COMPLAINT FILED ON: 26.09.2009

DISPOED ON: 09.03.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

9^TH MARCH 2011

  PRESENT:-  SRI. B. S. REDDY                            PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER              

COMPLAINT No.2281/2009

O R D E R

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint u/s 12 of the C.P. Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to pay sum of Rs.15,77,300/- with interest at 18% p.a. along with litigation costs on the allegations of deficiency in service on the part of the OPs.

2.      The case of the complainant is to be stated in brief is that:

The complainant has been carrying on consultants in real estate marketing and allied activities under the name and style M/s Sai Raksha Group at Bangalore. OP-1 is the manufacturer of the cars with brand name Skoda, OP-2 is the dealer of the same. The complainant purchased a Skoda Fabia Elegance-Diesel car from OP-1 on 26.05.2008 by paying an amount of Rs.8,91,664/- to the OP-2. The vehicle purchased is registered in the name of the complainant, the registration No.KA-05 MF-7461. It is stated that right from the beginning OP-1 deliberately given wrong information to the complainant and made him to part with more amount than what was actually payable. In the invoice raised by OP-2 an amount of Rs.18,677/- is shown towards insurance amount, but the policy of insurance issued disclosed that only a sum of Rs.17,322/- was paid towards the insurance amount. Thus a sum of Rs.1,355/- was collected in excess and the same was never refunded to the complainant. Further a sum of Rs.5,000/- was collected by OP-2 as handling charges and the complainant does not understand on what basis, the same has been collected from him. On 30.05.2008 within two days from the date of purchase of the vehicle one of the tyres was burst and the same was totally damaged, the complainant had purchased a new tyre by paying an amount of Rs.7,000/-. The very fact that within two days one of the tyres got burst clearly indicates that the vehicle which was delivered to the complainant was not fitted with tyres of good quality and there was deficiency in service in this regard also. In fact OP-2 had to replace a new tyre on their cost and could not have charged the complainant in this regard. On 25.12.2008 the vehicle had been sent to OP-2 for repairs in connection with the damage that was caused to crankesh cover. At that time it was informed to the complainant that the same will be repaired and returned within 15 days. OP-2 failed to deliver the same within 15 days as promised. The vehicle was delivered only on 26.03.2009. The delay caused in delivering the vehicle after effecting the necessary repairs caused lot of convenience to the complainant. The cost of repairs had come to Rs.2,56,280/- and out of that by deducting the claim which was settled by insurance company, the complainant was made to pay further sum of Rs.90,823/-. Throughout the complainant was informed by the personnel at the service centre that the spare parts are not available and the vehicle will be delivered as soon as the spares available to them and same had to be imported. The complainant is in no way responsible for the non availability of the spares and the consequent delay in repairing the vehicle. In this view of the matter, there was gross deficiency in service on the part of the OP-2 in not repairing the vehicle immediately and delivering the same within reasonable time. The complainant had to spend more than Rs.1,000/- per day during the said period for his travel needs and the same is mainly due to inordinate delay on the part of OP-2 in effecting the repairs and giving delivery of the same to the complainant. The complainant has reliable information that the rates at which the spare parts are charged in the workshop invoice are on a very higher side and the same do not actually represent the real cost of the spares. The spare parts have been exorbitantly over valued.

Even after the vehicle was delivered in the month of March – 2009, the same was not working full satisfaction of the complainant, which started developing different problems. It was claimed that the diesel vehicle would give minimum mileage of 13 to 14 kms per liter, but the vehicle giving a mileage of only 9 kms per liter. The coolant was leaking. The front window on the passenger side was not working. There was noise that was emanating from the engine on the front right side. The engine shield was not properly fixed. These problems started developing within three months from the date on which the vehicle was delivered to the complainant. In this background the vehicle delivered to workshop of OP-2 on 08.06.2009 and so far the vehicle has not been repaired and redelivered till the month of July – 2009. In view of the aforesaid facts it is clear that the vehicle in question suffers from serious manufacturing defects there has been gross deficiency of service on the part of the OP-2. The vehicle had such serious problems which suffer from manufacturing defects; OP-1 is responsible for the same. Legal notice dated 23.07.2009 was issued to the OPs informing that complainant has no interest in taking the delivery of the vehicle any more and calling upon the OPs to refund the entire value of the vehicle with interest at 18% p.a. and also calling upon OPs to compensate the expenses incurred by the complainant for the period 25.12.2008 to 26.03.2009 at the rate of Rs.1,000/- per day and also to compensate the complainant for the expenses incurred by him from 08.06.2009 till date. Further OPs were called upon to refund sum of Rs.90,823/- collected from the complainant towards vehicle maintenance on 26.03.2009 as despite the payment of the said amount the vehicle continued to develop problems and the same had to be redelivered to OP-2 for effecting repairs which has not been done till July – 2009. Advocate for OP-2 have sent a letter dated 07.08.2009 to the advocates for the complainant stating that suitable reply will be given after receiving the instructions form OPs. OP-1 has not responded to the notice. Thus the complainant claims the following amounts:

Hence the complaint.

3.      On appearance, OP-2 filed version and the same is adopted by OP-1. In the version filed it is admitted that OP-1 is the manufacturer of the car Skoda Fabia and OP-2 is its authorized dealer and it is also admitted that the complainant has purchased a Skoda Fabia car which bears registration No.KA-05 MF-7461. It is denied that right from the beginning OPs have given wrong information deliberately and made him the complainant part with more amount than what was payable. It is stated that out standing credit balance with regard to insurance amounting to Rs.1,355/- is with OPs. OP-2 has repeatedly requested the complainant to give letter seeking for refund of the said amount and the letter was required for their internal audit purposes. The complainant never bothered to give said letter. It is admitted that the amount of Rs.5,000/- has been collected as handling charges for services rendered towards registration, getting number plate and pre delivery inspection and other miscellaneous expenses during registration and delivery process. This was informed to the complainant at the time of booking of the car itself and the complainant had agreed to same out of his own will and volition. Now the complainant cannot raise any objections for having paid the said amount. The components not manufactured by OP-1, but supplied by other vendors are not covered under the warranty of OP-1, as per the warranty manual. Tyres are wear and tear items and the life of them depends upon various factors such as load and road conditions. Driving habits etc., and hence the same are not covered under warranty. However upon inspection of the tyres by the dealership it was confirmed that the tyre burst is not due to manufacturing defect, but due to an external impact. The external impacts are not covered under warranty of tyre manufacturers as well. There has been no deficiency of service; OP-2 is not liable to bear the costs of new tyre as the earlier tyre burst due to external impact, an act of complainant, which was not covered under warranty guidelines.       

          The complainant brought the car to OP-2 workshop for accident repairs. OPs personnel can only examine the car externally and are not permitted to open the car before the surveyor examines the car. After the surveyor approved the estimates OP-2 intimated the complainant and sought his approval for repairs. After complainant approved the estimates OP-2 undertook the repairs. Due to highly technical nature of work involved in repairing accidental cars; there are certain slow moving and intricate parts which have to be imported from the parent company of OP-1 from Czech Republic. In such kind of extraordinary instances it does take some time for the parts to arrive at the workshop. The car was repaired to the satisfaction of the complainant and delivered to him. By the time car was brought for accidental repairs the car had run for almost 15924 kms. The complainant is well aware that it is an imported car assembled in India. Some of the spare parts are also specific to the particular car. Some of the engine components of the car were found to be damaged in the accident. OPs cannot be held responsible for the delay in any manner caused for highly technical nature of work involved in repairing an accidental vehicle and hence are not liable for the same. It is denied that the complainant had spent more than Rs.1,000/- per day during the said period for his travel needs and it is denied that the same is due to inordinate delay on the part of the OP-2. OP-2 charged for the spare parts as per the rate list provided by Skoda and the complainant has not been overcharged.

          It is admitted that the car was brought to OP-2 workshop again on 08.06.2009 raising certain concerns and by that time the car had run almost 20,648 kms. OP-2 repaired the car to the satisfaction of the complainant and kept the car ready for delivery on 09.06.2009. OP-2 called upon the complainant several times to take delivery of the car, the complainant for reasons best known to him has not chosen to take delivery of the car. The car has run almost 20,648 kms and has also met with an accident wherein inter alia some of the engine components were damaged. The car would not have been run the distance of 20,648 kms if there were any manufacturing defects. The complainant cannot seek for a refund of the amount paid towards purchasing the car and also for expenses allegedly incurred at Rs.1,000/- per day from 25.12.2008 till 26.03.2009 and from 08.06.2009 till date. The car stands repaired ready for delivery since 09.06.2009 and the complainant has refused to take delivery with a malafide intention of unjustly enriching himself from OPs, by approaching this Forum suppressing relevant facts. After the complainant has sent the legal notice OPs approached him and explained the facts and requested to take delivery of the car. The complainant chose not to take delivery of the car but instead chose to approach this Forum. The problems with the car are not due to manufacturing defect. There is no deficiency in service; OPs have attended to the complaints made by the complainant promptly and have not been irresponsible towards complainant. Hence it is prayed to dismiss the complaint with exemplary costs.       

