S.K Naik, Member:— This revision petition has been filed by Sushila Automobiles Pvt. Ltd. (the dealer), who was the opposite party no. 4 before the District Consumer Disputes Redressal Forum, Ranchi (District Forum for short) against the order dated 30th of January, 2006 passed by the Jharkhand State Consumer Disputes Redressal Commission, Ranchi (State Commission for short), whereby the State Commission has directed the petitioner being the dealer and since it had received the cost of the car on behalf of the manufacturer to replace the car with new one or pay the price of the same along with interest @ 10% per annum from the date of delivery till the date of payment and pay cost of Rs. 1000/-. However, the petitioner has been given liberty to approach the manufacturer for getting the matter resolved.
Brief facts of the case are that on 24 of January, 2002 the complainant had booked a Maruti Alto car VXI with the opposite parties and was assured by them that accessories worth Rs. 11,000/- as per his choice will be fitted in the car but when the car was delivered to him on the 6 of February, 2002 by the petitioner-dealer, who was an authorized dealer of manufacturer-opposite parties 4, 5 & 8, to his dismay the accessories were not fitted in the car. That apart, on being noticed that the car was making some metallic sound, on the very next day i.e on 7 of February, 2002 the car was sent to the workshop of petitioner-dealer and then it was found that the sound was coming from the suspension kit and since the suspension kit was not available with the petitioner-dealer at that time, the car was repaired with a wooden packing but the temporary repairing could not rectify the problem. The complainant alleges that thereafter the car developed several defects and the defects were not properly removed though the car was sent to the workshop several times for the purpose and despite the fact that the car was under warranty, the petitioner-dealer charged him exorbitantly for the repairs of the car, which on objection by the complainant was corrected and the complainant was made to pay lesser amount. On 5 of December, 2003 the car stopped in the middle of the road suddenly, whereupon when it was sent to the workshop of the petitioner-dealer it was found that lubricant system and several other parts of the car were damaged, which were repaired later. The complainant alleges that the said problem occurred due to manufacturing defects and he approached the opposite parties for replacement of the car or in the alternative refund of the cost of the same but all in vain. In this background, he filed a complaint before the District Forum, who, after hearing the learned counsel for the parties, accepting the complaint and finding force in the allegations leveled against the petitioner-dealer, directed him to refund Rs. 11,000/- being the cost of the accessories which were never provided to the complainant along with 12% interest from the date of delivery of the vehicle till the date of payment and to make a thorough servicing of the car and replace necessary parts, if required for smooth running of car without charging any cost from the complainant. However, the District Forum dismissed the complaint in respect of other opposite parties, including the manufacturer.
Feeling aggrieved with this order of the District Forum, the complainant approached the State Commission by filing an appeal before it. The State Commission, after hearing the learned counsel for the parties, while accepting the appeal of the complainant, modified the order of the District Forum in the terms stated above.
Now, it is turn of the dealer/opposite party no. 4 to assail the order of the State Commission and, accordingly, he is before us in this revision petition.
We have heard the learned counsel for the contesting parties and have perused the orders passed by the District Forum and the State Commission. We have also perused the available records of the case.
At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential input. The Hon'ble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. When the present case is considered in this backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Merely because the car had been taken to the workshop of the petitioner-dealer several times or because a number of letters/complaints had been addressed to various functionaries and authorities of the opposite party-manufacturing company, it will not by itself amount manufacturing defect. The District Forum, on a scrutiny of the evidence produced by the parties, has observed “some minor defects appeared in the vehicle immediately after the purchase, which during the warranty period were repaired and necessary parts covered under the warranty were replaced.” The suspension kit which had not been provided at the time of purchase as promised by the dealer, which was the main grouse of the complainant, was also replaced though belatedly. The District Forum has further observed that defect in the lubrication system and other minor problems would not constitute manufacturing defect and the problems faced by the vehicle appeared to have surfaced after the vehicle had met with an accident. The District Forum has further gone on to observe that in view of the accident, although the complainant was not entitled under warranty for replacement in case of accident, even then the same was done by the opposite parties only to maintain its high reputation in the market and amongst the customers. The District Forum under the circumstances had ruled out any manufacturing defect.
To the contrary, we find that the State Commission has overruled the view of the District Forum and held it to be a case of manufacturing defect. To arrive at this finding, the State Commission has not referred to any specific complaint or job cards. It has also not taken note of the fact that there was no expert opinion. That the finding of the State Commission cannot be sustained would be obvious from its finding, which states as under:—
”…. we are of the view that the complainant is entitled to the relief sought for in his complaint in view of the fact that right from the date of purchase of the car, it started giving trouble because of the various defects, details whereof, were pointed out immediately on the following day. Since the defect has not been rectified, as a result, the vehicle remained mostly with the respondent no. 4 for the purpose of rectifying those defects. In the circumstances, natural presumption would be that the vehicle must have inherent defects which could not be rectified….”
The State Commission goes on further to state as under:—
“However, even assuming for a moment that there is no ‘manufacturing defect but the fact remains that the car remained most of the time with the respondent No. 4 in the workshop, right from the date of delivery. It has come on record that only after running 1412 KM the car started giving further trouble continuously. While coming from the workshop, the car stopped in the midway, as a result, the car had to be tugged and carried to the workshop of respondent no. 4. The consumer is not supposed to wait for long even after paying the entire price of the vehicle for the purpose of repair. The fact as stated above, clearly shows that the car was sent to the workshop of the respondent no. 4 times without number right from the following day of delivery but even then the car has not been made roadworthy, as a result, the appellant who is a professional has to suffer mentally, physically and financially. Under the circumstances, we are of the view that the only way to compensate the complainant is to replace the car with new one or in alternate to pay the price of the car.”
The State Commission has failed to consider that the complainant had not been able to discharge its onus to prove the manufacturing defect. He neither produced any expert opinion nor could prove from the records such as the job cards that the vehicle suffered from manufacturing defect. There is no rebuttal to the allegation of accident. Merely because the accessory was not supplied in the beginning and that the vehicle suffered from some minor defects, which, however, were attended to by the opposite party, the State Commission has completely erred in holding that the vehicle suffered from manufacturing defect warranting its replacement. In the case of Surendra Kumar Jain v. R.C Bhargava [III (2006) CPJ 382 (NC)], even when the complainant had filed a report of one O.P Singh stating that the radiator was found to be leaking from the bottom tank and had been replaced, this Commission had taken the view that as many as 11 visits to the workshop notwithstanding minor defects cannot be said to be manufacturing defect. The defects in this car, as rightly held by the District Forum, were minor in nature and cannot be said to be in the nature of manufacturing defects. For the non-supply of the accessory kit, the complainant has been duly compensated by the District Forum.
In fact the Hon'ble Supreme Court in the case of Maruti Udyog Ltd. v. Susheel Kumar Gabgotra [(2006) 4 SCC 644] has held that where defects in various parts of a car are established, direction for replacement of the car would not be justified. “Replacement of the entire item or replacement of defective parts only called for.” The State Commission, therefore, has exceeded its jurisdiction in ordering replacement by a new car.
In view of the aforesaid discussion, the revision petition succeeds and is allowed. We set aside the order of the State Commission but maintain the award of Rs. 11,000/- for non-supply of kit with interest @ 12% since the date of delivery of the vehicle till the date of the payment. However, under the facts and circumstances of the case, there shall be no order as to cost.