ORDER

13.08.2024

Sh. Sanjay Kumar, President

1. The factual matrix of the present case is that OP1 to 3 are the authorized dealers of OP4, and are also service provider to the customers of the OP4. OP4 is the manufacturer of Cross Polo Diesel Car make “1.2 CR Highline.
2. It is stated that on 22.12.2013 the complainant had purchased cross Polo Diesel Car make 1.2 CR Highline from OP3, against Invoice no. VSI130638 dated 22.12.2013 for a consideration of Rs.777150/- with assurance of good market value/re-sale value, good quality, 0 pollution, good mileage, good paint quality and less wear and tear, being the good brand of sister concern named Audi. It is further stated that since the date of purchase the aforesaid car did not run smooth and is causing troubles day in and day out and the complainant has been sending his car for repair to the OP1 and 2, but the said car could not be made fit for functioning and it has not served the purpose for which the complainant has spent such a huge amount on the assurance and representations of the OPs.
3. It is stated that complainant sent the said car to the workshop of OPs no.1 and 2, on various occasions i.e. 04.04.2014, 24.06.2014, 07.04.2014, 22.08.2014, 16.09.2014, 22.09.2014, 20.04.2015, 08.10.2015 and 26.11.2015 and the car is still not in good functioning condition. It is further stated that as per the assurance of OPs, a big emission standard has been caused  by the OPs to the complainant, not only this, for the aforesaid car i.e 1.2 Diesel Engine Soft ware for emission is still to be developed by the OPs. It is stated that OPs have sold a polluted car and defective piece suffering from manufacturing defect which could not be cured though so many efforts are made on the above noted dates. It is further stated that not only this the Ministry of Road Transport and High Ways have decided to take the action against the OPs under Motor Vehicle Acts and Rules, because they have played fraud and have cheated a number people including the complainant. 
4. It is stated that due to floating the defective vehicle in market, the re-sale value of the vehicle is “Zero” in the market. It is further stated that complainant has suffered mental agony, harassment, torture and humiliation at the hands of the OPs damages for which complainant assess at Rs.10,00,000/-. It is stated that OPs have failed to render the services for which they had received the price. It is further stated that OPs are liable to take the said vehicle back and refund the price so received by the OP and also pay the damages. It is stated that there is no re-sale value. It is further stated that complainant has been defrauded and cheated by the OPs.
5. The complainant is seeking direction against OP to refund the price of the car and also pay the damages and any other further order which deems fit and proper.
6. As per record OP1 proceeded ex parte vide order dated 01.02.2017 as failed to appear despite service.
7. OP2 filed detailed WS and taken preliminary submissions that the OP herein is an authorized dealer of Volkswagen passenger-cars manufactured by OP1 (hereinafter referred to as OP-manufacturer). Volkswagen Vento happens to be one such vehicle.
8. OP2 has taken preliminary objections that complainant under reply without mechanical inspection of subject vehicle is not maintainable. It is stated that the OP herein expresses its unconditional willingness to get the vehicle subjected to examination by or otherwise seek assistance of an independent and competent agency in terms provided for under Section 13(1)(c) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) and further guidelines enunciated by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Swaraj Mazda Limited Vs. P.K. Chakkappore and Another as reported in II (2005) CPJ 72 (NC) subject to further regard ot such other contemporary factors including but not limited to mileage done and service history of subject vehicle.
9. It is stated that the complaint as such merits being dismissed under Section 26 of the Consumer Protection Act, 1986. It is stated that the claim about subject vehicle being defective and/or OP herein singly or jointly with other OP being deficient in rendering of service is false & marred by malafide. It is stated that it is not the manufacturer of the subject vehicle and/or the selling dealer and as such not liable for manufacturing defect(s), if any.
10. It is stated that complaint is bad for misjoinder of parties. It is further stated that it is nothing more than the servicing dealer of subject vehicle. It is stated that the claim about OP herein being guilty of deficiency in service and/or selling a defective vehicle is misconceived per se hence denied.
