PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of October 2012
Filed on : 16-07-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 397/2010
Between
Santha Grace Mathew, : Complainant
W/o. Mathew, 3A, (By Adv. S. Murali, 42/1685,
Link Horizon, Marine Drive, Pawathil road, Ayyapapan Kavu
Kochi. Kochi-682 018.)
And
1. M/s. Skoda Auto India Pvt. Ltd. : Opposite parties
Plot No. A-1/1, (Ops 2&4by Adv. P. Fazil, Lawyers
Shendra, Five Start Industrial United 36/1912 A, Sebastian road,
Area MIDC, Kaloor, Kochi-17)
Aurangabad-431201.
2. Managing Director,
Skoda Auto India Pvt. Ltd.,
Plot No. A-1/1, Shendra,
Five Start Industrial
Area MIDC,
Aurangabad-431201.
3. Marikar Engineers Pvt. Ltd.,
32/2401-A, NH47,
By Pass road,
Chakaraparambil,
Cochin-682 032.
4. Managing Director,
Marikar Engineers Pvt. Ltd.,
32/2401- A, NH47.
By pass road, Chakaraparambil,
Cochin-682 032.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant purchased a SKODA Laura MT 1.9 TDC car from the 3rd opposite party on 11-11-2006 at a total price of Rs. 15,95,019 which was manufactured by the 1st opposite party. Time and again the complainant had to approach the 3rd opposite party to repair the defects of the engine and the air-conditioner. However the 3rd opposite party failed to rectify the defects permanently. On 05-04-2010 while the complainant and his family were on their way to Palakkad from Cochin, the vehicle suddenly stopped on the National Highway. The 3rd opposite party towed the vehicle to their workshop and at their instance the Turbo was replaced by spending Rs. 1,50,000/-. The 3rd opposite party took 3 months for the repair, in the meantime they provided a stand by vehicle to the complainant. The complainant had sought opinion of technical experts and they opined that failure in turbo will lead to failure of engine and other major parts. The vehicle suffers from inherent manufacturing defect. The complainant had to have another vehicle for their journey and spent Rs. 4.8 lakhs towards taxi charges. The opposite parties failed to provide prompt service during warranty and thereafter. The complainant had to suffer mental agony and financial loss due to the deficiency in service and unfair trade practice on the part of the opposite parties. So the complainant is before us with the following reliefs.
i. to direct the opposite parties either to replace the vehicle or to refund its price together with a compensation of Rs. 3.5 lakhs
OR
ii. to direct the opposite parties to pay a lump sum compensation of Rs. 19,56,000/-
iii. to pay Rs. 25,000/- towards costs of the proceedings.
2. The version of the 3rd and 4th opposite parties.
The complainant purchased the car for the purpose of commercial activity and thus the complainant is not a consumer within the ambit of Consumer Protection Act. The 1st and 2nd opposite parties are the manufacturers and the 3rd and 4th opposite parties are the authorized dealer and service centre of the vehicle. The car was covered by the defective parts replacement warranty of 2 years from the date of purchase which expires on 09-11-2008. The car met with an accident on 30-06-2009 at 45446 kms. The bill for the accident repair was Rs. 25,105/-. The vehicle was delivered after service on 06-07-2009 and the complainant paid the total amount of Rs. 32,025/- including service charges. The complainant never reported any complaints to the air conditioner or to the engine at any time during the warranty period . The complainant reported ‘cooling low’ complaint of the air conditioner on 28-09-2009 and 09-10-2009. The air conditioner was thoroughly checked by the opposite parties. On 05-04-2010 the vehicle was broken down due to failure of Turbo. The cost of the Turbo was Rs. 1,50,000/- as goodwill gesture the opposite parties replaced the turbo by giving 50% reduction on cost. At the request of the complainant the opposite parties provided a stand by vehicle to the complainant on 24-06-2010. The allegations of the complainant are not supported by any scientific study or technical reasons. The vehicle supplied to the complainant is not suffering from any manufacturing defect as alleged by the complainant. There is no deficiency in service or unfair trade practice on the part of the opposite parties as claimed by the complainant. The complainant has been using the car without any defect and so he is not entitled to get any of the reliefs sought for.
3.In spite of receipt of notice from this Forum the 1st and 2nd opposite parties did not respond to the same for reasons of their own. The power of attorney and the witnesses for the complainant were examined as PWs. 1 to 3 respectively. Exts. A1 to A7 were marked. No oral evidence was adduced by the 3rd and 4th opposite parties, Exts. B1 to B16 were marked. Heard the learned counsel for the contesting parties.
4. Going by them the points that arose for consideration are as follows:
i. Whether the complainant is entitled to get replacement of the
car with a new one or to get refund of its price?
OR
ii. Whether the complainant is entitled to get a lump sum
compensation of Rs.19,56,000/-?
iii. Whether the opposite parties are liable to pay costs of the
proceedings to the complainant?
5. Points Nos. i to iii. It is not in dispute that on 11-11-2006. the complainant purchased a Skoda Laura car from the 3rd opposite party at a price of Rs. 15,95,019/- which was manufactured by the 1st opposite party. It is also not in dispute that two years warranty from the date of purchase has been provided by the 1st and 2nd opposite parties. It is pertinent to note that a single complaint was raised during this period. According to the complainant the vehicle suffers from inherent manufacturing defect and he is entitled either to get replacement of the car or to get refund of its price. The opposite parties 3 and 4 vehemently refuted the arguments of the complainant and contended that the vehicle is free from any defects and the complainant has been using the vehicle without any defects.
6. PW1 the power of attorney of the complainant deposed in tune with the contentions of the complainant. To prove the manufacturing defect of the vehicle the complainant examined PWs 2 and 3. Though PWs 2 and 3 claimed that they had occasion to examine the vehicle and the vehicle suffers from various defects, we are not to rely on the deposition of PWs 2 and 3 for the simple reason that no evidence is on record to substantiate the same and they were not appointed by this Forum for the purpose. According to the Hon’ble National Consumer Disputes Redressal Commission, for proving fact of manufacturing defect of a vehicle, expert opinion is necessary. (Kumari. Narmata Singh Vs. Manager Indus – A Division of Electrotherin & Anr. 2012 (3) CPR 570 (NC) ). In the absence of such evidence we are of the firm view that the complainant is neither entitled to get replacement of the car with a new one nor to get refund of its price. Pointedly to note that the complainant had time and again been to appoint an expert commissioner on the issue which she declined probably the futility of such an action would bear fruit would have been in the mind of the complainant.
7. Admittedly the warranty of the vehicle had been expired on 11-11-2008. According to the complainant on umpteen occasions she had to repair the air conditioner and to replace the Turbo. Ext. B1 is the service details of the vehicle from 20-03-2007 to 26-02-2011. Ext. B1 goes to show that on 21-12-2007, 28-09-2009 and
09-10-2009, the complainant reported the defect of the air conditioner with the service centre . The recurring defect of the air conditioner would show that it suffers from some defect, a machine is prone to the nature of the defect is not stated. Admittedly on 17-06-2010 the turbo has been replaced and the vehicle was re-delivered on 19-09-2010. There is unexplained delay in redelivering the vehicle after the replacement of the turbo. It necessarily goes to show that the owner had been put to difficulty and discomfort owing to the fact that it was not her own car that she was driving. We have to mention that there is nothing on record to prove the fact that the present turbo is fault free. In short the complainant failed to prove that the air conditioner and the turbo suffer from any kind of defect. Even according to the Hon’ble Supreme Court a consumer is only entitled to get replacement of the defective parts if it is proved. (Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Anr. (2006)4 SCC 644). Applicability of this observation does not arise here now. In the above circumstances, we are only to direct the opposite parties to rectify the defects of the air conditioner and the turbo if at all.
8. From the averments it can be seen the complainant had been put to restraint in not been able to use her own car though the opposite parties provided the complainant a stand by vehicle. Ordinarily such a gesture on the part of the opposite parties would rule out compensation. But the status and importance of that a consumer compels this Forum to award a compensation of Rs. 50,000/- to mitigate the agony squarely.
9. In the result, we partly allow complaint and direct as follows:
i. The opposite parties shall jointly and severally rectify the defects of the air conditioner and the turbo if the complainant produces the vehicle for the same.
ii. The opposite parties shall jointly and severally pay Rs. 50,000/- to the complainant towards compensation and costs of the proceedings for the reasons stated above.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 31st day of October 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of vehicle data
A2 : Copy of documentation for date of
Delivery
A3 : Vehicle owner’s particulars
A4 : Copy of service proof
A5 : Copy of motor insurance
cover note
A6 : Copy of Amortization Schedule
A7 : Power of attorney
Opposite party’s Exhibits :
Ext. B1 : Copy of case history
B2 : Job card dt. 31-12-2008
B3 : Copy of repair order
dt. 29-06-2009
B4 : Repair order dt. 30-06-2009
B5 : Repair order dt. 13-07-2009
B6 : Repair order dt. 29-08-2009
B7 : Repair order dt. 28-07-2009
B8 : Repair order dt. 09-10-2009
B9 : Repair order dt. 05-10-2010
B10 : Repair order dt. 17-06-2010
B11 : Repair order dt. 05-01-2011
B12 : Repair order dt. 15-02-2011
B13 : Copy of work order dt. 20-03-2007
B14 : Copy of work order dt. 26-07-2007
B15 : Copy of work order dt. 21-12-2007
B16 : Copy of work order dt. 06-06-2008
Depositions:
PW1 : Mathew George
PW2 : Venugopal
PW3 : T.D. Ushar
