Shyamal Gupta, Member

In this Appeal, the legality of the Order dated 30-05-2017 of the Ld. District Forum, Nadia passed in CC/54/2011 is called in question by the Appellant.

The complaint relates to a defective car being purchased by the Respondent.

We have heard the submission advanced on behalf of the parties and perused the documents on record.

Documents on record reveal that the Respondent took delivery of the car in question on 01-06-2010 and within a period of one year (till May, 2011), the said car had to be sent to the service centre not once or twice, but 5 times in a row.

It appears, vide impugned order the Forum below directed the Appellant and Respondent Nos. 2 and 3 to either return the vehicle in a roadworthy condition after removing the defects or pay back the cost of the vehicle in question. They were further directed to pay compensation and litigation cost to the tune of Rs. 10,000/- and Rs. 5,000/-, respectively.

From whatever angle we look at it, there can be no manner of doubt as to the fact that the Ld. District Forum at its wisdom passed a well balanced order.

The Appellant cannot disagree to the fact that if a brand new car starts malfunctioning every now and then, it defeats the very purpose of having it. There being nothing to show that the car in question developed problem on account of mishandling of the same by the Respondent No. 1, in our considered opinion, the Appellant cannot escape its liability.

In uncertain terms, the Ld. District Forum directed the Appellant to return the car to the Respondent No. 1. However, it seems, it took no positive step to return the same on its own and instead passed the buck upon the Respondent No. 1 to collect the same from its place. It was a flagrant violation of the direction of the Ld. District Forum and for obvious reason; the Respondent No. 1 did not give in to the dictate of the Appellant.

The Appellant refused to accept that the car in question is suffering from any sort of manufacturing defect. If it is presumed for the sake of argument that the car in question is not suffering from any sort of manufacturing defect, in that case, the inevitable conclusion would be that the service centre is incapable of repairing it properly.

Notwithstanding the Appellant underlined the need for expert opinion to prove the allegation of ‘manufacturing defect’ as made by the Respondent No. 1, it appears that the Hon’ble National Commission in Tata Motors v. Rajesh Tyagi & Anr., 2014 (1) CLT 238 (NC) dealt on this issue at great length. The solemn observation of the Hon’ble Commission assumes great significance in the peculiar facts and circumstances of the present dispute and as such the same is appended below.

“6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The main thrust of the line of argument taken by the petitioners revolves around the fact that there was no evidence of any manufacturing defect in the vehicle. The onus to prove the manufacturing defect is on the complainant and the same should be proved by expert evidence, in the absence of which no liability can be attributed to the petitioner to compensate the complainant. On the other hand, the State Commission in their order have relied upon the definition of defect as contained in the Consumer Protection Act, 1986 and stated that a complainant is liable to be compensated, if there is any fault, imperfection or shortcoming in the quality, quantity, potency, etc. of the vehicle. The State Commission observed in their order as follows:-

5. In our view, it is misconceived notion that any vehicle for that purpose any goods can be ordered to be replaced or the cost can be ordered to be refunded only if they suffer from manufacturing defect. There is no such concept of goods suffering from manufacturing defect enshrined by the provision of Consumer Protection Act. Consumer Protection Act only defines the word defect by way of Section 2(1) (f) of the Act which is to the following effect:-

Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods.

6. In such cases we have taken a sustained view that whenever a consumer goes for a brand new goods like the vehicle his minimum expectation is that he would not encounter or face any inconvenience or hardship for few months or a year and if he had to take the vehicle time and again to the workshop for removing one defect or the other, he suffers immensely in terms of loss of time, loss of business, physical discomfort and emotional sufferings having not reaped the fruits of paying heavy amount for purchasing a new vehicle.

