National Consumer Disputes Redressal
M/S. Honda Siel Cars India Ltd. & Anr. vs Manu K. Bhandari on 3 September, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2390 OF 2013 (Against the Order dated 18/03/2013 in Appeal No. 15/2013 of the State Commission Chandigarh) 1. M/S. HONDA SIEL CARS INDIA LTD. & ANR. PLOT NO- A-1 SECTOR-40/41, SURAJPUR KASNA ROAD (GNID AREA, GAUTAM BUDH NAGAR U.P - 201306 2. M/S HARMONY HONDA, JOSHI AUTOMOTIVE PVT LTD., PLOT NO -66, INDUSTRIAL AREA, PHASE- II CHANDIGARH ...........Petitioner(s) Versus 1. MANU K. BHANDARI S/O SHRI K.B BHANDARI, R/O H.NO-82-A, SECTOR-8 PANCHKULA HARYANA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE DR. INDER JIT SINGH,MEMBER FOR THE PETITIONER : FOR THE PETITIONERS : MR. JAGDEV SINGH, ADVOCATE MR. SACHIN SAINI, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENT : MR. RAJA CHATTERJEE, ADVOCATE MR. PIYUSH SACHDEV, ADVOCATE MS. ANUPAMA GUPTA, ADVOCATE MS. RIYA CHATTERJEE, ADVOCATE MR. ABDUL AHMED, ADVOCATE Dated : 03 September 2024 ORDER This revision petition has been filed by the Manufacturer as well as the Dealer of Honda Cars. The Complainant/Respondent purchased a Honda City 1.5 S MT from the Petitioner No.2 M/s Harmony Honda, the Manufacturer whereof was the Petitioner No.1.
The dispute centers around a single defect regarding a foul smell emanating out of the air-conditioning unit of the vehicle. The Complainant/Respondent alleges that he took the vehicle to the Dealer for repairs after having purchased it on 24.11.2008. It is alleged that for the first time he went to the Dealer for getting said defect rectified in February 2009 even though it has been disputed stating that this defect was for the first time pointed out in June 2009.
The Complainant/Respondent further alleged that on every occasion when the vehicle went for servicing, the Complainant/Respondent kept on repeating his request which unfortunately was not addressed to and the Dealer failed to address these issues. This was repeated even at the free-service time of 10,000 kms. The defect had commenced when the vehicle had not even run 3,000 kms. and therefore it was alleged that it was a manufacturing defect which was never remedied.
It was alleged that on several occasions the Service Engineer of the Dealer Mr. Puneet Bedi and the Manager Mr. Jaswinder Singh were contacted but of no avail. The vehicle was repetitively sent to the Dealer and it was returned back with assurances but in the short tenure whenever the Complainant/Respondent drove the vehicle the defect persisted and it was almost impossible to sit inside the vehicle with the air-conditioning on.
It is with this deficiency and complaint that a Complaint Case was filed before the District Consumer Disputes Redressal Forum/Commission-I, UT Chandigarh (hereinafter referred to as the District Commission) that was allowed on 10.04.2012. The Complainant/Respondent was aggrieved by the order as he was not satisfied with the claim awarded and the Dealer as well as the Manufacturer also filed their separate Appeals before the State Consumer Disputes Redressal Commission, UT Chandigarh (hereinafter referred to as the State Commission) being aggrieved by the order of the District Commission. All the three Appeals were decided on 01.08.2012 and the entire case was remanded back for decision afresh, holding that the District Commission had not afforded any plausible reasons in support of the decision and several issues had not been touched upon by the District Commission, hence it required a fresh trial.
After remand, the District Commission once again allowed the Complaint vide order dated 11.12.2012 awarding Rs.50,000/- as compensation and Rs.20,000/- as litigation costs to be paid within one month failing which an interest of 12% would be payable till the amount is actually paid.
Aggrieved by the order of the District Commission, all the three Parties again filed their Appeals as the Complainant/Respondent was also not satisfied with the amount awarded and the Dealer as well as the Manufacturer challenged the impugned order of the District Commission in its entirety.
The State Commission vide order dated 18.03.2013 dismissed all the three Appeals and upheld the order of the District Commission referred to above.
