APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :   16^th MAY 2018

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          These revision petitions have been filed under section 21(b) of the Consumer Protection Act, 1986 challenging the legality and correctness of the order dated 03.09.2012, passed by the UT Chandigarh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 150/2012, “M/s Honda Siel Cars India Ltd. versus Savita Jerath & Anr.” and First Appeal No. 137/2012, “M/s. Harmony Honda vs. Savita Jerath & Anr.”, vide which, both the appeals were ordered to be dismissed and the order dated 07.03.2012, passed by the District Forum-I, U.T. Chandigarh, allowing the consumer complaint No. 282/2010, filed by the complainant Savita Jerath against the two appellants/revision petitioners mentioned above, was upheld.

2.       Briefly stated, the facts of the case are that Savita Jerath, the complainant, purchased a Honda City car for a sum of ₹7,23,500/- on 29.02.2008 from the dealer, M/s Harmony Honda, Joshi Automobiles Private Limited, Chandigarh, manufactured by the petitioner M/s Honda Siel Cars (India) Limited, Greater Noida (U.P.).  The extended warranty cover for the car is stated to be valid upto 29.02.2012.  It has been stated in the consumer complaint that there was a manufacturing defect in the application of gears in the said vehicle, which was noticed right from the beginning.  The said defect could not be rectified during regular servicing of the vehicle, done by the Opposite Party (OP) dealer.  The matter was brought to the notice of the other OP, i.e., the manufacturer M/s. Honda Siel Cars Limited through letter dated 06.03.2009, duly acknowledged by the said party.  It is alleged that the said vehicle suddenly stopped on 03.10.2009 in the middle of the road at a traffic intersection in Chandigarh and had to be towed away.  The matter was brought to the notice of both the opposite parties and they were requested to replace the complete engine of the vehicle, as there was manufacturing defect in the same.  It was stated that due to said defect in the body of the engine, the coolant had leaked into the engine head, got mixed up with the engine oil and entered the cylinders of the engine, thereby causing damage to the whole engine.  On the advice of the manufacturer, the dealer decided to replace the ‘Head Assembly’ of the engine of the vehicle.  However, the complainant took the stand that the Head Assembly was one of the components of the engine and when one of the components was found to have a manufacturing defect, the whole engine needed to be replaced.  However, despite sending letters to various functionaries of the OPs, they refused to proceed in accordance with the demand of the complainant and ultimately delivered the vehicle to her on 10.11.2009, after replacing the head compressor cylinder, which was termed as Head Assembly.  The complainant, however, maintained that there was dip in speed after the repairs carried out by the OPs.  The complainant has further stated that although joint inspection of the vehicle was carried out on 26.02.2010 and a joint drive done, the defects in the vehicle could not be rectified.  It is also alleged that after replacement of the Head Assembly, the BHP test was not carried out to determine, whether the vehicle was in perfect running condition.  The complainant then filed the consumer complaint in question, seeking directions to the OPs to replace the complete vehicle, because of the defects in many parts of the vehicle. 

3.       The complaint was resisted by the OPs by filing their written reply before the District Forum.  The OP-1 dealer stated that there were no defects in the vehicle at the time of its sale.  As and when, any defect was pointed out, the same was promptly attended to by them.  There was no problem in the application of the gears and the same was communicated to the complainant after conducting the test drive jointly.  The OP-1 maintained that there was no need to replace the engine, as the vehicle was running perfect.  It was also stated that the engine of the vehicle consists of various parts and in case a problem is found in a particular part, the relevant part in engine is to be replaced, rather than replacing the whole engine.  There was no defect in the gear operation and dip in speed after the repairs carried out by them.  It was also stated that during joint test drive on 26.02.2010, no defect was found in the vehicle.  The written reply was also filed by the OP-2 on similar lines.

4.       The District Forum, after considering the averments of the parties passed their order on 07.03.2012, by which they allowed the consumer complaint and directed the OPs jointly and severally to replace the entire engine of the car, without charging any amount from the complainant.  The OPs were also directed to pay a sum of ₹50,000/- as compensation and ₹15,000/- as cost of litigation.  Being aggrieved against the order of the District Forum, both the OPs challenged the same by way of separate appeals before the State Commission. The said appeals having been dismissed vide impugned order, both the OPs are before this Commission by way of the present revision petitions. 

5.       During proceedings before this Commission, the petitioners in RP No. 4615/2012, M/s. Harmony Honda appeared on some of the hearings, but none came present for them since hearings done on 17.03.2016 and afterwards.  In the interest of justice, a notice was sent to them for appearance on the next date of hearing, but despite due service of the notice, none was present for them on any of the hearings subsequently.  RP No. 4615/2012, therefore, deserves to be dismissed on grounds of non-prosecution, as well. 

6.       During arguments before us, the learned counsel for the petitioner in RP No. 4614/2012, M/s. Honda Siel Cars India Limited submitted that the OPs had already replaced the Head Assembly of the engine free of cost, and hence, there was no need to replace the entire engine of the vehicle.  The learned counsel argued that it was an established legal proposition that a manufacturer or a dealer was required to replace the defective part of the vehicle only.  The learned counsel has drawn attention to the vehicle inspection report dated 10.09.2010, made by their technical personnel, according to which, all technical parameters of the vehicle were found to be in order.  The learned counsel further stated that the vehicle was being run by the complainant or her representative in perfect condition and hence, there was no chance of any manufacturing defect in the same.  The learned counsel has drawn attention to an affidavit filed by Jasminder Singh, Service Advisor of their dealer, Joshi Automobiles Private Limited, in which it has been categorically stated that the OPs were ready to get the vehicle inspected from any independent agency or engineering institute to ascertain the allegations regarding the noise in the engine or dip in the speed of the vehicle. Referring to the opinion expressed by L.D. Garg from the Department of Mechanical Engineering, Punjab Engineering College, Chandigarh, the learned counsel stated that the said person had not inspected the vehicle before giving his report.  Moreover, L.D. Garg was not an Automobile Engineer and hence, his report did not carry any weight.  Similarly, the technical opinion of Ravi Nandan Malhotra placed on record by the complainant, was of no value, because Mr. Malhotra was also a Mechanical Engineer only.  Moreover, he had not conducted any test on the vehicle and the report was also prepared without their knowledge.  The learned counsel further stated that the vehicle might have travelled 1,50,000 kms by this time and hence, the presumption is that it was in a perfect running condition.  The representative of the complainant replied that the vehicle had run about 80,000 kms.  The learned counsel for the petitioner further stated that the onus to prove that there was manufacturing defect in the vehicle, was upon the complainant only. 

7.       In support of his arguments, the learned counsel for the petitioner, inter-alia, relied upon the following judgments made by the Hon’ble Supreme Court of India and this Commission:-

8.       The authorised representative for the respondent/complainant stated that the vehicle in question suffered from manufacturing defect from the very beginning and hence, the direction given by the Consumer Fora below for replacement of the entire engine of the vehicle, was in accordance with law.  The vehicle had been purchased by them from M/s. Harmony Honda, Chandigarh on 29.02.2008 and it was within the warranty period, when it stopped suddenly on 03.10.2009 at the traffic light point located at the intersection of Section 15 and 16, Chandigarh.  He immediately contacted the opposite party and asked them to take required action in the matter.  The authorised representative explained that being an experienced engineer himself, he could say with certainty that once water had entered the head assembly, it had entered the cylinders also and caused damage to the whole engine.  It was necessary, therefore, to replace the entire engine.  The authorised representative stated that they had placed on record expert technical opinions from two persons, who were both mechanical engineers and had stated categorically that if the coolant gets mixed up in the engine oil, a serious damage is done to the engine.  The experts had also opined that the replacement of head assembly alone, cannot restore the original efficiency of the engine.  The authorised representative stated that the opposite parties had failed to carry out the requisite tests like the BHP test etc. and hence, they could not take the stand that the vehicle was in perfect running condition.  The authorised representative admitted that the vehicle was being used by them, but it was not running to its full efficiency.

9.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

10.     The main issue for consideration in the matter is whether the vehicle in question suffered from any manufacturing defect or not.  The version given by the complainant that the vehicle suddenly stopped on the road on 03.10.2009 during the warranty period, has not been denied on record by the opposite parties.  The opposite parties have taken the plea that on receipt of complaint about the defects in the vehicle, they conducted repairs by replacing all concerned parts which could lead to any future trouble.  They also stated that the vehicle was absolutely road-worthy, after the repairs were carried out in the same and there was no manufacturing defect etc. However, since the complainant was not satisfied with the repairs made and continued to highlight the defects in the vehicle, a joint inspection was carried out on 26.02.2010 in which, the representative of the OPs recorded the remarks that no abnormality was found.  However, the complainant recorded her dissatisfaction note saying that, “the operation of second gear continues to be extra hard and troublesome.  The engine BHP be checked to eliminate the problem of dip in speed especially because the head assembly has been replaced because of a manufacturing defect in the engine.”

