Tamil Nadu

StateCommission

CC/39/2016

T.S.Rajamohan - Complainant(s)

Versus

Volkswagen Group Sales India Pvt Ltd, Rep by its General Manager & anr. - Opp.Party(s)

Complt.-In Person,

21 Nov 2017

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE  DR. JUSTICE. S. TAMILVANAN,            PRESIDENT

                  THIRU.K. BASKARAN,                                             JUDICIAL MEMBER  

 

C.C.No.39/2016

  TUESDAY, THE 21^st DAY OF NOVEMBER 2017.

 

T.S. Rajamohan,

S/o. S. Subramanian,

No.30/67, Fourth Main Road,

Jawahar Nagar,

Chennai – 600 082.                                                                          Complainant

 

                        Vs

 

1.    Volkswagen Group Sales India Private Limited.,

       Represented by its General Manager,

       4^th Floor, Silver Utopia,

       Cardinal Gracious Road, Chakala,

       Andheri East, Mumbai – 400 099.  

 

2.    The Deputy General Manager,

       After Sales,

       Abra Motors Pvt.Ltd.,

       No.80, Southern Avenue,

       Ambattur Industrial Estate,

       Ambattur,

       Chennai – 600 058.                                                                   Opposite Parties 

 

Counsel for the complainant       :     Complainant appeared in-person

 

Counsel for the 1^st opposite party:     M/s. A.R. Ramanathan, Advocate.   

 

Counsel for the 2^nd opposite party:    M/s.  Nandini Ram, Advocate.     

 

 

             This complaint having come before us for final hearing on 08.11.2017 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following:-

ORDER

THIRU.K. BASKARAN, JUDICIAL MEMBER.

 

              This complaint has been filed by the complainant under section 17 of the Consumer Protection Act, 1986 praying this Commission to direct the 2^nd opposite party to return a sum of Rs.4,51,601/-paid by him for replacement of car engine and other incidental charges with interest at the rate of 36% per annum from 04.09.2014 till realisation and also to pay a sum of Rs.30,00,000/- as compensation for mental agony and hardship caused to him by the opposite parties besides cost of the complaint.  

1.      The complainant allegations in brief are as follows;-   That the complainant had purchased Volkswagen – Jetta – Sedan Car – Blue Colour from the 2^nd opposite party which was manufactured by the 1^st opposite party and the same was subsequently registered as TN-05-AA-6665 and since purchase the complainant has been servicing his car regularly with the 2^nd opposite party; That during September 2014 the said car developed serious noise while it was running and on reference to the 2^nd opposite party, it was found that the car had developed some serious snag so that it could not be driven further and hence the car was towed to the 2^nd opposite party’s workshop;  that though the 2^nd opposite party had initially diagnosed the defect as clutch problem and subsequently informed that there was engine problem ;  That the engine block developed hole and hence the entire engine needed replacement and as the 2^nd opposite party sought the approval of the complainant for service, the complainant consented for the same : that the 2^nd opposite party had initially raised an invoice for Rs.7,80,000/- for replacement of engine and it was subsequently revised to Rs.4,51,601/- and the complainant had paid the entire amount as per the revised invoice;  that as per the practice in vogue the 2^nd opposite party should have returned the old replaced engine but on the other hand it had retained the same; that whenever a new engine is fitted in a old car, a new engine number has to be embossed and the new engine number has to be entered in the registration certificate; But the 2^nd opposite party had not yet furnished the certificate regarding replacement of new engine and hence the complainant had sent a letter dated 08.09.2015 through email and in spite of that the 2^nd opposite party had not issued a certificate regarding replacement of old engine with a new one nor returned the replaced engine and hence it could be understood that the 2^nd opposite party had not at all replaced the old engine with a new one and had simply carried out repairs in the old engine and hence the act of the 2^nd  opposite party in collecting a sum of Rs.4,51,601/- purportedly for replacing the old engine with a new one is unlawful and it is nothing but unjust enrichment; That the complainant had finally sent a letter on 24.12.2015 calling upon the 2^nd opposite party to return the above stated amount together with interest in addition to compensation for the mental agony and hardship caused to him by the 2^nd opposite party and there was no response from both the opposite parties and hence the complainant has come forward with this complaint before this Commission seeking direction to the 2^nd opposite party to refund Rs.4,51,601/- which was paid by him towards engine replacement and other incidental charges with interest at the rate of 36% per annum from 04.09.2014 and also to pay a sum of Rs.30,00,000/- as compensation for mental agony and hardship and to pay costs of this complaint.

