Delhi

StateCommission

A/08/755

SKODA AUTO INDIA PVT. LTD. AND ORS. - Complainant(s)

Versus

SHIV KUMAR GUPTA - Opp.Party(s)

25 Apr 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :25.04.2019

Date of Decision : 08.05.2019

FIRST APPEAL NO.755 /2008

In the matter of:

 

1. Ms. Silvertone Motors P. Ltd.,

Authorised dealer for Skoda Auto India P. Ltd.,

31, Najafgarh Road,

New Delhi-110015.

Through its Managing Director/ Principal Officer.

 

2. M/s. Skoda Auto India P. Ltd.,

Through its Managing Director,

E-76, MIDC Waluj,

•  

 

3. M/s. Krishna Auto Sales,

Authorised dealer and workshop for

M/s. Skoda Auto India P. ltd.,

Jallandhar, Phagwara, GT Road,

VPO Khajurola,

Distt. Kanpurthala, Punjab.……Appellants

 

Versus

 

Shri Shiv Kumar Gupta,

R/o. 7-A/2A, Rajpur Road,

Opp. Tirath Ram Hospital,

Civil Lines, Delhi.….Respondent

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

 

JUDGEMENT

1. Aggrieved by order dated 22.05.08 passed by District Forum VII allowing complaint no.178/07, the OPs have preferred the present appeal. Appellant no.1 was OP-2 before District Forum, appellant no.2 was oOP-1 before District Forum and appellant no.3 was OP-3 before District Forum.
2. At the very out set it may be mentioned that appeal has been filed on 24.07.08 which is apparently barred by limitation. The appellants themselves moved application for condonation of delay which is at pages 57 and 58 of bunch of appeal. Incidentally the said application has gone unnoticed and there is not mention of the said application in any proceedings. Even during arguments on appeal on 25.04.19 the counsel for appellant did not point out that there is any application for condonation of delay. It is only while going  through the written arguments dated 03.05.19 filed by respondent that I have come to know about application for condonation of delay.
3. The application for condonation of delay simply recites that appellants tried to file appeal in first week of July, 2008. However the registry refused to accept the appeal as it was accompanied by the demand draft of Rs.25,000/- instead of fixed deposit of Rs.25,000/-. The appellants and their lawyers were under honest impression that demand draft of Rs.25,000/- would be accepted. The said defect is now removed and appeal is being filed with fixed deposit receipt of Rs.25,000/-. Delay caused is  filing appeal is unintentional and due to lack of knowledge and procedural requirement of State Commission.
4. The application is very vague. It does not mention the period of delay sought to be condoned. It is not  supported by affidavit of appellants or their counsel. It does not mention the date as to when the appellant tried to file appeal in first week of July, 2008. It does not  give the number date of demand draft or the name of the bank issuing the same. Copy of the alleged demand draft has not been filed alongwith application for condonation of delay.
5. If the appeal was ready in first week of July, preparation of fixed deposit receipt would have taken one or two days and not 20 days. There is no reason why the appeal has been filed only on 27.07.08.
6. It is pertinent to note that memorandum of appeal contains date as 24.07.08, the affidavit accompanying the same bears date 13.07.08, has been attested on 13.7.08. It belies the story of the appellant that it wanted to file appeal in first week of July, 2008 or that the registry refused to accept the same. If the affidavit was not ready and attested, the appeal could not have been filed in first week of July, 2008.
7. Moreover ignorance of law is no excuse. The appellants are  big business houses viz manufacturer of Skoda car which is a costly and luxury car, authorised dealer of Skoda and authorised service station of said car. They have lot of leading lawyers on panel and it can not be swallowed that they were not aware of the procedural requirement of appeal.
8. Counsel for respondent has relied upon decision of National Commission in Kadam Brothers and Developers vs. Unmesh Ganpat Rao Satte IV (2015) CPJ 100 in which the application for condonation of delay in filing the appeal was dismissed on the ground that application was absolutely vague  and no cogent and sufficient cause was shown. Reference to decision of Hon’ble Supreme Court in Anshul Aggarwal vs New Okhla Industrial Development Authority IV (2011) CPJ 63 has been made in which it was observed that court has to keep in mind that special period of limitation has been prescribed under Consumer Protection Act for filing appeals and revisions and object of expeditious adjudication of consumer dispute will get defeated if the court was to entertain highly belated petition filed against order of Consumer Fora.
9. Counsel for respondent has also relied upon decision of Hon’ble supreme Court in Cicil Kallarackal vs. Vehicle Factory (2012) 8 SCC 524 in which it was held that condoning  inordinate delay without sufficient cause would amount to substituting the period of limitation by the court in place of the period prescribed by the legislature.
10. It can be argued on behalf of the appellant that delay in filing appeal is not an inordinate delay as it is merely 30 days approximately. In Sanjeev Sidgonda Patel vs. National Insurance Company Ltd SLP Civil No.37183 of 2013 Hon’ble Apex Court confirmed the order of National commission and did not condone delay of 13 days.
11. In view of the above discussion I find that appellants have failed to show sufficient cause for condonation of delay. The application is dismissed. With this the appeal must automatically stand dismissed as being barred by limitation.
12. Still I am proceeding to decide the appeal on merits also and find that there is no merit in appeal.
