PER VINEETA RAI, MEMBER

1.       This first appeal has been filed by Tata Engineering & Locomotive Co. Ltd. & Anr., Appellants herein and Opposite Parties before the Delhi State Consumer Disputes Redressal Commission  (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission, which had allowed the complaint of Subhash Ahuja & Anr., Respondents herein and Original Complainants before the State Commission. 

2.       In his complaint before the State Commission, Respondent/Complainant No.1, who is the Proprietor of a firm dealing in interior decoration, furniture and furnishing, had purchased a Tata Indica car for his personal use in the name of Respondent/Complainant No.2, who was his authorized dealer.  The car was delivered on 26.05.1999 on payment of about Rs.4 Lakhs.  On the very first day after the delivery of the vehicle, problems started occurring in the said vehicle, including in the engine, and during the warranty period itself, the car had to be taken to the workshop as many as 36 times for its various problems, including major problems with the engine and various other parts.  It remained in the workshop for 69 days during a period of one and half years.  The problems kept occurring even after repeated repairs and in September, 1999 total wiring of the vehicle got burnt causing danger to the life of Respondent/Complainant No.1 and his family members. Respondent/Complainant No.1 took the vehicle to the workshop on a number of occasions when even after the engine was totally replaced problems continued to occur.  Appellants were, therefore, requested to exchange the defective vehicle with a new one, which was not agreed to.  Being aggrieved, Respondents/Complainants filed a complaint against the Appellants before the State Commission on grounds of deficiency in service in selling a defective vehicle and requested that they be directed to pay him a total compensation of Rs.19,11,000/-, which included the refund on the cost of the vehicle, various incidental and other expenses, including making alternative arrangement when the vehicle was in the workshop as also for the mental agony, tension and harassment caused to Respondents/Complainants.

3.       Appellants on being served filed a written rejoinder denying the above allegations.  It was stated that the vehicle had undergone extensive checks before its delivery, which included checks at the manufacturing plant at Pune and also after it was certified by ARAI as having complied with the Central Motor Vehicle Rules.  The vehicle had travelled over 64000 Kms. within the first year itself and during this period the vehicle had come to the workshop for repairs of a minor nature related to wear and tear due to its extensive use.    The very fact that the vehicle had travelled 64000 Kms. indicates that there were no serious defects.  Further, even after the warranty period had expired, Appellants attended to the vehicle free of charge, including replacement of the engine purely as a gesture of goodwill and not because there was any manufacturing defect in the engine or any other part of the vehicle.  Further, no evidence was filed by Respondent/Complainant No.1 to back his claims of the losses suffered by him.  Also since the vehicle had been purchased by the Respondent/Complainant for commercial purpose and was being used in the business of Respondent/Complainant No.2 to earn profits, the claim was  not  maintainable under the Consumer Protection Act, 1986.

4.       The State Commission after hearing the parties and on the basis of evidence produced before it allowed the complaint by observing as follows:

“36.   In view of the fact that the vehicle was purchased in 1999 and more than nine years have passed, no useful purpose will be served by replacing the vehicle by a new vehicle as it must have already run huge mileage.  But in our view a lump sum compensation of Rs.2.5 Lacs (Two and a Half Lakhs) for each and every component of suffering which shall also include the cost of litigation, shall meet the ends of justice.”

5.       Being aggrieved by the above order, the present first appeal has been filed.

6.       Learned counsel for both parties made oral submissions.

7.       Learned counsel for the Appellants vehemently argued that the State Commission erred in concluding that there were manufacturing defects in the vehicle despite the fact that there was no evidence of the same. For example no expert opinion was produced by the Respondent/Complainant on whom there was onus to do so to back his allegations of manufacturing defects in the vehicle nor was there any laboratory test to confirm the same.  In the absence of such opinion, the manufacturer cannot be held liable.  Counsel for the Appellants cited the judgments of this Commission in Tata Motors Ltd. Vs. Shri Kushal Singh Thakur & Ors. [Revision Petition No.1153 of 2005 decided on 21.08.2009] and Classic Automobiles Vs. Lila Nand Mishra & Anr. [I (2010) CPJ 235 (NC)] in support.  Further, from a perusal of various defects e.g. wipers not working, belts being noisy and loose, AC not working properly etc., it is clear that there was no manufacturing defect.  Counsel for the Appellants brought to our notice a judgment of the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. [(2006) 4 SCC 644], wherein the Apex Court has observed as follows:

“8.     The obligation under clause (3) of the manual reads as under:

‘(3)    Maruti’s warranty obligation – If any defect(s) should be found in a Maruti vehicle within the term stipulated above, Maruti’s only obligation is to repair or replace at its sole discretion any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture. ..”

