Maruti Udyog Limited v. Hasmukh Lakshmichand And Another

Ashok Bhan J., President:— Present Revision Petitions have been filed against Order dated 22.01.2004 of the State Consumer Disputes Redressal Commission, Ahmedabad, Gujarat (hereinafter referred to as ‘the State Commission’ for short) in Appeal No. 11 of 2003. By the impugned Order, the State Commission has dismissed the Appeal filed by the petitioner and upheld the Order dated 06.07.2002 passed by the District Consumer Disputes Redressal Forum, Surat, Gujarat (hereinafter referred to as ‘the District Forum’ for short).

This Order shall dispose of Revision Petition No. 827 of 2004 and Revision Petition No. 1318 of 2004 filed against the same impugned Order. Revision Petition No. 827 of 2004 has been filed by the manufacturer and Revision Petition No. 1318 of 2004 has been filed by the Dealer. The facts and the point of law involved in both the Revision Petitions are the same and, therefore, they are being disposed of by a common Order. The facts are being taken from Revision Petition No. 827 of 2004.

Briefly, facts leading to the filing of present Revision Petition are as under:—

Respondent no. 1.complainant purchased a Maruti Zen car bearing registration no. GJ-5-PP-2921 for a sum of Rs. 3,62,985. 95 through the Dealer-respondent no. 2 herein. Respondent no. 1.complainant filed a complaint before the District Forum with the allegation that the vehicle purchased by him started giving trouble within 3 months from the date of its purchase. One of the major defects pointed out by the complainant was that of body earthing, i.e, current passes through the steering and the whole body of the said car. As a result thereof, the person driving the car and other persons sitting in the car, experience electric shock while coming out of the car after a drive. The other defects pointed out by the complainant are - starting trouble, poor cooling of Air Conditioner system, poor functioning of hand brake, hard steering, steering noise, hard shifting of gears. With the above said allegations, the complainant prayed for replacement of vehicle; compensation of Rs. 50,000/- for mental and physical harassment, hardship etc. and compensation of Rs. 50,000/- for financial losses and Rs. 25,489/- being the amount spent by the complainant for insurance, octroi, RTO registration of the said car.

On receipt of Notice, the petitioner as well as respondent no. 2, filed their reply. It was stated in the reply that the vehicle in question was sold under warranty for a period of 12 months from the date of delivery to the first owner or until the vehicle is driven for 20,000 kilometers, whichever event shall occur first. The warranty was made subject to certain terms and conditions, qualifications and limitations as set out in the warranty booklet. That as per warranty, the petitioner's obligation is to repair or replace defective components at its sole discretion during the warranty period when the petitioner acknowledges that such a defect(s) is attributable to faulty material or workmanship at the time of the manufacture. That in the instant case, the vehicle of the complainant was duly attended during the warranty period and the demanded repairs were carried out to the entire satisfaction of the complainant as per the terms and conditions of warranty. That the complaint had been filed without any cause of action and deserves to be dismissed. It was further averred that the vehicle did not suffer from any manufacturing defect. Insofar as the alleged electric shock is concerned, it was submitted that the mild shock experienced by the consumers including the complainant, is a phenomenon known as “Static Electricity”. The main reason of experiencing a shock while getting out of the vehicle is due to the ‘static charge’ generated due to rubbing of seat fabric and the clothes worn by an individual. While getting down from the vehicle, the ‘static charge’ is carried by the individual and as soon as the person touches any metallic item such as door panel, this ‘static charge’ gets discharged through the metallic part. As the charge travels through the body of the person, it results in a feeling of electric shock to the individual. That the phenomenon of ‘static electricity’ exists worldwide and it is not experienced in the vehicle only but also at home, while traveling with a briefcase or even while travelling in a lift. That all these reasons were explained to the complainant. He was given a test drive in a new Maruti Zen car in which also, the complainant felt the electric shock. That the defect was not due to any malfunctioning of any electric parts of the vehicle and no such parts are required to be replaced. All these things were explained to the complainant but the complainant failed to accept the scientific reasons offered by the petitioner and filed the complaint.