The Manufacturer as well as the Dealer filed this Revision Petition jointly questioning the correctness of the impugned order dated 18.03.2013 passed by the State Commission.
Learned counsel for the Petitioners Mr. Jagdev Singh has vehemently urged that insofar as the manufacturer is concerned, the finding recorded by the District Commission in paragraph-21 of the impugned order that there was a manufacturing defect established, is a finding without any evidence on record. There is no evidence that the foul smell was caused on account of any manufacturing defect. It is therefore submitted that in the absence of evidence or expert opinion to establish that the foul smell had emanated on account of any manufacturing defect in the vehicle, the impugned order is vitiated.
He further submitted that the expert opinion which has been relied on by the District Commission and affirmed by the State Commission has nowhere recorded any finding that the defect of foul smell could be correlated to any manufacturing defect in the air-conditioning unit.
He further submits that this report, on which reliance has been placed, has been given by Mechanical Engineers who are not experts in automobile engineering and does not opine specifically with regard to any defect relating to the air-conditioning system. The experts were otherwise incompetent to render any opinion on the same.
It is also urged that the experts themselves have during their cross-examination admitted that they did not probe into the real cause of foul smell so as to correlate it to any specific manufacturing defect. It is urged that in view of this admission, which has been clearly recorded in paragraph 20 of the order of the District Commission, any adverse inference drawn is a patent and material irregularity and, hence, its affirmance by the State Commission is erroneous, for which the revisional jurisdiction should be exercised and the impugned orders should be set aside.
While advancing his submissions, learned counsel for the Petitioners urged that the conclusion drawn by the State Commission that it was a manufacturing defect is patently untenable due to complete lack of evidence on that count, and the approach of the experts by not investigating into the real cause vitiates the entire exercise conducted by them, and therefore no reliance could have been placed on such a report either by the District Commission or by the State Commission.
The contention therefore in short is that the Commissions below have erred in arriving at findings bereft of any cogent evidence and hence the conclusion of there being a manufacturing defect in the vehicle is unsubstantiated.
Learned counsel has further submitted that no further evidence either expert or otherwise was led by the Complainant/Respondent to establish any such defect and reliance has been placed on several decisions to urge that the burden lay on the Complainant/Respondent to prove its case and having failed to discharge the burden, the onus could not have been shifted on the Petitioners. It is also urged that the Commissions below have failed to draw any distinction between an ordinary defect and a manufacturing defect. Learned counsel has relied on the following 15 decisions to substantiate his submissions:
"1. [2009] 14 (Addl.) SCR 424 Ramesh Chandra Agrawal V/s Regency Hospital Ltd. & Ors.
2. FA 766/2021 (NC) Mercedes Benz India Pvt. Ltd. V/s Revathi Giri & Ors.
3. 2009 SCC OnLine NCDRC 44 The Manager, Tata Engineering and Locomotive Co. Ltd. & Ors. V/s Bachhi Ram Dangwal & Anr.
4. 2006 SCC OnLine NCDRC 132 / (2007) 1 CPJ 2 (NC) Chandeshwar Kumar V/s Tata Engineering Loco Motive Co. Ltd. & Anr.
5. 2014 SCC OnLine NCDRC 926 Brijesh Saxena & Ors. V/s Skoda Auto A.S. & Ors.
6. 2006 SCC OnLine NCDRC 106 / I (2007) CPJ 204 (NC) Ajitha Chit Funds (P) Ltd. V/s Tata Engineering and Locomotive Co. Ltd. & Ors.
7. III (2009) CPJ 389 (NC) Sundeep Polymers Pvt. Ltd. & Ors. Versus Mercedes Benz India Ltd.
8. 2011 SCC OnLine NCDRC 128 / [2011] NCDRC 127 TELCO V/s Hardip Singh & Anr.
9. III (2010) CPJ 235 (NC) Scooter India Ltd. Versus Manjulaben Kiritbhai & Ors.
10. 2015 SCC OnLine NCDRC 1512 Tata Motors Ltd. Versus Deepak Goyal & Ors.
11. 2015 SCC OnLine NCDRC 3704 Skoda Auto India P. Ltd. Versus Bhawesh Narula
12. 2009 SCC OnLine NCDRC 4 / [2009] NCDRC 73 Maruti Udyog Ltd. V/s Hansmukh Lakshmichand
13. 2020 SCC OnLine NCDRC 54 Amar Kumar Saraswat V/s M/s Volkswagen Group Sales India Pvt. Ltd. & Anr.
14. 2019 SCC OnLine NCDRC 754 Gopal Aggarwal V/s M/s Metro Motors & Anr.
15. 2014 SCC OnLine NCDRC 172 Krishanpal Singh V/s Tata Motors Ltd. & Ors."
The contentions therefore were sought to be supported by the decisions aforesaid to contend that neither the Complainant/Respondent had been able to prove the case as set up in the Complaint nor was there evidence available to sustain the same and consequently the orders of the Commissions below deserve to be set aside as they are vitiated both on facts and law and therefore suffer from material irregularity.
Mr. Raja Chatterjee, learned counsel for the Complainant/Respondent, has urged that the entire burden of proving the case was discharged by the Complainant/Respondent with the expert evidence on record. The distinction sought to be drawn by the learned counsel for the Petitioners between a manufacturing defect and an ordinary defect is not tenable, inasmuch as the defect which was pointed out was never rectified by the Petitioners which continued to persist inspite of repeatedly sending the vehicle for repairs to the Dealer. The Commissions below have arrived at findings of fact that have been recorded on the basis of expert opinion and also after going through the interrogatories that were exchanged between the Parties which go a long way to prove that the Complainant/Respondent had clearly established the allegations made in the Complaint and having proved the same, the District Commission has rightly awarded he claim to the Complainant/Respondent on findings that are based on sound reasoning. He submits there is no error either of fact or law so as to warrant any interference in the revisional jurisdiction of this Commission and the findings of facts having been arrived at and based on cogent evidence, cannot be disturbed on the basis of grounds taken in the Revision Petition.
Mr. Raja Chatterjee has however urged that in view of the pending litigation, the Complainant/Respondent could not enjoy the luxury of riding his own vehicle purchased by his hard earned money which had almost been abandoned and on instructions the learned counsel submits that the vehicle has now been scrapped. He therefore submits that in the background above, the Revision Petition deserves to be dismissed.
Having heard learned counsel for the Parties and having considered the submissions as well as the material on record, the question as to on whom does the burden of proof lie came to be considered in the case of Iffco Tokio General Insurance Co. Ltd. Vs. Pearl Beverages Ltd. (2021) 7 SCC 704 where, noticing several provisions of the Indian Evidence Act, certain observations were made but that was in relation to personal knowledge and referable to Section 106 of the Indian Evidence Act. In the instant case, the allegations with regard to evidence being led either by the Petitioners or by the Complainant/Respondent has to be viewed from the angle that the Commission itself had invited expert evidence and then allowed the same to be examined and cross-examined through interrogatories. However, the issue of burden of proof has been very recently considered in the case of Mahakali Sujatha Vs. Future Generali India Life Insurance Co. Ltd., 2024 SCC OnLine SC 525. The essence of the discussion as contained in paragraphs 41 to 46 is reproduced hereunder:-
"41. At this stage, we may also dilate on the aspect of burden of proof. Though the proceedings before the Consumer Fora are in the nature of a summary proceeding. Yet the elementary principles of burden of proof and onus of proof would apply. This is relevant for the reason that no corroborative evidence to what has been deposed in the affidavit is let in by the insurance company in order to establish a valid repudiation of the claim in the instant case. Section 101 of the Evidence Act, 1872 states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This Section clearly states that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. Simply put, it is easier to prove an affirmative than a negative. In other words, the burden of proving a fact always lies upon the person who asserts the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Further, things which are admitted need not be proved. Whether the burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. The party on whom the burden lies has to stand on his own and he cannot take advantage of the weakness or omissions of the opposite party. Thus, the burden of proving a claim or defence is on the party who asserts it.
42. Section 102 of the Evidence Act, 1872 provides a test regarding on whom the burden of proof would lie, namely, that the burden lies on the person who would fail if no evidence were given on either side. Whenever the law places a burden of proof upon a party, a presumption operates against it. Hence, burden of proof and presumptions have to be considered together. There are however exceptions to the general rule as to the burden of proof as enunciated in Sections 101 and 102 of the Evidence Act, 1872, i.e., in the context of the burden of adducing evidence : (i) when a rebuttable presumption of law exists in favour of a party, the onus is on the other side to rebut it; (ii) when any fact is especially within the knowledge of any person, the burden of proving it is on him (Section 106). In some cases, the burden of proof is cast by statute on particular parties (Sections 103 and 105).
43. There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact and which never shifts but onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. For instance, in a suit for possession based on the title, once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title vide RVE Venkatachala Gounder v. Arulmigu Viswesaraswami and VP Temple, (2003) 8 SCC 752.
44. In a claim against the insurance company for compensation, where the appellants in the said case had discharged the initial burden regarding destruction, damage of the showroom and the stocks therein by fire and riot in support of the claim under the insurance policy, it was for the insurance company to disprove such claim with evidence, if any, vide Shobika Attire v. New India Assurance Co. Ltd., (2006) 8 SCC 35.
45. Section 103 of the Evidence Act, 1872 states that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This Section enlarges the scope of the general rule in Section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. Further, Section 104 of the said Act states that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. The import of this Section is that the person who is legally entitled to give evidence has the burden to render such evidence. In other words, it is incumbent on each party to discharge the burden of proof, which rests upon him. In the context of insurance contracts, the burden is on the insurer to prove the allegation of non-disclosure of a material fact and that the non-disclosure was fraudulent. Thus, the burden of proving the fact, which excludes the liability of the insurer to pay compensation, lies on the insurer alone and no one else.
46. Section 106 of the Evidence Act, 1872 states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This Section applies only to parties to the suit or proceeding. It cannot apply when the fact is such as to be capable of being known also by persons other than the parties. (Source : Sarkar, Law of Evidence, 20th Edition, Volume-2, LexisNexis)"
The first question therefore is as to whether the Complainant/Respondent had been able to discharge his burden with regard to the allegation of deficiency in service and the evidence in support thereof. As is evident from the pleadings and the contentions raised, the issue regarding the defect alleged was sought to be proved by the Complainant/Respondent and during the course of the pendency of the Complaint an order was passed on 10.08.2010 by the District Commission appointing a panel of experts. The car was produced before the experts in April 2011 and a report was filed by the said panel of experts on 13.04.2011. This panel consisted of Dr. V.P. Singh, Head of the Mechanical Engineering Department, Punjab Engineering College University of Technology Chandigarh, along with an Assistant Professor Dr. Sushant Samir and a Works Inspector Mr. Gopal Dass. The said experts submitted their report before the District Commission on 13.04.2011 which is extracted hereunder:
"Office of the Head, Mechanical Engg. Deptt. PEC University of Technology, Chandigarh To The President District Forum-I Plot No.5B, Sector 19-B, Chandigarh Memo No. PEC/MED/298 Dated 13.04.2011 Subject: Consumer Complaint No. 41 of 2010, Manu K. Bhandari V/s Harmony Honda, Joshi Automotive Pvt. Ltd.
Please refer to your order dated 10.08.2010 and 27.09.2010.
The vehicle under question (Honda City) having Registration No. CH-04-F-8593, Engine No. L15A70000623 Chassis No. MAKGM252L8N000378 was examined on 11.04.2011 at 9.00 A.M. by the committee. The car was test driven for 13 KM i.e. the reading before and after the test drive was 18583 KM and 18596 KM respectively.
Sh. Manu K. Bhandari, Owner of the car and Sh. Jaswinder Singh, Service Manager, Harmony Honda, Joshi Automobiles Pvt. Ltd. were present during the inspection and test drive.
On enquiry from the above said persons and after the inspection and test driving of the car it was found that a foul smell is coming out of the ducts of air conditioning system of the car and was not bearable during the test drive. During test drive the vehicle was driven at different speed and at different blower speed of the air conditioning system but the smell was continuing throughout the test drive.
Sd/- Sd/- Sd/- (Sushant Samir) (Gopal Dass) (Dr. V.P. Singh) Assistant Prof. W.I. Head, Mechanical Engg. Deptt., PEC University of Technology, Chd."