In the instant case, in terms of the above judgment, the Appellants had fully discharged their obligations by removing the defects whenever required and also replacing the defective parts.  Thus, there was no deficiency in service on the part of Appellants and as stated earlier even the engine had been replaced as a gesture of goodwill because it was noisy and over-heating, which, however, did not amount to a manufacturing defect.   Counsel for the Appellants also stated that since the vehicle had been bought for commercial purposes in the name of Respondent/Complainant No.1’s authorized dealer, the complaint ab initio was not maintainable under the Consumer Protection Act, 1986.

9.       Learned Counsel for the Respondents/Complainants on the other hand stated that as pointed out in the complaint before the State Commission, the vehicle was purchased for personal use of Respondent/Complainant No.1 and the State Commission having gone into this matter had rightly concluded that the vehicle was not used to generate profit and, therefore, did not come within the ambit of a commercial purpose.  Counsel for the Respondents/Complainants cited the judgment of this Commission in Harsolia Motors Vs. National Insurance Co. Ltd. [I (2005) CPJ 27 (NC)] as also the judgment of Hon’ble Supreme Court in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi [(2000) 1 SCC 98] in supprt.  He further stated that the very fact that the vehicle right from day one developed major problems pertaining to every part of the vehicle which required its being taken 36 times to the workshop within the warranty period where several parts were changed, particularly the engine which is a key component of the vehicle, clearly indicates that these problems could not have been merely because of wear and tear.  Had that been so, the vehicle would have required repairs occasionally and not every few days as confirmed by the evidence on record. The State Commission has rightly appreciated these facts and allowed the complaint.

10.     We have considered the submissions made by learned Counsels for the parties and have gone through the evidence on record.  We note at the outset that in this appeal the Appellants have challenged the fact that Respondents/Complainants are not ‘consumers’ under Section 2(1)(d) of the Consumer Protection Act, 1986 since they had bought the vehicle for a commercial purpose.  In this connection, we note that the State Commission has examined this issue in detail and we agree with its finding that since Respondent/Complainant No.1 had purchased the vehicle as stated in his complaint for his personal use and not for any commercial purpose or to generate profit, his complaint was rightly entertained as that of a ‘consumer’ in terms of Section 2(1)(d) of the Consumer Protection Act, 1986. 

11.     So far as the aspect relating to defects in the vehicle, including the manufacturing defects, is concerned, we note that admittedly during the period of warranty the vehicle had to be taken to the workshop on 36 occasions from 27.05.1999 to 26.11.2000 and it remained in the workshop for 69 days till the date of filing of the complaint.  Almost every part of the vehicle had some problem or the other.  The most serious complaint pertained to be engine.  Appellants have stated that even though there was no manufacturing defect in the engine, it was changed as a gesture of goodwill after the warranty period.  We are unable to accept this contention.  No car manufacturer would change an engine if it could be rectified through repairs and the very fact that the Appellants replaced the entire engine indicates that whatever defects it had were inherent in its manufacturing which could not be removed.  This is clearly a case of res ipsa loquitur where evidence in the form of opinion of technical expert is not required to prove the case.  Undoubtedly, inconvenience as also mental agony and harassment was caused to the Respondent/Complainant No.1 on account of the vehicle and keeping in view the above facts, we are of the view that the compensation of Rs.2,50,000/- awarded by the State Commission is reasonable and justified in the present case.

12.     We, therefore, uphold the order of the State Commission and dismiss the present First Appeal.  Appellants are directed to comply with the order passed by the State Commission and pay the Respondent/Complainant sum of Rs.2,50,000/- within a period of 8 weeks.  No costs.