Tamil Nadu

StateCommission

A/113/2019

Mrs. V. Kanchana, - Complainant(s)

Versus

The manager, And 2 others. - Opp.Party(s)

M/s. K. Ganesan

17 Feb 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE. R. SUBBIAH                     :     PRESIDENT

                 Tmt. Dr. S.M. LATHA MAHESWARI                          :      MEMBER

 

F.A. No. 113 of 2019

(Against the order passed in C.C. No.295/2012 dated 08.01.2019 on the file of the D.C.D.R.F. Chennai (South).

 

Thursday, the 17^th day of February 2022

 

V. Kanchana

W/o. Mr.S. Vasanthakrishnan

Old No.6, New No.12, 53^rd Street

Ashok Nagar, Chennai – 83.                                     .. Appellant/ Complainant

 

- Vs –

1.  The Manager

     Volkswagen Group Sales India Pvt.Ltd.,

     No.3, Avenue Level No.3/4

     Maker Maxcity

     Bandra Kurla Complex

     Bandra East, Mumbai – 400 051.

 

2.  The Manager

     ABRA Motors Pvt. Ltd.,

     No. 80, Ambattur Industrial Estate

     Ambattur

     Chennai -600 058

    

3.  The Service Manager

     Volkswagen Chennai

     No.41, First Main Road

     C.I.T. Nagar

     Chennai – 600 035.                                   .. Respondents/ Opposite Parties

 

   

    Counsel for Appellant /Complainant                  : M/s. K. Ganesan

    Counsel for the Respondents /Opposite Parties : No representation

                                                                            

This appeal is coming before us for final hearing on 28.01.2022 and on hearing the arguments of the counsel for the appellant/ complainant and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

1.        This appeal has been filed by the Appellant / Complainant under Section 15 and 17(ii) of the Consumer Protection Act, 1986 aggrieved by the order dated 08.01.2019 made in C.C. No.295 of 2012 on the file of District Consumer Disputes Redressal Forum, Chennai (South), dismissing the complaint filed by the appellant herein.

 

2.   The factual background culminating this appeal is as follows:  The case of the Complainant is that she purchased a car from the third opposite party on 28.10.2010 for a total sum of Rs.6,82,500/-.  The first opposite party is the manufacturer of the said vehicle.  The model of the vehicle is POLO, bearing Chasis No.WVWG10606BT000492, Engine No.CFW 007341, Deep Black Colour and the Registration No.TN09 BE 4488.  For purchasing the said vehicle, the complainant had availed auto loan from HDFC Ltd.  The said loan has to be repaid on monthly instalments till 05.07.2014.  The complainant was regular in paying the EMI amount.  Whileso, during the warranty period the vehicle started to give problem.  There was a continuous leakage of oil from the engine, since the oil container has been closed only by a thin netted material. While the complainant was driving the vehicle, the whole oil spill out through the netted material and ultimately the engine gets seized, which would show that there is a manufacturing defect in the car.  When the complainant informed the third opposite party about the problem she faced in the car, the third opposite party had taken the car and handed over to the second opposite party for repair.  On 23.06.2011 the second opposite party gave a pre-invoice for repairing the defect spotted by the Complainant.   Following the pre-invoice the second opposite party sent a letter on 22.07.2011 stating that the bill amount for repairing is Rs.3,02,416/-.   The second opposite party again sent a letter dated 28.09.2011 to the complainant to pay the bill amount.  Hence, the complainant approached the second opposite party and submitted that the said repairs have occurred since the oil container in the engine is covered only by a thin netted material.  Therefore, there is a manufacturing defect in the vehicle and the opposite parties alone are responsible for the same.  Moreover, the manufacturing defect was detected only during the warranty period.  Therefore, the opposite parties ought to replace the vehicle to the complainant with a new vehicle.  The second opposite party promised the complainant that after clarifying with his superiors he would do the needful.  Thereafter, there was no response from the opposite parties.  Hence, the complainant sent a legal notice on 01.03.2012 to all the opposite parties calling upon them to replace her defective vehicle with a new vehicle.  On receipt of the said notice, the first opposite party sent a request letter on 28.03.2012 to the complainant stating that they are under the process of collecting information and documents from the dealer and so requested to give 2 to 3 weeks to reply to the legal notice sent by the complainant.  Thereafter, nothing was heard from the opposite parties.  Hence, a reminder notice dated 09.10.2012 was sent to the opposite parties by the complainant.  Even thereafter, the opposite parties have not come forward to replace the defective vehicle with a new vehicle.  Hence, the complainant has approached this Court and has filed this Complaint for the following reliefs:-

1. To replace the defective vehicle with a new one of similar description, which shall be free from any defect;
2. To pay Rs.5,00,000/- as compensation for the mental agony, physical strain suffered by the consumer due to the deficiency in service and negligence of the opposite party.