The affidavit of Dr. Sushant Samir, one of the members of the panel, on being questioned through interrogatories, was also filed which is extracted hereunder:
"I, Dr. Sushant Samir S/O Sh. H.B. Mishra, Assistant Professor in Mechanical Engineering Department, PEC University of Technology, Chandigarh hereby submit the reply to the interrogatories in Complaint No. 41 of 2010 titled as Manu K Bhandari Versus M/s Harmony Honda & Another and solemnly affirm and declare as under:
1. I received the copy of the complaint alongwith the orders of the Hon'ble District Forum-I through our institute Director/Head, Mechanical Engineering Department.
2. My professional qualification is Ph.D in Engineering.
3. My designation is Assistant Professor and I am in Mechanical Engineering Department of the Institute.
4. I have an experience of 23 years of teaching in Mechanical Engineering subjects.
5. The vehicle was examined on 11.04.2011 by the committee and car was test driven for 13 kilometers. Sh. Manu K Bhandari owner of the car and Sh. Jaswinder Singh, Service Manager, Harmony Honda, Joshi Automobile Pvt. Ltd. were present during the inspection and test drive alongwith the committee members.
6. The report to this effect has already been submitted vide letter No. PEC/MED/298 dated 13.04.2011 to the Hon'ble District Forum-I. The report submitted was in line with the orders of the Hon'ble District Forum-I.
7. Q.No. 7 to 27 has already been answered. Refer to Sr. No.6.
8. No
9. No
10. The question has already been answered. Refer to Sr.No.6
11. Yes
12. Q.No. 32 to 35 has already been answered. Refer to Sr.No.6
13. The members of the committee jointly submitted the report.
14. The question has already been answered. Refer to Sr.No.6 The problem was referred to us by District Forum-I and the scope of the investigation was limited to examination of the car and to opine whether there are defects in the car as alleged by the complainant or not. Fee was charged for this limited scope. Identification of the specific defect, if any, and its possible solution were neither within the scope of the investigation nor was fee charged for them.
Deponent Sd/-
Dated : 25.11.2011 (Dr. Sushant Samir) Assistant Professor, Mechanical Engineering Department, PEC University of Technology, Chandigarh.
Verified that the contents of Para No. 1-14 of the above affidavit are true and correct to the best of my knowledge. Nothing has been concealed.
Deponent Chandigarh Sd/- Dated : 25.11.2011 (Dr. Sushant Samir) Assistant Professor, Mechanical Engineering Department, PEC University of Technology, Chandigarh."
It is this evidence which was available with the District Commission on the strength whereof it was concluded that a foul smell was coming out of the air-conditioning ducts and was unbearable.
Applying the principles of the discharge of burden of proof as extracted hereinabove, the said evidence was led through an expert team appointed by the District Commission itself.
Learned counsel for the Petitioners has vehemently urged that the said experts have failed to locate or record any manufacturing defect nor is there any finding that the said foul smell was on account of any such defect which could be termed as a manufacturing defect. The reply to the interrogatories by Dr. Samir is evasive and the last portion of the affidavit categorically states that since the investigation was limited to the examination of the car, the fee was charged for this limited scope only. Learned counsel pointed out that the said reply clearly establishes that no identification of any specific defect was made nor any plausible suggestion suggested, as the experts did not investigate that aspect as according to them it was not within the scope of the investigation nor any fee was charged for it. The contention of the learned counsel for the Petitioners therefore is that the expert report cannot be relied on nor is it an evidence to establish a manufacturing defect.
He further submits that if the experts were unable to locate the cause of the alleged foul smell, then it could not be concluded on any score that it was either a defect or a manufacturing defect.
The aforesaid submission has to be viewed in the light of the expert report itself which does record the existence of a foul smell coming from the air-conditioning ducts. The contention of the learned counsel for the Petitioners is that the experts were not Automobile Engineers and were simple Mechanical Engineers whose opinion cannot be relied on. This argument has to be noted for being rejected for the simple reason that no expert engineer is required to perceive a foul smell which can be observed by ordinary human perceptions. Nonetheless, they were Mechanical Engineers of an Engineering College and therefore the fact of a foul smell on a 13 km drive was found to be existing continuously and was unbearable. This presence of a foul smell during the period when the vehicle was being driven, which had hardly done 20,000 kms, is something which cannot be disbelieved or discarded and this was a clear deficiency. The presence of the foul smell during the utilization of the vehicle therefore was found to be existing and consequently this defect will amount to a deficiency within the definition of the word 'deficiency' as defined under the Consumer Protection Act, 1986. A person having purchased a vehicle of a substantially good quality can reasonably expect the vehicle to be free from such a defect as presently involved. In the given circumstances, the contention raised on behalf of the Petitioners that the foul smell coming out of the air-conditioning ducts is not a deficiency cannot be accepted.