11. On merit all the allegations made in the complaint are denied by OP2 and reiterated contents of preliminary submissions and objections. It is stated that the subject vehicle is a manifestation of contemporary technology and an engineering marquee, innovated, developed to deliver maximum performance under all convincible levels. It is stated that on 04.04.2014 the subject vehicle was found to have clocked 10892 km and subjected to change of shocker bearing under manufactuer’s warranty and/or without cost, thereafter, visit was on 24.06.2014 and clocked at 15972 and subjected to periodic maintenance service due to 15000 km and change of Solenoid Vaccum Convertor Valve under warranty. It is stated that the subject vehicle did not visit work premises of OP since then.
12. It is stated that the trouble supposedly plugging subject vehicle have not been spelt either which makes OP seriously suspect truthfulness of the claim of the complainant. It is stated that the diesel engine software for emission not developed by the OP. It is stated that OP is not guilty of rendering deficient service or indulge unfair trade practice. It is stated that complainant is not liable to any relief claimed in the complaint.
13. Complainant filed rejoinder to the WS of OP2 and denied all the allegations made therein and reiterated contents of complaint.
14. As per record OP3 proceeded ex parte vide order dated 01.02.2017 as failed to appear despite service.
15. OP4 has filed detailed WS and taken preliminary submissions that it is a company registered under the laws of India dealing in Marketing, sale and Servicing of Volkswagen Group Vehicles, through its dealers across India appointed on principal to principal basis. It is further stated that the answering OP being a sales company provides customers through its dealer, a warranty for certain period on the vehicles such sold by such Dealer upon certain terms and conditions.
16. It is stated that the Volkswagen cars are well known all over the world for its impeccable features and high safety standards which ensured trouble free and safe driving experience to the user of the car and its occupants. It is further stated that the “Polo” (hereinafter said car/vehicle) vehicle delivered to the complainant herein has passed through stringent quality tests and safety standards set by Volkswagen and only thereafter has the said car been delivered to the Volkswagen Authorized Dealer viz., M/s Globus Cars Pvt. Ltd. (OP1 in the present complaint) M/s Worldclass Automobiles P. Ltd. (OP2) and Surjeet Motors Pvt. Ltd. (OP3) referred to as the “said dealer/dealers” hereinafter, for onward sale to the complainant.
17. OP4 has taken preliminary objections that the complainant has no cause of action available to file the present complaint against OP4, therefore, the present complaint as such is liable to be dismissed in limine. It is stated that the above complaint discloses no cause of action against OP4 as there is no deficiency of service  on the part of OP4, therefore, the present complaint is liable to be dismissed.
18. It is stated that the Hon’ble Forum does not have the territorial jurisdiction to try the present complaint in as much as this OP4 is situated outside the territorial jurisdiction of this Hon’ble Forum and no complaint can be filed against this OP4, without obtaining leave of this Hon’ble Forum. It is further stated that the present complaint is a sheer abuse of process of this Hon’ble Forum and has been filed by the complainant with a malafide intention to unjustly enrich herself at the cost of the OPs.
19. On merit all the allegations made in the complaint are denied by OP4 and reiterated contents of preliminary submissions and objections. It is stated that the service history of the vehicle effects that the vehicle has been used excessively and was required to the reported at the workshop due to various wear and tear issues and did not require any warranty related support from OP4. It is stated that on 04.04.2014 when vehicle was reported at the workshop after completing 10892 kms in less than four months of the delivery the complaints were mainly regarding wear and tear of axle bearing which was rectified under warranty inspite being a wear and tear complaint.
20. It is stated that on 24.06.2014 within six months of the date of delivery vehicle was reported for routine maintenance service after completing 15972 kms which clearly shows excessive usage and road worthiness  of the vehicle. It is stated that on 07.04.2014 the vehicle was reported at the workshop for wheel alignment and same can get disturbed due to the driving conditions and at this particular episode the vehicle was being driven for more than 17200 kms which is around 1200 kms from the date of previous workshop visit in less than 10 days. It is stated that the alignment was carried out free of cost by the dealer.
