1.      The present Revision Petition has been filed by the Petitioner under Section ­­­21(b) of the Consumer Protection Act, 1986 (the “Act”) against impugned order dated 10.07.2018, passed by the State Consumer Disputes Redressal Commission, Maharashtra (the ‘State Commission’) in FA Nos. A/15/681 and A/15/695, wherein the Appeals filed by the Respondents/OPs were partly allowed and partly setting aside the Order dated 12.01.2015, passed by the District Consumer Disputes Redressal Forum, Mumbai Suburban (the “District Forum”) in CC No. 340/2006.

2.      For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum. Mrs. Sharda Vinod Bhatia is identified as the Complainant. Meanwhile, Tata Motors Ltd. is identified as the OP-1-Manufacturer and OM Sai Automobiles is identified as the OP-2-Dealer in this present matter.

3.      Brief facts of the case, as per Complainant, are that she purchased a Tata Indigo Car with Regn No. MH-04-BQ-3686 from OP-2, manufactured by OP-1 on 10.06.2003 for Rs.5,16,893/-. She experienced several issues with the car, including noise from gear lever, inconsistent central locking, open A/C duct, mist formation, repeated clutch problems, and gaps between doors and body etc.

4.      Despite multiple attempts for repair by OP-2, the issues persisted. In March 2004, while the Complainant's husband was driving on the Mumbai-Pune Express Highway, the car's engine fell from its mounting, necessitating towing to Mumbai at an expense of Rs.9,000/-. OP-2 replaced the engine but billed the Complainant Rs.4,603/-. She notified OPs of continued issues in May and July 2004. On 24.07.2004, the car’s front door unexpectedly opened while in motion. On 30.07.2004, her husband had the car inspected by OP-1 engineers who acknowledged several faults, including severe engine vibration and rainwater leakage. Despite repeated repairs, issues persisted, including severe engine vibration, mist formation on the front windshield, and misaligned steering. Further complaints with respect to the car to OP-1 led to an offer to repurchase the car for Rs.3,00,000/-, which the Complainant declined due to existing loan obligations. Her husband incurred medical expenses of Rs.46,000/- due to pain caused by driving the defective car. Consequently, being aggrieved the Complainant filed CC No. 340/2006 before the learned District Forum, seeking Rs.5,16,893/- along with costs and compensation from OPs for deficient service in selling her a defective car and causing agony and difficulties.

5.      In their reply, OP-1 contested the allegations by stating that the defects in the car were addressed and rectified. The Complainant purchased the car from OP-2. There was no direct relationship between her and OP-1 as a consumer. OP-1 contended that the complaint against them was not valid. They specifically refuted any claims of manufacturing defects in the car and asserted that all necessary after-sales services had been provided to the Complainant regarding the identified defects. Therefore, OP-1 had not provided deficient service to the complainant and requested for the dismissal of the complaint lodged against them.

6.      In reply, OP-2 admitted that Complainant had purchased the said car from them on 10.06.2003 for Rs.5,16,893/-. She brought her vehicle for first servicing on 15.09.2003. It had 18-month warranty and during this time they had rectified all the problems reported free of cost. The Complainant had not reported for second servicing of the vehicle. However, the 3^rd routine servicing of the car was done by them on 31.12.2003 and by then the vehicle had already run 13,341 KM. They admitted that on 15.03.2004 the alignment of the engine of the car had gone wrong and she had brought her car to their workshop by towing the same. At that time they replaced old engine of the car and new engine was affixed in the car of the Complainant. When the vehicle was brought for the 4^th servicing it had already run 22,170 KMs. There was a problem in the clutch of the vehicle and the same was replaced. On 02.06.2004 and 31.07.2004 the vehicle was brought with the problem of door locks and they rectified the same. On 12.08.2004 the vehicle was brought for vibration of engine and on 16.08.2004 for the problem of signal lights, and they were rectified. In all, the vehicle was brought to their workshop 10 times. Of which, 5 times was for routine checkup and rest for specific problems and they rectified the same at nominal charges. They had attended to the Complainant as an when she brought her vehicle to their workshop. As such, there is no deficiency from their side and sought the Complainant be dismissed against them.

