BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                             Dated this the 30^th April 2013

PRESENT

           SMT. ASHA SHETTY           :   HON’BLE PRESIDENT

           SMT.LAVANYA M. RAI       :   MEMBER

COMPLAINT NO.31/2013

(Admitted on 2.2.2013)

Managing Director,

M/s.Elespee Products Pvt. Ltd.,

Baikampady, Mangalore.

Represented by its Manger,

Mr.Ronald Fernandes,

Aged 45 years,

S/o Alphonsus Fernandes,

R/at ‘Josline Villa’, Derebail,

Konchady,

Mangalore-6.                                     …….. COMPLAINANT

(Advocate for the Complainant: Sri Udaya Kumar Shetty)

          VERSUS

1. M/s. Skoda Auto India Pvt. Ltd.,

   Plot No.A 1/1, Shendra,

   Five Star Industrial Area,

   MIDC Aurangabad,

   Maharashtra-431 201,

   Represented by its Authorized Signatory.

2. TAFE Access Limited,

    Skoda Division,

   ‘Deo Gratias Building’,

    Urwa Chilimbi,

   Mangalore-575 006.

   Represented by its Manager/

   Authorized Signatory.                       ……. OPPOSITE PARTIES

(Opposite Party No.1 & 2: Exparte)

                                      ***************

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.       1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging defective goods/deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant stated that, he had booked Skoda RAPID ELE-MT 1.6 TDI CR car manufactured by Opposite Party No.1 marketed by Opposite Party No.2 as per Order Form dated 9.1.2012 for a total price of Rs.11,22,709/- including insurance and road tax. The Complainant had taken delivery of the car on 17.2.2012 from the show room and had been using the same for his private and personal use.  The said car was registered in the name of Complainant at Mangalore RTO office and its registration No. is KA 19 MC 3479. 

The Complainant stated that during the second week of June 2012 the front two window glass dropped one after another and the power windows were not working/functioning, the same was taken to the workshop of Opposite Party No.2 for necessary repairs. The Opposite Party No.2 on examination informed the Complainant that the power window motors are burnt and requires replacement and it was also informed that the said parts were not readily available and it take three weeks time for replacement.

It is stated that, the car is a brand new since the motor needed replacement it was requested to the Opposite Party that the same is to be replaced free of cost since there was warranty and the Complainant was in no way responsible for the cause of failure of the motors.

It is stated that, the vehicle was kept for replacement of the motors on 6.7.2012 but the Opposite Party No.2 intimated the Complainant that the vehicle should be kept in the workshop till they get clearance of the warranty for the Head office. The Complainant’s vehicle kept in the workshop on 6.7.2012, but the vehicle was unattended for the whole day and on 7^th morning it was attended and it appeared that Opposite Parties are not interested in attending the vehicle by replacing the motors. Ultimately the Complainant taken back the vehicle on 7.7.2012 as he was need of the car. Subsequently on 9.7.2012 the vehicle was kept for replacement and new motor were installed on 10.7.2012 by spending Rs.20,572/-.

It is stated that, at the time of installation of new motors it was informed to the Complainant that they will perceive the Opposite Party No.1 for replacement on warranty, the old motors were kept in the custody of Opposite Party No.2 and still it is in their custody. The Complainant immediately on 17.7.2012 sent letter requesting them to refund the amount as the vehicle had a warranty and the amount charged by them is amounts to deficiency in service as well as unfair trade practice. Feeling aggrieved by the above, the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund a sum of Rs.20,572/- being the cost incurred for replacing the motors with interest thereon at 10% from 9.7.2012 from the date of replacement of the motors till today and pay compensation and costs of the proceedings.

II.      1. Version notice served to the Opposite Party No.1 and 2 by R.P.A.D. Opposite Party No.1 and 2 inspite of receiving version notice neither appeared nor contested the case before this FORA.  Hence, we have proceeded exparte as against the Opposite Party No.1 and 2.  The acknowledgement marked as Court Doc. No.1 and 2. 

III.     1. In support of the complaint, Mr.Ronald A.Fernandes (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint.  Ex C1 to C12 were exhibited for the Complainant as listed in the annexure in detail. Opposite parties not filed any affidavit nor filed any documents and placed exparte.

           In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party No.1 and 2 have committed deficiency in service as well as unfair trade practice?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

          We have considered the notes/oral arguments submitted by the complainant and also considered the materials that was placed before this Forum and answer the points are as follows:

                          Point No.(i): Affirmative.

                          Point No.(ii) & (iii): As per the final order.            

REASONS

IV.     1.  POINTS NO. (i) to (iii):

In the instant case, in order to substantiate the averments made in the complaint, the Complainant i.e. CW-1 filed evidence on affidavit supported by documentary evidence i.e. Ex.C1 to C12 before this authority.  The Ex.C1 reveals that the Complainant placed an order before the Opposite Parties No.2 on 9.1.2012 for purchase of Skoda RAPID ELE-MT 1.6 TDI-CR car manufactured by Opposite Party No.1 marketed by Opposite Party No.2.  The Ex.C2 is the original invoice dated 17.2.2012 reveals that the Complainant paid Rs.11,22,709/- including insurance and road tax and taken delivery of the car on the day from the show room.  The Ex. C11 is the original booklet of the Skoda Warranty issued by the Opposite Party No.2 and Ex.R12 is the original bill / invoice dated 10.7.2012 reveals that the front both window lifter motor removed and re-installed and also dicky opener button replaced for a sum of Rs.20,572/-. 

However, on perusal of the warranty card it reveals that the vehicle in question has warranty and Skoda Auto India Pvt. Ltd., had undertaken to replace all the defective parts under warranty period except paint and body warranty.  On perusal of the warranty card, we observed that the Skoda Auto India Pvt. Ltd. undertaken two years warranty for new vehicles from the date of sale.  In the instant case, the vehicle in question admittedly purchased on 17.2.2012 and within six months the window lifter motor two in number and connected components are found defective and the same has been replaced by charging Rs.20,572/- appears to be perverse because the Skoda Auto India Pvt. Ltd., had under taken to replace the defective parts during the warranty period. When that being so, the Opposite Parties should not have received charges from the Complainant/customer herein during the warranty period.

Further, it is seen on record that, the warranty could be denied damage where the damage or mall functions due to misuse, negligence, alteration or due to lack of maintenance etc. But in the instant case, there is no material evidence to show that there is a misuse, negligence or alteration or lack of maintenance.  In the absence of any such lapse on the part of the Complainant, the Opposite Parties are liable to replace the spare parts free of cost under the warranty period.  The charges collected by the Opposite Parties amounts to deficiency in service as well as unfair trade practice.

It is further observed that, the Opposite Parties inspite of receiving version notice not appeared nor contested the case shows their gross negligence as well as the clear admission of the Opposite Parties. The entire documents as well as the averment made in the complaint are not contradicted /conctorverted by the Opposite Parties. Hence we are of the considered opinion that, the amount collected by the Opposite Parties during the warranty period amounts to deficiency in service as well as unfair trade practice as stated supra. At the same time, the Opposite Parties are borne in mind that they should not keep the vehicle in their custody unattended because every customer purchases the vehicle for his personal use and their convenience by paying huge amount.  Withholding the vehicle by unattending the Complaints and keeping the vehicle in their custody according to their whims and fancies and later giving one or the other reasons i.e. they have to receive clearance from their head office or non-availability of the spare parts shows further deficiency of service towards the customers.  When a person/customer paying so much of amount by believing the Opposite Parties that they will provide good service but the Opposite Parties serving the customers take it or leave it shows the lethargy towards the customers.

By considering the above aspects and the communications between the parties, we are of the considered opinion that in a case of like this nature adequate compensation should be given to the customers as the Opposite Parties collected charges during the warranty period shows their deficiency.  Therefore, we hold that the Opposite Parties i.e. Skoda India Auto India Pvt. Ltd. and TAFE Access Ltd jointly and severally represented by its Authorized Signatory to refund Rs. 20,572/- (Rupees Twenty thousand five hundred seventy two only) to the complainant and also pay Rs.10,000/- (Rupees Ten Thousand only)as damages towards the harassment and inconvenience which includes of the litigation expenses. Payment shall be made within 30 days from the date of this order.

In the result, we pass the following:  

ORDER

The complaint is allowed. Opposite Parties i.e. Skoda India Auto India Pvt. Ltd. and TAFE Access Ltd represented by its Authorized Signatory jointly and severally to refund Rs. 20,572/- (Rupees Twenty thousand five hundred seventy two only) to the complainant and also pay Rs.10,000/- (Rupees Ten Thousand only) as damages which includes cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No.1 and 2 are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th April 2013)

                   PRESIDENT                                     MEMBER                                                           

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Ronald Fernandes - Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 9.1.2012: Original order form.

Ex C2 – 17.2.2012: Original Invoice.

Ex C3 – Xerox copy of the certificate of Registration.

Ex C4 – 10.7.2012: Xerox copy of the Bill/Invoice.

Ex C5 – 17.7.2012: The copy of the letter sent to O.P.No.2.

Ex C6 – 24.8.2012: The copy of the E-mail.

Ex C7 – 15.11.2012: Office copy of the Lawyer’s notice sent to O.P.No.1 and 2.

Ex C8 – Original Postal acknowledgement of O.P.No.1.

Ex C9 – Original Postal acknowledgement of O.P.No.2.

Ex C10 – Original Authorization letter.

Ex C11 – Original Booklet of the Skoda Warranty.

Ex. C12- 10.7.2012: Original of the Bill/Invoice.

Court documents:

Doc.No.1 and 2 : Postal Acknowledgements.

Witnesses examined on behalf of the Opposite Parties:

- Nil -

Documents produced on behalf of the Opposite Parties:        

- Nil -

Dated:30.4.2013                                PRESIDENT