Tamil Nadu

North Chennai

85/2013

S.G.Rameshkumar - Complainant(s)

Versus

M/s.Volkswagan India Pvt Ltd - Opp.Party(s)

M.Padmanaban

08 Oct 2016

ORDER

                                                            Complaint presented on:  10.04.2013

                                                                Order pronounced on:  08.10.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

SATURDAY THE 08^th   DAY OF OCTOBER 2016

 

C.C.NO.85/2013

 

 

S.G.Ramesh Kumar,

No.1/44, 2^nd Cross Street,

Vedha Nagar,

Chinmaya Nagar Stage II Extension,

Chennai – 600 092.

 

                                                                                    ….. Complainant

 

..Vs..

1.M/s.Volkswagen India Pvt.Ltd.,

Village Nighoje Kharabwabi,

AI Phase III, Mhalunge Road,

Chakan, Pune – 410 501,

Maharashtra. India.

 

2.M/s.Volkswagen Group Sales India Pvt.Ltd.,

3, North Avenue, Level ¾, Maker Maxity,

Bandra Kurla Complex, Bandra (East),

Mumbai – 400 051.

 

3.Abra Motors Pvt. Ltd.,

‘Rais” Towers,

Plot No.2054-B,

II Avenue, Anna Nagar,

Chennai – 40.

.....Opposite Parties

Date of complaint                                 : 12.04.2013

Counsel for Complainant                      : M/s.M.Padmanaban

Counsel for 1^st  & 2^nd opposite parties    : AR.Ramanathan

 

Counsel for 3^rd Opposite Party                      : M/s.Nandini Ram

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant purchased Volkswagen  Model Polo 1.2 TDI  car on 19.04.2012  for a sum of Rs.5,89,552/- from the 3^rd Opposite Party show room. On 07.12.2012 the Complainant noticed a leakage of oil on the display board  of the car and stopped immediately. He contacted the toll free number. Then the 3^rd  Opposite Party toed the car  to its service station. He was given a job card on 08.12.2012. The Complainant visited the service station on 10.12.2012, he was informed that oil sump was leaking, insurance officer will  inspect the vehicle. On 17.12.2012 he was informed about the approval of the insurance has been given and oil sump will be changed and the vehicle will be delivered. The Complainant met Mr.Varadharajan, service advisor of the 3^rd Opposite Party on 21.12.2012 and he informed that the Bajaj Insurance has to be informed and the insurer will collect the estimate for necessary insurance claim. The Complainant discussed with the service manager and the service officials told him that they will inform the status on 24.12.2012 and however he has not received any communication.Only on 01.01.2013 he received SMS that Bajaj Alliance appointed Mr.K.P.Balakrishnan, Surveyor and he informed that he will survey the car. On 10.01.2013 he was informed by the service advisor that the insurance has been declined. On 12.01.2013 at about 1.15p.m the Complainant contacted the service manager, E.Raja and he told him to pay 50% of the expenditure approximately for 2 lakhs. Further he was told by the service manager model has been modified and is being changed. The Complainant purchased the car for his official work and travel comfort. The Opposite Parties failure to repair and deliver the car, the Complainant was put to untold hardship. Further he had also spent Rs.1500/- per day for his travel and until filing Complaint, he spent a sum of Rs.1,00,000/- for travel. On the date of accident the car is under warranty. The Complainant issued legal notice dated 13.02.2013 to replace oil sump with engine. The Opposite Parties did not replace the same. Hence the Complainant filed this Complaint to replace the oil sump with engine and travel expenses, compensation for mental agony with costs of the Complaint.

2. WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

          The 1^st opposite party had entered into a Service and Distribution Agreement dated 09.03.2009 with M/s.Volkswagen Group Sales India Private Limited, 2^nd opposite party appoints the authorized dealers for sale of the cars to the customers directly and the 1^st opposite party does not play any role in selling the cars manufactured by it either to the dealers nor to the customers. Moreover the warranty and the other things relating to replacement of defective parts are given to the dealers and customers only by the said 2^nd opposite party M/S Volkswagen Group Sales India Private Limited as the same is evident from clause 2 of the said Service and Distribution Agreement. Moreover it is submitted that on bare perusal of clause 2 of the said service and Distribution Agreement would clearly show that the 1^st opposite party has assigned its entire rights and claims in favour of the 2^nd opposite party. The above complaint discloses no cause of action against the 1^st opposite party as they have not sold the car in question to the Complainant and moreover they did not provide any warranty to the Complainant and complaint is as such liable to be dismissed.

3. WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF:

          The 2^nd opposite party submits that it is a company registered under the Companies Act 1956 dealing in Marketing, Sales and Servicing of Volkswagen Group Vehicles, through its dealers across India appointed on principal to principal basis. This opposite party being a sales company provides customers through its Dealer, a warranty for certain period for the  vehicle sold by such Dealer upon certain terms and conditions. The said car been delivered to the Volkswagen Authorized Dealer viz., M/s Abra Motors Private Limited, for onward sale to the Complainant. The above complaint discloses no cause of action against this opposite party as there is no deficiency in service on the part of this opposite party and the complaint is as such liable to be dismissed. The Complainant has caused an accidental damage to the car and since the Insurance Company has refused to honour the claim to bear cost of repair of the car for the reason being the damage caused to the car due to Complainant’s own fault. The Complainant has made a lame attempt to fix the liability on the said dealership and this opposite party by giving the incident a colour of Poor Quality Engine in the car. These precarious allegations and demands of the Complainant only suggest that the Complainant has not come before this Hon’ble Forum with clean hands. The vehicle needs to be done since the same being accidental damage not covered in the warranty policy applicable to the said vehicle and have sought his permission to start the said repairs work. However, the Complainant has refused to give permission to carry out the necessary work for the reasons best known to him. Hence, the opposite parties cannot be held responsible/liable for the additional expenses incurred by the Complainant as the same is by virtue of his own deeds. The Warranty provided by this opposite party  is based on certain terms and conditions and in no sense absolute and certain damages such accidental damages as in the present case are explicitly excluded from the ambit or warranty applicable to the said vehicle. It is  the Complainant has made a baseless allegations regarding having manufacturing defects in the car without substantiating the same with any expert report. The insurance contract is an independent contract than that the Sales Contract and is neither dependent nor connected with the same. The insurance contract is carried out by the Complainant at his own free will and the same is neither initiated nor facilitated by this opposite party. The other allegations made in the complaint are denied and for the reason stated above this opposite party prays to dismiss the complaint.

4. WRITTEN VERSION OF THE 3^rd  OPPOSITE PARTY IN BRIEF:

          The Complainant had damaged the oil sump purely due to his own negligence in the form of rash driving. The car was taken in for servicing by the 3^rd opposite party vide Job Card No.SO129746 dated 08.12.2012 wherein it was clearly mentioned that the oil sump was in a damaged condition. The Complainant approached the insurer and consequently the insurance surveyor gave approval for dismantling the sump. On dismantling, it was noticed that it is a case of ‘Engine Ceased’ due to driving without required quantum of Engine Oil.  The insurer were informed and on inspection the insurer viz. Bajaj Alliance had not given approval for complete replacement of engine citing the exclusion clause relating to ‘consequential loss’ incorporated in the policy. The Complainant on realizing the fact that he may not be able to claim insurance from Bajaj alliance (since it is a case of self negligence), has attempted to shift the burden on the opposite parties and it is relevant to mention that the insurer (Bajaj alliance) has not even been arrayed  as an opposite party. The warranty extended by the manufacturer does not cover the damage caused due to external impact and consequential damage to other parts. Even if it is considered as an obscure damage the same cannot get warranty coverage since it is beyond 6 months/10000 kms. It is pertinent to note that the car was used for more than 7 months and was run beyond 13500 kms. The Complainant while driving had hit a boulder and caused self damage to the oil sump which resulted in leakage of oil; drove the vehicle without sufficient quantum of oil; thus resulting in the engine cease but had not disclosed the entire facts of the case and thus had not approached the Hob’ble forum with clean hands. The Complainant having damaged the engine itself due to his self negligence, has made an attempt to get complete engine replacement done free of cost. The complaint is liable to be dismissed for the intentional non-joinder of the insurer, since he was afraid that the fact would come to light.           

5. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1

The Complainant purchased Volkswagen Car with the model Polo 1.2 TDI on 19.04.2012 for a sum of Rs.5,89,552/- from the 3^rd opposite party under Ex.A1 invoice.  The Complainant was regularly using the car and on 07.02.2012 the Complainant noticed leakage of oil on the display of the vehicle dashboard and stopped immediately and informed the 3^rd opposite party and also contacted toll free number.  The 3^rd opposite party picked the car to its service station.  On 08.12.2012 job card given to the Complainant and advised to come on the next working day. The Complainant visited on 10.12.2012 Mr. Varadarajan, Service Advisor informed the Complainant that insurance officer will inspect the vehicle.  The Service Advisor informed the Complainant on 17.12.2012 that the approval of the insurance company has been given and oil sump will be changed after necessary test.  The Complainant visited the 3^rd opposite party on 21.12.2012 and at the time the Service Advisor informed that the engine failed pressure test.  Thereafter the Bajaj insurance company surveyor Mr.K.P.Balakrishnan inspected the vehicle and the insurance has been declined and the Complainant has to bear 50% of the amount approximately comes to Rs.2,00,000/-. 

          7. According to the Complainant immediately after leakage of oil he stopped the vehicle and informed the 3^rd opposite party and they have towed the vehicle to their service station and informed that the insurer refused to give insurance for replacing the engine referring the exclusion clause relating to consequence loss and actually there is no consequence loss due to leakage in the oil sump and therefore the engine itself is defective one and prays to order replacing of oil sump and engine on their cost since the vehicle is covered with warranty.

          8. The 1^st opposite party would contend that he has sold the vehicle after manufacturing it to the 2^nd opposite party and 2^nd opposite party only issued the warranty card and therefore he is no way liable in this case.

          9. The 2^nd opposite party would contend that the car was delivered to the Complainant through the 3^rd opposite party and there is no cause of action to file this complaint.  The Complainant has caused an accidental damage to the car and since the insurance company had refused to honour the claim due to the Complainant’s own fault and the accidental damage not covered under the warranty and therefore he prays to dismiss the complaint. 

          10. The 3^rd opposite party would contend that the Complainant damaged the oil sump due to the own negligence in the form of rash driving and on dismantling of oil sump.  It is noticed the engine ceased due to driving without required quantum engine oil and warranty extended by the manufacturer does not cover due to external impact and therefore prays to dismiss the complaint.

          11. The admitted case is that on 07.12.2012 on seeing oil leakage the Complainant immediately stopped the vehicle and on report made by him, the 3^rd opposite party towed the car to his service station and the warranty initially issued for 6 months or 10,000 kilo meters. Admittedly the vehicle left for service on the 7^th month. The 3^rd opposite party pleaded in his written version that warranty extended by the manufacturer does not cover the damage caused due to external impact. This fact clearly proves that even beyond this month’s i.e on the date of entrusting the vehicle to the 3^rd opposite party the extended warranty covers the period and therefore we hold that on the date of entrusting vehicle to the 3^rd opposite party the extended warranty is in force and that binds the opposite parties.

          12. The 3^rd opposite party contended that due to negligence of rash driving the oil sump got damaged and consequently engine got ceased and further contended that the Complainant while driving hit boulder and caused self damaged with oil sump which resulted in leakage of oil. The 3^rd opposite party himself taken the stands that the oil sump was damaged at one ankle due to rash driving and other the vehicle hit on the boulder. However the 2^nd opposite party taken in its stands that the Complainant has caused accidental damage to the car. There is no proof available on behalf of the opposite parties that the damage caused due to accident and hit on the boulder and rash driving. The opposite party specifically taken a stand that the damage in the oil sump has been caused in a particular manner and they are bound to prove the same. However in this case none of the stand taken by the opposite parties that the oil sump has been damaged due to rash driving or hit on the boulder have not been proved by the opposite parties. The Complainant allegations that while driving the car on 07.12.2012 he had seen the display of the dash board seen leakage of oil and immediately he stopped  the vehicle and informed the same to the 3^rd opposite party and 3^rd opposite party also admits that the vehicle is towed from that place where the Complainant had parked the vehicle proves that the incident taken place only as alleged by the complainant and not by the opposite parties.

