BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
C.C.No.34/2012
Between :
Jupudy Venkataramana Murthy,
S/o.late Jupudy Jagannadha Rao,
# 8-6-1/4,Nallam Bheema Raju Veedhi,
T.Nagar, Rajahmundry- 533 101,
East Godavari District. …Complainant
And
1.Skoda Auto India Private Ltd.,
Represented by its Managing Director Mr.Sudhir Rao,
A-1/1, M.I.D.C.,
Five Star Industrial Area, Shendra,
Autrangabad-431 201.
2. Mahavir Auto,
Represented by Mr.Yeshwanth Jhabakh,
Managing Director,
# 6-3-907, Somajiguda,
Hyderabad- 500 082.
3. Mahavir Auto,
Sy.No.250/11-NH5, Next to Gowtham College,
Gudavalli , Vijayawada- 521 104 A.P.
Rep. by its Managing Director,
Mr.Yashwanth Jhabakh …Opp.parties
Counsel for the complainant : M/s. Syed Naimullah
Counsel for the opp.parties : Mr.A.P.Venugopal
QUORUM: SMT.M.SHREESHA, HON’BLE INCHARGE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMER.
WEDNESDAY, THE TWELFTH DAY OF JUNE
TWO THOUSAND THIRTTEEN.
Oral Order: (Per Sri S.Bhujanaga Rao, Hon’ble Member)
***
The complainant filed the Consumer Complaint u/s.17(1)(a)(i) of the Consumer Protection Act, seeking direction to the opposite parties 1 and 2 to replace the vehicle Scoda Yeti bearing registration no.AP5BT 6666 with engine no. AP CLC 005456 with new vehicle of the same variant or to refund the cost of the vehicle along with damages, to pay a sum of Rs.10 lakhs with interest at 12% p.a. from the date of the complaint, to the complainant towards damages for causing mental agony and humiliation and to pay costs of the litigation.
The case of the complainant as set out in the complaint in brief is as follows:
The complainant purchased the vehicle by name ‘Scoda Yeti Elegance’ 2.0 CRDI 4 x 4 from its manufacturer opp.party no.1 through its dealer opposite party no.2 for a sum of Rs.16,87,958/-, excluding life tax of Rs.1,80,000/- and insurance of Rs.75,000/- on 6.1.2011, through invoice no.HYD-2010-11/YD-000026, by obtaining finance from Sundaram Finance Limited. Within three months from the date of purchase of the said vehicle, on 13.4.2011 the vehicle broke down on the way from Kakinada to Rajahmundry near Bharat Petroleum Gas Station at Rangampeta. Thereupon, the complainant had informed the showroom of opposite party no.2, Visakhapatnam as to the break down of the vehicle and on such complaint, the engineer had came down to inspect the vehicle. The deputed engineer, without examining the cause of breakdown by identifying the actual technical snag of the vehicle, haphazardly concluded that the diesel used in the vehicle is adulterated one mixed with water and holding the same to be the reason for breakdown. Based on such haphazard findings given by the deputed engineer, the opposite party no.2 had refused to take the vehicle for repair, but on the insistence of the complainant, the vehicle was shifted to Visakhapatnam to the workshop of opposite party no.2 in a lorry.
After taking the vehicle to its work shop in Visakhapatnam, instead of correcting the vehicle at its expense or replacing the same for the inherent manufacturing defects, to the dismay and shock of the complainant, the opposite party no.2 had come forward with lame excuses through its e-mail dt.19.4.2011 alleging therein that the breakdown was due to heavy contamination of the fuel and as a result, the fuel system needs replacement along with other consumable, asking the complainant to inspect their showroom and arrange the amount to repair the vehicle. Having got shocked by revelation of the opposite party no.2, the complainant had contacted the authorities of M/s.Bharat Petroleum Corporation to verify the purity of the diesel, supplied to the fuel station and thereupon, the officer of Bharat Petroleum Corporation Ltd. inspected the fuel station at Rajanagaram and had taken the sample for testing and on examination, it was certified that the fuel at that fuel station meets standard qualities and that it meets requirements of high speed diesel. Even though copy of certificate issued by M/s.BPL was supplied to the opposite party no.2, it had refused to accept the same and were adamant to replace the vehicle, though the vehicle is having inherent manufacturing defect and the warrant period was subsisting as on that date. The vehicle was still kept at the showroom of opposite party no.2 unattended, since the problem with the vehicle is inherent due to defective manufacturing. Despite the multiple demands for replacement of the vehicle or alternatively return the cost of the vehicle along with damages, the opposite parties 1 and 2 are deliberately avoiding to respond. Thus opposite parties 1 and 2 have cheated the complainant by delivering the defective vehicle without proper inspection before delivery of the vehicle, in addition there to when such defect had surfaced, opposite parties 1 and 2 had failed to fulfill their promise to deliver the best quality vehicles to their consumers. The complainant is entitled for replacement of defective vehicle with new vehicle of same specifications or alternatively refund the money invested on the vehicle along with damages and interest there on. Hence the complaint.
