Order dictated by:
Sh.Anoop Sharma, Presiding Member
- Sh. Bharat Bhushan, complainant has brought the instant complaint under the Consumer Protection Act, 1986 on the allegations that complainant purchased a new Skoda Rapid Car bearing registration No. PB-35-R-8181 bearing Engine No. CLN218508, Chassis No. TMBBLJNAXCG030481 for a sum of Rs. 10,70,000/- from opposite party No.1 on 31.12.2012 by raising a loan from Volkswagen Finance Pvt.Ltd for his personal use. Opposite party No.2 is the manufacturer of the car. Opposite party No.2 through its authorized dealer i.e. opposite party No.1 provided two years warranty for new vehicles from the date of sale and in addition to the warranty terms for new Skoda vehicles also provided three years warranty and six years warranty for pain work defects. The complainant purchased the impugned car in black color but within one year from the date of purchase, there was inherent manufacturing defect in original paint as it was of a low quality and it became dull and faint and it shows the new car of the complainant just like a very old and rustic car. In this regard complainant lodged complaints with opposite party No.1 as well as opposite party No.2 on their toll free numbers many times and every time they assured the complainant that they will resolve the problem, but to no avail. Complainant has alleged that when he visited the premises of the opposite party No.1 even to get his car serviced, opposite party No.1 did not deliberately mention in the job card regarding the defect in original paint of the car and every time they just polished the body of the car in order to hide the inherent manufacturing defect in the paint work. The complainant so many times requested the opposite parties to remove the defect in the paint work, but to no avail. Thereafter even the original colour of the car started peeling off and car paint from both side had completely chipped off and it was a manufacturing defect because the original colour of the car is of a very low quality . The complainant so many times lodged complaints with opposite party No.1 as well as opposite party No.2 and they admitted that there is manufacturing defect in the paint work of the car but every time false assurances were given to the complainant that they will resolve the problem very soon and they got ready to repaint the whole car of the complainant. However, when the complainant brought the vehicle in the premises of the opposite party No.1, they inspected the vehicle minutely and also admitted that there is manufacturing defect in the paint work of the car, but even then opposite party No.1 was not ready to note down the paint work defect in writing which were brought to their notice from time to time. Ultimately in the month of July 2015, complainant lodged complaint to the higher official of opposite party No.2 regarding the inherent manufacturing defect in the paint work of his car on their toll free numbers and also mailed to them and in response to that , opposite party No.2 replied to the complainant vide e-mail dated 19.7.2015 and 24.7.2015 whereby they admitted the paint defect in the car and assurance was given by them to resolve the paint issue of the car and to get in touch with Mr. Navdeep of opposite party No.1. Thereafter complainant visited opposite party No.1 so many times and contacted Mr. Navdeep regarding the defective paint work and requested him to resolve the problem, but to no avail; that the opposite parties did not provide the better services to the complainant as there developed defects in the car one after another which can be well judged that the impugned car was having two automatic main keys and when one key of the car misplaced somewhere, the complainant used/applied the second key which did not work and the car did not open. Intimation regarding non working of second key of the car was given to the opposite parties. Complainant talked with one of the employees of opposite party No.1 namely Navdeep and as per the instructions of opposite party No.1, complainant brought the vehicle to the premises of opposite party No.1 where the employees of opposite party No.1 made excuses that the new locks are not available with the company. The complainant had to run his costly car in totally unlock condition for long time and when the opposite party No.1 installed the lock of the said car in the month of May 2014, thereafter there developed defect in the central locking of the said car. In this regard complainant lodged complaint with opposite party No.1, but to no avail. Even when the complainant visited opposite party No.1 to get his vehicle serviced on 12.9.2014, the service employee of opposite party No.1 negligently and by mishandling had damaged the AC, Air Rotator of the said car and till date that problem has not been resolved. Opposite party No.1 has not handed over the copies of the job card to the complainant deliberately. The complainant has sought for the following reliefs vide instant complaint:-
- Opposite parties be directed to repaint the whole car of the complainant or to replace the impugned car or refund the amount of the car to the tune of Rs. 10,70,000/- alongwith interest @ 12% p.a.