21. It is stated that on 22.08.2014 the vehicle was reported to the workshop for front side vibrations, however, nothing abnormal was observed and the vehicle was delivered back to complainant on the same day at 21565 kms. It is further stated that on 16.09.2014 the vehicle was reported to the workshop for air conditioner and gear shifting relating concern which were carried  out under warranty free of cost. It is stated that the vehicle had suffered severe underbody damages due to rash and negligent driving pattern of the complainant. It is stated that repair work for the under body damage was carried out on a paid basis by the workshop at Rs.23274 kms within 9 months from the date of sale.
22. It is stated that on 24.09.2014 the vehicle was reported for issue like door noise, seat belt noise, steering noise which cannot be classified or labeled as manufacturing defect and the same were settled with minor adjustments with no repair cost to the complainant. It is further stated that on 20.04.2015 the vehicle was reported to the workshop for routine service after completing 35768 kms although recommendation is at 30000 km but complainant neglected and continued to use the vehicle in excess of 5700 kms. It is stated that no issue was reported by complainant except routine service. It is stated that on 08.10.2015 the vehicle was reported after completing 45239 kms for alleged humming sound and outside smell coming inside. It is stated that after carrying out detailed analysis it was found that wheel hub of the vehicle had completely worn out due to wear and tear yet the same was replaced under warranty purely as goodwill gesture. It is stated that the issue of smell was advised by the service advisor to replace the AC filter during the routine maintenance service but complainant refused due to the reasons best known to him.
23. It is stated that the servicing of the vehicle was due but complainant refused to get the servicing done for the reasons best known to him. It is stated that on 26.11.2015 the vehicle was reported at 47800 kms for routine services which was supposed to be done in October 2015 after completing 45000 kms. It is stated that complainant has refused to get rectified the issue of smell which was coming from inside. It is stated that another trouble was attributed to discharge of battery due to improper servicing schedule followed by complainant but the battery was replaced under warranty and under body noise was also rectified as per warranty provisions. It is stated that the issues were mainly due to driving conditions and driving habits of the complainant.
24. It is stated that the vehicle in less than two years of its purchase has covered more than 49980 kms and is still being used by complainant extensively. It is stated that issue of pollution is related to the alleged violation of MV Act. It is stated that no communication has been received by OP4 from any authority. It is stated that a show cause notice dated 04.11.2015 was sent to Volkswagen Group Sales India Pvt. Ltd. by ARAI. It is stated that final joint response was sent on December 15, 2015 stating that there is no violation of any of the norms prescribed in India. It is stated that the vehicle has approximately completed 50000 kms from the date of its delivery which clearly shows that the road worthiness of the vehicle. It is stated that complainant is not entitled to any relief claimed by the complainant.
25. Complainant filed rejoinder to the WS of OP4 and denied all the allegations made therein and reiterated contents of complaint.
26. Complainant filed evidence by way of her affidavit and reiterated contents of complaint. Complainant relied on copy of invoices Ex.CW1/1 and Ex.CW1/2, copy of job card, Ex.CW1/3 to Ex.CW1/21, copy of reports regarding emission Ex.CW1/22 to Ex.CW1/26 and copy of pollution certificate Ex.CW1/27 to Ex.CW1/28 (30).
27. OP2 filed evidence by way of affidavit of Mr. B. Rajendran Authorized Representative of OP2 and reiterated contents of WS.
28.  OP4 filed evidence by way of affidavit of Umesh Khadpe Chief Manager Legal and reiterated contents of WS.
29. Written arguments filed by complainant, OP2 and OP4.
30. We have heard Sh. D.K Sinha counsel for OP1, Sh. P.K Jha counsel for OP2 and Sh. Sanidhya Sonthalia counsel for OP4. We have gone through the written arguments filed by complainant as neither complainant nor counsel addressed oral arguments despite given ample opportunities.
31. In the case of “ Classic automobiles Vs. Lila Nand Mishra” as reported in I [2010] CPJ 235 (NC) wherein, the Hon’ble National Commission while dealing with the similar case has hold as under:

“ The onus to prove that there existed a manufacturing defect was on complainant/respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent nO.1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13 (1) (c) of the Consumer protection Act, 1986.”

32. Further, under catena of Judgements name “EID Parry Vs. Baby Benjamin-I (1992) CPJ 279, Tata Motors Vs. Sunil Bhasin –III (2008) CPJ 111, Chandreshwar Vs. Telco-I (2007) CPJ 2, Diamond Cement Vs. Rai Prexin India Pvt. Ltd. I (2003) CPJ I and Lovely Vs. Harmesh Lal-I (2007) CPJ 312.” On similar issues, the Hon’ble National Commission has held that expert opinion is a condition precedent for establishing manufacturing defect.
33. Now applying the above discussed principle in the present facts and circumstances of the case. In the present case complainant alleged that the car in question is a defective as it was sent on various occasion to service center of OP1 and 2 i.e on 04.04.2014, 24.06.2014, 07.04.2014, 22.08.2014, 16.09.2014, 22.09.2014, 20.04.2015, 08.10.2015 and 26.11.2015. The complainant filed the photocopy repair order dated 30.12.2013, 18.09.2014, 24.09.2014, 20.04.2016, 09.10.2015, 30.11.2015. We have gone through all the repair order/job sheets filed on record. In these job sheets there is no observation with regard to any manufacturing defect in the car in question. It is pertinent to mention here that in the complaint complainant did not elaborate the specific part or specific details of alleged manufacturing defect. The law is well settled that onus is on the complainant to establish manufacturing defect as alleged in the complaint. The complainant has not filed any documentary evidence to establish manufacturing defect in the car in question.
34. As per OP the car in question visited the work premises of OP on 24.06.2014 for periodic maintenance service due at 15000 km and at that time the kilometer shown was 15972 and during the periodic maintenance service change of solenoid vaccum converter valve which was under warranty carried out and vehicle was in working condition. As per  OP  on 07.04.2014 the vehicle was reported for wheel alignment which was carried out free of cost. The vehicle also reported on 22.08.2014 with the complaint of front side vibration which was delivered on the same day after repair and the kilometer shown that car has been run 21565 km. The vehicle again reported on 16.09.2014 for air conditioner and gear shifting related issues which was carried out under warranty. The vehicle further reported at 23774 km for under body damage which was due to rash and negligent driving pattern  and the repair was carried  out. The vehicle also reported on 24.09.2014 for issues  like door noise, seat belt noise, steering noise which are minor and without cost repair. The vehicle reported lastly at 45239 km on 08.10.2015 and found that vehicle hub was completely worn out due to wear and tear but it was replaced under warranty.
35. As per record the vehicle has been run upto 47800 km upto 26.11.2015 within two years of the purchase i.e on 22.12.2013. As per document on record the vehicle as and when visited by complainant at the workshop of OP it was repaired and all the complaints were rectified and vehicle remained in running condition. In case vehicle was having any manufacturing defect than it can’t be run more than 47000 kms. The OPs during warranty period carried out all the necessary repairs free of cost. The OP also carried out the routine maintenance services. The complainant failed to establish on record the alleged manufacturing defect against OP1 to 4. It is pertinent to mention here that complainant also not taken expert opinion to establish alleged manufacturing defect as per section 13 (1) (c) of CP Act, 1986. The law is well settled that an inherent manufacturing defects needs to be established through the process of examination by way of an expert opinion, however in the present case the complainant failed to establish.
36. On the basis of above observation and discussion present complaint is dismissed. No order as to cost. File be consigned to record room.
37. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  13.08.2024.

     SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER