PER SUBHASH CHANDRA

        This Appeal under Section 19 of Consumer Protection Act, 1986 (for short “the Act”) has been filed by the Appellants (Opposite Parties No.1 and 2 in the original Complaint) against the order dated 21.02.2017 of the State Consumer Disputes Redressal Commission, Punjab (for short “the State Commission”) in Complaint No.53 of 2014 filed by the Respondent No.1 (hereinafter referred to as “the Complainant”).  The State Commission directed the refund of ₹19,50,000/- along with interest @ 8% p.a. from the date of purchase of earth digging machine, i.e., Escorts Digmax Backhoe Loader (JCB Machine) manufactured by the Appellant, along with compensation of ₹2,00,000/- and ₹20,000/- as litigation expenses to the Complainant.  The Appellant is before this Commission with the following prayers:

1. Pass necessary order(s) and directions thereby allowing the present appeal and set aside the impugned judgment and order dated 21.02.2017 passed by the Hon’ble State Commission in CC No.53 of 2014 titled as Ranyodh Singh v Escort Construction Equipment Ltd. & Ors.
2. Pass any other order(s) or directions as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.

2.     The relevant facts of the case in brief are that the Complainant had purchased an earth digging machine, namely Escorts Digmax Backhoe Loader (JCB Machine) manufactured by the Appellant for ₹19,50,000/- on 21.03.2023. The machine was delivered and installed on 24.03.2013 after the necessary pre-delivery inspection and certification.  The first free service was provided on 09.04.2013 when the machine was found to be working properly.  However, certain operational issues were pointed out by the Appellant subsequently which were attended to by the Complainant.  The second and third free services were also done when the machine was found to be fit for operations.  However, the Complainant approached the State Commission alleging that the machine was inherently defective since it had been brought to the Appellant over ten times for attending to some problem or the other.  It was stated that the machine had to be repaired on 23.04.2013 for failure of pressure in hydraulic system, on 30.04.2013 for a control valve system by replacing the big part, i.e. “O”, on 17.05.2013 for the arm cylinder tube leakage, on 18.05.2013 for repair of diesel pump requiring replacement of some parts, on 27.05.2013 for loader hose leakage, on 03.06.2013 for headlights and brake problems, on 25.06.2013 for swing cylinder pipe to be replaced, on 04.09.2013 for the non-working of the fuel pump which was repaired at the authorised service centre at Patiala, on 12.11.2013 for repair of hydraulic system, on 21.11.2013 for drop in the RPM of the engine and leakage in the boom cylinder HP hose, on 18.01.2014 for broken throttle cable, etc.  

3.     Upon contest, the State Commission held that the Appellant had been deficient in service and that the vehicle/machine suffered from several defects and therefore, ordered the refund of the price of the same.  This order is impugned before us by the Appellant on the ground that the State Commission erred in its finding that the machine suffered from inherent manufacturing defects which had not been established as per the procedure prescribed under Section 13(1)(c) of the Act and that the conclusion arrived at by the State Commission was based on conjecture and surmise.  It is, therefore, prayed that the impugned order be set aside.

4.     Respondent No.2 was proceeded ex parte vide order dated 23.01.2023.  We have heard the learned Counsel for the contesting parties and perused the documents on record carefully.

5.     The case of the Complainant before the State Commission was that the vehicle/machine had to be sent on over ten occasions to the authorized workshop of the Appellant or to the Bosch Service Centre but despite repeated complaints of the Complainant, covering various mechanical, hydraulic and engine related complaints, the Appellant could not rectify the defects.  Therefore, he had been left with no alternative but to approach the State Commission which had correctly upheld the Complaint.