7. We have also taken a view that onus shifts to the manufacturer to show that the vehicle does not suffer from manufacturing defect once complainant has proved and discharged the initial onus that the vehicle was defective vehicle on the basis of large number of job cards showing that vehicle was taken on many occasion for removing one defect or the other. Complainant has already suffered immensely and is a wronged person by having been sold a defective goods and to expect him to again incur expenses by obtaining expert opinion to show the vehicle suffers from manufacturing defect will be too much. Large number of visits to the workshop from the day of purchase of vehicle for removing some or other defects is sufficient to draw the inference that the vehicle is a defective vehicle. The circumstance of the vehicle having been taken for removal of defects within or after the period of warranty leaves no manner of doubt that the goods sold to the consumer is not only defective but also suffers from manufacturing defect.

If the defect continues for months together and years together and erupts time and again no other inference can be drawn than that the vehicle suffers from manufacturing defect as defects which are not of manufacturing nature can be rectified or removed without their recurrence or without giving any further inconvenience to the consumer.

7. The State Commission have further observed in their order:-

..Bare perusal of the definition of word defect shows that any kind of fault or imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.

9. Thus in our view whenever a manufacturer of the vehicle offers to sell the brand new vehicle to the consumer there is an implied contract as to the claim of the manufacturer that the vehicle being sold by it does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.

10. The audacity and impunity on the part of the respondent to rub salt on the wounds of the complainant that he should prove that he had been visiting time and again is demonstrated from their reply sent by both respondent as well as reply of notice and other notice sent by the complainant to the respondent No.1. For such type of manufacturers and service providers the Supreme court has in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 Supreme Court Cases 65 come down heavily and called upon the Consumer Forum and Commissions established under the Consumer Protection Act, 1986 to not only compensate the consumer as to the actual loss suffered by him but also to compensate him as to the mental agony, harassment, emotional suffering, physical discomfort, loss of business, loss of time by taking vehicle time and again to the workshop.

8. From the entire factual matrix of the case, it is very clearly brought out that the vehicle in question is a defective vehicle when judged from the definition of defect as contained in section 2(1)(f) of the Consumer Protection Act, 1986. In reply to the legal notice dated 18.07.2003, sent by the petitioner to the complainant, there is a non-ambiguous admission on the part of the OPs that the allegation levelled in the complaint about the defect of water accumulation inside the vehicle are true. The basic question is whether this kind of situation about the vehicle as admitted in the reply to the show-cause notice can be categorised as manufacturing defect or not. In the strict technical terminology, this kind of situation may not lead to the conclusion that there is a manufacturing defect; but still, it goes without saying that whatever defect has been observed in the vehicle for which the complainant had to suffer the mental agony of taking the vehicle to the workshop so many times, has to be attended to in proper perspective. It is the bound duty of both the manufacturer and the dealer to attend to the said defect and make it a defect-free vehicle and if they are not in a position to do so, they should either refund the cost of the vehicle or provide a new vehicle to the consumer. We, therefore, agree with the conclusion arrived at by the State Commission that whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.

9. It is further observed that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Honble Apex Court in their judgements from time to time and is aimed at providing for better protection of the interests of the consumers as defined in the preamble to the Act itself. Given the facts at hand, the interests of the consumer in the present case can be protected only if he is provided a vehicle which is free from defects from all angles and he is not subjected to the technicalities of proving whether any manufacturing defect exists or not”.

If a new car turns defunct at regular intervals within few months of its purchase, it hardly requires any expert opinion to certify the inh

erent defect of the same. Still we find that the Ld. District Forum took a very lenient view and directed the Appellant to handover the car after removing its defects properly. Such is the ego of the Appellant that, in order to test the tenacity of the Respondent No. 1 further, it preferred this Appeal. There being no merit in this Appeal, the same deserves no favourable consideration. As we find, the car is languishing at the service centre for more than 8- years. In such circumstances, it hardly requires any emphasis that even if the same is repaired temporarily, the defective car would not last long and since the warranty period already got over, the Respondent No. 1 would not be entitled to warranty benefits any more. Considering all aspects, we deem it appropriate to modify the impugned order to the effect that the Appellant and Respondent Nos. 2 and 3 shall jointly and/or severally return the price of the car in question along with simple interest @ 9% p.a. from the date of filing of the complaint case till full and final payment is made. Rest of the order shall remain unaltered. In the result, we dismiss this Appeal.