A.P. Sahi, President
The Manufacturer has come up in Appeal against of the order dated 16.12.2021 passed by the State Consumer Disputes Redressal Commission, Kerala in CC/21/2012 wherein the Respondent No.l/Complainant had alleged deficiency in service against the Dealer M/s EVM Automobiles and the Appellant Manufactures contending that they had supplied a vehicle with a manufacturing defect and accordingly awarded compensation after recording findings on deficiency. The Respondent No.2 is the Marketing and Sales Office of the Appellant and the Respondent No.3 is the Dealer.
2. It is only the Manufacturer who has come up in Appeal and the Dealer does not seem to have preferred any Appeal against the impugned order.
3. The dispute relates to a Nissan X Trail vehicle purchased by the Complainant i.e. manufactured by M/s Nissan Motors and was taken delivery of through M/s EVM Automobiles Pvt. Ltd. the Dealer who is the Respondent No.3 herein. The vehicle was registered as KL05AD-02 and was purchased for an approximate amount of Rs.28 lakhs on 22.06.2011.
4. According to the Complainant after the vehicle had run about 780 Kms it stopped abruptly on 28.06.2011 on the 6th day of purchase and the vehicle was towed to the workshop where it was examined and according to the Complainant the vehicle was returned on the same day without curing any defects. The problem persisted thereafter but it could not be rectified despite repeated complaints and assurances having been given. The engine became noisy and after the vehicle had run about 10947 Kms it again went to the workshop where some minor repairs seem to have been undertaken and the vehicle was returned but in spite of such repairs, the engine continued to be noisy and on 27.09.2011 the engine with a loud noise came to an abrupt halt when the vehicle had run 11922 Kms only.
5. According to the Complainant, the Dealer could not ascertain any cause and in fact according to the Complainant, there was a clear manufacturing defect and the vehicle remained in a dismantled condition in the workshop of the Dealer Respondent No.3 which remains as such even till date. The vehicle could not be used and therefore the complaint was filed being Consumer Complaint No.2012 praying for a refund of Rs.28 lakhs that was paid for the purchase of the vehicle as the Complainant had suffered acute agony and distress and the manner in which the Respondents had catered to the Complainant. It was alleged that the vehicle was a high-end vehicle that was purchased on loan on a EMI of Rs.63,514/- and apart from having paid the EMIs, the Complainant had to incur additional expenses for his travel hence Rs. 10 lakhs as compensation was also claimed.
6. The aforesaid allegations were refuted by the Dealer as well as the Manufacturer by filing separate affidavits. They came up contending that an Expert Report had been called for to which objections had been filed as the Report of the Expert was incorrect and without examining their contentions that the vehicle had been driven with contaminated fuel. The observations of the expert indicated towards the same which was not investigated. It was also urged that the expert opinion was incorrect as there was no inherent defect or design defect in the engine and in the absence of any material to conclude that there was a manufacturing defect, the Expert Report deserved to be rejected as the Complainant had not led any evidence to prove any manufacturing defect. It was also stated therein that the Dealer's Technical Report dated 29.09.2011 as well as the clear stand of the Dealer pointing out towards the utilization of contaminated fuel clearly established that the malfunctioning of the engine was on account of the same and technical specifications with regard to the combustion defect and the firing order clearly corroborated that the vehicle had been operated with spurious kerosene mixed diesel.
7. The State Commission went into detail and ultimately held that the engine was defective and the same being the core unit of the vehicle, the replacement thereof manually could not solve the problem or allow the vehicle to give its ultimate performance to the satisfaction of the purchaser as it was a premium vehicle. The State Commission further observed that even if such a replacement was required then the vehicle in question having been built and assembled in a fully automated plant, could not be repaired manually and it was doubtful whether such a replacement could rectify the defect. The State Commission also observed that the warranty has to be construed only as referring to parts, which may be a part of the engine, but the definition of a warranty cannot encompass the engine as a whole. Accordingly, the complaint was allowed holding the Opposite Parties to be jointly and severally liable with a direction to refund a sum of Rs.28 lakhs with 9% interest from the date of the fling of the complaint and in addition thereto a compensation of Rs.2.5 lakhs with interest @ 9% p.a. Consequently finding deficiency in the supply of a defective vehicle that required engine replacement was held to be the reason for allowing the complaint and awarding compensation.
