PER S.K. NAIK, MEMBER

            These three revision petitions arise out of the same order dated 15.6.2006 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short the ‘State Commission’). RP/2431/2006 is by the manufacturer – M/s Fiat (I) Ltd., RP/1585/2006 is by the dealer – M/s Sundaram Automobiles and RP/1713/2006 is by the complainant. The State Commission, vide the said order, dismissed the appeals filed by the manufacturer and the dealer but modified the order of the District Forum directing them to replace the vehicle with a brand new one free from all the defects failing which they were directed to refund the amount of Rs.7,69,187/- alongwith life time Tax and EMI with interest @ 12% p.a.  It also imposed a cost of Rs.5000/-. 

          The complainant is aggrieved that the relief granted to him by the District Forum which was refund of Rs.9,15,536/- with interest @ 12% has been diluted by the State Commission.  The dealer is aggrieved that since his role was limited to provide after sale service and the matter pertains to manufacturing defect, no liability should have been fastened on him. The manufacturer, on the other hand is aggrieved that both the fora below have failed to appreciate that it was not a case of manufacturing defect.

          Since the revision petitions arise out of the same order dated 15.6.2006 passed by the State Commission, all these revision petitions are being taken up together for disposal by this common order.  To facilitate easy understanding, the parties in this order are being referred to as the complainant, the manufacturer - OP-1 and dealer – OP-2 as arrayed before the District Forum.

Facts of the case  ---  The complainant purchased a “Fiat Siena Weekender (Diesel) Station Wagon” for Rs.7,69,186/- on 31.10.2002 from the dealer.  The complainant being an Engineer had noticed some unusual sound emanating from the vehicle at the time of delivery.  He had brought the same to the notice of the dealer on 25.11.2002.  Since the defects were not removed, he left the vehicle with the dealer for rectification who informed him that the noise was due to operational characteristic of the engine. Further, the dealer extended the warranty by another two years. Even thereafter, there was no improvement and, therefore, the complainant requested the dealer to replace the vehicle.  The vehicle was left at the dealer’s premises where-after on 13.12.2002, the complainant for the first time was informed that the engine of the vehicle being defective has been replaced by a new engine.  The vehicle, thereafter was delivered to the complainant with an assurance that the vehicle is free from the defects.  The unusual sound, however did not stop and it was again brought to the dealer’s notice who, however, advised him to use the car for some more time for the new engine to settle down. The complainant apprehending  that the problem will continue addressed a letter dated 13.1.2003 to the dealer stating therein that if there were to be any defects in future, the complainant would surrender the vehicle itself and the same should be replaced by a new one.  According to the complainant, the vehicle with the replaced new engine again developed some mechanical problem due to gear meshing and he did not find the vehicle roadworthy.  He, therefore, left the vehicle with the dealer insisting for a change of the vehicle itself.  Thereafter, a series of correspondence between the parties ensued.  While the dealer and the manufacturer informed the complainant that the vehicle was in perfect running condition, the complainant continued to insist only on the replacement of the vehicle.  He did not take delivery of the vehicle from the dealer where it is reported to be lying even now.

          In this background, the complainant approached the District Forum who after hearing the parties and on assessment of the evidence including reports submitted by the two experts appointed by the respective parties, came to the conclusion that the vehicle in question suffered from a manufacturing defect and, therefore, ordered the manufacturer – OP-1 and the dealer – OP-2 to refund the amount of Rs.9,15,536/- within 60 days from the date of the order failing which it was to carry interest @ 12% p.a. till the date of realization.

          Aggrieved upon the order passed by the District Forum, the manufacturer – OP-1 and the dealer – OP-2 filed appeals before the State Commission, who as stated above, vide its order dated 15.6.2006 disposed of the appeals, modifying the order of the District Forum and directing the opposite parties to replace the vehicle with a brand new car free from all defects failing which they were to refund the amount of Rs.7,69,186/- alongwith life time tax and EMI with interest @ 12%.

          The complainant is aggrieved that the State Commission has reduced the amount of refund from Rs.9,15,536/- to Rs.7,69,186/- and wants it to be enhanced while the manufacturer – OP-1 and the dealer – OP-2 are aggrieved that despite there being no deficiency in service, they have been held liable.

          Learned counsel for the dealer – OP-2 has contended that there has been no allegations in the complaint that OP-2 has failed to render any after sales service.  The entire complaint only refers to the problems with regard to noise in the engine and there is no averment with regard to any deficiency on the part of the dealer- OP-2 with regard to the service being provided.  He has, therefore, contended that OP-2, being the dealer cannot be held jointly and severally liable for refund of any amount on account of manufacturing defect. In this regard, he has relied upon the ruling in the case of Kaptan Singh (Minor) Vs. B.K.Jain & Anr. 1986-2006 Consumer 11276 (NS) and Lakshmi Automobiles Vs. Lal Kunwar Choudhary & Anr. I (2006) CPJ 54(NC).

          In response to the extension of the period of warranty by two more years and suo moto replacement of the engine by a new one, learned counsel has submitted that the period of warranty was extended with the concurrence of the manufacturer and just because it has been so extended, the dealer cannot be held liable for refund of the amount on account of manufacturing defect for which the manufacturer alone is responsible.  Similarly, the engine had been replaced with the concurrence of the manufacturer to allay any fears from the mind of the complainant that the engine of the car from which he perceived unusual sound was defective.  He, therefore, contends that both the District Forum as well as State Commission have wrongly held the dealer jointly liable with the manufacturer for refund the cost of the vehicle.  With regard to the replacement of the vehicle, he has contended that the same is not permissible and only defective parts can be replaced to the customer’s satisfaction.

          Learned counsel for the manufacturer – OP-1 has contended that the complainant appears to have a pre-conceived notion that the vehicle was defective from day one.  He repeatedly refers to “ unusual, unhealthy sound emanating from the engine” all through his complaints and correspondence and continued to insist only on replacement of the vehicle.  The fact that the engine of the vehicle was replaced with a new engine to allay his apprehension speaks of the earnestness on part of the opposite parties to provide satisfactory service but even thereafter the complainant continued to complain of the same noise which is proof of a mental block as the vehicle was fully roadworthy and despite the request to take delivery thereof, the complainant left the vehicle with the dealer.  With regard to the report of the experts, the counsel submits that the District Forum has preferred to believe the report of the expert appointed by the complainant while it has ignored the report of a qualified automobile engineer holding BE and AMI qualification who had inspected the car and did not find any abnormal noise in the car.  His evidence was not discussed by the District Forum.  Contending that the onus to prove the manufacturing defect lies heavily on the complainant, learned counsel submits that the complainant has produced no worthwhile evidence to prove the same.  Mere allegation should not have been taken as the truth by the fora below. In this regard, he has referred to the judgment in the case of  (a)  Swaraj Mazda Ltd. Vs.P.K.Chakkappore & Anr. II (2005) CPJ 72 (NCDRC) (b) VOICE Vs. Maruti Udyog Ltd. & Ors. I (1992) CPJ 274 (NCDRC) and (c) Ajitha Chit Funds (P) Ltd. Vs. Tata Engineering & Ors. I (2007) CPJ 204 (NCDRC.)

           Finally, he has contended that as held by the Hon’ble Supreme Court in the case of Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra & Anr. II (2006) CPJ 3 (SC), any relief outside the terms and conditions of the manufacturer warranty could not be sustained.  In the case in hand, the terms and conditions of the warranty did not provide for replacement and or refund.  It was, therefore, illegal on part of the fora below to have travelled beyond the conditions of warranty and award replacement/refund.  The company was willing to repair/replace free of cost any parts during the period of warranty. Towards the fulfillment of this commitment, it replaced the engine.  There has been absolutely no deficiency in service on part of the OPs and both the fora below wrongly held them liable.

          We have heard the learned counsel for the parties and also perused the records of the case carefully.

