O R D E R
(By Smt. H.V.Ramana, Member on behalf of the Bench)
This complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the complainant against the opposite parties for Rs.6,51,051/- (Rupees Six lakhs fifty one thousand and fifty one Only) and subsequent interest at 18% per annum till the date of realization and to grant such other reliefs of the complaint.
2. The brief facts of the complaint are as follows:- The complainant is a business man who is in the habit of using cars of all major brands of higher version and he had purchased Volkswagen Jetta Car from the 2nd opposite party and manufactured by the 1st opposite party on 26.3.12 for an amount of Rs.21,05,494/-(Rupees Twenty one lakhs five thousand and four hundred ninety four only) for his personal use and it was purchased by way of vehicle loan from Oriental Bank of Commerce, Main Road, Kakinada to the extent of Rs.20,65,494/-(Rupees Twenty lakhs sixty five thousand and four ninety four Only). The Chassis number of the said car is WVWB 12162CA552280 and its engine No.CLC036984 and registration No.ap05CC7272. While using the car he gave a complaint that it was having wobbling movement i.e., unsteady movement from one side to another side. The complainant brought the same to the notice of customer care. He received the complaint and informed the same to their dealer at Hyderabad to attend the complaint. The said vehicle was in warrantee period. The complainant took the vehicle to the 2nd opposite party and they replaced the four wheels and four tube necks and collected an amount of Rs.1,07,651/- after keeping the vehicle for a period of 35 days. The complainant submitted that the rims which were made by the opposite parties with a poor quality of material, therefore they got bent and there is a manufacturing defect. The opposite party stated that the rims, wheels and tyres are not covered by the warranty. There is no condition imposed that the vehicle should not be made to run for more than 50 kms per hour. The complainant submitted because of poor quality material used by the opposite parties the rims were damaged for no fault of the complaint.
All the four wheels are bent and also all the tyres and tubes are got damaged within the warranty period. The opposite Parties failed to replace the same even though the damage occurred within the warranty period. This amounts to deficiency in service. Hence, the complaint.
3. The 2nd opposite party failed to appear before this forum and set exparte.
4. The 1st opposite party filed his written version and submitted that theirs is a reputed company by name Volkswagen. It deals with marketing, sale, and servicing their vehicles all over the India. The 2nd opposite party is their authorized dealer by name, M/s. Mody Auto India Pvt. Ltd.
The 1st opposite party submitted that this Forum has no territorial jurisdiction to try the complaint as this opposite party is situated outside the territorial jurisdiction of this forum party and also denied all the allegations made by the complainant. This opposite party further submitted that the bends in alloy wheels have been caused due to rough road conditions, rash and negligent driving habits and also driving the car with low air pressure in the tyres. The replacement of wheels could not be covered under warranty as the same is being damaged due to external impact. The complainant has been given a warranty booklet, in which all the inclusions and exclusions are mentioned. On 28-08-2012 the complainant mentioned that the vehicle is wobbling on 100 miles speed. But by this date the said vehicle was used extensively and its meter reading is 15,698 Kms and the same is mentioned in the job card. It is also submitted that the wheel alignment is done periodically to the disputed vehicle.
The complainant also approached the Insurance Company, Bhrati Axia for replacement of alloy wheels under the insurance cover, where the insurance company sanctioned an amount of Rs. 43,032/- for the replacement of two wheels out of four wheels and the complainant has not disclosed the same to a this forum. This opposite party came to know that their dealer attended all the repairs and replaced the alloy wheels. Therefore, there is no deficiency in service on the part of this opposite party.
In order to prove their case both parties filed their affidavits and Exs. A1 to A11 have been marked on behalf of complainant and Exs.B1 to B8 have been marked on behalf of 1st opposite party.
5. Heard both sides.
6. The points for determination are:-
1) Whether this complaint is comes under the jurisdiction of this forum or not?
2) Whether there was any deficiency in service on the part of the opposite parties?
3) Whether the complainant is entitled for any relief?
7. Point No.1: The opposite parties contended that this forum has no territorial jurisdiction to try the case Ex.A2 this forum as the 1st opposite party situated outside the territorial jurisdiction of this forum. The complainant submitted that purchased the car from the 2nd opposite party and obtained loan from Oriental Bank of Commerce, Kakinada and paid the amount to the opposite party. The complainant relied on the following citation.
Y.P.Das Vs. Shimla Development Authority, CTJ-1993-1-846/NCDRC the said citation is applicable to the present case in hand. The ouster clause contained in the brochure issued by the opposite parties does not exclude the jurisdiction of this forum. Hence, this point is answered in favour of the complainant.
The complainant also filed the following citations which are not applicable to the present case.
1. (1991) 2 cpj 474 Del. Union of India Vs. K.K.Bhat.
2. (1991) cpj 126,134 (hARYANA) j.d.sharmaVs.MaruthiUdhyog Ltd
3. (1993) 1 CPR 647 Del. Uma Vs. Aggrelous& Co.
4. (1994) 1 CPR 42 NC Rosemary Vs. Santhosh Agency.