The Petitioners either before the District Commission or before the State Commission did not lead any other evidence to contradict the aforesaid fact found by the experts of the existence of a foul smell while the vehicle was being driven. The Petitioners' counsel urged that the smell could have possibly been a maintenance issue or probably an outcome of improper upkeep or any such reason. The said argument appears to be speculative as there is no evidence on record led by the Petitioners to demonstrate any other plausible cause for the foul smell. The Petitioners could have led their own expert evidence to demonstrate any other reason for the smell but no such attempt seems to have been made. Once the burden of proof was discharged with the expert evidence on record, and the expert had also been examined through interrogatories, the Petitioners had ample opportunity to adduce their evidence in rebuttal if any. No effort was made to discharge the onus by the Petitioners. Consequently, it is the Petitioners who have failed to discharge their onus by dislodging positive expert evidence that had proved the case of the Complainant/Respondent to the extent indicated above.
The second issue is with regard to the finding recorded by the District Commission that the vehicle suffered from a manufacturing defect. On this ground, the contention of the learned counsel for the Petitioners on behalf of the Manufacturer needs consideration. The evidence which was brought-forth does not connect the foul smell due to any manufacturing defect. The experts did not render any specific opinion on a manufacturing defect. This is also evident form the affidavit of Dr. Samir indicated above.
Learned counsel for the Petitioners therefore has rightly relied on the order of this Commission in the case of Maruti Udyog Ltd. Vs. Hansmukh Lakshmichand (Supra). The observations made by this Commission in this regard need to be noticed and are extracted hereunder:
"Manufacturing defect" as per P. Ramanatha Aiyar's Advanced Law Lexion, 3RD Edition, Volume 3, 2005, defines to mean as:--
"An unintended aspect of finished product due to error or omission in assembly or manufacture, that causes injury."
Business Dictionary.com defines it to mean:--
"Frailty or shortcoming in a product resulting from a departure from its design specifications during production."
Respondent/complainant failed to show by leading any evidence whatsoever to prove any "manufacturing defect" in the vehicle. The "manufacturing defect" is much more than an ordinary defect which can be cured by replacing the defective part. "Manufacturing defect" is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect, opinion of an Expert is necessary which is not forthcoming in the present case. Attempt made by the manufacturer to get the opinion of an Expert or an independent agency has been thwarted by the respondent/complainant by not handing over the car for taking it to the ARAI for inspection."
Applying the aforesaid principles, the expert report in the present case dated 13.04.2011 combined with the affidavit of the expert Dr. Samir nowhere establishes the existence of a manufacturing defect even though the defect of a foul smell is evident. The contention therefore of the learned counsel for the Petitioners that no manufacturing defect is established, is correct and to that extent the order of the District Commission cannot be sustained.
The deficiency of foul smell was the responsibility of the Dealer to have eliminated the same but at the same time if the Manufacturer had been intimated about this defect. It could have been rectified either simply by replacement of the air-conditioning ducts or any such other spare parts that were causing the said smell. It is in this background that we find that the claim of the Complainant/Respondent was sustainable as the deficiency of a foul smell continued to persist even if it was not a manufacturing defect.
With the aforesaid findings, we are of the opinion that the Complainant/Respondent did suffer a lot and being a practicing advocate had to virtually give up the vehicle which the learned counsel for the Complainant/Respondent states had to be ultimately scrapped. A passage of 15 years after the purchase of the vehicle is also a factor which has to be taken into account. The District Commission had awarded a sum of Rs.50,000/- coupled with replacement of the entire AC unit of the car without any charge. The operation of the order had been stayed on 19.07.2013 subject to a deposit of Rs.50,000/-. Since the vehicle according the Complainant/Respondent's Counsel has already been scrapped, there is no question of replacement of the AC unit.
