Per :- Mr. Deshpande, President                             Place : BANDRA

JUDGMENT

          The Opposite Party No.1 is the manufacturer, whereas the Opposite Party No.2 is a dealer of ‘Skoda’ cars.  The Complainants had purchased a ‘Skoda’ car from the Opposite Party No.2 – Dealer; on 20/6/2006, with a warranty for a period of two years.

[2]     It is the case of the Complainants that the car in question had several problems and it was required to be taken to the service centre for conducting repairs very often.  There had been a problem with the air-bag on 14/7/2006.  Then, there had been a problem with the air-conditioning unit on 3/10/2006, followed by a problem with pollen filter & air-filters on 18/12/2006.  The Complainants were required to pay for conducting the repairs.  Again, there had been a problem with the air-conditioning unit on 25/4/2007 and this time, the Complainants got it repaired, but the problem persisted and again car had to be repaired and taken to the service centre on 15/5/2007.

[3]     It is further case of the Complainants that there were continuous problems with the car and very often, the car would stop on road and was required to be towed to the service centre.  It is the case of the Complainants that there are inherent manufacturing defects in the car and the car needs to be replaced.

[4]     On 10/5/2008, the car had to be again towed to the workshop of the Opposite Party No.2 – Dealer; and since then, the car is in possession of the Opposite Party No.2 – Dealer.  The Opposite Party No.2 – Dealer; failed to satisfactorily repair the car and provide a permanent solution to the problem.  The Complainants served a legal notice dtd.28/6/2008, calling upon the Opposite Party No.1 – Manufacturer; to replace the car with a roadworthy model.  However, there was no reply from the Opposite Party No.1 – Manufacturer.  On the contrary, the Opposite Party No.2 – Dealer; sent an Invoice dtd.15/7/2008, for an amount in sum of Rs.25,340/- towards repairs carried on the said car.  Having regard to the past experience, the Complainants were not inclined to pay the same and to take back delivery of the car.  According to the Complainants, the car is defective and it needs to be replaced.  Ultimately, the Complainants filed present complaint before this Forum on 10/11/2008, seeking direction as against the Opposite Parties to replace the car or in the alternative to refund to the Complainants, an amount in sum of Rs.17,39,850/- towards price of the car, besides compensation in sum of Rs.2,00,000/-.

[5]     Pursuant to the notice of appearance issued by this Forum, the Opposite Party No.1 – Manufacturer; appeared and contested the complaint by filing its written version of defence and denied the allegations in the complaint that there are inherent manufacturing defects in the car.

[6]     The Opposite Party No.2 – Dealer; filed its separate written version of defence and took stand that the car was often required to be repaired because of bad driving and bad handling of the car on the part of the Complainants.  The defects, which the Complainants have alleged, are not major or manufacturing defects.  The Opposite Party No.2 – Dealer; also explained that the car was on road throughout this period up to the month of May-2007 and it had run for a distance of 25,000 km.  The Opposite Party No.2 – Dealer; in its written version of defence, has dealt with each & every allegation in the complaint vis-à-vis breakdown of the car and during the course of judgment, we propose to refer to the same.

[7]     The Complainants filed their separate rejoinders to the written versions of defence, as filed by both the Opposite Parties, and maintained that the car suffers from inherent manufacturing defect and it needs to be replaced.

[8]     The Complainants have filed their affidavit of evidence as well as copies of relevant documents, most of which consist of copies of bills and tax-invoices issued by the Opposite Party No.2 – Dealer.  As against this, the Opposite Party No.1 – Manufacturer; has produced on the record an affidavit sworn by its Company Secretary, by name – Mr. Trivikram Guda; whereas the Opposite Party No.2 – Dealer; has produced on the record an affidavit sworn by its Administrative Executive, by name – Mr. Sanjay Khatal.  The Opposite Party No.2 – Dealer; also produced on the record copies of the job cards.  Parties to the complaint proceeding have also filed their respective written notes of arguments.

[9]     We heard the learned advocates representing the parties to the complaint proceeding

[10]    We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties.

