COMPLAINT NO. 1374 OF 2008

M/s. Sri Laxshimi Concrete Products,
A Partnership Firm, Rep. by its
Partner: Sri. Raju Vittal Rao,
# 3010/2, 8th Main, 4th Cross,
M.C.C. ‘V’ Block,
Davangere-577 004.
By its P.A. Holder Sri. Sagar. …. Complainant.

-V/s-

(1) M/s. SKODA Auto India Pvt. Ltd.,
Plot No. A-1/1, Shendra,
Five Star Industrial Area,
M.I.D.C. AURANGABAD-431 201.
Rep. by its Managing Director.

(2) M/s. Tafe Access Limited,
(Authorized Dealer for SKODA Auto
India (Pvt.) Ltd., # 53, St. Marks Road,
BANGALORE-560 025.
Rep. by its Managing Director. …. Opposite Parties.

ORDER

This complaint is for a direction to the opposite parties to replace the vehicle bearing No. KA-17-M711 with a brand new vehicle and to pay damages of Rs.15,00,000/- and compensation of Rs.5,00,000/- on the following grounds:-
Opposite party No.1 is a manufacturer and opposite party No.2 is the authorized dealer of SKODA Auto India. On 18.09.2006 the complainant purchased SKODA LAURA Make vehicle bearing registration No. KA-17-M-711 from opposite party No.2 for Rs.18,60,000/- and has been using the vehicle at his native place Davangere as well as at Bangalore. Ever since the date of purchase the vehicle started giving all kinds of mechanical problems and as a result the complainant has been deprived-of his right of enjoying the vehicle. The mechanical failure of the vehicle has been constant resulting in irreparable and great inconvenience. During the first service itself, the vehicle started giving high mechanical and engine problems, the consumption of oil was huge and consequently the complainant made complaint to the Sales and Service Office of opposite party No.1 at Hubli. After repeated reminders, the representative from Hubli Service Depot took away the vehicle for necessary repairs. During the course of repair it was found that, the engine of the vehicle got failed and it required replacement, the AC kit also required replacement. Being not satisfied with the performance of the vehicle, the complainant resisted the change of the engine and requested opposite party Nos. 1 & 2 to replace the vehicle with a new one and was not willing to accept replacement of the engine as well as the AC kit. But the opposite parties ignored the representations of the complainant and he was forced to take back the vehicle from the service center at Hubli by incurring unnecessary costs and to face the inconveniences and consequences thereof. The vehicle was parked at Hubli for a period of one month to get the engine replaced and that resulted in diminishing the value of the vehicle. After the above repairs the vehicle got another problem wherein the turbo of the vehicle failed within a span of one month. Thus he was once again forced to leave the vehicle with opposite party No.2 in order either to get the repairs done or to replace the vehicle with a new one. The vehicle started to give not only one problem but many problems started day by day. The electrical seat arrangements were also giving all kinds of problems and the same were not functioning in the designed manner. Including the change of engine the vehicle was got repaired for several times. The vehicle did not indicate the engine number. The complainant made several representations to opposite party No.2 to obtain the engine number, but opposite party No.2 postponed the said issue on one or the other pretext. The representations made to opposite party No.2 did not work out and the vehicle is not in original condition and in a designed manner. His request to replace the vehicle with a new one was not accepted by the opposite party No.1. Despite huge investment made for purchase of the vehicle the part in the engine and other components could not give better service resulting in lot of hardship, inconvenience, mental agony and unnecessary expenses. The vehicle has not given full satisfaction and running the vehicle itself became a major problem and as a result the complainant has under-gone mental imbalance and has incurred heavy expenditure for repairs. Even now the vehicle has been giving all kinds of mechanical problems and it is having all kinds of defects. On the whole it appears that the vehicle is in bad condition as the mechanism of the vehicle was very defective and therefore the vehicle had given numerous problems. In spite of identifying and rectifying the defects the vehicle started to given not only mechanical problems but also the electrical installation in the car as well as other problems. Due to manufacturing defect of the vehicle it has become impossible for the complainant to drive the vehicle for a long distance. When the requests and representations did not yield any result, legal notice dated: 03.04.2008 was issued to the opposite parties, but the opposite parties did not comply with the demand made therein. Hence the complaint.