7.      The District Forum vide Order dated 12.01.2015, allowed the complaint and held OPs responsible for providing deficient service to the Complainant by selling her a defective car. The forum based its decision on the following reasons and findings:

  “13. In spite of OP No.2 having repaired the complainant’s car by replacing with new parts, the car could not be brought to good condition and suitable for driving. OP No.2 had repaired the car, even after that the defects in the car persisted, this fact is clearly visible in letters written by OP No.2 to the complainant. It means that defects of the complainant’s car are not removed permanently and in such a situation, it can be very dangerous to drive such a car.

14. It is true that complainant has not submitted any report of testing lab in her written application. However, forum is of the opinion that in view of the statements made by OP No.2 in his written reply, there is no need of any evidence of specialist or authority Because, OP No.2 has himself in his noting the defects in the car of the complainant. Ops tried to remove the defects in the car, but they could not remove the defects permanently and the defects are persistent. Keeping in mind all these facts, forum has reached to a conclusion that OP No.2 has given deficient service to the complainant. In such a situation forum is of the opinion that the complainant is eligible to receive the requested appreciation. The conclusion of issue no.1 and 2 is recorded affirmatively and chance the following order is passed.

ORDER

1. Complaint No.340/2006 is accepted.

2. Forum declares, that OP No.1 and 2 have given deficient service to the complainant.

3. OP No. 1 and 2 should take back the defective car and pay back Rs.5,16,893/- being the purchase price of the car and/or individually and jointly.

4. OP No. 1 and 2 to pay individually and jointly to the complainant Rs. 1,50,000/- as compensation for the losses and Rs.50,000/- as mental harassment and Rs. 10,000/- towards cost of litigation….”

8.      Being aggrieved by the District Forum order, the Respondents/ OPs filed separate Appeals No. A/15/681 & A/15/695 and the State Commission vide common order dated 10.07.2018, partly allowed both appeals and partly set aside the District Forum order as follows:

  “18)  In respect of defects present in the car of the Complainant a direction of repairs and making vehicle roadworthy can be given to the Opponents. However, Complainant has not made any such request in complaint and Complainant is only insisting for refund of purchase price of the car as there are manufacturing defects in the car. In this case it is particular to note that since the purchase of car, the car is in possession of Complainant and she is using the same. There is no evidence adduced by the Complainant to show that the vehicle is lying idle due to defects present in the car. Hence, it has become clear that the Complainant is using this car since last 15 years. By this time the IDV value of the vehicle must have gone to zero. We are of the opinion that under such circumstances it will not be proper to direct the Opponents to return back the purchase price of the vehicle to Complainant as he has already used this vehicle for more than 15 years. Hence, we are of the opinion that for all these reasons and considering the rulings cited by the Ld. Advocate for the appellants, the Complainant has failed to prove that defects present in the car are manufacturing defects. Hence, we are of the opinion that Complainant is not entitled to get purchase price of the car from appellants. Hence, we are of the opinion that the order passed by the Ld. District Forum in that respect is to be set aside.

19) However, from evidence adduced on record by the Complainant, it has become clear that there are some defects in the car and they are recurringly occurring in the car of the Complainant. For that purpose Complainant was required to take his vehicle to Opponent Nos.1 & 2 for removing those defects in his car. For that purpose Complainant was also required to make extensive correspondence with Opponent Nos.1 & 2. It is also the contention of the Complainant that by driving such vehicle the husband of the Complainant had to undergo medical treatment. In that respects Complainant has produced evidence on record. We are of the opinion that a person purchases vehicle for his own comfort and luxury. However, when due to defects present in his car, he is not in a position to drive vehicle comfortably then in that respect certainly he is entitled to get compensation. In this case the Ld. District Forum has awarded a sum of Rs.1,50,000/- for damages caused to Complainant and amount of Rs.50,000/- towards mental pain and agony alongwith cost of litigation. We are of the opinion that the same appears reasonable. Hence, we are of the opinion that the order passed by the Ld. District Forum in that respect is to be confirmed. Hence, we proceed to pass the following order –

