DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 16^th day of April 2018

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P. Member                                Date of filing:  11/04/2016

               : Sri.V.P.Anantha Narayanan, Member

(C.C.No.50/2016)

Vijayan.K,

S/o Krishnan,

9/311A,

“Akshara”,

Near Mahima Auditorium,

Edathara (PO),

Palakkad – 678 611.                                                                    -        Complainant

(By Adv.P.A.Surendran)

 V/s

1. The Office in-charge,                                                     -        Opposite parties

    Phoenix Cars India Pvt, Ltd.

    (Volkswagen  Dealer),

    Suabhi Esteem,

    Kanikkamatha Junction,

    Pallipuram Pg,

    Palakkad – 678 006.

2. The Office in-charge,

    Phoenix Cars India Pvt, Ltd.

    (Volkswagen  Dealer),

    12/493/1, NH-47,

    Mannuthi Bypass,

    Nadathara (PO),

    Thrissur –680 751.

(By Adv.K.Dhananjayan)

3. Dr.Andreas Lauermann,

    President & Managing Director,

    M/s.Volkswagen Group Sales India Private Limited,

    3, North Avenue, Level 4,

    Maker Maxity Bandra Kurla Complex,

    Bandra (East),

    Mumbai – 400 051.

4. The Office in-charge,

    Volkswagen Group Sales India Private Limited,

    4^th Floor, Silver Utopia,

    Carinal Gracious Road,

    Chakala,

    Andheri East,

    Mumbai – 400 099.

   (By Adv.Azeem Mohammed )

                                                          O R D E R

By Smt.Suma.K.P. Member

          The complainant herein had purchased a Volkswagon Jetta on 15.09.2011 from the 2^nd opposite party and the same was delivered by the 1^st opposite party. It is also alleged that the service of the car was done by the complainant with 2^nd opposite party, without noting any complaints whatsoever.  On 26^th November. 2015 by 10 pm the complainant was returning with other family members after attending a marriage function, then suddenly the above vehicle’s engine developed an unfamiliar noise and the complainant immediately stopped the vehicle on the road and push the vehicle to a safe side with the help of some auto drivers and pedestrians.  Immediately the complainant had contacted the help line of the opposite party No.3 and narrated the issue and the help line executive informed that the car has to be towed to the service centre of opposite party No.2, on the next day.  On 27^th November 2015, after receiving information from the help line of opposite party No.3, the opposite party No.2 had arranged their recovery vehicle to tow the vehicle from the spot to the opposite party No.2’s service centre at Thrissur for which he was charged Rs.6,000/-.  The complainant alleges that the opposite party No.2 has not responded for so many weeks.  Due to repeated enquiries by the complainant over phone, the opposite party No.2 has sent an estimate through e-mail without any name, seal, signature by whom it was prepared for an amount of Rs.3,75,000/-.  The opposite party No. 2 has not even explain the reason for the defect of the vehicle.  The complainant submits that the act of the opposite party No. 2, amounts to clear deficiency of service and unfair trade practice for which all the opposite parties are liable and bound to compensate the complainant   . The complainant had issued a lawyer notice to the opposite party No.3 requesting to resolve the matter on 27^th January, 2016, but the notice was returned with the postal endorsement “left return to centre”.  The complainant states that, it is a clear proof of unfair trade practice and cheating the customers.  He further submits that he had used the vehicle nearly 63000 kilo meters within a span of 50 months of purchase and that too with due care and caution clearly abiding the usage, driving and maintenance inspections of the opposite party. The complainant also submits that as per the owner’s manual provided by opposite party No.4 pertaining to Volkswagon Jetta, clearly states that “the system will runs a checkon certain components and functions in the vehicle when the ignition is switched on or while the vehicle is moving.  Functional faults are indicated by red and yellow symbols with warning and information messages on the instrument cluster display.  An acoustic warning is also given in certain cases”.  In this case, no such sensors were indicated or alarmed.  This clearly shows that the computer system failed and the crucial components malfunction due to the manufacturing defect, in the instructions given by the computer system of the car.  He also alleges that the damage cause to the vehicle is due to the error of the computer system of the car, which amounts to clear manufacturing defect.  The vehicle was serviced and inspected only by the 2^nd opposite party as per the directions of the 3^rd and 4^th opposite parties, specifically using the tools and spares exclusively supplied by the opposite parties 3 & 4.  Hence the complainant had approach before the Forum seeking an order directing the opposite parties 1 to 4 to recall the vehicle and to issue a new vehicle of the same specification without any defect or refund the actual amount of Rs.14,75,000/- paid by the complainant for the vehicle and also to direct to set right the vehicle at the cost of the opposite parties and to extend the warranty for three years from the date of delivery and also to pay the conveyance expenses @ Rs.15,000/- per months from 27^th  November 2015 till the date of the delivery and also to pay a compensation of Rs.1,50,000/- towards mental agony caused because of the irresponsible attitude and deficiency of service by the opposite party and also to pay Rs.30,000/- towards cost of this litigation. 

