EXPERT OPINION FOR DECLARING MANUFACTURING DEFECT IN VEHICLE NOT NECESSARY

“It is shameful that defective car was sought to be sold as brand new car, it is further regrettable that instead of acknowledging the defect, company has chosen to deny and go in appeal.”

This was the observation made by the Hon’ble Supreme Court in the matter of Jose Philip Mampillil V/S Premier Automobiles Ltd. And Anr on 27 January, 2004

This is the case where court has made certain points very clear:

1.      In case by repairing or replacing any part, vehicle works well, there is no need to replace the vehicle with the new one.

2.      If vehicle is bearing a defect at the initial stage and knowing full well a defective vehicle is sold, complainant is entitled to get compensation for mental agony and harassment he has undergone.

3.      If the vehicle is sent for repair time and again and cannot be repaired, there is no need to further obtain expert opinion for declaring manufacturing defect. 

            The facts in brief in this case were that   Premier 1.38 Diesel Car, manufactured by the Premier Automobile was purchased by the complainant. At the time of delivery of the car, he found defects in the paint of the car and dealer promised to rectify the defects and called him again after some days. The defects had not been cured when he went again; hence he was not willing to take delivery of the car. He was persuaded to take delivery of the car on the assurance that all defects would be cured. At this stage, it was also noticed that the piston rings of the engine were defective and that there was heavy leakage of oil. Thereafter the car was repeatedly sent to the dealer for repairs but defects remained unrepaired.

District forum ordered for repair of paint & parts and replacement of diesel engine. Forum   also ordered for compensation of an amount of Rs. 40,000/- to be paid to the complainant apart from bearing the entire cost of repair of the car. The liability to pay this amount shall also be joint and several of both the Respondents.

When matter came up before the Supreme Court, dealer took the plea in defense that dealer during warranty is liable to repair the vehicle which has been done and complainant is not entitled to any compensation for mental agony etc.

Further it was also argued that compensation be paid by manufacturer only and dealer has done what he could do.

But at the final stage SC considered it for repairing as the parts piston ring and diesel engine developed defects later on and was not the manufacturing defect. However court has observed that dealer knowing full well had sold a defective car which he could have refused; hence both are equally liable for the cost of repair as well as compensation. Clause 3 of Maruti Udyog manual was taken into consideration.

            "(3) Maruti's Warranty Obligation:    If any defect(s) should be found in a Maruti Vehicle within the term stipulated above, Maruti's only obligation is to repair or replace at its sole discretion any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faculty material or workmanship at the time of manufacture.  The owner is responsible for any repair or replacement which are not covered by this warranty."

.           It is pertinent to mention that in the case of Indian Oil Corporation V Consumer Protection Council Kerala 2004  ,SC had held that relationship between the dealer and manufacturer is principal to principal and not as principal and agent .Hence both are liable for their own wrongs .

National Consumer Dispute Redressal Commission has pronounced an order recently on the same issue further elaborating this theory in the matter of Tata Motors Ltd. &Others V/S Dr Anuj Paul Maini &others decided on 18.02.2014. In this case, complainant had purchased a Tata Indigo Marina Dictor and was delivered on 18.4.2007. On a local ride before issue of invoice, vehicle was found having as many as eight defects which were removed without charging anything. Defects so pin pointed were –

On 20.11.07 vehicle met with an accident finding dead animal on the road. It got stuck and resultantly turned the steering to the left side and landed in a deep trench and car was damaged. Complainant alleged manufacturing defect before the consumer forum and obtained an order for replacement of the car with compensation .State commission however ordered for Rs 3 lac to the complainant for repair of the vehicle along with cost of litigation to the tune of Rs 2000/-

Now matter had come before the National Commission. National Commission held that the car went to the workshop as many as eleven times. Defect was admitted right in the beginning even before issue of invoice which amounts to manufacturing defect and it is presumed that it might have caused accident .Hence there is absolutely no need to take expert opinion at this stage. Further, the entire cost of repair if paid and vehicle can run well, there is no need to replace the whole body .Car runs with assembled parts which can be either repaired or at the most replaced. Order passed by the state commission was found justified. However cost of litigation was enhanced to Rs 10,000/-.

Numbers of judgments of Supreme Court have been taken into consideration for reaching to the conclusion:

  Supreme Court in the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another [(2006) 4 SCC 644] has held that where defects in various parts of a car are established, direction for replacement of the car would not be justified.  “Replacement of the entire item or replacement of defective parts only called for.” 

  In the case of Surendra Kumar Jain Vs. R.C. Bhargava & Ors. [III (2006) CPJ 382 (NC)],  the radiator was found to be leaking from the bottom tank and had been replaced, this Commission had taken the view that as many as 11 visits to the workshop notwithstanding minor defects cannot be said to be manufacturing defect. cannot be said to be in the nature of manufacturing defects.  For the non-supply of the accessory kit, the complainant has been duly compensated by the District Forum. 

The criteria of declaring manufacturing defect no more rests on only expert opinion, circumstances and facts of the case also play its role in reaching to the final result.

 

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