F.A.No.203 OF 2012 AGAINST C.C.NO.1137 OF 2010 DISTRICT FORUM-I HYDERABAD

Between:

1.   M/s rep. by its Proprietress,  

2.   Mrs Hyderabad

3.   Mr.D.S.Reddy S/o Jubilee Hills, Hyderabad

                                                                                                                                                                        Appellants/complainants

1.   Volkswagen India (P) Ltd., E-1, MIDC Industrial
Area (Phase-III) Village: Managing Director,

2.   Volkswagen Group Sales India Private Ltd.,
3 North Avenue Level 4, Maker

3.   Automotive Manufacturers (P) Ltd., rep. by its Executive
Director Secunderabad-003

4.   Orion Motors, Hyderabad a division of Automotive
Manufacturers (P) Ltd., rep. by its CEO, having its
Office at Plot No.565/B, Road No.92, Jubilee Hills
Hyderabad-033, rep. by

5.   Mr.Jorg Muller, President, Group Chief Representative
On India and Managing Director, Volkswagen Group Sales India
Pvt. Ltd., 3 North Avenue, Level 4, Maker

6.   Mr.Malik Stephen, Managing Director of Volkswagen Group Sales
Volkswagen Groups Sales India Mumbai, Maharashtra-052

7.   Mr.K.K.Swamy Managing Director and Vice President Village:

8.   Mr.Lutz Public Relations, E-1, MIDC Industrial Area (Phase-III)
Village:

9.   Mr.Neeraj Village:

 10            Off: Plot No.565/B Road NO.92, Jubilee Hills
    Hyderabad-033

                                            Respondents/opposite parties

Counsel for the Appellants             M/s                  

Counsel for the Respondents         M/s                                                 M/s

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY THE TWENTY FIRST DAY OF JANUARY

                                TWO THOUSAND THIRTEEN

Oral Order (As per Sri

                                        ***

1.             The unsuccessful complainants are the appellants.

2.             The brief facts of the case  as seen from the complaint are that the complainants booked Polo Car-Diesel version on 21.4.2010 by paying an amount of `50,000/-.  On 9.7.2010, the opposite parties delivered Volkswagen Polo Diesel car with temporary Registration No.AP-10-TS-TR-8601.  The choice of   After the delivery of the car the complainant no.3 drove the vehicle on 9.7.2010 and found that there was a rattling/cracking engine sound and   As it was Friday, the complainants were asked to drive the vehicle for two days and return on Monday the 12^th July 2010 in case if the problem persists.  As the problem was still subsisting the complainants visited the opposite parties on 12.7.2010 and complained of the problem.  The opposite parties took a test drive of the car and  the complainants to drive the vehicle for another day as it was only stabilization problem of a new car. 

3.             As the problem was still persisting the complainants visited the opposite parties.  The opposite   Even after 3 days, the car was not repaired.  The complainants sent email to the opposite parties on 18.7.2010.  There were no response from the opposite parties and the complainants got issued notice dated 26.7.2010 to the opposite parties.  The complainants had spent `7  The pre and post-delivery stickers caused false representation by the opposite parties.  The to incur expenditure of `5,000/- per day for an alternative car since 14.7.2010.  The complainants are not in a position to buy an alternative new car.  The vehicle was purchased by obtaining loan of `5 lakh from Bank of Baroda, `.2 

4.             The opposite parties no.1 and 2 who are the manufacturers of the car resisted the case contending that they did not sell the car in question to the complainant.  The opposite parties no.3 and 4 being the sellers sold the car to the complainant.  The documents filed by the complainant do not disclose as to how opposite parties no.7 and 8 are involved in the matter.  The complainant having purchased the car from the opposite party no.3 cannot make allegations against the opposite parties no.1 and 2 without any basis.  There is no privity of contract between the opposite party no.1 and the complainant.  There is no cause of action against the opposite parties no.1 and 2.

5.             The opposite parties no.3 and 4 equally resisted the case contending that the complainant no.2 had brought the vehicle to the opposite party no.4 for the first time on 14.7.2010 with a problem of engine noise and misfiring.  The opposite party no.4 immediately attended to the problem and requested the complainant no.2 to take delivery and the complainant no.2 refused to take delivery and demanded for replacement of the car.  The opposite party no.4 offered a courtesy car to the complainants during the time of vehicle kept for inspection.  The complainant no.2, having failed to take back her car she is estopped from demanding damages and payment of interest on the car loan.  The opposite party no.4 as a matter of goodwill had agreed to consider to the request of complainant no.2 and efforts were made to arrange for   The complainants have filed private complaint before the III ACMM, Hyderabad on the grounds of cheating etc.  The opposite parties no.3 and 4 filed writ petition in High Court seeking quashing of the criminal proceedings. 

