MARUTI UDYOG LTD. vs Casino Dias And Anr.

THESE revision petitions are preferred by M/s. Maruti Udyog Limited against the Common Order, dated 10.3.2004, passed by the State Commission, Goa, in Appeal Nos. 10 and 13 of 2002, whereby petitioner''s appeal was disposed of by modifying the order passed by the District Forum, dated 12.2.2002, in Complaint No. 109 of 1997, filed by Mr. Casino Dias, the original complainant, wherein the petitioner and respondent No. 2 M/s. Sai Service Station Limited (Original Opposite Party No. 1) were directed to jointly and severally replace various defective parts and make it roadworthy within thirty days and awarded Rs. 5,000 as compensation. The State Commission modified that order and by common order in both the appeals directed the petitioner and respondent No. 2 to replace the vehicle along with further compensation of Rs. 10,000 and also Rs. 3,000 towards costs. Aggrieved by this order, M/s. Maruti Udyog is in review here and we decide both the Revision Petitions by a Common Order. Brief facts of the case are:

RESPONDENT No. 1 -Casino Dias, (the original complainant), booked new Maruti Omni Van with respondent No. 2 - M/s. Sai Service Station Limited (original O.P. No. 1), who is the authorised dealer of petitioner - M/s. Maruti Udyog Limited (original O.P. No. 2). The vehicle was delivered on 3.1.1997 to respondent No. 1 after receipt of Rs. 1,93,028.53, but he alleged that the vehicle right after the delivery itself started giving problems. In his complaint he stated that this was brought to the notice of respondent No. 2 repeatedly i.e., on 6.1.1997 and 10.1.1997, etc. The vehicle had also got the servicing done on 13.1.1997, 20.1.1997 and 23.1.1997. It was brought to the notice of respondent No. 2 that there was wobbling'' sound when the vehicle was plying in third gear, which has also been recorded in the job order on 23.1.1997 and other defects enlisted are starting problem; check 3rd gear noise and reverse gear problem; check roof light not working; check rear noise; check vibrate.. not working and check dicky doors. Subsequently, repairs of roof light, door switch, wiring, servicing, setting of doors and clutch setting were done by respondent No. 2.

AGAIN on 5.2.1997, it was pointed out to respondent No. 2 that the defect of wobbling could not be rectified. Then, Respondent No. 2 replaced propallar shaft assembly on 17.2.1997 and about six days thereafter again the vehicle was taken to 2nd respondent for checking of rear noise; starting problem; dicky door noise; all doors setting and greasing. Ball bearings were also replaced on the same day. On 11.3.1997, the vehicle was taken to respondent No. 2 for second servicing and again respondent No. 2 replaced front bearings of two wheels and also did balancing of the vehicle, which is shown in the job card. Respondent No. 1 protested and made a note on the bill card on 11.3.1997 that there was constant wobbling and that defect has not been removed. Respondent No. 1 sent a letter dated 17.3.1997 to Respondent No. 2 demanding for replacement of the vehicle, and after receipt of the letter, respondent No. 2 called the respondent No. 1 telephonically on 17.4.1997. Respondent No. 1 left the vehicle with respondent No. 2 with the hope that the vehicle would be replaced. But, later, he learnt that respondent No. 2 only replaced gear box casing; six gear box bearings; front wheel bearings and also differential backlas setting and engine toned up as per the job card. It is the case of the respondent No. 1 that respondent No. 2 had replaced major parts of the vehicle including the tyres of the vehicle, which goes to show that there is inherent manufacturing defects, which could not be rectified. Hence, when Respondent No. 2 informed Respondent No. 1 on 4.5.1997 to take the vehicle from the workshop, he declined to take the vehicle back, unless it is replaced by a new vehicle. Thereafter, a legal notice was served by respondent No. 1, when there is no response from respondent No. 2, he filed a complaint before the District Forum seeking replacement of the vehicle along with compensation alleging manufacturing defects.

