ORDER

 JUSTICE J.M. MALIK

1.      This common order  will decide two cross revision petitions, detailed above, which arise from the  orders passed by the State Commission dated 19.03.2009.  Sh. S.P.N. Singh, the complainant, placed an order  for  purchase of  a motor  car, using it  for  personal capacity, on 17.09.1996,  for  with Hindustan Motors Limited, OP1 through its Dealer, Ess Pee Automotives Ltd., OP2. He paid a sum of ₹ 3,13,599/- towards the price of the car.  He took delivery of the car on 08.08.1996.

 2.      Immediately,  certain defects cropped up in the car.  Its body and  speedometer  were found defective during  the first service.  The defect in the speedometer was rectified.  After sometime, more defects were detected in the car, viz., the colour of  the body faded and there was very  high  consumption of mobile oil.  The complainant lodged a complaint with the appellants vide letter dated 19.10.1996.  Again the  complaint was lodged on 10.05.1997.  The first service was done at 6000 kms and it transpired that the engine had consumed  one litre of oil only on a run of 2000 kms.  On 10.05.1997, the same manufacturing defect was detected.  The car was  examined  by  a  Mechanic on 10.05.1997, but it  did not ring the bell.  On 03.06.1997,  the authorized agent of OP1-Hindustan Motors Ltd., checked the vehicle  but  the  vehicle  consumed one litre of mobile oil on a running of 400 kms only.

 3.      The OPs requested  the  complainant  to  change the mobile and to observe consumption thereof on a run of 500 kms.  The OPs suggested change of rings which was eloquent of inherent manufacturing  defects  in the engine  of   the car.   On 16.06.1997, the  complainant  made a  request  to the OPs for  replacement  of  the  defective  engine with  a new  and  defect free engine for on run of 6000 kms only.  All the four rings of the car were changed and, therefore, the resale value  of  the car was considerably lowered down.  Such change of rings  generally  expected after over two years.  Despite the said change, the  car did not give good service.  Ultimately a complaint was filed with the District Forum, on 01.07.1997.  The   complainant  had  to spend ₹ 400/- per day for hiring a taxi.  There was correspondence  between the parties but it did not produce the desired result.

  4.      The OPs  resisted  the complaint before the District Forum.  They  contended  that the complainant is not a consumer, because the car  was purchased by Ashok Chitra Pvt. Ltd., Patna and not by the complainant.  Again, the defects  in the car were removed.  The car was used for commercial purposes.  OP2-Ess Pee Automotives Ltd.,   averred that Hindustan Motors Ltd., was the manufacturer which  provides  warranty  of the vehicle and the defects quoted by the complainant  were  directly  remitted to the warranty policy given by the manufacturer.  It contended  that as  its  workshop was inundated  with rain water, there was delay in repairing of the vehicle.   However, the District Forum found  the  OPs to  be negligent in providing service to the complainant  and it directed them to take/receive all the parts of the engine of the car lying in the premises of the complainant and to replace the said engine with new one or with the one which was identical to the engine which was fitted in the car at the time of purchase thereof, within two months of receipt of the order, failing which,  the OPs  must  pay to the complainant the amount of money  which was  the price  of  the  value of  the engine at the time of purchase thereof, with interest @ 9% p.a.

 5.      The State Commission passed the following order :-

“Admittedly, no such car is nowadays, being manufactured. The District Forum directed the appellants to replace the defective old engine with a similar new engine. The complainant had sought for replacement of the said car with a new one or for payment of present market sale value of the car with interest thereon @ 18%.  Considering the entire facts and circumstances attending to the case, we are of the opinion that the appellants should be directed to deliver the new car in place of old one or to pay to him the present market sale value of the car with interest thereon @ 18% for, the car supplied to the complainant remained all along lying and it could not be used by the complainant and his purpose of having a car was defeated.  Let the appellants be accordingly directed to deliver new car to the complainant or to pay to him the present market sale value of the car with interest thereon @ 18% per annum with effect from the date of filing of the complaint.  The impugned order stands modified to that extent. 

In the result, both the appeals failed and they are dismissed and the cross appeals stand allowed.   Litigation cost of ₹5,000/- is also allowed to the complainant”.

6.      We have heard the counsel for the parties on both the revision petitions.   The first  submission made by the counsel for Hindustan Motors Ltd, OP1 was that the complainant is not a consumer on  two counts.  The attention of the Commission was invited towards Customer Order Form dated 19.07.1996,  where the name of the purchaser  as Ashok Chitra (P) Ltd. Budh Nagar, M.S.P. Nagar, Patna, is mentioned.  It also mentions Order No. M/RNo.252, dated 15.07.1996.

 7.      The counsel  for  the  OP1  also referred to Job Cards dated  21.11.1996, 31.12.1996, 21.02.1997, 16.05.1997, 02.02.1998, 02.05.1998, 04.06.1999, which  mention the name of the customers as Ashok Chitra C.P. Ltd., in tandem.

 8.      On the other hand, the Sale  Certificate reveals that the car   was  sold and  certificate  issued to the complainant SPN Singh.  The name of the person to whom the car was delivered and Sale Certificate was prominently recorded in Annexure1, clause (a), as SPN Singh.  However, Ashok  Chitra (P) Ltd, Rang Bahadur Budh Marg, Patna was also mentioned therein as the address of the complainant. Similarly, the customer details  were detailed in Annexure I,  where  Ashok Chitra Pvt. Ltd., as well as SPN Singh were written in the column prescribed for name and address.   It is also clear from the judgment of the  State Commission  that he was the Managing Director of M/s. Ashok Chitra Pvt. Ltd.  The complainant is a  big farmer  having his cultivable land in other Districts of Gaya and Nalanda.  He has to look after these places and manage his cultivation and other properties. Consequently, conveyance  was necessary for him  which he utilizes for personal use.      

 9.      Instead of touching the heart of the problem, the learned counsel  for  the petitioner  just  skirted it.  It must be borne in mind that the Ashok Chitra C.P. Ltd. had booked this car through the complainant  S.P.N. Singh.  This must be borne in  mind that this is a consumer case and it will not be proper to enter into these technicalities.  The case  is pending over since more than two decades  and   nobody  else  has   claimed the ownership of the car.  It  will  not  be  proper  to  add  a  party,  after  elapse of 18 years.  This argument  is  without  force  and  has  to  be  eschewed  out  of  consideration.

 10.    The  second  submission made by the counsel for the OP1 was that  the car  was used  for  commercial purposes.

 11.    This  argument  was  stated  for its outright  rejection.  The cause of action has  arisen prior to  the amendment  of  C.P.Act, 1986, which  was amended in the year 2003.  There is not even an iota  of  evidence  that the car was used for commercial purposes.  The possession  taken  by the complainant for the purpose of personal use. Consequently, we see no  merit  in  this argument, as well.

 12.    The  last submission  made  by the counsel for the petitioner that the order to replace the car is not legal.

 13.    Both the fora below  have come to the conclusion that the defects in the car pointed above were never removed.  There was high  consumption of mobile oil.  Hindustan Motors Ltd., itself  admitted that is Mechanical Engineer examined the car and suggested for replacing of all the four rings and after replacement thereof, it was assured that engine would run for 25000 kms or  for one year,  whichever  happened  earlier.   The  fora below  came to the conclusion that the replacement of rings on 6000 kms only reflected  that  some  basic  and  congenital  or manufacturing defects in the engine.

 14.    It is also noteworthy that the car  was lying with the OP2-Ess Pee Automotives Ltd. for about one month, in the year 1997.  The defects could not be removed.  The  complainant  had  to  spend ₹ 400/-  on taxi, every day.