8. Mr. Singhania Ld. Counsel for the Appellant urged that the report of the Expert does not amount to an evidence to infer manufacturing defect, inasmuch as, the expert failed to carry out the necessary tests and examine the issue relating to the stand of the Dealer and Manufacturer regarding the vehicle being run on adulterated fuel. Mr. Singhania submits that a clear allegation had been made in the written statement for which he has invited the attention of the Bench to the Inspection Sheet dated 30.06.2011 where the owner/customer was advised to use uncontaminated fuel and then also to the subsequent Inspection Sheets including that dated 17.09.2011 where the work of cleaning the fuel tank was noted. The written statement filed by the Dealer has also been read out alleging that the vehicle had used inferior quality fuel that was mixed with kerosene. It is also urged that the Expert Commissioner was not examined nor any other evidence was led by the Complainant to establish that the fuel used in the vehicle was not contaminated.
9. Mr. Singhania further points out that a written objection was taken to the Commissioner Report and in Paragraph 5 thereof, the following has been stated:
"5. The observation of the Commissioner regarding inherent technical problem is without any basis. The Commissioner has not stated any reason for entering into such a finding. He has not stated the effect of usage of inferior quality fuel in the engine. He has not stated anything about the quality of the fuel used in the vehicle. The Commissioner has made the observation without making any technical examination or test in the vehicle and has made the observations with the sole intention to help the complainant. There is no legal or technical basis for the observations of the Commissioner. The Commission report is the presumption and assumption of the Commissioner."
10. The Dealer's reply in Paragraph 3 has also been emphasized which is extracted hereinunder:-
3. It is submitted that the Complainant took delivery of the vehicle on 23.6.2011 and on 29.6.2011 he made a call to the Call Center of this Opposite Party and stated that a Yellow light is blinking on dash board duster of the vehicle. It was assumed that it is engine warning and requested the Complainant not to drive the vehicle and informed him that the same will be towed to the service station by the road side assistance of this Opposite Party. It is submitted that the vehicle has to be towed flat bedded due to its specifications. However, the Complainant refused the same stating one reason or the other and the RSA has visited him several times but in vain. Thereafter on 30.6.2011 he sent the vehicle through his driver driven on road and the vehicle has done 780 Km at that time. The vehicle was checked thoroughly and it was found that the fuel used in the vehicle is of inferior quality and presence of kerosene was found in the fuel. The matter was shown to his driver and advised him to replace the fuel immediately by emptying the tank and to fill with superior quality fuel only. It is submitted that no error code was found in the vehicle at the time of checking with diagnostic tools. Thereafter the driver took back the vehicle promising that only superior quality fuel will be filled in the vehicle
11. Mr. Singhania has then advanced towards the second part of his argument that in spite of the fact that there was no defect, the Manufacturers offered the replacement of a brand new engine without any delay. A brand new engine was airlifted from the Manufacturers with a clear offer to the Complainant that the engine would be replaced as a warranty replacement without charges but the Complainant categorically refused the said offer. It is also urged that even assuming though not admitting that there was any defect, the alleged deficiency keeping in view the warranty conditions was immediately offered to be cured through replacement. The denial of this opportunity by the Complainant himself therefore cannot be attributed as an acceptance of any deficiency in the engine by the manufacturer. To the contrary, the warranty conditions were being observed and in such circumstances if the defect was only in the engine and the replacement had been immediately offered, there was no occasion to claim a refund of the entire price of the vehicle. Thus there was no deficiency whatsoever for the Complainant to have approached the Consumer Commission.
