Complainant by filing this complaint has alleged that he purchased one motor vehicle (Volkswagen Ventro Breeze model car) bearing Registration No. WB-06H-8073, Chasis No. WBM111603BTO49917, Engine No.CCSO66520 RO No.S0111197 for a sum of Rs.7,19,237/- as ex-showroom price of such vehicle, further complainant paid a sum of Rs. 87,523/- towards Insurance Charges and registration cost to the op no.1 on 21.11.2011 and on 24.11.2011 op issued an invoice relating to the said vehicle and ultimately delivered the vehicle to the complainant on 29.11.2011 and before using the same, complainant himself acquainted with the technical requirement related use of the vehicle as explained to the complainant by the officers of the op and he also gone through branch supplied by the op no.4 along with said vehicle prior to using the same just after taking delivery on 29.11.2011.

          On 03.12.2011only after 4 days from taking after delivery the complainant found that vehicle failed to start and immediately noticing that defect and it was informed to the op no.1 over telephone and requested them to send its mechanics to rectify the problem and thereafter mechanics were engaged by op no.1 and with the help of their external battery the vehicle was started.  But it was reported that the battery was drained out and at that time complainant reported that invariably there was any defect for which the battery was drained out. 

          Thereafter op no.1 assured that said defect shall be rectified and complainant on 17.12.2011 again the vehicle failed to start and in the manner the vehicle failed to start and for which complainant reported the matter to the op no.1.  Thereafter op no.1 took the vehicle to the workshop for inspection and necessary repair and thereafter it was returned to the complainant and informed that the deficiency had been detected in the electrical line and the same has been rectified.  But on 03.01.2012 Air Conditioning System of the vehicle failed and vehicle stalled in the middle of the road near CMRI Hospital near Khidirpore and despite trying several times, the vehicle failed to start and due to failure of the car to start, the complainant had to suffer severe harassment and mental agony and finding no other alternative complainant had to hire local people to push start the said vehicle and somehow managed to take the vehicle and after reaching home, complainant informed the matter to the op no.1 about the recurrence of the same fault in the vehicle along with new fault detected regarding the Air Conditioning System (A.C.) of the vehicle.

          On the next day, op no.1 sent technicians, upon inspection, the complainant was informed that the defect and fault cannot be rectified and the vehicle had to be taken to the workshop for thorough inspection and repairing and thereafter on 04.01.2012 the vehicle remained in the workshop of the op no.1 and on 05.01.2012 op no.1 by E-mail informed the complainant that the technical problem relating to AC system of the vehicle had been diagnosed by their team and the technicians are working on the same dedicatedly and complainant was also informed that the delivery date of the vehicle would be informed very soon.

          Subsequently on 14.01.2014 op no.1 by its E-mail apologized to the complainant for the inconvenience due to defect in the vehicle and informed that trial has been taken to ensure that the problem has been rectified and the vehicle is running satisfactorily.  Due to repeated failure of the ops to rectify the defect, complainant by a letter dated 16.01.2012 expressing his apprehension that the defect is a inherent defect which cannot be rectified.  However, by such letter complainant agreed to take delivery of the vehicle strictly on the condition that in case of any further technical problem arose in the car, then he would return the car and op no.1 would be liable to replace the same with a new car or return the purchase value of the vehicle.

          Against that letter dated 16.01.2012 of the complainant as received by the op on 21.01.2012, complainant took delivery of the vehicle on the condition as stated in the complainant’s letter.  But after one month i.e. on 24.02.2012 the said vehicle was again found not functioning.  Complainant again lodged his grievance to the op, upon such complaint, the vehicle once again was taken to the workshop for the 4^th time within the 3 months for repairing and no doubt it was reoccurrence defect in the vehicle and op sold the vehicle knowing fully well that it was defective.

          On 02.03.2012 op by E-mail informed the complainant that the defect in the vehicle had been cured and requested to take delivery of the vehicle.  But as because it was evident that the ops sold the vehicle and delivered a defective vehicle to the complainant despite numerous occasion, the defect could not be rectified resulting in not only financial bars but harassment and mental agony to the complainant and due to deficiency in service in failing to rectify such defect in the vehicle, complainant since taking delivery of the vehicle on 29.11.2011 has been suffering much and fact remains despite repeated repairing in the workshop, the defect of the vehicle could not be cured.  So, op is guilty by selling a defective product to the complainant and also deficiency in service in the meaning of Section 2(g) of the C.P. Act 1986.

          It is further submitted that complainant has tried to set up a defence stating that complainant used to keep the vehicle in unlocked condition, so the battery drainage was caused 0.302 Ampere and in locked condition, the battery drainage was 0.028 Ampere and it is their defects that the battery has been drained as because though there was no defect in the car.  But such an allegation is without any base and ops are tried to convince that and fact remains the entire defence of the complainant in this regard is completely bad in law but there was main defect in the manufacturing for which the complainant is not in a position to use that vehicle and moreover in respect of such vehicle such sort of defect must not be in existence and moreover in the circumstances complainant is entitled to compensation and cost and litigation as per law and in view of the settled position as made in several judgements.

