IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    25^th      Day of  February   2022

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

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

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

                                                    CC.258/18

M.Abdul Majeed                                         :         Complainant

Puthuveettil Thara

(Pulari Nagar 1)

T.K.M.C.P.O, Kollam-691005.

[By Adv.Panambil.S.Jayakumar]

V/s

1. Service Manager                                :         Opposite parties

        EVM Passengers Car India Pvt.Ltd.

       Industrial Estate,

       Umayanalloor

      [By Adv.R.Abdul Muneer]

2. General Manager

         Volkswagon Group India Pvt. Ltd.

         Fourth Floor

        Silver Utopia,

        Kardinal Gracoius Road Chakala

        Andheri East Mumbai-400099.

       [By Adv.Azeem Mohammed]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

            This is a case based on a complaint filed u/s 12 of the Consumer Protection Act.

          The averments in the complaint in short are as follows:-

          On 14.02.2013 the complainant purchased one  Volkswagen vento car from the 1^st opposite party by paying Rs.11,062,02/-. The car was got registered in baring No.KL 2 AN 1967.  Within one year of its purchase the car sustained starting trouble.  When the complainant attempted to have a journey along with his family members towards the residence of his relatives he could not start the car and after  hours attempt the car could be started.  As a consumer the complainant approached the service centre of the 1^st opposite party.  they have not given any service or instruction nor even replied to the  grievance expressed by the complainant in this regard. The key of the car was improperly fitted and therefore the key  is likely to be fallen from its handle  when attempting to switch on the car.  By noticing this fact the complainant approached the service centre for setting right the key within 2 years of the date of purchase they informed that they could not set right the defect and also demanded more than Rs.10,000/- as price for new key.  During the month of July 2017 the initial switch of the vehicle became defective and   one day when he attempted to start the vehicle the key separates from its handle.  There is no chance of having such defect on the key even if it relates to a car having less price or a 2 wheeler.  This defect happened due to the improper manufacture of the key.  However he approached the Volkswagen service centre(1^st OP) and removed the ignition switch by spending about Rs.3500/- and also purchase a new key by spending Rs.10,500/-.  Each and every part of the vehicle becoming defective day by day.  The motor attached to the viper  has become defective and he set right  the defect by paying Rs.3000/- .  Again the evaporator of the AC has become defective. The complainant set right the above defect by spending Rs.9000/-.  The alternate has also become defective and they intimated that inorder to set right the defect of the alternator Rs.12,000/- is required.  On 08.08.18 he entrusted the service centre to set right the defect of the alternator.  They assured to return the alternator by setting right the defect within 2 days and after 2 days when he visited the service centre they informed that alternator is not available in the service centre and it has to be brought from Pune.  Later when he contacted the 1^st opposite party over phone they told that alternator is being fitted and the vehicle will be handed over at the afternoon.  Accordingly he contacted at the afternoon thereupon the employees of the service centre told that the ECM(Electronic Control Module)  of the car is defective and to set right the defect Rs.1,50,000/- is required.  The complainant became fed up due to the above defect of the car, behavior and attitude of the 1^st opposite party.  However the complainant told the service personal that at the time of entrusting the car the alternator alone was defective and the defect to the ECM if any occurred is due to the fault of the service centre and therefore the service centre itself is responsible for replacing same or set right the defect and if it is not done by the service centre the complainant told the 1^st opposite party that he(complainant) would approach the consumer forum/commission.  Thereupon they sought time to consult with the Volkswagen company and after some days they agreed to repair the ECM and alternator and also required to pay a portion of the expenses by the company and the remaining portion will have to be borne by the complainant.  As he intended to set right the defect of the vehicle at any rate agreed for the same.  As the complainant insisted on several occasion they agreed but release the vehicle on 07.11.18 after set right the defect.  On Wednesday when he made phone call it was informed that for ABS  has become defective and those parts has also to be removed and at the afternoon it was informed that the service over phone that the service charge amounts to Rs.50,000/-.  When he approached the service centre and required to issue bill they told him that the complainant has to remit Rs.50,000/- .  He was not ready for the same and he expressed his willingness to pay Rs.10,000/- only for replacing the alternator and setting right the ECM.  As there was no other defect other than the defect in the alternator  when he  handed over the vehicle at the service centre and the service centre has kept the vehicle for 3 months and therefore the service centre is liable for all subsequent defects.  However as the 1^st opposite party has not release the vehicle he approached the Circle Inspector Kottiyam by filing a complaint on 07.11.2018.  The Circle Inspector in turn has directed the 1^st opposite party to appear at his office at 11.30 am on 08.11.18.  On the morning of 08.11.2018 when he was returning from the police station through the road in front of the service centre he noted that his vehicle belongs to have been driven out from the service centre and when he chased it was halted at the side of the  road and there was  2 persons in the vehicle.  By noting the presence of the complainant they driven back the car to the service centre.  The son accompanied the complainant taken photographs  on the above act of the 1^st opposite party in his mobile phone.  On evening of 08.11.18 the Circle Inspector of Police, Kottiyam after talking with the opposite party directed the complainant to pay Rs.39000/- and settled the matter but he was not available for the same and therefore the vehicle is still at the premises of the 1^st opposite party.  The opposite parties have cheated the complainant by stating that they would set right the vehicle but not  doing the same even though more than 3 months have already been elapsed.  Therefore he was compelled to hire another vehicle for bringing his aged and ailing mother from his residence to the hospital by paying heavy charge.  He was also compelled to hire other vehicle for bringing his ailing wife to the hospital.  The complainant is a retired college professor.  He has to travel by bus service or by hiring taxi or by seeking assistance of others which caused much mental agony to the complainant.  Apart from that he has to incurre heavy expenditure for repairing the car from his income received as pension.  Furthermore when the complainant has been contacting the service centre regarding enquiry in respect of the service and repair work of his vehicle they have been ridiculing him and talking him without considering his social status or designation.  The above act of the opposite parties caused much mental agony and financial loss.  It is further alleged that though in the RC book of the vehicle the date of manufacturing is recorded as January 2013.  But the writings in the window glass would indicate that it was manufactured during the year 2012 and thereby the complainant has been cheated.  In the circumstances the complainant prays to pass any of the following orders. 