DISTRICT Forum appointed R.C. Shukla, an expert to give the report regarding the major defects in the vehicle. Thereafter, District Forum passed the following order: "The Opposite Party No. 1 and Opposite Party No. 2 jointly and severally to replace the various defective parts of the vehicle GA -01 -N -4067 and to re -condition the vehicle lying in the garage of Opposite Party No. 1 and to make it road worthy in all aspects including removal of noisy sound free of cost to the entire satisfaction of the complainant within 30 days from today. Since the vehicle had developed defects during the warranty period we hereby direct both the opposite parties to extend the period of warranty pro -rata from the date of handing over of vehicle as stated above and for the balance unutilized warranty period if any. We also direct the complainant to take back the vehicle after it is made road worthy as stated above by the opposite parties within 30 days from today. We also direct the opposite parties jointly and severally to pay a sum of Rs. 5,000 only towards the compensation, since the complainant despite having paid full value to buy a new vehicle could not use it and suffer on account of defects."

RESPONDENT No. 1 and petitioners filed appeals before the State Commission. Automotive Research Association of India, Pune, expressed their inability to carry out the test to evaluate the quality as envisaged under Section 13(1)(c) of the Consumer Protection Act. Respondent No. 1 was not agreeable to take the vehicle to Pune for the test to be carried out. District Forum held that replacement of the vehicle can only be directed if there is any conclusive proof and since it is not conclusively established that the vehicle suffers from major manufacturing/structural defects, the order above was passed.

THE State Commission allowed the appeal filed by respondent No. 1 and passed the following order: "Opposite Party Nos. 1 and 2 are hereby directed to replace the new vehicle which is free from defects within two months of the receipt of this order and to pay compensation of Rs. 10,000 to the complainant for the loss, damages and mental agony which he has gone through with cost of the appeal of Rs. 3,000. Accordingly, the appeal is allowed under complaint 109/97 before the District Forum North Goa as entitled for the above relief."

THE State Commission also held that from the date of purchase of the vehicle everyday there were some defects and the person who parted with the money to purchase a new vehicle suffered because he could not use the branded new vehicle, as it was not free from defects and placed reliance on the following judgments: "The Counsel for the appellant has invited our attention to the order passed in Revision Petition No. 240 of 2002 by National Commission, New Delhi dated 29.6.2001 in M/s Scooters India Limited and Anr., Petitioner v. Madhabananda Mohanty and Ors., Respondent wherein it has been observed that "any consumer when he buys a new vehicle he is under the impression that a new vehicle is bound to be mechanically perfect or that a brand new vehicle would be defect free. A new vehicle could be deficient as well"

"Vol. II 1992 (1) Consumer Protection Reporter Page 246 in Abhaya Kumar Panda, Appellant v. M/s. Bajaj Auto Ltd., Respondent where the vehicle supplied by the Opposite Party had serious manufacturing defects. Order of mere removal of defects and other repairs is not enough and vehicle is required to be replaced by a new one with adequate compensation to the complainant. "1996 (3) CPR 277 Consumer Disputes Redressal Commission, U.T. Chandigarh in G.K. Jain Complainant v. M/s. Maruthi Udyog Ltd. and Anr., Respondents... Complainant purchased Maruti Car - Alleged that vehicle from beginning had several defects -Approached Respondents -Few defects removed but major problems regarding caster and camber continued -Prayed for replacement of vehicle plus compensation -Local Commissioner appointed also affirmed defects as pointed out -Liable to replace vehicle altogether."