2. In the version the contention of the opposite party Nos. 1 & 2 is as under:-
In the cause title the complainant is described as a partnership firm, but no documents are produced to show that it is a registered partnership firm. The complainant is using the car for commercial purpose and therefore is not a Consumer. The complainant visited the show room of opposite party No.2, inspected all the cars that were on display and out of his own will decided to purchase Skoda Laura and accordingly purchased the vehicle bearing No. KA-17 M-7111 on 18.09.2006. The records maintained by them indicate that, the complainant has driven the car without any problems whatsoever till 17.02.2007, when the car was taken to Mahanth Motors, Hubli, for first free service. At that time the car had run about 8000 kilometers and the complainant had no problems whatsoever till then. The car had no problems till it was taken for second free service at Mahanth Motors, Hubli, on 12.03.2007 at 14,448 kilometers. Thus it is obvious that the car had no manufacturing defects as it has run for almost 14,448 kilometers without any problem. The complainant has not chosen to make the dealer at Hubli a party to the proceedings though he has constantly referred to the services rendered by the dealer at Hubli. On 23.04.2007 the complainant took the car to the authorized dealer at Hubli with complaint of engine vibration. Upon examination it was found that, there was a minor crack in the engine mounting bracket as a result of which there was consequential damage to the engine block. To avoid further damages it was suggested to replace the entire engine assembly. With the consent of the complainant the engine was replaced under warranty. Opposite party No.1 imports the engine from its parent company in Czech Republic and the delay if any is solely due to the fact that the opposite parties ensure that the parts replaced are original parts and the car is rectified to the satisfaction of the customer. The complainant took back the car after ascertaining its road worthiness. On 30.07.2007 the car was toed into the work shop of opposite party No.2 due to failure of turbo charger and the car had run for almost 22,908 kilometers. During repairs it appeared that the turbo charger was failed because of using low quality fuel. The same was informed to the complainant and only on his request, as a goodwill gesture the turbo charger was replaced even though there was no manufacturing defect in the vehicle. The car was delivered on 08.08.2007 after due trials and satisfaction of the complainant. All the allegations in Para- 4 & 5 of the complaint are denied. The allegation that the engine of the car does not bear any number is false. Every engine bears a unique engine number and without the engine number the authorities do not register the car. As per the records the engine number of the car in question is BJB201388 and the same was informed to the complainant. When the engine is replaced the engine replacing the old engine does not originally bear any number. The engine number is embossed on the new engine replacing the old one and this is normal standard industry practice. The fact that the complainant had run the car successfully without any problems for almost a year clearly indicate that there is no manufacturing defect in the car. The allegations in Para- 6 & 7 are false. The car in question is a high end luxury Car and is very sensitive to the way it is handled on the road. It is possible that the complainant has not run the car in the manner provided in the service manual. There are no manufacturing defects in the car and the complainant had taken delivery of the car in its road worthy condition after each service. The technicians of the opposite parties are specifically trained to service such cars. The parts were replaced under warranty and the turbo was replaced only under goodwill gesture without any cost. The complainant has been making unreasonable demand for replacement of the car. As the complainant has purchased the car for commercial purpose it cannot be allowed to agitate the matter before this Forum.

3. In support of the respective contentions, both the parties have filed affidavits and have produced copies of the documents. At the instance of the complainant a Commissioner was appointed to inspect the vehicle and to give report with regard to the manufacturing defects therein. The Commissioner examined the vehicle in the presence of both the parties and has submitted his report. We have heard the arguments on both sides.

4. The points for consideration are:-
(1) Whether it is proved that the vehicle supplied to the complainant has manufacturing defects?

(2) Whether the complainant is entitled to the relief prayed for in the complaint?