O R D E R

1. Both the appeals bearing Nos. A/15/681 & A/15/695 are partly allowed.
2. The order passed by the Ld. District Forum in Complaint No.2016/340 on 12/01/2015 directing appellants/org. Opponent Nos.1 & 2 to pay amount of Rs.5,16,893/- (Rupees Five Lakhs Sixteen Thousand Eight Hundred Ninety Three Only) to Complainant individually and/or separately by obtaining possession of car from him is hereby set aside.
3. Rest of the order passed by the Ld. District Forum in Consumer Complaint in respect of damages to be given by Opponent Nos.1 & 2 to Complainant jointly and/or separately of Rs.1,50,000/-(Rupees One Lakhs Fifty Thousand Only) and amount of Rs.50,000/- (Rupees Fifty Thousand Only) towards mental pain and agony and amount of Rs.10,000/-(Rupees Ten Thousand Only) towards cost of litigation is hereby confirmed.
4. Parties to bear their own cost in respect of these appeals.
5. Copies of this order be furnished to the parties free of cost.”

9.      The Petitioner/Complainant, being dissatisfied by the Order dated 10.07.2018 passed by the learned State Commission, filed the instant Revision Petition bearing nos. 3008-3009 of 2018.

10.    Upon notice of the instant Revision Petition, Respondent No. 1 appeared and filed written arguments. However, while being served, Respondent No. 2 did not appear on several date. Respondent No. 2 was, therefore, proceeded ex-parte.

11.    The learned Counsel for the Petitioner/Complainant argued that Mr. Vijay Machale, the Regional Customer Support Manager of Respondent No.1, admitted that original defects still existed despite repairs carried out. Although the car underwent substantial running tests and appeared normal initially, the very next day, the Petitioner found that the problems persisted, and the defects remained. Further, she was directed to take the car for repairs to M/s Balaji Cars in Vikhroli, Mumbai, despite residing in Andheri and purchasing the car from an authorized dealer, Respondent No.2 with an authorized service station in Kandivali (W), Mumbai. Both the Petitioner and Respondent No.2 are located in western suburbs of Mumbai, whereas M/s Balaji Cars is situated 25 km away from her. The letter issued by Respondent No.1 following the repair of the car at their own service centre and subsequent testing indicates their awareness that the original defects could not be rectified by them, thus suggesting a deliberate delay. Mr. Sanjiv Tiwari of Respondent No.1 inspected the car on 02.06.2005 and confirmed that the original defects persisted. The Petitioner offered to conduct a fresh inspection by Respondent No.1 in the presence of authorities from automobile and legal fields. Additionally, he emphasized that the Petitioner, through her advocate Mr. Shirish V. Deshpande, filed an application before the District Forum seeking the defective car to be sent to Automobile Research Association of India (ARAI) or any other testing facility. The District Forum issued an order on 29.04.2009 for testing the car by ARAI, which she delivered to ARAI on 14.05.2009. Despite repeated reminders to ARAI, the testing did not take place, and Respondents made no efforts to facilitate it. Notably, the District Forum did not order her to pay testing charges to ARAI. Subsequently, on 05.10.2005, Respondent No.1 offered the Petitioner Rs.3,00,000/- in exchange for the defective car, which she declined on 07.10.2005 to prevent any further inconvenience to innocent customers. Contrary to the assertion made by the State Commission that the Petitioner used the car for 15 years and hence the Insured Declared Value (IDV) is zero, the Petitioner refrained from using the defective car following advice from a doctor due to persistent defects and injury to her husband, necessitating purchase of a new car. She thus contends that the order dated 10.07.2018 passed by the State Commission was erroneous. She sought granting of the entire amount along with interest @ 9% per annum to compensate for the losses, both mental and financial, as a result of the prolonged delay.Top of Form