12. Mr. Singhania then explained that the Report of the Expert Commissioner relying on the Dealer Technical Report which describes the injector flow rate and the difference therein in relation to the third cylinder only which resulted in the failure of the engine. The said rate ought to have been similar in respect of all the four injectors of the four cylinders in a normal engine but this was a clear inherent technical problem of the engine "sublime in the integrated design" that caused a premature failure. Mr. Singhania takes objection to the observations regarding some sublime defect in the integrated design of the engine which is without any basis. The misfiring and the abnormal combustion noticed according to Mr. Singhania was clearly connected with the utilization of adulterated fuel and the expert has not even touched upon this issue. He therefore submits that the said Report cannot be treated to be correct nor was it proved by the production of the Expert Commissioner to substantiate his conclusions. Thus the Complainant failed to satisfy the test of any cogent evidence regarding the manufacturing defect in the vehicle and in fact the Technical Report nowhere uses the terminology of a manufacturing defect. It only indicates an inherent problem which observations were made without either getting the fuel injectors tested or the carbon content analyzed or even sending it for a chemical analysis to any laboratory. He submits once again that the person who had examined the vehicle during the time of inspection when the vehicle arrived at the workshop, the driver of the Complainant had been categorically informed and cautioned about the utilization of adulterated fuel and it is for this reason that the tank was got cleaned on 17.09.2011. Mr. Singhania has also given a Flow Chart to explain the technical analysis as to the cause of the failure of the engine which is as follows:
13. Mr. Singhania has further relied on the following decisions in support of his submissions:-
"1 BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR VS. KALPANA RANI DEBBARMA & ORS [(2020) 9 SCC 424]
2. MAHINDRA & MAHINDRA LTD. Vs. B.G. THAKURDESAI & ANR [(1992) SCC Online NCDRC253]
3 C.N. ANANTHRAM Vs. FIAT INDIA LIMITED & ORS. [(2011) 1 SCC 460]
4. MARUTI UDYOG LTD. Vs. SUSHEEL KUMAR GABGOTRA & ANR [(2006) 4 SCC 644]
5. RAMESH CHANDRA AGGARWAL Vs. REGENCY HOSPITAL LTD & ORS. [(2009) 9 SCC 709]
6. MARUTI UDYOG L TD Vs CASINO DIAS, 4 (2009) CPJ144 (NC)
7. Securities & Exchange Board of India Vs Kishore R. Ajmera, (2016) 6 SCC 368 [Para 26]
8. Municipal Committee, Hoshiarpur Vs Punjab State Electricity Board & Ors, (2010) 13 SCC 216
9. Dr. Ravindra Nath Sharma Vs Krishna Auto Rides & Ors, [Order dated 20.09.2024 passed by this Commission in RP No. 3076 of 2014
10. Hyundai Motors India Ltd Vs Harjinder Singh & Ors, [Order dated 31.12.2024 passed by this Commission in RP No. 1037 of 2016]"
14. Having considered the submissions raised there are certain facts which remain undisputed. The vehicle was purchased on 23.06.2011 and it had hardly run 780 kms when it reached the workshop on 28.06.2011. The vehicle was attended to and returned on the same day, yet the problems persisted and the same was used for about 10,000 kms when it again went to the workshop and on completion of 11922 kms it abruptly halted on 27.09.2011.
15. The inspection service records indicate that the DPF light (yellow light) was on indicating some defect in the running of the engine. The DPF is a system which is catalytic in nature and is concerning emission control. The Diagnostic Trouble Code was also gauged and the abnormal sound from the and therefore the dealer sought technical opinion. The dealer technical report is extracted herein under:
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TRUE TYPED COPY 13 2
Dealer Technical Report
To: HAI CCTCSNMPL
No of Additional pages
Dealer Name EVM Nissan Cochin DTR No. ENC/0711/155 __
City / State : Ernnkulam Dealer Code CO'1/X A RUN P/ 8129187676 NYBLFA/9567762783 Supervisor Nnme/ Phone Manager Name/ Phone Mode Code T31 Report Date 29.09.2011 M od c Na m e: XTR AII, Vehicle: SLX PPP code: Customer ' 2
Theme: ABNORMAL SOUND FROM ENGINE
Customer Complaint: CS Code illusimiion/i'iclurcs/Vidco/Audio/Consult Data/Etc.
Vehicle not going beyond 3000 rpin and pulling come down with Ilie DPF light on in the instrument panel after driving some kilometer engine starts giving abnormal engine noise similar to lappet noise then he stopped the vehicle and towed the vehicle to workshop
Incident Condition
We checked and found that some abnormal sound is coming from the engine. We checked the water level and oil level and found OK. Air filter also found OK and we found the DPl: warning light was on.
