Date : 20.03.2013.

Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.

1.       This appeal is directed against the order dated 15.5.2008 passed by District Forum, Osmanabad in C.C.No.46/2008, by which the said complaint has been allowed.

2.       The case of the complainant in brief as set out in the complaint is that, he purchased Mahindra Scorpio jeep from opposite party No.3 by initially paying Rs.21,000/- on 16.3.2007 and subsequently Rs.8,12,000/- on 20.3.2007 to the opposite party No.3.  The said jeep was manufactured by opposite party No.1 Mahindra and Mahindra Company.  It was registered as MH-25Q-9999.  The said jeep was having manufacturing defect as it was suffered from wheel wobbling and vibration.  The said defect was noticed by the complainant on 22.3.2007 i.e. on third day of it`s purchase. Therefore complainant took that jeep to opposite party No.3, which directed the complainant to take it to it`s service centre which is opposite party No.2.  The complainant took that jeep to opposite party No.2 on 27.3.2007.  At that time, opposite party No.2 could not remove the said defect. Thereafter from time to time the complainant took that jeep to opponent No.2 till 28.11.2007.  But the said defect was not removed. Lastly, the opponents gave evasive reply to the complainant about removal  of defects.  Therefore complainant prayed that opposite parties be directed to replace the said jeep by new jeep and to pay him compensation of Rs.1 lakh or alternatively to take back the jeep and to pay him total Rs.11 lakhs and further to pay him Rs.2 lakh towards mental agony and Rs.2000/- towards cost of the complaint.

3.       The opposite party No.1/appellant appeared before the District Forum in pursuance of service of notice.  But it did not file it`s written version.  Hence the complaint proceeded without it`s written version.

4.       The Opposite party No.2 & 3/respondent Nos.2 & 3 herein  filed written version before District Forum below.   They admitted that the complainant had brought the aforesaid jeep to them with complaint of steering wobbling and vibration in the jeep from time to time, but they could not remove the said defect.  They denied that there is manufacturing defect in the said jeep.  They also submitted that they gave information in written about aforesaid defect in the jeep to the opposite party No.1 company and therefore there is no deficiency in service provided by them to the complainant.  They therefore requested that complaint as against them may be dismissed.

5.       The District Forum below after considering evidence brought on record believed the aforesaid case of the complainant and held that there is manufacturing defect in the jeep and therefore it gave direction to the opposite party No.1 manufacturer to take back the aforesaid jeep from the complainant and to replace it by new jeep within a period of thirty days.  It also directed the opposite party No.1 manufacturer to pay Rs.1 lakh to the complainant towards registration charges, tax of the jeep and mental harassment within 30 days.

6.       The said order is assailed by the original party No.1 in this appeal.  The learned advocate of the appellant (original opposite party No.1) submitted that the vehicle in question was used by the respondent NO.1 herein (Original complainant) for running it upto long distance before filing of the complaint and therefore no order ought to have been passed for replacement of that jeep by new jeep.  He further submitted that at the most direction could have been given for sorting out the defects or by replacement of defective parts, if needed.  He further submitted that the District Forum ought to have called opinion from expert about manufacturing defect if any and hence in the absence of any such expert opinion the impugned order cannot be sustained under law.  He relied upon observations made in the following cases.

i)        Sona Auto Agency(P) Ltd. –Vs- Sisirenda Nath Banerjee and another, II (2009) CPJ 146(NC).  In that case complaint was dismissed by the Forum in the absence of expert evidence. The order passed by the Forum was set aside in appeal by the State Commission and order was given for payment of purchase price of the vehicle with interest by the dealer and manufacturer.  In revision, the Hon`ble National Commission observed that whether vehicle suffered from manufacturing defect, is surely a matter that ought to have been referred to automobile testing laboratory for technical determination. The said error was not rectified by State Commission and hence after six years of purchase, it is not feasible to remit the matter for testing of vehicle. The problem in the vehicle remained unsolved after several rounds of servicing.  The vehicle had done only 300 Km. of running after 10 months of purchase and it was still within warranty.  Therefore the order of the State Commission was upheld.

ii)       Seema Gandhi –Vs- Maruti Suzuki India Limited and others, 2011(3) CPR 150(NC).  It is observed in that case that it is for complainant to prove that vehicle suffered from any manufacturing defect by examining expert.

iii)      Authorised representative, Seva Automotive Ltd. –Vs- Shri Anil Bansilal Chordiya and others, 2012(2) CPR 197.  The Hon`ble State Commission, Mumbai held in that case that the vehicle cannot be replaced after having run for thousands of kilometer. 

iv)`     Tata Motors Ltd. Through it`s Regional Manager and others –Vs- Sunil Kumar and another, 2012 (2) CPR 379(NC). The ratio laid down in that case is that replacement of vehicle can be ordered only in exceptional cases.

v)       Kumari Namrata Singh –Vs- Manager, Indus – A Division of Electrotherm and another, 2012 (3) CPR 570(NC). The ratio laid down in that case is that for proving fact of manufacturing defect expert opinion is necessary.

