Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad

D Appa Rao, President and K Satyanand – Member

Muveen Akhtar Khan – Appellant

Versus

Malik Cars & Am - Respondents

F.A. No. 1103 of 2006

Decided on: 7.7.2009

i.	Consumer Protection Act, 1986- Sections 2(1 )(f), 13(1)(c), 14 (1)(d), 15 and 17 - Automobiles - Manufacturing defect in vehicle- District Forum granted relief directing Opposite Parties to rectify defect of vehicle and get rectification certificate by MVI and also pay Rs 2,000 by way of costs - Appeal by the Complainant for enhancement of relief - Before laying a claim calculated to prove manufacturing defect, Complainant did not resort to procedure contemplated by Section 13(1)(c) - For giving expert opinion in matters pertaining to automotives, there is a laboratory duly notified - When Complainant comes up with a very serious allegation of manufacturing defect, he ought to have resorted to such a quality of proof for which a scheme is laid down in the Act itself - Defendant could not prove that defect in question was manufacturing defect – No ground to overturn order of District Forum - Appeal dismissed. (Paras 5, 7 to 9)
ii.	Torts - Adjudication of consumer complaints - Adjudicatory bodies under Consumer Protection Act are not supposed to give a go-by to the requirement of evidence - Requirement of adequate evidence is no less important in Consumer Forum than in any other adjudicatory Forum. (Para 8)

 
Result: Appeal dismissed.

Important Point

Manufacturing defect pertaining to automotives can be testified only by a duly notified laboratory.

