DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB          : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Wednesday the 31^st  day of May 2023

C.C.591/2013

Complainant

Muhammed Musthafa.V

S/o. Moosa Haji,

Varikkodan House,

Downhill (P.O),

Malappuram – 676519.

(By Adv.B.K. Bindu)

Opposite Parties

1. The Managing Director

          Phoenix Cars India Pvt. Ltd.

          NH-17, Kannur Road,

          Pavangad,

          Kozhikode – 673 021.

          (By Adv.Sri. Benny Joseph Kuruvathazha)

2. The Managing Direcor

          EVM Motors & Vehicles India Pvt. Ltd.,

          Maradu,

          Kochi – 682 304.

          (By Adv.Sri. T.J.Thulasikrishnan)

3. The Managing Director

          Volkswagen Group Sales India Pvt Ltd.,

          Silver Utopiya, 3^rd, 4^th Floor,

          Cardinal Gracious Road,

          Chakkala, Antheri (East),

          Mumbai -400 099.

         (By Adv.Sri. Azeem Mohammed)

ORDER

By Sri. P.C. PAULACHEN – PRESIDENT 

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

The complainant purchased a Volkswagen Jetta 1.9L (MT) TDI Model car from the 2^nd opposite party which was manufactured by the 3^rd opposite party paying sum of Rs.15,31,125/-.  It was purchased by him due to the persuasion of the 2^nd opposite party that the vehicle is of high quality with one lakh kilometres warranty, maintenance free and insurance free etc. The vehicle was having normal warranty of 2 years/unlimited kilometres.  The complainant took extended warranty for another 2 years thereby extending the warranty to 4 years/one lakh kilometres.  Periodical services were done at the prescribed intervals and maintained through the 1^st opposite party.  The complainant has spent an amount Rs.77,366/- for periodical services.