          On the other hand op by filing written statement submitted that admitted position is that the complainant purchased the said vehicle, but they have stated that the problem in respect of vehicle is probably user related problem and complainant did not lock the vehicle as required to be done while not using the vehicle it has been kept in standby mode and this causes battery drainage.  This car is a product of advanced engineering and the standby feature contributed to ease of use when the user used the car and obviously such technological advancement is one of the reasons why the complainant and many buyers in the premium category have bought such cars and practically complainant has not been handling the vehicle properly repeating the same error of not locking the vehicle, thereby failing to prevent battery drainage even after being repeatedly requested to do so by the ops and due to non-locking of the vehicle after usage as required, battery drainage resulted and there is no doubt that the problem to the car is user induced.

          Further complainant has alleged that ops carried out exhaustive and detailed investigations of the vehicle both in unlocked condition as practiced by the complainant and in locked condition as required to be done and have recorded the battery output which is 0.028 Ampere in locked condition and 0.302 Ampere in unlocked condition and it was found that the vehicle was practically free from any defect.  But it was defective used by the complainant.  Op has further submitted that the vehicle is a product of superior workmanship and was/is free from all manufacturing defects and/or defects in material and/or workmanship and the car is built with superior engineering concept and standard and there was no defect as claimed by the complainant.

          Op duly charged the battery and made the vehicle ready since there was no defect whatsoever.  So the alleged induced by the complainant for not locking car properly and there was no defect or fault in respect of the vehicle.  But op has denied all other allegations.  It is further submitted that complainant tried to attempt of misinterpret the very contents of the letter and it is a practice of extending courtesy by the ops to all the esteemed users of Volkswagen Vehicles, when they are not able to use the vehicle owned by them and the very use of the word apologizing for the off road status does not in any way show that there was a technical problem in the vehicle as alleged or not. 

          It is further submitted that vehicle was never defective at any point of time it is trouble and fault free.  But it is admitted that it was always due to practice of the complainant for not locking and keeping the vehicle in a standby mode, which resulted in the battery to get discharged and/or drained out.  But there was no manufacturing defect or fault or defect related to workmanship in respect of the vehicle.  The very demand of the complainant in replacing the vehicle or returning the price of the vehicle is completely unfounded and vexatious in nature.

          Lastly it is submitted that there was no technological fault with the defect and the vehicle is lying ready for delivery.  However the complainant thought not to take delivery of the same.   In so far expressing apologies is concerned, it is repeated and reiterated that it is an expression of being courteous to the esteemed customers of the company’s vehicle and never a confirmation of existence of a technical difficulty in the absence of any defect and fact remains there was no laches or negligence on the part of the op.  But when the complainant has failed search out of any manufacturing defect or any defect but repair has been made by the op only for the drainage of the battery and which was caused by the complainant and in the above such circumstances the complaint should be dismissed.

                                                     Decision with reasons

          After hearing the Ld. Lawyers of both the parties at length and also considering the argument as advanced by the Ld. Lawyers of both the parties and also considering the allegations of the complainant and the defence of the op in the written version, we have gathered that it is undisputed fact that the complainant purchased the vehicle from the op no.1 the vehicle in question.

          Fact remains within 4 months three or four occasions the vehicle could not start.  But subsequently expert of the op no.1 attended the complaint of the complainant and thereafter the vehicle started and it was used by the complainant.  But lastly the Air Conditioning System could not function for which the vehicle was taken by the op and thereafter op sent a letter on 14.01.2012 to the complainant in respect of the vehicle that after proper evaluation and technicians in consultation with the Volkswagen Technical Department that there was no technological problem left in the vehicle of the complainant and vehicle is running satisfactorily and complainant was asked to take back the vehicle as it was lying in ready condition at their workshop since 07.01.2012 and no doubt in the said letter at the very outset they expressed their regret for inconvenience.

          But nowhere by that letter has op admitted that there was inherent manufacturing defect in respect of vehicle.  Moreover by that letter dated 07.03.2012 to the complainant, op informed that they are contributing to make its trouble free and it is running satisfactorily and no abnormality was detected in the said vehicle and the vehicle was lying in their workshop.  So, complainant was asked to take the delivery of the same from their Topsia set up.  Fact remains that complainant even after received of those letters dated 14.01.2012 and 07.03.2012 did not take delivery of the said vehicle.  Though they have certified that the same is free from all defects and op’s plea is that the present vehicle was manufactured with high skill technology and practically the user of the vehicle is not in a position to follow up the guideline for running the cured vehicle without any key when it is standby mode because op has tried to convince that battery drainage must be caused due to unlock and the vehicle is on standby but key cannot find with the key board.  Anyhow op has tried to convince that they have tested the vehicle after placing the key on standby condition and after removing and in that case it is found that battery drainage is caused by high road being on standby mode and key kept with the key holder with the vehicle and op has tried to convince practically for not properly complying the users instructions such incident took place.

          But they have specifically mentioned that there was no manufacturing defect.  but in this regard after considering of the Ld. Lawyer of both the parties and also considering the entire materials we have gathered that this op one of the dealer of the Company sold the vehicle to the complainant but did not handover the certificate of the Automobile Mechanical expert of the company to that effect that car was checked and inspected and it is free from any manufacturing defect but it is mandatory at the time of purchase of vehicle the dealer must have to handover certificate of the company in respect of the vehicle which has been purchased by a consumer.  But in this case op has failed to produce that certificate of the company and at the time of argument it is found that op’s Ld. Lawyer admitted that no such certificate was handed over to the complainant.

          Fact remains that time to time the car could not start and within 3 months from the date of purchase on 4 occasion’s battery drainage was caused, A/C system did not function and car could not start.  But in all the four occasions op forthwith repaired it and made it roadable and complainant used it.  But after 4^th occasions when vehicle was taken by the op on the basis of the allegation of the complainant, complainant did not turn up, even after op reported that the car was ready for delivery and there was no further problem and since then complainant has not been taking delivery of the vehicle on the ground that complainant assured it as a manufacturing defect.

          When there is warranty period, complainant ought to have used the same as per request of the op.  But complainant did not do that.  But fact remains that op by a letter dated 14.01.2012 reported that the complainant that they are always ready to delivery highest level of service at the customers satisfaction and they also asked the complainant to take delivery of the car but complainant did not accept it with apprehension that further he shall have to face such problem.  In this regard we have gone through certain report in respect of the car as called for by the present Forum and that expert report was issued by Auto Mobile Association of Eastern India and from that report it is found that engine performance was satisfactory, compressor was satisfactory, ignition made electronic battery type VW-12 volt and other matter were found okay.  But the expert has specifically mentioned that the vehicle is not inherent defect in the ignition or start and from this report it is also found that OSL Exclusive Pvt. Ltd. already installed a new battery.  But the opinion of the said expert is that only A.C system is running but cooling is inadequate even after one hour running of engine for two days.  Except that there is no defect and from the said report, it is found that Ansuman Roy the expert checked everything and came to a conclusion only this defect was found that cooling is inadequate even one hour running engine for two days and another observation of the said expert that there is continuous line leakage during un-started condition of the above car.

          So, considering that fact it is clear that there was certain electrical line leakage and cooling system is inadequate and in this regard Ld. Lawyer for the op submitted that same had already been cured and practically the expert Rabin Kumar Das as submitted report stating that about engine cooling system ignition system are all quite okay, new battery have been installed, AC is running but inadequate cooling and continuous electrical line leakage of 12 Volt during un-started condition, except there is no other defect was found.

          In this regard Ld. Lawyer for the op has submitted when manufacturing defect in respect of engine and other materials are not found then those two items i.e. electrical line leakage and inadequate cooling of AC are curable one and it may be caused for various reasons and in fact the complainant did not use the vehicle as per instruction and for which again and again battery drainage was caused and for which the cooling system was disturbed but that had already been cured and complainant may take it and use it and expert has already submitted that there was no defect except those two items.

          In the regard we have gone through certain documents in this respect but              otherwise the vehicle has no manufacturing defect except two problems that is removable one.  But we have failed to understand for what reason complainant did not use it when op assured that they shall have to take all positive step and actually they took such steps in all respect as and when any complainant faced any problem and in the present case it is found that complainant became very arrogant but we are aware of the fact that different type of high technologies are being used by different companies in India in vehicles but people at large are not accustomed with such technologies and for which the driver of the vehicle must be well trained before using such vehicle but we have failed to understand whether complainant was trained by the op well before using the vehicle or his driver was trained by the op before using but no such certificate is granted by the op that complainant was trained by them and he acquired such knowledge to use the same and driver also used the same.  So, it is apparent that complainant is not well trained in driving in respect of such vehicle and his driver is also not acquainted with the present high technology of this car might be for this reason battery drainage was caused but it is duty of the consumer to be experienced in this regard.

