KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No. 04/2024

ORDER DATED: 21.11.2024

(Against the Order in I.A. 381/2023 in C.C. 475/2021of DCDRC, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

REVISION PETITIONER:

Kiran Aravindhakshan Nair, S/o Aravindhakshan Nair, residing at Payikattu Hills, Kottamuri P.O., Changanassery, Kottayam-686 105.

           (By Adv. George Cherian Karippaparambil and Adv. S. Reghukumar)

RESPONDENTS:

1. M/s Volkswagen India, represented by its Manager, Head Office, Cardinal Gracious Road, Chakkala, Andheri East, Mumbai-400 099.

2. EVM Volkswagen Dealer represented by its Manager, 2/4 CD Service Road, Opp: BTH Sarovaram, Maradu, Kannadikad, Kochi-682 304.

                                      ORDER

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The revision petitioner is the complainant in C.C. No. 475/2021 on the files of the District Consumer Disputes Redressal Commission, Ernakulam (“the District Commission” for short).  The respondents are the opposite parties therein. 

2.  The complainant filed the above complaint alleging deficiency in service on the part of the respondents in connection with the free service of the vehicle purchased by the complainant from the 2^nd opposite party on 04.04.2019.  On 27.08.2021, while the complainant was driving the vehicle, the vehicle stopped working.  Immediately, the fact was informed to the 2^nd opposite party who had taken the vehicle to the service center.  On inspecting the vehicle, it was realized that the vehicle had failure of Common Rail System, which is the system for fuel injection.  The complainant wanted to get it rectified free of cost as the incident was within the warranty period. 

3.  The 2^nd opposite party had taken a contention that the failure of Common Rail System of the vehicle was due to the water content in the fuel used in the vehicle and hence the 2^nd opposite party was not bound to repair it under the warranty.  In the said circumstances, the complainant filed the complaint before the District Commission along with I.A. No. 33/2022, praying for sending the sample of diesel for examination in a laboratory.  I.A. No. 33/2022 was allowed by the District Commission and the sample was ordered to be taken by a Motor Vehicle Inspector.  The Motor Vehicle Inspector accordingly had taken the sample from the vehicle at the service center of the 2^nd opposite party and forwarded the same to the Regional Chemical Examiner’s Laboratory, Kakkanad. 

4.  The Chemical Examiner’s Laboratory, after the examination of the sample, filed a report before the District Commission, which would show that the diesel tested in the laboratory did not contain any water content.  Thereafter, the 2^nd opposite party filed I.A. 381/2023 alleging that the sample was tested in a laboratory under BPCL, which was the company supplying diesel to the petrol pumps.  In view of the above contention, the District Commission directed the sample to be sent to SG Laboratory, Pune, for analysis and report, as requested by the 2^nd opposite party, disregarding the objection filed by the complainant.   Aggrieved by the said order, this revision petition has been filed. 

          5.  Heard both sides. 

6.  It appears that the sample of diesel was ordered to be tested in the Regional Chemical Examiner’s Laboratory, Kakkanad as per order in I.A. No. 33/2022 to ascertain as to whether the sample of diesel was contaminated with water or not.  The Chemical Examiner’s Laboratory, after the examination of the sample, filed a report stating that the diesel tested in the laboratory did not contain any water content.  Thereafter, on the request of the 2^nd opposite party, the sample was ordered to be forwarded for examination in the SG Laboratory, Pune as per the order in I.A. No. 381/2023, as the District Commission believed that the sample was tested in a laboratory under BPCL as contended by the 2^nd opposite party.  The District Commission did not even incline to see the report of the Chemical Examiner’s Laboratory, before allowing I.A. No. 381/2023.

7.  The test report available before the District Commission would show that the sample was tested in the Regional Chemical Examiner’s Laboratory, Kakkanad, which is the appropriate laboratory under the Consumer Protection Act.  As per Sec. 38(2)(c) of the Consumer Protection Act, 2019 (“the Act” for short), the sample shall be tested only in an appropriate laboratory.  The appropriate laboratory is defined under Sec. 2 (2)(ii) of the Act.  A laboratory recognized by the State Government is considered as an appropriate laboratory.  In this case, the testing was done by a laboratory under the Government of Kerala.  Therefore, it can be said that the testing was done in an appropriate laboratory and for the said reason alone, the direction to test the fuel again in another laboratory, namely, the SG Laboratory, Pune, cannot be sustained.  That apart, the District Commission ordered to forward the sample to a private laboratory, namely, SG Laboratory, Pune, which is not a laboratory contemplated under Sec. 38(2)(c) of the Act.  For the said reason also, the order impugned cannot be sustained.  Having gone through the relevant inputs, we are satisfied that the order impugned is not legal, proper and correct and consequently we set aside the same. 

In the result, this revision petition stands allowed and the order of the District Commission in I.A. No. 381/2023 in C.C. No. 475/2021 dated 29.12.2023 stands set aside.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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