BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 20th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.75/2014
(Admitted on 03.03.2014)
Mr. Mohammed Ashraf,
S/o Mr. Ismail P,
Aged 30 years,
Residing at G 3,
La Merdian, Near KMC
Mens Hostel,
Kaprigudda New Road,
Mangalore 01.
(Advocate for the Complainant: Sri MSSP)
VERSUS
1) M/s SKODA AUTO INDIA PVT LTD,
A.1/1, MIDC,
Five Star Industrial Area,
Shendra,
Aurangabad 431 201,
Represented by its Authorized Signatory.
2) TAFE ACCESS LTD,
Deo Gratias,
Chilimbi, Urwastore,
Mangalore 575 006.
Represented by its Authorized Signatory.
…..........OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1: Sri SN)
(Advocate for the Opposite Parties No.2: Sri UPM)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims on 19.3.2012 he purchased a new car by name Skoda Laura of 2012 model for about Rs.17,00,000 manufactured by opposite party No.1. Opposite party No.2 is the authorized dealer for sale service office of opposite party No.1. When on 15.10.2013 complainant was driving his car at a place called Nada the car suddenly stopped and in spite of several efforts of complainant the engine did not start. Then immediately complainant gave a call to the helpline department of opposite party No.2. Opposite party No.2 made arrangements to toe the car to opposite party No.2s premises and since 15.10.2013 it is lying in the service station of opposite party No.2. The mechanics of opposite party No.2 on enquiry told to complainant that there were some mechanical defects in the engine and the diesel pump. For Laura model opposite party No.1 installed CRDI Fuel System Diesels Pump. Opposite party No.2 was not ready to commit anything on the nature of the complaint and also commit in writing as to the cause of defects in the vehicle and went on telling to the complainant that some defects in the engine it was only to say the same for the complainant and similar nature of complaints reason assigned as using of sub standard quality fuel. Opposite party No.1 and No.2 failed in their duty and responsibility to set the mistake right and hand over the vehicle back to the complainant that it is a pure case of mechanical defect in the vehicle. On 14.11.2013 complainant got issued legal notice to opposite parties to which a false reply got issued dated 26.11.13. Hence seeks the reliefs claimed in the complaint seeking payment of Rs.17,00,000 cost of the vehicle with interest and cost.
2. Opposite party No.1 filed version contending complaint is bad by law and alleges the fact it is claimed alleged of para 1 & 2 as stated as correct. In respect of para 3 claimed the complainant has been used the vehicle without any problem since 15th October 2013 and as run the vehicle about 45,825 kms. Complainant had brought vehicle into service station of opposite party No.2 for accidental repairs and each time complainant has ascertained the road worthiness of the car before taking delivery. The complaint made by complainant on 15.10.2013 of the car is not starting is admitted. Opposite party No.1 suggested to complainant to get the fuel tested as such problems are usually due to usage of adulterated/substandard fuel. Opposite party No.2s request to collect sample and send to SGS lab in Mumbai with consent of complainant but complainant refused to give permission and insisted that the vehicle be repaired under warranty. Complainant visited several times opposite party No.2 and threatened to cause harm to the service station. Due to refusal for testing the fuel complainant cannot be allowed advance of his own the vehicle does not suffer from any defect of the engine. Several petrol bunks have been selling adulterated fuel and therefore it is false to say that none of the petrol banks sell adulterated fuel. The non repair of the vehicle is due to omissions and commissions of complainant himself. In order to arm the complainant has come up before the Forum without putting forth all the relevant facts. The complainant wants the repairs to be done solely under warranty and does not wish to pay for it. The allegation of opposite party 2 whose mechanic complaint of manufacturing defect is false. Hence seeks the dismissal of the complaint.
3. The contention raised by opposite party No.2 is identical to the one raised by opposite party No.1. He mentions the vehicle has tachometer reading is 41,900 km and if there was any defect the complainant could not run the vehicle to such a distance. Legal notice got issued were properly replied. Hence seeks dismissal of the complaint.
4. In support of the above complaint Mr. Mohammed Ashraf filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents not marked. On behalf of the opposite parties Mrs. Swapna Jain (RW1) Company Secretary, Mr. Virendra Vale (RW2) Authorized Legal Signatory of the Opposite party No.2 also filed affidavit evidence and not answered to the interrogatories served on them and produced documents got marked at Ex.R1 to R20 as detailed in the annexure here below.
5. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for complainant and opposite party No.2 filed notes of argument. Opposite party No.1 not filed notes of argument. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No. (iii): As per the final order.
REASONS
6. POINTS No. (i): The Skoda Laura of 2012 model was purchased by complainant on 19.03.2012 manufactured by opposite party No.1 from dealer opposite party No.2 and thereby the relationship of consumer and service providers with opposite party No.2 a dealer and service station of opposite party No.1 is established. On 15.10.2013 when complainant running the car it suddenly stopped and then on the complaint of complainant to service station then opposite party No.2 towed the vehicle from the spot to opposite party No.2 garage in Mangalore is also undisputed. The complainant denied allegation and permission to collect samples of fuel from the vehicle for sending it for testing at SGS lab in Mumbai on actual cost basis was refused by complainant. The contention of opposite parties is that there is no defect in the engine of the car sold to complainant but it is only due to adulterated fuel engine of the car did not start and not with any manufacturing defect of the car. Hence there is a dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
7. POINTS No. (ii): In this case the complainant purchased the vehicle manufactured by opposite party No.1 through opposite party No.2 the dealer on 19.3.2012 and it was bearing registration No.KA.19.MC.4669 is undisputed. The vehicle had run a distance of 45,825 kms left with opposite party No.2 on 15.10.13 when the car suddenly stopped when driving. The fact that the tachometer of the car reading was at 45,825 on 19.3.2012 is undisputed. Complainant had denied the suggestion that the car not met with any accident. Ex.R5 the retail invoice dated 5th July 2012 mention from front right side bumper repaired as per customer request and front right fog lamp and front bumper needs to be replace customer not given approve seats noise and checked found ok. Ex.R6 is the satisfaction note issued by complainant to opposite party No.2 about repair front right hand side bumper damage. There is check left hand side adjuster noise and check rear seat noise. The first of the repair at Ex.R6 is the indicative of an accident and in the absence of any explanation did not tendered by complainant. Even Ex.R7 dated 5.7.12 is job card mentions repair from right side bumper damaged.
8. Ex.R16 is the job card dated 1.7.2013 this mentioned as carried out accident repairs. As seen from the Ex.R16 nothing of substance of serious damage is found to have been caused. Ex.R17 is the estimate of 1st July 2013 it mentions about replacement of 3 bulbs and paint for the front bumper and rear right hand side bumper and front both fog lamps. Ex.R19 is satisfaction note signed by complainant it is dated 15.7.13. No other major accidental repairs seen have been repaired by opposite party so as to not cause any damage to the engine of the vehicle.
9. It is the case of opposite parties that complainant was satisfied after each repair with the repairs carried out to the vehicle of the complainant. It is not the case of complainant that in any of the earlier occasion opposite party No.2 did not attend the service or the repair to the vehicle. It is also not the case of complainant that opposite parties never attended to the required service/repair to the vehicle on an earlier occasion that in respect of the present case complainant. Hence merely because of opposite parties attended the vehicle earlier for service/satisfactory repair of the vehicle of the complainant by opposite party No.2 is justification for the present impasse
10. Learned counsel for complainant mention none of the accident repair for which vehicle was taken to opposite party No.2 as to do anything with the complaint for which the engine of car suddenly stopping on 15.10.13 occurred as although damages to the vehicle was only minor accidents. It is also contending that the permission of his party to test the fuel is according to learned counsel for complainant is clear that there is deficiency of service and the opposite party made endeavour in order to prove and that was not done and the opposite party sifted the burden on the complainant.
11. Ex.R1 and R2 mentions only about the car of complainant of 16.10.2013 and there is no reason mentioned either EX.R1 of R2 or any permission sought from complainant for testing the fuel or on the quality of the fuel.
12. The incidence of the vehicle stopping on 16.10.13 midway on the road and failure to start by complainant being within warranty period from the date of purchase. Admittedly the complainant had run the vehicle for more than the 45,825 kms. Hence complainant as to the quality of the engine of the vehicle the allegation of the complainant as to manufacturing defect in the vehicle.
13. Second aspect is noted opposite party No.2 is the service centre of opposite party No.1 for the vehicle purchased by the customer admittedly opposite party No.2 had towed the vehicle from the spot to his garage at Mangalore. The reason assigned by opposite parties for the engine not starting was of poor quality of the fuel. We fail to understand why opposite parties have not collected the sample fuel from the fuel tank of the complainant’s vehicle to verify whether there is any adulteration of fuel causing the seizing of the engine of the vehicle.
14. As the question was posed to complainant in the interrogatories question No.8 and answer posed on behalf of opposite party No.1 to complainant question No.8 and answer in the reply affidavit of complainant reads thus:
8. Did the second opposite party seek your consent or permission for sending the fuel for testing? Did you provide such consent?
Ans: I do not remember whether the opponent No.2 sought my permission for fuel testing, but in all these days, I had no objection for fuel testing.
15. Question No.9 of opposite party No.1 and answer of complainant reads thus:
9. Have you responded to any of the emails sent by the second opposite party?
Ans: It might be that opponent No.2 might have made emails. But I am not always particular about email.
In answer to the question that he refused to answer to opposite party No.2 complainant refused stated he refused is false.
16. But however in answer to the question No. 9 and 10 posed on behalf of opposite party No.2 that he has not as refused the question and answer are as follows:
9. Are you aware of the fact that if adulterated/substandard fuel is being used by the vehicle, then it does not come under the warranty?
Ans: I have responded to all the emails sent by opponent No.2.
10. I put it to you that you have neither responded to the emails nor have you received the phone calls of 2nd opposite party, thereby closing all communication channels.
Ans: It is false to suggest that I have not responded to the emails nor received the phone calls sated to have been made by opponent No.2 and thereby closed all communication channels.