STATE Commission held that the warranty condition of 180 days or 12,000 kms running were part of the agreement and binding on the parties and hence petitioner/respondent No. 2 have to pay for the same. There is a clear manufacturing defect from the very beginning and directed replacement of the new vehicle which is free from defects within two months of the receipt of the order along with compensation of Rs. 10,000 and cost of Rs. 3,000. Revision Petitioner''s Arguments:

LEARNED Counsel for the revision petitioner, Mr. T.K. Ganju, argued that they had discharged its warranty obligations. The Commissioner, who was appointed by the District Forum has given a report, which is absolutely illogical. The inspection report was based on the comparison of the performance of the new Maruthi Omni 2000 Model with the vehicle in question, which is of 1997 model. The performance of a new vehicle would be better than the vehicle, which is more than three years old and specially when it was kept idle. The report does not mention anywhere that there is any manufacturing defect. Removing defects such as pressure plate and clutch plate at free of charge under warranty period cannot be considered as major manufacturing defect. These defects never repeated again after the necessary repairs and adjustments were made, which clearly show that there is no inherent manufacturing defect.

LEARNED Counsel submitted that Respondent No. 1 had taken the vehicle on 23.1.1997 for first inspection service to respondent No. 2; warranty service on 11.2.1997 at 1616 kms; on 17.2.1997 at 1901 kms seeking warranty service and the demanded repairs were to check the rear noise; starting problem; dickey door noise and all doors setting vide job order No. 000858. On that day, Respondent No. 1 certified that "I have taken trial of my car and I am satisfied with the work done". The car was again taken for second service on 11.3.1997, and once again the similar satisfaction note had been given by Respondent No. 1. The only other note written was "there is wobbling". What is surprising is respondent No. 1 mentioned about "wobbling" on 11.3.1997 after signing that he took the trial and was satisfied. He sent a notice dated 17.3.1997 to respondent No. 2 for replacement of defective vehicle and in that he alleged that the vehicle was hurriedly supplied to him just before the offices and workshops closed for the Christmas break and he did not know the vehicle supplied to him was involved in an accident and it had rear bumper damage, dents in the bodywork, which was professionally sprayed, etc. In that he further alleged "Clearly the vehicle had at some stage been involved in an accident caused by a severe blow at the rear. Had the superficial damages been the only result of the blow I would not have been unduly concerned. Unfortunately, as you are aware, the damage caused was and remains far more serious and is clearly beyond your power to repair. The main damage seems to be somewhere in the transmission, resulting in an annoying thudding vibration at all speeds. This, to my mind, as the owner of an automobile repair shop of many years standing, is consistent with the vehicle having been forced forward by a severe blow whilst still in gear".

REGARDING Wobbling/thudding complaint, the learned Counsel submitted that there was just a mention that Respondent No. 2 was unsuccessful in eliminating this problem over a long period and that his permission was not taken during the earlier work orders for replacing certain parts. He further alleged in the said letter that "I have been supplied with a vehicle which was not in new ex -factory condition as paid for but a defective vehicle which has obviously been involved at some stage prior to my taking delivery in a severe rear end collision."

IT is vehemently argued that Respondent No. 2 in his letter tried to threaten by saying "this, therefore, is to request and require you to provide me with a new vehicle of the same model and colour as ordered and paid for, within fourteen days of receipt of this letter, otherwise I intend to approach the Consumer Council for the return of the amount paid, in full, costs and such damages as may be considered appropriate to the worry, suffering and time wasted in this regard".

LEARNED Counsel contended that respondent No. 1 has taken the vehicle on 17.4.1997 on the pretext of some repairs and just left it with Respondent No. 2 ever since, and although Respondent No. 2 repeatedly requested to take the vehicle back after thorough road test and followed up with a letter dated 26.6.1997. Respondent No. 1 merely replied to letter of 26.6.1997 vide letter dated 7.7.1997 stating that he should be provided a new Maruti Omni and that he is not prepared to take the said repaired vehicle at any cost. Interestingly, in the same letter, he further stated "I have already filed appropriate proceeding against you before the Consumer Forum for redress. If you are really having regret for inconvenience caused by you to me by supplying the defective vehicle, only course for you to mend your wrong by supplying new van and paying me the damages for loss suffered by me." Respondent No. 1 Arguments:

