NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3220 OF 2012
(Against the order dated 28.06.2012 in First Appeal No. 05 of 2012 of the Goa State Consumer Disputes Redressal Commission, Panaji, Goa)
M/s. Sydney & Lydon Realtors &
Associates, through its
Managing Partner Cosme, Fransico Isidor
Cabral Fernandes, Resident of 693,
Shallom, Opp. Custom, Quarters Center,
Alto Porvorim, Bardez Goa … Petitioner (s)
Versus
1. M/s. Goa Motors Pvt. Ltd.,
Having its Registered Office at
Joshi Building, 2nd Floor,
F.L. Gomes Road,
Vasco Da Gama, Goa
2. Hyundai Motors Pvt. Ltd.,
A-30, Mohan Coop. Industrial Estate,
Mathura Road,
New Delhi … Respondent (s)
BEFORE :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
For the Petitioner (s) … Mr. Ninad Laud, Advocate
Mr. Jayant Mohan, Advocate
DATED: 25th SEPTEMBER, 2012
ORDER
PER JUSTICE R.C. JAIN, PRESIDING MEMBER
Aggrieved by the order dated 28.6.2012 passed by the Goa State Consumer Disputes Redressal Commission, Panaji (for short the ‘State Commission’) in appeal No. 05 of 2012 titled as M/s. Goa Motors Pvt. Ltd., Versus M/s. Sydney & Lydon Realtors & Associates & Anr. and Appeal No. 07 of 2012 titled as Hyundai Motors India Ltd. Versus M/s. Sydney & Lydon Realtors & Associates (the original complainant in the complaint filed before the District Forum) has approached this Commission through the present petition purportedly under Section 21(b) of the Consumer Protection Act, 1986. The appeals before the State Commission were filed by the above named appellants against the order dated 14.02.2012 passed by the Consumer Disputes Redressal Forum, North Goa at Porvorim in complaint case No. 08 of 2007. By the said order, the District Forum had partly allowed the complaint filed by the present petitioner thereby directing the opposite parties jointly and severally to refund the amount of Rs. 3,68,107/- (the price of the car in question) with interest @ 18% per annum with effect from 22.03.2006 till its actual payment with a direction to the complainant to transfer the ownership of the defective car in question in favour of the opposite party No.1-M/s. Goa Motors Pvt. Ltd. Besides that the District Forum also directed the opposite parties to pay a sum of Rs. 44,643/- towards the expenses incurred with interest @ 18% per annum from the same date till its actual payment. The State Commission partly allowed the appeals and substantially modified the order passed by the District Forum and directed the opposite parties (appellants before the State Commission) to pay a lump sum compensation of Rs. 30,000/- to the complainant for the inconvenience, embarrassment, disappointment and frustration caused to the complainant particularly on 27.4.2006 with the stipulation that compensation so awarded shall be paid within a period of four weeks from the date of the order, failing which the awarded amount shall carry interest @ 9% per annum.
2. The facts and circumstances, which led to the filing of the complaint have been amply noted in the orders of the fora below and need no repetition at our end. The consumer dispute raised by the complainant related to the alleged manufacturing defects in an Hyundai Santro car which the complainant had purchased from M/s. Goa Motors Pvt. Ltd., Vasco Da Gama at a price of Rs. 3,68,107/-. According to him within a few days of the purchase of the car, the car started giving trouble inasmuch as it would stop after running small distances due to the overheating of the engine. When the said defect was brought to the notice of the opposite parties, they found that the overheating of the engine of the car in question was on account of improper functioning of the thermostat installed in the car, as a result of which, there was failure of cooling system resulting into overheating. The thermostat was replaced by the dealer free of cost within the warranty period. It appears that the complainant was not satisfied with that and according to him the overheating of engine was due to the manufacturing defect in the engine and therefore atleast the engine of the vehicle was required to be replaced. The complaint was resisted on the ground that there was no manufacturing defect and requiring replacement of either the car or engine and therefore there was no question of the refund of the price of the car. The District Forum on an consideration of the matter and in absence of any expert evidence having been led on behalf of the complainant to establish that there existed any manufacturing defect in the car in question, returned a finding that the car suffered from manufacturing defect and directed the manufacturer and supplier of the car to refund the price of the car to the complainant.