- Opposite parties be also directed to pay compensation as well as litigation expenses.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and filed written version taking certain preliminary objections therein inter alia that the present complaint has been filed by Sh. Bharat Bhushan, who has neither been shown as proprietor nor a partner and as such, the complaint for the redressal of the grievance with regard to a Skoda car purchased by a firm, is not entitled to invoke the jurisdiction of the Forum under the Consumer Protection Act. Even there is no manufacturing defect in the car in question. The complainant has a concern about the paint work as a result of which the car looks dull and old. The complainant has very conveniently forgotten to mention that the car in question met with accidents not once twice but thrice in the month of March, 2013, May 2014 and September 2015. In the first accident the dicky, bumper, right hand side panel alongwith tail light were damaged and the required repairs were undertaken by the answering opposite party. Again the car met with an accident for the second time and front bumper left hand side and right hand side fenders, headlight, fog lamp, front panel, both right hand side doors were damaged. The answering opposite party undertook the required repairs. Third time the car again met with an accident and bumper head lamp and bulbs were again damaged which were repaired and replaced as per requirement. The complainant wanted to repaint the car on account of the scratches occurred during the accident and it was told to the complainant that the repaint is required to be done and for that purpose complainant is to lodge a claim with the Insurance company for getting the needful done but the complainant did not agree to the same as such the scratches could not be removed inspite of two accidents. The car of the complainant is a base model car and the working of locking and unlocking of the car is a standard feature and there is no defect in locking or unlocking the doors. In this model it takes time to lock the doors and there is no defect as mentioned by the complainant in this regard. In this model the key is rotated once and only driver door is unlocked and if the key is rotated twice then all the doors will get unlocked. As such, there is no manufacturing defect in the car in question . Even otherwise also, no expert opinion has been obtained by the complainant to prove his allegations. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite party No.2 in its written version has submitted that the car has been purchased for commercial purposes and therefore the complainant or M/s. Bihari Lal Jagan Nath is not a consumer as per section 2(1)(d) of the Consumer Protection Act, 1986. It was submitted that the primary problem which the complainant has alleged is that the car was sent on 18.3.2013 for accidental repair which was hit from rear side (Rear Bumper, Boot and one side was painted) and delivered the car to the complainant . On 9.9.2014 complainant raised an issue that the boot paint was not matching. It was submitted that for the satisfaction of the complainant, boot of the car was repainted free of cost even after 18 months. Again the vehicle came for accidental repair on 24.9.2015 with the complaint that colour of his car got dull. While inspection scratches on the body of the car were found which has no relation with any manufacturing defect and it was suggested to the complainant to take insurance claim. Hence, the present complaint is nothing but an abuse of the process of law . It was submitted that Skoda fitted central locking system in every car manufactured by Skoda India. As per complainant version when he locks/unlocks the car within 1-2 mins then all door locks works accordingly. But when he opens the drive door after 5 mins of parking then only front right door lock works and other three doors does not operate with manual key. The said vehicle was compared with other cars of same model whose door locking/unlocking functioning was working according to the concerned car and the same was informed to the complainant. Further during PMS service on 26.6.2015 the complainant mentioned that “A/C Air flow is less effective from rear vent”. On checking the Pollen filter was found choked and after replacing it the problem was resolved as the same was only due to dust and dirt which is caused in every vehicle which is running on the road and is using the Air conditioner. It was submitted that all or any minor defects which occurred have already been removed by opposite party No.1. While denying and controverting other allegations, dismissal of complaint was prayed.
