ORDER

Ashok Bhan, President

1. Classic Automobiles-petitioner herein was the opposite party No. 4 before the District Consumer Disputes Redessal Forum, Dhanbad, Jharkhand (hereinafter referred to as the District Forum for short). Petitioner was the authorized dealer of M/s. Daewoo Motors India Ltd.-respondent No. 2 herein, a Company which is in liquidation. Complainant is respondent No. l herein.

2. Briefly stated, the facts of the case are:

3. Case of the complainant/respondent No. l in nutshell is that he had purchased one Matiz Car bearing registration No. BR-17E-0774 priced at Rs. 2,67,138 on 11.12.1999 from the petitioner who is the authorized dealer of Daewoo Motors India Limited-respondent No. 2. The car was under warranty for a period of 2 years from the date of purchase of the car. On the very next date of purchase, i.e., 12.12.1999, the "check light" started glowing on the indicator panel even during the normal running of the car. As per service book, the "check light" is engine control indicator signalling for "Service Engine Soon". Respondent No. 1 reported the matter to the petitioner. The car was checked at the service station of the petitioner and delivered back to respondent No. l but the problem persisted. It was stated in the complaint that the petitioner had admitted that the vehicle in question was sent to the workshop of the petitioner for S.E.S. (Service Engine Soon) check-up four times and was returned with observation that fault of glowing "check light" is not a manufacturing defect. Complainant/respondent was told that the fault would continue to display, as the vehicle in question was not an air-conditioned car. The same would be rectified in due course after continuous running of the car. It was also averred in the complaint that the petitioner resorted to unfair trade practice by charging price of Catalytic Converter which was not fitted in the car. That a Euro II car without Catalytic Converter cannot meet the emission norms.

4. Petitioner as well as other opposite parties filed their Written Statements. It was asserted that the complainant was aware of the fact that the car sold to him was without Catalytic Converter. He took the delivery of the car after thorough inspection and on being fully satisfied. It was asserted by the petitioner that it always attended to the car within the warranty period whenever the same was brought to the service station by the complainant. That there was no deficiency in service on the part of the petitioner. It was asserted that continuous appearance of "check light" has nothing to do with any defect in engine of the car sold. That car with the Catalytic Converter could run only with unleaded petrol and supply of unleaded petrol was not available in Dhanbad in November-December, 1999 when the complainant purchased the car in question. In reply to unfair trade practices, it was stated that there was no difference in the prices of the car whether fitted with Catalytic Converter or not. No excess price was charged.

5. The District Forum, after noticing the pleadings of the parties, allowed the complaint and directed the petitioner as well as respondent No. 2, jointly and severally to refund the price of the car, i.e., Rs. 2,57,138 with interest @ 12% cumulative from the date of delivery of the vehicle, i.e., 11.12.1999 till the date of realisation. Petitioner was also directed to pay Rs. 11,000 to the complainant by way of compensation, cost of litigation and mental plus physical harassment of the complainant.

6. District Forum, under caption "FINDINGS", held as under:

"In view of the sale certificate Annex-1 and certificate of conformity to Emission norms dated 1.4.2000 Annex-6 issued by the O.Ps. are admissions made by O.Ps. that the car in question was sold to the complainant. The repair receipts dated 5.6.2000, 9.7.2000, 12.3.2001, 26.4.2001 and 17.1.2001Annexs. 8 to 12 are almost an admitted fact that the complainants vehicle in fact suffered from inherent manufacturing defects. Accordingly in the circumstances followed by specific prayers of the complainant replacement of the vehicle was the only solution to which O.Ps. did not pay heed. Consequently this Forum holds O.Ps. deficient and accordingly orders the manufacturer O.P. and the dealer O.P. No. 4 equally responsible for the refund of car price of Rs. 2,57,138.00 with an interest of 12% cumulative from the date of delivery of the vehicle 11.12.1999 to the date of realisation of amount. O.P. No. 4 is also ordered to pay a compensation of Rs. 11,000 (Rs. eleven thousand) to the complainant by way of compensation, cost of litigation and mental plus physical harassment of the complainant.

Let the above orders be complied within 30 days from the date of issuance of the order to be served upon O.Ps. at the cost of the complainant."

7. Aggrieved against the Order passed by the District Forum, both, the petitioner as well as the complainant, filed separate Appeals before the State Consumer Disputes Redressal Commission, Ranchi, Jharkhand (hereinafter referred to as the State Commission for short). The Appeal of complainant was numbered as 152 of 2004 and Appeal of the petitioner was numbered as 186 of 2004.

8. State Commission, after noticing the various contentions raised by the petitioner as well as the complainant/respondent No. 1, dismissed the Appeal filed by the petitioner and modified the Order of the District Forum in the Appeal filed by the complainant/respondent No. 1. The findings recorded by the State Commission in the Appeal filed by the petitioner are recorded in paragraph 6 in its Order, which runs thus:

"6. We heard the learned Counsel for the parties at length and perused all the documents, pleadings including the impugned order of the Court below. Undisputedly, the Euro II Matiz Car in question was purchased by the Complainant from the Opposite Party No. 4/Respondent No. 4 and from the very beginning many problems appeared which could not be rectified by the dealer Respondent No. 4 with the help of the Company trained mechanic. In spite of repeated effort taken by the Respondent No. 4 through service/rectification/repairs the defect could not be rectified since the car contained manufacturing defect only. Under Section 14(1) of the Consumer Protection Act, the Complainant is entitled to have the defects removed or for replacement of the car with a new one or for the return of the price. The Complainant/Appellant (in Appeal No. 152/04) has prayed for refund of price of car along with other alleged expenditure. In our view, the District Consumer Forum has rightly directed the manufacturer and the dealer to refund the price of car to the Complainant with interest @ 12% cumulative from the date of delivery of the car till its payment. As a result, the Appeal No. 186/04 praying for set aside of the impugned order is dismissed."

9. In the Appeal filed by complainant/respondent No. 1, the State Commission modified the Order of the District Forum to the following effect:

"8. Considering/scrutinizing all the documents, along with reference of Court case citation, pleadings, etc., the impugned order is partly modified as stated hereunder:

Accordingly, in terms of the direction given in the above paragraph, the State Commission gave the following directions:

"9. In view of what is discussed above we order as follow:

10. All these payments shall be made within three weeks from the date of receipt/production of this order, failing which, the Complainant/Appellant will be at liberty to get the order complied with through the process of law under the Act."

10. It would be seen from the Order passed by the State Commission that the State Commission has absolved Daewoo Motors India Limited/respondent No. 2, the manufacturer of the car in question, of its liability and fixed the entire liability on the petitioner to refund the price of the car with cumulative interest @ 12%.

11. Complainant has not filed any Appeal claiming relief against respondent No. 2, i.e., the manufacturer of the car, for the manufacturing defect.

12. Counsel appearing for the petitioner contends that the State Commission, without taking the opinion of an expert, simply on the ground that the car was brought to the service station for some minor repairs/rectifications repeatedly, has held that there was a manufacturing defect in the car. The onus to prove that there was a manufacturing defect was on the complainant which it failed to discharge by producing any cogent evidence. Simply, because the car in question was brought repeatedly to the service station for minor repairs/rectifications in its workshop, could not be termed as a manufacturing defect. As against this, Counsel for the respondents supported the findings recorded by the Fora below.

13. A perusal of the findings recorded by the District Forum and the State Commission would show that neither the District Forum nor the State Commission has recorded a firm finding as to what was the manufacturing defect. The only defect pointed out was that the "check light" started glowing on the indicator panel even during the normal running of the car and, secondly, the dealer had sold the car to complainant/respondent No. 1 without Catalytic Converter. "Can such defect be considered to be a manufacturing defect" is the question which falls for determination in the present case.

14. It has been observed that the car was brought for repairs/rectifications repeatedly within the warranty period which shows that there was a manufacturing defect. Manufacturing defect would be a defect without which the car cannot function. There was no complaint regarding the functioning of the engine of the car. The only problem was that the "check light" glowed on the indicator panel even during its normal running which was explained to the complainant/respondent No. l. This defect cannot be termed as manufacturing defect with which the car could not run. Glowing of "check light" cannot be termed as a manufacturing defect.

15. The onus to prove that there was manufacturing defect was on complainant/respondent No. 1. We agree with the contentions raised by the learned Counsel for the petitioner that complainant/respondent No. l failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13(l)(c) of the Consumer Protection Act, 1986 which provides as under:

"(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum."

16. The District Forum could have appointed an expert of its own, based upon whose findings, a finding could be recorded with regard to the manufacturing defect. In the absence of any expert evidence, merely on the fact that the car was repeatedly brought to the service station for repairs/rectifications, it cannot be held that there was a manufacturing defect in the car. Whenever the car was brought to the service station, it was attended to by the petitioner. The petitioner is the service provider of the car and Counsel for complainant/respondent No. 1 was unable to show any deficiency on the part of the petitioner in attending to the car whenever it was brought to the petitioners service station.

17. It was explained in the Written Statement filed by Daewoo Motors India Limited/respondent No. 2 as well as the petitioner that the car was sold to the respondent without Catalytic Converter as the car with Catalytic Converter could run only with unleaded petrol, the supply of same was not available in Dhanbad at the relevant time. The price of the car with or without Catalytic Converter was the same. Complainant has not controverted the assertion of the petitioner that the price of car with or without Catalytic Converter was the same. If that be so, then, it cannot be held that the petitioner indulged in unfair trade practices.

18. A dealer of a manufacturing company cannot be held liable for deficiency in service in the case of manufacturing defect in a particular consumer product unless it was shown that the manufacturer had sold the car to the dealer on principal-to-principal basis. Dealership Agreement has not been brought on record; at least the same has not been shown to us. In the absence of the same, the entire liability to pay the price of the car could not be fixed on the petitioner. Petitioner was only an intermediary between the counsumer and the manufacturing company and the respondibility for the manufacturing defect could only be fixed on the manufacturer of the car and not on the dealer.

19. District Forum as well as the State Commission have erred in awarding cumulative rate of interest. In such cases, the interest granted is always simple rate of interest and not cumulative.

20. For the reasons stated above, we accept this Revision Petition and set aside the findings recorded by the Fora below. The complaint is ordered to be dismissed leaving the parties to bear their own costs.