6.     On the other hand, the Appellant contended that the finding that the vehicle/machine had been held to be defective by the State Commission and therefore, the Appellant held to be deficient in service on the basis of a report of a mechanic and without following the procedure prescribed under Section 13(1)(c) of the Act under which an Expert’s Opinion had to be obtained, was not valid.  It was contended that the vehicle/machine had been utilized intensively for commercial purposes and that between the date of purchase i.e. 21.03.2013 and the 5^th free service on 16.12.2013, the vehicle/machine had been utilised for                  1500 hours.  The fact that the machine had operated for 1500 hours over nine months was indicative of the fact that the machine did not suffer from any manufacturing defect.  It was also urged that the Complainant had expressed satisfaction with the service provided even after 5^th free service on 16.12.2013 and therefore, there was no deficiency on the part of the Appellant.  It was argued that the various complaints from time to time regarding the repair/replacement of parts of the vehicle/machine by the Complainant were attended to promptly and that there was                      no complaint with regard to the quality of service provided.  The Complaint filed on 18.03.2014 before the State Commission was prior to availing of the 6^th free service on 27.03.2014, after which also the Complainant had expressed satisfaction with the quality of service.  Therefore, it was argued that the Complaint was not maintainable.

7.     It is further argued on behalf of the Appellant that no report of an expert, as required under Section 13 (1) (c) of the Act has been brought on record.  Only a report of a mechanic has been relied upon to allege that the defect was allegedly due to poor manufacturing.  No expert opinion of a Mechanical Engineer or an Automobile Engineer has been brought on record.  The Appellant relies upon “Classic Automobiles vs. Nila Mishra Mannu/CF/0086/2009 and M/s Tractor Dealer Farm Equipment & Machinery Company vs. Ghanshyam Morya & Ors., dated 02.11.2016 in RP No.488 of 2016”  in support of his contention that the burden/onus to prove manufacturing defect is on the Complainant which he has failed to discharge.  It is, therefore, argued that the State Commission has erred in arriving at its finding with regard to the vehicle/machine suffering from a manufacturing defect.

8.     It is stated that there was no breach of warranty terms since the warranty of the vehicle/machine was applicable only if the vehicle/machine was operated and maintained in accordance with the manufacturer’s recommendations as provided in the operator manual.  The servicing of the vehicle/machine at an unauthorised centre would render the warranty void.  It is argued that the vehicle/machine was serviced at M/s Amar Diesel at Sangrur and therefore, the warranty terms stood breached.  It is contended that the State Commission erred in failing to appreciate that the manufacturer’s warranty did not cover damages as a result of the consumer’s own negligence.

9.     The Appellant also contends that having used the vehicle/machine for over 1500 hours, the claim for refund of the amount paid on account of a manufacturing defect was unjustified and that the State Commission could at best have directed only the replacement or repair of the defective parts as held in Maruti Udhyog Ltd. vs. Susheel Kumar Gabgothra & Anr. (2006) 4 SCC 644 and Sushil Automobiles Pvt. Ltd. vs. Dr.Birendra Narain Prasad 2010 SCC Online NCDRC 144.

10.    The Order of the State Commission reads as below:

“12. From bare reading of the above provision of the Act makes it clear that “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which is required to be maintained by or under any law for the time being in force. Keeping in view above credentials, the defect is to be ascertained and if such a defect occurs in a newly manufactured vehicle/machine, then the onus, as already said above, is generally upon the manufacturer to prove that it is free from any defect and the defect in the same was not a manufacturing one. The engine is the main part of the vehicle/machine. Job cards Ex.C-4 to Ex.C-7, prove that several repairs were done and major parts of the machine were replaced, but the defects could not be rectified. In the present case, the defect in the machine is such that the same could not be removed in-spite of the vehicle gone for repairs on several occasions. There are reports of the experts, who have been dealing with the fuel injection pump (FIP). Ex.C-14 is the report of M/s Amar Diesels, who deals in diesel pumps. Affidavit of Sh. Ranjeet Singh, Prop. of M/s Amar Diesels has been placed on record as Ex.C24, who deposed that he is skilled mechanic of repairing fuel pump, CRDI and turbo, having experience of 10 years. There was defect in the fuel injection pump. It was found that FIP system was not in the right position, due to which the engine was not taking load in time and engine was getting overheated, which was breaking the circle. He specifically deposed that as per his opinion, the defects are due to manufacturing defects or poor workmanship. From the report Ex.C-14 of M/s Amar Diesels, coupled with affidavit of its Proprietor Ranjeet Singh, Ex.C-24, we can safely draw inference that the machine, in question, was suffering from any manufacturing defect. This resulted into mental agony, harassment, physical discomfort, besides financial loss to the complainant/consumer, as he was not in a position to use the machine to earn his livelihood by way of self employment. Due to non-working of the machine, he was unable to pay the instalments of the loan, which had taken from the above said finance company, from which he even received Loan Recall Notice Ex.C-23”