12.    On the contrary, learned Counsel for Respondent No.1/OP-1 reiterated the contents of the reply filed before both the fora and asserted that the present petition is not maintainable. The facts alleged in the complaint involve complicated questions of fact and law that require a detailed inquiry and leading of evidence in a civil court rather than the consumer forum and cited judgments of Hon’ble Supreme Court in Synco Industries vs State Bank of Bikaner and Jaipur (2002) 2 SCC 1, and TRAI Food Ltd. vs National Insurance Co. (2004) 13 SCC 656. He further argued that despite obtaining an order for showing the vehicle to ARAI for expert opinion, she failed to comply with the same as a favorable report was unlikely. Additionally, she refused to allow inspection of the car by the OPs, hindering the rectification of alleged problems. The Counsel emphasized that the vehicle had run for more than 25,652 KM in two years, which rules out the possibility of any manufacturing defect. He further asserted that similar edition of the vehicle in question has been used by several customers since 2002 without any complaints. Moreover, the vehicle in question underwent a pre-delivery inspection (PDI) and was approved by ARAI before release. Thus, her motive behind the present RP is malicious, to prolong the litigation and harass the OP. No manufacturing defect was proved by her, in the absence of expert report. The State Commission exonerated payment of Rs.5,16,893/- as vehicle cost. He sought the order to pay Rs.1,50,000/- for physical injury, Rs.50,000/- towards mental pain and agony, and Rs.10,000/- as the cost of litigation be set aside and cited following judgments:-

1. Dr. DK Kumar advisor (Engineering), Maruti Udyog Ltd. Vs. A.S. Narayana Rao & Anr (1) (2010) CPJ 19 (NC).
2. Classic Automobiles Vs. Lila Nand Mishra & Ors; 1(2010) CPJ 235 (NC).
3. Scooter India Ltd. Vs. Manjulaben Kirthibhai and Ors.; III (2010) CPJ 235 (NC).
4. Telco Vs Bachchi Ram Dangwal & Anr. (2009) CTJ 506 (CP NCDRC).
5. Maruti Udyog Vs. Nagender Prasad Sinha & Anr 11 (2009) CPJ (NC).

13.    I have examined the pleadings and associated documents placed on record, including the reasoned orders of both the fora and rendered thoughtful consideration to the arguments advanced by learned Counsels for both the parties.

14.    The core issue to be determined is whether the "manufacturing defects" asserted by the Complainant wrt the car in question is established? An essential consideration in this case is whether the Complainant is entitled to either receive a replacement vehicle or reimbursement of Rs.5,16,893, along with costs and compensation. It is admitted position that the recurring problems cited included the central locking system not functioning properly, the A/C duct remaining open resulting in mist formation, malfunctioning clutch, gaps between doors and body, persistent vibrations etc. Despite multiple attempts by OPs, the issues remained unresolved. The learned State Commission while setting aside the Order of the learned District Forum made the following observation:-

13) On perusal of the order passed by the Ld. District Forum, it appears that the Ld. District Forum considered that Opponent No.2 admitted in their written version and evidence that these defects were present in car of the Complainant and they are the major defects. Hence, the Ld. District Forum considered that as these are manufacturing defects, the Complainant is entitled to get the price of the car.

14) However, we are of the opinion that the Ld. District Forum had not considered other facts mentioned by Opponent No.2 in their written version and evidence. On perusal of written version and evidence of Opponent No.2, it appears that at the time of first servicing of vehicle of Complainant as it was under warranty period all the defects brought to their notice by Complainant were removed by them to the satisfaction of the Complainant free of cost. They also submitted that Complainant had not brought his vehicle to them for second servicing. Complainant had brought his vehicle to them for third servicing on 31/12/12003. By that time the car had already run a distance of 13341 Km. They submitted that the third servicing of the vehicle was due on completion of running of 10,000 Km by the vehicle. Hence, it has become clear that Complainant had not brought his car to Opponent No.2 for second servicing and had brought his vehicle for third servicing late. It has also become clear that by that time although vehicle had run a distance of 13,000 Km still Complainant is claiming that there are manufacturing defects in his car.