3. On 16/08/2010, the handbrake of the vehicle was not seen functioning properly and hence it was reported to the 1^st opposite party. Since there was no response for two weeks, he again contacted the 1st opposite party and the vehicle was taken to their workshop and some rectification work was done.  But still the problem persisted. 
4. On 15/02/2013 radiator leakage was noticed. It was not possible to use the vehicle for one hour or 50 kilometres, because by that time, the radiator became very hot.  Pursuant to the complaint reported, the 1^st opposite party inspected the vehicle and stated that they would register a complaint for parts replacement with the company and sent indent for the same and assured to rectify the defect within one month.   Thereafter there was no response from the 1^st opposite party and hence the complainant reported the matter through E-Mail to the 3^rd opposite party whereupon the 1^st opposite party contacted the complainant and assured to replace the radiator and rectify the entire defects.  The vehicle was taken to the workshop of the 1^st opposite party on 18/10/2013.  But the 1^st opposite party was not ready to replace the radiator, but only some rectification work was done as a temporary solution.  After this rectification work, the A/C of the vehicle is not working properly due to the impact of the improper rectification work done by the inexperienced mechanics of the 1^st opposite party.  Moreover, due to the rash and negligent handling of the vehicle by the inexperienced mechanics, both the bumper of the vehicle got damaged.
5. Though the complainant contacted the 1^st opposite party several times, they are not having any definite answer and the defects are not rectified so far.  The warranty will expire on 05/01/2014.
6. The complainant had to suffer great mental torture and heavy financial loss since he was not able to use his vehicle conveniently and on many occasions he had to hire taxi for his business tour.  He had spent more than rupees one lakh for hiring taxi.  His business was also adversely affected.  Several times the vehicle had to be taken to the workshop of the 1^st opposite party which is situated at distance of about 60 kms from his house.
7. The opposite parties have committed gross deficiency of service and unfair trade practice by manufacturing a substandard quality/defective product and marketing it through the 1^st and 2^nd opposite parties and by not repairing or replacing the defective parts in spite of repeated requests.  It is understood that the product supplied by the 2^nd opposite party is not of sound quality and no proper service experts or components available for rectifying the defects.  Therefore, the service rendered by the opposite parties is inadequate, imperfect and suffers shortcomings. They are liable to compensate the complainant.  Hence the complaint to direct the opposite parties to replace the defective components of the vehicle which proper future warranty or else, refund the price of the vehicle or replace with a new vehicle and to pay  compensation of
   Rs.3.5 lakhs and also Rs.1 lakh as taxi expenses along with Rs.50,000/- as cost of proceedings.
8. The opposite parties filed separate written version wherein they have denied all the allegations and claims made against them in the complainant.
9. The averment regarding the extension of warranty and the periodical service is admitted by the 1^st opposite party. However, the averment that the complainant had spent Rs.77,366/- for periodical service is not fully correct, since the said amount was charged for consumables like engine oil and labour charges.  No fault can be cast on the 1^st opposite party for the said amount.  The vehicle was reported with handbrake jamming and they replaced the brake fluid and the problem was resolved and thereafter, no such complaint with brake was reported.  The problem to the radiator was not due to any inherent defect of the radiator, but it was only due to an external damage caused by usage of the complainant himself.  On inspection, the technician noted that there was an external damage to the radiator.  The radiator cannot be replaced under warranty since it was the result of some exterior impact and not due to manufacturing defect and this was communicated to the complainant.  But the complainant insisted for replacement of the radiator and hence they finally agreed to do some rectification work, as a temporary solution.  The rectification work done in the radiator has no impact or connection with the A/C and hence any problem with the A/C cannot be linked to the work carried out by the 1^st opposite party.  The problem with the A/C was sorted out by the 1^st opposite party on 18/11/2013 under goodwill warranty free of charge.  The complainant had given satisfaction note to the same.  The allegation that both the bumpers were damaged due to handling by inexperienced mechanics is false and hence denied.  The alleged damage caused to the bumpers was not raised by the complainant at the time of taking delivery of the vehicle. There was no deficiency of service on the part of the 1^st opposite party. The complaint is devoid of any merits or bonafides and hence liable to be dismissed.
10. The 2^nd opposite party in their written version has admitted the purchase of the car by the complainant from them.  According to them, what was supplied to the complainant was a defect free brand new vehicle.  There was neither any persuasion nor misleading offers from the side of the 2^nd opposite party at the time of purchase.  All the averments in the complaint are false and the complaint is liable to be dismissed.
11. In their written version, the 3^rd opposite party has admitted the purchase of the car by the complainant.  The warranty and the extended warranty are admitted.  The service and maintenance are subject to charge for use of consumables and also for labour charges.  Therefore the allegation of the complainant has no merit that he paid for periodical services the amount of Rs.77,366/-.  Apart from routine repairs and service, the complainant also reported the car to the workshop of the dealer for accidental damage to the car including causing external damage of the radiator resulting in coolant leakage. The complaint regarding handbrake jam was promptly sorted out by the 1^st opposite party.  It was due to normal wear and tear.  The radiator of the car has got an external damage resulting in coolant leakage and same cannot be replaced under the warranty since the damage is an external damage.  The dealer was always ready to replace the radiator on chargeable basis, but the complainant was not ready for the same.  The alleged concern related to the A/C was an independent concern and has no relevance to the rectification of radiator.  The allegation that the service representatives of the 1^st opposite party are inexperienced is false and hence denied.  The rectification of the reported concern relating to the A/C was done to the satisfaction of the complainant.   The allegations regarding mental torture, financial loss etc are denied. None of the reliefs is allowable.   The allegation regarding manufacturing defect and false and hence denied.  There is no deficiency of service or unfair trade practice on the part of the 3^rd opposite party. With the above contentions the 3^rd opposite party also prays for dismissal of the complaint.

12. The points that arise for determination in this complaint are:

1. Whether the vehicle in question is having any inherent manufacturing defect and is of substandard quality, as alleged?
2. Whether there was any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged?
3. Reliefs and costs.

13. Evidence consists of the oral evidence of PW1 and Exts. A1 to A21 on the side of the complainant. No evidence was let in by the opposite parties.  The report of the expert Commissioner was marked as Ext.C1.
14. Heard both sides. The complainant filed brief argument note.
15. Points No. 1 and 2:  These points can be considered together for the sake of convenience. The complainant has approached this Commission alleging deficiency of service and unfair trade practice on the part of the opposite parties by manufacturing a substandard quality/defective car and selling it and by not addressing the concerns of the complainant with regard to the defects/complaints of the vehicle, in spite of repeated requests made by him. The first prayer is for replacement of the defective components of the vehicle with proper future warranty or else to replace the vehicle with a new one or refund the price. The second prayer is for compensation to the tune of Rs.3.5 lakhs for the mental agony and monetary loss suffered by the complainant on account of the deficiency in service and unfair trade practice allegedly committed by the opposite parties. The third prayer is to direct the opposite parties to pay Rs.1 lakh as taxi fare to the complainant.
16.  The case of the complainant is that he purchased a Volkswagen Jetta 1.9L (MT) TDI Model car from the second opposite party on 05-01-2009, manufactured by the third opposite party. The vehicle was having warranty of 2 years / unlimited kilometers. The complainant availed extended warranty for another 2 years, thereby extending the warranty for another 2 years / 1,00,000 kilometers. The vehicle showed complaints such as hand brake jamming, radiator leaking, nonworking of the A/c properly etc. It is also the allegation of the complainant that the car is substandard quality having manufacturing defect. Another grievance of the complainant is that his repeated requests to the opposite parties to get the fault rectified proved futile due to the irresponsible and negligent attitude of the opposite parties.   
17. In order to substantiate his case, the complainant has got himself examined as PW1.  PW1 has deposed in terms of the averments in the complaint and in support of the claim. Twenty one documents were produced and marked as Exts A1 to A21 on the side of the complainant.
18. The opposite parties have admitted the purchase of the car by the complainant. The case advanced by them is that whenever complaints were reported, the same were promptly attended to by them to the satisfaction of the complainant. They have denied the allegation that the vehicle is a substandard one having manufacturing defect. No evidence was adduced by the opposite parties.
19. On an application filed by the complainant as IA No. 198/2016, an expert Commission was appointed to inspect the vehicle and to file report. Ext.C1 is the report filed by Sri.B.Saju, Motor Vehicle Inspector, Regional Transport Office, Malappuram. The learned expert inspected the vehicle on 16-11-2016 and 26-11-2016. The learned expert has reported that the complaint regarding hand brake not working properly mainly in the morning is genuine. He dismantled both the rear wheels, brake pads and found that the disk and pads are defective. The complaint regarding radiator leakage was found to be baseless. No complaint was found to A/c and it was working properly. On 26-11-2016 he lifted up the vehicle and inspected and on such inspection the radiator was seen damaged in a portion and patched. The photograph of the radiator is also attached to Ext.C1.
20. It is not disputed that the complainant purchased a Volkswagen Jetta 1.9L (MT) TDI Model car from the second opposite party as per invoice dated 30-11-2009. The price of the vehicle was Rs.15,31,125/-. The ex-showroom price was Rs.13,98,409/- Ext.A1 is the copy of the proforma invoice dated 30-11-2009. The vehicle was having warranty of 2 years / unlimited kilometers. The complainant availed extended warranty for another 2 years.
21.  The allegation of the complainant is that the vehicle supplied to him was a defective one having manufacturing defect. It was pointed out by the learned counsel for the complainant that the vehicle had several defects such as hand brake jamming, radiator leakage, A/c complaint and all these are indicative of the fact that the vehicle suffers from manufacturing defect. It was submitted that in view of the fact that the vehicle is having manufacturing defect, the opposite parties are liable to replace the vehicle with a new one or refund the purchase price. On the other hand, the learned counsel for the opposite parties submitted that there is no manufacturing defect in the vehicle except normal wear and tear and whenever any complaint was reported, the same was addressed promptly and properly to the satisfaction of the complainant.
22. The onus to prove manufacturing defect is up on the complainant. But complainant has failed to place on record any technical/expert report to support his allegation that the vehicle is having any inherent manufacturing defect. Ext.C1 does not even give the slightest indication that the car is having any inherent manufacturing defect. Not even a single document has been placed on record in support of the allegation. The vehicle is still in use. It has come out in evidence that after more than 10 years use, it was alienated by the complainant after a run of 80,000 KMs. This is admitted by PW 1 in the cross examination. This would indicate that the complainant was in extensive use of the car from the date of purchase. This is also indicative of the fact that there is no manufacturing defect or else he would not have been able to drive it for 10 years and that too to an extent of 80,000 KMs. Moreover, the vehicle was sold by the complainant. Therefore the prayer for replacement of the vehicle with a new one or refund of the purchase price cannot be allowed.
23.  As we have already stated, the main grievances of the complainant with regard to the vehicle are that the hand brake not working properly, radiator leakage, A/c not working and the bumper was damaged due to the rash and negligent handling of the vehicle by inexperienced mechanics. In Ext.C1, it is reported that there is no complaint with regard to A/c and there was no radiator leakage. But it is reported that the hand brake of the vehicle was not working properly and the radiator was seen damaged in a portion and patched. The learned counsel for the opposite parties pointed out that the complaint regarding brake pad etc can only be due to normal wear and tear and damage to the radiator was due to external impact and such a complaint was not mentioned in the complaint. It was also pointed out that on 04-03-2016 there was an accidental repair to the vehicle as can be seen from the two invoices produced by none other than the complainant. It was also submitted that Ext.C1 is not helpful since it was prepared in the year 2016. We find much force in the contention. The present complaint was filed on 12-12-2013. The expert Commission application IA No. 198/2016 was filed only on 19-05-2016 by the complainant. The learned expert inspected the vehicle on 16-11-2016 and 26-11-2016. It is admitted by PW1 that the vehicle was serviced/repaired in some other workshop after the expiry of the warranty period. So before the inspection of the Commissioner the vehicle was repaired /serviced in some other workshop. Ext.C1 prepared in the year 1996 does not reflect the state of affairs of the vehicle as on the date of the institution of the complaint. Thus Ext.C1 is not much helpful in deciding the dispute involved in this case.  
24. However, the complainant has a grievance that his concerns with respect to the vehicle were not properly addressed by the opposite parties and he was not able to use the vehicle conveniently. According to us, his grievance in this regard appears to be genuine. In this context, it is pertinent to note that all the complaints to the vehicle arose during the warranty period. But it is seen that the said concerns of the complainant were not properly addressed by the opposite parties. This is evident from the various communications between the complainant and the manufacturer which are marked as Ext.10 to Ext.15 series. In all his communications, the complainant has projected his grievance that the reported complaints were persisting after the repair/service. If the issues were rectified properly, there was no chance or scope for the complainant to address the manufacturer again and again highlighting his grievances. In all the replies, the manufacturer had assured that his concerns would be resolved. But despite the assurance, no positive action was taken to resolve the concerns of the complainant. No purchaser of a car expects this sort of mental agony. The act of the opposite parties in not resolving the concerns of the complainant in spite of repeated requests constitutes gross deficiency of service. The complainant was put to intense mental agony, hardship and inconvenience due to irresponsible and negligent attitude of the opposite parties. He had to incur monetary loss. Due to frequent failure, he was often deprived of the facility of using the car. Being a business man, he had to resort to other modes of travel. According to PW1, he had to pay Rs.1 lakh as taxi hire charges. He has produced Ext. A17 series taxi bills for Rs.56,500/-. But the person who issued the same was not examined and Ext A17 series were not properly proved. However, the complainant deserves to be compensated adequately, even though he is not entitled to get a brand new car or refund of the purchase price. Moreover, at present, he is not the owner in possession of the vehicle as it was alienated to a third party. Considering the entire facts and circumstances, we are of the view that a sum of Rs.50,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings.