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19. In the present case, learned counsel for the opposite parties was not in a position to give the exact cause for troublesome functioning of the vehicle. In ordinary course, we ask for the replacement of the parts of the vehicle, but in the present case, in order to end the dispute once for all, specifically when the complainant has got financed the vehicle from the Finance Company and he is facing difficulty in making repayment of the financed amount, which is swelling, it would be appropriate to direct the opposite parties to refund the entire amount i.e. Rs.19,50,000/-, along with interest. For the mental agony and harassment suffered by the complainant due to manufacturing defect in the new machine purchased by him within few months of its purchase, the complainant is also entitled to suitable compensation.”

11.    The State Commission has relied upon the judgments of this Commission in Hyundai Motors India Ltd. through its authorised signatory, Mr. Abhijit Kumar (Legal and Secretarial) Vs. Affiliated East West Press (Press (P) Ltd. through its Managing Director, Mr. Sunny Malik, I (2008) CPJ 19(NC), Tata Motors Ltd. and Ors. Vs. Lachia Setty, I (2008) CPJ 151 (NC), Skoda Auto India Pvt. Ltd. Vs. Pawan Kumar Mahabirprasad Bhageria & Ors., IV (2011) CPJ 548 (NC) to conclude that there was no necessity for a new car to go to the workshop on several occasions.  It was, therefore, held that the Complainant suffered from mental agony and harassment due to the manufacturing defect in the new car purchased by him within a few months of its purchase and was, therefore, entitled to suitable compensation.

12.    From the foregoing, it is evident that the State Commission’s conclusion that vehicle/machine suffered from a manufacturing defect is based upon its finding that the defects in the vehicle/machine could not be removed inspite of vehicle/machine being brought for repairs to the Appellant on several occasions and that there were reports of experts dealing with fuel injection pump including the report of M/s Amar Diesels and affidavit of Proprietor of M/s Amar Diesel, on the basis of which it can be inferred that the vehicle/machine in question was suffering from a manufacturing defect.  This conclusion of the State Commission, however, cannot be accepted for the reason that the provision under the Act in Section 13(1)(c) is clear in prescribing the procedure on admission of the Complaint.  Section 13(1)(c) of the Act reads as under: 

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

[(a) xxxxxxxxxxxx

(b) xxxxxxxxxxxxx

(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.”

13.    Therefore, before arriving at the finding, the State Commission was required to have the vehicle/machine examined by an expert and only thereafter, arrive at its finding.  Without ensuring an Expert’s opinion and providing a reasonable opportunity to the Complainant and the Appellants of being heard as to the correctness or otherwise of the report made by the expert/appropriate laboratory before issuing an appropriate order under Section 14, the State Commission has clearly erred in reaching its conclusion that the vehicle/machine was suffering from a manufacturing defect.

14.    As noted by this Commission and the Hon’ble Supreme Court in a catena of judgments, the mere fact that a vehicle is required to be brought to a workshop/authorised service centre for attending to the repairs cannot by itself be the basis to conclude that the vehicle suffers from an inherent manufacturing defect.  In view of the fact that no expert opinion was obtained by the State Commission, its conclusion to order refund and compensation cannot be accepted as it would appear to be based on conjecture and surmise.

15.    For the foregoing reasons, in the facts and circumstances of the case, the Appeal is liable to succeed.  Accordingly, the Appeal is allowed and the impugned order is set aside.  Complaint No.53 of 2014 is dismissed as being without merit.  There shall be no order as to costs. 

16.    All pending Applications stand disposed of with this order.