          The opposite party has to set right all the defects of the vehicle urgently and return the same along with compensation to the tune of Rs.3,00,000/- for  the financial loss as well as mental agony in the alternative  the complainant prays to take back the vehicle and pay Rs. 11,062,02/- or to pay compensation less the present market value of the vehicle. 

Both opposite parties have filed separate version by raising more or less same contentions.  However both the opposite parties would admit that the complainant is the owner of the Volkswagen vento car bearing registration No. KL 2 AN 1967.  But would content that the complaint is not maintainable either in law or on facts.  The averments in the complaint would not come within the definition of  complaint as defined under the Consumer Protection Act 1986.  The complaint has been filed by himself representing facts.  The complainant has used his vehicle for more than 5 years as on the date of complaint and the  vehicle was not within the warranty period.  But the complainant not stated the above facts and approached the forum with unclean hands.  All the opposite parties vehemently denied the allegations raised against them by the complainant and would content that those allegations are absolutely false and baseless.  The ignition key was damaged due to the wear and tear and its improper use.  As the vehicle was not under warranty period the opposite parties are not liable for any manufacturing defect and accordingly it was replaced on payment basis.  As the vehicle belongs  to the complainant is an old one it is quite natural common to develop wear and tear damages to the vehicle due to oldness.  The complainant cannot insist that all the repairs in the vehicle should be done free of cost during the entire period the complainant is using the vehicle.  Complainant has reported running repair and after inspection the defects and cost of repair were notified to the complainant.  But the complainant was not ready to make payment for the repair and hence the vehicle could not be repaired.  Instead of paying costs the complainant insisted or getting the repair work done on free of cost under warranty which is not possible since warranty period is already over.  The complainant has filed grievance petition raising false and baseless allegations against the opposite parties and the police took a stand that the complainant is duty bound to pay charges for the repair and it cannot be done free of cost for which the complainant was not amenable.  The delay occurred in repairing the vehicle due to the adamant stand that the complainant would not pay for the repair work.  There is no mis behavior towards the complainant at any point of time as alleged in the complaint and no allegation has been made at the service station regarding the misbehavior of any of the staff members.  The manufacturing year shown in the glass has nothing to do with the manufacturing of the  vehicle and it cannot be construed as cheating or misrepresentation any manner the complainant is not entitled to get the vehicle repaired free of cost as claimed by him.  The complainant is not entitled to get any of the reliefs sought for in the complaint.

In addition to the above contention the 2^nd opposite party would further content that this Forum does not have territorial jurisdiction  to try the present complaint as the 2^nd opposite party is functioning outside of the territorial jurisdiction  of this Forum and no complaint has been filed against the 2^nd opposite party without obtaining leave of this Forum.  The present complaint is the sheer abuse  of process of  law and has been filed with a malafide intention for unjust enrichment at the costs of the opposite parties.  The complaint is patently frivolous, vexatious and the same is to be dismissed and heavy costs under Section 26 of the Consumer Protection Act has imposed of the complainant.

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

1. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party No.1&2?
2. Whether the complainant is entitled to get the relief sought for?
3. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&Ext.P1 to P6 documents.  No oral evidence has been adduced on the side of opposite party No.1&2.  However the 2^nd opposite party got marked Ext.D1 insurance warranty terms and conditions through PW1.  Heard the counsel for the complainant.  Though sufficient opportunity was granted,  both parties have neither filed any notes of argument nor advanced  any oral argument.