Inspection Done & Result
Ct Code
99
On Inspection we checked with connecting consult 111 and DTC found for DPT Filter (refer photographs). We have done regeneration of OFF and again started the engine and the noise is Still there. Then we checked for any misfiring by means of injector (low rate and found that on third cylinder has a huge difference & it Shows '1.2-4.____mg/cp
(Pls refer the photos) we checked the flow rate of an ok vehicle and found that it is ok for all the four injectors. Then we replaced the third injector and initially for few minutes the engine was silent after that again the noise has come and it persists. So we request your technical opinion regarding this matter at the earliest.
Repair Done & Result It Is still under diagnosis
No vu.' No. | Enpnt/T/ M No. KM ran Oy SoM drtie t>oc | IXn.-r
t 2 /piitCNTOiascrcwo j switcosmaaco
T 4 - - i . i --
t-s 1 1 ---I- '
Affected Part Details fl'1 should be main incident part no)
K'o. Part Name Part No. Ut/S.No. For HAI/NMll'I.. Use Only 2 3 <1
raised the issue with the manufacturer and then intimated the complainant that the defect may not be completely due to any manufacturing issues, but may also be due to the usage of adulterated fuel from outlets. However, the manufacturers have sanctioned the replacement of the engine as a special exemption. A copy of the said letter has been brought on record as Ex. P-7 and the same is extracted herein under:
"EVM AUTOMOBILES PVT LTD.
Bldg. No. XVI/139 E, INTUC Junction
Nattoor, Maradu, Cochin-682040 Mr. Jaison Lukose
Cherayil House, Ettumanoor P.O.
Kottayam-686631
Sub: Repair works of Nissan X trail bering VIN: JN1TCNT31B3000620 & Rg: No:KL 05 AD 02
Dear Sir,
In sequel to the diagnosis and suggested repair work by Nissan/HAI to resolve the above subject matter, would like to inform you that we have received the replacement engine from the company at our end.
As informed to you during our inspection and earlier conversation, this defect is not completely due to manufacturing complaint but also due to usage of adulterated fuel from outlets.
Accordingly, we had raised a DTR with the manufacturer citing the above issues for which they have sanctioned replacement of engine as a special exception. Please note that as per the manufacture warranty policy only the affected part can be replaced but however as special case in this matter they have approved replacement of engine keeping the mutual interest intact of resolving this matter permanently.
We are completely confident that this complaint can be eradicated with the installation of a brand new engine as we have the technical expertise support from the manufacture to manage the situation comprehensively.
We request you to give the consent to carry out the repairs so as to resolve this complaint without any further delay.
Thanks & Regards
For EVM Automobiles Pvt. Ltd.
Sd/-
Nybi. E.A.
Manager Service"
17. The complainant did not agree to this and therefore a reminder was sent by the dealer on 24.12.2011 to the following effect:
"To,
24.12.2011
Mr. Jaison Lukose
Cherayil House, Ettumanoor P.O
Kottayam-686631
Sub: Repair works of Nissan X trail bearing VIN: JN1TCNT3183000620 & Ra: No KL 05 AD 02
Dear Sir,
This is regards to our discussion with NMIPL area service manager Mr. Raj Nimbhorkar about the repairs works to be carried out in your vehicle on 14.12.2011. Since you have insisted us not to carry out any repair works on your vehicle we are awaiting you approval to complete the jobs. Kindly give us the confirmation so that it can be done at the earliest.
Thanks & Regards
For EVM Automobiles Pvt Ltd.
Sd/-
Nybi. E.A.
Manager Service"
18. Thereafter a series of communication were exchanged between them but the complainant insisted to either refund the entire amount paid for the vehicle or replace it with a brand new vehicle. These communications have intimation again reached with the offer of the replacement of the engine. The complainant did not accept the same.
19. It is correct that the warranty coverage includes replacement and repairs of any part of the vehicle which may be defective due to any material workmanship or otherwise free of charge. The warranty information is also on record and indicates that use of improper or dirty fuel, fluids or lubricants, if resulting in any defect would not be covered under the warranty. The same is extracted herein under:
New Vehicle Warranty Information
What Is covered
NISSAN rants that for a designated period of time or specific mileage, as described in each caption and your authorized NISSAN [| d®ter
| dtergo, cxcofri lot
those items listed under the caption tktaoi 2 3wnmTf?irt(md','-
1 The warranty period begins on the dote the NISSAN vehide is delivered to (he &6l rclarl buyeror put into use. whichever is eorfier.
the pariod lor Now '/chide Warranty b 24 months or 50X100 km (30.000 mites), vdildwt cotos Tret.
NmTOeKxIF'anty'weis all parts and components ol each new
NISSAI4 vehicle except for fm and three items feted under the caption "V/hal is not covered'.
An lor battery, acJjUBtment and air conditioner refrigerant recharge, the warranty period Is different fromthat ol New Vehicle Warranty. The coverage deta'I b subscribed in tho caption ''Things you should know about New Vehicle Warranty'.
4WJlO.jjal cpy(i.r(?5l________________________________________________
t, Tiros st® covered by 9 separate warranty. Seo tho Tko Wormatlon tor dctal®,
2. Any accessories or equipment Installed by person other than NISSAN dealer or distributor.
3. Any parts and labor costs' Incurred In connection with required or recommended maintenance service 00 outinod in your OWNER'S MANUAL Md the MAINTENANCE SECTION in this booklet.
4. Normal maintenance service such as engine tune-up, cleaning and polishing, wheel bahneing and alignment, heeditght aiming, replacement ol filters, windshield viipei inserts, key lob balle/fesi fghl bulbs, spark plugs, distributor points, drive belts, lubricants and coolant, worn brake shoos, pads, drums and rotors and worn clutch discs.
6. Damage or failures resulting liom:
- Misuse, accident, theft or fire (Proper uso is outlined in your OWNER'S MANUAL)
♦4feMUmp<
Lack ol performance of proper maintenance services as oufwiod in your OWNER'S MANUAL and tho MAINTENANCE SECTION in this booklet
Use of non-gcnulne NISSAN parts
- Allcrelion, tampering or improper repair
- Glass breakage, unlorra resulting from defects In material or workmans!
- Normal wear or tear, including dings, dents, chips or scratches
Stone chipping, chemical fallout (add rain), tree sap, sail, hail, wlnd/sandstorm, lighting, flood or other environmental conditions
- Ropoirg not performed by nn authorized NISSAN dealer er distributor
6. Normal deterioration ol trim, palm or other appearance items.
7. Any NISSAN vehicle on which the odomotor roading ho® boon changed so that mileage cannot bo twdiy determined,
8. Incidental or consequential damages such os loss ol uso of tho NISSAN vohseto, inconveotenco or commercial lose.
9. Any ports and labor costs resulting from puncture
- --- - -..........I---- LZ
the State Commission that an Engine is not a spare part as construed under the warranty conditions. We cannot approve of this reasoning, in as much as, an engine is also a part of the whole of the vehicle and the manufacturer had offered for its replacement. It is the complainant who refused the replacement of the engine.
21. It is by now well settled that if there are defects in parts, then it is not necessary to replace the entire vehicle for a manufacturing defect.
22. However, in the present case, when the matter was contested before the State Commission an expert report was tendered on which reliance has been placed by the complainant and which has also been considered by the State Commission. Objections to the said report were also filed, but what is revealing is that none of the service inspection sheets of the dealer record any defect on account of utilisation of spurious fuel. A mere cleaning of the tank or an oral advise given for use of good fuel does not establish or is not an evidence to the effect that the complainant had run the vehicle on contaminated fuel or inferior quality fuel. The dealer did not get any such'test conducted and a bald allegation was made in the objections to the inspection report.
23. The report of inspection of the Expert Commissioner dated 06.07.2012, is extracted herein under:
"BEFORE THE KERALATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM
Ref. Order in'lA674/12 in C.C21/12 dated 28.05.2012 '
1. The said order was received by me on 16/06/2012 and noticed to the parties was sent by the Speed post on 19/06/2012 informing them that 27/07/2012 at 2 pm is fixed as the inspection date. I have made the inspection on the Vehicle under reference, after giving due notice to all the parties on 27/06/2012 at 2 PM in the presence of following persons l.Raj. P. Nimbhorkar representing 1st and 2nd opposite parties 2. Jaison Lukose, Petitioner 3.Noble Jacob M 4. Nybi E. A, both representing 3d opposite parties. The vehicle subjected to the inspection is a NISSAN X TRIAL SLX MT bearing the registration number KL-05-AD-2 with Chassis NO.JNITCNT31B3000620 and with Engine NO.M9RG836C008649 which is kept at the workshop of 3rd opposite party at Ernakulam.
2. The terms of reference in regard to the matters to be ascertained by the expert commissioner submitted in the commission application are considered in detail during the inspection by collecting various critical information regarding the chronology and description of complaint from both petitioner and opposite parties. Since the engine which failed prematurely cannot be subjected to a performance test for ascertaining the type of malfunctioning of the same, then the other methodology reliably adopted is to conduct a visual examination on failed components in the light of history of its performance. Both parties have extended full cooperation to the commissioner in understanding the technical snag that occurred during the operation of the Vehicle.'
3. The first visible sign of malfunctioning of the engine noticed immediately after the starting of the operation of Vehicle, after
- y iiyiu. l>f i
particulate Filter). The malfunctioning usually comes in a situation where the clogging of the exhaust due to the excessive presence of unburned particles collected in the DPF, The excessive production of solid particles can never happen with a diesel engine unless otherwise there is a explicit problem for the combustion process (Incomplete combustion due to misfiring) in all cylinders or in certain cylinders. The regeneration (incineration of particles) of the DPF solved the issue temporarily at 780 kms but the fundamental problem persisted and become visible for the vehicle in terms of poor mileage and occasional glowing of DPF light etc without attracting the attention of the people concerned till it fails permanently.
4. The regeneration of DPF again done at 10947 kms due the complaint of DPF light on, but the complete failure of the said Engine happened at 11922kms which is quite uncommon for any make of engine using any kind of fuel. The engine did not perform not even for 5% of its expected life period and it is serious concern for the manufacturer and the customer.
5. The visual observation/ inspection of mechanically failed parts such as Journal Bearing and Connecting Road Big End bearing of third Piston of the Engine shows the evidences of the presence of overheating and Overloading due to misfiring for this particular component which gradually progressed to the complete collapse of the engine cylinder generating abnormal noise and putting the engine out of service.
No.ENC/0711/155) in regard to the detection for any misfiring by means of 'Injector flow rate' shows a huge difference for the injection rate to the third cylinder which culminated to a serious mechanical failure for the journal bearings which was detected during my inspection. The Injection rate to the all four injectors must be more or less same for a normal engine and this inherent problem of huge difference in the injection flow rate could be a substantial element contributing for the problem associated with the abnormal combustion process. The inherent weakness of the combustion operation is the prime reason for the clogging of the DPF and further excessive reloading of engine parts due to the misfiring leading to the complete premature failure of operation of the Vehicle. The said failure has occurred due the inherent technical problem of the engine sublime in the integrated design to cause such a premature failure.
II State of the Vehicle
1. It is informed that the vehicle was kept in the open yard and for the purpose of examination it was brought to the shop floor. The vehicle was kept in the workshop floor with a clean body and tyres in such a condition that the engine completely dismantled and available for inspection in disassembled manner. The Gear box also kept separately from engine and Vehicle body. The Air conditioner compressor also kept in a dismantled manner from both engine and body. Since the engine is separated from the Vehicle, the new vehicle open storage facility will be difficult to extend to the vehicle at the present condition The storage of this vehicle in the present
performance of certain critical components. A brand new engine imported from Japan shown to me by It opposite party saying that it has brought for the purpose of fitting to the vehicle instead of the failed engine.
Ill The Reason for the collapse of the Vehicle
1. The collapse of the vehicle due to the premature failure of the engine owing to the reasons stated above. Both parties have agreed to this point and no dispute prevailed on the incident of engine failure.
