THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C. 462/2009
Dated this the 21st day of March 2016
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, MA, LLB : Member
ORDER
Present: Joseph Mathew: Member:
This petition is filed under Section 12 of the Consumer Protection Act, 1986.
Petitioner’s case is that lured by the advertisement made by the opposite parties he approached the 2nd opposite party on 23/03/2009 to buy a Skoda Superb Elegance Car. The performa invoice shows the price of the car as Rs.21,98,939/- and it’s on road price as Rs.24,12,853/-. He left the shop informing the opposite party that he was looking for a car having its on-road price around Rs.20 lakhs. Thereafter the 2nd opposite party contacted him and told that as they have included the car under some scheme floated by the company, he need pay only Rs18,41,000/- towards the price of the car. As such, he took delivery of the car on 27/03/2009 by paying Rs.18,41,000/- inclusive of VAT and Cess as per invoice dated 26/03/2009. The vehicle was registered having Reg. No. KL.10 AC 8833.
The petitioner submitted that while taking the vehicle home, its odometer was not working and the meter reading shown as 924 K.M. Then and there it was taken to the 2nd opposite party and they rectified the same saying that the cable was not connected to the odometer. It is stated that within 3 months of its use it was found that the vehicle was suffering from several manufacturing defects like, non-working of safety air bag switch, head light washer not working, wiper blade not working smoothly, dash board lock defective, front glow box not properly functioning, front seat heater provisions missing etc. etc. Due to these defects, the vehicle was entrusted with the 2nd opposite party on 10/06/2009 and it was returned only on 24/06/2009 after a long delay of 14 days. For repairs they have collected Rs.8,680/- as the value of spare parts and Rs.221/- towards workshop charges. Even then the complaints still persists. Again on 20/07/2009 he was forced to entrust the vehicle with the opposite party due to the non-functioning of its ultrasonic back sensor. Thereafter for 10000 k.m. service he took the vehicle to the 2nd opposite party on 04/08/2009 and after the service, it is found that the opposite party had changed the oil sump and its filling was not proper. This incident has prompted him to examine the vehicle carefully and it is found that the front glass shows the year of manufacturing as 2007 and the rear glass shows the year as 2008. The non polluting vehicle sticker shows that the test was conducted on 29/04/2008 ie. one year before the vehicle was sold to him. It is also noticed that the tyres were worn out and he suspects that this is due to any manufacturing defect or accidental impact on the chassis.
The petitioner alleged that all these defects would show that the vehicle sold to him is not a brand new one, but a pre-used one met with some accident before delivering the same to him. As he suspect some unfair trade practice on the side of the opposite parties he caused to sent a lawyers notice to all the opposite parties on 08/09/2009 requesting to take back the defective and pre-used car and refund its purchase price Rs.18,41,000/- along with Rs.5,00,000/- as compensation for his mental pain and other inconvenience suffered. But instead of complying his demands the opposite parties send a reply to that notice raising untenable contentions. According to them the defects are the result of the rough handling of the vehicle by the petitioner. But the petitioner denied the said contention and stated that he and his driver is sufficiently experienced in driving such modern vehicles. He or his driver had never used the car rashly or negligently. The sale of a defective pre-used car on pretext that it is a brand new one is nothing but unfair trade practice and also deficiency in service on the part of the opposite parties and that caused untold sufferings and heavy financial loss to him. Hence this petition is filed to direct the opposite parties to refund Rs.18,41,000/-, the purchase price of the car after taking back the same and to pay Rs.1,00,000/- as compensation for his sufferings and also cost of the proceedings.
The 1st opposite party filed version contending that this petition is not maintainable in law or on facts and is filed without any bonafide and only with the intention to harass them. It is submitted that this kind of repairs and services done for the vehicle shows that the petitioner had handled the vehicle very roughly and negligently. According to them the glow box lid was broken only if somebody applies force on the locked handle of the glow box lid carelessly. This shows the negligent act of the petitioner and this was rectified by replacing the lock assembly. It is stated that when the vehicle was brought before the 2nd opposite party for the first service on 02/04/2009 the driver of the petitioner conspicuously pointed out to check the underbody of the vehicle for any damage. On inspection it is found that the oil sump was cracked due to some hard hit either to a hit over a divider or a big stone or something like that.
The sump cover protective shield were damaged and found fixed to the silencer hook with plastic rope. This crack had developed to oil leakage. This was also replaced. Due to the hit more damages occurred to the vehicle and all damages were rectified by them. Now the vehicle is absolutely in roadworthy condition and is in use by the petitioner. The vehicle is not having any manufacturing defects. The allegation that the vehicle is a pre-used one was denied by the opposite party. No loss, injury or hardships were occurred to the petitioner due to any of their acts. No unfair trade practice or deficiency in service on their side. The petitioner is not entitled to get any of the reliefs sought for in the petition and prayed to dismiss the petition with cost to them.
Opposite parties No. 2 and 3 filed a joined version denying all the allegations raised by the petitioner as false and baseless. The petitioner had approached the Forum suppressing the true and material facts. It is contended that the entire parts of the Skoda car is imported from Czech Republic and assembled in India by Skoda Auto India Pvt. Ltd. The parts were shipped from abroad and received in India after 45 days. The petitioner had handled the vehicle very roughly and negligently and that is the basic reason for this complaint. The job card will prove the same. The petitioner had fixed an additional horn from some local workshop and hence the wiring of the vehicle was tampered and the 2nd opposite party had rectified the whole system charging only Rs.221/-. For the alleged tyre wear of the vehicle, the petitioner has not approached them till date. The delay if any in rectifying the complaints is due to the delay in getting spare parts from abroad. All other contentions of opposite parties No. 2 and 3 are same as that of the 1st opposite party. There is no unfair trade practice or deficiency in service on their side as alleged and hence prayed to dismiss the petition with their cost.
The points for determinations are:
1.Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
2.Reliefs and cost if any?
Evidence consists of the affidavits filed by the petitioner, opposite parties No. 2 and 3, Ext. A1 to A15, B1, B2 and C1.
Point No. 1: The specific case of the petitioner is that the vehicle Reg. No. KL10-AC8833 Skoda car sold to him by the opposite parties falsely representing that it is a brand new one was a defective used one involved in an accident. The opposite parties are not ready to take it back and to refund its purchase price of Rs.18,41,000/-. This is unfair trade practices committed by the opposite parties. Hence he is entitled to get back its purchase price along with compensation. As the opposite parties denied his allegations, he filed IA 86/2010 praying to appoint an expert commissioner to inspect the disputed vehicle and to file a report in this regard. The opposite parties have not objected the IA. Hence the IA was allowed and Sri. K.K. Ramachandran, Assistant Professor in Mechanical Engineering, Govt. Engineering College, Thrissur was appointed as commissioner. Both parties submitted work memo. The commissioner inspected the vehicle on 03/10/2010 at the presence of the petitioner and the opposite parties and checked each and every factor mentioned in the work memo submitted by both the parties. He submitted his report on 18/11/2010 and that was marked as Ext. C1.
In Ext. C1 it is reported that the overall internal appearance of the cab and external appearance of the body and fitting were neat and clean and it seems that the vehicle has been maintaining neat and tidy. Important findings of the commissioner. From paragraph 1.1 to 1.6 of Ext. C1 report the commissioner reported that something seriously wrong with the front left wheel alignment of the car which is the cause of excessive and abnormal tread wear of the front left tyre within a very short period. It is submitted that some spray paint work had been done at the front left fender area of the car after the actual manufacture of the car. A visual examination of the car body, it was observed that a clearly visible change in the colour and texture of the white painted surface of the front left fender piece from the rest of the body surface. The front left fender piece was pained using a different batch of paint when compared to the rest of the body after the actual manufacture of the car.
It is reported that based on the facts stated in Para 1.7 to 1.9 of Ext. C1, the front left side of the car, around the front left wheel had subjected to some major change like a reconditioning after an accident, probably after the actual manufacture of the car. The year of manufacture of the front left door glass is 2007 and front right door glass 2008. The year of manufacture of the car is 2009. But the glasses were found manufactured in the year 2007 and 2008. Thus glasses of at least two different batches were found used in the car.
It is also reported that the abnormal tyre wear could be due to incorrect camber, castor, toe-in or toe-out, a sagging axle, incorrectly rated suspension, coil springs defective or incorrectly matched shock absorbers, incorrectly matched suspension members and excessive set back and thrust angle caused due to major accident or so. Regarding additional electrical fittings, it could affect the performance of the electrical system if not done with technical perfection. But in this case the petitioner had not raised any points regarding any electrical problems and as such it seems that the car is free from such problems.
Both the parties have not filed any objection to this report.
Thus Ext. C1 report conclusively concluded that the disputed vehicle was not a brand new one but a pre-used one met with a major accident before selling the same to the petitioner. It is found that the conclusion in Ext. C1 report unambiguously ruled out all the contentions raised by the opposite parties and proved the statements of the petitioner true and correct.
Based on the Ext. C1 report we are of the view that the sale of defective used car to the petitioner for such high amount falsely representing that it is a brand new one no doubt will amounts to unfair trade practice on the part of the opposite parties. Point No. 1 found in favour of the petitioner.
Point No. 2: In view of the findings in Point No.1, the petition is to be allowed and the petitioner is entitled to get reasonable reliefs. From Ext. C1 report it is evident that the defects with the car is not because of any manufacturing defect but because of the rough and careless use of the car or due to an accident while it was with the 2nd opposite party, the dealer. Hence opposite party No.2 is only liable to make good of the petitioner for his financial loss and other sufferings. But considering the fact that the petitioner is using the car for all these years, even though defects are there ordering repayment of its purchase price after taking back the vehicle seems not fair or admissible. Hence we are of the opinion that the petitioner is entitled to get back Rs.5,00,000/- from the amount he paid as its price along with compensation which we feel just and proper in the present situation.
Resultantly the following order is passed. Opposite party No. 2 is ordered to pay back Rs.5,00,000/- (Rupees five lakhs only) from the purchase price of the car to the petitioner along with Rs.1,00,000/- (Rupees one lakh only) as compensation for his sufferings and Rs.5,000/- (Rupees five thousand only) as cost of the proceedings.
This order will be complied with, within 30 days from the date of receipt of this order.
Dated this the 21st day of March, 2016.
Date of filing: 09/11/2009 .
SD/-MEMBER SD/- PRESIDENT SD/- MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Proforma invoice issued by the 2nd opposite party
A2. Retail invoice issued by the 3rd opposite party
A3. Sale Certificate issued by the 3rd opposite party
A4. Letter sent to the 2nd opposite party
A5. Letter sent to the 1st opposite party
A6. Pre order issued by the 2nd opposite party
A7. Tax invoice issued by the 2nd opposite party
A8. Feed-back letter sent to the 2nd opposite party
A9. Tax invoice issued by the 2nd opposite party
A10. Mail sent to opposite parties
A11. Pre-order issued by 2nd opposite party
A12. Mail sent to 1st opposite party
A13. Tax invoice issued by 2nd opposite party
A14. Lawyer notice sent to opposite parties
A15. Reply notice
Documents exhibited for the opposite party:
B1. Copy of work order
B2.vehicle history card
Witness examined for the complainant:
PW1. E. Ummer Bava (Complainant)
C1. Commission Report
Witness examined for the opposite party:
RW1. Jayaprasad, Vijayasadanam, Vanavathukkara, Thiruvandoor P.O., Thiruvalla
689109
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
