Date of Filing: 16/08/2014
Date of Order: 20/06/2017
ORDER
SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed in person under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service and prays for orders to direct the O.Ps for the following reliefs:
a) To apologize for all the inconvenience caused to the complainant.
b) To replace the car with a new Volkswagen Polo car without defect.
c) To pay a sum of Rs.1,00,000/- towards mental agony suffered by the complainant.
d) To pay Rs.1,000/- towards the cost of proceedings.
2. The brief facts of the complaint are that, the complainant on 10.04.2014 purchased the Volkswagen Polo car by paying Rs.7,95,595/- from the O.P. It is stated that complainant had not given the choice to select the car from stock and the choice was made by the staff of O.P.No.1. The complainant alleges that, on the very day when he took the car on road he was shocked to hear some rattling sound from the car engine and on next day i.e. 11.04.2014 he reported the matter to the O.P No.1 and car was given for inspection at the O.P work shop, who informed the complainant that the car had some choking problem and was required to be sent to the another workshop at Hesaraghatta Road. Hence the complainant states that it is a strange and unconvincing that the diesel car would ever have a choking problem and hence wrote a letter to the O.P.No.2 explaining to issue and asked for suitable remedy by replacing the car, but the O.Ps have refused to take steps to resolve the issues. Furthermore inspite of complainant’s communication about the fault in the car, the O.P.No.1 and 2 are not ready to accept the submission of the complainant and refused to provide him with a replacement, but the O.Ps are claiming that car did not have any defect at the time of sale/delivery. Further it is stated that O.P.No.1 sent a letter to the complainant on 9.6.2014 threatening him to pickup the car before 18.06.2014 failing which the complainant will be charged parking charges at the rate of Rs.250/- per day. Hence this complaint.
3. Upon issuance of notice O.Ps No 1, 2 & 3 appeared through its counsel and filed their version.
4. In the version of O.P.No.1 it is contended that complainant and his daughter Dr.Mardula visited the O.P show room and chose the candy white Volkswagen polo car as per the sale contract date 3.4.2014 and the same is signed by the complainant by paying an amount of Rs. 7,95,595/- by way of three cheques. Further the O.P delivered the vehicle to the complainant on 10.04.2014 and delivery acknowledgment note was duly signed by the complainant. Hence the O.P No.1 denied the allegations that the complainant was not given any opportunity to select the car from the stock and the choice was made by the O.P.No.1 are false and incorrect. Further after few days of time on reporting the complaint by the complainant and the O.P No.1 picked the vehicle from the complainant’s house and inspected the vehicle at their branch, wherein it was found that there was no defect in the engine and delivered the vehicle to the complainant. Further after about an month the complainant again visited O.P.No.1 show room with the vehicle with the same repeated complaint and demanded to replace the vehicle with a new car and the O.P.No.1 thoroughly checked the vehicle and it was found that there was no defect in the vehicle and the same was communicated to the complainant.
5. It is admitted as true that the O.P.No.1 was sent a letter dated 9.6.2014 to the complainant asking to take delivery of defect less car on or before 18.06.2014 failing complainant was asked to pay Rs.250/- per day as parking charges. Ultimately O.P.NO.1 prays for dismissal of the complaint with exemplary cost.
6. In the version of O.P.No.2, it is contended that, O.P.No.2 is a company and the dealing in Marketing, sale in servicing of Volkswagen Groups vehicle through its dealer across India appointed on Principle to Principle basis. O.P.No.2 being a sales company provides customers through its dealer, a warranty for certain period on the vehicle zone by such dealer upon certain terms and conditions. It is contended that Volkswagen car is well-known all over the world for its feather and high safety standards which ensure trouble free and safe driving experience to the user of the car and its occupant. The vehicle delivered to the complainant passed through stringent quality tests and safety tests as per high quality requirements and safety standards set by Volkswagen and only thereafter has the said car was delivered to the Volkswagen authorized dealer i.e. O.P.No.1 . It is contended that the complainant does not discloses the cause of action against this O.P and there is no deficiency in service on their part. The complaint is filed with a mala-fide intention. It is denied as false and incorrect that there was any major fault with the engine and manufacturing defect in respect of car in question and the very complaint is filed is to enrich unjustly and unfairly. Further contended that there is no privity of contract between the complainant and O.P.No.2. It is contended that, the car was not defect and there was no defect in the engine as alleged by the complainant. It is further contended that complainant himself dropped the car to the said dealer for inspection car and unreasonably repeated the same complaint and demanded for the replacement of car. Further when the car was after thoroughly inspected it was informed to the complainant that there was no defect, but the complainant persistently insisted for the replacement of the car and therefore the O.P.No.1 informed the complainant as there was no defect in the car and no replacement of car is possible. It is contended that, the complainant was used the car for 915 Kms and there was no alleged defect in the car noticed by the O.P.No.1 and communicated to the said dealer and hence contended that replacement of the car is unreasonable, unfair and highly preposterous. Further O.P.No.2 denies all the allegations made in the complaint as false and incorrect on other grounds O.P.No.2 prays for dismissal of the complaint.