Resisting the complaint, the opposite parties 2 and 3 filed their written version denying the material allegations made in the complaint while admitting that the complainant had purchased Scoda Yeti car from the opposite party no.2 which has its branches at Visakhapatnam and Vijayawada.
These opposite parties further contended that the reason attributed by the service engineer, who attended the complaint on behalf of the workshop of opposite party no.2 at Visakhapatnam being the nearest station, concluded the preliminary examination of the vehicle at the site and came to the conclusion that the vehicle had broken down due to usage of adulterated diesel. Infact on that particular ground itself, the vehicle was refused to be taken for repairs as it was neither manufacturing defect nor deficiency could be attributed to the opposite parties herein with regard to service. Being the dealer of opposite party no.1 and being burdened with the moral responsibility, officially put on record the reason for the breakdown, the opposite party had takenup the vehicle and intimated the complainant that the vehicle could be repaired at his own cost, as the breakdown of the vehicle does not fall within the parameters of terms of warranty as detailed in the owner’s manual. These opposite parties further contended that the complainant himself had brought the vehicle to the work shop of opposite party no.2 at Visakhapatnam 14.4.2011 and on further examination, it was observed by the technicians that there was very high sludge formation in fuel filter, fuel filter housing, regulating valve and delivery unit beyond permissible limits, due to which, the fuel system was completely choked. A request was also made to the complainant to join for a joint inspection, so as to enable the opposite parties herein to explain the damages caused and rectification measures to be initiated. It was also intimated that the repairs to be undertaken cannot be covered under warranty and will be charged. As the complainant had failed to give approval for undertaking the repairs, the fuel taken out of the vehicle of the complainant had been sent for expert opinion/laboratory verification by opposite parties herein, subsequent to filing of the complaint and the report is awaited. The report purported to have been issued by Bharat Petroleum Corporation Ltd. dt.7.5.2011, said to have been collected on 13.4.2011 in respect of sample received by them on the same day i.e. 7.5.2011. These opposite parties are doubting the genuineness of the said report. The vehicle could not be repaired as the complainant has not given his approval for undertaking the repairs and refused to cooperate, alleging manufacturing defects which are not true and correct, in view of the facts narrated above. Therefore, there is no deficiency in service, much less manufacturing defect, as such, the complaint is liable to be dismissed with costs to these opposite parties.
Opposite party no.1 filed memo adopting the written version filed by opposite party nos. 2 and 3.
During the course of enquiry, the complainant filed his evidence affidavit reiterating his case as set out in the complaint, along with documents, which are marked as Exs.A1 to A6. On behalf of the opposite parties, one Parsva Kumar Jhabhak, the Managing Director of opposite parties 2 and 3 herein filed his evidence affidavit and marked Exs.B1 to B3.
We heard the counsel for both the parties and perused the entire material on record including the written arguments filed by the counsel for the complainant .
The points that arise for consideration are:
1). Whether there is deficiency in service e on the part of the opposite parties?
2. Whether the complainant is entitiled to the relifs sought for?
3. To what relief?
Point nos.1 and 2: It is an admitted fact that the complainant had purchased ‘Scoda Yeti Car’ from the opposite party no.2 herein, which has its branches at Visakhpatnam and Vijayawada, on 6.01.2011, for a price of Rs.16,87,958/- excluding life tax of Rs.1,80,000/- and insurance of Rs.75,000/- through invoice no.HYD-2010-11/YD-000026 by obtaining finance from Sundaram Finance Limited. The said fact is also proved by Ex.A1 invoice dt.6.1.2011.