6.             The opposite parties no.5 to 10 had not chosen to contest the claim. 

7.             The complainant no.3 filed his affidavit and the documents Exs.A1 to A6.  On behalf of the opposite parties, the Legal Officer of the first opposite party and the Authorized signatories of opposite party no.2, 3 and 4 filed their affidavits and the documents, Exs.B1 to B10.

8.             The District Forum dismissed the complaint on the premise that the complainant failed to prove any manufacturing defect in the car and the District Forum held that there were no major defects found in the engine of the car.

9.             Feeling aggrieved by the order of the District Forum, the complainants have filed the appeal contending that the complainants handed over the car to the opposite parties for inspection and there was no communication whether the defect was rectified which shows that the vehicle was defective and that the opposite parties have not communicated whether the vehicle was repaired.  It is contended that the opposite parties not adduced evidence to show that the vehicle originally delivered to the complainants was made ready which goes to show that the opposite parties suppressed the defects in the vehicle.  It is contended that the question of expert’s opinion would arise when the opposite parties denied that the vehicle had not posed problems.

10.            The point for consideration is whether the order of the District Forum suffers from

11.            The third complainant has stated that they booked on 21.4.2010 Polo car diesel version by making payment of Rs.50,000/- to the opposite parties no.3 and 4.  The car was manufactured by the opposite party no.1.  The opposite parties no.3 and 4 delivered the car on 9.7.2010 to the complainants, with temporary registration no.AP10-TS-TR-8601 bearing chassis No.WVWF10608AT004456 and engine no.CFW005131.  The complainant states that they sought for pepper gray   The opposite parties no.3 and 4 have denied that they had compelled the complainants to purchase black   The affidavit of the complainant no.3 and the authorized signatory of opposite   As such the other documents placed on record such as email would help to come to the conclusion  the opposite parties no.3 and 4 exercised influence upon the complainant to accept the car of black  

12.            The email does not indicate that the opposite parties no.3 and 4 had compelled the complainant no.3 to accept black   However, the email would disclose the intention of the complainant to purchase a   The

13.            The complainant no.3 has stated that he drove the vehicle on 9.7.2010 and after driving it on a short trip he returned the car to the opposite parties and complained that there was a rattling engine sound and the opposite parties no.3 and 4 requested him to drive the vehicle for two more days and return it on 12.7.2010 provided  the problem would persist and on 12.7.2010 he informed the opposite parties no.3 and 4 that the problem was persisting whereon a test drive of the car was conducted by the opposite parties no.3 and 4 and they informed the complainant no.3 that  it was stabilization problem of new car and accordingly the complainant no.3 had taken the vehicle.

14.            The opposite party no.3 would state that the vehicle passed through stringent quality tests and safety tests and safety standards set by Volkswagen before delivering it to the opposite party no.4.  The opposite party no.4 had denied that the complainant no.3 made complaint that there was rattling engine sound and that opposite    The opposite party no.4 had stated that for the first time the complainants have brought the car on 14.7.2010 complaining of engine noise and misfiring.  The opposite party no.4 in coordination with the sales team of opposite party no.1 requested the complainant no.2 that the problems of the vehicle was attended and the complainants can take delivery of the car for which the complainant no.2 refused to take delivery of the car and demanded for replacement of car with a new car.   Instead of taken back the car, the complainants filed the complaint with intention to enrich themselves. 

15.            The complainants submit that the car sold to them was defective and they sought for replacement of the car with a new car and with extended warranty whereas the opposite parties no.3 and 4 would contend that the has not suffered any manufacturing   other defects and the problem complained was attended to and complainant failed to take delivery of the car. 

16.            The complainant no.3 in email dated 18.7.2010 demanded for refund of the amount paid by them on the premise that they faced humiliation with the rattling engine noise of the new car and the complainant’s got issued notice on 26.7.2010 reiterating their demand for refund of the amount with interest and complaining that the car was defective and it was still at the workshop with unresolved engine problem. 

17.            The opposite parties issued job card which goes to show that the car posed engine noise while driving as also misfiring and it is seen from the job card that the problem was attended.  The opposite party no.4 has addressed letter dated 25.8.2010 and email on 19.7.2010.  Through the email the opposite parties offered the service of their loaner vehicle to the complainants and the loaner vehicle offered is also a Volkswagen Jetta vehicle.  The loaner vehicle was offered to the complainant for the period during which the vehicle purchased by the complainant was with the opposite parties no.3 and 4 for the purpose of repair.  The complainant refused to receive the loaner vehicle.  The opposite party no.4 through the letter informed the complainant that the car was ready to be delivered and requested the complainant to take delivery of the car.  As against the contents of the letter, the complainants contend that they were not informed that the car was repaired on a particular date and the failure of the opposite parties no.3 and 4 to inform them about the repair of the car would be an inference show that the car suffered major defects. 

18.            The District Forum referring to the decisions of the   The learned counsel for the complainant has contended that the question of examining an expert would arise in the event the opposite parties had denied the statement of the complainants that the car was defective and suffered from manufacturing defect.

19.            The opposite parties no.1 to 4 have denied any manufacturing defect in the engine of the car.  It is established that on the day one of its purchase the car sold to the complainants posed rattling engine noise and misfiring when the vehicle was driven.  However, the opposite parties no.3 and 4 made it clear that the car has not suffered any defect much less major problem and in the circumstances, the finding returned by the District Forum as to the car sold to the complainants by the opposite parties no.3 and 4 has not suffered by any manufacturing defect is sustainable. 

20.            From the point of complainants’ view, no person would like to purchase a car that poses rattling engine noise and misfiring while in driving on the very first day of its purchase.  The inconvenience a person would experience on driving the car making noise can be imagined and the complainants intention and request for replacement of the car with a new car is held justified and also it can be gauzed from the expression of readiness on the part of the opposite party no.4 to replace the car with a new car of the  

21.            The authorized signatory of the opposite parties no.3 and 4 in his affidavit has stated that as a goodwill gesture the opposite party no.4 would make arrangement for replacement of the car with a new car of pepper gray   He has stated that “in fact there was no situation warranting replacement of the car.  However, as a matter of goodwill, the opposite party no.4 herein had agreed to consider to the request of the complainant no.2 as a special case and efforts were made to arrange for pepper gray   He has stated that the complainants made unreasonable demand for delivering highline model in the place of comfort line model and exercising their influence, the complainants had filed criminal case before III ACMM Hyderabad for quashing of which the opposite parties no.3 and 4 filed writ petition in the High Court.

22.            In the absence of any evidence to show that the car purchased by the complainants suffered from manufacturing defect the complainants cannot be held entitled to refund of the amount paid by them towards the cost of the car.  However, in the light of the offer extended by the opposite party no.4 and confirmed by the opposite party no.2, we are inclined to hold the complainants entitled to replacement of the car purchased by the with a new car.  The opposite parties no.2, 3 and 4 have stated that the complainants had not shown interest for replacement of the car purchased by them with the same comfort line model.  The complainants cannot expect replacement of the car with highline model.

23.            The first complainant is a proprietary concern of which the second complainant is the proprietor.  The first complainant being a proprietary concern cannot be heard to say that it suffered mental tension on account of the car being sent to the opposite party no.4 for the purpose of the repairs.  The complainant no.3 is not the person who purchased the car or the complainant no.2 who is the proprietor of the first complainant concern has not filed her affidavit to show that the car sold to the first complainant concern was not the car of its choice or it suffered manufacturing defect causing inconvenience to the first complainant for the period during which the car was repaired by the opposite party no.4.  It is pertinent to note that the opposite party no.4 had sent email and also a letter on 25.8.2010 and prior to that it had informed the complainants that the car was repaired and can be taken delivery of it.

24.            The complainants opted for replacement of the car which is a comfort-line model with a new car of highline model.  The complainants, in the circumstances, have to pay the difference amount i.e., the cost of highline model minus the cost

25.            In the result the appeal is allowed by setting aside the order of the District Forum.  Consequently the complaint is allowed directing the opposite parties no.1 to 4 to replace the car with new polo Volkswagen highline model of   The costs of the proceeding throughout quantified at `5,000/-.  

                                                                        MEMBER

                                                                        MEMBER

                                                                   Dt.21.01.2013

KMK*