4. In his bid to prove the case Sh. Neeraj Brahmi,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-12 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence Sh. Dhiraj Chopra,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Sumit Passi Ex.OP1/1 , affidavit of Sh.Jatinder Papneja Ex.OP1/2 ,copies of orders of the Hon’ble National Commission and Supreme Court Ex.R-1 to Ex.R-3, copies of invoice showing repairs and parts replaced of the car in question Ex.R-4 to Ex.R-6, copy of sale letter dated 31.12.2012 of the car in question in the name of M/s. Bihari Lal Jagan Nath Ex.R-7, and closed the evidence on behalf of opposite party No.1.
6. On the other hand, Sh.Pardeep Arora,Adv.counsel for opposite party No.2 tendered into evidence affidavit of Ms. Amrita Jain, Senior Manager Ex.OP2/1, copy of invoice Ex.OP2/2, copy of service record Ex.OP2/3 and closed the evidence on behalf of opposite party No.2.
7. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well written synopsis of arguments submitted on behalf of all the parties.
8. On the basis of the documents and evidence produced on record by both the parties, it becomes evident that the complainant has purchased a new Skoda Rapid Car bearing registration certification No. PB-35-R-8181 Black colour for a sum of Rs. 10,70,000/- from opposite partyNo.1 manufactured by opposite party No.2 on 31.12.2012 by raising a loan from Volkaswagen Finance Pvt.Ltd. for his personal use only. The plea of the opposite party is that the car in question was purchased for commercial purpose and the same has been purchased in the name of business entity M/s. Bihari Lal Jagan Nath. However, the impugned car was purchased by the complainant in his individual capacity for his personal use and the same was not purchased by/or in the name of partnership firm and the same was quite evident from the registration certificate of the car bearing No. PB-35-R-8181 Ex.C-2 and the same is registered in the name of complainant and not in the name of any partnership firm. It was the case of the complainant that opposite parties provided three years warranty and six years warranty for paint work defects. The complainant purchased the impugned car in black colour but within one year from the purchase of car, it was having the inherent manufacturing defect in original paint as it was of a low quality and it became dull and faint to such an extent that it shows the new car of the complainant like a very old and rustic car. The complainant lodged complaints with opposite party No.1 as well as opposite party No.2 on their toll free numbers +18002094646 & +18001026464 many times and even they admitted that there is manufacturing defect in the paint work of the car but every time false assurances were given by the opposite parties that they will resolve the problem and thereafter they got ready to repaint the whole car of the complainant. It is pertinent to mention over here that every time when the complainant brought the vehicle in the premises of the opposite party No.1, they inspected the vehicle minutely and even they also admitted that there is manufacturing defect in the paint work of the car but even then opposite party No.1 was not inclined to note down the paint work defect in writing . However, in the month of July, 2015 complainant lodged complaint to the higher official of opposite party No.2 regarding the inherent manufacturing defect in the paint work of the car on their toll free numbers and also mailed to them . In reply to that opposite party No.2 vide e-mail dated 19.7.2015 and 24.7.2015 Ex.C-4 & Ex.C-6 admitted the paint defect in the car and assurance was given by them to resolve the paint issue of the car and to get in touch with Mr. Navdeep of opposite party No.1 . Thereafter the complainant visited opposite party No.1 so many times and contacted Mr. Navdeep regarding the defective paint work in the car and requested him to resolve the problem and to repaint the whole car completely but to no avail. In order to prove his case complainant has produced on record Technical inspection report of Sharma Auto Mobile Ex.C-11, who gave his opinion that the defects in the original paint of vehicle in question are inherent in nature . In support of his report affidavit of Pankaj Sharma, proprietor of Sharma Auto Mobile Ex.C-10 is placed on record. However, on the other hand opposite parties have not placed on record any counter affidavit to rebut the contents of the abovesaid technical inspection report . However, opposite party has placed on record affidavit of Jatinder Papneja Ex.OP1/2 as an expert witness , who has not inspected the vehicle in question personally , rather he mentioned his designation as Sr. Manager, who looks after the dealership of opposite party No.2. He has also not placed on record his qualification record . Even the said person in his