Tamil Nadu

StateCommission

CC/36/2008

T.Murugesan - Complainant(s)

Versus

M/s.Skoda Auto India Pvt. Ltd. Rep. by its General Manager & another - Opp.Party(s)

Ranjani Devi

26 May 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

       BEFORE                HON’BLE THIRU JUSTICE R. REGUPATHI    PRESIDENT     

                                       THIRU.A.K.ANNAMALAI                                JUDICIAL MEMBER 

                 Tmt. P. BAKIYAVATHI                                      MEMBER

                                                     C.C.NO.36/2008

                                DATED THIS THE 26^th DAY OF MAY 2015

                                                                                                              Date of Complaint        :  23.7.2008

                                                                                                               Date or Order               : 26.5.2015 

T.Murugesan

S/o Thiruvengada Mudaliar

No.106, Mettu street

Kancheepuram                                                                                ..complainant

 

                                        Vs

 

1.M/s Skoda Auto India Private Limited

By its General Manager

Plot No. A1/1 Shendra

Five Star Industrial Area

MIDC, Aurangabad 431 201

 

2. M/s Gurudev Motors

No.449, Anna Salai

Chennai 600 018                                                                          ..Opposite parties

 

Counsel for the complainant    : M/s Ranjani Devi

Counsel for 1^st opposite party    : M/s Balasubramaniam

Counsel for 2^nd opposite party   : M/s B.F.S. Legal

 

       This complaint coming before us for hearing finally on 31.3.2015 upon hearing the arguments on both side, perusing the documents, this commission made the following order.               

                                    ORDER

THIRU.A.K.ANNAMALAI,  JUDICIAL MEMBER

1.       The complainant filed a complaint u/s 17 of Consumer Protection Act 1986.

2.       The complainant praying for direction to replace with the new car for the defective car purchased and also to pay damages for Rs.25 lakhs due to deficiency in service and for cost, alleging deficiency in providing a new car for the value of purchase against  the opposite parties.

3. The gist of the complaint in brief as follows:

          The case of the complainant is that he is a silk trader also owning T.M Hotels and three other hotels and also President of Rotary club and Javuli Business Traders. The complainant has got several cars of several brands and purchased this SKODA from the 1^st opposite party through the 2^nd opposite party in Chassis No. TMB BSF 1286 A 151464 for Rs. 16,28,366/- on 12.11.2006 at 1.00 p.m having 2000 kms already run when the complainant was proceeding to Bangalore near Hosur, the speed of the car has been reduced and by contacting helpline, and other staffs of the opposite party, the defect was rectified. Again at 4047 kms in Bangalore on 31.1.2007, it developed smoke emission and slow down its speed. When he was approached TAFE  Access Ltd, Bangalore for repair, he was informed that the engine has to be replaced by saying the engine is defective after test drive and the complainant left the car on 31.1.2007 with them and on the promise that the engine would be replaced with the new one. The 1^st opposite party collecting Rs.5 lakhs for warranty and thereby bound to replace a new engine, but wrongly stated that the engine was replaced, without replacing a new engine, it caused mental agony and hardship estimated the same at Rs.5,00,000/- and also loss for Rs.50,000/- and writing a letter on 22.4.2007 for which a false reply dated 9.2.2008 was given. The 2^nd opposite party also responsible being the authorized service agent of 1^st opposite party, the allegation that the maintenance of car was poor as alleged by the opposite parties is not correct and on 22.12.2007 at 12,624 kms, the clutch fly wheel, clutch plate assembly were out of order cannot be corrected, when a clutch plate was replaced at 5533 km on 30.5.2007 within a period of six and half months on a run of 7091 km there cannot be once again the defects of the damages of clutch. The opposite parties are bound to replace the car itself and for the damages as claimed. Since no response was made for the letter dated 22.4.2007, a legal notice was issued and calling for reports for the repairs carried out on 12.11.2006, 31.1.2007, 26.5.2007 for which also did not responded again a legal notice issued on 14.7.2007. The 1^st opposite party issued reply with false and frivolous allegations denied the amount of Rs.5 lakhs collected as warranty and stated that the turbo charger was replaced at free of cost on 26.5.2007 and servicing on 15.6.2007 which is un-connected with the earlier complaints since the reports has not been complied with. Once again the complainant issued a legal notice on 4.1.2008 stating in the reply that the engine was replaced, but actually it was not done. Therefore the consumer complaint being filed claimed the reliefs as above.