25. Point No:3 :- In the light of the finding on the above points, the complaint is disposed of as follows:

1. C.C. No: 591/2013 is allowed in part.
2. The opposite parties are hereby directed to pay a sum of Rs.50,000/- (Rupees fifty  thousand only) as compensation to the complainant.
3. The opposite parties are directed to pay a sum of Rs.5,000/- (Rupees Five Thousand only) as cost of proceedings to the complainant.
4. The payment as aforestated shall be made within 30 days of the receipt of copy of this order.

Pronounced in open Commission on this the 31^st day of May, 2023.

Date of Filing: 12-12-2013.

            Sd/-                                                      Sd/-                               Sd/-

     PRESIDENT                                    MEMBER                         MEMBER

APPENDIX

Exhibits for the Complainant :

Ext. A1 – Copy of Invoice dated 30-11-2009.

Ext. A2 – Report of R.T.O Malappuram.

Ext. A3 – Copy of the RC.

Ext. A4 – Receipt dated 09/12/2009, issued by EVM Motors.

Ext. A5 – Letter dated 04/01/2010, issued by South Malabar Gramin Bank.

Ext. A6 – Report dated 15/11/2019, Kerala Gramin Bank.

Ext. A7 – Receipt dated 05/01/2010, issued by South Indian Bank,.

Ext. A8 – Extended Warranty Certificate.

Ext. A9 series – Service Bills.

Ext. A10 series – Complaint by e-mail to Volkswagen and its reply.

Ext. A11 – Letter dated 31/05/2013.

Ext. A12 series – Complaint by e-mail  and its reply.

Ext. A13 series – Complaint by e-mail  and its reply.

Ext. A14 series – Complaint by e-mail  and its reply.

Ext. A15 series – Complaint by e-mail  and its reply.

Ext. A16 – Copy of the Agreement for ginger crop.

Ext. A17 series – Taxi bills.

Ext. A18 – Report of Malayala Manorama dated 22/09/2015.

Ext. A19 – Report of Malayala Manorama dated 26/09/2015.

Ext. A20 – Report of Malayala Manorama dated 08/10/2015.

Ext. A21 – Report of Malayala Manorama dated 05/11/2015.

Exhibits for the Opposite Party

Nil.

Commission Exhibits

Ext C1  - Report filed by Sri.B.Saju, Motor Vehicle Inspector, Regional Transport Office, Malappuram.

Witnesses for the Complainant

PW1 -  Muhammed Musthafa (Complainant)

Witnesses for the opposite parties 

Nil.

         Sd/-                                            Sd/-                                   Sd/-

PRESIDENT                               MEMBER                         MEMBER

                                                                    True copy,

                                                                     Sd/

                                                            Assistant Registrar.