MRS.KAWALJIT KAUR vs PASCO AUTOMOBILES

BY this common order we are deciding two cross-appeals filed against the same order dated 17.2.2003 passed by District Consumer Disputes Redressal Forum-II, U.T. Chandigarh [for short, hereinafter to be referred as District Forum-II] in Complaint Case No. 858 of 1999, Mrs. Kawaljit Kaur v. M/s. Pasco Automobiles & Anr.

THE brief account of complaint case, as initially filed, is that she purchased a diesel Maruti Zen model car on 13.11.1998 from OP No. 1 i.e. M/s. Pasco Automobiles, Chandigarh. THE car is manufactured by OP No. 2 i.e. M/s. Maruti Udyog Limited, Gurgaon. THE car carried a warranty of 1 year or 20,000 kilometres of running. It is alleged that this new model of the car has totally failed and the car has not worked satisfactorily right from the date of its purchase because it has various technical and manufacturing defects and the same were brought to the notice of General Manager, Pasco Automobiles, Mr. Bindra. OP No. 1 used to get these defects removed at their premises but they used to redevelop after 2-3 days. THE complainant had to take the car 15 times to OP No. 1 but the car failed to work satisfactorily. Moreover, spare parts of the car are not available for replacement, therefore, the complainant prayed for replacement of the car by a modified diesel car or return of Rs. 4,24,607/- alongwith interest @ 18% per annum and also payment of costs of litigation. However, later in the replication to the written statement of OP Nos. 1 and 2 the complainant enlarged the scope of the complaint to add that the car has improper comparison of engine, body structure and electric wiring, fuel injection system and so the car was sold to her with mechanical and manufacturing defects that could not be rectified inspite of repeated assurances given by OP No. 1. Details of job cards and mileage cum repair/replacement comments were also given in the replication. It has also been stated that due to this defective model the price of this model of car was reduced from Rs. 4,24,607/- initially to Rs. 4,09,324/- and later on to Rs. 3,59,196/-. It has also been alleged that the diesel car mounts 130 Kgs. of additional weight on the same chassis as that of the petrol car and therefore, this car model has failed. It has been averred that all major units of the car have been replaced and repaired and the value of this repair/replacement comes to Rs. 60,000/-. It has also been alleged that after repairs at the time of delivery OP used to obtain signature of the husband of the complainant on a printed proforma without disclosing the contents of the same. It was also prayed in the replication that an additional amount of Rs. 50,000/- be also awarded to the complainant for harassment and mental agony, etc. Op No. 1 in reply submitted that the complaint is vague, evasive and lacks material particulars and should therefore, be dismissed. Moreover, there is no deficiency in service on the part of Op No. 1. There is no denial of the car having been purchased by the complainant and that it carrying one year warranty however, correct date of purchase of the car is 13.11.1998 and not 13.12.1998 as wrongly mentioned by the complainant in the complaint. This mistake was accepted by the complainant. However, it was strongly denied that the model of the car was failed. It was highlighted that the car had been extensively used, doing approximately 5,000 kms. per month and the fact that the car had done 55,656 kms. at the time of complaint in about 11 months, itself supports the technical fitness of the vehicle. It is also denied that the car used to be brought back for repairs as technical/mechanical faults used to develop. It was denied that complainant brought the vehicle to Op No. 1, 15 times, however, it was accepted that vehicle used to be taken to Op No. 1 for running repair work and the same was done to her satisfaction. Moreover, on 1.1.1999 a wheel rim was replaced free of cost under warranty. It has also be averred that the car is performing satisfactorily.

