Tamil Nadu

South Chennai

cc/295/2012

Mrs. V. Kanchana - Complainant(s)

Versus

Abra Motors Pvt. Ltd., - Opp.Party(s)

M/s. K. Gnana Sundaram

08 Jan 2019

ORDER

                                                                        Date of Filing  : 30.11.2012

                                                                          Date of Order : 08.01.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP., : MEMBER-II

 

C.C. No.295/2012

DATED THIS TUESDAY THE 08^TH DAY OF JANUARY 2019

                                 

Mrs. V.Kanchana,

W/o. Mr. Vasanthakrishnan,

Old No.6, New No.12, 53^rd Street,

Ashok Nagar,

Chennai – 600 083.                                                      .. Complainant.                                           

 

                                                                ..Versus..

1. The Manager,

Volkswagen Group Sales India Pvt. Ltd.,

No.3, Avenue Level No.3/4, Maker Maxcity,

Bandra Kurla Complex,

Bandra East,

Mumbai – 400 051.

 

2. The Manager,

ABRA Motors Pvt. Ltd.,

No.80, Ambattur Industrial Estate,

Ambattur,

Chennai – 600 058.

 

3. The Service Manager,

Volkswagen Chennai,

No.41, First Main Road,

C.I.T. Nagar,

Chennai – 600 035.                                                 ..  Opposite parties.          

 

Counsel for the complainant                :  M/s. K. Gnana Sundaram &

                                                                 another

Counsel for the 1^st opposite party       :  M/s. Subbu Ranga Bharathi &

                                                                 others

Counsel for the opposite parties 2 & 3 :  M/s. Nandini Ram & another

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to replace the defective vehicle with a new one and to pay a sum of Rs.5,00,000/- towards compensation for mental agony and physical strain to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that she has purchased a car Volkswagen Polo of the 1^st opposite party from the 3^rd opposite party on 28.10.2010 for a sum of Rs.6,82,500/- and registered vide Registration No.TN 09 BE 4488.   The vehicle was insured with the Bajaj Allianz General Insurance Company Ltd. on 26.08.2010.  The complainant submits that after paying the initial amount, the complainant availed vehicle loan from HDFC Bank.   The EMI should be paid upto 05.07.2014.   The complainant submits that when the vehicle was in the warranty period, it had several major problems due to the oil container sump which is an open model.   While the complainant was driving the vehicle, the said oil container sump netted cover had a hole suddenly resulting the leakage of oil spilling out of the vehicle caused seizure of the engine.  The said deficiency /defect caused only due to the open netted cover of the oil sump.  The complainant informed the said defect to the 3^rd opposite party and on 23.06.2011 handed over the car to the 2^nd opposite party for repair in turn free invoice was issued for a sum of Rs.3,02,416/-.  The 2^nd opposite party again sent a letter dated:22.07.2011 and 28.09.2011 for claiming a sum of Rs.3,02,416/- towards repair charges.   The complainant submits that she explained the manufacturing defect in the vehicle to the 2^nd opposite party and claimed replacement of a new vehicle but they have not come forward to take delivery of the vehicle. The complainant submits that on 01.03.2012, she issued legal notice in detail to all the opposite parties for which, the 1^st opposite party sent a reply notice dated:23.03.2012 and the complainant sent remainder notice to the opposite parties dated:09.12.2012.   But the opposite parties has not come forward to replace the vehicle for the alleged deficiency of manufacturing defect.   The act of the opposite parties caused great mental agony.   Hence, the complaint is filed.

2.      The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.     The 1^st opposite party states that the complainant purchased the Volkswagen Polo car bearing Registration No.TN 09 BE 4488 for a total sum for Rs.6,82,500/- on 28.10.2010.   The 1^st opposite party states that the alleged defects of leakage of oil due to the hole in the oil sump while contacting the rough surface of the road is an accident which has to be repaired since the complainant even after spillage of entire oil drove the car for such a long distance, the consequential seizure of engine happened which also shall not be considered as a manufacturing defect.  After placing the car for repair, this opposite party issued pre-invoice and repaired the vehicle ready for delivery.     The 1^st opposite party states that while spilling of the oil from the oil sump there shall be sufficient alarm system produced by the vehicle.  An alarm system also fitted in the vehicle to indicate such spillage of oil.  The complainant without noticing the alarm sound, indications, oil level and spillage, drove the vehicle to such an extent caused the damage which shall not be a manufacturing defect.  The 1^st opposite party states that the complainant has not produced any iota of evidence to prove the alleged manufacturing defect.  The netted cover of the open oil sump of thin metal caused the damage cannot be treated as manufacturing defect.  Therefore there is no deficiency in service on the part of the 1^st opposite party and the complaint against the 1^st opposite party is liable to be dismissed.

