IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE 27^th DAY OF NOVEMBER 2021

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

        Smt.S.Sandhya   Rani. Bsc, LLB ,Member

       Sri.Stanly Harold, B.A.LLB, Member

CC.No.282/2015

ParippallyR.Raveendran,

Advocate, aged 59 years,

S/o Raghavan, Navaneetham,

Thoppilkadavu, Kollam-12.

(By Adv.AsifRishin A.)                                                       :           Complainant           

V/S

1. M/s VolksWagen India Ltd.,

943,  2 MI, E1, MIDC Industrial

Area Phase-3, Nigoge,

Mahalinge, Kharadwardi,

Khed, Pune District, Chakan,

Pune, India (Manufacturer)                                              :          Opposite parties

(By Adv.Azeem Mohammed)

2. M/s EVM Passenger Cars India Pvt.Ltd.,

         ManzoorMusiliar Towers, 2^nd Mile Stone,

          Kilikolloor, Kollam 691004(Dealer)

(By Adv.R.AbdulMuneer)

3.      M/s Volkswagen Finance Pvt.Ltd., 3^rd Floor,

          Wing A, Silver Utopia, Cardian Gracious Road,

          Chakala, Andheri, Mumbai

         (By Adv.S.Suresh Kumar)

              Addl.OP4  M/s VolksWagen Group Sales India Pvt.Ltd.,

               3^rd and 4^th floor, SilverUtopia,

               Cardian Gracious Road,

            Chakala, Andheri, Mumbai

                (Addl.OP 4 impleaded as per order in I.A 66/2016 dated 17.05.2016)

(By Adv.Azeem Mohammed)

ORDER

Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

1. This is acase based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.
2. Averments in the complaint in short are as follows.

The complainant who is the practising lawyer at Kollam purchased a brand new ‘VolksWagen Vento’ diesel highline car from the 2^nd opposite party who is the authorized dealer of the VolksWagen company  under Fully Loaded Scheme.  The complainant is the registered owner of the said vehicle.  The 1^st opposite party is the manufacturer of the vehicle and 3^rd opposite party is the financier of the vehicle.  A compulsory loan of Rs.1,00,000/- from 3^rd opposite party is insisted as a condition for the sale.  The additional 4^th opposite party who has been impleaded subsequently as per order in I.A 66/16 dated 17.05.2016is M/s VolksWagen Group Sales India Pvt.Ltd., Mumbai.  At the time of purchase of the vehicle from the opposite parties the  complainant is made to believe and assured that they are providing 3 years free insurance from 04.10.2013 onwards and an extended warranty for 3 years free.  Believing the above representation the complainant treated the fully loaded certificate issued by the opposite parties as a concluded contract between the complainant and the opposite parties.

3.       However on 19.09.2015 at about 3.32 PM the complainant herein received a text message from the 2^nd opposite party directing the complainant to pay an additional amount  of Rs.25,153/- for extending the 3 years warranty already availed by the complainant under the fully loaded scheme.  Immediately the complainant reached at the office of the 2^nd opposite party and enquired about the details of extended warranty.  Thereupon the officials of the 2^nd opposite party informed the complainant that in order to further extend the warranty the complainant has to cancel one year free warranty already availed and enjoyed by him under fully loaded scheme which is a package offered by the opposite parties at the time of purchase of the vehicle for which sufficient consideration was paid by the complainant.  As insisted by the 2^nd opposite party the complainant apply for fresh extended warranty for further 2 years after paying an amount of Rs.25,153/- and also cancelling one year free out of the 3 years free warranty.  But the opposite parties have no manner of right or authority whatsoever to insist the complainant to cancel the facility already availed by the complainant.  As per the terms of the contract the complainant is eligible for taking another extended warranty without cancelling the 3 years free warranty as covered by the package under fully loaded scheme and hence the opposite parties are liable to provide extended warranty to the complainant.  The illegal demand and unreasonable claims by the opposite parties are nothing but unfair trade practice and deficiency in service.  Hence the opposite parties are jointly and severally liable to provide extended warranty after the expiry of 3 years warranty as provided by the dealer in consultation with the 1^st and 3^rd opposite parties.  The denial of further extended warranty by the opposite parties caused much mental agony untold miseries and hardship to the complainant.  Hence the complaint.