Op No. 2 in their response to the complaint stated that warranty obligation do not entitle the replacement of car and the warranty obligation on the part of Op No. 2 is to repair or replace any defective component at their sole discretion if the defect is attributable to the faulty material or workmanship at the time of manufacturing of the vehicle. Also the complainant has no case for deficiency in service and unfair trade practice against Op No. 2. It was stated that every time the complainant took delivery of the car from the workshop of Op No. 1, it was done without any protest or demur. It was also stated that the warranty was for one year or 20,000 kms. of running of the car. It is accepted that prior to the 3rd free service the car came to Op No. 1 on 5.12.1998 for running repairs and shaft assembly front, drive LH of axle, mounting, stopper, comp RR Trq were changed under warranty. Again the vehicle came for running repairs on 2.2.1999 after the 3rd free service had been done on 1.1.1999, and rear suspension was found OK and coolant leakage was rectified. It was reiterated that the car had done 55,656 Kms. till 23.10.1999 which indicated very extensive use of the car.

IN their analysis of the complaint learned District Forum-II repelled the plea of the OP that the car was being used for commercial purpose as it found no independent or supporting direct evidence indicating the same. The learned District Forum going by the fact that the car had been taken 15 times to the OP No. 1 inferred that though strictly speaking the car may not be having a manufacturing defect yet there were some serious defects in it. It also accepted the version of the complainant that the price of the car was reduced from Rs. 4,26,607/- to Rs. 4,09,324/- and then to Rs. 3,59,146/- because this model of the car had failed and was not giving satisfactory performance because no other cause of this reduction in price has been suggested by the OP. It also held that non-availability of spare parts of the car even with the dealers of OP No. 2 by itself is a deficiency in service.

DISCUSSING the reports of two experts engaged by the complainant i.e. Sh. Khem Lal Bansal, who inspected the car on 3.5.2000 and Sh. Gauri Shanker Agarwal, who inspected the car on 2.10.2002 in the backdrop of the report of Sh. S.K. Chaudhary, B.E. (Mechanical) of OP No. 2 as well as report of the team of Lt. Col. J.S. Sekhon, Sh. H.S. Chahal, Sh. Anand Kumar and Sh. Arvind Kumar, learned District Forum-II, concluded that there are some serious defects in the car and that affidavits of Sh. Bansal and Sh. Agarwal are materially and substantially correct and that Sh. S.K. Choudhary has not been able to successfully dismantle them. DISCUSSING the report of the team headed by Lt. Col. J.S. Sekhon, Ld. District Forum-II held that this report indeed shows the bad shape of the car more than four years after its purchase but it has not been able to dismantle the defects which had originally existed in the car and which were pointed out by the complainant to the OP on the car''s 15 visits to the workshop of OP No. 1 within a span of 11 months. However, it agreed with the observation in the report of Lt. Col. Sekhon that the speedometer of the car was found broken due to tampering and, therefore, held that the car had infact run for many-many kilometres more than the speedometer reading of 69,132 kms. and that the complainant appears to have had full run for her money. But is also held that the complainant had her own share of mental and physical harassment and tension caused by the defects in the car for which she took it to the workshop for repairs countless times. Thus, guided by the order of this State Commission in a