8. Point No.2: It is an admitted fact that the complainant purchased vehicle from the 2nd opposite party and paid an advance amount of Rs.40,000/- vide Ex.A1. Later he availed loan from Oriental Bank of Commerce for Rs.20,65,494/- vide Ex.A2 and the same is paid to the 2nd opposite party by way of three Demand Drafts vide Ex.A3. The 2nd opposite party issued sales invoice in the name of the complainant vide Ex.A4. When the complainant made complaint to the opposite parties about the wobbling sound in the wheels the said DISS report as filed vide Ex.A5. The main contention of the complainant is that the opposite parties used poor quality of material in manufacturing the wheels. Due to that the wheels got bent and it is wobbling while the vehicle is in running condition. Due to the wobbling of the vehicle, the tyres and tubes got damaged. The complainant further contended that the opposite parties informed him that the wheels and tyres are not covered by the warranty. When he sent the vehicle to the 2nd opposite party, they rectified the defects and replaced the four wheels and four tube neck and also charged labour charges which amounts in total Rs.1,07,651/- vide Ex.A6=Ex.B4. The complainant received letters from the 2nd opposite party vide Ex.A7. The complainant also filed Ex.A8 which is a detailed letter written by him to the opposite party. The complainant filed Ex.A9 cash receipt for purchase of tubes for the disputed vehicle, he also filed E-Mail correspondence with the opposite party vide Ex.A10. The complainant also received a letter vide Ex.A11 from the 2nd opposite party in which they stated that the deformity on the alloy wheels can be caused only by an external impact and not due to any manufacturing defect.
The 1st opposite party filed the terms and conditions vide Ex.A2 they also filed the job card vide Ex.A3. of the vehicle of the complainant. The opposite party contended that the complainant approached the insurance company, Bharati Axia for replacement of alloy wheels under the insurance cover, for which the insurance company sanctioned an amount of Rs.43,032/- for replacement of two alloy wheels out of the replacement of four wheels. They further contended that the complainant has not disclosed all the facts before this forum. This opposite party also filed satisfaction note vide Ex.A5 and Ex.A8. The opposite party also filed repair order vide Ex.A7. The main contention of the opposite party is the alloy wheels will be bent or damage only due to external factor and cannot be covered under the policy.
After perusing the material on record we observed that in terms and conditions vide Ex. B2 if the wheels, tyres and tubes are damaged due to external factors or insufficient care, then the warranty claim will not be accepted by them. We also observed that in Ex.B5 the complainant received an amount of Rs.43,032/- from Bharati Axia an insurance company for replacement of two alloy wheels. The said information is concealed by the complainant. This shows, that there must be some external damage to the alloy wheels then only the insurance people might have paid the claim amount to the complainant’s vehicle. As per the terms and conditions when there is any external damage due to the negligence of the complainant the warranty will not be applicable. As per the above discussion we opine that the complainant availed claim from the insurance company because of external damage. Which means that the damage is due to the negligence of the complainant. Hence, we opine that there no deficiency in service on the part of the opposite parties.
9. Point No.3 : In the result, the complaint is dismissed without costs.
Dictated to the stenographer, typed to my dictation, corrected and pronounced by us, in open Forum, this the 27thday of November, 2014
Sd/- xxxx Sd/- xxxx Sd/- xxxxx
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant : None For opposite parties : None
DOCUMENTS MARKED
For complainant:-
Ex.A1 Dt.26.3.12 Photostat copy of receipt No.3718 issued by the 2nd opposite Party to the complainant for Rs.40,000/-.
Ex.A2 Dt.27.3.12 Photostat copy of Letter from Oriental Bank of Commerce, Kakinada addressed to the 2nd opposite party in favour of the Head sales Department an amount of Rs.20,65,494/- in the form of loan to the complainant.
Ex.A3 Dt.27.3.12 Photostat copies of demand drafts No.017608 to Modi Auto (India) Pvt Ltd, Secunderabad by the complainant.
Ex.A4 Dt.28.3.12 Sales invoice issued by the 2nd opposite party.
Ex.A5 Dt.12.9.12 DISS search results
Ex.A6 Dt. 13.9.12 Tax invoice issued by the opposite party to the complainant.
Ex.A7 Dt.24.9.12 and 04.01.12 : Apology letters for inconvenience from the Opposite Parties.
Ex.A8 Dt.24.12.12 Letter by the complainant to the opposite parties
Ex.A9 Dt.24.1.13 Original bill receipt No.49
Ex.A10 Dt. A set of replies four in number received from the opposite parties on different dates.
Ex.A11 Dt.5.2.13 Reply received from the opposite party denying the liability
For opposite party:-
Ex.B1Dt.2.7.12 Photostat copy of Authorization letter
Ex.B2Dt. Photostat coy of warranty Booklet
Ex.B3Dt.13.9.12 Photostat copy of Repair Order
Ex.B4Dt.13.9.12 Photostat coy of Tax Invoice
Ex.B5Dt.13.9.12 Photostat coy of Insurance Claim
Ex.B6Dt.13.9.12 Photostat coy of satisfaction note
Ex.B7Dt.14.5.13 Photostat coy of Job Card
Ex.B8Dt.14.5.13 Photostat coy of satisfaction note & Tax Invoice
Sd/- xxxx Sd/- xxxx Sd/- xxxx
MEMBER MEMBER PRESIDENT