4.       The contentions raised by the opposite parties No.2 to 4 in their separate versions are more or less same which in short are as follows.  Complaint is not maintainable either in law or on facts.  However the opposite parties would admitthat the complainant has purchased the vehicle from the opposite party.  But denied allegations that there was compulsory loan as condition for purchase of the vehicle.    The extended warranty provided is not a right and it can be availed only on complying with the terms and conditions stipulated by the manufacturer.  Therefore the complainant cannot claim extended warranty as a matter of right.  No extended warranty is offered free of cost as claimed by the complainant.  The complainant being the practising lawyer will not accept such free offer without any documentation.  The amount claimed is for the extended warranty which is a condition for extending the warranty for additional 3 years.  Nobody from the opposite party establishment has informed the complainant that he has to cancel one year free service as alleged in the complaint.  The opposite party never insisted for cancelling the 3 year free warranty provided to the complainant.  In order to availing the 3 year extended warranty the warranty has to be extended during the subsistence of the warranty provided.  Hence the complainant was requested to make the payment if he is interested to avail the extended warranty.  No deficiency in service or unfair trade practice committed by the opposite parties.  The complainant has not availed the extended warranty as per the terms and conditions.  The complainant is having no cause of action nor entitled to get any relief.

5.       3^rd opposite party would further admit that at the time of purchasing Volkswagen Vento Diesel Highline car , the complainant was informed about Fully Loaded Scheme and it was also assured that the opposite parties will provide 3 years free insurance from 04.10.2013 and an extended warranty for 3 years for free of cost.  It was the 1^st opposite party who is the manufacturing company has issued Fully Loaded Scheme to the complainant and 3^rd opposite party.  The 3^rd opposite party is unaware of the communication between the complainant and 2^nd opposite party and also not having knowledge about any commitment made by the dealer(Opposite party 2) to the complainant.  3^rd opposite party has never made any illegal demand to the complainant to cancel anyfacility granted while purchasing the vehicle.  3^rd opposite party is not the necessary party to the complainant and hence there is mis-joinder of the party.  The 3^rd opposite party is not responsible to grant extended warranty to the complainant and hence there is no unfair and deceptive practices on the side of the 3^rd opposite party.

6.       The 4^th additional opposite party would content further that the relationship between the 4^th opposite party and its dealers is on a principal to principal basis.  The end customer places order as per his requirements and the 4^th opposite party delivers the cars to the dealer and thereafter it is the responsibility of the dealer to deliver the cars to the end customer as per order.  4^th opposite party does not deal with or is concerned with the end customer at the time of delivery of the car which is in the exclusive domain of the 2^nd opposite party dealer and therefore the 4^th opposite party is not liable for any alleged promises or representations made by the 2^nd opposite party to the customer at the time of sale or after the sale of the car.  The 4^th opposite party is not a party to the sales contract entered into by the customer (complainant) and vehicle selling dealer(2^nd opposite party).  Therefore there can be no connection between the end customer and the 4^th opposite party at the time of sale of the car.  4^th opposite party has no liability or responsibility towards alleged promises or representations made by the 2^nd opposite party to the complainant at the time of sale or after the sale of the car.  There is no privity of contract between the complainant and 4^th opposite party.  Complainant is having no cause of action against the 4^th opposite party.  There is no deficiency in service on the part of the 4^th opposite party.  This commission is not having the territorial jurisdiction to entertain the complaint as the 4^th opposite party is situated outside the territorial jurisdiction of the Forum.  The 4^th opposite party has not committed any unfair trade practice as alleged in the complaint.  There is no specific allegation against the 4^th opposite party.  Hence 4^th opposite party has been wrongly made a party to the complaint.  Therefore the complaint is barred by misjoinder of party.  The 4^th opposite party has no relation or concern with the loan agreement of the complainant with the opposite party No.3 who is an independent legal entity.  The complainant was informed about the two year  extended warranty scheme by the dealer which was optional to the complainant.  At the time of purchase of the car the complainant was provided with three year free warranty under fully loaded scheme in which two year standard warranty and one year extended warranty was included.  After expiry of the initial two years standard warranty period the complainant was provided with the option to extend and  convert his remaining one year warranty into two year extended warranty by paying the required fee for the additional period of warranty.  It dependent upon the choice of the complainant whether he has to continue with the initial extended warranty of one year or to convert the two years extended warranty by paying additional cost.  The complainant misunderstood the scheme and therefore all the allegations.  The allegations in the complaint regarding unfair trade practice, mental agony, hardship, untold miseries are all without any basis against the 4^th opposite party. The complainant is not entitled to get any amount of compensation.  According to the 4^th opposite party there is no merit in the complaint and further prays to dismiss the same with exemplary cost.

7.       The learned counsel appearing for the 1^st& 4^th opposite parties has filed a memo stating that the 1^st opposite party has been adopting the version filed by the 4^th opposite party.  Thereafter the complainant by amending the complaint incorporaed the additional ‘e’ relief in the complaint.  The 1^st and 4^th opposite parties have jointly filed 2^nd additional version disputing the ‘e’ relief.