2. The said vehicle under investigation, NISSAN X TRIAL SLX MT is a product completely manufactured and assembled in fully automated production line in the factory at Japan (a foreign product) and then Imported to India as complete product for the supply to the customer through 2nd and 3rd opposite parties. The first opposite party does not have any assembling/ manufacturing plant for this particular type of vehicle in India. The complete reliability of performance can be ensured in an engine replacement only if the execution is done in a fully automated manufacturing plant.
3. The collapse of the engine in fact has made the vehicle completely out of service and since the engine is the prime mover of an automobile and any variations caused in this critical element shall affect the compatibility of performance to other critical components.
4. The premature failure of the engine caused due to the inherent technical problem in the combustion process in certain cylinders of the engine.
Thomas T,
Expert Commissioner
Associate Professor in ME
CUSAT. Cochin-22"
24. Mr. Singhania, learned counsel for the appellant urged that this report nowhere has investigated the issue of adulterated fuel and therefore this omission renders the report unacceptable. He has further submitted that the comments on the firing order and the defect of fuel injection/ combustion in the third cylinder does not indicate or establish a manufacturing defect. He further submits that the observations made about some sublime defect does not establish a manufacturing defect.
25. Apart from a simple objection to the said report neither the Expert Commissioner was examined or cross examined by the appellants nor any interrogatories were raised calling upon any queries to clarify the said issue. No other expert opinion either by the dealer or the manufacturer has been placed to counter the same. In the absence of any such exercise the objection taken to the report is untenable. To the contrary a perusal of the report would indicate that all aspects relevant in order to determine the status of the engine has been dealt with threadbare by the expert who is an Associate Professor of Mechanical Engineering at Cochin. The expert report records that the failure in engine had occurred due to an inherent technical problem in its integrated design.
26. We do not find any reason to disbelieve the said report and to the contrary applying the principle of res ipsa loquitor it is evident that the manufacturer had already agreed to replace the entire engine. Mr. Singhania urged that that was on account of goodwill and good reputation to be manufacturing defect. Mr. Singhania may be correct in his submission that it is not an admission, but as observed above, facts speaks for themselves. The vehicle had to be surrendered within a couple of months and it is then that the manufacturer made an offer for replacement of the engine with a brand new engine.
27. As we have noted above with the repetitive arrival of the vehicle at the dealers garage within a short span of time commencing from 6th day of purchase in all probability indicates that the engine of the vehicle did have a manufacturing defect or else an offer of replacement would not have come forth.
28. On the other hand the complainant also seems to have resisted the replacement of the engine and did not take back the vehicle which is still lying with the dealers.
29. In this given situation and on the facts of the present case we agree with the finding of the State Commission that there is a deficiency in service. The dealer has not filed any appeal and it is only the manufacturer who has come up before us challenging the impugned order.
30. Having agreed with the conclusions drawn by the State Commission in the ultimate, we find that even since the complainant did not agree for the replacement of the engine, the entire relief as granted by the State Commission may not be tenable on the peculiar facts of this case. The complainant could have got the issue resolved with the replacement of the of purchasing a vehicle for Rs.28,00,000/- and then not being able to utilise it which he had to ultimately surrender as the vehicle had an imperfect and deficient engine.
31. In order to balance equities and keeping in view the background of the case the vehicle as on date is almost 15 years old and is lying with the dealer. There is no future value of this vehicle keeping in view the age of the vehicle. Even otherwise it has remained unused for 15 years and therefore will be of no use to the complainant as well. It would be also of a negligible value to the respondents.
32. In the background that the complainant had also refused to get the engine replaced, we find that the joint and several liability fixed by the State Commission deserves to be confirmed only to the principal amount of Rs.28,00,000/- without any interest or any compensation. The reason being that the complainant also could have accepted a brand new engine way back in 2012 under the warranty as there was no complaint about the manufacturing defect in the entire vehicle. It was only the engine which was defective and not any other part of the vehicle.
33. The impugned order of the State Commission dated 16.12.2021 is modified to the aforesaid extent and it is directed that a sum of Rs.28,00,000/- shall be refunded in terms of the order of the State Commission within two months from today. The award of costs by the State Commission is also upheld. In the event the refund is not made and the costs.
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