For the Appellant                 Mr Vijay Valasan, Advocate

For Respondent no.1            Mr T P Pradhan, Advocate

For Respondent nos.2 & 3     Ex parte on 10.03.2023

ORDER

1.          This appeal under section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) is directed against the order dated 31.03.2017 of the Odisha State Consumer Disputes Redressal Commission, Cuttack (in short, ‘the State Commission’) in Complaint no. 61 of 2011, allowing the appeal in part and directing the appellant to:

To pay a sum of Rs.5,15,408/- with interest @ 18% per annum to the complainant. OP no.1 is further directed to pay compensation of Rs.50,000/- and litigation cost of Rs.10,000/- to the complainant. The said amount be paid to the complainant within one month from the date of receipt of copy of this order, failing which the compensation and litigation cost amount will carry interest @ 8% per annum till payment.

        This order is impugned before us with the prayer to:

1. Pass an order staying the operation of the impugned order dated 31.03.2017 passed by the State Consumer Disputes Redressal Commission, Cuttack, Odisha in Consumer Complaint no.61 of 2011 filed by respondent no.1 pending hearing and final disposal of the accompanying petition;
2. Pass an ex parte ad interim order in terms of prayer (a) herein above and confirm the same after notice of motion; and
3. Pass such other and/ or further order (s) as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case.  

2.     The facts of the case in brief are that the appellant, which is an automobile manufacturing company, sold a truck ‘Ashok Leyland Cargo 909’ to the respondent on 16.01.1997. The respondent after running the vehicle for 484 kms reported various manufacturing defects and approached respondent nos.2 and 3 on several occasions to rectify the problems. Respondent no.1 approached the appellant on 24.03.1997 for replacement of the vehicle within 15 days and thereafter approached the Chairman, MRTP Commission in the matter.  On 09.06.1997 the complaint case no.2177 dated 09.04.1997 before the MRTP Commission, New Delhi, was withdrawn on the ground that the matter had been settled amicably. Thereafter, respondent no.1 continued to approach respondent no.2 pointing out various defects in the vehicle and demanded replacement or refund of the cost with interest @ 17.60%. Complaint no.83 of 1998 was filed before the State Commission on 30.12.1998 alleging deficiency in service within the warranty period and manufacturing defects. However, this complaint was permitted to be withdrawn on the ground that CA no.395 of 1999 was pending before the MRTP Commission on the same matter.  Following the establishment of the Competition Appellate Tribunal, CA no. 395 of 1999 was transferred from the MRTP Commission to the Appellate Tribunal which held, vide order dated 03.05.2011, that the compensation application was not maintainable as per the order in CA no.108 of 2005 dated 29.03.2011. This order permitted the parties to apply to the State Commission by addressing the issue of limitation and accordingly Complaint no. 61 of 2011 was filed before the State Commission.

3.     Prayer of the respondent before the State Commission was to replace the vehicle sold to her with a new defect free vehicle in exchange or, in the alternative, to pay the claim amount of Rs.24,16,554.76. This complaint was decided on contest and the State Commission held as follows:

We have gone through the complaint, written version and documents filed by the parties. The vehicle as purchased by the complainant on 06.01.1997. Right from12.02.1997 different parts of the vehicle gave trouble in running the vehicle smoothly, in between 12.02.1997 to 10.08.1998 (when the warranty period has expired) the vehicle visited the workshop of OP 3 several times for defects in different parts of the vehicle such as air locking from fuel pump, air compressor hose pipe bursting (9 times), consumption of more engine oil, consumption of more fuel, failure of the gear box, busting of tyre, replacement of rear dala etc. The vehicle is a new model which was purchased by the complainant with a hope to earn her livelihood smoothly with an expectation that the vehicle will run smoothly for a period of at least 8 to 10 years. But Alas to her dismay, the vehicle broke down several times due to defects in major parts of the vehicle and it was sent to the garage of the OP no.3 several times for repair. These things clearly show that there was some manufacturing defect in the vehicle for which the vehicle could not run smoothly on the road and it was frequently visiting the workshop of OP no.3. This is more strengthened from the allegation of the complainant that in 2004 a new version of the said vehicle, i.e., Ecomet was manufactured by the OPs 1 and 2 which was marketed. This new version was manufactured after removing all the defects pointed out by different purchasers throughout the country. So we are satisfied that due to manufacturing defect, the complaint was unable to run the vehicle beyond 56,686 kms i.e., beyond a period of near about 1 years and 2 ½ months. In this regard the decisions of the Hon’ble National Commission in Revision Petition no.2212 of 2007 decided on 24.08.2012 (Tata Motors Ltd., vs Mr Anurag Sehegal) RP no. 4709 of 2008 decided on 11.12.2014 (Maruti Suzuki India Ltd., vs Kataria Automobiles Ltd.,) and the decisions of the Hon’ble Supreme Court reported in (2000) 10 SCC 654 (Hindustan Motors Ltd., and Anr. vs N Siva Kumar and Another) are looked into to ascertain the manufacturing defects in the vehicle. So we feel that the complainant should be compensated for the same. Since in the meantime more than 10 years have lapsed, and the said model is not available in the market, we are inclined to hold that OPs 1 and 2 should pay the cost of the vehicle to the complainant. 