 4.  Version of the 2nd  opposite party in brief as follows:       

        The 2^nd opposite party filed version on behalf of 1^st opposite party also contending that the complainant prepared vexatious complaint to gain unlawful meets. The opposite parties have not committed any deficiency in service or any unfair trade practice. The complainant after satisfying with the information provided by the 2^nd opposite party purchased a SKODA white Laura 1.9 TDL (L&K) on 6^th July 2006 impressed with the quality of the car and the efficiency of the service provided. The complainant was handling the car in a reckless manner and that the maintenance of the car was very poor. On running 589 kms, within the few days of purchase of the car was received for defects due to oil sump of that had been badly hit and damaged which was repaired on the very same day, once again on 12.8.2006 on 875 kms reading due to accident which had completely damaged the suspension of the car and the damaged body parts had to be replaced which was also efficiently rectified and delivered regarding clutches on 26.5.2007 at 5533 kms for the complaint of clutch discovered, it is due to warrantor arising out of poor maintenance and bad driving skill which was also replaced under warranty and delivered on 30.5.2007. On 22.12.2007, the car was towed to the service center regarding the repairs in clutch which was already rectified and inspite of specific instruction to maintain the car properly, and the odometer run for 12.624 kms at this stage which was also rectified the replacing entire assembly clutch replaced under the warranty and delivered on 25.12.2007. The 2^nd opposite party are in no way responsible for any complaint arising out of the repairs done as per the established procedure and only after obtaining the prior approval from the first opposite party before importing the appropriate spare parts.  The 2^nd opposite party stated that there was no sum of Rs.5,00,000/- collected by them as warranty as alleged by the complainant. All the repairs were carried out according to the procedure and the complainant was free to inspect the same at any time, the invoice and other formalities, no amount was received from the complainant. The claim of the complainant by providing new car is untenable.   Even in the legal notice, the complainant sought for replacement of engine from all the three parties including TAFE Access Ltd, which is the necessary party for the complaint and the complaint is bad for non-joinder of necessary party. After the repairs, then and there, the complainant took delivery of the car completely satisfied with service and now raising false allegations. Hence the complaint is to be dismissed.  

5.       Both sides have filed their proof affidavits, on the side of complainant Ex.A.1 to A.8 were marked and on the side of the opposite parties Ex.B.1 to Ex.B.7 were marked.

6.   The following are the points for consideration:-

1.    Whether there was any deficiency and unfair trade practice on the part of the opposite parties in providing the service of the car purchased from the opposite parties by the complainant and the complainant is entitled for replacement with a new one for the same?

2.     Whether the complainant is entitled for a sum of Rs. 25 lakhs towards loss of  prestige, loss of income, business loss due to deficiency of service?

3.     To what relief the complainant is entitled?

7. Point No 1 and 2:-

                In this complaint enquiry, the complainant contended that he had purchased a Skoda car from the 2^nd opposite party for which the 1^st opposite party being the supplier and manufacturer for Rs.16,28,366/- before 12.11.2006, when the car was already having run for 2000 kms, had trouble having smoke emission and slowed down its speed which was rectified through the helpline assistance. Subsequently, on 31.1.2007, it had the same problem when approached TAFE Access Ltd, Bangalore, it was informed that the engine was defective, it has to be replaced and there to be, he left the car to their premises and also alleged that the opposite party collects Rs. 5 lakhs as warranty and thereby praying for replacement of new car and other reliefs.

8.     Per contra as the opposite parties contended that they have not collected any separate amount of Rs.5 lakhs towards warranty and the car used by the complainant was not properly maintained and due to request and improper driving, the defects occasionally were rectified then and there replaced with turbo charger and oil sump and the car met with two times accident and they were all after rectification, received back by the complainant with full satisfaction and the car at the last time for the repairs done was already run 12,624 kms which and that stage, the odometer replacement assemble clutch under warranty was felt and the claim of the complainant which cannot be considered for replacement of entire new car.

9.        While considering both side contentions and other materials, the opposite parties alleged that under the warranty, the car was repaired twice and replaced with oil sump and turbo charger was also replaced. clutch disc cover were repaired and the TAFE Access Ltd also has made necessary repairs and replacement under the warranty when the car was already run for 12,624 kms which are not all denied by the complainant, even though the complainant contended the engine was not replaced on perusal of the opposite party’s documents under Ex.B.1 and B.3 job cards for the repairs done on 31.1.2007 and 29.3.2007, turbo charger was replaced and the wheel bending was attended under Ex.B.3, and accident repair Rear pumper, LHS Doof Frame, RHS Fender light, LHS O pump RHS etc.  Ex.B.5, under the warranty, the turbo charger, engine oil, Engine Assembly ( supplied by the SAIPL ) and all were replaced and under Ex.B.7, the case history format, we find on 31.1.2007, “1^st free service/ poor pick up and replacement of engine assembly with turbo charger and also under the remarks, it is pointed out delivered under invoice No. 59 dated 4.4.2007, received Rs.4479/- replaced engine and turbo charger under warranty refer  report in TALB-AB 0048 warranty amount 4,72,963/- and on 29.3.2007 for the access report, present kms : 4047, Rear pumper and wheel of tuning point”. From these details, it is clear that the car of the complainant within running for 12.624 kms,  twice met with accident and all the major and the minor repairs were attended, then and there, with the parts which could be replaced under warranty were replaced except with the collecting of certain charges and as for as under Ex.B.2. The 1^st opposite party given the report requiring for replacement of engine assembly and inter cooler assembly which was supplied to the servicing dealer TAFE Access Ltd and for the same under Ex.B.5, they were replaced under Ex.B.6, the complainant had taken road test and delivery with entire satisfaction and it had been on his own hand written as follows:-

        As the vehicle is good condition, I am not taken trial after confirm.