4.      In order to substantiate the complaint averments, the complainant filed affidavit evidence. The Company Secretary of OP-1, an employee as head service in OP-2 filed their affidavit evidence in support of the defence version and produced documents.

5.      For the interrogatories filed by the complainant, OPs-1 and 2 filed replies.

6.      OPs filed written arguments. Arguments on both sides heard. Points for consideration are:

                   Point No.1:- Whether the complainant proved the

                                      deficiency in service on the part of the

                                      OPs?

Point No.2:- Whether the complainant is entitled for

                   the relief’s now claimed?

Point No.3:- To what Order?

7.      We record over findings on the above points:

Point No.1:- Affirmative as against OP-2.

Point No.2:- Affirmative in part. 

Point No.3:- As per final Order.

R E A S O N S

8.      At the outset it is not at dispute that OP-1 is the manufacturer of cars with brand name Skoda and OP-2 is the dealer of OP-1 of the said cars. The complainant purchased Skoda Fabia Elegance Diesel Car from OP-1 by making payment of Rs.8,91,664/- to OP-2 on 26.05.2008. The said vehicle is registered in the name of the complainant bearing registration No.KA-05 MF-7461.

The complainant claims that OP-2 being the dealer of OP-1 had given deliberately wrong information from the beginning and made him to part more amount than what was actually payable. In the invoice raised by OP-2 it is shown that a sum of Rs.18,677/- has to be paid towards insurance amount, but the policy of insurance issued disclosed only a sum of Rs.17,322/-. Thus an amount of Rs.1,355/- was collected in excess and the same was never refunded to the complainant. Further it is stated that a sum of Rs.5,000/- was collected by OP-2 as handling charges, the complainant does not understand on what basis the same has been collected.

OP-2 admits the fact that an amount of Rs.18,677/- was paid by the complainant towards the insurance. However the insurance offered the discount and Rs.17,322/- was paid towards the insurance. The out standing credit balance with OP-2 is Rs.1,355/-, OP-2 has repeatedly requested complainant to give a letter seeking for refund of Rs.1,355/- to enable them to refund the amount as the letter was required for their internal audit purposes, the complainant never came forward to give the said letter. From this defence it becomes clear that because of the insurance company offered a discount, out of the amount paid towards insurance; an amount of Rs.1,355/- remained to the outstanding credit balance of the complainant with OP-2 and the complainant has not furnished the required letter seeking refund of the said amount, as such the said amount remains still with OP-2. It cannot be said that OP-2 deliberately collected excess amount from the complainant towards insurance. Had the complainant given letter for refund of the said amount OP-2 could have refunded the same. Such request letter for refund was necessary for the internal audit purposes, as per OPs version and affidavit evidence. Further an amount of Rs.5,000/- collected from the complainant was towards handling charges for service rendered towards registration, getting number plate and pre delivery inspection and other miscellaneous expenses during registration and delivery process. The complainant at the time of booking of the car agreed to pay the said amount. If the complainant was not satisfied with the reasons for paying that amount as demanded, he could have refused to pay the same. It appears that the complainant after satisfying himself the purpose for payment of that amount has agreed and paid the amount, now he cannot be permitted to contend that he was unable to understand the reason as to why that amount was collected.

9.      The complainant claims that within two days of the purchase of the vehicle, one of the tyres of the vehicle was burst on 30.05.2008 and the same was totally damaged, he purchased a new tyre by paying an amount of Rs.7,000/-, the copy of the receipt dated 30.05.2008 is produced in support of the same. It is contended that the very fact that within two days of purchase, one of the tyres burst clearly indicates that the vehicle was not fitted with tyres of good quality, OP-2 ought to have replaced a new tyre on their cost; as such there was deficiency in service in this regard.

          From the defence version of OP-2 and affidavit evidence it is stated that the tyre burst is not due to manufacturing defect, but due to an external impact. The external impacts are not covered under the warranty of tyre manufactured as well. The components not manufactured by OP-1, but supplied by other vendors are not covered under the warranty, as per warranty manual. It may be noted that the complainant has not obtained opinion of any expert for having examined the tyre and opined that the tyre burst was on account of manufacturing defect. Without any experts opinion on the point merely because there was tyre burst within two days of purchase of vehicle; it cannot be presumed that the tyre burst was on account of manufacturing defect. As per the defence version upon inspection of the tyres it was informed that the tyre burst was due to on external impact. Without there being any material in support of the contention of the complainant that the tyre burst was due to manufacturing defect; we are unable to accept that the vehicle was not fitted with proper components and OP-2 ought to have replaced the said tyre on his own cost and OPs are liable to reimburse the amount of Rs.7,000/- paid by the complainant for purchasing the tyre.

10.    The complainant claims that on 25.12.2008 the vehicle had been sent to OP-2 for repairs in connection with damage caused to crankesh cover and at that time, he was informed that the vehicle will be repaired and returned within 15 days, but the vehicle was delivered only on 26.03.2009. The delay in delivering the vehicle caused lot of inconvenience to the complainant. The complainant was made to spend more than Rs.1,000/- per day during the said period for his traveling needs. The total cost of repairs had come to Rs.2,56,280/- and out of that after deducting the claim settled by insurance company, the complainant was made to pay further sum of Rs.90,823/-. While raising the workshop invoice, the cost of the spare parts have been exorbitantly over valued. Even after the vehicle was delivered, the same was not working to the full satisfaction of the complainant; the vehicle started developing different problems. The minimum mileage of the diesel vehicle was 13 to 14 kms per liter, but the mileage of this vehicle was only 9 kms per liter. The coolant was leaking; the front window on the passenger side was not working. There was noise emanating from the engine on the front right side. These problems started developing within three months from the date on which the vehicle was delivered to the complainant. Therefore the vehicle was again taken to the workshop of OP-2 on 08.06.2009 and so far the vehicle has not been repaired and redelivered to the complainant. Thus the complainant is claiming refund of that amount of repairs Rs.90,823/- paid to OP-2 and an amount of Rs.1,000/- per day towards the expenses incurred for his daily travel needs and totally amount of Rs.1,98,000/- is claimed towards travelling expenses incurred.

          The defence of the OPs is that the vehicle was brought to the workshop of OP-2 for accident repairs. After the surveyor approved the estimates OP-2 intimated the complainant and sought his approval for repairs. After the complainant approved the estimates OP-2 undertook the repairs; due to highly technical nature of work involved in repairing of accidental car, there were certain slow moving and intricate parts which have to be imported from the parent company of OP-1 from Czech Republic. The specific spare parts required had to be imported from principle manufacturer. The import of such parts does take time, OP cannot be held responsible for the delay on account of highly technical nature of work involved in repairing an accidental vehicle by importing required spare parts.

          The copies of estimates, produced by OP reveals that the preliminary estimates were made on 26.12.2008, the supplementary estimates made on 09.02.2009. In the reply to the interrogatories, the General Manager of OP-2 has stated that after re-inspection of the engine by insurance company the car was ready for delivery. The customer has taken delivery of the car after being satisfied about its road worthiness on 21.02.2009. In our view, the complainant knowing fully well that the vehicle purchased is imported car assembled in India purchased the same. Some of the spare parts for attending the repairs was required to be imported from the parent company of OP-1 Czech Republic. The complainant has not disclosed the fact that the vehicle met with an accident and it was taken for the damage caused in the accident to the workshop of OP-2 for repairs. OPs produced copy of the job card wherein it is clearly mentioned that the purposes of visit to the workshop as ‘accident’. We are unable to accept the contention of the complainant that this job card has been created showing its purpose of visit as accident. There was no reason for OP-2 to create such a document. The estimates prepared by OP-2 for attending the repairs goes to show the various components of the vehicle required to be replaced for attending the repairs. The total cost of repairs worked out at Rs.2,56,280/- if it was only a damage to crankesh cover as stated in the complaint, there could not have been such a huge cost of repairs. After deducting the insurance claim settled by insurance company, the balance repair charges for Rs.90,823/- had been paid by the complainant to OP-2. There is no material to hold that the cost of the spare parts shown in the invoice has been exorbitantly over valued as claimed by the complainant. The complainant has paid the amount without disputing the cost of spare parts. On account of the vehicle being involved in the accident, suffered damage to the engine, OPs have to import certain spare parts from principle office of manufacturer and attend the repairs. Thus the time taken for about three months in attending the repairs and delivering the vehicle cannot be considered as deficiency in service on the part of the OPs. There is no material to show that at the time when vehicle was taken to the workshop OP-2 assured that the same would be repaired and redelivered within 15 days as claimed by the complainant. The supplementary estimates was made on 09.02.2009 and after approval of the same by the complainant and insurance company the necessary repairs attended and the vehicle was delivered on 21.02.2009.                      

11.    The complainant is claiming refund of the cost of the vehicle on the ground that the vehicle in question suffers from serious manufacturing defects. It may be noted that the vehicle was purchased on 26.05.2008 and the same was taken to the workshop of OP-2 for repairs on 25.12.2008. By that time the vehicle had run for almost 15924 kms. Again when the vehicle was taken for the second time to the workshop on 08.06.2009 it had run almost 20,648 kms. If there was any manufacturing defects in the vehicle, the vehicle could not have been run that much of distance. There is no any opinion of an expert for having examined the vehicle and opined that there is any manufacturing defect in the vehicle. The mere allegation that the mileage of the vehicle is 9 kms per liter as against the minimum mileage of 13 to 14 kms per liter, without any supporting material like opinion of any technical expert, is not sufficient. Further when the vehicle was taken to the workshop of OP-2 on 08.06.2009 with a complaint, the coolant was leakage, the front window on the passenger side was not working, the noise was emanating from the engine on the front side, the engine shield was not properly fixed are not the grounds to hold that there is any manufacturing defect in the vehicle. Under these circumstances we are of the view that the complainant failed to prove that the vehicle in question suffers from manufacturing defects, as such he is not entitled to claim refund of the cost of the vehicle.

The complainant had taken the vehicle to workshop of   OP-2 on 08.06.2009, the copy of the job card reveals that the vehicle was required to be checked with regard to the mileage (9 kms), for cooling leakage, passenger side power window was not working, noise from front right side and to re-fix engine shield properly. The complainant claims that though the vehicle was taken to the workshop on 08.06.2009, but the same has not been repaired and re-delivered, the legal notice dated 26.07.2009 was issued to the OPs, OP-2 has sent letter dated 07.08.2009 to the Advocate of the complainant stating suitable reply will be given after receiving instructions from the client. OP-1 has not responded to the legal notice. Thus OP-2 had not re-delivered the vehicle and the vehicle is still in the workshop.

          The defence of the OPs is the vehicle was kept ready for delivery after attending repairs on 09.06.2009 itself. OP-2 has called upon the complainant several times to take delivery of the car, but the complainant for reasons best known to him is chosen not to come forward to take delivery of the car. With regard to the legal notice the defence of the OPs is after receipt of the legal notice they approached the complainant and requested him to take delivery of the car, the complainant choose not to take delivery of the car, but instead choose to approach this Forum. In our view the defence of the OPs that the car was kept ready for delivery on 09.06.2009 itself cannot be accepted. In case if the car was ready for delivery on 09.06.2009 itself, the immediate conduct of these OPs after receipt of the legal notice would have been replying the same stating that the car is kept ready since 09.06.2009 for delivery, but the complainant himself has choose not to come forward to take the delivery. Non reply to the legal notice leads to draw adverse inference to the effect that the car was not kept ready for delivery even when the notice was received by OPs. Further we are unable to accept the defence that after receipt of the notice OPs approached the complainant and requested him to take delivery of the car. This complaint is filed on 26.09.2009, till that date OPs have not intimated the complainant in writing about the fact of vehicle being kept ready for delivery after attending the repairs. The complainant was deprived of making use of the vehicle for his day to day work and he was made to spend amount for his travel needs. On account of delay in attending the repairs the complainant has to incur expenses towards travelling and has suffered mental agony. The act of OP-2 in not attending the repairs within a reasonable time and delivering the vehicle to the complainant amounts to deficiency in service on the part of the OP-2. Taking in to consideration of all the facts and circumstances, it would meet ends of justice by awarding an amount of Rs.50,000/- towards travelling expenses incurred and compensation of Rs.50,000/- towards mental agony; in all Rs.1,00,000/-. OP-2 is liable to pay the said amount to the complainant. The complainant failed to prove any manufacturing defects in the vehicle as such OP-1 is not liable for any claim. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant allowed in part.   OP-2 is directed to pay an amount of Rs.1,00,000/- with litigation cost of Rs.5,000/- to the complainant. The complainant is at liberty to take delivery of the vehicle from the workshop of OP-2.

The complaint against OP-1 stands dismissed.

This order is to be complied within four weeks from the date of this order.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 9^th day of March – 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

 Snm: