First Appeal No.325 of 2008,First Appeal No.352 of 2008

5th January, 2017.

Petitioner Counsel: Mr. NEERAJ JAIN
Respondent Counsel: Mr. JAGDEV SINGH

Cases Cited:
Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr., 2006(3) ALL MR 193 (S.C.)=(2006) 4 SCC 644 [Para 13]

JUDGMENT

JUDGMENT :- These two first appeals have been filed under Section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 04.07.2008, passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as "the State Commission") in consumer complaint no. 27/2007, filed by the complainant/appellant in First Appeal No. 325/2008, Rajeev Sarda, Managing Director, M/s. Sparrow Electronics Ltd.

2. Briefly stated, the facts of the case are that the complainant Rajeev Sarda purchased a Honda CRV car bearing registration no. KAO1MD 0732 for a total consideration of Rs. 16,10,261/- on 30.01.2004 from the first opposite party (OP-1) White Field Motors Pvt. Ltd., who are the dealers. The said car was manufactured by the second opposite party (OP-2) Honda Siel Cars India Ltd. It is stated in the consumer complaint that on 19.11.2006 at about 12 noon, the complainant was returning to his residence at a speed of 40 km per hour, when he felt loss of control of the vehicle and loss of power in the steering wheel. With great difficulty, he managed to take the vehicle towards the left side of the road. The vehicle came to a complete halt and blocked the left part of the road at 60 o angle. Alleging manufacturing defect in the vehicle and deficiency in service on the part of the OPs, the complainant filed the consumer complaint in question, seeking directions to the OPs to refund the purchase value of the vehicle alongwith interest @ 12% p.a. from the date of purchase of the vehicle till realisation. In addition, he demanded a compensation of Rs. 2 lakhs for the losses suffered, a sum of Rs. 2,000/- per day to pay for the cost of alternate vehicle and to pay Rs. 10 lakhs for compensation for mental agony, harassment etc.

3. The complaint was resisted by the OP-2 manufacturer by filing a written statement, in which it was stated that the said car was being used by the Company and its Directors, which was a commercial purpose and hence, the complainant was not a consumer. Further, the car had been purchased in good and proper condition and the complainant did not face any problem in the same, for a period of almost three years. The complainant was provided with warranty of two years or 45000 kms, whichever was earlier. At the time of the incident, the car was not covered by any warranty. The OP-2 stated that although there was no manufacturing defect in the vehicle, they had offered to carry out the replacement of the AC compressor, free of cost as a gesture of goodwill. The OP-2 requested that the consumer complaint should be dismissed. The State Commission, based on the pleadings of the rival parties, decided to go into the issue as to whether there was any manufacturing defect in the said vehicle. During proceedings before them, the State Commission appointed two Commissioners - one suggested by the complainant and the other by the manufacturer, asking them to inspect the vehicle and submit report. As stated in the order of the State Commission, the Commissioner suggested by the complainant filed his report, saying that:-

"(i) A.C. Compressor in the above said Honda CRV has seized (No foreign material or metal filings were found in the lubricant of the A.C. Compressor).

(ii) replacement of the A.C. Compressor and regular service of the car would make the car road-worthy".

4. The Commissioner suggested by the OP-2 manufacturer stated in his report as under :-

"The problem can be fully rectified by replacing the compressor unit and fully cleaning of the Evaporator, Condenser, Drier and air conditioner tube liquids because any metal bars inside the air conditioner cooling unit can damage the new fitted compressor. In my opinion full replacement of the above air conditioner system (i.e. Compressor, Evaporator, Condenser, Drier and air conditioner tube liquids) will make the car trouble free from the air conditioner system."

5. The State Commission concluded that based on the reports of the two Commissioners, it was clear that the problem was with the Air Conditioner Compressor, but there was no manufacturing defect in the vehicle. The State Commission directed, vide impugned order, as follows:-

(1) The OPs are directed to replace the Air Conditioner System (i.e. Compressor, Evaporator, Condenser, Drier and air conditioner tube liquids) by a defect-free Air Conditioner System and also to rectify the defects, if any, in the vehicle consequent on the failure of Air Conditioner and make the vehicle road-worthy and in good condition free of cost and hand over the vehicle to the Complainant within two months from today.

(2) The OPs are also directed to pay jointly and severally Rs. 1,00,000/- as compensation in favour of the Complainant within two months from today.

(3) The OPs are also directed to give one year warranty in respect of the vehicle from the date of delivery of the vehicle to the Complainant as directed above.

(4) In the event if the OPs fail to pay the compensation as directed above, the OPs shall be liable to pay interest @ 12% per annum on the said sum of Rs. 1,00,000/- from the date of the Complaint till realization.

(5) The OPs are also directed to pay Rs. 2,000/- to the Complainant towards the cost of this litigation."

6. Being aggrieved against the said order of the State Commission, the complainant as well as the OP-2 manufacturer filed the instant appeals before this Commission. During hearing before this Commission held on 14.01.2009, the OP-2 was directed to make strict compliance of direction no. 1 contained in the impugned order of the State Commission and to file a certificate from a qualified automobile mechanical engineer that the vehicle was repaired to the above extent and made road-worthy. On the next date of hearing, i.e. 24.02.2009, the learned counsel for the OP-2 stated that the Air Conditioning system of the vehicle had been changed and the vehicle had been made road-worthy in compliance of the directions of the State Commission. The OP-2 was directed on that date to deliver the vehicle to the respondent. The learned counsel for the respondent/complainant also stated that the respondent will be advised to take delivery of the vehicle within a week. However, on the next date i.e. 16.04.2009, observing that there was controversy with regard to the road worthiness of the vehicle, the OP-2 Company was directed to get the vehicle inspected and appropriately road tested through an automobile Engineer from the Automotive Research Association of India (ARAI), Pune and to file a report. The matter was then pursued with the ARAI, Pune from time to time. As per order made on 13.08.2009 by this Commission, the ARAI was asked to submit reports on the following points:-

"i) Whether there was (or continues to be) any manufacturing defect in the above mentioned vehicle (Honda CRV) only in relation to the compressor of the air conditioning system or the hydraulic pump of the power steering or any other rotating sub-assembly driven by common serpentine belt?

ii) Whether seizure of the AC compressor in the said vehicle could lead to complete stalling of the engine and also, of loss of power steering control?

iii) Whether the sharing of the compressor transmission shaft was on account of any failure of the said shaft seizure of the compressor?

iv) Whether any of the defects in the components/sub-assemblies mentioned above could lead to consequent failure of either the power steering control or the breaking system of the vehicle?

v) Whether any or a combination of more than one of the defects would pose a safety hazard that cannot be overcome by replacement of the complete air conditioning system, including the compressor, shaft, clutch etc.?

vi) Any relevant finding, apart from those mentioned above."

7. The ARAI, Pune filed their final report vide their letter dated 04.12.2009. There are two sets of enclosures with the report - Enclosure 'A' based on the visual inspection of the vehicle and Enclosure 'B' in which replies have been given to the points raised by this Commission vide order dated 13.08.2009 as mentioned above. Since then, the matter was under correspondence with the officials of the ARAI, Pune and they stated that besides the findings given in the final report, no additional special notes were made by their experts. The ARAI sent their additional comments vide report dated 09.08.2010 signed by Mr. S. S. Sandhu, Deputy Director.

8. At the time of final hearing, the learned counsel for the complainant/appellant in First Appeal No. 325/2008 submitted that there was latent manufacturing defect in the said vehicle. When the incident was brought to the knowledge of the OPs, they initially offered to meet 50% of the cost of repairs vide their e-mail message of 06.12.2006. However, vide their message dated 29.12.2006, they offered replacement of the A.C. Compressor totally free of cost. The learned counsel has further drawn attention to the reports made by the Commissioners appointed by the State Commission from where, it was clear that there was fault in the A.C. Compressor of the vehicle. Referring to the report made by the ARAI, the learned counsel stated that as per observations in enclosure 'A' of the report, the ARAI referred to certain features/conditions in running the vehicle as 'abnormal'. According to the learned counsel, the enclosure 'B' of the report also proved that the vehicle was defective.

