PER S.K. NAIK, MEMBER

1.       Tata Motors Limited, the manufacturer of the truck purchased by respondent no.1/complainant have filed this revision petition to assail the order dated 30^th of September, 2010 of H.P. State Consumer Disputes Redressal Commission, Shimla (State Commission for short).  The State Commission while accepting the appeal of the respondent no.1/complainant has set aside the order of dismissal of the complaint passed by the District Consumer Disputes Redressal Forum, Solan, H.P. (District Forum for short) and has held that it was a case of manufacturing defect and, therefore, ordered them along with respondent no.2/dealer to replace the vehicle with a new one of similar description, failing which to refund a sum of Rs.6,77,000/- along with interest @ 12% per annum w.e.f. 26^th of October, 2005 till the date of payment.

2.       On presentation of the revision petition by the petitioners, we had issued notice to the respondent no.1/complainant and the respondent no.2/dealer on the application for condonation of delay and the revision petition.  In response thereto, while the respondent no.1/complainant has appeared in person, there is no representation on behalf of respondent no.2/dealer.  Since more than 30 days have passed from the date of notice i.e. 03.10.2011, respondent no.2/dealer is deemed to have been duly served and is, therefore, proceeded ex-parte. 

3.       Respondent No.1/complainant, who appears in person, has raised a preliminary objection that the revision petition is hopelessly barred by limitation.  In response thereto, learned counsel for the petitioners Shri Aditya Narain, Advocate, has submitted that for the delay of 175 days in filing the revision petition an application for condonation of delay has been filed.  He contends that the delay was caused primarily on two counts; firstly that when the brief was entrusted to them, it was found that some important/vital documents necessary for filing the revision petition were not furnished by the petitioner company.  An email, therefore, had to be addressed to the manager of the company to obtain the said vital documents from the local counsel.  The other reason, which was the primary ground of the delay, was that the legal manager of the company had been transferred and it took some time for a new legal manager to take his position.  Contending that the delay was not intentional and that it occurred despite best efforts, he requests that the delay be condoned.  In support of his contention that the delay caused due to transfer of an employee constitutes ‘sufficient cause’, he has referred to a judgment of the Hon’ble Supreme Court in the case of Varadaraja Perumal Temple V. Pattabiraman And Another [(2005) 10 SCC 292]. 

4.       We have carefully considered the submissions made by learned counsel for the petitioners.  The law on the subject of condonation of delay by now stands fully crystalized by a series of orders pronounced by this Commission as also a number of judgments delivered by the Hon’ble Apex Court.  In essence, the crux of all the judgments aim at one thing i.e. while every day’s delay may or may not strictly be explained and further that a delay so caused may also be condoned on imposition of some terms i.e. cost etc. and further that the length of delay need not necessarily be the sole/main criteria for rejection of the condonation application, the fact remains that in exercise of the judicial discretion in favour of an applicant in condonation applications, it is the ‘sufficient cause’ which would be the main parameter to convince the forum and this will depend on the facts of each case. 

5.       In the case in hand, we take note of the fact that in addition to the 90 days available to the petitioners for filing a revision petition under Regulation 14 of the Consumer Protection Regulations, 2005, it has taken another 175 days for them to file the revision petition.  By no stretch of imagination can this long delay be said to constitute ‘sufficient cause’.

6.       Even the so called correspondence entered into by the learned counsel for the petitioners with the petitioner company do not fully support his contention, inasmuch as only one email dated 30^th of December, 2010 vide which the need for 7 documents was projected, there was no follow up/reminder  until the  filing of the revision petition on 16^th of August, 2011. 

7.       While the revision petition can be dismissed on the ground of limitation alone but we cannot be oblivious to take note of the submissions made by the learned counsel for the petitioners on the following aspects touching the merits of the matter:-

(i)      The complaint of respondent no.1/complainant had been dismissed by the District Forum;

(ii)      The State Commission without obtaining any expert opinion as to whether the vehicle suffered from any manufacturing/inherent defect rushed to an arbitrary conclusion in that behalf;

(iii)     The said conclusion was based on the single instance of breakdown of the vehicle due to excessive heating of the engine;

(iv)     The vehicle was in the possession and use of respondent no.1/complainant ever since 24^th of August, 2007; and

(v)     The State Commission had directed the replacement by a totally new vehicle, failing which to refund a huge sum of Rs.6,77,000/-, which is totally out of proportion to the alleged deficiency in service.