13. The case of the respondent was that he purchased Skoda Octavia Rider 1.9 TDI/66 KW Diesel Engine car for Rs.11,12,919/- from appellant no.2 on 29.01.05. He was getting his car serviced regularly from workshop of appellant no.3 as per schedule provided with the car. Few days after purchase of the car, it started giving trouble. Each and every time when the car was sent for service, he was assured that the car would work up to standard after running few thousand kms. On 29.04.06 the car was sent to workshop. Despite being serviced, it broke down and had to be towed away to the workshop and was again repaired on 11.05.06. He had to pay Rs.7538/-. Polen air filter, oil filter and fuel filter were replaced. Within 13days the car again suddenly broke down and had to be towed to the workshop. Electric fan of the car had to be replaced. He had to cough up Rs.11,337/- vide invoice dated 25.05.06.
14. After about two months on 28.07.06 when he was coming from Amritsar Airport  the engine of the car broke down  after the car had travelled about 15 mtrs in hardly 10” deep water. The car had to be towed away to the workshop. He had to pay Rs.12,832/- vide notice dated 29.07.06. Air filter, air duct, splash shield front left hand, turn signal right hand, oil filter, fuel filter and 4.5 Ltrs engine oil were replaced. Soon  after the repair  and service were carried out on 29.07.06 the car started emitting white smoke which was brought  to the notice of appellant no.1 vide letter dated 28.08.06. On 05.09.06 when he was driving the vehicle from Amritsar for bringing it to the workshop of appellant no.3, he was informed that the engine block of the car had burst.
15. To the Utter shock and surprise of the complainant, appellant no.3 without taking the complainant into confidence unilaterally wrote letter dated 11.09.06, after 6 days of deposit of the car by the complainant with OP-3, requesting National Insurance Company to depute a surveyor as car was accidentally damaged and the car could not be opened/ dismantled before the inspection was made by surveyor. The surveyor gave a report that there was no external accidental loss. He also mentioned that timing belt was not shown to him despite requests. It was mechanical failure and excluded peril in the policy. Engine sump was chieseled in order to fabricate the cause of loss and tried to be shown as an accident by external means. The surveyor was an independent person on whom the complainant had no control particularly when he was summoned by the appellants themselves without even informing him.
16. On 03.10.06 complainant was informed that there was a hole in the pump which had occurred due to accidental impact and as a result oil have drained out of the engine. The vehicle was run few mtrs. in this condition without engine oil causing failure of hydraulic buckets, connecting rod, engine block and other engine components. According to complainant there was manufacturing defect in the vehicle. So he sought replacement of the car with a new defect free car or refund of the entire payment alongwith interest @12% per annum and compensation of Rs.5 lakhs.
17. OP-1 filed written statement stating that the vehicle was used roughly and without any proper care and precaution with a flawed driving. The complainant had concealed various material particulars. The car was an accidentally damaged and there was no inherent manufacturing defect.
18. OP-2 filed a written statement stating that normal services were carried out and spare parts such as pollen filter, air filter, oil filter and fuel filter were changed  as per requirement. The car had already travelled 22813 kms. which necessitated changing of engine oils as well. There is only one year warranty of Skoda genuine parts and Skoda genuine accessories. There was no manufacturing defect. The car was being driven at high speed when it was heavily raining and it was also being driven without any engine oil. When the engine was running without oil, the engine would be damaged. The car met with an accident and all the defect had  taken as a result of accident.
19. OP-3 filed separate WS. Its reply was same as that of OP-2.
20. The complainant filed rejoinder and his own affidavit in evidence. He proved various documents such as invoices and job sheets.
21. On the other hand the OP filed affidavit of Shri Kamal Bhardwaj/ an employee of appellant no.3/ OP no.3. He deposed that when car was brought to his garage on 05.09.06, the driver told him that car underbelly was hit by some unknown object when it was raining heavily.
22. After going through the material on record and hearing the arguments the District Forum found that complainant purchased costly car by paying Rs.11,12,919/- on 29.01.05. The same was sent to workshop of OP-3 on 29.04.06. Service was made. It was further repaired on 11.05.06. Many spare parts had been changed within the period of warranty. This showed that there were manufacturing defects. The complainant had been writing letter to this effect to the Managing Director of OP. No explanation has been given by OP as to why the parts of the vehicle became defective within a short period.
23. The argument of counsel for appellants that there was no expert evidence to show manufacturing defect, did not find favour with the District Forum. The decision of NC in Azitha Chit Fund Pvt. Ltd. vs.  Tata Engg. & Locomotive Company Ltd I (2007) CPJ 204 was distinguished on the ground that there was no expert opinion. But in the case in hand there was a report of a surveyor which showed that the vehicle was having manufacturing defect. The OPs were directed to refund price of the vehicle i.e. Rs.11,12,919/- together with the interest @12% per annum, Rs.1 lakh as damages and Rs.5,000/- as litigation cost.
24. In appeal the str...... of counsel for appellant was on lack of opinion of exert. He went on to submit that even report is not acceptable so long as the affidavit of the expert is not filed. In support of his submissions he relied upon following decisions:-