Order

1. K Satyanand, Member - Dissatisfied with the volume of relief granted by the District Forum, the Complainant filed this appeal calculated to get the entire relief sought by him in the complaint. 2. The facts that led to filing this appeal are briefly as follows: The Complainant purchased a Tata Indica vehicle from the first Opposite Party, dealer of the second Opposite Party, on 26.2.2005. It was alleged that the car carried with it a warranty for 8 months. Contrary to the assurances of the dealer, the car was defective, so he claimed to have entrusted the said car on 4.3.2005 itself to the Opposite Party No.1 and paid an amount of Rs. 5,896.75 towards the charges for rectification of the defects. Although 8 months guarantee was given, it continued to give one trouble or the other and had to be taken to the dealer for repairs on and off. In spite of attendance to repairs by the dealer, it was not rectified and the failure of repairs was ultimately ascribed to the inherent defects in the manufacture. Manufacturer, Opposite Party No. 2 failed to rectify the problem in spite of a letter written by the Complainant on 22.3.2005. The Complainant claimed to have given them a long rope by keeping the car for 116 days with Opposite Party No.1 hoping that it would at last be repaired thoroughly and rendered problem free. But his hopes were not fulfilled. As such, he filed a complaint with the following prayers: i)  To replace Tata Indica LGI V2 car with a defective free new car; Or, in the alternative, to refund Rs. 3,44,080 (Rs. Three Lakh Forty Four Thousand and Eighty only) with interest @ 24% p.a. from 26.2.2005 till the date of realization.   ii)  To reimburse a sum of Rs. 500 per day for the period of 20 days when the car was with the workshop of the Opposite Party and for a subsequent period from 6.5.2005 to till the date of replacement of the car for alternative mode of transport.   iii)  To pay, compensation of Rs. 50,000 towards mental agony, hardship and serious inconvenience.   iv)  To pay costs of Rs. 10,000 and pass such and further order or orders which the Hon'ble Forum deems fit and proper under the circumstances of the case. 3. The complaint came to be resisted by the Opposite Parties who preferred to file separate counters. Opposite Party No.1 submitted that the complaint was not maintainable as the jurisdiction of this Forum was interdicted by an arbitration clause in the sale invoice. It was submitted that the invoice dated 1.3.2005 was falsely attributed as representing the charges paid for repairs within three days after the purchase. It was further submitted that the said amount was paid towards value of parts replaced by Opposite Party No.1 though they never collected any labour charges for attending to the task of changing the parts. He also came up with a story that the vehicle met with an accident and all the subsequent problems were due to that accident. It seems that it met with an accident even before it ran 57 kms and Opposite Party claimed that subsequently whenever they encountered any problem, those problems came to be attended to by Opposite Party No.1. Ultimately, it was submitted that there was no cause of action for replacing the whole vehicle and the problems were due to the after-effect of the accident only. Thus, the relief of replacement of the vehicle was vehemently opposed. 4. Opposite Party No. 2 filed a counter affidavit, perhaps, in lieu of counter and opposed the claim stating that there was no manufacturing defect whatsoever and in any view of the matter, if there was any occasion for complaint of defects, the remedy could be merely a direction to rectify the defects but not replacing the whole car as such. The Complainant was put to strict proof in the matter of allegation that the vehicle suffered from a manufacturing defect and a mere bald statement could hardly be furnished as proof of manufacturing defect In other words, it insisted that nothing short of expert's evidence would be competent in establishing such a face as manufacturing defect Opposite Party NO.2 proceeded to transverse the averments parawise. In support of his case, the Complainant filed his own affidavit and relied upon documents marked as Exs. AI to A10. On the other hand, affidavit and evidence were filed on behalf of both the Opposite Parties as Exs. B1 to B3. 5. The District Forum on a consideration of the evidence adduced by both the parties came to the conclusion to the effect that it was not an out-and-out case of manufacturing defect though the grievance of the Complainant could be characterized as nagging problems of repair encountered by the vehicle in question inasmuch as the Complainant could tender no proof of manufacturing defect, but, on the other hand, could rather prove that the case presented an unusual succession of problems which required to be rectified by the dealer in terms of the warranty. Accordingly, the District Forum granted relief directing the Opposite Parties to rectify the defects of the vehicle and get this rectification certified by the MVI, Khairatabad and also pay Rs. 2,000 by way of costs. 6. Aggrieved by the inadequacy of the relief, the Complainant filed this appeal alleging that the District Forum was not justified in scaling down the relief and granting a limited relief. She faulted the Forum in agreeing with the Opposite Parties that the vehicle met with an accident The Complainant urged several points, which are profusely repetitive. Heard counsel for the Appellant Counsel for the Respondent filed written arguments. Perused the record. The points that arise for consideration are: 1)  Whether the Complainant could prove a manufacturing defect of the car in question?   2)  In order to justify her relief of replacement of the car as a whole, whether the relief granted by the District Forum is not adequate?   3)  Whether there are any good grounds to interfere with the order of the District Forum? 7. The main plank of the Complainant's case was that the car purchased on 26.2.2005 developed trouble within less than a week and, thereafter, it continued to show signs of unwarranted wearing, etc. suggesting that the vehicle must have been suffering from some manufacturing defects. In other words, according to the Complainant/Appellant, these two highlighted circumstances would be strong enough to arrive at a conclusion that the vehicle in question was afflicted by manufacturing defects. Before laying a claim calculated to prove manufacturing defect, admittedly the Complainant did not resort to the procedure contemplated by Section 13(1)(c) which reads as follows: "Where the Complainant 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 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 suffer 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." 8. Even in the matter of throwing light on the existence of defect that partakes the nature of a manufacturing defect or otherwise, the Government notified appropriate laboratories within the meaning of Section 2(1)(a) of the Consumer Protection Act. We are not unaware of the fact that for giving expert opinion in the matters pertaining to automotives, there is a laboratory duly notified. When the Complainant comes up with a very serious allegation of manufacturing defect, he ought to have resorted to such a quality of proof for which a scheme is laid down in the Act itself. In spite of such a course of action, he invited the District Forum and this Commission in these proceedings to be one with him to hold that the car must be spelt out as suffering from manufacturing defect on the basis that it was subjecting itself to occasional heating which fact is also within her own observation at the most but not within the observation of authentic agency in that regard. The adjudicatory bodies under the Consumer Protection Act are not supposed to give a go-by to the requirement of evidence and the requirement of adequate evidence is no less important in Consumer Forum than in any other adjudicatory Forum. The Hon'ble Supreme Court in a decision in Maruti Udyog Ltd. v. Susheel Kumar Gabgotra & Am arising in similar circumstances held in paras 8 to 10 as follows: "8. The principles stated above can never be doubted. But what is relevant in the case at hand is that the warranty conditions were specially stated. This is not a case of silence of a contract of sale as to warranty. Therefore, the High Court was not justified in directing replacement of the vehicle."   9. But on the peculiar fact of the case relief to the Respondent No.1 has to be moulded. In almost a similar case certain directions were given in Jose Phillip Mampilli v. Premier Automobiles Ltd.   10. In line what has been stated in the aforesaid case, we direct as follows:   (i)  On Respondent No.1 taking the vehicle in question to the authorized service centre of the Appellant at Jammu within three weeks, the defective part that is clutches assembly shall be replaced. Respondent No.1 shall not be required to pay any charge for the replacement.   (ii)  In addition, Respondent No.1 shall be entitled to receive a consolidated sum of Rs 50,000 (rupees fifty thousand only) from the Appellant for cost of travel to Kamal which admittedly was wrongly advised by the Appellant for the inconvenience caused to Respondent No.1 on account of the acts of the Appellant and the Respondent No.2 and the cost of litigation."   The District Forum faithfully adopted the dispensation in the said Supreme Court judgment, as it is abundantly clear that there is no proof of manufacturing defect in contra-distinction to unforeseen defects otherwise. 9. This appeal is preferred to canvass the inadequacy of the relief granted by the District Forum but as already pointed out, the relief granted by the District Forum is in keeping with the defect in service as proved by the Complainant. In other words, the Complainant did not prove that the defect that cropped up with the car was a manufacturing defect though could prove that there were a line of defects in unusually quick succession for which the relief granted by the District Forum was nothing less than what the Complainant deserved. Thus, we do not see any grounds to overturn the order of the District Forum. Accordingly, the appeal is dismissed but without costs in the circumstances of the case. Respondents/Opposite Parties are granted six weeks' time from the date of receipt of this order to comply with the order of District Forum.