8.       We find that in the backdrop of these peculiar facts and circumstances and in keeping with the judgment of the Hon’ble Supreme Court in the case of Maruti Udyog Ltd. V. Susheel Kumar Gabgotra And Another [(2006) 4 SCC 644], this revision petition deserves to be considered on merit and, therefore, condone the delay, however, subject to cost of Rs.25,000/- to be paid by the petitioners to respondent no.1/complainant.

9.       Coming to the merits of the case, the undisputed facts are that respondent no.1/complainant had purchased a Tata truck model LPT-1109 from respondent no.2/Sikand & Company allegedly by obtaining financial assistance from the ICICI Bank, Shimla on 24^th of March, 2005 for a consideration of Rs.6,77,000/-.  The manufacturer had provided a warranty cover for a period of 18 months or running of 1,50,000 kms., whichever was earlier.  Within a period of 6 months of purchase of the truck while on its journey to Delhi, the vehicle encountered major problem and was taken to M/s Metro Motors at Karnal, the authorized service station of the manufacturer, on 26^th of October, 2005.  After the repairs of the vehicle, as per respondent no.1/complainant, the problem was not rectified and he had, therefore, to take the vehicle to the workshop of the petitioners at Chambaghat, District Solan, Himachal Pradesh on 27^th of October, 2005.  While the say of the petitioners is that the experts examined the vehicle and found that the engine of the truck had ceased, for which they attributed to the overheating of the engine for want of adequate coolant and attributed the negligence to respondent no.1/complainant.  They, however, overhauled the engine and demanded a sum of Rs.17,000/- for the repairs.  Respondent no.1/complainant, however, insisted that the vehicle be delivered to him without any payment, contending that the vehicle was still under the period of warranty and the workshop was obliged to undertake such repairs free of cost.  The vehicle, therefore, remained with the workshop until 24^th of August, 2007, when under the direction of the District Forum it was released to respondent no.1/complainant. Respondent no.1/complainant was aggrieved by the unhelpful conduct and attitude of the petitioners/opposite parties because of which he had to not only bear the burden of discharging the loan obtained from the ICICI Bank but also suffered monetary loss in addition to mental agony and, therefore, filed a complaint before the District Forum.  The petitioners/Tata Motors contested the complaint and on appreciation of the evidence produced by both the sides on record, the District Forum did not find sufficient merit in the complaint and dismissed the same.  Aggrieved thereupon, respondent no.1/complainant filed appeal before the State Commission, who vide the order impugned has set aside the dismissal order of the District Forum and has allowed the complaint in the manner stated above.  The petitioners/Tata Motors are aggrieved that the State Commission has committed serious irregularity in setting aside the well-reasoned order of the District Forum and have filed this revision petition.

10.     The short point for consideration is as to whether the vehicle in question suffered from any manufacturing defect?  While the District Forum was not convinced with the plea of respondent no.1/complainant that the vehicle suffered from any manufacturing defect, the State Commission has held it otherwise.  We have carefully perused the order passed by the State Commission.  In our view, the State Commission appears to have abruptly rushed to the conclusion that this is a case of manufacturing defect.  We say so because the State Commission in paras 6 and 7 of its order has observed that the defects cropped up when the vehicle was within the warranty period and further despite observing that while overhauling of engine was necessary because engine had ceased due to its head gasket giving way, arrived at the following conclusion :-