15) Defects may be minor or major; however, Complainant is entitled to get refund of price of car only if defects in the car are manufacturing defects. In this respect burden is on Complainant to prove that the defects present in the car are manufacturing defects. Complainant or any layman cannot prove that the defects present in the car are manufacturing defects. For that purpose expert opinion is required. As per provision of Sec.13 of the Act, to obtain expert opinion in this respect the vehicle is to be inspected by Central Laboratory. In this case it is particular to note that Complainant was also knowing this fact. Hence, Complainant had applied before the Ld. District Forum and submitted that he is ready to get the vehicle inspected at Central Lab. The Ld. District Forum had also considered this fact and by passing order on 29/04/2009 directed the Complainant to take his vehicle to AIAR and further directed Complainant to deposit inspection charges about the same. However, it appears that Complainant had not complied that order and had not deposited inspection charges in the District Forum and had not taken his vehicle to AIAR for inspection to prove that there was manufacturing defects in the car. It appears that Complainant must be knowing that the defects present in the car may not be considered as manufacturing defects present in the car and hence, she had not taken her car to AIAR for inspection. Hence, we are of the opinion that the bare word of Complainant cannot be accepted that the defects present in the car are manufacturing defects. Complainant had also not produced any other evidence in support of her contention.

16)  The written version and evidence of Opponent No.2 on which the Ld. District Forum has placed reliance has further disclosed that Complainant had brought his vehicle to them on 15/03/2004 when the engine of the car slipped from the foundation. At that time without considering the fact whether there is any defect in the engine Opponent No.2 had replaced the entire engine of the car. Thus, within period of 1 year from purchase of car, Complainant got a new engine to his car. At that time the vehicle of Complainant had already run up to 17,728 Kms. From written version and evidence of Opponent No.2, it appears that there after Complainant had brought his vehicle to Opponent No.2 for fourth servicing on 20/05/2004. At that time he had disclosed the problem of clutch of the vehicle. At that time also Opponent No.2 had replaced the clutch plate of the car. At that time also the car had already run up to a distance of 22,170 Kms. Thereafter, on 31/07/2004, the car of the Complainant was brought to Opponent No.2 as the locks of the doors of the car were not operating properly and on 12/08/2004 the vehicle was brought for the problem of vibration in the car. At both the times Opponent No.2 had rectified the defects present in the car of the Complainant and replaced the parts concerned.

17) It appears that thereafter, the vehicle of the Complainant was inspected and was repaired at the workshop of Opponent No.1 at Worli, Mumbai. Complainant has filed correspondence in that respect with Opponent No.1 on record. On perusal of the same it has become clear that in the year 2004-05 the repairs were made to the vehicle of the Complainant by Opponent No.1. On perusal of this correspondence, it has become also clear that on 05/10/2005 Opponent No.1 had also given option to Complainant to return the vehicle to them to resale the same for amount of Rs.3,00,000/-. However, at that time Complainant had not accepted the offer given by Opponent No.1 and thereafter, filed this complaint in the year 2006 alleging that there are manufacturing defects in the car.

15.    As regards addressing the core issue whether, to establish manufacturing defect, the Complainant should approach any recognized Govt. authority for inspection in terms of Section 13 of the Act, the excerpt from Section 13 pertaining to manufacturing defects is reproduced below:-

13. (1) Procedure on admission of complaint (1) The District Forum shall, [on admission of a complaint] if it relates to any goods –

(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 and 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;

16.   This Commission in Mercedes Benz India Private Ltd Vs. Smt. Revathi Giri & Ors, FA No. 766 of 2021, decided on 11.10.2023 has held that an inherent manufacturing defect needs to be established through the process of examination by way of an expert opinion. The relevant portion of the Order is as under: -  

“9.      From the material on record it is manifest that no expert opinion of any authorized laboratory or authority has been brought on record to establish that the vehicle suffered from any defect that could be ascribed to the manufacturer of the vehicle by the appellant. The vehicle had admittedly run over 56,815 kms as on 18.07.2019 when it was brought to the workshop of respondent no.2. It is not the case of the respondent that the vehicle was not properly attended to or that the defects were not rectified as per the terms and conditions of the warranty valid for three years. There is, therefore, no deficiency in service that has been established in this particular case either on account of any manufacturing of defect of the vehicle under section 13 (1) (c) or repairs by respondent no.2 for which the appellant would be liable. In the absence of any deficiency in service being established under section 2 (1) (d) the findings of the State Commission that the vehicle suffered from inherent manufacturing defects cannot be sustained. Section 13 (1) (c) makes it explicitly clear that an inherent manufacturing defect needs to be established through the process of examination by way of an expert opinion. Without such an examination being undertaken, the conclusion that there were inherent manufacturing defects cannot be arrived at. Admittedly, provisions of section 13 have not been followed in this case. Defects which are covered under the terms and conditions of the warranty cannot be ascribed to be an inherent manufacturing defect without the requisite examination of the vehicle after applying the rigour of section 13 (1) (c). The defects which are covered under the terms of warranty cannot be concluded to be a manufacturing defect. In the absence of any expert opinion, such a conclusion is conjectural and based on surmise and cannot be sustained. The State Commission’s order is therefore liable to be set aside on these grounds.”