[11]    We take the points that arise for our consideration and record our findings there-against as below:-

REASONS FOR FINDINGS

[12]    There is no dispute between the parties to the complaint proceeding as regards the fact that the Complainants had purchased a ‘Skoda’ car from the Opposite Party No.2 – Dealer; and delivery was handed over to the Complainants on 20/6/2007.  First instance of breakdown, as described by the Complainants, was the defect with the air-bags and the car was taken to the workshop of the Opposite Party No.2 – Dealer; on 14/7/2007.  According to the Opposite Party No.2 – Dealer; the air-bag indicator was blinking and it was a minor fault, which was rectified.  Second incidence of breakdown as referred to by the Complainants, occurred on 3/10/2006, when the air-conditioning unit of the car stopped functioning.  The Complainants allege that the Opposite Party No.2 – Dealer; was unable to detect exact problem with the air-conditioning unit and the car was delivered to the Complainants in the same condition.  In this context, the Opposite Party No.2 – Dealer; in its written version of defence has stated that on 3/10/2006, the car was brought to its service centre for first servicing and the car had run a distance of 8,311 km. and the air-conditioning unit had no problem.  In fact, according to the Opposite Party No.2 – Dealer; certain accidental repairs were required, which were conducted by the Opposite Party No.2 – Dealer; and routine consumables were used.  The Opposite Party No.2 – Dealer; has produced on the record a copy of the job card dtd.3/10/2006, alongwith its written version of defence and the first servicing was carried out free of charge.  Certain other items of repairs were conducted, which were paid.  The Complainants, in their affidavit of rejoinder, have stated that the air-conditioning unit in fact, had a problem.  However, in the copy of job-card dtd.3/10/2006, no entry to that effect was recorded.  Thus, it is not reflected in the job card.

[13]    Next incidence of breakdown, as alleged by the Complainants, occurred on 18/12/2006 with regard to filters and according to the Complainants, pollen filter & air filter were required to be replaced within a period of six months of purchase of car.  Turning to the written version of defence, as filed by the Opposite Party No.2 – Dealer; we find that on 18/12/2006, car was brought to the service centre for second free servicing and that time, car had run a distance of 14,760 km. and the Complainants were required to pay for routine consumables.  According to the Opposite Party No.2 – Dealer; pollen filter & air filter were replaced as routine service part.  Even otherwise, replacement of filters cannot be said to be inherent manufacturing defect.

[14]    Going ahead with the incidence of breakdown with the car, according to the Complainants, there had been a breakdown with the car on 25/4/2007 and this time, air-conditioning unit was functioning.  On 28/4/2007, the car was handed over to the Opposite Party No.2 – Dealer; where air-conditioning unit was checked, but not repaired, but horn of the car was replaced.  In this context, version of the Opposite Party No.2 – Dealer; is that car was sent to the Opposite Party No.2 – Dealer; on 25/4/2007 for accidental repairs, which has not been mentioned in the complaint by the Complainants.  The Complainants have produced on the record a copy of the job-card with regard to testing of the air-conditioning unit as well as replacement of horn.  On the contrary, the Opposite Party No.2 – Dealer; has produced on the record a copy of the job card dtd.25/4/2007, which shows that certain repairs were conducted and washing was done.  Air-conditioner cooling was checked, but no fault was found.  Contents of the job card and the entries recorded therein, to certain event, support the contention of the Opposite Party No.2 – Dealer.

[15]    Next incidence of the breakdown occurred on 15/5/2007.  According to the Complainants, since the problem of the air-conditioning unit was not sorted out, it persisted and the car was again required to be taken to the Opposite Party No.2 – Dealer.  As against this, according to the Opposite Party No.2 – Dealer; the car was brought for servicing on 15/5/2007 and odometer reading was 25,591 km.  Technicians of the Opposite Party No.2 – Dealer; inspected the car and found no problem with the air-conditioning system, but the Complainants insisted for replacement of the air-conditioning system and as a gesture of goodwill, the Opposite Party No.2 – Dealer; replaced the compressor of the air-conditioner of the said car on free of charge basis and the car was delivered to the Complainants.  According to the Complainants, in fact, there had been a defect with the air-conditioning unit, which compelled the Opposite Party No.2 – Dealer; to replace the compressor of the air-conditioner.  This is reflected in the job card dtd.15/5/2007, where it was recorded that air-conditioner was not cooling.  In any case, that cannot be said to be a major and inherent manufacturing defect in the car.

[16]    In paragraph (11) of the complaint, the Complainants allege that there was a problem with the fuel indicator and it began displaying fuel level much higher than the actual level because of which, the car had to be stopped on four different occasions.  Thus, according to the Complainants, false entries in the fuel indictor misguided their driver and he was led to be under a wrong impression that there was enough fuel in the fuel tank.  According to the Complainants, despite persuasions, this problem has not been rectified by the Opposite Party No.2 – Dealer.

[17]    The Opposite Party No.2 – Dealer; in its written version of defence, has denied those allegations and has taken stand that in the earlier servicing that was carried out on 25/4/2007, fuel indicator was rectified to the satisfaction of the Complainants.  There is no documentary evidence in the form of any communication to substantiate the allegations in the complaint regarding fuel indicator.

[18]    Then, it is the case of the Complainants that on 3/8/2007, car again abruptly stopped on road and was required to be towed to the service centre and this time, clutch-plate and bearings of the car were required to be replaced.  This was followed by a breakdown on 23/8/2007 & 25/8/2007, at which time, wheel aligning and interior & exterior grooming was done.  In this regard, the Opposite Party No.2 – Dealer; in its written version of defence, has explained that breakdown of the car was due to problem with the clutch-plates.  The Opposite Party No.2 – Dealer; has attributed this fault due to bad driving of the car on the part of the Complainants.  In fact, in the job-card, there is an entry of accidental repairs with regard to these repairs.  According to the Opposite Party No.2 – Dealer; problem with the clutch-plate and wheel alignment was not an inherent manufacturing defect.  The Complainants have then, made allegations with regard to breakdown on 3/9/2007 and this time, car was required to be towed to the service centre of the Opposite Party No.2 – Dealer; and the car had to undergo extensive repairs for which, the Complainants were required to spend an amount in sum of Rs.2,64,824/-.  The Opposite Party No.2 – Dealer; in its written version of defence, has explained this by stating that extensive repairs was a result of the said car meeting with a major frontal and under carriage accident and accordingly, extensive repairs were carried out.  Job card dtd.2/10/2007, with regard to these repairs show that there were extensive repairs as accident repairs.  In fact, entry at the foot of the invoice reveals that the Complainant had submitted an insurance claim and got reimbursement of an amount in sum of Rs.1,80,000/-.  This substantiates the statement in the written version of defence, as filed by the Opposite Party No.2 – Dealer; that the repairs were carried out as accident repairs.  The Complainants have tried to suppress this fact.

[19]    Then, the Complainants have referred to breakdown that occurred on 18/12/2007 and that time, fly-wheel was replaced under warranty.  However, for other repairs, the Complainants had to pay.  The Complainants had sent their car to the Opposite Party No.2 – Dealer; on 10/5/2008 and in fact, it was towed to the workshop from Wadala, Mumbai.  Since then, the car is in custody of the Opposite Party No.2 – Dealer.  In this context, the Opposite Party No.2 – Dealer; in its written version of defence has stated that the car was not towed to its workshop on 10/5/2008, but it was brought to its workshop on 12/5/2008 due to clutch failure due to overriding.  The Opposite Party No.2 – Dealer; has not denied the fact that the car is lying unattended at its workshop.  On the contrary, according to the Opposite Party No.2 – Dealer; as a gesture of goodwill, the Opposite Party No.1 – Manufacturer; had advised the Opposite Party No.2 – Dealer; to carry out replacement of the clutch assembly and it was accordingly done.  Despite that the Complainants have not taken delivery of the car.

[20]    The Complainants, in this context, have made reference to a notice sent by an advocate as well as alleged rude & adamant behaviour on the part of the Opposite Party No.2 – Dealer.  However, it appears that the problem was rectified by the Opposite Party No.2 – Dealer; but the Complainants have refused to take delivery of the car on the ground that it is a defective car having inherent manufacturing defects.

[21]    In this context, it be noted that up to the month of June-2008, car had completed a running of approximately 50,000 km.  Running of the car shows that on an average basis, monthly it had run for approximately 2,000 km. which shows that daily it ran for 70-80 km. daily on an average basis.  A vehicle with an inherent manufacturing defect would not complete a running of 50,000 km. within a short span of two years from its purchase.  No doubt, the car was required to be taken frequently to the service centre of the Opposite Party No.2 – Dealer; and various defects were rectified but, there does not appear to be any major or inherent manufacturing defect with the car.  It appears from the record that sometimes, there was a problem with the clutch assembly and once, it was replaced and this substantiates the contention of the Opposite Party No.2 – Dealer; in its written version of defence as well as written notes of arguments, that due to rough and bad driving of the car on the part of the Complainants, clutch assembly & clutch plates had undergone defects, which resulted into accidents as well as frequent breakdowns.  Reply to the Complainants’ notice, as sent by the Opposite Party No.2 – Dealer; on 22/10/2008, also substantiates this inference.

[22]    In addition to this, the Complainants had not sought examination of the car through an appropriate laboratory or through a skilled automobile engineer to establish that the car in question suffers from major & inherent manufacturing defects, which require replacement of the car.

[23]    On making assessment of the material on the record, we find that the Complainants were not justified in refusing to accept delivery of the car on being repaired by the Opposite Party No.2 – Dealer.  Since the Complainants have failed to establish that the car in question suffers from inherent manufacturing defect, the Complainants are not entitled to seek any direction, as sought in the complaint.

          With this, we proceed to pass the order as below:-

ORDER

The complaint stands dismissed.

No order as to costs.

Parties shall be informed accordingly, by sending certified copies of this order by registered post.