“8.     On overall examination of complaint file, we are satisfied that this is a case of manufacturing defect in the vehicle in question. Reason being that vehicle for the first time after problem cropped up, was examined by M/s Metro Motors Karnal, admitted service point/dealer of manufacturer. Annexures-A and B placed on record by respondents No.1 to 3 which are documents purported to have been issued by this dealer, nowhere suggest that this was the case of either overheating and or coolant being not there in the cooling system. From these documents, it is also not made out that the vehicle was not either properly maintained or problem had cropped up due to its overloading at that point of time. Thus in our opinion this negatives the stand of all the respondents in this behalf. Though learned counsel for the respondents had laid great emphasis on the affidavit of Shri Makhan Singh Works Manager of M/s Metro Motors Private Limited, Karnal. He had deposed that the vehicle was brought to the workshop on 26.10.2005 and it was observed that head gasket had failed due to overheating, because of deficient coolant. This was a running repair and was not a manufacturing defect. In our opinion no benefit can be derived by the respondents from this affidavit. Reason being that if this was a case of coolant being deficient, then in the ordinary course of things, it ought to have noted by Shri Makhan Singh, who was the Works Manager and or the attending engineer/mechanic that he had advised the appellant to put in right quantity of coolant in the cooling system. Likewise overheating was due to overloading and the vehicle was not being properly maintained and despite above appellant either did not got the needful done or declined. In this connection we are of the view that in case coolant was deficient and Shri Makhan Singh Works Manager had asked the appellant to make the deficiency good, it would have made the difference. Thereafter it was for the appellant either to have got the needful done or for various reasons he might have declined. In either situation, there should have been some mention of it in Annexures-A and B relied upon and filed alognwith reply by respondents No.1 to 3.”

11.     In the absence of any previous history of respondent no.1/complainant having faced problems and in the absence of any job card detailing the type and kind of problems and more so in the absence of any expert opinion contrary to what Shri Makhan Singh, a qualified works manager of the petitioners, had to say, the State Commission could not have rushed to the conclusion that it was a case of manufacturing defect.  To be also noted that there is no rebuttal from respondent no.1/complainant to the affidavit filed by Shri Makhan Singh, the works manager of the petitioners.  It also cannot be lost sight of that Section 13(c) of the Consumer Protection Act, 1986 enjoins a duty on the consumer fora in such situations to subject the defective goods for an expert opinion before it reaches a conclusion/finding in regard to defect in goods.  In our view, the least the State Commission could have done was to have subjected the truck for inspection by a qualified mechanical engineer of the Transport Department of the Government.  In any case, going by the decision of the Hon’ble Supreme Court in the case of Maruti Udyog Ltd. V. Susheel Kumar Gabgotra And Another (supra), the State Commission at best could have directed the petitioners to replace the defective part, in the instant case only the engine by a new one, but could not have directed them to replace the whole vehicle as such or refund the price of the vehicle. 

12.     We further find from the appeal memo filed by respondent no.1/complainant before the State Commission that the vehicle had been duly repaired by the workshop but he refused to take delivery thereof just because they demanded a sum of Rs.17,000/- towards its repair charges.  The bone of contention between respondent no.1/complainant and respondent no.2/dealer then was the question of payment of repair charges and not any serious manufacturing defect which had not been rectified.  It is to be noted that the truck was finally taken delivery of by respondent no.1/complainant on 24^th of August, 2007.  There is no evidence on record to show that respondent no.1/complainant has or has not been using the said vehicle ever since.  However, since respondent no.1/complainant had earlier requested for the release of the vehicle from the workshop it can be safely presumed that the vehicle after repairs was roadworthy and fit for being put to use and in the absence of any evidence to the contrary, it has to be held that the vehicle is in use by respondent no.1/complainant ever since.  In this backdrop, therefore, the State Commission while passing the order for total replacement of the vehicle ought to have taken these aspects into consideration. 

13.     In view of the above, while holding that the order for replacement of the vehicle or refund of its price cannot be justified by any stretch of imagination, the question that arises is as to how to modulate the relief at this stage.  In our view, since respondent no.1/complainant has not paid repair charges of the vehicle but was deprived of its use from 26^th of October, 2005 to 24^th of August, 2007, we consider it appropriate to award a compensation of Rs.2,00,000/- to be paid by the petitioners/opposite parties no.1 to 3 and respondent no.2/opposite party no.4/dealer jointly and severally to respondent no.1/complainant.  The amount of compensation as also the cost of Rs.25,000/- be paid within a period of six weeks from the date of the order, failing which it will attract interest @ 10% per annum for the period of default.

14.     The revision petition is disposed of in the above terms.  However, there shall be no order as to cost.