5. Our findings on the above points are in the Negative for the following:-

REASONS

POINT Nos. 1 & 2:-
6. Admittedly the complainant purchased the vehicle in question on 18.09.2006. The complaint is filed on 04.06.2008 about one year and nine months after the purchase of the vehicle. Both the parties have not disclosed as to the period of warranty provided to the vehicle. If the warranty was for two years, it only indicates that at the fag end of the warranty period the complainant has filed the complaint after making use of the vehicle for one year and nine months as on the date of the complaint, and even now the complainant is using the car. In the Commissioner report the Commissioner has reported that as on 26.12.2008 the date of inspection of the vehicle the Odometer reading was 67,022 kilometers. Some time after the date of purchase the engine was replaced and thereafter the thermo charger was also replaced. This fact is also admitted by the opposite parties, but in the complaint the complainant has not disclosed the date on which the engine was replaced and the date on which the turbo charger was replaced. It is contended by the opposite parties that the vehicle was left with M/s. Mahanth Motors, Hubli, for first free service on 17.02.2007 and for the second free service on 12.03.2007 and by that time the vehicle had run 14,448 kilometers without any problems. It is stated that on 23.04.2007 the complainant took the car to the dealer at Hubli with complaint of engine vibration and on examination it was found that there was a minor crack in engine mounting bracket as a result of which there was a consequential damage to the engine block and thereupon with the consent of the complainant the engine was replaced under warranty. It is further stated that on 30.07.2007 the car was toed in to the workshop of opposite party No.2 due to failure of turbo charger the car had run all most 22,908 kilometers and the turbo charger had failed because of using low quality fuel and even though there was no manufacturing defect the turbo charger was replaced under goodwill gesture. Except the job sheet for replacement of the turbo charger the complainant has not produced any other job sheets with regard to the complaints in the performance of the car and the repairs attended to. In Para-3 of the complaint the complainant has stated that, the vehicle was parked at Hubli for a period of one month for replacement of the engine. According to the opposite parties the car was taken to the authorized dealer at Hubli on 23.04.2007 with complaint of engine vibration and thereupon the engine was replaced. If the car was taken to the authorized dealer on 23.04.2007 and the engine was replaced about one month thereafter it indicates that the engine was replaced in the month of May-2007 and the car was delivered back to the complainant. Therefore after the replacement of the engine in May-2007 the complaint is filed more than one year thereafter on 04.06.2008. Except the problem in the engine and failure of the turbo charger, no specific allegations are made in the complaint with regard to other problems or defects in the car. Only vague allegations are made to the effect that the vehicle is not at all in good condition and the same is having all kinds of defects. In Para-6 of the complaint it is alleged that on the whole it appears that the vehicle is in bad condition as the mechanism of the vehicle is very defective and therefore the vehicle had given numerous problems and in spite of rectifying the defect the vehicle started to give not only the mechanical problem but also the electrical installation and other problems. In the absence of specific allegations with regard to the defects in the vehicle, the vague allegations will not help the complainant to prove that the vehicle suffers from any manufacturing defects. If at all the complainant was aggrieved with the replacement of the engine itself he would not have waited for nearly one year to file the present complaint. After making use of the vehicle for more than 67,000 kilometers the complaint is filed seeking replacement of the vehicle itself. At the instance of the complainant a Commissioner was appointed to inspect the vehicle and to give report with regard to the manufacturing defects therein. Though the application filed by the complainant for appointment of the Commissioner was allowed on 03.11.2008 the commissioner submitted the report only on 12.03.2009. It is interesting to note that in the report the Commissioner under the heading “Brief History of the Car” has stated that, within five months after the second service there was failure of AC system, cooling was less, and the AC system was rectified by M/s. Mahanth Motors Private Limited, Hubli, on 12.03.2007. Neither any allegation is made in the complaint with regard to the failure of the AC System, nor the job sheet regarding rectification of the same produced by the complainant. The Commissioner has stated that there was electrical failure on 12.08.2007, the complete wiring system was replaced and the vehicle was delivered back on 13.08.2007. He has stated that the battery was replaced on 17.08.2007, the clutch plate was replaced on 27.08.2007, the Suspension failure was attended on 08.01.2008, the AC Condenser assy. was replaced on 26.02.2008, the suspension parts were replaced on 18.04.2008, there was failure of electrical system on 29.05.2008 and the same was attended on 30.05.2008. But neither these defects are disclosed in the complaint nor any material is produced to show that those defects were attended to by the authorized service center of opposite party No.1. In the objection to the Commissioner Report the opposite parties have denied all the above defects narrated by the Commissioner. With regard to the inspection and performance of the vehicle the Commissioner has reported as under:-
“The vehicle was inspected at the workshop and Diagnosis log was carried on 26.12.2008 at about 1.45 PM and observed that all the parameters of the vehicle were carried during idle running and the Engine output were showing normal in idle running without load and Torque of the Engine was not measured, since Newton meter was not available at the workshop and informed that Torque is as per the specification given for Laura by Skoda without measuring with Newton meter.

The acceleration of the car from 0 to 100 Kms. And the time taken was 6 seconds under no load to the Engine.

The vehicle was taken for trial on the main road with five occupants and during top speed at 180 Kms. The condition of the engine was found to be okay where as the owner of the vehicle informed that the original Engine power was better than the replaced new Engine and the Engine output and Torque are in line and when Engine RPM at 3000 in third gear the Speedometer reading was 80 Kms. Constant and no variation was noticed and during sudden apply of brake at high speed, the vehicle is to drag to left side and the tyre markings which were noticed on the road and photographs were taken and are here with enclosed including Diagnosis log report of the vehicle.

The Electrical seat arrangements and the Electrical system including A.C. System were working normally when all the above parts were replaced after taking delivery with in a span of time.”

From the above observations of the Commissioner it is clear that the vehicle is in a road worthy condition and there are no problems or defects in the performance of the car. Except the above observations the Commissioner has not pointed out any manufacturing defects in the vehicle. However in the concluding Para the Commissioner has observed as under:-
“CONCLUSION:-
Usually during normal course of the new car, the life of the Engine will run for nearly 3,00,000 Kms. (Three Lakh Kms.) where as in this vehicle the Engine was replaced when the vehicle was run for just 17,221 Kms. And this is of clearly manufacturing defect and even though the Engine assy. Was replaced by new other Engine, the performance and efficiency of the Engine will not be of that of original Engine fitted with the car at the time of taking delivery and also regarding to all the parts which were replaced within a span of time will not have long life as per the specification and standard of the O.E.M. manufacturer.

The parts which were already replaced within a span of time even though the life were up-to 3,00,000 Kms. Running and also the important points to be noted that all most all the parts of the vehicle are to be imported, indigenously not available in the market, parts are too costly when compared to other vehicles and parts to be procured from authorized dealer only and these are the draw backs. The present condition of the vehicle is not of that of the same type of vehicle and also the future performance of the vehicle will not be of the of original one, since parts were replaced within in the stipulated time.”