11.     It is made out from above that the petitioners failed to convince the complainant that the defects in the vehicle had been fully removed.  Moreover, they did not take any steps to get the BHP test etc. done, so as to remove all doubts about the vehicle not working to its full efficiency.  It has been stated in the reports produced by the complainant that the original efficiency of the engine cannot be restored if the “Head Assembly” alone is replaced.  It has further been stated that once the coolant gets mixed up with the engine oil, a serious damage is done to the engine and under those circumstances, it is necessary that the whole engine should be replaced.  These reports have been given by experts who are qualified mechanical engineers, expected to have an in-depth knowledge about the working of the automobiles.  One of the experts, L.D. Garg is a retired officer from the Mechanical Engineering department of a reputed Institute, known as the Punjab Engineering College (PEC), and now the PEC Institute of Technology.  In the absence of any other technical/expert report to the contrary, it would be unfair to say that these reports should not be relied upon, while taking a decision in this matter.

12.     One of the main thrusts of the argument taken by the learned counsel for the petitioner/manufacturer says that the onus to prove that there was manufacturing defect in the vehicle was upon the complainant.  In this regard, we would like to place reliance on a view taken by this Commission in RP No. 381 of 2012 decided on 17.10.2014/05.11.2014, “Ankur Seeds Private Limited & Anr. vs. Moti Lal & Anr.”, in which it has been stated as follows:-

“It is cardinal principle of law that ordinarily the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is  distinction between the phrase burden of proof and onus of proof.  Explaining the said distinction, in A. Raghavamma & Anr. Vs. A. Chenchamma & Anr. AIR 1964 SC 136, a three-Judge Bench of the Hon’ble Supreme Court held that: there is essential distinction between burden of proof and onus of proof: burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts.  Such a shifting of onus is a continuous process in the evaluation of evidence.”

          It has further been stated in the said order as follows:-

“In my view therefore, to give effect to the Objective of the Act, its provisions have to be construed by resorting to the Doctrine of ‘Purposive Construction’. Considered from that perspective, in my opinion, if a Complainant is able to create a high degree of probability of deficiency on the part of the Opposite Party, the onus would shift on to the Opposite Party (the defendant) to discharge the onus to prove his denial.”

13.     It is made out from the above that once the complainant has placed reports from two technical experts on record, the onus had shifted to the OP to prove that the defects in the vehicle had been fully removed, after they carried out the repairs in the same.  The contention of the complainants that once coolant gets mixed up with the engine oil, serious damage is done to the engine, has not been controverted by the petitioner by producing any tangible evidence or technical report in their favour, neither they have furnished any substantive proof that the engine of the vehicle is working to its full efficiency.

14.     The learned counsel for the petitioner/manufacturer has vehemently argued that as per settled law laid down in various judgments/orders of the Hon’ble Supreme Court and this Commission, it was incumbent upon them to replace only the defective part of the engine. However, the consumer fora below had directed them to replace the entire engine of the vehicle, which was neither fair nor just.  However, we would like to emphasise here that it was the duty of the opposite parties to ensure that the vehicle was free from any fault, imperfection or shortcoming in the same after the necessary repairs were carried out and for that purpose, they should have placed sufficient evidence on record in the shape of technical/expert reports that the vehicle did not suffer from any defect.  We, therefore, do not find any justification to make any modification in the findings recorded by the Consumer Fora below. 

15.     Further, it is a settled legal proposition that interference in the exercise of the revisional jurisdiction can be made only, if there is material defect or jurisdictional error in the orders passed by the Consumer Fora below.  Such a view has been taken by the Hon’ble Supreme Court in their judgment in “Rubi Chandra Dutta vs United India Insurance Co. Ltd. [(2011) 11 SCC 269]”.  In the present case, considering the concurrent findings given by the District Forum and the State Commission, there does not seem to be any justification in making any modification in the orders passed by them in the exercise of revisional jurisdiction. 

16.     It is further observed that in RP No. 4615 of 2012 filed by the dealer M/s. Harmony Honda, the petitioner made appearance on first few days of hearing and then stopped appearing.  It is very clear, therefore, that they are no longer interested in pursuing the revision petition any more, meaning thereby that they have accepted the verdict given by the consumer fora below.  RP No. 4615 of 2012 deserves to be dismissed on ground of non-prosecution as well.

17.       Based on the discussion above, we do not find any justifiable reason for making any change in the orders passed by the consumer fora below, which are based on sound and logical reasoning.  The present revision petitions are, therefore, ordered to be dismissed and the orders passed by the consumer fora below are upheld.  There shall be no order as to costs.