Date of filing:16.10.2018

                                                               Date of Disposal:27.02.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 27^th DAY OF FEBRUARY, 2023

CONSUMER COMPLAINT NO.1689/2018

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr.Balasubramanya R.N,

S/o Liate Mr.Nagaraj R,

Aged about 63 years,

Residing at D-106,

Mantri Elegance, B.G.Road,

Bengaluru-560 076.……COMPLAINANT

Rep by Sri.B.V.Nidhishree, Advocate

Bangalore Motors Private Limited,

1/1, Kodi Basavanna Temple Street,

4 M Block, Rajajinagar,

Bengalur-560 010,

Rep by its Director.……  OPPOSITE PARTY-1

Rep by Sri.N.Kumar, advocate

Also at:

Skoda Auto Volkswagen India Private Limited,

E-1, MIDC Industrial Area,

Phase III, Village Nigoje,

Mhalunge, Kharabwadi,

Chakan, Taluka Khed,

Pune, Maharashtra -410 501.……  OPPOSITE PARTY-2

Rep by Smt.Smita N, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-12 of Consumer Protection Act, 1986 seeking for a direction to the opposite party No.1 & 2 to pay a sum of Rs.42,960/- and such other reliefs as this commission deems fit in the circumstances of the case.

2. The opposite party no.1 is the authorized service centre of the Automobile Manufacturer Volkswagen Group in Bengaluru and opposite party no.2 is the manufacturer of Volkswagen car.  It is not in dispute that on 28.04.2016 the complainant has purchased Volkswagen car bearing registration No.KA 05 MT 2785 in model being ‘Jetta 2.0 Highline Diesel MT’.  Further, the opposite party no.1 admits that due to heavy rain on 02.09.2017, the complainant’s car was water logged and the car was taken to Whitefield service centre.

3. It is the case of the complainant that on 02.09.2017 while the complainant was returning from Kolar to Bengaluru due to heavy rain, the car got water logged in transit and it was informed to the manufacturer’s policy and the complainant contacted the toll-free number of the Customer Service Department and the car was transported by on-road assistance wing of the Whitefield Service Centre on 05.09.2017 and the repairs of the complainant’s car took place over a span of 45 days.  The repair work was completed and it was delivered to the complainant on 25.10.2017 after replacing some parts including flywheel.  Further, on the said day, the complainant noticed a disturbance in the engine particularly a long whining sound on starting the car and it was a typical post-service symptom and it was informed that it would disappear once the car was driven for about 1000 kms.  Further, on 07.04.2018 the complainant noticed a disturbing sound while turning on the ignition of his car and since annual regular service of the car was due, on 09.04.2018 the complainant approached the opposite party to fix this problem and to avail annual services of maintenance for the car.  The opposite party’s servicer advised to change the flywheel assuring that it would resolve the problem knowing fully well that the flywheel had been replaced by the Whitefield Service Centre in 2017.  However, the complainant got replaced flywheel and the opposite party has raised an invoice for Rs.68,266/-, out of which replacement of the flywheel was of Rs.42,960/-.  Further, the opposite party had informed the complainant that the Whitefield Service centre had affixed incorrect flywheel of a different car model causing friction in the engine.

4. It is the further case of the complainant that the opposite party No.1 & 2 deliberately and falsely advised the complainant to install a new flywheel instead of seeking a replacement under the warranty. Thereafter, the complainant got issued legal notice to the opposite party No.1 & 2 dt.15.06.2018 calling upon the opposite party No.1 & 2 to duly compensate the complainant for damages owing to the negligent acts of the opposite party No.1 & 2.  Hence, the complaint came to be filed.

5. It is the contention of the opposite party no.1 that the opposite party no.1 is neither concerned with nor answerable to the grievance of the complaint as the replacement of the Flywheel was made with wrong variant by Apple Auto Private Limited, whitefield Bangalore.  Hence the complaint is not maintainable for non-joinder of whitefield service centre.  Further, the replacement of flywheel was done on the approval given by the complainant and upon his satisfaction.

6. It is the contention of the opposite party no.2 that the opposite party no.1 and opposite party no.2 are the separate independent legal entities and opposite party no.1 is an authorized dealer of opposite party no.2 and the opposite party no.2 deals with its deals on principle to principle basis.  Further, after stringent quality tests and safety tests as per high quality requirements and safety standards set by Volkswagen the said vehicle has been delivered to the dealer for onward sale to the complainant.  Further, since opposite party no.2 is situated outside the territorial jurisdiction of this commission, this commission has no territorial jurisdiction to decide the complaint.  Further, since Apple Auto Private Limited, Whitefield Service Centre has not been made as party           and made the opposite party no.1 as party, the complaint suffers from mis-joinder of necessary parties.  Further, since the opposite party no.2 did not provide any service to the complainant question of deficiency of service does not arise.  Further, in view of the terms and conditions of the warranty, the complainant is not entitled for any payment.  Hence, it is sought to dismiss the complaint. 

