Tamil Nadu

StateCommission

CC/44/2013

SHRI. VISHAL KEYAL, DIRECTOR - Complainant(s)

Versus

M/S. VOLKSWAGEN INDIA(P) LTD - Opp.Party(s)

K. RAMASAMY

26 May 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                             Present: Hon'ble Justice Thiru R. Regupathi               PRESIDENT

                                           Thiru J. Jayaram,                                         JUDICIAL MEMBER

                                           Tmt.  P. Bakiyavathi                                     MEMBER

C.C. No. 44 / 2013

Dated this the 26^th day of  MAY, 2015

Shri Vishal Keyal,                      ]

Director,                                             ]

M/s Kanishk Steel Industries Ltd,         ]

Old No. 4, New No.7,                          ]

Thiru-vi-ka 3^rd Street,                         ]

Royapettai High Road,                        ]

Mylapore, Chennai – 600 004              ] ..      Complainant

                                                      Vs

1. M/s Volkswagen India (P) Ltd,         ]

    Represented by its                          ]

    Assistant Manager,                         ]

    No.3, North Avenue,                       ]

    Level Maker Maxity                        ]

    Bandra Kurla Complex,                   ]

    Bandra (East), Mumbai–400 051      ]

2. M/s ETA Star Western Auto             ]

    Dealer (P) Ltd,                                ]

    Known as ‘ABRA Motors (P) Ltd,     ]

    Rep. by its Authorized Signatory,     ]

    No.41, 1^st Main Road,           ]

    C.I.T. Nagar, Chennai – 600 035     ]

3. M/s ABRA Motors (P) Ltd,               ]

    Rep. by its Authorized Signatory,     ]

    No.80, Southern Avenue,                ]

    Ambattur Industrial Estate,              ]

    Ambattur, Chennai – 600 058 ]         Opposite Parties

                                 This complaint coming up before us for final hearing on 17-04-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

Counsel for Complainant:                             Mr. K. Ramasamy

Counsel for 1^st Opposite Party:           Mr. A.R. Ramanathan

Counsel for 2^nd & 3^rd Opposite Parties:          Ms. Nandhini Ram

J. JAYARAM, JUDICIAL MEMBER

                The case of the complainant is as follows:

                The complainant purchased a Diesel Car for his own use from the 2^nd opposite party for a sum of Rs.24,19,629/- on 11-07-2009 and warranty was provided for two years, and it was subsequently extended by another two years or 1 Lac KM whichever is earlier. While so, the car developed the following complaints within the warranty period of 2 years which were brought to the notice of the 2^nd opposite party on 7-2-2012.

“a,      The Air Conditioner does not get cold; 

 b,      Car vibrates excessively while driving

 c.      Abnormal noises under car

 d.      Gear changes to higher gear automatically while driven the car in low speed,

 e.      Car jerks,

 f.       Clutches get struck up

 g.      Brakes vibrates and Brake problems”.

2.       He requested the 2^nd opposite party to rectify the manufacturing defects, and on receipt of the message, the 2^nd opposite party had discussion with the complainant on 8-2-2012, and with the consent of the complainant, the car was taken for repair by the 3^rd opposite party which is acknowledged by the 2^nd opposite party by letter dated 10-2-2012. The 3^rd opposite party furnished estimate for repair by letter dated 14-9-2012 for Rs.62,266/-. On receipt of the estimate, the complainant expressed his view that the car had been giving problem from the date of purchase, and therefore he requested the 2^nd opposite party to replace the defective car with a new one vide letter dated 15-9-2012 and 25-9-2012. The total mileage of the car at the time or returning to the opposite party was recorded as 48,855 KMs. The opposite party delivered the car with manufacturing defects without conducting road test to the satisfaction of the consumer. The complainant wrote several letters to the opposite parties requesting them to redress the grievances of the complainant but all his efforts were in vain and therefore he wrote a letter to the 1^st opposite party who is the manufacturer of the car having office in Germany, and on receipt of this letter, the German company / manufacturer sent a message dated 23-12-2012 informing the complainant to approach the 1^st opposite party who is having his office in Mumbai, and on receipt of this letter dated 11-1-2013, the complainant again approached the 1^st opposite party and also the factory office at Pune as advised by the Germany office; but the 2^nd and 3^rd opposite parties failed to rectify the manufacturing defects in spite of repeated demands.