8.       In view of the above pleadings the points that arise for consideration are:-

1. Whether the complainant is entitled to get extended warranty for a period of 3 years from the date of expiry of standard warranty as claimed in the complaint?
2. Whether there is any deficiency in service or unfair trade practice on the  part of the opposite party 1 to 4?
3. Whether the complainant is entitled to get the relief sought for?
4. Reliefs and Costs?

Evidence on the side of the complainant consists of the oral evidence of PW1 and Exts.P1 to P3 series.  The complaint was got amended as per the order in I.A.308/2016and after amending the complaint PW1 was examined again and got marked Ext.P4 series documents.  None of the opposite parties has not adduced any oral evidence.  But produced and got marked Ext.D1 which is the original of Ext.P1 fully loaded certificate

9.       Complainant and opposite parties No. 1 &4 have filed notes of argument  and additional argument notes.  Learned counsel for the 2^nd and 3^rd opposite party has not filed any argument notes.  Heard the learned counsels appearing for all the parties.

Point No.1

10.     The following are the admitted facts in the case.  The complainant who is a senior practicing lawyer of Kollam Bar purchased Volkswagen Vento diesel car from the 2^nd opposite party who is the authorized dealer of 1^st opposite party manufacturer.  The price of car was Rs.11.5 lakhs.  The 3^rd opposite party is the financier of the car who is the sister concern of the 1^st opposite party.  According to PW1 at the time of purchase the 2^nd opposite party insisted the complainant to avail a minimum loan of Rs.1,00,000/- to enjoy the free additional warranty and free insurance for a period of 3 years.  Accordinglyhe availed a loan of Rs.1,00,000/- from the 3^rd opposite party which issued Ext.P1/D1 fully loaded certificate.  It offers free insurance and free extended warranty for 3 years.  According toPW1 the vehicle is having original warranty for 3 years and in view of the terms in Ext.P1/D1 fully loaded certificate he is entitled to have free extended warranty for an additional period of 3 more years from 04.10.2016.  It is the further case of the complainant that he is entitled to get extended warranty beyond the standard warranty period of 3 years on payment only after 04.10.2016.  But before the expiry of two years standard warranty the complainant was informed by the 2^nd opposite party dealer to pay an additional sum of Rs.25,153/- as a precondition for applying extended warranty and to waive the available last one year free warranty and the complainant was not willing to get extended the warranty as directed by the 2^nd opposite party.  Hence the complainant caused to send P2 lawyer notice demanding to provide extended warranty after the expiry of valuable 3 years free warranty.  But the opposite party wilfully failed to  respond the demand of the complainant.    According to the complainant the illegal denial of extended warranty is unfair and deceptive practices.  It is the further case of the complainant that the denial of extended warranty caused much mental agony and hardship to the complainant.

11.     It is to be pointed out that the complainant has not pleaded the actual date of purchase of the car.  But in view of the date shown in Ext.P1/D1 fully loaded certificate it is to be inferred that date of purchase of the car is 04.10.2013.  Similarly the complainant has neither pleaded what is the extend of standard or original warranty period nor produced any documentary evidence to prove that the standard warranty provided is 3 years from the date of purchase of the car.  According to the 4^th opposite party the standard warranty is 2 years.  But the 2^nd and 3^rd opposite parties would admit their version that the complainant was provided with 3 years original warranty and 3 years extended warranty.  But the extended warranty is not free and the complainant has to pay the amount demanded by the 2^nd opposite party as a condition to avail free extended warranty for 3 years.  On perusal of Ext.P1/D1 it is seen that it is a certificate issued by the 2^nd opposite party EVM Passengers Cars India Pvt.Ltd. agreeing to provide 3 years extended warranty free of costs.  But according to all the opposite parties the extended warranty is not totally free of costs.  Even the complainant would admit he could avail the extended warranty of 3 years only when he applies and pays reasonable charges to the opposite parties and he is ready for the same and applied for and also paid Rs.25,153/- towards granting extended warranty from 04.10.2016 onwards.  But according to the opposite parties No. 1, 2 & 4 out of the 3 years standard warranty the last one year has to be forfeited to get the benefit of the extended warranty.  In view of the oral evidence of PW1 and Ext.P1/D1 document we find no merit in the above contentions of the opposite parties.  The benefits provided as per Ext.P1/D1 document include extended warranty for 3 years which is written as free.  The term extendedwarranty implies the extension of already existing standard warranty after its expiry.  If the 2^nd opposite party who provided the extended warranty on any condition as contended by the opposite parties in their written version the same would have been specifically stated in Ext.P1/D1certificate.  In the absence of any such terms the above contention of the opposite parties would not stand and the complainant is entitled to avail 3 years extended warranty after availing the admitted 3 years standard warranty period, provided the complainant applies for the same by paying the requisite fee or charge for the same during the existence of the standard warranty. In this case admittedly the complainant applied for the extended warranty and paid Rs.25,153/- for availing the same.  In the circumstances we are of the view that the complainant is entitled to avail the benefit of extended warranty of 3 years from 04.10.2016 till 03.10.2019.  The point answered accordingly.