7.       The learned advocate of appellant also submitted that the District forum ought to have given chance to the appellant to file written version in the interest of justice and therefore the impugned order may be set aside.

8.       None appeared for respondent NO.1/original complainant  when the appeal was lastly heard by this Commission. It is also seen from perusal previous daily proceedings that none had appeared for respondent No.1 on last three dates of final hearing.      Therefore we have proceeded to decide the appeal on merit.

9.       It is not disputed that the appellant herein/original opposite party No.1 did not file written version before District Forum though it had put appearance after receiving notice. No explanation is given by the appellant why  it did not file written version. The District Forum had granted sufficient time to the appellant as seen from impugned order. Therefore we hold that there is no question of giving opportunity to the appellant to file written version by remanding back the case to the District Forum below.

10.     We also find that as the appellant/original opposite party No.1 did not file written version after putting appearance, the averments made in the complaint  can be accepted as against the appellant.  Now the appellant in appeal cannot raise the defense that there was no manufacturing defect in the jeep , particularly when original opposite party No. 2 & 3 admittedly could not remove the defects found by them during servicing of the jeep and accordingly they informed the said defect to appellant. Inspite of getting that information from the original opposite party No. 2 & 3 , the appellant did not take any steps to remove the said defects. 

11.     The original opposite party No.2 & 3 issued information in writing to the complainant which is produced on record.  It is also not disputed.  It shows that the jeep was having defects of wheel wobbling and vibration and it was so noticed by them during servicing on 10.4.2007, 10.5.2007, 4.7.2007, 17.9.2007, 24.10.2007 and 28.11.2007.  Moreover the letter given by them to the appellant also shows that they could not remove the said defect and hence it`s information was given by them to the appellant. The jeep was purchased on 20.3.2007 and aforesaid defects were noticed by the original complainant for the first time on 22.3.2007.  The said defects persisted till filing of the complaint as stated in the complaint.

12.     The opposite party No.2 & 3 are the service centers authorized by the appellant.  In our view in the absence of any defense of appellant before District Forum below , it can be said that the aforesaid jeep was inspected by the experts working with opposite party No.1 & 2 and inspite of their making efforts from time to time they could not remove the aforesaid defects and lastly they left the matter with the appellant by giving intimation to it in writing. The aforesaid jeep was having defect of wheel wobbling and vibration and as the said defects could not be removed by authorized service centres despite of taking strenuous efforts, it can be said that there was manufacturing defects the said jeep.  Thus we find that this is exceptional case in which we find that the District Forum below has rightly held that there is manufacturing defect in that jeep.  The vehicle did not run for any such long distance so as to draw any inference against the case of complainant.  The jeep was  found having aforesaid manufacturing defects within the period of warranty.  Period of more than five years has been now passed since purchase of that jeep by the complainant.  It is not now feasible to remit the matter for testing of the jeep.  Therefore we hold that the aforesaid decisions relied upon by learned advocate of appellant are not of any assistance to the appellant.   The facts and circumstances of the present case are thus  they are totally different from those of said cases discussed above.

13.     We therefore hold that the complainant has proved that there are manufacturing defects in the aforesaid jeep and hence it is proved that there is deficiency in service provided by appellant to the complainant. We find that as a period of more than five years has been already passed from purchase of said defective jeep, it is not just and proper now to give direction of replacement of that jeep by new jeep.  The complainant is therefore entitled for price of that jeep paid by him, which is Rs.8,33,000/- with interest @ 9% p.a. from the date of complaint till it`s realization. However, complainant is not entitled to compensation of Rs.1 lakh as awarded under impugned order since the jeep is still in his custody and he has not proved that he sustained said loss of Rs. 1 lakh. We thus find that compensation of Rs.10,000/- towards mental harassment and cost of Rs.1,000/- would be just and proper under the facts and circumstances of the present case.  Thus we proceed to pass the following order.

                                                O   R    D    E    R

1.     Appeal is partly allowed as under.

2.     The impugned order passed by District Forum in C.C.No.46/2008 on 15.5.2008 is hereby modified and substituted as under.

The original opposite party No.1/appellant shall pay to the original complainant/respondent No.1 herein compensation of Rs.8,33,000/- with interest @ 9% p.a. from the date of complaint i.e. from 12.2.2008 till its realization. Complainant shall return the defective jeep bearing registration No.MH-25Q-9999 to the original opposite party No.1/appellant on the same date of receiving the aforesaid amount of Rs.8,33,000/- with aforesaid interest from original opposite party No.1/appellant. 

3.     The original opposite party No.1/appellant shall pay to the original complainant/respondent No.1 herein Rs.10,000/- towards compensation on account of mental harassment and Rs.1000/- towards cost of the  complaint.

4.     Copies of this judgment and order be sent to both the parties.

Pronounced on dt. 20.03.2013