 

2.   The defence of the 1^st opposite party in his written version is as follows;-

                  The complaint is not maintainable either in law or on facts. The 1^st opposite party is not a manufacturer of the car purchased by the complainant since it was manufactured by the Volkswagen Company at Pune which is a separate and independent legal entity. Being a company registered under the law, the 1^st opposite party is dealing with the marketing, sale and service of Volkswagen Group Vehicles through its authorised dealers appointed on principal to principal basis across India. The retail transactions are being undertaken through the authorised dealers which are all independent business units. The Volkswagen Jetta car purchased by the complainant was delivered to the 2^nd opposite party after stringent quality test, safety tests and other such tests made as per requirements and safety standards. On 02.09.2014, the 2^nd opposite party informed the 1^st opposite party that the vehicle purchased by the complainant was in defect and unable to start due to engine long block which required to be replaced and the complainant agreed for the same.  If the spare part (engine long block) is replaced, the replaced part would get the same number as that of the old engine already had.  The 2^nd opposite party inadvertently had not stamped the old engine number on the replaced engine which was informed and requested the complainant to bring the car to get the engine stamped with the number but the complainant failed to do so and whenever the engine Long Block is required to be replaced the same engine number gets punched on the replaced engine which was inadvertently missed out by the 2^nd opposite party. The replaced engine gets the same engine number as of the old removed engine already got embossed and hence there is no requirement of necessary endorsement or amendment in the R.C. Book.  The 2^nd opposite party initially raised the estimate at a cost of Rs.6,85,084.76 for replacement of engine and later, as a goodwill gesture reduced to Rs.4,59,007/- and the complainant paid only Rs.4,51,601/- towards engine replacement on 04.09.2014.  It is the prevailing practice that whenever discount is offered to any customer for replacement of parts, the replaced parts would be retained by the dealer/service provider in lieu of the discount provided to the customer and as such the replaced part of the car was retained by the 2^nd opposite party.  The vehicle Jetta purchased by the complainant was out of production from last three years and hence the engine block could not be provided as fully assembled manufacturing part and as such provided as spare part.  Since the complainant’s car was purchased 6 years ago and having run more than 60,000 kilometres, it cannot be said that the car was suffering from manufacturing defect.  The 1^st opposite party had not entered into any direct trade or contact with the complainant and hence there is no question of deficiency in service or unfair trade practice committed by the 1^st opposite party against the complainant.  This Commission has no territorial jurisdiction to entertain this complaint as against the 1^st opposite party as it is situate outside the purview of the territorial jurisdiction of this Commission. The complainant has filed this complaint with malafide intention to get unjust enrichment at the cost of the 1^st opposite party.  Hence the complaint has to be dismissed against the 1^st opposite party.  

 

3.       The 2^nd opposite party in his written version has contended as follows;-       The complainant purchased Volkswagen – Jetta – Sedan Car – Blue Colour bearing registration No.TN-05-AA6665 from the 2^nd opposite party on 02.05.2009 and it was being used by  the complainant for more than 5 years without any problem.  The car was serviced periodically by the 2^nd opposite party and during the period of service done the car had not suffered any problem.  On 04.09.2014, the complainant brought his car with the complaint of engine noise after the car having done around 61,000 K.M.s and on verification it was found that the engine required replacement and the same was informed to the 1^st opposite party and as the complainant was a valued customer and since the car was used for more than 5 years, it was decided to provide replacement of engine with heavy reduction for Rs.4,51,601/- including labour charges and other all taxes and accordingly the engine was replaced and the car was delivered on 03.11.2014 to the complainant on payment of agreed amount.  New engine was not fitted in the nature of “Original Equipment” instead a new imported engine was supplied as a “Spare Part“.  When the engine was replaced, the new engine would have retained the original engine number and accordingly the original engine number was punched on the engine as per the instructions of the 1^st opposite party.   If the original number is not retained in the new engine, the details already given in the R.C. Book would be varied.  Replacement of engine was done at a heavily discounted price and the old engine was retained as a salvaged part it was the property of the 1^st opposite party who provided replacement of engine. The complainant has alleged manufacturing defect in the engine of the vehicle after having done more than 61,000 K.Ms. The 2^nd opposite party was added as a party only to entertain the jurisdiction of this Commission and hence the complaint against the 2^nd opposite party is to be dismissed.   

