PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of October 2012
Filed on : 11-02-2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 70/2010
Between
Theresa Jose, : Complainant
W/o. Ajai Jose, (By Adv. R. Padmaraj,
M/s. Cochin Granites, Vinod Madhavan, “Bhavana”
17/691 B, Karumancheril Building, Azad Road, Kaloor, Kochin-17)
P.O. Mundamveli, Kochi-7.
And
1. M/s. Skoda Auto India Pvt. Ltd., : Opposite parties
Plot No. A-1, Shendra, (By Adv. P. Fazil
Five Star Industrial Area, MIDC, M/s. Lawyers United,
Aurangabad, Pin-431 201. Door NO.36/1912 A, Sebastian
rep. by its Managing Director. Road,Kaloor, Kochi-17)
2. Marikkar Engineeers Pvt. Ltd.,
33/2401-A,
NH 47 Bye Pass Road,
Chakaraparambu,
Cochin-682 032.
(Rep. by its Managing Director).
3. Marikkar Engineers Pvt. Ltd,
IV/389, Eloor road,
North Kalamassery,
Kochi-682 104.
rep. by its Manager.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant purchased a Skoda Octavia car from the 2nd opposite party which was manufactured by the 1st opposite party. The car was delivered to the complainant on 23-06-2005. Immediately after the purchase though the complainant reported the complaints of low pick up and high volume of oil consumption the opposite parties 2 and 3 could not rectify the same. On 28-08-2008 the opposite parties replaced the valve of the vehicle land the complainant had to pay Rs. 12,108/-. Thereafter the opposite parties suggested replacement of the turbo of the engine. In the meantime the car met with an accident and on 23-07-2009 the car was entrusted with the 3rd opposite party for repairs. The complainant was made to believe that the turbo has also been replaced in the service. An amount of Rs. 30,962/- was collected by the opposite parties. On 15-08-2009 complainant’s husband proceeded to Thodupuzha on the way the vehicle developed a howling sound and fumes started emitting out of the bonnet and the car got stuck on the road. In spite of intimation to the opposite parties they failed to attend to the same. For two weeks the vehicle laid idle by the side of the road. The complainants husband towed the car to the premises of the dealer. They did not allow entry to their premises, instead of attending the repair the dealer lodged a false complaint with the Edappally police. The complainant’s husband had no other go other than leaving the car by the side of the road. The opposite party is bound to replace the turbo free of cost. The complainant is incurring a sum of Rs. 1,500/- per day for alternative conveyance. Apart from the other damages the battery and the tyres became damaged. The complainant is entitled to get the following amounts from the opposite parties.
i. Amount spent on hiring of car for daily use
@ Rs.1,500/- for 179 days : 2,68,500.00
ii. Compensation for loss or reputation : 50,000.00
iii. Compensation for mental agony : 25,000.00
iv. Cost of battery : 8,000.00
v. Cost of lawyer notice : 1,500.00
---------------------
total 3,73,000.00
============
The complainant is also entitled to get the turbo charger replaced free of cost or to get the price of the same. This complaint hence.
2. The version of the 2nd and 3rd opposite parties.
The complainant is not a consumer as per the provisions of the Consumer Protection Act. The complainant purchased the car for using it for commercial purpose. The complainant purchased the car on 20-06-2005. The 1st opposite party manufacturer offered 2 years warranty to the vehicle. All the free services periodic services and repairs were attended to by the opposite parties as per the terms and conditions of the warranty. The complainant has not reported the complaints of low pick up and high volume of oil consumption. The complainant had never brought the vehicle to the opposite parties on the basis of glowing of any warning indication light at any point of time. On 21-06-2008 the defect of the vehicle was diagnosed as exhaust gas recycling value at odometer reading 88723 km. At that time the same was not available and on receipt from the manufacturer the complainant was asked to bring the vehicle on 07-07-2008 but he produced the vehicle only on 28-08-2008. The vehicle was redelivered to the complainant on the same day after the repairs. After the replacement of EGR valve the complainant had not reported any complaints other than usual repairs. ON 15-04-2009 some defect to the turbo charger was identified for the first time. The complainant demanded to replace the same under warranty. Since the warranty had expired earlier the opposite party could not agree to the same. On 23-07-2009 the car was entrusted with the opposite party for accident repairs. The total amount payable after insurance claim was Rs. 30,962/-. The complainant had taken delivery of the vehicle by paying the amount by cheque. The opposite parties duly attended to the call from the complainant’s husband on 15-08-2009 and directed to replace the turbo charger. In the meantime the cheque issued by the complainant was dishonoured. On 28-08-2009 the complainant’s husband again parked the vehicle by obstructing the ingress and egress of other vehicles to the show room. The opposite parties were constrained to call the police. As per the direction of the police they received the vehicle and parked the vehicle in a pocket road in front of the show room. On 15-04-2009 the complainant’s husband along with his men removed the tyres of the vehicle. The opposite parties are not liable to pay any amount to the complainant as claimed by her. The complainant is not entitled to get any of the reliefs as claimed for
3. In spite of service of notice from this Forum the 1st opposite party opted to remain absent for their own reasons. No oral evidence was adduced by the complainant. Exts. A1 to A9 were marked. The witness for the opposite parties 2 and 3 was examined as DW1 and Exts. B1 to B3 were marked. The reports of the expert commissioner were marked as Exts. C1 and C2. Heard the counsel for the contesting parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entailed to get a total amount of
Rs. 3,73,000/- from the opposite parties under different
heads as claimed.
ii. Whether the complainant is entitled to get the turbo charger
of the vehicle replaced or to get its price refunded.
5. Points Nos. i&ii. It is not in dispute that the complainant purchased a Skoda Octavia car from the 2nd opposite party on 23-06-2005 which was manufactured by the 1st opposite party evident from Ext. A1. Admittedly two years warranty to the vehicle from the date of purchase has been provided by the 1st opposite party.
6. According to the complainant in spite of replacement of the turbo on 14-08-2009 the car broke down on 15-08-2009 on the way of the complainant’s husband to Thodupuzha and the opposite parties failed to attend to the same on intimation. The complainant maintains that the opposite parties did not accept the vehicle for repairs though the complainant towed the vehicle to the service centre at her cost. The opposite parties 2 and 3 contend that the cheque issued by the complainant to the tune of Rs. 30,962/- towards the accident repair charges had been dishonoured by the bank. According to them they duly attended to replace the turbo charger and since the complainant demanded replacement under warranty they could not do the same, and the warranty period is being over they did not.
7. Since the complainant and the opposite parties sticking on to their respective contentions the option left to this Forum is to consider the opinion of the expert commissioner in Ext. C1 and C2 which were admitted in evidence without demur by both parties. Ext. C1 is dated 29-07-2010 which reads as under.
1. Ascertain present condition of Turbocharger
>As per the physical inspection of the “Turbo charger”
found Dirty and oily externally, and on further
detailed dismantled inspection impellers of turbo found
worn out condition
2. Examine the condition of outer cover of turbo charger
and ascertain whether it has any marks revealing
opening of turbo charger.
> On inspection found that outer cover of turbo charger is
full of leaked oil, but no marks or indications revealing
attempt of opening are found
3. Ascertain whether the outer cover of turbo has been opened or not?
> No marks or indications revealing attempt of opening are
Found
4. Ascertain whether turbo charger has been subjected to
Repair
>No signs of repair found on physical inspection
The impellers of turbo charger are not repairable.
5. Report whether a defective turbo could result in extreme
consumption of engine oil and low pick up
> Definitely a defective ‘turbo charger’ result in excess oil
consumption due to leakage of oil through impellors, and
pick up of the said vehicle will drop down to a certain
extend. Other than this emission of vehicle will be excess
as a result of this.
6. Condition of Battery and its expected life
> Condition of Battery was satisfactory, Expected life of an
automobile battery is around 24 months
7. Condition of Tyres and its expected life
> Condition of tyres where average, expected life of tyres in
normal condition is 40000 km
8. Overall condition of Vehicle
> ft w/c glass found cracked condition, bumper-cracked
condition.
Overall physical condition of vehicle was good
9. Location of Vehicle, whether it causes any hindrance to
the access of showroom of second opposite party
Nil
The photographs of the vehicle also attached with the
report.”
Ext. C2 is the report dated 31-03-2011 which reads as follows:
“OBSERVATION
Based on the inspection of the vehicle and detailed examination of the engine, my opinion on the referred points as follows:
1. Ascertain present condition of the car:-
At the time of inspection the engine was dismantled
from the vehicle. All the body parts found good
condition
2. Ascertain whether Engine has abnormal vibration
3. Whether excess emission of smoke
4. Whether any problem with the functioning of engine cylinder of the car.
At the time of inspection the engine was completed dismantled condition, at this stage I could not give on expert opinion about the above three referred points.
CONCLUSION At the time of inspection the engine of the subject vehicle was completely dismantled condition at this stage I could not give an expert opinion about the above three referred points..
8. The complainant stated in the complaint that the turbo charger of the vehicle had been replaced during the 14th service of the vehicle. But nothing is on record to substantiate the same. The opposite parties contended that the complainant has issued a cheque to them dated 14-08-2009 towards accidental repairs of the car and the same had been dishonoured to which too no evidence is forthcoming.
9. In Ext. A9 letter dated 15-12-2009 the 2nd and 3rd opposite parties stated as follows.
“As per your request and in continuation to our negotiation with you pertaining to your vehicle, KL7AX 1060; and as discussed and finalized with you today; and as a special case, we offer you a rebate of 40% from the MRP Rs. 127.221.00 for the Turbo charger, even though your vehicle is not covered under Skoda’s official warranty policy guidelines. In line with the rebate, you shall be required to pay Rs. 76,333/- for the Turbo Charger. Please note that this offer has been considered and extended by our Company, purely on a goodwill basis: even though the manufacturer has already rejected the request, on the genuine grounds of warranty period lapsation
You are requested to hand over your vehicle for repair, with the Job Card duly acknowledging the above mentioned understanding, on Monday, 14th Dec. We request you also to kindly give us the confirmation in the format appended, in order to carry out the repairs. “
10. However the suggestion of the opposite parties in Ext. A9 letter has not been materialized for reasons not stated or explained. The utmost gesture of commission of goodwill is that one who gives in half gives it in full and one who does not give in full gives it only in half the complainant had shown their goodwill by issuing a cheque for Rs. 30,962/- in full settlement of their debt. However even though the opposite parties claims their behavior as their goodwill has only granted less than half the amount of the price to be incurred as expenses towards replacement of turbo is less than 50%.
11. Point No. ii. No evidence whatsoever has been categorically brought about as to the nature and extend of the other claims in the complaint. There are standard common phrases used in mostly every cases where the gullibility of the other side can be cashed upon to say the least a ruse as a last straw.
13. Both parties being adamant in their respective stands this Forum has but no other course but order as follows:
i. The opposite parties shall jointly and severally replace the turbo charger of the complainant’s vehicle free of cost.
ii. The complainant shall pay Rs. 30,962 to the opposite parties 2 and 3 the said amount that has not been paid yet.
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
A Rajesh, President.
Paul Gomez, Member.
C.K. Lekhamma, Member.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of certificate of registration
A2 : Copy of retail invoice
dt. 29-04-2009
A3 : Copy of repair order
dt. 23-07-2009
A4 : Copy of repair order
dt. 23-07-2009
A5 : Copy of retail invoice
dt. 14/08/2009
A6 :
A7 : Copy of lawyer notice
dt. 30-08-2009
A8 : Copy of lawyer notice
dt. 30-08-2009
A9 : Copy of letter dt. 15/12/2009
C1 : Commission report dt. 29-07-2010
C2 : Commission report dt. 31-03-2011
Opposite party’s Exhibits :
Ext. B1 : Copy of letter dt. 17-09-2009
B2 : Copy of legal notice
dt. 30-08-2009
B3 : Reply notice dt. 25-09-2009
Depositions:
DW1 : Bibin Joseph