7. Thus according to the Commissioner when once the engine is replaced the performance and efficiency of the engine will not be that of the original engine fitted with the car at the time of taking delivery. The fact that when the complainant complained of vibration in the engine and on finding some crack in a component of the engine the opposite parties replaced the engine with original engine after getting it imported from the manufacturer is not denied. If that is so, when the original part is replaced it become difficult to believe that the replaced engine will not give the same performance and efficiency as the engine that was fitted at the time of taking delivery. This opinion furnished by the Commissioner is not supported by any technical evidence. The fact that the parts of the vehicle are to be imported and the same are not available in the local market and the parts are too costly when compared to other vehicles is no ground for seeking replacement of the vehicle itself. At the time of purchasing the vehicle itself the complainant was well aware that the vehicle was fitted with imported parts and for the purpose of replacement also the parts were required to be imported. After making use of the vehicle for nearly two years and running the same for more than 70000 kilometers the complainant cannot be heard to say that the parts are required to be imported and are too costly and therefore it is necessary to replace the vehicle itself. Even from the report of the Commissioner we are unable to make out that the vehicle suffers from any manufacturing defects. Therefore we hold that, the complainant has failed to prove that the vehicle supplied by the opposite parties has any manufacturing defects and as such, the complainant is not entitled to the relief prayed for in the complaint. In the result, we pass the following:-

ORDER

8. The complaint is Dismissed. No order as to costs.

Ganesh Bhattar P.,
S/o. Late K.Padmanabha Bhattar,
‘Pappu Ghar’, Gundibail,
Udupi – 576 102. …….. COMPLAINANT

(Advocate: Sri.K. Nikesh Shetty).

VERSUS

1. M/s. Skoda Auto India Pvt. Ltd.,
A-1/1, Five Star Shendra Industrial Area,
M.I.D.C., Aurangabad – 431 201.

2. M/s. Tafe Access Ltd.,
Authorized Dealer for
M/s.Skoda Auto India Pvt. Ltd.,
Matadakani Cross Road,
Behind Urva Market,
Mangalore (Dakshina Kannada),
Rep. by its Managing Director.

(Advocate for Opposite Party No.1 & 2: Sri.M.S.K.P.)


3. M/s.Bridgestone India Pvt. Ltd.,
5th Floor, Shalimar Onyx, Plot No.5,
MirchandaniBusinessPark,
Saki Naka, Opp. Andheri Kurla Road,
Andheri (East), Mumbai – 400 072.
Rep. by its Managing Director. ……. OPPOSITE PARTIES

(Advocate for Opposite Party No.3: Sri.S.P. Chengappa).


***************
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;

1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service and defect in goods against the Opposite Parties claiming certain reliefs.
It is submitted that, the Complainant purchased Skoda Laura (elegance) from Opposite Party No.2 who is the authorized dealer of Opposite Party No.1 on 14.8.2007 as per Invoice No.240 dated 14.8.2007 for Rs.14,64,971/-.
It is alleged that, two tyres of the vehicle in question were bulged within a month of purchasing the vehicle from Opposite Party No.2 and this factual position was brought to the knowledge of Opposite Party No.2 on 12.9.2007. The Opposite Party No.2 after realizing the same replaced the above two tyres as its own cost on 12.9.2007. On 25.9.2007 the tyres of the vehicle got deflated while driving the vehicle by the Complainant personally which resulted in loosing the control over the vehicle and fell into a ditch which resulted damage to the vehicle. The main cause for the damage is on account of non compatibility of the tyres.
It is further submitted that, the Complainant has incurred a sum of Rs.4,39,000/- as repairing charges of the vehicle in question and then same has been reimbursed to the tune of Rs.3,01,000/-. And it is further alleged that on 31.5.2008 while driving the vehicle once again the rear left tyre got depleted and burst. In the result, the car was dragged to the right side of the road and hit and got damaged, the car is still under repair. It is over all alleged that the depletion and bursting of tyre took place due to fixing with bridge stone tyres which are not compatible to the power and size of the Skoda Laura (Elegance) car manufactured by the Opposite Party No.1 and contended that it is a clear case of manufacturing defect and deficiency in service and hence the above complaint is filed before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to refund Rs.17,39,198/- along with interest at 12% p.a. being the total cost of the car and also to pay Rs.1,98,000/- towards the expenses and Rs.25,000/- as compensation and cost of the litigation expenses.

2. Version notice served to the Opposite Parties by RPAD. All the three Opposite Parties appeared through their counsel filed version contended that there is no manufacturing defect as alleged in the complaint and the alleged bursting of the rear left tyre is not on account of the manufacturing defect. The damages have occurred on account of the accident and the accident is on account of the rash and negligent driving and there is no manufacturing defect of whatsoever nature and submitted that the complaint filed by the Complainant is false and frivolous and prayed for dismissal of the complaint.

3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
(i)Whether the Complainant proves that on account of the manufacturing defect the damages caused to the vehicle and whether the Opposite Parties have committed deficiency in service?

(ii)If so, whether the Complainant is entitled for the reliefs claimed?






(iii)What order?

4. In support of the complaint, Sri.Ganesh Bhattar P, (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Sri.Trivikram Guda (RW1), Company Secretary of the Opposite Party No.1, one Sri.Santhosh (RW2) – Service Executive of the Opposite Party No.2 and one Sri.Bilal Abdulla (RW3) - Assistant Manager Technical Service and G.P.A. holder of the Managing Director of the Opposite Party No.3 filed counter affidavit and answered the interrogatories served on them. Both parties have produced notes of arguments.
We have considered the notes and oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
Reasons


5. Point No. (i) to (iii):
It is undisputed fact that, the Complainant purchased a Skoda Laura (Elegance) car from Opposite Party No.2 who is the authorized dealer of Opposite Party No.1 on 14.8.2007 as per invoice No.240 dated 14.8.2007 for Rs.14,64,971/- (as per Ex C1). The Complainant is the registered owner of the above said vehicle.
Now the point in dispute is that, as according to the Complainant two tyres of the vehicle in question were bulged within a month of purchasing the vehicle from Opposite Party No.2 and this position was brought to the knowledge of Opposite Party No.2 and the Opposite Party replaced these two tyres as its own costs. It is the allegation of the Complainant that on 25.9.2007 the tyres of the vehicle got deflated while driving the vehicle by the Complainant which resulted in loosing the control over the vehicle and caused the vehicle to fall into a ditch which resulted damage. The Complainant alleged that, the main cause for the damage to the vehicle in question is on account of non-compatibility of the tyres to the power and size of the vehicle besides the manufacturing defect crept in the tyres in question and hence he came up with this complaint.
On the contrary, the Opposite Parties submitted that the allegation made by the Complainant are imaginary and it is submitted that the Complainant had come up with the complaint of tyre burst on 12.9.2007, at that time after investigation by the manufacturer of the tyres i.e., 3rd Opposite Party replaced the tyres under warranty free of cost as a goodwill gesture. It is submitted that the bursting of the tyres were due to an external impact of sharp object piercing the tyres, the 3rd Opposite Party had inspected the tyres and submitted the report and no manufacturing defect and further submitted that, the Complainant claimed the insurance amount, while claiming the insurance amount he has specifically stated that tyre bursting was due to an accident on account of skid due to rains. And further it is submitted that the Complainant had claimed that there was an accident on 31.5.2008 even the said burst of the tyre was on account of the accident and not because of the manufacturing defect.
Now the point in dispute is that, it is a case of the manufacturing defect caused to the tyres of the vehicle in question. It is a settled position of law that where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods with a view to finding out whether such goods suffer from any manufacturing defect alleged in the complaint or suffer from any other defect.
But in the present case, it is a definite case of the Complainant that the main cause for the damage to the vehicle in question is on account of non-compatibility of the tyres to the power and size of the vehicle besides the manufacturing defect crept in, in the tyres in question. When such being the case, it is the bounden duty of the Complainant to prove that the main cause for the damage to the vehicle in question is on account of non-compatibility of the tyres to the power and size of the vehicle besides the manufacturing defect crept in the tyres in question. But in the instant case, the Complainant not obtained any expert opinion in order to show that the tyres in questions fixed to the car has manufacturing defect. In the present case, the Complainant has not placed any reliable or acceptable evidence in this regard. In the absence of the same, we hold that the bursting of the tyres is not on account of any manufacturing defects but it has been due to the accident it has hitted and cut on side wall by a sharp object impact, bulge. No manufacturing defects were proved.
In view of the above findings, we are of the considered opinion that since there is no expert opinion produced by the Complainant to prove the manufacturing defect we are declined to consider the grievances of the Complainant in the particular case. Hence, we hold that the Complainant is miserably failed to prove his complaint before the FORA, complaint has no merits deserves to be dismissed. No order as to costs.

6. In the result, we pass the following:
ORDER

The complaint is dismissed.

Capt. Sukhjeet Singh Hara son of Sh. Dharamjit Singh, c/o Garden Resorts, VPO Nandpur, Sahnewal, Tehsil & Distt. Ludhiana. (Complainant)

Vs.

1- Skoda Auto India Pvt. Ltd. Plot no.A-1/1, Shendra, Five Star Industrial Area, MIDC, Tq & District Aurangabad-431201 through its Managing Director.

2- Krishna Auto Sales, Authorized Dealer for Skoda Auto, Dhandari Kalan, GT Road, Ludhiana through its Director/Managing Director Sh. Sachit Passi. (Opposite parties)

O R D E R

1- The Only matter to be decided by us in this complaint u/s 12 of the Consumer Protection Act, 1986, is as under:-

“Whether the complainant is entitled for compensation due to defect in AC of Laura Skoda car, manufactured by opposite party no.1 and purchased through its dealer opposite party no.2, in exchange of which, another Skoda Octavia car was given by opposite party to the complainant”.



Aforesaid matter arose before us, in this complaint lodged by the complainant. Complainant had purchased Laura Skoda car from opposite party no.2 for Rs.16 lacs approximately on 21st July, 2006. After purchase, complainant found to his dismay that AC of the car was not working efficiently, which defect was pointed to opposite party.

They assured the complainant that the AC had no defect, but being automatic AC, would adjust temperature accordingly. Thereafter in winter, no necessity arose, to use AC of the car. But in summer, same problem from AC, was faced by the complainant and the defect was reported to opposite party no.2 many times, but they failed to rectify the problem. Though, many components of AC, were replaced, but problem despite it, still persisted. However, opposite party failed to rectify the AC problem, due to it having manufactured defect. Correspondences were exchanged with opposite parties, to remove the defect, but without any avail. Even opposite party no.2 took up matter with opposite party no.1, manufacturer of the car and sought their help. Service engineer of opposite party no.1 also failed to remove the problem.

Ultimately, registered letter was sent to opposite party. Due to non functioning, AC hindered professional work and business of the complainant, causing inconvenience to him. He was forced to hire the vehicle for his travelling and incurred expenses of Rs.1,50,000/- for such purposes. The vehicle was lying with them, which on assurance of opposite party no.2, was taken back on 13.7.2007. But they again failed to remove the defect. So for such deficiency in service, filed the complaint, seeking direction to replace the defective vehicle with a new one, payment of compensation of Rs.3.50 lacs and Rs.15000/- litigation expenses.

2- During pendency of the complaint, complainant moved for amendment, taking plea that received during pendency of the complaint, proposal from the opposite party, who in exchange of defective car, agreed to provide Octavia car, which he took from them with lesser value.

3- Opposite party replied in the shape of affidavit that no cause of action is disclosed by the complainant in his complaint, nor he is a consumer. However, sale of vehicle to the complainant is admitted. But rest of his allegations, stand controverted and denied. For first 9 months after sale, there was no complaint by the complainant regarding the air conditioner, as appearing from job card dated 13.12.2006. Complainant for the first time on 7.4.2007, when the car had run 27569 kmts, made a complaint about the Air conditioner and necessary repairs were carried out. On 14.4.2007, car was again brought with complaint of compressor switch of the AC, which was replaced, necessary repairs were carried out and vehicle delivered to the complainant to his full satisfaction. By that time, vehicle had travelled 28054 kmts. Then on 22.4.2007, was brought to the garage, with complaint of fan of AC not working, necessary repairs were done. Thereafter, car was brought on 2.5.2007 for check up, when it had travelled 30574 kmts. On checking, no fault was found. Thereafter, on 13.6.2007, the car was brought for running repairs which was done. But complainant continued to complain about non effective AC. But there was no defect therein.

Though, original AC of the complainant gave some trouble, as stated by Sh. Adity Rudra, engineer of opposite party no.2, in his letter dated 13.7.2007(Annexure-R6). Resultantly, engineers of the company replaced compressor assembly, electric fans and condenser assembly and everything including AC was found in working condition. The car was taken by the complainant. Thereafter, the car travelled without trouble 33745 kmts. So, claimed that allegations of the complainant are false. Further averred that complainant has put the car for sale for the reasons best known to him, as he is in the habit of changing his car. There is no defect in the car which has travelled more than 33745 kmts. in one year. So, there is no deficiency in service on their part.

4- Parties adduced evidence in support of their claims and stood heard through their respective counsels.

5- It is in the backdrop of these aspects that during pendency of the complaint, complainant exchanged his Laura Skoda car, valuing about Rs.16 lacs and in lieu, opposite party provided him a brand new Skoda Octavia car of the value of Rs.11.35 lacs, as shown in invoice Ex.C10 dated 11.9.2007.

6- On the strength thereof, on behalf of opposite party, it was pointed that the car qua which the complainant has filed complaint, has been taken back by the opposite party, who in lieu, had given him a brand new car. Therefore, he is not entitled for any amount of compensation.

7- Whereas, on behalf of complainant, urged that value of his original car was about Rs.16 lacs and in exchange of which, lesser priced car was taken from the opposite party after one year of the original purchase on 21st July, 2006. The defective AC of the car had given trouble to the complainant, caused harassment and inconvenience to him, as he could not use the car for his travelling purposes, for want of AC during scorching summer season.

8- So, it is clear in these circumstances that Laura Skoda car purchased by the complainant on 21st July, 2006, had problem in its AC qua which, complainant made many times complaints to the opposite party, who attempted to rectify the defect, but complainant was not satisfied therewith and subsequently, opposite party settled the matter with the complainant in September, 2007, when in exchange, they provided him a brand new Skoda Octavia car vide invoice dated 11.9.2007. In such scenario, to be seen whether for inconvenience suffered, complainant is still entitled for compensation or opposite party, by giving in exchange new vehicle, stands absolved of any liability.