4.      The complainant filed his proof affidavit reiterating the averments made in the complaint along with 9 documents which have been marked as Exhibits A1 to A9.  On the side of the 1^st opposite party, proof affidavit was filed along with 3 documents and the same were marked as Ex B1 to B3. The 2^nd opposite party has also come forward with his proof affidavit emphasising his contention made in his written version and filed 10 documents which have been marked as Exhibits B4 to B13.

5.        The points for consideration are

           1)    Whether the 2^nd opposite party has adopted any unfair trade practice and

                  committed any deficiency in service to the complainant? 

            2)   To what relief the complainant is entitled?

6.         Point No.1;-      The complainant would allege that he had purchased a new Jetta car from the 2^nd opposite party in 2009 and has been servicing the same with the 2^nd opposite party periodically and during September 2014 the car developed serious noise and when the same was referred to the 2^nd  opposite party it was initially diagnosed to have some clutch problem and finally diagnosed as engine problem i.e., engine block had developed a whole and hence the 2^nd opposite party sought the approval of the complainant to replace the old engine with a new one and the complainant had agreed for the same;- That even after a lapse of one year from the alleged date of replacement, the 2^nd opposite party had not returned the old engine to the complainant and hence the 2^nd opposite party had in fact not at all replaced the defective engine with a new one and instead carried out repairs in the old engine and illegally collected Rs.4,51,601/-  towards the cost of the new engine and that was the reason why the 2^nd opposite party has been refusing to issue a certificate regarding replacement of new engine in the place of the old engine so as to enable the complainant to get the factum of alteration recorded in the registration certificate of the car and hence the complaint.  

7.       The defence of the 2^nd opposite party is that the complainant had purchased a car on 02.05.2009 and the complainant was getting the same serviced periodically for 5 years and during the period of 5 years the car did not have any problem and when the car had done 61,000 kilometres it was brought to the 2^nd opposite party on 04.09.2014 with the complaint of engine noise and on verification of the car, it was found that the engine required replacement and as the complainant was treated as a valued customer the 2^nd opposite party had decided to replace the old engine with a new engine at heavily discounted price of Rs.4,51,601/- and after replacement the car was delivered to the complainant on 03.11.2014 and as the replacement was done at heavily discounted rate, the old engine was retained as salvage which became the property of the 1^st opposite party and as the car was used for 5 years without any major problem and as the car had done more than 60,000 kilometres there is no question of manufacturing defect in the complainant’s car.     

8.             A perusal of the complaint allegations would show that the complainant is not taking a clear stand as to whether he is entitled to get a sum of Rs.4,51,601/- being the cost of the new engine said to have been replaced on the ground that the old engine developed manufacturing defect and hence the opposite parties were bound to replace the old and defective engine with a new engine or on the ground that the 2^nd opposite party had not at all replaced any new engine as claimed and on the other hand had simply carried out repairs to the old one and falsely raised an invoice for Rs.4,51,601/- as if a new engine was replaced.   

9.         It is pertinent to note that warranty period was over and hence even if there was any manufacturing defect that got developed in the year 2014 i.e., 5 years after the car was purchased the opposite parties were not bound to replace the engine under the warranty.  Hence, it appears that the complainant had approved the proposal of the 2^nd opposite party to replace the old engine with a new engine as the old one developed some hole.  Hence, it was with the consent of the complainant a new engine was replaced in the place of old engine.   Now, the complainant would submit that as the 2^nd opposite party did not return the salvaged old engine of the complainant and had not issued any certificate regarding the replacement of a new engine, the 2^nd opposite party would not have replaced the new engine, instead, might have carried out some repairs in the old engine and fraudulently raised an invoice for Rs.4,51,601/-  being the discounted cost of the new engine.  This is one stand taken by the complainant in his complaint.  But in the very same complaint, the complainant had referred his email letter under Ex A5 dated 20.05.2014 whereunder he had in clear and categorical terms admitted that the engine was replaced even though it had developed manufacturing defect, he was made to pay for the replaced engine.  Hence, before filing of the complaint the stand of the complainant as reflected in Ex A5 email letter was that though the old engine developed manufacturing defect it was replaced by the 2^nd opposite party at a cost of the complainant.  Hence the complainant has been taking inconsistent stand as to the fact whether the 2^nd opposite party had replaced the old engine with a new engine or did not replace the old engine with a new one but carried out repairs in the old engine and falsely raised  an invoice for Rs.4,51,601/- as if new engine was replaced.  