4.     I have heard the learned counsel for both the parties and carefully considered the material on record.

5.     Counsel for the appellant has contended that the complaint before the State Commission was barred by limitation since the vehicle had been purchased in 1997 and the complaint was filed on 31.10.2011.  He has also argued that no expert opinion had been brought on record to establish manufacturing defect and that the State Commission had erred in concluding that the vehicle had some manufacturing defects. The vehicle had also run over 56,000 kms in a period of 15 months and therefore, could not be said to have been suffering from any manufacturing defects. It was argued that the vehicle had been attended to from time to time as per the warranty conditions and the ground of frequent repairs alone was not adequate to establish any manufacturing defect.

6.      Reliance was also placed in the case of Commissioner, Rajasthan Housing Board and Ors vs Hiralal Chanda (2021 SCC Online Sc 3448) and Ram Bhagat Vs M/s New Holland Fiat (India) Pvt. Ltd., (2013 SCC Online NCDRC 904) to argue that the complaint was barred by limitation under section 24 A of the Act; M/s Saubhagya Kalpataru Pvt., Ltd., vs Sucheta Diesel Sales Services (2010 SCC Online NCDRC 1) and Classic Automobile vs Lila Nand Mishra and Ors. [ I (2010) CPJ 235 (NC) ] to argue that expert evidence required under section 13 (1) (c) had not been produced to justify that there was a manufacturing defect; Tata Engineering and Locomotive Co. Ltd., and Another vs Gajanan Y Mandrekar [(1997) 5 SCC 507 ]; TATA Motors Ltd., vs Deepak Goyal and Ors., (2015) SCC Online NCDRC 1512 – 31; M/s TATA Engg., & Locomotive Co. Ltd., and Anr. Vs Niravbhai K Purohit Ranpur (2017 SCC Online NCDRC 244) and Mercedes Benz India Private Limited vs Revathi Giri and Ors., (Manu/ CF/0732/2023) to contend that the vehicle was continued to be used extensively even after filing of the complaint to argue that the vehicle did not suffer from any manufacturing defect.

7.     Per contra, counsel for the respondent no.1 contended that the impugned order was in order and that she was entitled to relief awarded. As regards the issue of limitation, it was submitted that the order of the Competition Appellate Tribunal dated 03.05.2011 had adequately addressed the issue of limitation and that the complaint before the State Commission had accordingly been filed.  It was contended that the vehicle continued to suffer from operational issues which commenced immediately from the date of purchase and therefore, the vehicle had inherent manufacturing defects. It was also contended that the State Commission had rightly concluded that the manufacturer / appellant no.1 had correctly held that in 2004 a new version of the said vehicle had been manufactured by appellant nos.1 and 2 and was accordingly marketed. Therefore, it was argued that the appeal be dismissed.

8.     From the foregoing, it is evident that the State Commission has concluded that the vehicle in question suffered from manufacturing defect on the ground that the vehicle had broken down several times necessitating repairs and was required to frequently to be brought to the work shop. It has also held that the appellant had in 2004 manufactured and marketed a new version of the vehicle which had been manufactured after removing all defects. The conclusion of the State Commission, is therefore, based not on any expert opinion as required under section 13 (1) (c ) of the Act, but on the basis of the fact that the vehicle was required to visit the work shop on several occasions and that in 2004 a new version of the vehicle was introduced in the market. Section 13 (1) ( c) of the Act reads as follow:

        13.     Procedure on admission of complaint:

          (i)      The District Forum shall, (on admission of a complaint), if it relates to any goods-------

          (a)     ……………….

          (b)     ………………

          (c )    where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it an authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;

9.     Only if a manufacturing defect is established in the process prescribed under this Section, can a Forum under the Act issue orders for either replacement or to compensate the consumer under section 14. It is manifest from the record and the submissions of the parties that this process was neither initiated nor undertaken. Further, merely because the appellant introduced a new version in the market on 2004 it cannot be held, as has been done by the State Commission, that the previous model suffered from manufacturing defects and that the new model was introduced with the purpose to rectify those defects. It is a common practice in the Automobile Industry to introduce new models from time to time. Therefore, the introduction of a new model in the year 2004 after nearly 7 years of purchase of the vehicle cannot be accepted to be on the grounds that the earlier model suffered from any manufacturing defect. It is not the case of the respondent that the appellant had withdrawn the vehicle of the earlier model Cargo 909 from the market on grounds of any manufacturing defect. The reasoning of the State Commission in this regard is therefore, not sustainable.

10.    In view of the foregoing discussion and the facts and circumstances of the case, the appeal is liable to succeed. The impugned order of the State Commission is accordingly, set aside. There shall be no order as to costs.

11.   Pending IAs, if any, also stand disposed of with this order.