3. We have heard the counsel for the petitioner at length and have considered his submissions at the stage of admission hearing. He would assail the impugned order passed by the State Commission as based on incorrect and improper appreciation of the facts and circumstances of the case and material brought on record. He submits that the finding of the District Forum about the manufacturing defect is substantiated on record and therefore, the District Forum did nothing wrong in directing the manufacturer and the supplier of the vehicle to refund the price of the vehicle to the complainant. He prays for restoration of the order so passed by the District Forum. In support of his submissions, he heavily relies on the decision of the Hon’ble Supreme Court in the case of C.N. Anantharam Versus Fiat India Limited & Ors. (2011) 1 Supreme Court Cases 460 wherein the Hon’ble Supreme Court on the facts and circumstances of the said case has while allowing the appeal filed by the complainant had given the following directions:
“22. From the facts as disclosed, it appears that apart from the complaint relating to noise from the engine and the gearbox, there was no other major defect which made the vehicle incapable of operation, particularly when the engine was replaced with a new one. However, in addition to the directions given by the Naitonal Commission, we direct that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and the lifetime tax and EMI along with interest @ 12% per annum and costs, as directed by the State Commission.”
4. In our view, the above decision of the Hon’ble Supreme Court does not support the case of the complainant in any way, rather if we may say so, it goes against the petitioner because in that case in absence of any report of a technical expert, the Apex Court had directed that if an independent technical report was of the opinion that there are inherent manufacturing defect in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and life time tax and EMI @ 12% per annum and the cost. In the case in hand, no cogent evidence and material led by the complainant to substantiate his case and the State Commission having considered this aspect and several other decision of the Hon’ble Supreme Court and this Commission i.e. in the case of Maruti Suzuki India Ltd., Versus Ana Paula Sanches dated 15.5.2012 in FA No. 40/09, Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad & Ors. (III) (2010) CPJ 130 (NC), Maruti Udyog Ltd. VersusSusheel Kumar Gabgotra & Anr. (II) (2006) CPJ 3 (SC) - (2006) 4 SCC 644) and Dr. Hema Vasanti A. Dacoria (II 2005 CPJ) 102 (NC) has observed as under:
“35. We could go on and on. What follows from the above cases is that when a part is found to be defective, the same is to be replaced and defect rectified. The demand for the replacement of the entire engine or the entire vehicle was most unfair and unreasonable. Even if we accept that the vehicle was taken out by the servants of the O.P. No.1 without their knowledge on 11.6.2009, that would not entitle the complainant to obtain the reliefs granted by the Lr. District Forum.
36. The thermostat of the car had failed in this case. It was replaced during the warranty period. After that there was no deficiency or service on the part of the O.Ps. The complainant ought to have collected the car as required by the letter dated 10.5.2006 and returned the gesture car. That was not done. It was done only after police complaint was filed. Complainant decision to collect the car conveyed by letter dated 24.11.2006 was the right decision. The complainant was ill-advised to change the same and file the complaint. The complainant has deprived himself of the use of his car for all these years and he has no one to blame. The complainant was not entitled either for replacement of the car or its engine or refund of its price when the Ops had replaced the thermostat which was a replaceable part, under the warranty.
37. The offer made by Lr. Adv. Shri Shetye on behalf of O.P. No.1 is fair and reasonable. Even otherwise it can be made into order of the Commission. We therefore, direct O.P. No. 1 to return the car of the complainant duly serviced at their own cost within a period of two weeks with an extended warranty for two years on same terms and conditions.
38. Nevertheless, the complainant would certainly be entitled to some compensation for the inconvenience and embarrassment caused to him by the vehicle not functioning on four occasions on 27.4.2006 and on the 5th occasion on 29.4.2006. The complainant as provided with a replacement by way of gesture car which it appears was not used as was required by the complainant as partly admitted by him in letter dated 24.11.2006. Complainant was expected to take care of it, as he would take of his own. The complainant shall be paid compensation of Rs. 30,000/- for the inconvenience, embarrassment, disappointment and frustration caused to the complainant particularly on 27.4w.2006. Compensation to be paid within a period of four weeks and in case the same is not paid it shall carry interest at the rate of 9% until it is paid. To be paid by the Ops, jointly and severally.”
5. We have given our thoughtful consideration to the entire facts and circumstances of the case and material and evidence brought on record and the submissions made on behalf of the petitioner and in view of the entirety of facts and circumstances and the subsequent developments, which took place i.e. the dealer had replaced the defective thermostat and thereafter car in question was made defect free but still the complainant failed to take back the car in question, we are of the considered opinion that the State Commission was fully justified in modulating the relief because the relief granted by the District Forum was not at all commensurate with the kind of defect in the vehicle. The relief granted by the State Commission appears to be just and reasonable. We see no illegality, material irregularity much less any jurisdictional error in the order passed by the State Commission and therefore no interference is called for by this Commission.
The Revision Petition is accordingly dismissed in limine.
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(R. C. JAIN, J.)
PRESIDING MEMBER
.………………………
(S.K. NAIK)
MEMBER
SB/2