10.       The complainant would base his presumption on two grounds,  one is if at all the 2^nd opposite party had replaced the old engine with a new engine then he could have easily issued a certificate of such replacement so as to enable the complainant to apply to the concerned authority for recording the alteration in the R.C.Book. The second point is that if at all the 2^nd opposite party had replaced the old engine with a new one as per the custom and practice prevailing in the trade the old engine should be handed over to the complainant.  

11.       The defence of the 2^nd opposite party to the first point is that whenever a new car rolls out of the manufacturing unit, Engine will be getting a unit number and the chassis would also get the new number and thereafter if for any reason the old engine has to be replaced either with a new engine or another old engine then no new engine number will be embossed on the new engine and the engine so fitted subsequently would carry the number of the old engine only.  We find acceptance in this argument alone.  A perusal of the provisions of the Motor Vehicles Act, 1988 and the rules made thereunder would show that there is only one section namely, section 52 regarding the alteration in the motor vehicle and this section does not contemplate assigning any new number to the engine to be fitted in the place of the old engine.   This section deals with how and when the alteration in the motor vehicle is undertaken.  For example, this section prohibits any owner of the motor vehicle from altering the vehicle without prior approval of the concerned authority.  Further, this section provides procedures for recording such alteration in the registration certificate of the vehicle concerned.  Hence, there is no provision in the motor vehicle Act, 1988 which requires a motor vehicle service provider to issue a certificate regarding the replacement of the old engine with a new engine and suffice to issue invoice towards the cost of the new engine.  Hence, the contention of the learned counsel for the complainant does not hold water.

12.          Regarding the 2^nd point that the 2^nd opposite party ought to have returned the defective old engine but not done so.  We find acceptance in the contention of the counsel for the complainant.  It is the clear case of the opposite parties that the car having run for 5 years and having done 60,000 kilometres when the defect developed and therefore it cannot be said to be a manufacturing defect and hence there was no legal liability under the agreement of warranty on the part of the opposite parties to replace the defective engine.  It is also the definite case of the opposite parties that the complainant being a valued customer and as a gesture of goodwill they had agreed to replace the old engine with a new engine at a heavily discounted price of Rs.4,51,601/-, though the actual cost of engine replaced was at Rs.7,80,000/-.   Hence, it emerges that the old engine in the complainant’s car was replaced by a new engine not under the warranty agreement.  It is also not in dispute that as per the terms and conditions of the warranty only salvaged parts which were replaced by the opposite parties under the cover of warranty could be retained by the opposite parties as they became the owner of the same.  As already stated the 2^nd opposite party had replaced the old engine with a new one not under the terms and conditions of the warranty.  Hence, once a new engine was substituted in the place of the old engine, of course, with a discounted price then the removed old engine should be returned to the complainant which he is entitled to get being the owner of the same.  Simply because the new engine was sold to the complainant at a heavily discounted price it does not mean that the salvaged old engine could be retrained by the 2^nd opposite party.  A perusal of the invoice in respect of the new engine under Ex B2 does not show that there was any condition mentioned in the said invoice to the effect that as the engine was sold at a heavily discounted price the salvaged old engine would become the property of the service provider.  Further, the revised engine estimation issued by the 2^nd opposite party under Ex A2 also does not contain any stipulation to the effect that the old engine would be retained by the 2^nd opposite party.  Hence, the 2^nd opposite party is bound to return the replaced old engine removed from the car of the complainant to the complainant.  

13.       The failure on the part of the 2^nd opposite party in returning the replaced old engine bearing No. BXEB 93860 despite several requests made by the complainant for the same would certainly amount to deficiency in service as regards the 2^nd opposite party is concerned and this point is answered accordingly.