3.      The brief averments in the written version filed by the  opposite parties 2 & 3 is as follows:

The opposite parties 2 & 3 specifically deny each and every allegations made in the complaint and puts the complainant to strict proof of the same.    The opposite parties 2 & 3 state that the complainant since has stated that there is a manufacturing defect in the vehicle it should be dealt with the 1^st opposite party, the manufacturer.  The opposite parties 2 & 3 were Automobile Dealers and not the manufacturer.  The opposite parties 2 & 3 state that the complainant brought the oil sump damaged car to the 3^rd opposite party.  The damage of the oil sump is only due to the negligence of the driver of the complainant for which, these opposite parties are not held responsible.  If the oil sump is damaged resulting leakage of oil in the vehicle shall be stopped at that place and it should be informed to the service centre.   The opposite parties 2 & 3 state that there is no manufacturing defect in the vehicle.  The claim of replacement is unsustainable, there is no negligence on the part of the opposite parties 2 & 3.   The 3^rd opposite party states that the complainant had agreed to get the vehicle repaired at her cost, especially in view of the negligence on her part, action was initiated to complete the job.  The 3^rd opposite party states that the complainant was informed over telephone about the completion of the job and the bill amount to be paid.  The 3^rd opposite party states that since there was no response in spite of repeated attempts, a pre-invoice dated:23.06.2011 was sent to the complainant.   The 3^rd opposite party states that the complainant was approached through written communication requesting her to take delivery of the vehicle after making the payment of Rs.3,02,416/-.  It was also informed that if the vehicle is not taken delivery, storage charges will be levied.  Therefore, there is no deficiency in service on the part of the opposite parties 2 & 3 and hence the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A12 are marked.  Proof affidavit of the 1^st opposite party is filed and documents Ex.B1 & Ex.B2 are marked on the side of the 1^st opposite party.  Proof affidavit of the opposite parties 2 & 3 is filed and documents Ex.B3 to Ex.B5 are marked on the side of the opposite parties 2 & 3. 

5.      The points for consideration is:-

1. Whether the complainant is entitled for the replacement of the vehicle with a new one as prayed for?
2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony, deficiency in service and negligence with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard the opposite parties’ Counsel also.  Perused the records namely the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that she has purchased a car Volkswagen Polo of the 1^st opposite party from the 3^rd opposite party on 28.10.2010 for a sum of Rs.6,82,500/- and registered vide Registration No.TN 09 BE 4488 as per Ex.A3.  Ex.A1 is the invoice shows the date as 31.07.2010.   The vehicle was insured with the Bajaj Allianz General Insurance Company Ltd. on 26.08.2010.  Ex.A2 is the insurance dated:26.08.2010.  Further the contention of the complainant is that after paying the initial amount, the complainant availed vehicle loan from HDFC Bank.   The EMI should be  paid upto 05.07.2014.   But no document related to hypothecation filed.  Further the contention of the complainant is that when the vehicle was in the warranty period, it had several major problems due to the oil container sump which is an open model.   But the complainant has not produced any warranty.   While the complainant was driving the vehicle, the said oil container sump netted cover had a hole suddenly resulting the leakage of oil spilling out of the vehicle caused seizure of the engine.  The said deficiency /defect caused only due to the open netted cover of the oil sump.  The complainant informed the said defect to the 3^rd opposite party and on 23.06.2011 handed over the car to the 2^nd opposite party for repair in turn, Ex.A4, PRE invoice was issued for a sum of Rs.3,02,416/-.  The 2^nd opposite party again sent a letter dated:22.07.2011 and 28.09.2011 as per Ex.A5 & Ex.A6 respectively claiming a sum of Rs.3,02,416/- towards repair charges.  Further the contention of the complainant is that she explained the manufacturing defect in the vehicle to the 2^nd opposite party and claimed replacement of a new vehicle stating that even after the due repair, the vehicle is giving trouble.   But the 2^nd opposite party has not come forward to take delivery of the vehicle.