It is also an admitted fact that the vehicle broke down on 13.4.2011( within 3 months from the date of purchase) at Bharat Petroleum Gas Station at Rangampet, East Godavari Dist. and that attempts made to start the vehicle also failed and that on the complaint given by the complainant, the service engineer of the opposite party no.2 at Visakhapatnam attended the complaint and concluded the preliminary examination of the vehicle at the site and came to the conclusion that the vehicle had broken down due to usage of adulterated diesel. As is evident from Exs.A3 and A4 E-mails to the complainant by opposite parties 1 and 2, the vehicle was towed to the work shop of opposite party no.2, on 14.4.2011, in a truck, by the complainant himself after breaking down near Rajahmundry.
The case of the opp.parties is that after further examination of the vehicle, apart from the preliminary examination of the vehicle at the breakdown site , it was observed by the technicians that there was very very high sludge formation in fuel filter, fuel filter housing, regulating valve and delivery unit beyond permissible limits, due to which, the fuel system was completely choked. The breakdown of the vehicle was therefore due to using of adulterated fuel and there are no mechanical and manufacturing defects in the vehicle, therefore there is no deficiency in service on the part of the opposite parties. They further contended that though the vehicle is still under warranty period, the repairs to be undertaken cannot be covered under warranty and will be charged.
The complainant denied the above case of the opposite parties and contended that the breakdown of the vehicle is not due to contamination of fuel as alleged by the opposite parties, rather due to some technical snag or defective manufacturing and as such, the repairs to be undertaken under the warranty.
In view of the contentions of both the parties the whole controversy in this case is whether the vehicle has any inherent manufacturing defect for which the opposite parties are liable to replace it at their own cost or whether the breakdown was as a result of filling the fuel at fuel station at Rajanagaram.
To disprove the contention of the opposite parties that the fuel filled in the vehicle from the fuel station at Rajanagaram is adulterated and breakdown of the vehicle was not due to adulterated fuel, besides his evidence affidavit, the complainant filed Ex.A2, Quality Assurance Laboratory Test Report dt.7.5.2011 issued by Bharat Petroleum Corporation Ltd. As seen from Ex.A2, the date of sampling was on 13.4.2011 and the sample was received and analyzed on 7.5.2011 and the report was given on the same day. As per Ex.A2, the findings are that the sample meets the requirements of high speed diesel (BSIII) and tests were carried out as per IS 1450-2005( latest version). On the request of the complainant to verify the purity of the diesel supplied to the fuel station, the authorities of M/s. Bharat Petroleum Corporation Ltd. visited the fuel station at Rajanagaram and had taken the sample for testing and on examination, it was certified as above. The copy of Ex.A2 was supplied to opposite party no.2, but it had refused to accept the same on two grounds, firstly that the fuel station at Rajanagaram by name M/s.Jupudi Parthasaradhi belongs to kith and kin of the complainant as it matches with the surname of the complainant and secondly that the report of M/s.Bharat Petroleum Corporation is incorrect since the sample was received at 11.15 a.m. and the test report has been issued at 11.22 a.m. i.e. within 7 minutes. Simply because the surname of the fuel station at Rajanagaram tallies with the surname of the complainant, it cannot be concluded that the fuel station at Rajanagaram by name Jupudi belongs to kith and kin of the complainant. It requires some more evidence, which the opposite party did not adduce, to prove the alleged relationship between the owner of the fuel station and the complainant. That apart, no prudent person will get the vehicle to fill with adulterated fuel at fuel station owned by their own kith and kin and thereby inviting self trouble and financial loss to himself. Thus, the allegation that the fuel station belongs to kith and kin of the complainant is imaginary one without any substance or proper footing to stand and is not acceptable. Now coming to the second objection, the learned counsel for the complainant drawn our attention as to how the purity of the diesel tested in a lab, the simple procedure followed in a laboratory is described hereunder:
Method of Purity Test: Mix Acitic Acid 5 ml and Amiline 2 ml. dissolve this solution in 15 ml of diesel, shake well, after 3 minutes, 2 to 3 drops of Golden Yellow Colour will be formed at the bottom of test tube. If it so means the diesel is pure”
The opposite parties have not disputed the above said method of purity test. Therefore, in view of the simple method of testing, the purity of the diesel which hardly takes 3 minutes to get the results, the objection raised by the opposite parties that within 7 minutes, test result has come, therefore entitle for benefit of doubt, does not hold water at any stretch of imagination.
Further, on one hand, opposite party no.2 admits the fact that the complainant had filled his vehicle with fuel at the fuel station at Rajanagaram which belongs to Bharat Petroleum Corporation, but however in the same breath disputes certificate issued by the very own supplier to the fuel station. If really there was any contamination of fuel or mix of water in the diesel in the fuel station at Rajanagaram, some other vehicles which were filled with the fuel at that station must have broken down. Except the complainant, nobodyelse reported any complaints of contamination of fuel who filled fuel from that fuel station at Rajanagaram. It is not the case of the opposite party no.2 that on 13.4.2011 the complainant’s vehicle was only the vehicle that had filled the fuel at that fuel station nor the opposite parties’ claim that there are other number of vehicles also broken down due to contamination of fuel. Therefore, the contention of the opposite parties that due to filling of contaminated fuel at the fuel station at Rajanagaram, the vehicle broke down is not sustainable or tenable on any ground. There is no reason as to why M/s.Bharat Petroleum Corporation, which is an independent agency with no vested interest, issue false certificate. Therefore, we are of the view that the complainant proved Ex.A2 certificate.
To substantiate its claim that the vehicle was filled with adulterated fuel, the opposite party filed Ex.B1 copy SGS Laboratories , a private organization . A perusal of Ex.B1 depicts that the samples were received on 6.8.2012 and analysed on 8.8.2012 i.e. about four months after the incident of breakdown of the vehicle. Admittedly, the vehicle was under the custody of the opposite parties from 13.4.2012. The opposite parties have not explained as to why they have not sent the sample of fuel for testing immediately after taking the vehicle into their custody, and sent the sample four months after the date of breakdown. Even assuming that the fuel sent for testing is taken from the vehicle of the complainant, after four months many chemical changes might have appeared in the fuel due to atmospheric effects and non storing of the fuel in tested conditions. Absolutely there is no evidence on record to show that the fuel sample tested by M/s. SGS Laboratories was taken from the vehicle of the complainant. Therefore, the contention of the complainant that the opposite parties have obtained Ex.B1 report four months after break down of the vehicle is an after thought, cannot be brushed aside. Therefore, under these circumstances, we are not inclined to accept Ex.B1 report in proof of the contention of the opposite parties , that the vehicle of the complainant was filled with adulterated fuel at the fuel filling station at Rajanagaram.
Even if it is assumed that the vehicle was filled with adulterated fuel, it is a matter of commonsense and wisdom that the vehicle with the adulterated fuel would run for certain distance and thereafter develops knocking in the engine and thereby breaks down after travelling some distance, but however, in the instant case, admittedly, the vehicle broke down right infront of the fuel station at Rajanagaram without even travelling any distance. Therefore, we are not inclined to accept the contention of the opposite parties 2 and 3 that the breakdown of the vehicle was caused due to contamination of fuel.
The opposite party no.1 being the manufacturer is proper party to speak to the fact that there is no manufacturing defect which led to the breakdown of the vehicle so abruptly within 3 months from the date of purchase. But, however, in the instant case, the very manufacturer opposite party no.1, as rightly submitted by the learned counsel for the complainant, had preferred to maintain stoic silence, leaving the entire burden upon its dealers opposite parties 2 and 3 to explain the reasons of breakdown of vehicle so early from the date of purchase. Opposite party no.1 did not file its written version disputing the allegations made in the complaint and an affidavit that the vehicle does not have any inherent manufacturing defects by examining its automobile engineer.
Undisputedly, the vehicle is under the custody of opposite parties 2 and 3 since the time it was shifted to their work shop on 13.4.2011. The opposite party no.1 did not care to depute an automobile engineer from its manufacturing plant to inspect the vehicle to ascertain the reason for such a sudden breakdown, but rather had left the vehicle in the care and custody of the service engineers of opposite parties 2 and 3. In case of breakdown of the vehicle within 3 months of purchase and much before expiry of the warranty period as in this case, the obligation is cast upon manufacturer to examine and ascertain the actual causes of breakdown, rather than leaving it to be as the job of dealer or a service engineer, who are not at all competent to evaluate the actual reasons for which the vehicle broken down. In the absence of examination of the vehicle by a competent automobile engineer, there cannot be high handed conclusion by the service engineers of the dealers opposite parties 2 and 3 as to the cause of breakdown is adulterated fuel alone. When the vehicle is being in the custody of opposite parties 2 and 3 for about a year, why no steps were being taken to send the vehicle for inspection by an automobile engineer is uncomprehended.
In view of the above facts and circumstances, we are of the view that there is deficiency in service on the part of the opposite parties 1 and 2 only and there is no deficiency of service on the part of opposite party no.3 and that the sudden breakdown of the vehicle was due to some inherent manufacturing defect but not due to filling of the vehicle with the fuel from the fuel station at Rajanagaram as claimed by the opposite parties.
Therefore, the opposite parties 1 and 2 are jointly and severally liable either to replace the vehicle with new one or to refund the total cost of the vehicle Rs.16,87,958/- which is rounded off to Rs.16 lakhs having regard to the depreciation of the vehicle for using the same for a period of three months by the complainant.
It is an admitted fact that the vehicle towed to the works shop of opposite parties 2 and 3 at Visakhapatnam after breakdown at the filling station at Rajanagaram. It is the case of the complainant that as a result of sufferance of the complainant, due to sudden breakdown of the vehicle after purchase of such high priced vehicle by taking finance from Sundaram Finance by paying high EMIs, the complainant’s saga of sufferance is untold. Since he suffered loss not only financially by paying EMIs for un-used vehicle kept in the work shop of opp.parties 2 and 3, for the last one year, but also had to bear additional expenditure in arranging the vehicle for his daily commuting and that he shall also subjected to mental agony and hardship. Under these circumstances, we are of the considered view that the opposite parties 1 and 2 are also jointly and severally liable to pay compensation to the complainant.
In the result, the complaint is allowed in part directing the opposite parties 1 and 2, jointly and severally to replace the vehicle ‘Skoda Yeti’ bearing registration no.AP5BT 6666 with engine no. AP CLC 005456 with new vehicle of same variant or in the alternative to refund the cost of the vehicle i.e. Rs.16 lakhs as arrived at above, along with interest at 12% p.a. from the date of the complaint till the date of realization, to the complainant. The opposite parties 1 and 2 are also directed to pay a sum of Rs.1,00,000/- along with interest at 12% p.a. from the date of the complaint till the date of realization towards compensation and Rs.5000/- towards costs of the complaint, to the complainant. The complaint against opposite party no.3 is dismissed without costs. The opposite parties 1 and 2 are directed to comply with this order within six weeks.
INCHARGE PRESIDENT
MEMBER
APPENDIX OF EVIDENCE
Witnesses examined
For the complainant : nil For the opp.parties: nil
Evidence affidavits of complainant and
Opposite parties filed.
Exhibits marked on behalf of the complainant :
Ex.A1 : Invoice dt.6.1.2011 issued by opp.party no.2
Ex.A2 : Test Report dt.7.5.2011 issued by Bharat Petroleum
Corporation Ltd. to Jupudy Parthasarathy Filling Station,
Rajanagaram.
Ex.A3 & A4 : E-mails dt.19.4.2011 and 28.4.2011.
Ex.A5 : Lr. dt. nil from opp.party to the complainant.
Ex.A6 : Registration certificate issued by Govt. of India
Ministry of Commerce and Industry, Dept. of Commerce
Directorate General of Supplies & Disposals.
Exhibits marked on behalf of the opp.parties :
Ex.B1 : Certificate of analysis issued SGS Laboratories
Ex.B2 : Original C.D recorded by technicians of opposite parties.
Ex.B3 : Job Card (Query PDF Complete)
INCHARGE PRESIDENT
MEMBER
Pm* Dt. 12.06.2013