1. National Insurance Company Ltd. vs. Mohd. Ishaq I (2012) CPJ 538 NC.
2. Dr. Panna Bean Padana Sheasir vs. Vilas Ram Das i (2003) CPJ 1 A NC.
3. Shishir Vasant Kumar Sain Jit vs. Tata Motors Ltd. II (2013) CPJ 14 NC.
4. State of U.P. vs. Jai Lal and Ors 1999 (7) SCC 280.
5. Hindustan Motors vs. Vasudeva FA No.474 of 1999 decided on 03.07.06 by NC.
6. United India Insurance vs. Dasrath Lal Jetha Bhai Patel II (1996) CPJ 77 NC.
7. National Insurance Company Ltd. vs. Munir Shah R.P. decided by NC on 15.03.02.
8. Rakesh Gautam  vs. Sangi Bros 2010 SCC online NCDRC 138.

25. The counsel for appellant also relied upon the following judgements to make out that expert evidence was necessary:-

1. Maruti Udyog Ltd. vs. Hasmukh Laxmi Chand III 2009 CPJ 229 NC.
2. A.B. Motors Pvt. Ltd. vs. Admiral Impacts Pvt. Ltd. II (2010) CPJ 217 NC.
3. Skoda India Pvt. Ltd. vs. Bhavesh Narula 2015 SCC online NCDRC 2704.

