NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
REVISION PETITION NO. 1652 OF 2006
(Against the order dated 30.01.2006 in Appeal No. 306/2005 of the
Jharkhand State Consumer Disputes Redressal Commission, Ranchi)
Sushila Automobiles Pvt. Ltd.
Shree Nand Bhawan, Main Road
Ranchi, Jharkhand
Through its Manager
Shri Kamlesh Kumar Singh
Versus
1.
Dr. Birendra Narain Prasad
Doranda
Ranchi, Jharkhand
2.
Ravi Prasad
S/o Dr. B.N. Prasad
Doranda
Ranchi, Jharkhand
3.
Subha Rohtagi
…
Petitioner
S/o Dr. B.N. Prasad
Doranda
Ranchi, Jharkhand
4.
M/s Maruti Suzuki India Limited
Gurgaon Road
Gurgaon, Haryana
5.
Adviser (Engineering)
M/s Maruti Suzuki India Limited
Gurgaon Road
Gurgaon
6.
Deleted
7.
Manager
United India Insurance Co. Ltd.
Doranda
Ranchi, Jharkhand
8.
Maruti Suzuki India Limited
1, Nelson Mandela Road
Vasant Kunj
New Delhi-110 070
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MR. S.K. NAIK, MEMBER
For Petitioner
:
Mr. Prem Kumar Singh, &
Mr. Manoj Ranjan Sinha, Advocates
For Respondents
:
Mr. Santosh Chaurihaa,Advocate (R-1 to 3)
Mr. K.P.S. Rao, & Ms. A. Subhashini,
Advocates (R-4, 5 & 8)
Nemo (R-7)
Pronounced on 7th May, 2010
ORDER
Per 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 24th 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 6th 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 7th 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 5th 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 Vs.
R.C. Bhargava & Ors. [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. Vs. Susheel Kumar
Gabgotra and another [(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 nonsupply 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.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(S.K. NAIK)
MEMBER
Mukesh