          Notice was issued to the opposite parties for appearance.  Opposite parties 1,2 & 4 entered appearance and filed their respective versions.

          Opposite party 1 & 2 contended that the vehicle had completed four years and had clocked 71053 kilo meters.  Since the vehicle was more than four years old the same was outside the purview of the warranty also.  On inspecting the vehicle, the service personal detected a problem with the common rail system of the vehicle.  The only option in such cases was replacement of the common rail system.  The said contingency had arisen due to the presence of a metal particle found in the fuel.  This is obviously due to the result of poor quality of fuel being used by the complainant over a period of time.  However, since the vehicle was outside the warranty period the replacement could not be considered/made under warranty.  The said fact was communicated to the complainant along with an intimation regarding the estimated repair cost of Rs.3,72,000/-.  The opposite parties also submits that, the issue being a rare one and the repair cost being on the higher side, had offered a support of 15% discount on the spare parts and 25% discount on labour charges.  But the complainant was not willing to give confirmation and approval and also not ready for bearing the repair cost which was offered with the maximum discount.  It is because of the stand taken by the complainant by not approving the work to be done and the expenses involve that the vehicle is still remaining in the workshop.  Unless, the complainant approves the work to be carried out and also the service charge involved, the opposite parties cannot carry out the repairs on the vehicle.  The replacement of the common rail system is the only option and the same cannot be replaced under warranty, since the car was more than four years old and not covered under the warranty.  It was only on account of permission not being accorded to carry out the repairs that the opposite parties were unable to comments the work.  If the complainant agrees and grand’s sanction to them to commence the work under discounted rates, they can very well complete the repair and hand over the car in good condition.  They also submits that if the complainant does not accord sanction to carry out the repairs or delays the work from being commence, then the mechanical condition of the vehicle will be affected and the same would deteriorate with the passage of time.  There is absolutely no merit in the complaint, and is liable to be dismissed. 

          Opposite party No.4 alleges that the vehicle was purchased by the complainant from opposite party No.1 and the contract for sale was between the opposite party No.1 and the complainant.  There was no privity of contract between the complainant and the opposite party No.4 regarding the sale of the car.  Hence there is no scope for any deficiency of service from their part.  

Complainant filed application as IA 232/2016 seeking permission for substituted service against opposite party 3.  Application was allowed and draft publication was produced which was approved.  Paper publication against opposite party 3 was produced.  Name called absent and set ex-parte.  Complainant filed another application as IA 315/16 to appoint an expert commissioner to inspect the vehicle.  Application was allowed and the expert commissioner inspected the vehicle and a detail report was filed.  Complainant filed application as IA 410/2016 so as to direct the 2^nd opposite party to deliver the vehicle in good condition after curing the defects.  4^th opposite party filed objection to commission report.  IA was disposed of vide separate order. 

Complainant filed chief affidavits along with documents.  4^th opposite party filed application as IA 41/2017 seeking permission to cross examine the complainant.  Application was allowed.  Complainant was cross examined by 4^th opposite party as PW1.  Exts.A1 to A9 series & A10 was marked from the side of the complainant.  Expert commissioner’s report was marked as Ext.C1.  Ext.B1 was marked during cross examination.  Opposite party 1 & 2 filed applications as IA 110/2017 seeking permission to cross examine the complainant.  Complainant was cross examined by opposite party 1 & 2.  1^st and 2^nd opposite party filed chief affidavit.  Complainant filed application as IA 216/2017 seeking permission to cross examine opposite party 1 & 2.  Opposite party 2 was cross examine as DW1.  Complainant also filed application seeking permission to cross examine 4^th opposite party.  But he was not available for cross examination.  No chief affidavit was also files by the 4^th opposite party.  Evidence was closed and the matter was heard.    

The following issues that arise for consideration are.