LEARNED Counsel for Respondent No. 1, Mr. Chinmoy Pradip Sharma, contended that Maruti Omni vehicle, which was purchased on 3.1.1997, within thee days of purchase, it had to be taken to Respondent No. 2 for defects. Despite the claim the defects have been cured, he had to take the vehicle to respondent No. 2 again after four days i.e., on 10.1.1997, 13.1.1997, 20.1.1997 and 23.1.1997. It is further contended that a brand new car free from defects need not be taken for repairs from very beginning. A perusal of the job cards makes it clear that the vehicle underwent major replacements including replacement of propeller shaft, gear -box casing and even the tyres. The said replacements were made without the consent of Respondent No. 1. The replacements of this nature evidence the fact that the vehicle did suffer from manufacturing defects. It is pertinent to note that in spite of major replacements and repairs, the vehicle continued to give problems and the defects could not be cured. It is under these circumstances that the Respondent No. 1 had no choice but to leave the vehicle with the Respondent No. 2 demanding a new defect -free vehicle. It is argued that the State Commission has taken these important aspects into consideration and rightly held that the Respondent No. 1 is entitled to a brand new vehicle.

THE Commissioner''s report clearly notes the various defects of the vehicle and the repaired vehicle itself was still having defects, which prove that it has inherent manufacturing defect. In similar cases decided by this Commission, learned Counsel referred to the case of Hero Honda Motors Ltd. v. T. Nagender, reported in I (2006) CPJ 4 (NC), wherein the National Commission has upheld the decision of the State Commission for replacement of the vehicle in view of the fact that the defects in the vehicle persisted after repairs leading to the conclusion that the defects are in the nature of manufacturing defects.

HE further relied on the Judgment of the National Commission in the case of Tata Motors Ltd. v. Lachia Shetty reported in I (2008) CPJ 151 (NC), wherein it has upheld the State Commission order directing replacement of vehicle. The vehicle in question had to be brought to the service centre repeatedly. Even after replacement of various parts and repeated repairs, the purchaser did not give satisfaction report and left vehicle with the dealer. He argued that the facts of the aforesaid cases are identical to the present case and the revision petitions be dismissed with costs. Our Findings:

HEARD the learned Counsel for the parties, perused the orders of the State Commission and District Forum and the record, which is placed before us.

THE conduct of the respondent No. 1 throughout seemed as though he made up his mind that there is a manufacturing defect in the vehicle and he decided to file a claim in the Consumer Forum for redressal of his grievance like a hurried man to get a new vehicle by replacing his four months'' old vehicle. We perused the job cards and the work done on the vehicle and none of those depict manufacturing defect in the vehicle. Respondent No. 1 was satisfied every time with the work that has been done and taken the vehicle after trial and signed himself on the job card. But within six days after mentioning this word "wobbling" he sent a notice to Respondent No. 2, wherein wobbling was not made as a major issue. The entire case that he made in the notice was that it was palmed of a vehicle, which met with an accident and wobbling etc., is a minor issue.

FIRST and foremost, there is nothing on record to show that this vehicle had met with an accident. For Respondent No. 1, to assume and file a case on such presumptions is not acceptable for us to conclude that it was an accidental vehicle. The letter that he wrote on 17.4.1997 shows the litigating conduct of the respondent No. 1. When a consumer predetermines his mind to file a case in the Consumer Forum and makes allegations against the opposite parties, they must remember that these allegations should be supported with reliable documents. Mere hearsay, allegations in the complaint, cannot be considered as evidence. The time has been taken in the District Forum and the State Commission, until now many number of years.

THERE was no reason for Respondent No. 1 to decline accepting the vehicle when it was offered to him and he was requested to collect the same after thorough road test as per letter dated 26.6.1997 of Respondent No. 1. To this he merely replied stating that he filed a complaint in the Consumer Forum and that he was not ready to take the trial run to see whether any inherent manufacturing defect exists, show that he used the threat of the complaint filed by him in the Consumer Forum against the petitioner and Respondent No. 2.