          3.       The complainant suffered severe mental agony and suffered huge loss. The act of the opposite parties in not rectifying the manufacturing defects in the engine of the car within the warranty period, amounts to deficiency in service on the part of the opposite parties.

4.       Finally, the complainant issued a legal notice to the opposite parties calling upon them to replace the said car by providing a new car free from any defects. The opposite parties received the legal notice, but failed to respond in spite of several reminders. Hence the complaint praying for direction to the opposite parties.         

(i)      To replace the car with a new one or of similar description which shall be free from any defects;

(ii)       To return the price of the car of Rs.24,59,189/- paid by the   complainant

(iii)     To pay to the complainant Rs.25,000/- as compensation towards mental agony;  

   (iv)     And to pay costs to the complainant.

5.       The 1^st opposite party filed the version as follows:

The car in question was never sold by the 1^st opposite party directly to the complainant; and as such the 1^st opposite party has not given warranty or any replacement guarantee to the car in question, and the complainant has wrongly arrayed M/s Volkswagen India Private Ltd as 1^st opposite party and impleaded them as a party to the present complaint, which is unnecessary.

6.       The 2^nd and 3^rd opposite parties filed version stating as follows:

According to the complainant, there are manufacturing defects with the vehicle and so he can proceed only against the manufacturer who is the 1^st opposite party. The 2^nd and 3^rd opposite parties are only automobile dealers and not the manufacturer. Whenever the complainant brought the vehicle for servicing or attending to repairs, it was readily attended and the defects were rectified and the vehicle was promptly returned to the complainant without any deficiency in service.

 7.      The car was purchased on 11-07-2009 and the complaint has been filed on 28-02-2011 and so the complaint is barred by limitation under Sec 24-A of Consumer Protection Act.

8.       Both the parties have filed the proof affidavits. Ex.A1 to A14 are filed and marked on the side of the complainant; and Ex.B1 to B10 are filed and marked on the side of the opposite parties.

9.       The points for consideration are:

1.       Whether the complaint is barred by limitation;

2.       Whether there is deficiency in service on the part of the opposite parties as alleged in the complaint;

3.       Whether the complainant is entitled to claim compensation from the opposite parties; and

4.       To what relief the complainant is entitled.

10.     Point No.1:

The 1^st contention of the opposite parties would be that the complaint is barred by limitation.

It is pertinent to note that admittedly the car has been purchased on 11-7-2009 and the complaint has been filed on 28-2-2013. Ex.A14 is the letter of the 1^st opposite party addressed to the complainant repudiating the claim of the complainant to replace the car which has been received by the complainant on 11-01-2013, in response to the complainant’s letter Ex.A13 dated 22-12-2012 and as such, 11-01-2013 is the date of final cause of action, and the complaint is filed in time, within the statutory period of two years from the final cause of action i.e. 11-01-2013 as under Sec 24-A of Consumer Protection Act. Therefore, we hold that the complaint is filed in time and it is not barred by limitation and the contention of the opposite parties in this regard is untenable, and the point is answered accordingly.

11.     Point Nos.2&3:

The further contention of the complainant is that there is manufacturing defect in the car and the defects are as follows:

a,       The AC in the car is not working properly. There is no cooling;

b,       Yellow light for check engine is always on.

c.       The car changes to high gear automatically in low speed.

12.     It is relevant to note that there is no evidence on record to establish that there is manufacturing defect in the vehicle and in the absence of materials on record, we cannot accept the contention of the complainant that there are manufacturing defects in the vehicle, since there is no expert’s opinion or evidence on record, and therefore this contention is untenable.

13.     It is further contended by the opposite parties that the complainant cannot claim replacement of the car as per the warranty terms and conditions in Ex.B4 – MAINTENANCE SERVICE and MECHANICAL ADJUSTMENTS, where it is clearly mentioned as follows: “Under this Warranty, coverage replacement of the car is hereby expressly excluded from warranty”. Therefore, we hold that the complainant is not entitled to claim replacement of the car as per the terms and conditions of warranty.  

14.     We further note that Ex.B7, B6 & B8 disclose that the vehicle has been serviced and minor repairs were done on 4-5-2011 at 28,056 KM; and on 10-9-2011 at 33,747 KM; and on 19-4-2012 at 41,552 KM. Therefore, it is clearly established that whenever defects were noticed, the defects have been properly rectified by the 3^rd opposite party. In the complaint, it is stated that when the vehicle was handed over for repair to the opposite parties on 8-2-2012, the car had covered 48,855 KMs in about 3 years and these go to substantiate that there is no inherent manufacturing defect in the vehicle.

15.     Too many citations have been submitted by both sides. These decisions are not necessary for deciding the points in issue in this complaint, and so those decisions are not reproduced here for discussion.

16.     For the aforesaid reasons, we hold that there is no deficiency in service on the part of the opposite parties; and that the complainant is not entitled to claim compensation or replacement of the vehicle, and the points are answered accordingly.

17.     In view of our finding on point Nos.1 to 3, we hold that the complainant is not entitled to claim any relief in the complaint, and the point is answered accordingly.

18.     In the result, the complaint is dismissed. No order as to costs.

 P. BAKIYAVATHI           J. JAYARAM                R. REGUPATHI

        MEMBER                   JUDICIAL MEMBER             PRESIDENT

 

Exhibits filed on the side of the Complainant:     

Sl. No.         Date            Description

A1        11-07-2009 Invoice No.ESWA/VW/228 showing purchase

                                      Price of car at Rs.24,19,629/-.

A2                -                  Certificate of Registration of Car.

A3        22-07-2010          Warranty or Extended warranty.

A4       07-02-2012 E-Mail message from complainant to the

                                      Opposite party

A5       09-02-2012 Legal notice from complainant to 2^nd

                                      Opposite party

A6       10-02-2012           Letter from opposite party to complainant

A7       23-02-2012 E-mail message from manufacturer of car

                                      to complainant

A8       14-09-2012 Estimate of repair received from 3^rd

                                      opposite party notice 48,855 KMs

A9        15-09-2012 Reply from complainant to the opposite party

A10      25-09-2012          E-mail message from complainant to the

                                      opposite party

A11      05-10-2012          Letter from opposite party to complainant

                                      Mr. Vishal Keyal.

A12      20-11-2012          Letter from complainant to opposite party

                                      of reply thereon.

A13      22-12-2012          Letter from complainant to Customer Relation

                                      Officer M/s Volkswagen, Germany  to 3^rd and

                                      1^st opposite party factory, Pune-410501

A14      11-01-2013          Reply received from 1^st opposite party by

                                      complainant in response to letter dated

22-12-2012

Exhibits filed on the side of the Opposite Parties:     

Sl.No.           Date            Description

B1        05-10-2012 Replacement

B2        11-07-2009 Invoice

B3        14-09-2012 Service Bill

B4               -                  Warranty

B5        15-12-2012 Warranty Communication

B6        07-09-2011 Delivery Note

B7        04-05-2011 Delivery Note

B8        19-04-2012 Delivery Note

B9        05-10-2012 Intimation

B10      20-11-2012 Intimation.

 

 P. BAKIYAVATHI           J. JAYARAM            R. REGUPATHI

         MEMBER                  JUDICIAL MEMBER          PRESIDENT