17.    Upon careful examination of the material on record and the orders of both the fora, it's apparent that no expert opinion from an authorized laboratory or recognized Govt authority was procured or presented by the Complainant to substantiate manufacturing defect claim. In spite of OP-2 having repaired the car repeatedly as well as replaced some new parts, the car could not be brought to good condition and suitable for driving with reasonable confidence. Even after that, the defects in the car persisted as admitted by OP-2. Thus, the defects of the car were not removed by the OPs with reasonable permanency. While the complainant had not submitted any report of testing lab, the learned District Forum considered that after scrutiny of reply of OP-2, there is no need of any evidence of specialist or authority as OP-2 himself admitted that the defects in the car could not be removed permanently and the defects were persistent. Thus, the District Forum considered that the Complainant is eligible for the compensation awarded. However, the State Commission considered that the District Forum failed to examine other facts mentioned by OP-2 in reply and evidence. Evidently, at the time of first servicing of car in question, it was under warranty and all defects brought to their notice by Complainant were addressed to her satisfaction free of cost. The Complainant failed to bring the vehicle to OPs for second servicing. She brought his vehicle for third servicing on 31.12.2003 and the mileage of car was 13341 KM. While third servicing was due after 10,000 KM, she brought his car to OP-2 late. Although the vehicle had run 13,000 KM she still claimed manufacturing defects.

18.    Entitlement to get refund of purchase price of car is feasible only if defects are established to be manufacturing defects. In this respect, the burden is on Complainant to prove that the defects present in the car are manufacturing defects, through an expert opinion. In terms of Section 13 of the Act, to obtain expert opinion, the vehicle is to be inspected by Central Laboratory. It is undisputed that the Complainant applied and stated before the learned District Forum that she is ready to get the vehicle inspected at Central Lab. The District Forum vide order dated 29.04.2009 directed her to present the vehicle to AIAR and deposit inspection charges. Apparently, the inspection charges were not deposited and car was not inspected by the AIAR.

19.    As per OP-2, the Complainant brought her vehicle with the complaint of engine slipping from the foundation on 15.03.2004. At that time, without considering whether there is any defect in the engine, OP-2 had replaced the entire engine. Thus, within period of one year from purchase of car, the engine was changed. At that time the vehicle had run 17,728 KM. The Complainant had taken his car to OP-2 for 4^th servicing on 20.05.2004 and notified the problems of clutch and OP-2 replaced the clutch plate. At that time the car had run 22,170 KM. Again on 31.07.2004, the car was brought to OP-2 as the locks of the doors were not operating properly. Again on 12.08.2004 it was brought with complaint of vibrations. The OP-2 rectified both the defects. The car was inspected and was repaired at workshop of OP-1 at Worli, Mumbai. On 05.10.2005, OP-1 had given Complainant an option to return the vehicle for Rs.3,00,000/-. However, she had not accepted the offer and filed this complaint in 2006 alleging manufacturing defects.

20.    The District Forum passed a reasoned order dated 12.01.2015 and the State Commission critically evaluated the records and evidence and passed a detailed and reasoned order, partly setting aside and modifying the order of the District Forum limiting the relief granted. While limiting the relief granted, it considered that the Complaint’s contention wrt to manufacturing defect is not established.

21.    In view of the aforesaid discussion, I am of the considered opinion that no new grounds have been raised in the present petition and therefore, the Order of the State Commission does not require any interference. Consequently, the Revision Petition Nos.3008-3009 of 2018 is dismissed.

22.    There shall be no order as to costs. All pending Applications, if any, also stand disposed of.