9. The learned counsel for the respondent stated, however, that as per the orders passed by this Commission and keeping in view the impugned order of the State Commission, they had already carried out the necessary repairs in the vehicle free of cost and also got it tested from the ARAI, Pune. As per enclosure 'B' of the report, there was no manufacturing defect in the components/subassemblies of the vehicle. It was also opined by the ARAI that after the replacement of the Air Conditioning system, the vehicle will not pose as safety hazard. Referring to enclosure 'A' of the report, the learned counsel stated that there were no directions of the State Commission or this Commission to take care of the defects pointed out in enclosure 'A'. The learned counsel reiterated that the points raised in the report of the Commissioners had been adequately addressed by them, as full replacement of the A.C. Compressor unit had been done. In spite of making these efforts, the complainant had refused to take the vehicle back.

10. In reply, the learned counsel for the complainants stated that the vehicle could prove to be a safety hazard as brought out in the report of the Commissioners appointed by the State Commission. The learned counsel has drawn attention to some documents on record, according to which the Company had taken decision to recall a number of similar vehicles. The relief as demanded in the consumer complaint itself should, therefore, have been allowed to the complainant in totality. The learned counsel has drawn attention to the additional comments of the ARAI dated 09.08.2010, saying that the vehicle was not totally free from defects.

11. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

12. The facts and circumstances of the case on record indicate that the vehicle in question was purchased on 30.01.2004 and the alleged incident mentioned in the complaint took place on 19.11.2006, meaning thereby that a period of almost three years had already elapsed when the problem was faced. There is nothing on record to indicate, neither any such averment has been made by the complainant that the vehicle ever faced any problem during this period of three years since the purchase of the vehicle. It is also clear that by the time the incident took place, the warranty of the vehicle had already expired. On the consumer complaint being filed by the complainant, the State Commission appointed two independent Commissioners, one each at the instance of the rival parties. Based on the independent reports of such Commissioners, the State Commission gave directions as per impugned orders for replacement of the Air Conditioning system and to make the vehicle road-worthy and in good condition free of cost and to hand over the same to the complainant. When the impugned order of the State Commission was challenged by way of two appeals by the rival parties before this commission, the OP-2 manufacturer carried out the replacement of the Air Conditioning system free of cost as per the directions of this Commission. According to the OP-2, the necessary compliance of the first direction in the order of the State Commission had been fully made and the vehicle had been made road-worthy. However, since the controversy about the road worthiness of the vehicle still persisted (as recorded in the order dated 06.04.2009 of this Commission), a direction was made to get a detailed report from the ARAI, Pune, which is a premier Technical Institute in the government sector in the field of Automobile Engineering and allied matters. The reports submitted by the ARAI, Pune brings out clearly that there was no manufacturing defect in the said vehicle and also there was no safety hazard after the replacement of the Air Conditioning system. In the additional comments of the ARAI, Pune dated 09.08.2010 also, it is stated as follows:-

"In continuation to our earlier comments, it is further reiterated that there is no safety hazard involved in case of compressor shaft, clutch or engine shaft failure, because the steering and braking systems remain continuously operational, as and when driver desires to do so, i.e. maneuverability of the vehicle remains unaffected in terms of steering and braking."

13. In this regard, it is worthwhile to refer to an order passed by the Hon'ble Supreme Court in the case, Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra & Anr., (2006) 4 SCC 644 : [2006(3) ALL MR 193 (S.C.)], in which the Hon'ble Apex Court directed the replacement of the defective part of the vehicle and set aside the order of the Hon'ble High Court, giving directions for the replacement of the vehicle. In the instant case as well, the defective part as brought out in the report of the two Commissioners has been replaced by the OP-2 manufacturer free of cost.

14. Based on the discussion above, it is considered, just and appropriate, that when the OP-2 manufacturer has replaced the defective part of the vehicle free of cost even after the expiry of the warranty period, there is nothing more that is required to be done at their level. The direction of the State Commission to give a compensation of Rs. 1 lakh by the OPs to the complainant is also without any basis, because the fault surfaced in the vehicle after the warranty period was over. The directions to give the compensation of Rs. 1 lakh is, therefore, set aside. Both these appeals are, therefore, disposed of with the direction that the OPs shall return the vehicle to the complainant within four weeks from today. There shall be no order as to costs.

Ordered accordingly.