14.         As there are no allegations of deficiency in service attributed to the 1^st opposite party either in the complaint or in the proof affidavit, we hold that the 1^st opposite party cannot be fastened with any deficiency in service.     

15.       Point No.2:- While answering the point No.1, we have held that the complainant himself had prior to the filing of the complaint admitted in his letter as if the old engine was replaced by a new engine and further that the engine developed defect after the warranty period was over and after the car had done more than 60,000 kilometres and as such the complainant is not entitled to relief of refund of Rs.4,51,601/-  being the cost of the new engine.  As regards the compensation the complainant had prayed for Rs.30,00,000/- as compensation for mental agony and hardship suffered by him.  While answering the point No.1, we have already decided that the failure on the part of the 2^nd opposite party in not returning the old engine after replacing with a new one alone would amount to deficiency in service and hence for this act of omission and the resultant mental agony alone the complainant is entitled to get compensation.  As already noticed the car had done more that 60,000 kilometres before the defect stood developed and the complainant has been using the car since 2009 till today and having taken into consideration of all these facts of the case, we are of the considered view that the complainant is entitled to get compensation of Rs.50,000/- and a further relief of direction to the 2^nd opposite party to return the old engine to him and this point is answered accordingly.  Though the complainant had not specifically sought for the relief of direction to the 2^nd opposite party to return the replaced old engine still this being a lesser relief we are of the view that this Commission has power to make some direction in this regard as per section 14 (1) (e) of the Consumer Protection Act 1986, and this point is answered accordingly.     

15.     In the result, the complaint is partly allowed directing the 2^nd opposite party

         (a) to return the old engine having engine No. BXEB 93860 removed from the complainant’s car bearing registration No.TN-05-AA-6665 and

          (b)  to pay a sum of Rs.50,000/- as compensation for mental agony and hardship caused to the complainant within 30 days from the date of this order, failing which the amount shall carry interest at the rate of 9% per annum from the date of default ill the date of realisation, and

           (c) to pay Rs.5000/- as costs to the complainant.

           The complaint as against the 1^st opposite party stands dismissed without costs.

            Time for compliance – 30 days

             

 

  K. BASKARAN,                                                                        S. TAMILVANAN,

JUDICIAL MEMBER.                                                                      PRESIDENT.  

 

ANNEXURE

Documents filed on the side of the complainant.

Ex   A1                     Proof of purchase of the car with RC

Ex   A2  04.09.2014   Proof of payment

Ex   A3  20.10.2014   Complainant’s letter

Ex   A4   07.11.2014  Complainant’s letter

Ex   A5   20.12.2014  Complainant’s Email

Ex   A6   20.12.2014  Response by the 2^nd opposite party

Ex   A7   08.09.2015  Complainant’s email reminder

Ex   A8   24.12.2015  Complainant’s notice with proof

Ex   A9   02.02.2016  E-mail reply addressed to the complainant   

Documents filed on the side of the 1^st opposite party

Ex   B1   21.06.2016   Copy of Board Resolution

Ex   B2   20.10.2014   Copy of Tax Invoice

Ex   B3                      Copy of pictorial description of Long Block

                    Documents filed on the side of the 1^st opposite party

Ex   B4   21.05.2016    Tax Invoice relating to service done after replacement of Engine                 

Ex   B5   14.06.2016    Tax Invoice relating  to service done after replacement of Engine  

Ex   B6   21.09.2016    Tax Invoice relating to service done after replacement of Engine Ex   B7   31.12.2016    Tax Invoice relating to service done after replacement of Engine                              

Ex   B8   05.12.2009    Tax Invoice regarding service done to carry out accident repairs

Ex   B9   10.04.2010    Tax Invoice regarding service done to carry out accident repairs

Ex   B10  22.01.2011    Tax Invoice regarding service done to carry out accident repairs

Ex   B11  06.07.2011    Tax Invoice regarding service done to carry out accident repairs

Ex   B12  22.12.2012    Tax Invoice regarding service done to carry out accident repairs

Ex   B13  05.11.2014    Tax Invoice regarding Engine Replacement

 

 

 

  K. BASKARAN,                                                                       S. TAMILVANAN,

JUDICIAL MEMBER.                                                                     PRESIDENT.