Ongoing through the above question and answer it is clear that though opposite parties claim that they have called up complainant to the consent for the testing of the fuel he had stated that he had refused any permission to test the quality of the fuel. We are unable to understand why the opposite party claim the quality of the fuel as the reason for vehicle not starting did not send the fuel for testing. Even this was not done and even the repair of the vehicle was not done by opposite party No.2.
17. In fact opposite parties claimed exchange of several email sent to complainant by opposite party No.2 but no documents were produced by opposite party No.2 or No.1 to show the email sent to complainant and the alleged failure of the complainant to respond to those emails. Hence the contention for opposite parties that complainant failed to answer the question and give permission for test the fuel for adulteration must fall to ground. Hence opposite parties cannot escape responsibility for giving reason for not repairing and for not attending the repair work of the vehicle.
18. Thus opposite parties who claims that sought of emails to complainant seeking certain permission of complainant for sending the fuel for testing. Opposite parties has not produced such email before us. Hence the claim of opposite parties that they demanded that they wanted complainants consent for such testing is not established.
19. That apart, nothing prevented assuming for a moment that the complainant did not grant consent for testing the fuel. The opposite party mentioned sending the fuel sample of the car of the complainant for testing. It is a specific case of opposite parties that the fuel used by complainant to the car is of inferior quality and its the reason for the car stopping suddenly on road midway and with the complaint car not starting. However when opposite party has taken a specific stand and having not given any other reason when admittedly vehicle was within in the warranty period for the breakdown of the complainant’s vehicle midway on the road. The only conclusion we can draw against opposite parties of unexplained defects in the vehicle. It seems opposite parties in order to escape from responsibility and liability wanted to shift burden on the complainant. When opposite party No.1 being the manufacturer and opposite party No.2 the dealer of the car purchased by the complainant having not established that there is no manufacturing defect and the reason of the vehicle stopping in the midway of the road because of as poor quality of the fuel used having not been established by opposite parties, we are left with no other alternative but to conclude that the sudden stoppage of vehicle in the midway during the period of the warranty was of manufacturing defect in the vehicle. We cannot forget a moment that opposite party No.2 the dealer of opposite party No.1’s vehicle manufactured why opposite party No.2 did not attend to the repairs. In our view it is sufficient to conclude for the fault lies with the opposite parties. Under the circumstance we are of the view that complainant proved the manufacturing defect in the vehicle manufactured by opposite party No.1 and the dealer opposite party No.2. Hence complainant proved the deficiency in service on the part of the opposite parties. Hence we answer point No.2 in the affirmative.
20. POINTS No. (iii): Complainant having established from the evidence on record, opposite parties failed to establish the damages caused to the vehicle as due to inferior quality of the fuel and thereby complainant succeeded in establishing that it was due to manufacturing defects. Hence we are of the view it is a fit case to direct opposite parties No.1 and No.2 jointly and severally to pay the cost of the vehicle paid by the complainant of Rs.17,00,000/ with interest at 9% per annum from the date of complaint till the date of payment to complainant and also to pay a compensation of Rs.1,50,000 towards mental agony and cost of the litigation. Wherefore the following
ORDER
The complaint is allowed with cost. Opposite parties No.1 and No.2 jointly and severally are directed to pay a sum of Rs.17,00,000/ (Rupees Seventeen lakh only) with interest at the rate of 9% per annum from the date of complaint till the date of payment to complainant.
2. Opposite parties shall also pay a sum of Rs.1,50,000/ (Rupees One lakh Fifty thousand only) towards cost and compensation to the complainant.
3. Opposite parties shall pay the above amounts within 30 days from the date of receipt of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 14 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 20th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Mohammed Ashraf
Documents marked on behalf of the Complainant:
Nil
Witnesses examined on behalf of the Opposite Parties:
RW1 Mrs. Swapna Jain, Company Secretary,
RW2 Mr. Virendra Vale, Authorized Legal Signatory of the Opposite party No.2
Documents marked on behalf of the Opposite Parties:
Ex.R1: 16.10.2013: Repair order
Ex.R2: 16.10.2013: Job Card
Ex.R3: 30.05.2012: Retail Invoice
Ex.R4: 30.05.2012: Satisfaction note
Ex.R5: 05.07.2012: Retail Invoice
Ex.R6: 05.07.2012: Satisfaction note
Ex.R7: 05.07.2012: Job Card
Ex.R8: 11.10.2012: Retail Invoice
Ex.R9: 13.10.2012: Satisfaction note
Ex.R10: 11.10.2012: Job Card
Ex.R11: 03.05.2013: Retail Invoice
Ex.R12: 03.05.2013: Satisfaction note
Ex.R13: 03.05.2012: Retail Invoice
Ex.R14: 25.04.2013: Repair Order
Ex.R15: 29.04.2013: Job Card
Ex.R16: 01.07.2013: Job Card
Ex.R17: 01.07.2013: Estimate of repairs
Ex.R18: 15.07.2013: Retail Invoice
Ex.R19: 15.07.2013: Satisfaction note
Ex.R20: 14.08.2013: Retail Invoice
Dated: 20.05.2017: PRESIDENT
