ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in selling a car with a manufacturing defect, and not refunding the value of the vehicle and for Rs.20,00,000/- being the cost of the vehicle, accessory spent to the vehicle, mental agony and towards cost of litigation and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; Complainant purchased  a Ford Ecosport (Trend-MT) from OP-1 by paying Rs.11,37,840/- by obtaining bank loan from Corporation Bank, Vasanthnagar Branch, Bangalore. The same was registered as KA-04 MX-4375, during February 2020. The said vehicle left with OP-2 for 1^st service on 27.05.2020. After the 1^st service there was a jerk in the engine of the vehicle and the same was reported to OP-1 and 2. Inspite of it, they did not and could not rectify the mistake. After about one month again, on 30.06.2020 when the complainant was going to his office at Malleshwaram, again there was a jerk in the engine of the vehicle while climbing an upgradient. At that time, the vehicle had covered 4000 kms. The same was brought to the notice of OP-1 and 2.  The vehicle was left with OP-1 and 2 for repair. Inspite of several repair, OPs could not get the problem solved.  Even when the vehicle had covered 7346 kms, the said problem arose and again it was left with OPs for repair.

3.     He was told that there was problem with wiring harness and the same was replaced. Again on 28.10.2020 when the vehicle was being driven by the complainant on the palace road near Windsor Manor Hotel, Bangalore when climbing inclined, started jerked severely and came to halt.  The response from the OPs to get the vehicle repaired is unsatisfactory he became upset and emotional. Ops have miserably failed to fix defect in the vehicle, in spite of keeping the vehicle for so many days. The vehicle is not even one year old and is still under warranty. The problem is a chronic which caused tremendous mental stress and agony which affected his business and lifestyle.  It is highly unbecoming for world renowned car manufacturer like OP-1 to treat the complainant in an insensitive manner. OP-1 accepted the liability and agreed to refund the invoice cost of the vehicle vide email dated:17.12.2020. Since he has spent nearly Rs.3,26,980/- on the accessories like seat upholstery, tyres, rim etc., after the purchase and made to endure the mental stress for several months and paying the EMI towards the loan amount which amount to Rs.1,80,554/- he demanded the same to which Ops are not ready to pay the said amount, and the compensation and the bank vehicle loan. Hence he had to issue a legal notice on 05.11.2020 demanding the above for which OP has not at all replied. Hence there is deficiency of service and unfair trade practice committed by the OPs. Hence the complaint.

4.     Upon service of notice, OP No.2 appeared before the commission through his advocate Sri KM Manjunatha Swamy and did not file the version inspite of obtaining several times. Hence after 45 days, the right to file the version was forfeited by this commission. OP-1 though received the notice through RPAD, did not appear nor contested the case and hence placed exparte.

5.     In order to prove the case, complainant filed his affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

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

6.     Our answers to the above points are:-

POINT NO.1 :   In the Affirmative.

POINT NO.2 :   Partly in the Affirmative.

                        For the following.

REASONS

POINT No.1:-

7.     On perusing the complaint, documents, evidence filed by the complainant, it becomes cleared that, complainant purchased the car for a sum of Rs.9,13,999/- being the cost of the vehicle from OP-1 and further has paid Rs.41,461/- being the insurance policy premium, Rs.1,14,480/- being the cost of the 16 Inch tyres and 16 Inch Rims. Further he has spent Rs.1,70,000/- to get original leather seats foam materials and high density threads. He has also paid Rs.40,000/- towards labour and fitting and Rs.2,500/- for leather polishing and conditions. Emails and the copy of the legal notice is also produced. Further the document produced by the complainant dated 17.12.2020 clearly states that OP-2 who has sold the vehicle has come forward to refund  Rs.11,24,394/- being the value of the car which includes the price, registration charges, insurance, extended warranty and other miscellaneous. Complainant has also produced the bank statement wherein he has paid Rs.16,414/- three times and Rs.614.47, Rs.65,300/-, Rs.65,656/- and Rs.356/- towards the loan which the complainant has borrowed to purchase the vehicle. 

8.     When the email dated 17.12.2020 is taken into consideration, OP has come forward to refund the amount of the vehicle. Though it has deserved its  right  i.e. “without admitting the liability and without setting any precedence that it has come forward to pay the amount” this commission can easily come to the conclusion that due to some inherent defect in the vehicle, OP has come forward to repay the cost of the vehicle. Otherwise, in the normal course, in view of the vehicle within the warranty period, it would have requested or insisted the complainant to avail the warranty benefits to get the vehicle repaired in all respect without offering of refund of the entire value of the car. Hence we have to draw an inference under the circumstances that, the said vehicle has and had an inherent manufacturing defect. Hence there is deficiency in service on the part of OPs in selling a defectively manufactured vehicle to the complainant. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

9.     The complainant is entitle for refund of the cost of the vehicle i.e. Rs.11,24,394/- along with interest at 12% per annum from 17.12.2020 i.e. the day on which the OPs expressed their desire to refund the amount till the date of payment of the entire amount. Complainant is also entitle for Rs.2,12,500/- being the additional fittings and refurbishing the vehicle. The complainant has sought for refund of the amount he has paid towards the loan borrowed by him from the bank in order to purchase the vehicle. In our opinion complainant is not entitle for the same as he is being refunded the entire amount of the vehicle which he purchased out of the loan amount he borrowed from the Union Bank of India (earlier Corporation Bank).  Further on several occasions OPs took several days to repair the vehicle to the satisfaction of the complainant and ultimately it could not do it.  During the said period the complainant was not having the service of his car for which, he has suffered both mentally and physically for which in the absence of supporting and convincing evidence we are of the view that, if a sum of Rs.25,000/- towards inconvenience and Rs.25,000/- towards damages and Rs.5,000/- towards litigation expenses if OPs are ordered to pay to the complainant would be just, proper and reasonable. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is allowed in part with cost.

2. OPs No.1 and 2 are jointly and severally hereby directed to pay a sum of Rs.11,24,394/- to the complainant along with interest at 12% per annum from 17.12.2020 till payment of the entire amount. OPs are also liable to pay Rs.2,12,500/- being the additional fittings and refurbishing the vehicle. After receipt of the refund of the amount as above, complainant is directed to return the vehicle KA 04 MX 4375 along with all upholstery and changes made to the vehicle intact within 15 days to OPs under receipt.

3. OPs further pay a sum of Rs.25,000/- cost for causing inconvenience and Rs.25,000/- towards damages as compensation and Rs.5,000/- towards cost of the litigation expenses.

4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 24^th day of November 2021)

MEMBER                  PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the warranty of the vehicle.

Ex P2: Copy of the proforma invoice.

Ex. P3: Copy of the Tax Invoice.

Ex P4: Copy of the Insurance Policy.

Ex P5: Copy of the tax Invoice dt:16.02.2020

Ex P6 & P7:  Two receipts dtd 23.02.2020 & 26.02.2020

Ex P8: Email correspondences.

Ex P9: Copy of the legal notice.

Ex P10: Acknowledgement.

Ex P11: Copy of the Bank statement for having paid the EMIs.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:- Nil-

Copies of Documents produced on behalf of Opposite Party/s

- Nil-

MEMBER                        PRESIDENT

RAK*