case reported as Pasco Automobiles v. S.C. Sharma & Ors., I (2003) CPJ 267 (Chandigarh State Commission), wherein manufacturing defect in the car had been proved and the price paid for the car was Rs. 1,80,000/- and the same had been used for 6 years, compensation of Rs. 60,000/- awarded by District Forum-II was upheld by the State Commission and the manufacturer was directed to pay the compensation to the consumer whereas the dealer had been exonerated from liability in appeal, learned District Forum-II holding that facts in this case are almost similar directed the OP No. 2 (manufacturer) to pay Rs. 60,000/- as compensation to the complainant for loss and injury suffered by her on account of deficiency in service, defects in the car and mental and physical harassment. It also directed OP No. 2 to pay Rs. 2,000/- as costs of litigation. Aggrieved by this order both complainant and OP No. 2 have filed Cross-Appeal Nos. 246 and 255 of 2003 respectively. The appeals having been taken on board, notices were sent to the respondents and record of the complaint case was summoned from District Forum-II. Mr. H.P.S. Ghuman, Advocate represented the complainant Mrs. Kanwaljit Kaur, and Mr. Parmod Kumar, Advocate appeared on behalf of M/s. Maruti Udyog Limited/OP No. 2. Mr. H.P.S. Ghuman, Advocate in his submission first reiterated that the vehicle had to be taken to the complainant 15 times for repairs in eleven months. He then stated that specific defects in the car have been pointed out and deficiency in service pleaded in the complaint. He also alleged that the car is with temporary registration number and hence cannot run 60,000 Kms. as claimed by the OP and that M/s. Pasco Automobiles had tampered with the speedometer of the car. He further justified that the plea that replication should be treated as part of the complaint as no objection was taken by the OPs to its filing on 20.7.2000 and in support of his pleas he cited University of Delhi v. Dr. Sudhakar Shukla, 1993 (I) S.C.T. Pg. 678, Delhi High Court, and Mukundi Lal v. Srimati Ram Pyari & Anr., 1971 A.L.J. Pg. 137, as authorities. The learned Counsel read out the opinion of Mr. K.L. Bansal, Prop. Khem Lal Bansal Automobiles Engineer wherein this expert had opined at Para 2 of his affidavit that the vehicle in question has been sold to the owner with improper comparison of design of engine - body structure - electric wiring - fuel injection system. The vehicle was having the defect technically since the beginning and due to the manufacturing defect major system/mechanism have been changed and cannot be rectified. Further this expert has reported that the availability of spare parts required is very difficult even with the dealers because basically the engine installed in the car is imported one. The learned Counsel also referred to the report of the second expert i.e. Sh. Gauri Shankar Agarwal dated 3.10.2002 to highlight the problem/defect with the car and submitted that both reports tally in contents. He further submitted that the report of Sh. S.K. Choudhary, B.E. (Mechanical), Deputy General Manager (Service), Maruti Udyog Limited is of little value as the same has been prepared while sitting in the office and no physical check of the car has been done by him. He then referring to Para 9 of the impugned order submitted that since no rejoinder has been filed by the OPs regarding the reason for reduction in the price of the car, this averment should be treated as accepted. To support his pleas the learned Counsel cited Managing Director, Kerala Automobiles Limited v. P.S. Harindra Prakas & Anr. etc., III (2002) CPJ 203 (NC)=2002 (1) CPC Pg. 286, and H.C.L. Limited v. Krishna Xerox Service, 2002 (2) CPC Pg. 183.

IN response Mr. Parmod Kumar, Advocate went over the complaint and submitted that in the original complaint there is no mention of any deficiency in service nor have any specific details of defects in the car been indicated. He pleaded that the learned District Forum mainly considered averments made in the replication and the OPs were not allowed to rebut the same. Regarding reduction in the pricing of the car he submitted that since OPs could not file a rejoinder to the replication where this point was raised this issue remained unrebutted. He, however, clarified that change in price of the cars is a reoccurring phenomenon which keeps taking placed based on fiscal policies of the Government and market forces and it has nothing to do with the failure or otherwise of this model of the car. He further submitted that the complainant has added new facts to the complaint three times and prayed that the replication which has improved the case of the complainant should not be taken into consideration for adjudication of this case. He reiterated the fact that the vehicle had done over 55,000 Kms. at the time of complaint which indicated that there is no manufacturing defect and even the learned District Forum has accepted this repeatedly in the impugned order. Finally, submitting that the view of the learned District Forum that slashing in price being indicative of the car not giving satisfactory performance is incorrect. He prayed that the impugned order be set aside and his Appeal No. 255 of 2003 be allowed.

WE have heard the learned Counsel for the parties and have critically gone over the evidence on record of the complaint case. The issue that needs to be discussed first is that of the rejoinder being considered as part of the complaint and thereby permitting the complainant to improve her case. Though very technically speaking under Order 6 Rule 7 of CPC replication cannot set up a new or a different case and additional pleadings should be put forward only by way of amendments to the complaint with the permission of the Court, yet since this case is being adjudicated under the Consumer Protection Act, 1986 we are not taking too technical a view of this issue and allow the replication to be read as part of the complaint. The next issue that needs discussion is whether the car in question has any manufacturing defect ? To prove that the car has a manufacturing defect the complainant has put on record reports of two experts i.e. Sh. K.L. Bansal and Mr. Gauri Shankar Agarwal. The report of Mr. Gauri Shankar Agarwal is dated 3.10.2002 and he had inspected the vehicle on 2.10.2002 when the car had allegedly done 69,132 kms. of running and it was already three years old. In this report at Para B, observations of this expert have been given which do indicate some defects/problems with the car but there is no opinion indicating that these defects/problems are due to any manufacturing defect in the car or any other reasons such as poor driving and maintenance or accident, etc. Moreover, this inspection has been done at speedometer indicating 69,132 kms. of running after three years of purchase of the same car which had done 55,656 kms. in first 10 months and 59,817 kms. as on 3.5.2000 when Sh. K.L. Bansal had done inspection. It does not seem credible that a car which had done almost 56,000 kms. in one year had done only 13,000 kms. in next two years when there is nothing on record to show that the car was not running. This when linked with the observation of inspection team lead by Lt. Col. J.S. Sekhon, that the speedometer of the car had been tampered with, makes it evident that this car had been very extensively used. We, therefore, agree with the observation of learned District Forum-II, that the car had infact run many-many kilometres more than the indicated figure of about 69,132 kms. Thus, for all practical purposes report of Sh. Gauri Shanker Agarwal has really no credence. Coming to the report of Sh. K.L. Bansal, the report summarizes the visits of the car to the workshop of OP No. 1 and thereafter lists observation of physical inspection, road test.

Finally, coming to the award of compensation, the learned District Forum has directed OP No. 2 i.e. the manufacturer to pay Rs. 60,000/- as compensation to the complainant for the loss and injury suffered by her on account of deficiency in service, defects in the car and mental and physical harassment and also directed OP No. 2 to pay another Rs. 2,000/- as costs. In the entire impugned order there is no mention of any deficiency in service on the part of OP No. 2 regarding repair done to the car. As earlier mentioned the defects in the car were promptly taken care of by OP No. 1 and free replacement of defective parts was done by OP No. 2 even beyond the period of warranty in terms of kilometres run by the car. Moreover, it is settled law that the extent of loss suffered has to be proved with evidence whereas in this case no such proof of loss is on record. As regards car being taken to the workshop of OP No. 1, 15 times it may be pertinent to mention that cars normally need to be taken to the workshop for running service/repairs every 5,000 kms. and since this car was doing this mileage almost every month by normal norms it should have gone to the workshop twelve times for doing 60,000 kms. and if the same had not been done it would reflect poor maintenance. Therefore, in the absence of any plea of deficiency in service, moreover without any finding of any deficiency in service in repair/replacement of defective parts and without any evidence regarding loss actually suffered the award of compensation of Rs. 60,000/- cannot be legally sustained.

FINALLY, we may add that the similar case i.e. Pasco Automobiles v. S.C. Sharma & Ors. (supra), cited by learned District Forum-II to support their order is infact clearly distinguishable from the instant case, because in that case manufacturer was held liable as manufacturing defect had been proved whereas in this case the learned District Forum has held that though there are some serious defects they do not amount to manufacturing defect. Hence, we are of the considered view that ratio of the cited case cannot be applied to the instant case. In view of the foregoing discussion, we find that the impugned order is legally not sustainable. Therefore, Appeal No. 255 of 2003 is allowed, the impugned order is set aside, both the complaint as well as Appeal No. 246 of 2003 are dismissed. The parties are left to bear their own costs of litigation. It is further ordered that Draft No. 862427, dated 1.5.2003 drawn on State Bank of India for Rs. 30,000/- be returned to appellant-Maruti Udyog Limited and receipt for the same be obtained. This receipt alongwith a photocopy of the aforesaid draft shall be placed in the case file for record. Copies of this order be sent to the parties free of charges. Ordered accordingly.