          The moot point for decision pertains to whether the vehicle in question, under the facts and circumstances of the case, can be said to have suffered from any manufacturing defect warranting replacement thereof and if otherwise whether the refund of Rs.7,69,186/- with 12% interest as ordered by the State Commission is justified and thirdly, whether both the dealer and manufacturer are jointly and severally liable.   

          From the facts emerging out  from the case,  it is clear that soon after the complainant brought to the notice of the dealer that he has noticed unusual sound emanating from the engine, the period of warranty  was  extended by two years.   It  is also admitted  that when the complainant continued to persist with the same complaints, the dealer  replaced  the engine of the vehicle with a new one.  These two factors appear to have weighed with the District Forum which was subsequently upheld by the State Commission that the dealer was equally liable  with  the manufacturer.   It also appears that just because the engine  has  been replaced and the complainant continued to level the same allegation of continuing unusual sound emanating from the new engine,  it was held that  there was a manufacturing defect.  It also placed its reliance on the report of Shri L.D. Govindarajan appointed  by the complainant who corroborated the contention of the complainant. The District Forum further held that the defects in the vehicle could not be cured by replacing the parts and, therefore, ordered the refund of Rs.9,15,536/-. The State Commission while agreeing with the findings of the District Forum, however, felt that a replacement with a new car will meet the ends of justice and on failing to do so, the opposite parties were directed to refund the cost of the car with interest.

          In our view, both the fora below have failed to take note of the fact that the complainant from day one was apprehensive of some problem in the car which unfortunately appears to have got entrenched in his mind.  In para 8 of the complaint, he states that “as on the date of the delivery on inspection the complainant could make out that there was some unusual sound emanating from the motor vehicle.”

          As per the dealer - OP-2, the vehicle was taken delivery of after a test drive.  There is no record to prove that the complainant had taken the delivery with any reservation.  Further, if he was not happy with the said vehicle, he could have asked for a change then and there. Besides, the contention of unusual sound emanating from the vehicle could have been judged only if another vehicle of the same make and model had been test driven so that an objective comparison of the engine sound could have been made.  From the records we find that while the complainant took delivery of the vehicle on 23.11.2002, within two days i.e. on 25.11.2002, he wrote a letter to the dealer, which is not annexed with his revision petition, but it appears that vide the said letter he brought it to the dealer’s notice that there is some unusual sound from the engine.  Subsequently, he leaves the vehicle with the dealer who after attending to the complaint informs him that the vehicle is in good condition and the noise is due to operational characteristic of the engine.  In order to re-assure the complainant and build his confidence as a matter of goodwill, the warranty period of the car was extended by another two years.  On 3.12.2002 within a week of his earlier letter, the complainant continued to file his complaint and asked for change of the vehicle.  Because of his insistence and to allay in fears from his mind that the opposite parties are not responsive to his complaint, the opposite parties replaced the engine of the vehicle with a brand new engine and informed him on 13.12.2002.  However, the complainant continued to point out the same defect even in the new engine and left the vehicle with the dealer on 6.2.2003, contending  that the vehicle had inherent defect and he would be satisfied only if the vehicle is replaced.  This was followed by letters dated 17.2.2003, 22.2.2003 and vide his letter dated 15.3.2003 written in quick succession, he insisted on the replacement of the vehicle.  The respondent vide their letter dated 18.3.2003, however, had informed the complainant that on examination of the vehicle including engine and other parts by competent engineers, it was found to be in roadworthy condition and he should take back the vehicle.  The complainant, however, remained adamant  on his demand for a replacement.  The fora below have failed to notice this conduct of the complainant.

          The fact of extension of the period of warranty and replacement of the engine which is the main component or so to say the heart of the vehicle should not have been taken in the negative sense by the District Forum.  It was to express their genuine concern for the consumer that the opposite parties had done so.  There is no worthwhile evidence to indicate that the vehicle suffered from any serious manufacturing defect and in any case the allegation of noise emanating from the engine even after its replacement by new engine cannot be believed.  It is common knowledge that diesel engine emit more noise in comparison to petrol engine.