District Forum, after going through the record of the case and after hearing the parties, partly allowed the complaint and directed the petitioner and respondent nos. 2 and 3 to jointly and severally take back the delivery of the Maruti Zen car bearing chassis no. 284228, engine No. 279060, registration no. GJ-5-PP-2921 manufactured by the petitioner from the complainant and deliver the same type of car to the complainant without charging any amount of sale price. Petitioner and respondent nos. 2 and 3 were jointly and severally held liable to pay the expenses of Rs. 25,489/- to the complainant and if they failed to pay the said amount within two months, then, they shall pay the said amount with interest @ 14% p.a from 3 months from the date of Order till its realization. Rs. 750/- were awarded towards the cost.

Aggrieved by the Order passed by the District Forum, the petitioner filed an Appeal before the State Commission. The State Commission, by the impugned Order, dismissed the Appeal and upheld the Order of the District Form. Being aggrieved by the Order of the State Commission, the present Revision Petition has been filed.

Counsel for the parties have been heard at length.

Foras below rejected the contention of the petitioner by observing that even after repeated inspection of the vehicle and efforts to remove the defect, the petitioner's Engineers were unable to remove the defect of passing of the electric current through the car, which was a deficiency in service and an unfair trade practice. There is no finding as to the manufacturing defect in the vehicle as such.

Defects, other than electric shock experienced by the complainant, had already been addressed and taken care of. The case of the complainant/respondent no. 1 is that the person driving the car and other persons sitting in the car experienced electric shock while coming out of the said car after driving. As against this, the case of the petitioner/opposite party is that the defect is not a “manufacturing defect”. The mild shock experienced by the complainant is a phenomenon known as “Static Electricity” which is a common day experience worldwide which is not experienced in the vehicle only but also at home, while travelling with a brief case or travelling in a lift or while touching any other article.

“Static Electricity” is not an unknown phenomenon. “Static Electricity” has been defined to mean in Webster's Encyclopedic Unabridged Dictionary, Updated Revised Deluxe Edition as:—

“A stationary electric charge built up on an insulating material.”

Cambridge Advanced Learner's Dictionary defines “Static Electricity”, to mean:—

“An electrical charge which collects on the surface of objects made from some types of material when they are rubbed.”

This shows that a person can experience an electric shock by touching the surface of an object, which is not a live electric wire, or any other electric object through which electric current is passing.

The question which falls for our consideration in the present Revision Petition is - as to whether there was any “manufacturing defect” in the car or not?

The onus to prove the defect is on the complainant. Section 13(1)(c) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for short) provides that if a complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain sample of the goods from the complainant, seal it and send it to such Laboratory which makes an analysis or test whichever may be necessary with a view to find out whether such goods suffer from defect alleged in the complaint or from any other object and report it back to the District Forum based on which the District Forum determines the dispute between the parties.

Counsel for the petitioner states that he had moved an Application under Section 13(1)(c) of the Act before the State Commission but the said Application has not been dealt with by the State Commission. Counsel for the complainant/respondent no. 1 disputed this fact. In order to show its bonafide, petitioner moved an Application under Section 13(1)(c) of the Act before this Commission as well for getting the car inspected by the Automobiles Research Institute of India (ARAI) being an independent agency so that an appropriate action could be taken by the petitioner as well as by this Commission after getting the Laboratory Report from the ARAI. The Commission being satisfied that the defect alleged by the complainant could not be determined without getting the opinion from an Expert Body and to find out as to whether the defect pointed out by the complainant was a “manufacturing defect” or the alleged problem was because of general phenomenon called “Static Electricity”, passed the following Order on the Application filed by the petitioner on 09.07.2004:—

“Shri Choudhary state that petitioner wants the vehicle in question inspected by Automobiles Research Institute (ARAI), Pune and in case defect pointed out is confirmed by the Institute, Petitioner will take back and supply new vehicle as per the orders of Fora below to the Respondent. Having heard Ms. Chacko, respondents are directed to make available vehicle to the petitioner on 19.7.2004 for being taken at their cost to said Institute for the purpose of inspection. In case respondents wish they may remain present at the time of inspection by the Institute.

List on 24.9.2004 for directions and further proceedings.

In the meantime, operation of order for issue of warrant of arrest against Managing Director of petitioner Co. shall remain stayed. Dasti.”