 

3.  Resisting the complaint filed by the complainant, the first opposite party filed a written version stating that the Volkswagen cars are well known all over the world for their impeccable features and high safety standards which ensures trouble free and safe driving experience for the user of the car.  The vehicle which was delivered to the complainant has passed through stringent quality and safety tests as per high quality requirements.  The allegations made in the complaint are false.  The complainant has caused an accidental damage to the car and since the insurance company has refused to honour the claim to bear the cost of repair of the car, for the reason being the damage caused to the car was due to complainant’s own fault as more particularly mentioned in the Insurance Company’s letter rejecting the claim.  Hence, the complainant has made a lame attempt to fix the liability on the dealers of the first opposite party and by giving the incident a colour of manufacturing defect.  In fact the Insurance company has rejected the claim stating the reason as “consequential damages”.   The complainant has not come forward before this Court with clean hands.  The complainant has filed the present complaint unjustly and unfairly at the cost of the opposite parties for her own wrongs of causing accidental damage to the car.  Therefore, the complaint is liable to be dismissed on this ground.  Furthermore, it is hesitant to note that since the date of purchase of the car, the complainant has not complained about the vehicle and the said vehicle was in perfect working condition. Only after the incident of Oil Sump damage the complainant has made a claim stating that there is a defect in the vehicle.  It must be noted that the oil will not just like that spill out of the container since the alarm system which is fitted in the vehicle displays on the dashboard of the said vehicle, if there is any problem with the oil level, which is easily noticeable.  However, the complainant negligently and deliberately must not have paid attention to the signals generated by the system.  The warranty provided by the first opposite party is based on certain terms and conditions and in no sense it is absolute.  Certain damages such as accidental damages as in the present case are explicitly excluded from the ambit of warranty applicable to the said vehicle.  However, the complainant has made baseless allegation that the car is having manufacturing defects without substantiating the same with any expert report.  It must be further noted that the design of the said vehicle has been approved by “The Automotive Research Association of India” which is one of the apex bodies designated by the Central Government of India to approve the designs and other technical aspects of the vehicles and hence the complaint of the complainant that the vehicle suffers from any manufacturing defect due to its design or the material used therein, is absolutely baseless, false and ill-informed and hence denied in toto.  There is no merit or base in the allegations of the complaint. Thus, the first opposite party sought for dismissal of the complaint.

 

4.  The second and third opposite parties state that they are no way responsible for the acts of the first opposite party and they have been unnecessarily impleaded in the case.  It is a frivolous and vexatious complaint against them by the complainant since the stated manufacturing defect could be only against the manufacturer i.e., the first opposite party.  The second and third opposite parties are merely an automobile dealers and not a manufacturer.  The second opposite party further stated that the car was driven and brought to them with a damaged oil sump, which would show that the second opposite party is not negligent but negligence is only on the part of the complainant in driving the vehicle without engine oil.  The second and third opposite parties have been unnecessarily dragged into the case, especially when no deficiency of service was alleged by the complainant against them.  Thus, they sought for dismissal of the complaint.

 

5.  In order to prove the case, on the side of the complainant proof affidavit and 12 documents were filed and the same were marked as Ex.A1 to Ex.A12.  On the side of the first opposite party two documents were filed and marked as Ex.B1 to Ex.B2 and the 2^nd and 3^rd opposite parties filed 3 documents which has been marked as Ex.B3 to Ex.B5, along with proof affidavit.

 

5.  The District Forum, after analyzing the entire material placed on record, has come to the conclusion that the appellant/ complainant miserably failed to prove the deficiency of service on the part of the opposite parties and thus dismissed the complaint.  Aggrieved over the same, the present appeal has been filed by the complainant.

 

6.  Heard the submission of the counsel for the appellant and perused the material available on records. No representation for the opposite parties. 

 

7.   It is the submission of the complainant that she had purchased a Volkswagen POLO car in the year 2010 from the second and third opposite party, who are the dealers of the first opposite party.  Within a short span of time, during the warranty period, the car started to give problem.  According to the complainant, the oil container in the engine was covered with a thin netted material. As a result of which, there developed a hole and ultimately resulted in spilling of oil and the engine got seized.  According to the complainant, this is a manufacturing defect.  Therefore, the opposite parties are liable to pay the compensation. 

 

8. According to the opposite parties, alarm system has been fitted in the vehicle.  If there is any problem with the oil level, the same will be displayed on the dash board of the vehicle.  The complainant had driven the vehicle continuously without noticing the spilling of the entire oil, which resulted in seizure of the engine.  In other words, according to the first opposite party, had the vehicle been stopped on noticing the spilling of the oil, this problem would not have occurred.  Further, it is the submission of the counsel for the opposite parties that since the insurance company had refused to pay the complainant stating that the damage suffered by the complainant is a consequential damage, now the complainant has filed the complaint as against the opposite parties, projecting the case as if there is a manufacturing defect.  We find some force in the submission made by the opposite parties.  Be that as it may, whether there is a manufacturing defect or not, can be decided only by examining expert.  In the instant case, the complainant has not taken any steps to appoint an expert to inspect the vehicle and file a report.  In this nature of cases, in the absence of expert report, it is not possible to arrive at a decision whether the defect is a manufacturing defect or not.  During the course of arguments, the complainant made a submission that by setting aside the impugned order the matter may be remanded to the District Forum to enable the complainant to file an Application for appointment of an Expert to inspect the vehicle and file a report.  But, we are of the opinion that now almost 12 years has lapsed from the date of purchase of the car. At this juncture, appointment of an expert for getting his opinion, would not serve any purpose, due to depreciation of the vehicle.  Therefore, we have no other alternative except to confirm the order passed by the District Forum.

 

9.  In the result, the order dated 08.01.2019 made in C.C. No.295 of 2012 by the District Consumer Disputes Redressal Forum, Chennai (South), is confirmed.  Consequently, the Appeal is dismissed.

 

 

S.M.LATHA MAHESWARI                                                           R.SUBBIAH

         MEMBER                                                                          PRESIDENT

 

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/February/2022