 15.    During  the pendency of  this  case, the complainant got the car examined on 15.07.2005  by an Expert, named, Sh.L.K. Sinha, Retired Mechanical Engineer.  The said Expert examined the car in presence  of  representatives  of  both the parties  as well as the owner of the car.  The Expert found cylinder block, cylinder head, assembly  crank ,  graft  pestle  of  the  car was unassembled and  was found lying behind the cinema hall (Ashok Chitra Pvt. Ltd.)  He found  that   there was  a  hole in cylinder No.1 and cylinder Nos. 2 and 3 were found with  mobile oil.  Sh. L.K. Singh  reported that as piston  ring  had  been removed  and it was not available, therefore, he was not able to give  his opinion.  The Expert opined  that ordinarily,  no  mobile  oil  was  to be consumed on run of 5000 to 7000 kms. He gave his lengthy report.  The car was having inherent  manufacturing  defect in cylinder assembling.

 16.    As a matter of fact, the counsel for the OP1 did not pick up a conflict with the above said defects.  It stands proved beyond doubt that the engine of the car was defective.

 17.    On the other hand, the counsel for the OP 2-Ess Pee Automotives Ltd. argued that he cannot  be  held  liable  for  the manufacturing  defects.  In  this  context,  he  has  invited  our attention  towards Hindustan  Motors Ltd, & Anr. Vs. N. Shiva Kumar & Anr., (2000) 10 SCC 654, wherein at Para No.5, it was held as under :-

 “The observations of the National Commission to the following effect :

An apprehension has been expressed by the dealer that the burden of this may ultimately fall upon the dealer.  We make it clear that for the manufacturing defects in the vehicle, the dealer cannot be held liable. The liability must be borne by the manufacturer”, are also maintained”.

18.    Consequently, we accept his prayer to this extent only.  OP2 cannot  be  held liable for the manufacturing defects.  However, he has  no  explanation  to  give, why  did he detain the car for one month.  He should  have  handed over the car to the complainant there and  then.  He is also liable for the negligence, inaction and passivity  for  which  we  impose costs  of  ₹ 50,000/-  upon him,  which  be paid by him, to the complainant, for harassment, mental agony  and for  coming  to his service station, time and again, which be  paid  to the complainant,  within  90  days’  from  the date of receipt of this order,  otherwise, it will carry interest @ 9% p.a., till its realization.

 19.    Now, we advert to the case of OP1.  It is made clear that he is alone held  responsible  for  the manufacturing defects.  To that extent, the  dealer  is  absolved of the said liability.  In Hindustan Motors  Ltd. & Ors. Vs. Shiv  Kumar & Anr. (supra).  The Hon’ble Apex Court held that  where  the OPs stopped  manufacturing of  the said model  and under  those  circumstances, the  Supreme Court’s  finding no  other  way, except  to direct the appellants to comply with the State Commission’s order  for refund  of money along with interest, compensation  and costs directed to be paid therein.  Succinctly  stated  to  that  extent,  the order  of  the State Commission will prevail.

 20.    However, we will like to give alternative remedy to the OP1, wherein  the OP1  is  directed  to return the car in road-worthy position,  to the complainant, after  changing  the  engine of the car, within 15 days’ of receipt of the  copy of this order.  OP1 will further give warranty  and  three  free  services  for  a period of one year.  The OP1 is given liberty to produce or provide the requisite spare parts and rectify the defects, within 15 days’  from the receipt of this order, otherwise,  the  complainant  will be entitled to costs of ₹ 500/- per day, till the car is handed over  to  him.  This period will extend upto 30 days.  Thereafter, the order of  the  State Commission shall become executable.  The OP1 will write to the complainant immediately of the kind of choice  they will have,  so that the complainant  will  get  sufficient  time  to  produce  the car, where  it  is  to be rectified.

 21.    The appeal filed by the OPs is frivolous and vexatious.  They have wasted  the time  of the complainant and that of this Commission.  The complainant  could  not  have  the  benefit of the car  for  the  last  18 years’.  It  is  the choice  of the OP1  to opt for any  of  the  remedies  stated  above,  but  under  all the  eventualities, we  further  impose  costs  of  ₹ 1,00,000/- on OP1,  in favour of  the complainant ,  for  harassment  and  mental  agony.  The said costs be paid  within 90 days, from the date of receipt of  this order, otherwise,  it  will  carry interest  @ 9% p.a., till its realization.