7.     Further the contention of the complainant is that on 01.03.2012, the complainant issued legal notice Ex.A7 in detail for which, the 1^st opposite party sent a reply dated:28.03.2012 as per Ex.A8 and the remainder sent by the complainant dated:09.12.2012.   Since the opposite parties has not come forward to replace the vehicle for the alleged deficiency in manufacturing, the complainant was constrained to file this case.  But on a careful perusal of records, the complainant has not taken any steps to prove the alleged defect of the netted cover in the open oil sump amounts to manufacturing defect.  Equally, the complainant has not produced any expert opinion for the alleged manufacturing defect.  On the other hand, when the vehicle was driven by the complainant, the oil sump contacted the rough surface of the road causing the leakage of oil which cannot be treated as manufacturing defect and for the said repair the complainant placed the vehicle before the 2^nd opposite party who in turn repaired the vehicle after issuing pre-invoice Ex.A4 proves that there is no deficiency in service or unfair trade practice on the part of the opposite parties.

8.     The learned Counsel appearing for the 1^st opposite party would contend that admittedly, the complainant purchased the Volkswagen Polo car bearing Registration No.TN 09 BE 4488 for a total sum for Rs.6,82,500/- on 28.10.2010.   Further the contention of the 1^st opposite party is that the alleged defects of leakage of oil due to the hole in the oil sump while contacting the rough surface of the road is an accident which has to be repaired since the complainant even after spillage of entire oil drove the car for such a long distance, the consequential seizure of engine happened which also shall not be considered as a manufacturing defect.  After placing the car for repair, this opposite party issued pre-invoice and repaired the vehicle ready for delivery.   But the complainant has not come forward to take delivery of the vehicle.   Further the contention of the 1^st opposite party is that while spilling of the oil from the oil sump there shall be sufficient alarm system produced by the vehicle.  An alarm system also fitted in the vehicle to indicate such spillage of oil.  The complainant without noticing the alarm sound, indications, oil level and spillage used the vehicle driven to such extent caused the damage which shall not be a manufacturing defect. Ex.B2 is very clear regarding to the indications.  Further the contention of the 1^st opposite party is that the complainant has not produced any iota of evidence to prove the alleged manufacturing defect.  The netted cover of the open oil sump of thin metal caused the damage cannot be treated as manufacturing defect.  The configuration of vehicle cannot been questioned because after all formalities including Government permission, the vehicle shall be placed for sale. Ex.B1 is the ARAI Certificate issued for the impugned vehicle model.  Further the contention of the opposite parties 2 & 3 is that the complainant brought the oil sump damaged car to the 3^rd opposite party.  The damage of the oil sump is only due to the negligence of the driver of the complainant for which, these opposite parties are not held responsible.  If the oil sump is damaged resulting leakage of oil in the vehicle shall be stopped at that place and it should be informed (or) intimated to the service centre.  In this case, admittedly, the complainant drove the car and placed the car in the service station of the opposite parties knowing fully well about the entire oil spilled out proves the utter negligent act of the complainant alone for which, no body shall be held responsible.  Further contention of the opposite parties 2 & 3 is that there is no manufacturing defect in the vehicle.  The claim of replacement is unsustainable since there is no negligence on the part of the opposite parties also. Considering the facts and circumstances of the case this Forum is of the considered view that the complaint has to be dismissed.

In the result, this complaint is dismissed.   No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 08^th day of January 2019. 

 

MEMBER-I                           MEMBER-II                     PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	31.07.2010	Copy of Tax Invoice
Ex.A2	26.08.2010	Copy of Insurance
Ex.A3	26.08.2010	Copy of Certificate of Registration
Ex.A4	23.06.2011	Copy of PRE Invoice
Ex.A5	22.07.2011	Copy of 1st letter of completion of repair / replacement sent by the opposite party
Ex.A6	28.09.2011	Copy of 2nd letter of completion of repair / replacement sent by the opposite party
Ex.A7	01.03.2012	Copy of legal notice sent by the complainant with acknowledgment card
Ex.A8	28.03.2012	Copy of letter from the 1st opposite party
Ex.A9	09.10.2012	Copy of remainder for the letter of the opposite party with acknowledgement card
Ex.A10		Copy of complaints and reviews of the various consumers
Ex.A11		Copy of News Paper publication
Ex.A12		Copy of photos

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:-

Ex.B1		Certificate issued by the ARAI to the 1st opposite party
Ex.B2		Copy of extract of User Manual of the Volkswagen Polo

 

OPPOSITE  PARTIES 2 & 3 SIDE DOCUMENTS:-

Ex.B3	06.01.2011	Copy of letter from Bajaj Allianz (Insurance Company) addressed to the complainant
Ex.B4	28.01.2011	Copy of letter from Bajaj Allianz (Insurance Company) addressed to the complainant
Ex.B5	15.02.2011	Copy of letter from Bajaj Allianz (Insurance Company) addressed to the complainant

 

 

 

MEMBER-I                           MEMBER-II                     PRESIDENT