9- Before, we venture to consider law on the subject, would like to add that complainant was fed up with the Laura Skoda Car, due to non functioning of its AC. Defect in AC was such inherent manufacturing defect, which forced opposite party to make an offer, after more than one year of sale, to exchange the car with a new one having little lesser price.

10- In such like circumstances, as we are facing, Hon’ble Delhi State Commission in Rajiv Gulati Vs Tata Engineering & Locomotive Co. Ltd. & Ors. 2009(1)CLT-400(Delhi State Commission), had awarded for mental agony, harassment and financial loss, compensation of Rs.2 lacs to the complainant. In that case, complainant had purchased Tata Safari for Rs.9,06,796/-. The vehicle developed steering problem after plying 1300 kms. Problem could not be removed and vehicle was held to be defective. Ultimately, complainant sold the same at cost of Rs.5,05,000/-. Despite it, compensation for harassment was awarded by the Hon’ble Delhi State Commission.

11- Similarly, in Hyundai Motors India Ltd. Vs Usharani Parthasarathy & Anr. 2009(1)CLT-332(Tamil Nadu State Commission), complainant had purchased Santro car for Rs.2.95 lacs. Due to defect, she sent the car for repairs 20 times during a short span. As she was not in a position to use the vehicle on account of its not satisfactory repairs, sold the same, because she was not in a position to bear inconvenience. Compensation of Rs.50,000/- awarded by the District Fora, was affirmed by the Hon’ble State Commission.

12- In the present case also, original vehicle of the complainant had no manufacturing defect, except in AC thereof. That defect could not be rectified despite taking vehicle repeatedly to the garage of opposite party no.2, who also failed to remove the defect, though changed components thereof many times. Consequently, they took back that vehicle with defective AC and in lieu, after one year, delivered him a brand new car with lesser price.

Hence, we feel that inconvenience, agony suffered by the complainant, due to non working of AC, for about one year, must have caused lot of harassment, and sufferance to him. He had purchased vehicle for his own comfort. But instead of getting it, got jerk by way agony and harassment, due to non working of the AC. As a matter of law, for such harassment suffered by him, complainant certainly would be entitled for compensation.

13- Therefore, in these circumstances, we allow this complaint and accordingly, direct opposite party, for causing harassment, agony to the complainant, to pay Rs.25,000/-(Rupees Twenty Five Thousand) and litigation expenses of Rs.2000/- within 45 days of receipt of copy of order

Complaint No. 758/22.10.2008
Date of order: 16.12.2009
Kairon Forgings Pvt. Ltd. D-171, Phase-VI, Focal Point, Ludhiana through its Director.
(Complainant)
Vs.

1. Skoda Auto India Pvt. Ltd. Plot No.A-1/1, Shendra Five Star Industrial Area, MIDC, Aurangabad-431201 through its Authorised Signatory.

2. Krishna Auto Sales, G.T. Road, Dhandari kalan, Ludhiana through its authorised signatory.

(Opposite parties)

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.
Quorum:
Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.

Smt. Priti Malhotra, Member.
Present:
Sh. L.D. Gupta Advocate for the complainant.

Sh. Jagvir Sharma Advocate for opposite parties.

O R D E R

T.N. VAIDYA, PRESIDENT:

1. Complainant for its M.D. purchased a Skoda car for Rs.16,65,501/- on 7.4.2008 from opposite party no.2, dealer of manufacturer-OP No.1. But since purchase, it was giving trouble, qua which repeatedly reports were lodged with them, but to no effect. On 23.8.2008, complainant was traveling in his car when it developed major defects and stopped midway. Consequently, it was toed to workshop of opposite party no.2, who assured to remove the defect perpetually without charging anything. They took more than two weeks to repair the vehicle. When complainant went to take delivery, they demanded Rs.75,419/- as cost of repair and spare parts. But complainant reported that the car was within guarantee period, so no amount can be charged from him. Opposite party fraudulently refused to release the car without receiving payment. Hence, complainant was forced to pay unauthorized and illegal amount of Rs.75,419/-, which he paid under protest, to take back delivery of his car. By that time, car had only run 4379Kms., during which it developed major defect. He was not bound to pay repair charges but was forced to do so. Such act on the part of opposite party claimed amounting to deficiency in service. Hence, this complaint under section 12 of the Consumer protection Act, 1986 for refund of Rs.75,419/- charged along with 22% per annum interest and has also claimed Rs.22,000/- compensation for deficiency in service.

2. Opposite party in reply pleaded that complaint is bad for misjoinder and non joinder of the Insurance Company. Complainant can claim amount spent on repair from the Insurance Company. They were only liable to render services during warranty period, in case, there was any manufacturing defect or trouble faced by owner of the vehicle in its running or driving on account of manufacturing defect or error. There was no deficiency in service nor any manufacturing defect in the vehicle. Repairs undertaken by them were due to the reason that the vehicle had run through water to the level of bonnet and consequently engine suck the water, due to which it got stalled. In such a situation, driver was supposed to stop the car. But instead of stopping, he cracked the engine, due to which it got damaged. This car on 19.4.2008 at the reading of 272Kms. , on 14.7.2008 at the meter reading of 2978Kms., on 8.9.08 at reading of 4460 Kms. was brought for service, which were done free of charges. Allegations of repeated troubles mentioned by the complainant are totally false. Vehicle was damaged due to own fault of the complainant as he failed to take precautions while driving the car through bonnet level water. It was for such reason that the Insurance Company bound to pay full bill to the complainant.

3. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

4. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

5. It is in scenario of the case not in dispute that complainant had to spent Rs. 75,490/- to get the vehicle repaired from opposite party no.2 on 6.9.2008, paid for job card dated 23.8.2008. Though the car was purchased vide invoice dated 7.4.2008 (Ex.C.2). Hence, within three months of purchase of the car, Rs. 75,419/-was charged from the complainant by opposite party no.2. Complainant has demanded that amount from opposite party by sending legal notice Ex.C.4, but to no effect.

6. Whereas, opposite party pleaded that the car had no manufacturing defect and earlier on three occasions had provided free service to the complainant without charging him. Disputed amount charged as damaged parts got replaced by the complainant were not covered under the warranty as he himself due to own negligence had damaged the same. No doubt, for three services, opposite party had not charged the complainant as would be apparent from job card Ex.R.3 and R.4 dated 19.4.2008, Ex.R.4, Ex.R5 and R6 dated 14.7.2008 and Ex.R7 and R8 dated 8.9.2008.

7. As per report of the surveyor Ex.RW3/Y engaged by Insurance Company of the car, due to heavy rain roads were flooded with rain water and while the car was passing from there, air filter assembnly sucked the flood water, which entered the engine which got jammed due to hydrostatic lock. Loss assessor accordingly assessed the total loss at Rs. 38,893/-.

8. In such scenario, it is to be seen whether opposite party still would be liable to pay for the damage suffered by the complainant on account of warranty provided by the opposite party.

9. In such back drop of the case contended by Sh. L.D. Gupta Advocate, ld. counsel for the complainant, that the vehicle was under warranty and opposite party was bound to replace all parts during the warranty period which might be damaged for any reason. This contention is contested to be wrong by the ld. counsel for the opposite party, when argued that there was no manufacturing defect in the vehicle and the damage, if any, occurred due to own deliberate and negligent act of the complainant while driving the vehicle with its bonnet under water, due to which engine suck the water. Consequently, there was no warranty by manufacturer for such act of the complainant, hence, they are not liable to pay the amount. It is an accidental damage, for which complainant may seek his remedy from the Insurance Company of the vehicle.

10. After going through these submissions, we find ourselves in agreement with contention of the opposite party. Because, complainant has not placed on record terms and conditions of the warranty to support his claim that opposite party for any damage to the vehicle or its components would be liable to reimburse him. Whereas, report of the surveyor clearly speaks that the damage to parts of the vehicle was caused when it was driven by the complainant with bonnet under water. In other words, there was no manufacturing defect in the vehicle and opposite party had never provided any warranty to replace part or parts of the vehicle got damaged by the complainant on account of his own negligence.

11. Consequently, we find no merit in the complaint and as a result same is dismissed. We leave the parties to bear their own costs. Complainant may seek his remedy from the Insurance Company with which vehicle was insured. Copy of the order be supplied to the parties free of costs. File be completed and consigned to record.

Dont purchase this vehicle , you will be in trouble . you will have problom of Airconditioner after riding 30000 Km . Company will charge you for this and no spares readily available with soda. it will consum min 40 days to get repaired eventhough you pay, so you must have another vehiclke for your use. After 50000 KM you will have problom of Turbocharger, it cost you 150000/ for repair and min 2 months time as spares are not available

This vehicle is from the family of Audi , but no standard in their service and commitment , if its American vehicle they will call back all cars from market and provide new cars to their valuable costomers .

its better to buy another good vehicle with 19 lakhs instead of buying a headache

Pls comend to pravasimalayali@hotmail.com

Dear sir am suffering extremely because of skoda.. I had purchased skoda superb diesel worth Rs 22,61,305 /- on 7/7/2010 from vinayak cars bangalore. The Engine got cracked on 29th september 2010 covering only 1850 kms from the date of purchase. Its been a hell for me to pay Rs 2200000 for using the car hardly for 2 months. I sent the car to the service centre by towing and paying the expenses ( Rs 25000) from my end since they were not willing to pay for the tow as we reside in bijapur which is almost 600kms from bangalore. I was unwilling to take the delivery of the engine replaced car and demanded replacement of the car with a new one or refund for the same. But they had no value for my demands and forced me to take the repaired car assuring that no problem will arise in the future. Having faith in them i took the delivery on 4/2/2011 and its causing problems again on 6th february 2011. The oil is leaking from the engine so i complained to the dealer and they are sending some technician. But this time i dont want to make the same mistake by taking the repaired car because it has many manufacturing defect and will keep causing expensive problems throughout my life. I want a helpful suggestion and legal advice from your experts regarding this matter as soon as possible.