1. Whether there is any deficiency of service from the part of opposite parties?
2. If so, what are the relief and cost?

Issues No.1 & 2

          The complainant submits that his vehicle was parked unattended in the nearby ditch outside opposite party No.2’s service station at Thrissur.  He alleges that it was because of a revenge taken against him for not agreeing to opposite party No.2’s “estimate” for Rs.3,75,450/- and for filing up this complaint.  Hence the complainant had filed an application before the Forum for appointment of an expert commissioner.  The expert commissioner had inspected the vehicle and the report was marked as Ext.C1.  The report says that the main components of the fuel system (common rail system) like fuel pump, common rail and fuel injectors were already dismantled and were kept in the rear boot of the vehicle without any safety precaution.  The commissioner opines that the fuel injectors are supposed to keep in clean environment with its protective caps, so as to prevent dust and other impurities entering in its fine nozzles.  Otherwise these injectors may not be reused further.  The battery of the vehicle was totally exhausted and was not in a condition to operate.  Thus it was not able to check and decode the status of the ECM (Electronic Control Module) to diagnose the problem.  He has also stated that the openings for connecting the fuel injectors to the engine were kept open (injectors were dismissed and kept in the boot of the vehicle) which are supposed to be closed.  It is found that excreta of insects and rats are found near the opening of fuel injectors which are to be considered very seriously.  If any foreign materials like metal particles, dust or other impurities enters the engine cylinder it needs engine reconditioning which is a very costly affair.  He has also stated that the condition of the vehicle with the dealer is prone for further serious damages to the engine and the related accessories and to the body parts. 

Opposite party 1 & 2 had stated that it was an only an account of permission not being granted to carry out the repairs, that opposite parties were unable to commence the work.  If the complainant agrees and grants sanction to them to commence the work under discounted rates, they can very well complete the repairs and hand over the car is good condition.  If that be so, they ought to have intimated the complainant to take back the vehicle without repairing it.  Without doing so, they had committed deficiency of service on their part.  The opposite party has also stated that the warranty period of the vehicle is over and they have no liability to repair the vehicle free of cost.  According to the opposite party the vehicle has covered approximately 73000 kilo meters for the past four years.  This is not what is expected from a luxurious vehicle bearing a heavy cost.  Hence it can be viewed that there is unfair trade practice on the part of the opposite parties.  In the above circumstances, we allow the complaint in part and we direct the opposite parties jointly and severally to repair the vehicle and to return it to the complainant in good road worthy condition free of cost, within three months from the date of receipt of this order, failing which the complainant is entitled to realize the actual cost paid towards the cost of the vehicle.  In such circumstances the opposite parties can retain the vehicle by refunding the actual cost.  Considering the facts of the above case the parties shall bear their respective cost.

This order shall be executed within three months from the date of receipt of this order; failing which the complainant is entitled to realize 9% interest p.a from the opposite parties on the total amount due to him from the date of this order till realization.   

          Pronounced in the open court on this the 16^th day of April 2018.

           Sd/-

                   Shiny.P.R

                   President 

                         Sd/-       

                   Suma.K.P

                    Member

           Sd/-

    V.P.Anantha Narayanan

                    Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          -  Photocopy of registration certificate bearing registration No.KL09AB5336

Ext.A2          -  Photocopy of estimate of the vehicle bearing registration No.KL09AB5336

Ext.A3          -  Photocopy of the lawyer notice dated.23.12.15 sent by the complainant’s

             advocate to the 3^rd opposite party

Ext.A4          -  Lawyer Notice issued to 3^rd opposite party returned with postal

             endorsement “Left Return to Original Sender” (Sealed Cover with Ack)

Ext.A5          -  Photocopy of the service schedule book

Ext.A5 (a) – Photocopy of the service schedule book

Ext.A6          -  Photocopy of the Owners Manual (page 20)

Ext.A7          -  Photocopy of Bill Cum Receipt Dated.20.06.2016

Ext.A8          - Self attested copy of Private Car Package Policy issued by Oriental Insurance

             Company Ltd.

Ext.A9          series -  Photocopy of receipts issued by Vinayaka Travells, Palakkad

Ext.A10-  -Complainant receipt a letter from the Volkswagen Company

               dated.29.06.2017

Exhibits marked on the side of Opposite parties

Ext.B1 -  Photo copy of Form 18 of the vehicle

Ext.B2 -  Photo copy of New Vehicle Terms & Conditions Warranty Coverage

             Annexure B

Ext.B3 -  Photo copy of e mail message sent by opposite party to the complainant

              dated.15.12.2015

Commission Report

Ext.C1 -  Commission report of Dr,Vinod.V, Professor Dept. of Mechanical Engg., NSS

             College of Engineering, Palakkad dated. 20.10.2016 with photographs of

             the vehicle

Witness examined on the side of complainant

PW1   -  Vijayan.K

Witness examined on the side of opposite party

DW1   -  Manoj Kumar

Cost

          Nil