7. To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and produced documents. The Deputy General Manager of opposite party (RW1) has filed affidavit in the form of his evidence in chief.  The Chief Manager of opposite party no.2 (RW2) has filed affidavit in the form of his evidence in chief and got marked EX.R1 and R2 documents.

8. Counsels for the complainant and opposite party no.2 have filed their respective written arguments with citations. 

         9. The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite party No.1 & 2 ?

   ii) Whether the complainant is entitle for the 

    compensation as sought ?

       iii) What order ?

  10.  Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

11.POINT NO.1:- The complainant (PW1), Deputy General Manager of opposite party no.1 (RW1) and Chief Manager of opposite party no.2 (RW2) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  It is the contention of the learned counsel for the complainant that even though replacement of flywheel comes within the warranty period, the opposite party has charged a sum of Rs.42,960/- towards flywheel.  There is no dispute with regard to the replacement of flywheel by opposite party no.1 and Apple Auto Private Limited service centre, Whitefield Bengaluru and the opposite party no.1 had collected a sum of Rs.42,960/- towards flywheel.  It is the contention of the learned counsel for the opposite party no.2 that since the complainant got serviced the vehicle at whitefiled service centre and also got replaced flywheel at there, Whitefield service centre – Apple Auto Private Limited shall be a necessary party and instead of making the said service centre as party, the complainant had made Bengaluru Motors Private Limited as a party, wherein at the 2^nd time the flywheel said to have been replaced.  We feel since the complainant has claimed the cost of replacement made by the opposite party no.1 and no claim has been made against Whitefield Service centre and the complainant might have ignored the claim from Whitefield service centre, there is no merit in the contention of the learned counsel for the opposite party no.2 in that aspect.

12. It is the further contention of the learned counsel for the opposite party no.2 as asserted in the version filed that since the opposite party no.2 is situated outside the territorial jurisdiction of this commission, this commission has no territorial jurisdiction to try the complaint.  Section-11 of Consumer Protection Act, 1986 contemplates that the commission can entertain the complaint within the jurisdiction of the commission where the cause of action arise and within the jurisdiction of any of the opposite parties at the time of the institution of the complaint, actually and voluntarily resides, or carries on business.  In the case on hand, the location of opposite party no.1 is at Bengaluru.  Further, the complainant has purchased the subject vehicle through Bengaluru Motors Private Limited situated in Bengaluru.  Further, the complainant got replaced the flywheel from opposite party no.1 situated in Bengaluru.  Hence, there is no merit in the contention of the learned counsel for the opposite party no.2 to that aspect.

13. It is the further contention of the learned counsel for the complainant that the opposite parties has failed to provide satisfactory services as a service provider and it has misguided and falsely advised the complainant to install a new flywheel instead of seeking a replacement under the warranty and also the incorrect diagnosis of the car’s fixtures along with gross negligence of the opposite party amounts to deficiency of service.    Further, even after the service on opposite party no.1, the complainant noticed that the problem persisted and followed up with Mr.Bopanna.  He advised the complainant to get back the car for further diagnosis on 19.04.2018.  Later on it was delivered and was informed that the Whitefield Service centre had affixed the incorrect flywheel of a different car model causing friction in the engine.  Further, the opposite party no.1 deliberately and falsely advised the complainant to install a new flywheel instead of seeking a replacement under the warranty, only to raise a steep invoice on the complainant.  On perusal of the warranty by the opposite party no.2 vide EX.P2, it appears that Volkswagen provides warranty through its authorized dealers providing 2 years warranty on vehicle from the date of sale with no mileage limit.  Further, it provides warranty against manufacturing defect for its vehicles through its authorized dealers subject to terms and conditions laid down in the warranty.  Further, the warranty for repair and replacing is at the sole discretion of opposite party No.2 of any parts or found to be defective by Volkswagen either any material or manufacturing defect within a period of 2 years with unlimited mileage from the date of sale.  The complainant has purchased the vehicle on 28.04.2016 and the question replacement of flywheel was made on 14.04.2018 as appears in the invoice dt.14.04.2018 issued by opposite party no.1.  Hence, the replacement of flywheel was within the warranty period.  Since, it is undertaken in the warranty issued by the opposite party no.2 that the warranty for repairing or replacing any part or parts, we feel the opposite party no.1 ought not to have charged for the flywheel fixed to the car.  Since, the opposite party no.1 is the person of opposite party no.2 the warranty prepared and issued by opposite party no.1 binds to opposite party no.1 & 2. Hence, there is “deficiency of service” on the part of the opposite party no.1 & 2 as contemplated under Section 2(1)(g) of Consumer Protection act, 2018.

14. In support of the contention that there is deficiency of service on the part of the opposite party, counsel for the complainant relies the judgment rendered by Hon’ble H.P.State Consumer Disputes Redressal Commission, Shimla, in Fist Appeal No.267/2017, dt.20.12.2018 in between Vikas Sood V/s General Manager Sagar View Automobiles and others.  In the said judgment, in para No.18, it is observed that as per warranty card, premier Limited was under legal obligation to repair or replace the defective parts.  Further, counsel relies the judgment rendered by the same commission on 07.01.2020 in first appeal No.333/2018, in between Panasonic India Private Limited V/s Smt.Kiran Khare and other.  In the said judgment, in para No.15, it is stated that guarantee and warranty are entirely two different concepts under law.  As per guarantee card manufacturer and authorized dealer are under legal obligation to replace the product with new one of similar make and similar value and under warranty card manufacturer and authorized dealer are under legal obligation to replace the defective parts of product in question free of costs if defect occurred during warranty. 

15. Further, counsel relies the judgment rendered by Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur in CC.2017/45 dt.02.06.2017 in between Suryakant Tiwari and Vaibhav Jain and others.  In the said case, the opposite party no.1 was the authorized dealer and opposite party no.2 was the manufacturer of car.  In the circumstances, in para No.20 and 22 it is observed that had the agent acted totally outside the ostensible authority of an agent, the relationship would be principal to principal and since the agent was acted within the scope of ostensible authority as a dealer for sale of loaders, the petitioner company being its principal is equally liable for the deficiency on the part of its agent.  If any deficiency in service is committed by the opposite party no.1, then also be equally liable for the same.  Further, counsel relies the judgment rendered by Hon’ble NCDRC, in Revision Petition No.1330/2016, dt.17.05.2016 in between Actin Construction Equipment Limited V/s Santosh Babanrao Gande and others. In the said judgment, in para No.5 it is observed on the contention of the petitioner company that it cannot be liable for the misdeeds of the dealer that it was within the scope of authority of an agent to sell the product and receive the sale consideration, it would be difficult to accept the contention that the petitioner company is not liable for the aforesaid acts of its dealer. Had the agent acted totally outside the ostensible authority of an agent, there could be merit in the contention advanced by the learned counsel.  Further, counsel also relies the judgment rendered by the Hon’ble NCDRC in Revision Petition No.1471/2013, dt.13.11.2013, in between Toyota Kirloskar Motor Limited and others V/s Jayesh T.Tanna and others.  In the said judgment, it is observed in para No.12 that there is deficiency in service on the part of the opposite party no.1 & 2 in dismantling the engine and the gear box without the complainant’s consent and not rectifying the defects in the vehicle and keeping the vehicle in the open place for months together without making efforts to repair and rectify the defects and to return the vehicle to the complainant and it was held that the manufacturer and service centre are liable for compensation.  Further, counsel also relies the judgment rendered by Hon’ble NCDRC in Revision Petition No.4744/2013, dt.13.03.2018 in between Skoda Auto India Private Limited and others V/s M.Surendran and in Appeal No.577/1996, dt.17.04.1997 in between Voltas Limited V/s Bharat Bhushan Khattar. 

16. Contrary to that, it is the contention of the learned counsel for the opposite party no.2 that since the relationship in between opposite party no.1 & 2 was principal to principal, the opposite party no.2 is not held liable for the act of the opposite party no.1 in replacing the flywheel of the subject vehicle.  In support of the case, counsel relies the judgment rendered reported in 2021 SCC Online SC 125, in between Tata Motors Limitd V/s Antonio Paulo Vaz and another.  In the said case, the dealer had represented that the car was new, and in fact sold an old, used one.  Hence, the court held that it was fatal to the complaint and fixed compensation to be payable by the dealer alone and the liability cannot be fastened upon the manufacturer.  Further, counsel also relies the judgment rendered by the Hon’ble NCDRC in Revision Petition No.2211/2009, dt.20.03.2015 in between Maruti Suzuki India Limited V/s Vijayan V.Anand and others.  In this case also there was misrepresentation by the dealer at the time of sale that the vehicle was of 2005 model and the complainant realized from the service of registration issued by RTO that the order of the manufacturer of the vehicle was of 2004.   Hence, Hon’ble NCDRC had fixed the liability only on the dealer and set aside the order of the district commission that the manufacturer was also jointly and severally to pay compensation to the complainant.  Further, counsel also relies the judgment rendered by Hon’ble SCC in Civil Appeal No.7330/1993, dt.07.12.1993 in between Indian Oil Corporation V/s Consumer Protection Council.  In the said judgment, the complainant being a “consumer” has claimed regularization of LPG connection given by the distributor from Engine Oil Corporation.  It was held that since it was in the discretion of the distributor to give gas connections the company cannot be made liable for the act of the distributor and the relationship was only a principal to principal basis as there was no privity of contract between the IOC and the consumer. 

17. In the case on hand, it appears that the warranty card of the subject car was issued by the opposite party no.2.  Therefore, the opposite party no.2 is under an obligation to carry-out the work as contemplated under warranty card.  Further, the dealer is none other than the person of the manufacturer.  Even though the price of the car was paid to the dealer ultimately it reaches to the manufacturer.  Since, the replacement of the parts of the vehicle was within the warranty period and the opposite party no.2 has undertaken the repair and replacement, we feel there is deficiency of service on the part of the opposite party no.1 & 2.  Further, it cannot be said that the relationship in between the opposite party no.1 & 2 was principal to principal and we feel that the relationship was principal and agent. Further, it should have been in the knowledge of opposite party no.1 that since the warranty is covered, it ought not to have charged for the replacement of the flywheel.   Hence, we feel there is deficiency of service on the opposite party no.1 & 2 as contemplated under Section-2(1)(g) of Consumer Protection Act, 1986.  Accordingly, we answer this point in affirmative.

18.POINT No.2:-The complainant claimed a sum of Rs.42,960/- the flywheel charge and towards unsuccessful repair service due to gross negligence of opposite party No.1 & 2.  For the above said reasons, we feel the complainant is entitle for refund of the said amount.  Since, opposite party no.1 unnecessarily charged for the same and used the money of the complainant for his own, the complainant is entitle for interest at the rate of 9% for the same.  Further, the complainant is entitle for a sum of Rs.10,000/- towards mental agony caused, since, unnecessarily opposite party no.1 has charged for the replacement of flywheel.  Further, in spite of notice been issued, the opposite party no.1 did not refund the said amount.  Hence, the complainant is entitle for a sum of Rs.10,000/- towards mental agony undergone and hardship faced.  Further, the act of the opposite party made the complainant to issue legal notice and to file the present complaint.  Hence, the complainant is entitle for a sum of Rs.10,000/- towards litigation cost.  Accordingly, we answer this point partly in affirmative.

19.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;

ORDER

The complaint is allowed in part.

The opposite party No.1 & 2 are jointly and severally liable to pay a sum of Rs.42,960/- to the complainant with interest at the rate of 9% p.a. from 14.04.2018 till realization and a sum of Rs.10,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost. 

The opposite party No.1 & 2 shall comply the order within 30 days.   In case, the opposite party No.1 & 2 fail to comply the order within the said period, the above said amount of Rs.20,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 27^th day of February, 2023)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.Balasubramanya R.N, the complainant has filed her affidavit.

Documents marked for the complainant side:

1. The tax Invoice, registration documents and tax receipts of the car issued by the Regional Transport office, Bengaluru South. 
2. Copy of the invoice issued by the Whitefield service center dt.25.10.2017 in respect of the repairs.
3. An email dt.13.04.2018 suggesting the cause of disturbance in the car due to imbalance in flywheel.
4. Copy of the job sheet detailing the nature of the complaint.
5. Copy of the invoice dt.14.04.2018.
6. Copy of the job sheet dt.19.04.2018 indicating persistence of the problem.
7. An email dt.24.04.2018 sent by the complainant requesting a formal diagnosis in writing.
8. Email correspondences with the employees of Whitefield Service center.
9. Email sent by Apple Motors dt.29.05.2018 to the complainant.
10. Copy of the legal notice along with postal acknowledgment.
11. Reply to the legal notice by the opposite party.
12. Certificate under Section 65B of the Indian Evidence Act.

Witness examined for the opposite party side: 

Sri.Prabhakar Rao, Deputy General Manager of opposite party no.1 has filed his affidavit. 

Sri.J.Gopala Rao, Chief Manager of opposite party no.2 has filed his affidavit.

Documents marked for the Opposite Party side:

1. Original Board Resolution dt.22.07.2019.

2. Authorization letter.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•