Point No.2

12.     The complainant has no specific allegation against the additional 4^th opposite party .  No specific relief is  also sought for against the 4^th opposite party.  According to PW1 he obtained Ext.P1/D1 fully loaded scheme for the car while it was purchase from the 2^nd opposite party.   It is clear from the available materials that the 2^nd opposite party effected sale of cars to the complainant and also issued along with warranty stipulating the terms and conditions of warranty. It is also clear from the available materials that the 4^th opposite party carries on its business on principal to principal basis who is liable and responsible for the potency and quality of the vehicle.  It is crystal clear that accepting the booking of the car according to the choice of the customer, issuance of invoice and warranty etc are exclusively within the domain of the dealer who is the 2^nd opposite party in this case.  Even according to the complainant he had purchased car from the 2^nd opposite party dealer who issued Ext.P1/D1 fully loaded certificate and by believing the terms and conditions stipulated in P1/D1(which according to the complainant is a concluded contract) he purchased the car.  In the circumstances there is no merit in contenting that all the opposite parties including 3^rd opposite party financier and the 4^th opposite party who is functioning in Bombay caused the complainant to believe and assured him regarding Ext.P1/D1 extended warranty while purchasing the car.  Even according to the complainant he obtained text message for payment of Rs.25,153/- for extending warranty from the 2^nd opposite party. In the circumstances it is crystal clear that there is no direct nexus between the complainant and opposite parties 3^rd and 4^th in the deal.    Hence the allegation of the complainant that opposite parties 3 and 4 committed deficiency in service or any unfair trade practice is devoid of any merit.

13.     Now regarding the deficiency in service and unfair trade practice alleged against opposite parties 1& 2.  In view of the reason stated under point 1 it is crystal clear that there is deficiency in service and unfair trade practice on the part of the opposite parties 1 & 2.  Since they have failed to extent the free warranty offered as per P1/D1 certificate in spite of the request of the complainant and also realizing charge for the repair and maintenance work carried out during the extended warranty period.  It is also brought out in evidence that opposite parties  1^st and 2^nd have also insisted to cancel the  last one year original warranty in order to avail the extended warranty which is not stipulated P1/D1 certificate.  Therefore it is crystal clear that there is deficiency in service and unfair trade practice on the part of opposite parties 1 & 2.  The point answered accordingly.

Point No.3

14.     The main relief sought for as relief no. a) is to issue direction to the opposite parties  to provide extended warranty for a further period of 3 years in continuation of the warranty which is already availed by the complainant under the fully loaded scheme.  We have already under point No. 1 that even according to the opposite parties vehicle was having 3 year normal/standard warranty.  Ext.P1/D1 fully loaded certificate would indicate that the complainant is entitled to get an extended warranty for the vehicle for a further period of 3 years for which the complainant has also paid Rs.25,153/- and applied also.  Extended warranty means the period of warranty given after elapsing the original warranty for which the complainant has to make an application even before the expiry of standard or original warranty.  It is brought out in evidence through PW1 that the complainant well before the expiry of the original warranty tried to extent the warranty by making application and depositing fee.  In the circumstances we have no hesitation to hold that the complainant is entitled to get extended warranty right from 03.10.2016 till 03.10.2019.  In the circumstances the complainant is entitled to get the 1^st relief allowed.

15.     b) relief sought for is a direction to the opposite party to pay Rs.50,000/- as compensation for the mental agony caused to the complainant.In view of the materials discussed above it is crystal clear that the opposite parties No. 1 & 2 denied the extended warranty raising  untenable grounds against Ext.P1/D1  fully loaded scheme certificate issued by the 2^nd opposite party.  According to the PW1 he sustained much mental agony apart from financial loss due to the nonfeasance and malfeasance of opposite parties 1 and 2.  In view of the oral evidence of PW1 and  Ext.P4 receipts/invoices it is clear that the complainant has effected payment to meet the expense for repair and maintenance work of the vehicle during the period of extended warranty period and the same has caused much mental agony apart from financial loss.  Therefore the complainant is entitled to get compensation for the mental agony.  However the complainant has sought for Rs.50,000/- as compensation for the mental agony which according to the commission is highly excessive.  In view of the facts and circumstance of the case we are of the view that the compensation to the tune of Rs.25,000/- willbe reasonable and sufficient compensation. 