7. In the version of O.P.No.3 it is contended that Volkswagen groups sale India Ltd deals in marketing, sale and servicing of cars through its authorized dealers across India who are appointed on Principle to Principle basis. The complaint does not disclose the cause of action against the O.P.No.3 and there is no deficiency in service from their part and prays to dismiss the complaint in limine. Further there is no manufacturing defect in the car in question and the O.P.No.3 has been wrongly impleaded as a party to proceeding though not a necessary and proper party to the proceedings. The complaint is filed without any base or proper reasons and the same is filed with the mala fide intention. On other grounds O.P.No.3 prays for dismissal of the complaint.
8. In order to substantiate the case, the complainant and O.Ps filed their affidavit evidence. Also we heard the arguments.
9. On the basis of the pleadings of the parties, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled
the relief prayed for in the complaint?
(C) What order?
10. Our answers to the above points are:-
POINT (A) & (B): In the Negative.
POINT (C): As per the final order
for the following:
REASONS
POINT No.(A)& (B):-
11. On perusing the pleadings of the parties and evidence placed on record it is not in dispute that on 10.04.2014 that the complainant had purchased Volkswagen Polo candy white car from the O.P.No.1 by paying an amount of Rs.7,95,595/-.
12. The sole allegations of the complainant is that, on the day of purchase of the said car he was not been allowed to chose the car from the stock and the staff of the O.P.No.1 taken the car without his consent and subsequent to purchase of the said car very next day he was shocked to hear rattling sound in the car in question. Whereas O.P contended that on lodging the complaint and the concerned O.Ps inspected the vehicle and informed the complainant that there are no defect and delivered it back to the complainant. Whereas the complainant after a month visited the O.P.No.1 with a vehicle with the same complaint and concerned O.Ps inspected the said vehicle and informed to the complainant no such defect as alleged in the complaint. It is also not in dispute the complainant ran the said car about 915 kms and dropped the same in the O.P.No.1 service centre with the same problem, whereas O.P No.1 contended that there are no such defect and informed the complainant to take the delivery of the said car but the complainant insisted for the replacement of the new car. Hence the O.Ps contended that the demand of the complainant is unreasonable and highly preposterous and it is not possible for them to replace without any reasons.
13. In order to prove the case of the complainant the complainant filed his affidavit evidence. Complainant also got appointed the Court Commissioner by name Nandakumar who inspected the vehicle and submitted report to the Forum. On perusal of the Commissioner Report, and the Commissioner placed his opinion stating that:-
“Engine showed no metal to metal heating sound (Rattling) in idling and at low speeds. The car interior noise level was 51 decibels with engine idling and 44 decibels with engine switched off which showed not significant change in noise level. The ambient noise level is quite high in Bangalore City which is the reasons for high levels of noise even when the engine is switched off. As per Annexure-1 shows the value of 51 decibels is quite acceptable. Further stated in his report there was no sound observed from the timing tensioner bearing while inspecting engine bay with engine running at idle speeds and also at low speeds.”
On over all perusal of the court commissioner and the evidence placed on record there is no iota of evidence emanate to establish that there is a rattling sound as alleged by the complainant.
14. Per-contra the complainant by filing objections question the commissioner report and without producing rebuttable evidence to the commissioner report. Under the circumstances, the report of the commissioner cannot be ignored. Furthermore the complainant in his written arguments canvassed that O.P.No.2 by admitting the manufacturing defect instructed the O.P.No.1 to recall its Volkswagen Polo model car, but it is worth to note that the complainant did not taken such plea in the complaint, hence the law requires plead and prove and without pleadings the allegations of the complainant holds no water. It is pertinent to note that, the report of the commissioner and the report of the Bangalore Motors Pvt. Ltd. along with the other evidence placed on record and reading together it clearly reveals that there is no such manufacturing defect as alleged in the complaint and the complainant failed to prove deficiency in service on the part of the O.Ps and thereby complainant is not entitled for any reliefs as sought in the complaint. However, complainant is at liberty to receive back the car from the O.Ps which is given for service. Further as a goodwill of gesture the O.P.No.1 is directed to deliver the car with a running condition to the complainant without demanding any parking charges. Accordingly we answered these points in the Negative.
POINT No. (C):-
15. On the basis of answering the Points (A) & (B) in the Negative, we proceed to pass the following:-
ORDER
1. The complaint is dismissed. No order as to cost.
2. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 20th Day of June 2017)
MEMBER MEMBER PRESIDENT
*Rak