          In so far as the reliance on the expert opinion expressed by Shri L.D.Govindarajan is concerned, the District Forum appears to have failed to appreciate that the said Shri Govindarajan was known to the complainant for many years and h is report had to be carefully assessed specially in the context of his admission in the cross-examination that he was known to the complainant for a long time.  Similarly, the District Forum should not have completely discarded the report submitted by Sri Krishnamurthy who is a technically qualified assessor who had examined the vehicle in the presence of the complainant and had also undertaken a long test drive before arriving at his conclusion that the vehicle did not suffer from any manufacturing defect.

          In our view, the complainant, on whom the burden to prove the manufacturing defect heavily rested has not been able to discharge the same satisfactorily.  The main complaint made was with regard to a peculiar noise emanating from the engine.  The complaints have been made in quick succession and repeated even after the replacement of the engine by a new one.  The fora below appear to have erroneously arrived at the finding that the vehicle suffered from manufacturing defect without there being sufficient evidence.  It is by now very well settled by various pronouncements of this Commission as well as the Apex Court that obligation of the manufacturer/dealer is only to repair/replace any part of the vehicle found to be defective even during the warranty period which will be carried out free of charge.  In the case of Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra & Anr. II (2006) CPJ 3 (SC) supra  the Apex Court has held that when the condition of warranty has been specially stated the principle of Corpur Juris Secundrum will not be attracted.   In the case in hand, the manufacturer – OP-1 have also referred to their clause of warranty which states as under :-

“Fiat India Pvt. Ltd. (FIPL),  hereinafter referred as the ‘Company’, warrants to repair or replace, free of costs, any part or parts (except electric bulbs, tyres & tubes, music system, battery, oil filters, clutch disc, brake pads and consuables) of new FIAT Car which, to the satisfaction of the company are found to be defective either in material or manufacture within a period of 12 months (365 days) with unlimited kilometerage from the date of delivery of the car to the original purchaser subject to the following terms.”

          It has been contended that the warranty is a binding contract which the complainant entered into with the manufacturer – OP-1 and its term cannot be ordered to be altered to the prejudice of the warrantor.   For all these reasons, therefore, we do not find that there has been any manufacturing defect in the car. 

However, considering the peculiar facts and circumstances of the case, when the vehicle has been left by the complainant with the dealer since 6.2.2003 and is reportedly still lying with them, the dealer cannot be totally absolved of in-action on their part to have either informed the complainant of the consequences of not taking back the vehicle or approached the Consumer Fora for direction in the matter immediately after receiving the notice on the complaint.  The complainant too has to be blamed to a large extent since he has not taken the vehicle back despite the opposite party in informing him that the vehicle was free of any defect and is roadworthy.  The manufacturer, in our view should have played a more pro-active role to satisfy the complainant, if necessary by referring the vehicle for an independent expert opinion by a mutually agreeable authority/ institution.  Further, refund of the cost of the vehicle will not be justified since the complainant has not taken the vehicle from the dealer despite their letter of certifying that the vehicle has no defect.  Therefore, while we hold that the complainant has not been able to prove any manufacturing defect, all the same, the dealer and the manufacturer are directed to remove the defect, if any, in the vehicle make it roadworthy, if necessary by reconditioning the vehicle and deliver it to the complainant in the presence of an independent technical expert mutually agreed upon by the complainant and opposite parties and for this purpose any of the party may apply to the District Forum for appointing such expert if it is not mutually agreed upon by the parties.  The expert shall certify that the vehicle is free from any defect which shall be final for all purposes.  This should be done within a period of three months. The OPs, thereafter, to provide a warranty for one year from the date of delivery. The revision petitions are accordingly disposed of in these terms.  Under the peculiar facts of the case, there would be no order as to costs.

                                   …………………..………J

     (R.K. BATTA)

      (PRESIDING MEMBER)

                                                                   ……………….……………

                                                        (S.K. NAIK)

                                                                            MEMBER

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