Delhi

StateCommission

CC/11/377

ANKUR JAIN - Complainant(s)

Versus

SKODA AUTO PVT.LTD. - Opp.Party(s)

24 May 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:24.05.2019

                                                                                                              

                                                                   Date of decision:30.05.2019

 

Complaint No.377/2011

 

IN THE MATTER OF

 

Mr. Ankur Jain,

•  

Arvee Tectnobuild Pvt. Ltd.

New Delhi….Complainant

 

VERSUS

 

M/s Skoda Auto India Pvt. Ltd.

Through its President,

A-1/1 M.I.D.C.

Five Star Industrial Area, Shendra,

Aurangabad-431201

 

M/s Fahrenheit Automobiles Pvt. Ltd.

Through its Manager,

68/3, Najafgarh Road, Moti Nagar,

New Delhi-110015

 

Krishna Auto Sales,

Through its Manager,

177 E, Industrial Area-1,

Chandigarh                                                                   ….Opposite Parties

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. V.P. Singh, Counsel for the Complainant

                   Sh. Vipin Singhania, Counsel for the OPs

                  

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed before this Commission by Sh. Ankur Jain, Director, Arvee Techtnobuild Pvt. Ltd., New Delhi, for short complainant, against M/s Skoda Auto India Pvt. Ltd. and others, hereinafter referred to as OPs, alleging deficiency of service and unfair trade practice on the part of OP and praying for relief as under:-

 

1. Direct the OPs to replace the defective Skoda Car Model Skoda Superb 1.8 TSI (Petrol) with a new Skoda Car Model Superb 1.8 TSI (Petrol).
2. Award a sum of Rs. 20,000+Rs.1,80,000+Rs. 3000/-, total Rs. 203000/- towards taxi & tow away charges which the complainant had to incur in absence of his said Skoda Car.
3. Award a sum of Rs. 1,00,000.00 as compensation for the mental agony and physical attrition caused to the complainant.
4. Pass any other order that is deemed fit and proper in the facts and circumstances of the case.
5. Total amount above Rs. 20,00,000/- and below Rs. 50,00,000/-.

 

