Date of Filing:18/02/2011

        Date of Order:16/05/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  16^th DAY OF MAY 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 319 OF 2011

Mr. Murali K,

S/o. Mr. C. Kuppuswamy,

Aged About 34 years,

No.832, 2^nd E Cross, 8^th Main,

3^rd Stage, 3^rd Block,

Basaveshwaranagar,

Bangalore-560 079.                                                            ….  Complainant.

V/s

(1) M/s. Volkswagen India Pvt. Ltd.,

No.E-1, MIDC Indl. Area (Phase-3),

Village Nigoje, Mhalunge,

Kharavwadi Taluk Khed,

Chkan, PUNE-410 501.

Rep. by its Managing Director.

(2) M/s. Elite Motors Pvt. Ltd.,

No.104/1, Singasandra Village,

Hosur Road, Bangalore-560068.

Rep. by its Managing Director.

(3) M/s. Volkswagen Group Sales

India Pvt. Ltd., No.3 North Avenue,

Level ¾, Maker Maxity,

Bandra Kurla Complex, Bandra (East),

MUMBAI-400051.

Rep. by its Managing Director.                                                …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay Rs.8,46,594/-, are necessary:-

The opposite party No.1 is the manufacturer of cars by name Volkswagen Polo, for which the opposite party No.2 is the dealer and opposite party No.3 is said to be is in the business of sales and after sales support relating to the said vehicle.  On 02.09.2010 the complainant purchased KA-51-MA3799 a Voklswagen Polo (1.2 MPI – Highline Saloon) Car from opposite party No.2 after having availed financial assistance from M/s. Union Bank of India.  Within a short span of covering 400 kilometers the complainant faced problem with the brakes.  Accordingly he left the car for repair with the opposite party No.2 later who stated that it has been solved.  On 19.10.2010 the complainant faced the problem of air-conditioner.  The car was given to the opposite party No.2 who later stated that it has been repaired.  Once again the complainant faced the same problem i.e., rear wheel jam and the air-conditioner not being working.  Within a span of 3 months the complainant faced the repeated problems of air-conditioner and rear wheel jam.  The complainant feels that the defective car has been sold to him.  On 01.12.2010 the complainant has given a written complaint to the opposite party No.2 and sought replacement of the defective vehicle.  There was no positive response.  The said vehicle is still in the custody of opposite party No.2.  The complainant is self employed and his work involves frequent out-door visits and because of the non-availability of the car he was using auto-rickshaw and spending lot of money.  The complainant is doubtful about the quality and control, testing of the vehicle in question.  A notice was issued to the opposite party Nos. 1 and 2 on 23.12.2010.  On 03.01.2011 the opposite party No.1 has replied to the complainant stating that sale and after sales were the work of opposite party No.3.  At no point of time the complainant has dealt with the opposite party No.3.  Hence the complainant is entitled to Rs.6,98,417/- the cost of the vehicle with road tax and the insurance interest at the rate of 18% per annum amounting to Rs.47,182/-, special damages of Rs.1,00,000/- and notice charges of Rs.1,000/-.  In all Rs.8,46,594/-.

2(a).  The opposite party No.1 had filed version, but it is signed only by the advocate for opposite party No.1 and not by the opposite party No.1.  Hence it has no value.  It is seen a verification is appended to the version.  That verification and the alleged version are on different papers of different colours. Without version the verification has no value.  It is further seen the version is dated: 11.04.2011 at Bangalore and verification is dated: 11.04.2011 at Pune.  It can never be believed.  Hence it is not summarized.

2(b).  In brief the version of opposite party No.2 are:-

          The purchase of the car in question is admitted.  The vehicle is in the road worthy condition in the premises of the opposite party No.2 to be delivered to the complainant right from 08.02.2011.  The complainant being intimated to take delivery has not come to take deliver intentionally from 08.02.2011.  The complainant purchased the vehicle after thoroughly inspecting the vehicle and being satisfied with the road worthy condition.  The complainant brought the vehicle for checking the air-conditioner system, after attending to it the vehicle was delivered to the complainant on 30.10.2010.  The complainant brought the vehicle again on 02.12.2010 with the complaint of air-conditioner not functioning and rear wheel jam.  The opposite party after inspection found that the air-conditioner was not working and with the consent of the opposite party No.1 replaced the A.C. condenser and kept the vehicle road worthy condition on 08.12.2010.  After attending to the A.C system after repairing the jam of the rear wheel it has been brought to the notice of the complainant that the vehicle is in road worthy condition and ready for delivery.  With the malafied intention the complainant has not come to take delivery of the vehicle.  As per the general terms and conditions of the warranty it is the purchaser who is responsible to deliver and collect the car from the workshop of the authorized dealer.  There is no manufacturing defect in the vehicle.  The minor malfunctioning have been attended to.  The self-employment of the complainant, he requiring the frequent training are denied.  As per the terms of the warranty the parts which are required to be repaired can be replaced by the company as such the second opposite party by replacing the condenser of the air-conditioner system has discharged the obligation.  The job-card of 19.10.2010, 02.12.2010, DISS are all produced which speaks itself.

2(C).  The opposite party No.3 had filed version and got it amended also, but the said version is signed only by the advocate for opposite party No.3 and not by the opposite party No.3.  Hence it has no value at all as such it is not summarized.  It is accompanied by verification by Umesh Khadpe which is not in the same page, both are in different colours and in different papers it has no value at all.  An amended version has been filed, but as the amendment is carried out in the original version the amended version has no legal sanctity.  Hence it is not summarized.

3.       In this case the complainant has filed his affidavit and documents.  The opposite party No.2 has filed his affidavits and documents.  The alleged affidavits of the opposite party Nos. 1 and 3 does not contain the signature of the opposite party Nos. 1 and 3 on every sheet of the affidavit but has signatured only on the last sheet and it is stated “as before me” it does not say that it has been signed and sworn to before anybody.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is any deficiency in service of the part of the opposite parties?
2. What Order?

5.       Our findings are:-

Point (A)        :           In the Positive.

Point (B)        :           As per the final Order

                             for the following:- 

-:REASONS:-

Point A & B:-

6.       In this case it is only the opposite party No.2 who has challenged the pleadings of the complainant.  The version of the opposite party Nos. 1 and 3 are no version at all, in the sense these version does not contain the signatures of the opposite parties.  It is signed only by the advocates for the opposite party Nos. 1 and 3 which has no value at all.  Even Order 3 CPC does not permit the advocate to sign or make the pleadings of the parties.  The verification paper along with the alleged pleadings are in different sheets of different coloures paper made at Pune and the alleged version are made at Bangalore by the advocate on the same date!  Hence these version are no version at all.  Thus the opposite party No.1 and 3 have not challenged the pleadings.

7.       Anyway opposite party No.2 is the person, the dealer from whom the complainant has purchased the vehicle, he has filed the version and also filed the affidavit which contains averments of opposite party Nos. 1 and 3 also.  Reading the pleadings in conjunction with the evidence on record, it is an admitted fact that the opposite party No.1 is the manufacturer of Volkswagen Polo cars and the opposite party No.2 is the dealer.  The complainant never transacted did anything with the opposite party No.3.  Only when the opposite party No.1 has replied stating that opposite party No.3 is a party, complainant has impleaded opposite party No.3 as a necessary party, but absolutely no transaction has taken place between the complainant and opposite party No.3.  The complainant never gone to Mumbai nor purchased the vehicle from opposite party No.3 nor gave the vehicle to opposite party No.3.  The complainant purchased the vehicle from opposite party No.2 who is the dealer of opposite party No.1.  The transactions between opposite parties interse will not bind the complainant.  So for as the complainant is concerned, it is opposite party Nos. 1 and 2 who are responsible for all the dealings. 

8.       Reading the pleadings in conjunction with the affidavit and documents it is needless to say that the complainant has purchased KA-51-MA-3799 on 02.09.2010 from opposite party No.2, the car manufactured by opposite party No.1 for Rs.6,98,417/- which included the road tax, cost of the vehicle and the insurance.

9.       The grievance of the complainant is that within three months from the date of purchase, the vehicle had problem.  He simply stated that there was an A.C. problem and break jam that’s all.  The complainant never stated on what date, time, etc., he found these defects and how it is manufacturing defect?

10.     It is seen after purchase the complainant took the vehicle to the opposite party No.2 on 19.10.2010 for the first time as per job-card No.3650 wherein he has stated that only A.C. system has to be checked that has been checked and it was delivered back to the complainant, immediately he was satisfied with the repair work as per the satisfactory note.  A.C. system can never be termed as defect in the manufacturing of the vehicle as such. 

11.     Anyway the complainant took the vehicle again to the opposite party No.2 on 02.12.2010 wherein it has stated that A.C. system is not working and rear wheel jam as per job-card No.4050.  It is seen that A.C. system has been replaced.  In the braking system there was rust and it was cleaned and it is kept ready on 08.12.2010.  This braking system contain the stainless steel parts, it can never rust.  Even the braking system is moved in the water for a short period or for a middle period it can never rust.  If it rusts it means braking system is defective.  Merely cleaning will not mean that the vehicle is ready and it is in road worthy condition.  Within a short span of three months the braking system has been jammed, the opposite party never stated that they have replaced the braking system.  There is warranty to the vehicle.

12.     If the vehicle had problem with engine then the vehicle could have been ordered for replacement, but the defective braking system is not heart of the vehicle, it is one of the part of the vehicle and that can be rectified or replaced, for which the entire vehicle need not be ordered to replaced.  Hence the contention of the complainant that the vehicle has to be replaced or he has to be paid the entire value of the vehicle does not hold water.  Hence if we direct the opposite parties to replace the entire braking system of the vehicle in question with a new defectless braking system and the Air-conditioner with a defectless air-conditioner and deliver the vehicle to the complainant we think that will meet the ends of justice.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The opposite parties are directed to replace the entire braking system and air-conditioner of the vehicle bearing No. KA-51-MA-3799 with the defectless new air-conditioner and braking system and deliver the vehicle to the complainant within 15 days from the date of this order.
3. The opposite parties are also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
4. The opposite parties shall replace the braking system and air-conditioner in presence of the complainant and submit the compliance report to this Forum with necessary documents within 75 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 16^th Day of May 2011)

MEMBER                                    MEMBER                              PRESIDENT