16.     c) relief is regarding cost of the proceedings.  In view of the facts and circumstance of the case the complainant is entitled to get a reasonable costs of the proceeding to the tune of Rs.10,000/-. d) relief is regarding such other relief this commission deem fit and proper  in the interest of justice.

17.     e) relief is an additional relief incorporated after amending the complaint.  All the opposite parties including 4^th additional opposite party vehemently opposed the grant of this relief.  According to the opposite parties ‘e’ relief has been sought for as additional relief without specifically pleading the entitlement of the complainant to get the relief and therefore not legally sustainably and has to be discarded.  According to the additional 4^th opposite party ‘e’ relief is not allowable since there is no extended warranty coverage for the vehicle as alleged.  It is further contended by additional 4^th opposite party that the service occurred to the vehicle due to the natural wear and tear does not come under the coverage of warranty.  The contention of the 4^th opposite party that period of all repair and maintenance works carried out to the vehicle as per P4 series invoice/bills are beyond purview of warranty period is not fully correct.  Since we have already found that the extended warranty covers for a period of 3 years from 03.10.2016.  Ext.P4 series contains 22 bills starting from 18.01.2016 till 12.12.2019.  But the last 5 bills are beyond the period of cover of extended warranty.  It is also brought out in evidence that Ext.P4 series tax invoice/bills relates to beautification work and accident repair works which are also beyond the purview of the extended warranty.   We find force in the above contention.  It is clear a few of Ext.P4 series billsfor Rs.2,60,578/-are not covered under the extended warranty.  The complainant is entitled to get the amount spend for the repair and maintenance work carried out if they would come strictly under the purview of the terms and conditions of extended warranty.  But unfortunately the  terms and conditions of warranty or extended warranty is not made known to the commission either by the complainant or by the opposite parties.  There is every chance of having terms and conditions of the warranty in the user’s manual and the complainant is expected  to possess the user’s manual.  But for reason best known to the complainant the same was not produced to ascertain the terms and conditions of warranty which may be applicable for the extended warranty also.  As this commission is having no sufficient material to ascertain which of the repair and maintenance work would come under the cover of extended warranty we are inclined to direct the 2^ndopposite party to consider the same on the request of the complainant and production of the original tax invoices/bills after obtaining from the commission.  Point answered accordingly.

Point No.4

18.     In view of our finding under point No. 1 to 4 the complaint stands allowed in the following terms.

1. The opposite parties No. 1 & 2 are directed to provide extended warranty for a further period of 3 years in continuation of the 3 year original/standard warranty provided to the vehicle.
2. Opposite parties No. 1 & 2 are directed to pay compensation to the tune of Rs.25,000/- to the complainant for the mental agony.
3. The opposite parties No. 1 & 2 are directed to refund the amount legally due to the complainant under the extended warranty in respect of expenses met by the complainant regarding repair and maintenance work carried out to the vehicle during the period to extended warranty for which the complainant is directed to produce the original of the eligible tax invoices/bills out of  Ext.P4 series bills after obtaining the same from this commission by substituting certified copies of the same within 15 days from the date of receipt of a copy of this order.
4. The opposite parties 1 & 2 are also directed to pay Rs.10,000/- as costs of the proceedings to the complainant.
5. Opposite parties 1 &2 are directed to comply with above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover eligible amount spent by him for making repair and maintenance work of the car which are duly refundable under the extended warranty plus compensation Rs.25,000/- and costs of Rs.10,000/- along with interest @ 9 % p.a. except for costs from the opposite parties 1 & 2 and from their assets.

Dictated to the Confidential Assistant  Smt. Minimol.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 27^th  day of  November 2021.

E.M .MUHAMMED IBRAHIM:Sd/-

S.SANDHYA RANI:Sd/-

STANLY HAROLD:Sd/-

                                                                                                                                                                          Forwarded/by Order

                                                                                                                                                                              Senior superintendent

INDEX

Witnesses Examined for the Complainant:-ParippallyR.Raveendran

Documents marked for the  complainant

Ext.P1             : fully loaded certificate dated 04.10.2013

Ext.P2             : Lawyer notice

Ext.P3 series   : receipts

Ext.P4 series   : Tax invoice

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1                        : fully loaded certificate dated 04.10.2013