 months and the Vehicle was reported for 4^th Service after 3½ years from its purchase, there was an obligation on the part of the Authorized Dealer to check the CVT fluid and replace it, if required. I agree with the view taken by the State Commission that there was a deficiency in service by not changing the CVT Fluid at the time of 4^th service on 21.05.2014. This apart, the subject vehicle has a computer system alarming about any malfunction in the vehicle. If there would have been any contamination in the CVT fluid before 23.03.2016, there might be a warning about it on the display panel. Further, the involvement of the Technical Staff from Chennai and failure to detect the exact cause of the noise from 23.03.2016 to 04.05.2017 proves that there was a major/manufacturing defect in the vehicle. They have proceeded by changing the different parts but in vain. Besides, in July, 2012, the Fuel Pump Assembly of the vehicle was changed by the Authorized Dealer on its own free of cost which also proves that perhaps there was some manufacturing/inherent defect in the Vehicle. Further, on the Internet also, the Complainant had found that there were various problems of the Customers relating to different parts of the subject vehicle including CTV for which the subject vehicle was recalled by the Manufacturer. With regard to assessing the depreciation @ 50% of the total value of the vehicle, I am of the view that the vehicle was only five years old and it has run only for 26,500 Kms. The vehicle was well maintained by the Complainant and it was in perfect and immaculate running condition, thus, the State Commission was perfectly justified in assessing the depreciation of the vehicle at 50%.

          In view of the foregoing discussions, I am of the considered opinion that the Order passed by the State Commission is based on proper appreciation of evidence and material on record and the findings recorded do not suffer from any perversity or illegality which requires any interference. Therefore, both the Appeals fail and are dismissed. No order as to costs.