WE have perused the report of the Commissioner - R.C. Shukla, which does not mention that there is any manufacturing defect in the vehicle. Further, when the Commissioner inspected the vehicle between 26.8.2000 to 4.9.2000, he based his report on the comparison of the performance of a new Maruti Omni 2000 model, but the vehicle in question is a 1997 model. This comparison between performance of a new vehicle and a vehicle, which was three years old, is not an appropriate comparison, and even otherwise there was no mention of manufacturing defect by the Commissioner.

THE vehicle was kept idle for a long time and hence the pressure plate, clutch plate, clutch cable were required to be replaced by Respondent No. 2. The Commissioner when asked to again check the vehicle for re -inspection, but he merely mentioned that he does not have any directions to do the same and did not test the vehicle stating that his scope was limited only to inspect and report the findings to the District Forum and not to re -inspect again after repairs and therefore he declined to test. The entire analysis, and the opinion given by the Commissioner on various defects does not show anything which is close to manufacturing defect. The whole tenor of the complaint is based on the evidence produced by Respondent No. 1, who is a person with pre -determined mind to get replacement of the vehicle.

WHEN there is no manufacturing defect in the vehicle, it is not fair for the State Commission to direct for replacement of the vehicle. There is no material on record to support the finding of the State Commission that the vehicle is suffering from inherent manufacturing defect. The direction given by the State Commission to replace the vehicle is without any justification as the petitioners and Respondent No. 2 have made the said vehicle free from the alleged defects. It is for the Respondent No. 1 to first ensure that these defects have been rectified and give a chance to Respondent No. 2 to show that the vehicle is in good condition. The Respondent No. 1 also alleged regarding the replacement of tyres. Because the tyres were defective, respondent No. 1 concluded that there is a manufacturing defect in the vehicle, this is totally contrary to the record, and replacement of two tyres do not reflect that there is a manufacturing defect in the vehicle, and further tyre warranty conditions are different from those of the vehicle.

WE rely on the Judgment of the Apex Court in Maruti Udyog Limited v. Susheel Kumar Gabgotra and Anr. II (2006) CPJ 3 (SC) and also in Jose Philip Mamphill v. Premiar Automobiles Ltd., I (2004) CPJ 9 (SC)=I (2004) SLT 855=2004 (2) SCC 278, wherein the Hon''ble Supreme Court has held as under: "that in view of the warranty clause which has specifically provided "If any defect(s)should be found in a Maruti vehicle within the term stipulated above, Maruti''s only obligation is to repair or replace at its sole discretion any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such defect is attributable to faculty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacement which are not covered by this warranty."

"On a sale of a motor vehicle by a manufacturer to dealer there may be an implied warranty that it is reasonably it for, or adapted to, the uses for which it is made and sold, and such a warranty is not excluded by the silence of the contract of sale as to warranties".

THEREFORE , in the above case, it was held by Apex Court that High Court was not justified in directing replacement of the vehicle.

IN the present case, under the warranty conditions, petitioner and Respondent No. 2 have done everything possible to hand over the vehicle to the satisfaction of Respondent No. 1, but Respondent No. 1 abandoned the vehicle although the vehicle was properly attended to during the warranty period and defective components were replaced for free of charge. Lastly, "wobbling" defect has been made as a casual remark in the notice sent by respondent No. 1 before abandoning the vehicle itself, show that this complaint has been filed with mala fide intent to get a new vehicle on some pretext or the other.

DISTRICT Forum has rightly directed the petitioner and Respondent No. 2 to rectify the defects. The number of years that this case has taken to reach to this end cannot be held against the petitioner, as it is not their fault, specially when the Respondent No. 1 has been adamant throughout with a predetermined mind to get replacement of the vehicle. Consumers cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect in the vehicle without any supporting evidence or justification.

IN view of the above discussion, we set aside the order of the State Commission and confirm the order passed by the District Forum. The petitioners are directed to make the vehicle road worthy and free of defects as per the District Forum order within four weeks from today and deliver the same to Respondent No. 1. There shall be no order as to costs.