2.           Facts of the case necessary for the adjudication of the complainant are these.
3.           The complainant having been assured about the performance of the Skoda Car, Model Skoda Superb 1.8 TSI (Petrol) purchased the said model of Skoda Car bearing registration number DL9CZ0440 from OP 2 M/s Fahrenheit Automobiles Pvt. by paying Rs. 20,74,353/-. However the complainant started experiencing trouble in the car within one month from the date of purchase inasmuch as its engine oil and the tire pressure indicators were blinking on regular interval of four to five days, something abnormal in the one month old car. The OPs had however removed the defect in the car but inconvenience to the complainant and hardship caused due to this were disturbing. The problem in the car became a regular feature and the complainant had to go to OP-2 after every two to three months time. Complaints were attended to by the OP-2 with the assurance that it would be alright. But some problem or the other remained. However the worst happened when a serious problem regarding ineffective functioning of the air condition was noticed by the complainant. The complainant reported to the OP-2 this complaint as also as other two existing complaints. The OP attended to it but temporarily and advised them to visit their Air-conditioning Camp. The complainant visited their Air-conditioning camp and their Service Station many times but the problem could not be rectified till date.
4.           The worst happened in December 2010 when the car lost acceleration/speed and did not move at all. In technical terms it is known as failure of Mechatronic. The said car was towed to the workshop/service station of OP-2 at the complainant’s cost for attending to the three problems i.e. ineffective air-conditioning, low tyre pressure and depletion of engine oil besides other electronic problems like defect in automatic seat adjustment, weired noise in car while turning left etc. The said car was kept by the OP-2 for about a month for its repair and could deliver it only on 12.01.2011 but during this period no alternative arrangement for commutation of the complainant was made, resultantly he had to hire taxi @ Rs. 2000/- per day for 10 days. This has caused financial hardship to the complainant. Since the defects of all kinds continued to recur in the vehicle, the complainant reported to the OPs and the OPs in response thereto had sent for the vehicle for inspection and resolution. The vehicle was accordingly sent for inspection and the OPs, stating that the inspection has been done and defects as reported by the complainant have been removed, returned the vehicle with the assurance that they would be no problem thereafter. However much to the surprise and arguish of the complainants those defects were found persisting even thereafter. The complainant being frustrated addressed a communication to the OP-1 detailing problems faced by him on 02.07.2011 as the problem the complainant faced while on his way to Chandigarh in connection with his business. The said car suddenly lost its speed and stopped on the main highway. He narrowly escaped. Major accident was averted due to presence of mind of the driver. Problem was the same namely failure of Mechatronic which had occurred in December, 2010. The complainant contacted customer care of skoda and left the car with OP-3 M/s Krishna Auto Sales at their Chandigarh Workshop and returned Delhi by hiring taxi as defects in the said car could not be detected and repaired during his stay at Chandigarh. Again no alternative arrangement like providing another car to the complainant was made. When the complainant did not hear anything from the OP-3 about delivery of his car he wrote to them vide mail dated 28.07.2011 enquiring about the expected date of delivery of his car. He only received acknowledgment of his email on the same day but no definite information was given to him about expected date of delivery of his car. Later the complainant received an email dated 18.08.2011 from OP-3 informing him that his car was ready for delivery, defects having been removed. However the complainant on the same day replied to OP-3 that he had already written to OP-1 for replacement of the defective car and their reply was awaited. It was also told by the complainant that further action would be taken on receipt of their reply. The appeal made by the complainant for the replacement of the vehicle not having been responded to by the OPs this complaint alleging deficiency of service on the part of the OPs leading to his mental agony and harassment, was filed before this Commission for the redressal of his grievances.
5.           The OPs were noticed and in response thereto they have filed their reply resisting the complaint both on technical ground as also on merit. Their first objection is that the complainant not being the registered owner of the subject vehicle is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986 in which case he is not entitled to raise a consumer dispute. Secondly, the complaint without mechanical inspection of subject vehicle is not maintainable. Thirdly the complaint having been filed two years after the purchase of the vehicle, is barred by limitation. Fourth, the vehicle as on 07.01.2012 having covered 25,000kms over 26 months from date of purchase thereof seems to have good functional capabilities. Such mileage may convincingly repel and rebuke the contention of the complainant about subject vehicle being defective, inherently or otherwise. Finally the OPs have strongly refuted the allegation of the complainant that the vehicle is defective. Infact the defect if any, had been removed and thus there exists no cause of action in the subject matter as on date. On merit there objection is that in the absence of any expert evidence, the onus of which is on the complainant, allegation of major manufacturing defects remain unsubstantiated.
6.           The objection of the OP to the effect that the complainant is not a consumer is overruled, keeping in view the fact that the complainant company by way a resolution adopted have duly authorised the complainant to file the case and secondly their objection regarding limitation is also not sustainable since from the records it is noticed that the complaint has been filed within the period prescribed under Section 24(a) of the Consumer Protection Act 1986.
7.           The complainant had also filed the rejoinder rebutting the contentions raised by the OPs and reiterating the averments contained in the complaint. Both sides have filed evidence by way of affidavit in support of their pleadings. Written arguments have also been filed.
8.           The complaint was listed before this Commission for final hearing on 24.05.2019 when the counsel for both sides appeared and advanced their arguments, the complainant for the replacement of the vehicle, the vehicle having been found to be defective, with compensation for the mental agony caused and the Ops for the dismissal of the complaint on the ground that there exists no serious manufacturing defect in the vehicle the fact gaining support from the fact that the vehicle has covered more than 25,000kms on the date of filing of the complaint and secondly no expert evidence having been led, condition precedent in the matters of the kind.
9.           Short question for adjudication in this complaint is whether the complainant is entitled for the relief claimed, namely, replacement of the vehicle since the vehicle is found to have manufacturing defect with compensation.
10. It is a matter of record that the vehicle purchased in the year 2009 was sent to workshop on several occasions during the warranty period for some defect or the other. In these circumstances the prayer has been made for the replacement of the vehicle. The argument of the OP on the other hand is two folded, namely, no expert evidence having been led, the allegation remains unsubstantiated and secondly the car was repaired each time the vehicle was sent to them for the purpose. They have attended to their obligation religiously and without any hiccups. Besides the vehicle having covered more than 25,000km till the date of filing of this complaint, puts strength on their arguments and negates the claim of the complainant.
11. I may now advert to the law on the subject. The allegation is that the car the complainant purchased sustained manufacturing defect, the car having been sent to workshop on several occasions within a year. It is a trite law that the onus to prove that there was manufacturing defect was on the complainant. The Hon’ble NCDRC in the matter of Classic Automobiles vs. Lila Nand Mishra as reported in I [2010] CPJ 235 (NC) is pleased to hold as under:

 

The onus to prove that there was manufacturing defect was on complainant/respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent No. 1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13(1) (c) of the Consumer Protection Act, 1986 which provides as under:

         

“(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make and analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum.

 

12. Expert opinion is a condition precedent for establishing manufacturing defect as per the law laid down by the Hon’ble NCDRC in EID Parry vs. Baby Benjamin- I[1992] CPJ 279, Tata Motors vs. Sunil Bhasin- III [2008] CPJ 111, Chandreshwar vs. Telco- I [2007] CPJ 2, Diamond Cement vs. Rai Prexim India Pvt. Ltd. I [2003] CPJ 1 Lovely vs. Harmesh Lal-I [2007] CPJ 312 .
13. It is statement of fact that the complainant has not furnished the evidence/expert opinion. Their reliance for the purpose is on Section 106 of the Evidence Act. But keeping view the law settled by the Hon’ble NCDRC it is incumbment on the complainant to prove and substantiate through expert opinion their allegation regarding manufacturing defect. The complainant not having done this, their allegation regarding manufacturing defect remains unsubstantiated.
14. The ld. Counsel for the OP in support of his arguments has also placed reliance of the judgment of this Commission in the matter of Tata Motors Ltd. vs. Ms. Meenakshi Talan and another FA-92/2009 decided on 12.02.2019, the relevant para of which are reproduced below:-

 

 The counsel for the appellant relied upon decision of National Commission in Maruti Udyog Ltd. vs. Hashmukh Laxmi Chand (2009) 3 CPJ 229 in which it was held that manufacturing defect is more than an ordinary defect which can be cured by replacing the defects, is fundamental basic defect which creeps while manufacturing machine. To prove such defects opinion of an expert is a necessary which was not forthcoming in that case.

 

Counsels for appellant also relied upon decision of National Commission in R. Bhaskar vs. D.N. Udani IV (2006) CPJ 257. In that case it was held that where  vehicle has been in use for one year  and  five months and had run over 9808 k.m., it is difficult to believe that the same suffered from manufacturing defect.

 

In Sukhvinder Singh vs. Classic Automobile I(2013) CPJ 47 NC held that to prove manufacturing defect, report of  expert is necessary. Burden of proof is on complainant. Similar view was taken by Union Territory Commission, Chandigarh in Kawaljit Singh vs. Broadway Auto Engg. III(2014) CPJ 212.

 

In Ajita Chit Fund Pvt. Ltd. vs. Teleco I (2007) CPJ 204 and Swaraj Mazade vs.P.K. ChaK Kapoor II (2005) CPJ 72, NC held that expert opinion is must for proving manufacturing defect.

 

In the case in hand, the complainant had not  filed report or affidavit of any expert to say that there was any manufacturing defect.

 

Extensive use of the car also destroy the case of the complainant that car had any manufacturing defect.

 

15. Having regard to the discussion done and the legal position explained I am of the considered view that the complaint being devoid of merit, since the expert evidence has not been filed, cannot be allowed and it is ordered accordingly, leaving the parties to bear the cost.
16. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

 

 

(Anil Srivastava)​

Member