Consequently, in the background above, having found the deficiency of a foul smell persisting, we are inclined to maintain the award of Rs.50,000/- as compensation to the Complainant/Respondent. So far as the direction relating to litigation costs of Rs.20,000/- is concerned, the same is upheld.
The Revision Petition is partly allowed and the order of the District Commission as affirmed by the State Commission only to the extent of the liability of the Manufacturer due to a manufacturing defect is set aside.
After the order was pronounced, learned counsel for the Petitioners pointed out that separate appeals had been filed by the Manufacturer as well as by the Dealer before the State Commission being FA/15/2013 and FA/22/2013 respectively. However, this Revision Petition was filed jointly by the Manufacturer and the Dealer, to which an issue was raised on 27.05.2016 by a Bench of this Commission while restoring the Revision Petition to its original number. The operative part of the order is extracted hereunder:
"Adjourned to 19.10.2016 for final hearing at admission stage and last chance is given to Counsel for the parties to bring law on the point that one revision petition is maintainable against two appeals."
The Petitioners' counsel again sought an adjournment on this issue which is recorded in the order sheet on 19.10.2016 extracted hereunder:
"Learned Counsel for the petitioners made payment of cost of Rs.1000/- to the learned counsel for the respondent. Learned Counsel for the petitioner prayed for adjournment to bring law on the point that one revision petition is maintainable against two appeals of two different opposite parties. Last opportunity is granted. Adjourned to 7.2.2017 for final hearing at admission stage."
On 07.02.2017 a statement was made by the learned counsel that he would be preferring a separate Revision Petition on behalf of the Dealer who had filed FA/22/2013 before the State Commission and therefore the present Revision Petition may be treated as Revision Petition arising out of FA/15/2013 filed by the Manufacturer who is the Petitioner No.1 herein. The following order was passed on 07.02.2017:
"During the course of arguments, Learned Counsel for the petitioners submitted that he would be filing separate Revision Petitions against order of State Commission in FA No. 22 of 2013 and present Revision Petition may be treated as Revision Petition against FA No. 15 of 2013.
Adjourned to 9.5.2017 for final hearing at admission stage."
On 09.05.2017 it was recorded that no separate Revision Petition had been filed as per the previous order. The order dated 09.05.2017 is extracted hereunder:
"Petitioner has so far not filed separate revision petition as directed on the last date of hearing. Clerk of counsel for petitioner apprised that counsel is busy in High Court.
Learned counsel for the respondent apprised that the matter is likely to be settled.
Adjourned to 13.10.2017 for final hearing at admission stage."
The entire order sheet thereafter proceeded on promises of settlement between the parties and the case was adjourned time and again where-after the Covid intervened and the matter was placed for hearing on several occasions. No orders seem to have been passed other than what has been recorded above. Thus, this Revision Petition was confined to on behalf of Petitioner No.1 only on the statement of the learned counsel for the Petitioners as recorded hereinabove in the order sheet dated 07.02.2017.
Learned counsel urged that since the Manufacturer has been absolved of his liability, then the amount of Rs.50,000/- deposited under the orders of this Commission should be released to the Petitioner No.1 and not to the Complainant/Respondent. This Revision Petition ceased to be a Revision Petition for the Dealer, the Petitioner No.2, and no fresh Revision Petition was filed on its behalf in terms of the order quoted above. The Petitioner No.2 therefore has abandoned any challenge and consequently the impugned order would become executable against it.
Having noticed these facts, we provide herein that the State Commission shall execute the order and decree of the District Commission as confirmed by it as against M/s Harmony Honda, Joshi Automotive Pvt. Ltd., Plot No.66, Industrial Area, Phase-II, Chandigarh and realise the amount exclusively from the said party for the satisfaction of the decree. In view of order and directions hereinabove, the decree of the Fora below is modified to the extent that it shall be exclusively executable against M/s Harmony Honda, Joshi Automotive Pvt. Ltd.
The amount deposited by the Petitioner No.1 before the State Commission under the order dated 19.07.2013 passed herein shall be released to the Petitioner No.1 together with any interest accrued thereon.
The Revision Petition stands disposed of accordingly.
.........................J A. P. SAHI PRESIDENT ................................................ DR. INDER JIT SINGH MEMBER