          But truth is that op already changed the battery by replacing a new battery and also cured all the defects and even if any defect is found it shall be cured by the op.  Then what is necessity for replacing of the care when the expert as appointed by this Forum on the basis of the application to confirm that there is no other manufacturing defect except this electrical line leakage and inadequate cooling system, otherwise the expert report supports that there is no other defect.  so, considering all the above facts and materials and particularly the fact that there is no certificate granted by the op no.1 in favour of the complainant duly signed by Arunima Mitra Technological Engineers to that effect that the car is always defect free and there is no manufacturing defect and it was the duty of the op no.1 and the other one at the time of selling or to handover it.  But we have gathered that it has become a practice to place such sore of complaint for replacing or refund of money.  But we must have to see at first whether there is any manufacturing defect.  But practically manufacturing defect has been established by the complainant.  But we have realized that there are certain documents.  But op has already reported that all the defects have been cured and complainant has not received the car since 14.01.2012.  Then it is the fault on the part of the complainant and complainant must have used it and shall have to report that further problem is being faced.  But there is no scope on the part of the complainant to say so because he became arrogant and he is not willing to take back it.

          Then who shall have to teach him to take back the car for use?  Reasonably a prudent person must not be guided by the sentiments, sentiment has no place in our daily life, and we feel when technical problems in respect of vehicle may be found for various reasons.  Particularly such sort of vehicle with high technologies must be used as per instruction and at the same time the road condition is also a factor as per road management as written by so many authors who have specifically stated that vehicle for high technology must be used in uneven roads.  But our roads are not even, it is always full of holes, ditches, patches etc. and truth is that observation of the Technology of TATA Motors that Air Condition system of the car must be used very sincerely and if any Air Conditioned car is used in uneven road or full of holes or ditches, the AC car may be hampered and relying upon that observation of the expert of the TATA Motors in some literature named Road Management, we have gathered that the complainant ought to have expressed his sincerity to take back the vehicle and used as per guideline and instruction and op in that case complainant shall have to get the result.

          Anyhow we are convinced that till now op has not submitted any checking and inspection report of the technical expert of the present vehicle company to that effect that the vehicle is free from all manufacturing defects and other problem and op no.1 is bound to handover it and complainant shall have to receive it along with the said vehicle and used it and if it is found in the meantime warranty period is expired in that case all the ops shall have to give another one year warranty in respect of the vehicle at once and settle the matter.

          But considering the whole aspect we have gathered that complainant has failed to prove by any cogent evidence that the vehicle is suffering from any manufacturing defect in the particular case.  But then we are giving certain directions to this op in this regard so that complainant may take back the vehicle getting such assurance to use the vehicle without any further trouble and in this regard no doubt op shall have to understand their all supports because in the mean time his car is sitting idle since January 2012 that is no doubt for the fault of the complainant because op repeatedly requested the complainant to get back it and op has always ready to deliver the vehicle on instant and all sort of help and services.

          Considering expert report it is found that the vehicle run for only 403 kilometers and within that period four complaints were made.  It is only in respect of battery and inadequate cooling.  So, relying upon the ruling reported in Special Leave petition (21178-21180 of 2009 C.N. Anwar – Vs – M/s FIATS Ltd. & Ors.) we are giving such direction to the parties to follow up the direction and complainant to receive the said vehicle along with a certificate issued by the Technical Expert of the manufacturing company of the vehicle to that effect that the vehicle is free from any manufacturing defect and it has no problem and it is road able and manufacturing company and op no.1 shall have to give further one year warranty to the complainant and keep watch about the smooth running of the vehicle by the complainant.

          In the above purpose the complaint is disposed of finally.

          Hence, it is

                                                             ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.2,000/-.

          Ops are directed to make the vehicle road worthy if necessary by re-conditioning the vehicle and deliver it to the complainant along with certificate of the Technical Expert Board of the Manufacturing Company of the Volkswagen in respect of vehicle free from any manufacturing defect and any problem and ops shall have to give further one year warranty in respect of the vehicle to the complainant and op shall have to hand over the said vehicle and complainant shall have to receive the same with one year warranty and certificate and time to time take all such help to run the vehicle knowing the present technical system for running the vehicle.

          Even after that if it is found that the complainant suffers from further problem within the fresh warranty period, in that case the ops shall have to replace the said vehicle or to refund the total amount of the vehicle as received by the op no.1 and in this regard dealer and manufacturer jointly and severally shall be liable (ops) to comply the order of this Forum and at the same time complainant is requested to receive the same with such documents and use it and invariably he shall have to get satisfaction from the ops as ops are directed to look after the matter as per the Forum’s order.

          If ops are found very reluctant in this regard in that case for non-compliance of the Forum’s order and for adopting unfair trade practice Rs.1,00,000/- shall be imposed as punitive damages against each op but then this matter shall be looked into with heavy hands if the order of the Forum is not compiled by the ops.  But invariably complainant shall have to receive the vehicle for use along with such documents and for such necessary repairing and renovation shall be made by the ops jointly and severally by making the vehicle free from all defects ops shall also give proper training to the complainant and his driver for using the vehicle smoothly also.