Point No.1&2

          For avoiding repetition of discussion of materials these 2 points are considered together.  The main relief sought for in the complaint is to direct the opposite party to repair the vehicle belongs to the complainant urgently and make it in a running condition free of cost.  The 3^rd relief sought for is to issue a direction to the opposite party to take back the vehicle and to return Rs. 11,062,02/- paid by the complainant as the price of the vehicle or in the alternative to pay compensation after deducting the present market value of the vehicle.    The complaint is seen filed on 13.11.2018 by the complainant himself.  As on that date the vehicle was at the 1^st opposite party service centre for the purpose of carrying out the repair work.  However the averments in paragraph 11 of the proof affidavit would clearly indicate that the vehicle got repaired and the 1^st opposite party  demanded Rs.39,000/- for carrying out the repair work.  But the complainant was not amenable for the same.  A grievance petition was made before the Circle Inspector of Police, Kottiyam who intervened and directed the complainant to pay Rs.39000/- but he was not amenable for the same.  Later on 14.11.2018 the complainant paid Rs.32000/- to the 1^st opposite party and received back the vehicle in a running condition and signed on satisfactory note.  It is also brought out in evidence that the complainant has been continuously using the vehicle for the last 7 years and even on the date of giving evidence ie, on 07.01.2020 the complainant has been using the vehicle and the vehicle has run around 90000 kms.  It is also clear from the available materials that the complainant has made the present complaint alleging  defect that has caused to his vehicle after 5 years of its purchase and continuous use.  It is also clear from the  available evidence that before filing the complaint there occurred certain defect and those defects were got repaired from the 1^st opposite party’s service centre on paying the repair charges.  In the circumstances there is no merit in the 1^st and 3^rd prayer that the vehicle should be urgently repaired and make it in a road worthy condition  free of cost especially when the defect has occurred after the continuous use of about 5 years and beyond the warranty period. 

          The 3^rd relief is that the 1^st and 2^nd opposite party has take back the vehicle and return the invoice price cannot be considered at all at this stage since admittedly the complainant was using the vehicle continuously for about 7 years and it has run around 90000kms.  The prayer to return the sale price after taking back the vehicle after 7 years of its continuous use cannot be considered at all even for a moment.  Even  if the vehicle has sustained some minor damages alleged by the complainant it cannot be ordered  to be taken back by the opposite parties since all the defects were rectified by the 1^st opposite party.  It is true that they have changed for rectifying the defect and substituting a new key etc. since all damages were occurred after the expiry of  warranty period.  In the circumstances we find no merit in 1^st and 3^rd reliefs sought for in the complaint.

          The 2^nd relief to award compensation to the tune of Rs.3,00,000/- for the mental agony caused to the complainant due to the continuous defect of the vehicle and also for non clearance of the defect by the 1^st opposite party within a reasonable period.  The complainant has sworn in paragraph No.7 of the proof affidavit when the alternator of the vehicle  has became defective he brought the vehicle to the 1^st opposite party’s service centre at 08.08.2018 and the service personal of the 1^st opposite party promised to return the same after replacing a new alternator for which they demanded Rs.12,000/-.  However after 2 days the 1^st opposite party informed the complainant that alternator is not available at the service centre and it has to be brought from Pune and hence there is chance of having delay in returning  the vehicle.  Several days after the above undertaking the complainant contacted the 1^st opposite party over phone.  Thereupon the service personal of 1^st opposite party informed the complainant that the alternator is being fitted and vehicle will be returned at the afternoon.  Hence he contacted over phone at the afternoon.  Thereupon the service personal told him that ECM(Electronic Control Module) has became defective and inorder to replace the same Rs.1,50,000/- is required.  By hearing the above news the complainant has became mentally upset.  As there was defect only on the alternator of the vehicle and when he entrusted the said vehicle for repair work.  The service personal of the 1^st opposite party has not told him after checking up the vehicle that ECM has become defective and if at all any such defect has been occurred to the ECM it was due to the fault of the service technicians and therefore the 1^st opposite party is bound to set right the defect or replace the same.  On hearing the above request the 1^st opposite party told the complainant that they will consider the same after consulting with the 2^nd opposite party.  However a  few days after the 1^st opposite party agreed to repair the ECM and the  complainant has to pay a portion of the repairing charge of the ECM and charge required for replacing the alternator .  The complainant was amenable for the same. 

It is also brought out in evidence that inspite of several request of the complainant the opposite party has not carried out the required work but when he insisted 1^st opposite party told  the complainant that the vehicle will be returned on 07.11.2018.  But on the morning of that day the complainant was informed over phone by the 1^st opposite party that the 4 ABS sensors of the car were also damaged and 1^st opposite party has set right the same and the complainant has to pay together Rs.50000/-.  By hearing the above news the complainant directly approached the 1^st opposite party and demanded the bill.  But they have not issued the bill. However the complainant was amenable only to pay Rs.12,000/- towards the replacement of the alternator and Rs.5000/- being the half charge of repairing ECM.  As there was no other defect of the vehicle when he was entrusted the same for repair work.  According to the complainant if at all any other defect has been sustained to the vehicle within 3 months from the date of entrusting the vehicle for repair work it was due to the fault of the men of the 1^st opposite party.  However the 1^st opposite party was not amenable to release the vehicle by receiving Rs.17000/- offered by the complainant.  Therefore the complainant filed a petition before Kottiyam Police Station on 07.11.2018.  In response to his complaint the Kottiyam  Circle Inspector has intervened and directed the complainant to pay Rs.39000/-.  But the complainant was not amenable for the same.  However later he got released the vehicle on 14.11.2018 by paying Rs.32000/-. 

It is clear from the oral evidence of PW1 that the 1^st opposite party caused inordinate delay in  repairing the vehicle which  caused much mental agony to the complainant.  According to PW1 as the 1^st opposite party has delayed in carrying out the repair work he could not carry his aged mother from the residence to the hospital in his vehicle.  But he hired some other vehicle for transporting his aged and ailing mother and ailing wife for which he sustained much financial loss apart from mental agony. Though PW1 was subjected to severe cross examination nothing materials has been brought out to disbelieve  the above version of PW1 regarding the inordinate delay in getting vehicle repaired.  Even if any alternator relating to the vehicle is not available with the 1^st opposite party it could be brought from anywhere in India by placing  order through e-mail and obtain a new alternator from the manufacturing company or from anywhere in India for which the maximum period required is 10 to 15 days.  But the 1^st opposite party has taken 2 and odd months to obtain a new alternator and replace the defective alternator and kept the vehicle at the workshop of the 1^st opposite party  unattended for about 3 months.  During this time the 4 sensors and ECM of the vehicle etc. have been damaged, and   for  repairing the same also the complainant was forced  to pay atleast a portion of the repairing charge of the ECM and sensors.  If the alternator was made available within a reasonable period of  10 or 15 days no such defect could have been occurred to the vehicle.  In the circumstances the claim of the complainant that he has sustained much mental agony apart from financial loss is having   merit.  It is also brought out in evidence that the complainant is retired professor of an Engineering College.  But the workers of the 1^st opposite party has behaved in an unbecoming manner to the complainant without considering his age and social status which has also caused much mental agony to the complainant.  In the circumstances we are of the view that  there is deficiency in service on the part of the 1^st opposite party and the complainant is entitled to get compensation from the 1^st opposite party. 

It is to be pointed out that the 2^nd opposite party is the manufacturer of the vehicle.   Against the 2^nd opposite party the complainant has not sought for any specific relief.  Ext.D1 would clearly indicate that the vehicle was having only 2 years warranty and the complainant has not succeeded in establishing that the vehicle has sustained any manufacturing defect during the warranty period so as to replace the vehicle or to return the sale price or even to pay compensation by the 2^nd opposite party which is the manufacturing company. It is further to be pointed out that the complainant while facing cross examination for the 2^nd opposite party would admit that he has received all service from 2^nd opposite party during warranty period, that as per the terms and conditions  stated in Ext.D1 warranty the 2^nd opposite party has performed all services to the complainant.  In the circumstance it is clear that there is no deficiency in service or any unfair trade practice on the part of  the 2^nd opposite party manufacturing company.   Therefore we are inclined to exonerate the 2^nd opposite party from  liability.

However the compensation claimed from the 1^st opposite party is Rs.3,00,000/- which is highly excessive. In view of the facts and circumstances of the case we are of the view that a compensation to the tune of Rs.50,000/- will be reasonable and sufficient.  The points answered accordingly.

          In the result complaint stands allowed in part directing the 1^st opposite party to pay Rs.50,000/- as compensation to the complainant.  The 1^st opposite party is also directed to pay Rs.10,000/- as costs of the proceedings.  The other 2 reliefs sought for in the complaint stands dismissed.  2^nd opposite party is exonerated from liability.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  25^th  day of  February  2022.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Stanly Harold: Sd/-

          Forwarded/by Order

         Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Abdul Majeed

Documents marked for the  complainant

Ext P1 :  True copy of certificate of registration.

Ext P2:  True copy of Insurance policy.

Ext.P3 :  Copy of acknowledgment receipt of petition from Kottiyam police station dated 08.11.2018.

Ext.P4:   Copy of tax invoice.

Ext.P5:   Copy of vehicle information.

Ext.P6 :   Copy of proforma invoice

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1: Copy of new vehicles terms and conditions warranty coverage.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Stanly Harold: Sd/-

          Forwarded/by Order

           Senior Superintendent