    10.       The complainant filed the documents under Ex.A.1 to A.8,  only relates to legal notice and reply and rejoinder etc., alone and are not come forward to file any purchase receipt for the car warranty card and under any proof, to prove and thereby collected Rs.5 lakhs towards the warranty, apart from the price of Rs. 16,28,366/- paid and even did not disclosed the date of purchase, the complaint and as per the job card under Ex.B.1, it is found the date of purchase on 10.7.2006 and he had a couple of repair on 12.11.2006 after running 2000 kms. Subsequently, at the last, on 22.12.2007, after running 12,624 kms, the vehicle was alleged to left with the opposite party, but the complainant did not disclose the present condition of the vehicle and also had not come forward to produce the RC book in order to ascertain the details of endorsement were rejecting the replacing with engine assembly etc., and thereby we are of the view that there was no unfair trade practice  or deficiency in service on the part of the opposite party. The complainant failed to prove that the car purchased from the opposite party is having inherent manufacturing defect requiring for replacement with new one and no expert evidence was produced for the same.

        The opposite parties relied upon the following precedents reported in

         III (2013) CPJ 273 (National Commission)

         We find substance in the submissions made by the learned counsel for the appellant. Admittedly, during the pendency of the complaint, the vehicle was sold by the Respondent on 26^th August, 2002 for Rs. 5,05,000/- without taking permission of the State Commission. Since the vehicle was sold, it was never produced as evidence before the State Commission. Had the vehicle been produced before the State Commission it could have been sent to an expert to submit a report to examine whether there was any manufacturing defect in the vehicle.  The vehicle was not examined by any expert. In the absence of any expert report and the laboratory test,   the State Commission erred in recording the finding that there was any defect in the vehicle. Onus was on the complainant to prove that there was any defect in the vehicle which he failed to discharge. Even otherwise, the vehicle was extensively used by the Respondent for two years and it had covered a distance of more than 48000 kms, prior to filing of the complaint before the State Commission.

      II (2014) CPJ 665 National Commission   

     “In the current case, the facts and circumstances show that respondent should not have sold the said vehicle during the pendency of the proceedings before the National Commission. As observed above, it is not possible to have the order of the State Commission executed because the vehicle no longer remains with the petitioner. The factum of any manufacturing defect being there or not, can also not be ascertained by any expert evidence at this stage. In the case of Rajiv Gulati versus M/s Tata Engineering & Locomotive company Ltd & others.”(supra), it has been clearly stated that when the vehicle had been sold, it was not possible to establish by cogent evidence that it suffered from any manufacturing defect. In this very case, it has been observed that the depreciated value of the vehicle is presumed to be less than the sale-consideration. This may not be the position in the present case but still, the complainant should have sought the permission of the court before selling the vehicle”.

11.     Regarding these precedents are concerned, the complainant has not come forward to prove that the vehicle was at present with his custody and after filing a complaint, when the opposite parties alleged that the vehicle was already sold out it is the duty of the complainant to disprove the same and for which in spite of direction given for filing necessary affidavit which was not filed. Hence we are inclined to accept the contentions of the opposite party in this regard and also no expert evident was produced and thereby he is not entitled for any compensation of Rs.25 lakhs towards loss of prestige, loss of income, business and deficiency in service of opposite party which was not all proved and thereby these points are answered accordingly.

12. Point No.3 

         In view of the finding in point No. 1 and 2, against the complainant, the complaint is liable to be dismissed as not proved, accordingly

          In the result, the complaint is dismissed.

           However each party do bear their own costs.  

 

 

P.BAKIYAVATHI                    A.K.ANNAMALAI                          R.REGUPATHI

   MEMBER                             JUDICIAL MEMBER                          PRESIDENT

                                         

                                     ANNEXURE

LIST OF DOCUMENTS FILED BY THE COMPLAINANT : 

Ex.A1           22.4.2007     copy of the notice send by the complainant

Ex.A.2          28.4.2007     copy of the Acknowledgement card

Ex.A.3          11.6.2007     copy of the legal notice issued by the complainant

Ex.A.4          14.7.2007     copy of the legal notice issued by the complainant

Ex.A.5          1.8.2007      copy of the reply notice sent by the 1^st opp.party

Ex.A.6          25.8.2007     copy of the rejoinder notice issued by the complainant

Ex.A.7          9.2.2008      copy of the reply notice issued by the opp.party

Ex.A.8          3.3.2008      copy of the rejoinder notice issued by the complainant

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES

Ex.B.1          31.1.2007     copy of job card No.17419

Ex.B.2          14.2.2007     copy of Quality report

Ex.B.3          29.3.2007     copy of job card

Ex.B.4          29.3.2007     copy of invoice No.57

Ex.B.5          4.4.2007      copy of invoice No.59

Ex.B.6           4.4.2007      copy of satisfaction note

Ex.B.7              -            copy of case history format

 

 

P.BAKIYAVATHI                    A.K.ANNAMALAI                          R.REGUPATHI

   MEMBER                             JUDICIAL MEMBER                          PRESIDENT