          13. Admittedly as revealed by the 3^rd opposite party the oil sump has to be replaced and engine had got ceased when the engine is ceased and such a seizure of engine not occurred as alleged by the opposite party either in the accident or negligent driving, it leads to an irresistible conclusion that the engine has got only manufacturing defect and such a fact can be safely inferred. In the circumstances of the case, we hold that the vehicle is having manufacturing defective in the oil sump and as well as in the engine and therefore we hold that the opposite parties 1 & 2 have committed deficiency in service.

          14. The 3^rd opposite party is only a dealer. He referred various decision of State Commission, National Commission and those decisions is no way necessary to discuss in this case,  since we have decided to hold that the 3^rd opposite party has not committed any deficiency in service. In view of that he has only sold the vehicle  to the Complainant and also he is only a service provider and further the Complainant did not allege any defective in the service and therefore it is held that the 3^rd opposite party has not committed any deficiency in service.      

15. POINT NO :2

          Since we hold that the vehicle in the engine is having manufacturing defect the 1st opposite party who is the manufacturer and the 2^nd opposite party is the groups sale India of the 1st opposite party are liable to bear the cost of replacing of engine and oil sump in the vehicle. We direct the 3^rd opposite party has to prepare estimate or already prepared estimate it  is available and place the such estimates before the 1^st & 2^nd opposite party and the 1^st & 2^nd opposite party have to send the new engine and oil sump to the 3^rd opposite party and the 3^rd opposite party is directed to rectify the defects by replacing with new engine and oil sump and also in case of any such work the 3^rd opposite party has to claim its service charges only from the 1^st & 2^nd opposite party. Due to the Complainant defective vehicle is in the 3^rd opposite party and he is unable to use the same the Complainant suffered with harassment, mental agony and loss of money for travel is accepted. Therefore it would appropriate to order a sum of Rs.50,000/- towards compensation for mental agony and also direct the 1^st & 2^nd opposite parties to pay a such sum to the complainant and also to pay a sum of Rs.5,000/- towards litigation expenses.

In the result the Complaint is partly allowed. The 3^rd Opposite Party is directed to return the oil sump and the engine within one week from the date of receipt of the copy of the order to the Opposite Parties 1&2 and on receipt of the same, the Opposite Parties 1 & 2 are directed to replace the oil sump and the engine with brand new one within two weeks and the appropriate cost and expenses of the oil sump and engine has to be borne out by them. Further the 3^rd Opposite Party is directed to fix the same in the car on receipt of the oil sump and engine from the Opposite Parties 1 & 2 and handover the vehicle in running condition to the Complainant within two weeks thereafter without insisting any service charges from the Complainant .

Further the Opposite Parties 1 & 2 are ordered to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

        The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.    

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 08^th  day of October  2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 19.04.2012                   Tax Invoice

Ex.A2 dated 20.04.2012                   Delivery Acknowledgement

Ex.A3 dated 20.04.2012                   Registration Certificate

Ex.A4 dated 08.12.2012                   Repair Order

Ex.A5 dated 16.01.2013                   Complaint Letter

Ex.A6 dated 19.01.2013         Reply letter

25.01.2013

 

Ex.A7 dated 12.02.2013                   Legal Notice

 

Ex.A8 dated NIL                     Postal receipts

 

Ex.A9 dated 11.03.2013                   Acknowledgement card

 

LIST OF DOCUMENTS FILED BY THE 3^rd   OPPOSITE PARTY :

Ex.B1 dated 16.01.2013                   Bajaj Allianz

Ex.B2 dated 04.02.2013                   Bajaj Allianz

Ex.B3 dated NIL                     New Vehicle Warranty Terms

Ex.B4 dated 01.02.2013                   Letter of 3^rd Opposite Party seeking approval of

                                               the Complainant

 

LIST OF DOCUMENTS FILED BY THE 2^nd  OPPOSITE PARTY :

Ex.B5 dated NIL                     Authorization Letter

LIST OF DOCUMENTS FILED BY THE 1^st   OPPOSITE PARTY :

                                                ……NIL ……

 

MEMBER – II                                                               PRESIDENT