affidavit Ex.OP1/2 did not mention any lapse or short comings in technical inspection report Ex.C-11 . In regard to the objection raised by the opposite parties that the vehicle met with an accident thrice, complainant filed his additional affidavit Ex.C-12 in which it has been specifically stated that neither the car in question of the complainant met with an accident nor the both right side doors were damaged, as alleged. However, the evidence adduced by the opposite parties such as Invoices Ex.R-4 to Ex.R-6 has nothing to do with the defective paint work of the car of the complainant as there is no reference in the alleged invoices that there are any scratches occurred on the car on account of any alleged accident or repaint is required to be done on account of any accident. Even the opposite parties have not filed any counter affidavit to rebut the contents of additional affidavit of the complainant Ex.C-12 in order to show that the vehicle met with an accident thrice , as alleged. On the other hand, the case of the opposite party No.1 is that the car in question has been purchased on 31.12.2012 in the name of M/s. Bihari Lal Jagan Nath and the warranty has expired on 30.12.2014. However, the car in question has been repaired on account of accident vide retail invoice Ex.R-4 on record . Thereafter the car has again met with an accident on 14.1.2015 as well as 24.9.2015 vide job card Ex.R-4 & Ex.R-5. Out of the three invoices, opposite party No.1 has charged only once Rs. 4875/- on account of painting charges as shown in retail invoice dated 25.9.2015 Annexure R-6. Ld.counsel for the opposite party has vehemently contended that the allegation of manufacturing defect has been leveled after a period of 32 months i.e. in the month of September 2015 when the present complaint has been filed. But, however, to prove the allegation regarding manufacturing defect in the original paint, complainant has placed on record technical inspection report dated 15.3.2016 of Mr. Pankaj , a trained mechanical engineer . From the perusal of the report, it is clear, that it has taken more than two and half years to the complainant to notice the defect in the paint of the car. However, complainant has failed to give any expert evident with regard to other manufacturing defects. However, opposite party has placed on record affidavit of Mr.Jatinder Papneja, who is having experience of car service and maintenance of more than 15 years in the field of automobile . As such it can be concluded that the car in question has successfully run more than 60000 kms and the same is free from any manufacturing defect.
10. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has purchased a new Skoda car bearing registration No. PB-35-R-8181 from opposite party No.1 on 31.12.2012 having three years warranty as well as six years warranty for paint work defects, copy of warranty regarding paint accounts for Ex.C-3 on record. The case of the complainant that within one year from the purchase of the car the colour of the new car shows dull and faint . In this regard complainant approached the opposite party No.1 many a times to get the paint issue resolve. But the opposite party putting off the matter on one pretext or the other . In this regard complainant has produced on record copies of e-mails Ex.C-4 to Ex.C-6 on record which fully proves that the defect in the paint work as well as other defects occurred in the vehicle during the warranty period was not removed inspite of making so many efforts by the complainant. Complainant has also placed on record technical inspection report Ex.C-11 supported with affidavit of Mr.Pankaj Sharma, who made the said inspection report by confirming that due to inherent manufacturing defect in the original paint of the car on account of use of low quality paint, the new car of the complainant seems just like a very old and rustic car and it also diminished the value of the car. On the other hand opposite parties have not placed on record any substantial evidence to rebut the aforesaid inspection report of engineer of complainant. So it will be justifiable if the defect in the car of the complainant be removed by issuing directions to the opposite parties.
11. Consequently, the present complaint is disposed of with the directions to the opposite parties to repaint and repair the car of the complainant bearing registration No.PB-35-R-8181 free of costs to the satisfaction of the complainant within 30 days from the date of receipt of copy of order. However, complainant is directed to deliver the car to the opposite party No. 1 within 7 days from the date of order & thereafter the opposite party will repaint and repair the car of the complainant bearing registration No.PB-35-R-8181 free of cost to the satisfaction of the complainant. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 8.2.2017
/R/