By this Order, the complainant was directed to handover the car to the petitioner for being taken at their cost to ARAI for the purpose of inspection. Complainant was put at liberty to remain present at the time of inspection by the Institute. The complainant did not hand over the car to the petitioner. Thereafter, the case was again listed on 04.10.2004 on which date, the following Order was passed:—

“Heard. It appears that the last order had not been complied with. Since both the parties agree that the reports may be called in terms of the order dated 9.7.2004 Respondent would make available vehicle to the petitioner on 15.10.2004 between 11.30 a.m to 1.00 p.m for being taken, at the cost of petitioner, for inspection by Automobiles Research Institute (ARAI). In case the respondents wish to accompany the vehicle they may remain present at the time of inspection.

List on 15 December, 2004 for further direction.

Interim stay to continue till next date.”

This was an agreed Order. In spite of this agreed Order, the respondent did not hand over the car to the petitioner for inspection by ARAI. Thereafter, the case came up for hearing on 15.12.2004 when it was reported that the complainant refused to give the vehicle to the petitioner on 15.10.2004 as agreed between the parties and the direction issued by this Commission in its Order dated 04.10.2004 The following Order was passed by this Commission on 15.12.2004:—

“It is stated by the Ld. Counsel for the Petitioner Maruti Udyog Ltd. that the respondent has refused to give the vehicle on 15.10.2004 as was directed by this Commission's order dated 4.10.2004

Mr. Tripathi, Ld. Counsel for the respondent submits that the matter may be argued without waiting for the report.

List on 29.3.2005 for arguments before the same Bench.

Interim stay to continue till next date.”

A perusal of the above-noted Orders show that the car was to be taken for inspection to ARAI at the cost of the petitioner for examination. In spite of the specific directions and the complainant having agreed to hand over the car, the complainant refused to hand over the vehicle to the petitioner. Complainant did not produce any evidence to show that the defect pointed out by it was a “manufacturing defect”. Complainant was totally non-cooperative and reluctant in getting the defect determined by the ARAI, which is an independent agency. This clearly shows that the complainant failed to prove the fact that there was a “manufacturing defect” or let an independent agency report as to whether there was any “manufacturing defect”.

“Manufacturing defect” as per P. Ramanatha Aiyar's Advanced Law Lexion, 3RD Edition, Volume 3, 2005, defines to mean as:—

“An unintended aspect of finished product due to error or omission in assembly or manufacture, that causes injury.”

Business Dictionary.com defines it to mean:—

“Frailty or shortcoming in a product resulting from a departure from its design specifications during production.”

Respondent/complainant failed to show by leading any evidence whatsoever to prove any “manufacturing defect” in the vehicle. The “manufacturing defect” is much more than an ordinary defect which can be cured by replacing the defective part. “Manufacturing defect” is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect, opinion of an Expert is necessary which is not forthcoming in the present case. Attempt made by the manufacturer to get the opinion of an Expert or an independent agency has been thwarted by the respondent/complainant by not handing over the car for taking it to the ARAI for inspection.

In terms of the warranty given, the manufacturer was required to replace the defective component subject to its acknowledging that the defect is attributable to the faulty material and workmanship at the time of manufacture. It also stands frustrated because of the attitude adopted by the respondent/complainant.

The vehicle was sold to the complainant in the year 1998. When the matter had come up before the State Commission, the vehicle had already run 20,000 kilometers. At the time of filing of the Revision Petition, it was stated in the “Grounds of Revision Petition” that the vehicle had run 80,000 kilometers. Today, in the Court, learned Counsel for the petitioner contended that the vehicle is still running and it had already run approximately 1,20,000 kilometers. This shows that the vehicle is in running condition and is being used by the complainant on regular basis. It also shows that there was no “manufacturing defect” in the car in question. Had there been a “manufacturing defect”, the car could not have run for nearly 11 years and covered approximately 1,20,000 kilometers. It seems that the complainant is only interested in getting the vehicle replaced but such request/wish cannot be granted.

In the Written Statement filed by the petitioner, it was stated by the petitioner that the complainant was given a test-drive in a new Maruti Zen car in which also the complainant felt an electric shock. Electric shock experienced by the complainant was personal to him and was not due to any malfunctioning of the electric parts of the vehicle. All these things were explained to the complainant but the complainant failed to accept the scientific reasons offered by the petitioner and filed the complaint.

Under the circumstances, it cannot be held that there was any “manufacturing defect” in the car and the Foras below have erred in holding to the contrary and directing the petitioner/manufacturer to replace the vehicle with a new vehicle after a lapse of so many years.

For the reasons stated above, both these Revision Petitions are allowed.