26.  On the other hand the counsel for respondent submitted that at the best according to OPs, the car met with accident on 05.09.06 when underbelly was hit by some unknown object when it was raining heavily. But before the said date the car had gone to the workshop of OP number of times. Firstly on 29.04.06, secondly on 11.05.06, thirdly on 25.05.06, fourthly on 28.07.06. On the very next day on 29.07.06 the car started emitting white smoke. There is no explanation as to why the car had problem on those occasions. Arguments appear to be plausible.
27. The counsel for respondent also submitted that firstly affidavit of Shri Kamal Bajaj that driver told him that car met with accident when it hit unknown object wile  being driven through heavly rain is not born from any document. The same does not find place in the job sheet and is mere after thought.
28. Counsel for the respondent also submitted that word ‘accident’ is loosely used to indicate something which happens all of a sudden, unexpectedly, incidentally without impact between two vehicles. So even if the driver is  believed for a movement and for the sake of argument that he told that car met an accident, the same has to be read as a whole and not  in  piecemeal as desired by appellant. The driver told that vehicle hit some unknown object. Thus it was not strictly an accident as tried to be made out by the appellant.
29. The counsel for respondent submitted that surveyor was not an interested person. The complainants have no control over him. He was on a panel of insurance company. So in a sense he was not an employee of even the insurance company. He was summoned by the appellants, not by the complainant.
30. Rather Shri Kamal Bhardwaj was employee of the appellant and was an interested witness.
31. The counsel for respondent relied upon decision of national Commission in Maruti Suzuki India Ltd. vs. Dr. Hirak L. Desai R.P. No.4709 of 2008 decided on 11.12.14. He relied upon said decision to show that there was no need of expert evidence, the surveyor report was solid and unflappable evidence. In the said decision the earlier judgements of NC in Maruti Udyog Ltd. vs. Hasmukh Laxmi Chand and Sushila Auto Mobiles vs. Virendra Narayan cited by the counsel for appellants were distinguished.
32. Counsel for respondent also urged that the appellants had number of experts/ mechanics. But they didn’t  muster courage to file report of an expert to show that the car was ‘sans’ defect. In doing so he placed reliance upon decision of NC in RP No.1914/14 titled as Skoda Auto India Pvt. Ltd vs. Lata Jain decided on 20.05.15. Similar view was taken by NC in Bajaj Auto Ltd. vs. Kirth Kumar Jagjiwan Das Patel III (2005) CPJ 86.
33. In Hyundai Motors India Ltd. vs. Affiliated East West Press Pvt. Ltd. 1 (2008) CPJ 19 NC held that  in order to be manufacturing defect, defect may not be a major one. In CC No.116/08 titled as Vinay Sagar Sehgal vs. Skoda India Pvt. Ltd decided on 01.12.11 this Commission turned down the argument that expert report was must for proving manufacturing defect. In Scooter India ltd vs. Madhavananda Mohanty II (2005) CPJ 136 NC held that it was not always necessary for consumer to give expert evidence for proving a manufacturing defect.
34. However reliance by counsel for respondent on decision of Hon’ble Supreme Court in V. Kishan Rao vs. Nikhil Super Speciality Hospital CA No.2641/10 decided on 08.03.10 is unfounded. The said case was of medical negligence and stands on a totally different footing.
35. The arguments of the petitioner that vehicle has run 22813 k.m. is totally baseless. Such a meagre coverage is hardly sufficient to make out that the vehicle had no defect.
36. In Controls and Switch Gears India Pvt. Ld. Vs. Daimler Chrysler India Pvt. Ltd. IV (2007) CPJ 1 NC held that after spending a lot, consumer is not satisfied if frequent troubles are there. This is what has happened in the present case. The complainant purchased a costly vehicle of more than  Rs.11 lakhs in 2005 equivalent of which must be around Rs.40 lakhs of today. He had to send the vehicle to the workshop frequently. So it can be safely inferred that the vehicle had manufacturing defect.
37. The vehicle was a diesel vehicle which had completed its life in 2015. Now there is no question of replacement The only option left is refund of the money. The vehicle is lying with the appellants since 2009.
38. Anyhow the complainant used the vehicle for about two years from Jan. 2005 till September, 2006. So he can not be allowed  full refund. Depreciation of 10% per annum is fair enough. This means that the appellants could seek refund of amount after deducting 20% from the purchase price.  Depreciation would come to Rs.2,22,583/- and net amount would remain Rs.8,90,333/-. The complainant must also get Rs.7,538/- paid by him on 11.05.06, Rs.11,337/- paid by him on 25.05.06, Rs.12,832/- paid by him on 29.07.06, Rs.2,91,626/- paid by him on 15.12.06. The sum total of this figure comes to Rs.12,13,666/-.
39. For the fore going reasons the appeal fails and is dismissed. The appellants are directed to pay jointly and severally Rs.12,13,666/- in all. Interest is being declined as till today the parties were fighting and the amount was not liquidated amount. Both the parties are left to bear their own cost. After paying the amount, appellants would be at liberty to dispose of salvage of the car.
40. Copy of the order be sent to both the parties free of cost.
41. One copy of the order be sent to District Forum for information.
42. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                    

  MEMBER (JUDICIAL)