Date of filing:16.08.2011 & 02.09.2011

                                                                                                Date of Disposal:08.05.2023

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 08^th Day of May 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NOs. 2457/2011 & 3118/2011

COMMON ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER

1. These two appeals are filed under Section 15 of Consumer Protection Act, 1986 arising out of the order dated 16.07.2011 passed in CC/949/2011 on the file of I Additional District Consumer Disputes Redressal Forum, Bengaluru.

2. One appeal is filed by OP2, while another   is filed by complainant.  OP2 sought to set aside the impugned order, while complainant sought for enhancement of compensation as he was prayed in his complaint.

3. Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels and now to examine whether appellants/OP2 & complainant in CC/949/2011 have made out grounds to interfere in the impugned order dated 16.07.2011 and whether complainant is entitled for reliefs as prayed in his complaint?.

4. At the very outset, it would be appropriate to make mention of the fact that the name of the new entity of OP2/appellant herein would be M/s Skoda Auto Volkswagen India Private Limited with effect from 05.10.2019, since appellant has placed Annexure-A document, an order dated 05.09.2019 passed by National Company Law Tribunal, Mumbai Bench in C.P.(CAA) No.2268 of 2019 in C.A.(CAA) No.1224 of 2019 in the matter of Sections 230 to 232 along with other applicable provisions of the Companies Act, 2013.  It is therefore OP2 shall be arrayed as M/s Skoda Auto India Pvt. Ltd., with effect from 05.10.2019 is recorded accordingly in both of the appeals.   

5. Mr.V.Raghavendra Deekshith, being consumer/complainant has stated in his complaint that he had purchased Fabia Ambinte Car bearing registration No.KA-01-MF-4572 from OP1 manufactured by OP2 on 25.03.2010 and paid  Rs.6,85,154/-.  He alleged that even before stipulated time for first service had noticed vibration emanating during idling of the engine of the car and in this regard had contacted the service people of the OP1 on 13.12.2010 and explained the fault noticed and on his different enquires OPs have addressed a letter dated 10.01.2011 acknowledging the complaints through their engineers expressed regrets in not being able to rectify the defects stated once the problem will be rectified will intimate him. The complainant had sent   an email to the OP on 12.01.2011 to take back the vehicle and refund the amount.  However, OP1 reluctant to receive the vehicle and refund the sale price to him but had addressed a letter on 13.01.2011 to the complainant that replacement of injector and ignite were done, yet the problem had persisted even after replacement of cylinder head and catalytic convertor and the problem is still persisting as such  complainant had to  suffer  a lot and  was forced to spend lot of money for his everyday travelling as such he got issued notice on 25.01.2011 but the OPs have not cared to comply with the notice which amounts to rendering deficiency in service and is nothing but unfair trade practice. 

6. Thus from the above such narration found from the complaint and enquiry it could be make out that he has purchased car from OP1 manufactured by OP2 on 25.03.2010 and after purchase the said vehicle was used by him till 13.12.2010. In other words used for almost 09 months and it is found from Odometer reading   run 11,701kms. Accordingly to complainant he had noticed vibration even before the stipulated time for first service emanating during idling of the engine of the car and on 13.12.2010 he alleged manufacturing defect in the car purchased by him, got issued a notice on 25.01.2011 and filed a consumer complaint on 19.05.2011. The OP Nos.1 & 2 have contested the complaint denied the manufacturing defects alleged by the complainant. In view of the rival contentions of the parties the  Forum below held an enquiry, received  materials on record placed by parties to the complaint, allowed the complaint in part and directed OP Nos.1 & 2 to pay Rs.6,85,154/- which was the sale price paid to them within 30 days failing which amount shall carry interest @ 12% p.a. from 13.12.2010 and awarded Rs.2,000/- as cost of litigation and it is this order having not been satisfied   assailed in this appeal by OP2 and complainant respectively.

7. Learned counsel for appellant/OP2 submits that complainant having been liked the features and quality of Skoda Fabia and its performance had purchased from their dealer OP1 on 25.03.2010 for Rs.6,85,154/- and the said car was permanently registered in his name with KA-01-MF-4572 was used till 13.12.2010 for about 09 continues months running  for 11,748kms as per Odometer reading. The car vibrations alleged by the complainant were duly resolved and the car was free from defects, is in roadworthy condition, was refused to take delivery by complainant despite due information, as such they are not guilty of rendered deficiency in service and the order impugned is liable to be set aside. Further OP2/manufacturer denied categorically that the car manufactured had inherent defect in its engine and to the complainant and the forum below failed to invoke Section 13(1)(c) of Consumer Protection Act, 1986, which provides for – where the complaint alleges a defect in the engine which cannot be determined without proper analysis or test of the engine has some considerable force. We examined the enquiry file could not find Forum below  obtaining report from expert for which OP2/manufacturer expressed its unconditional willingness to get the car subjected to examination by or otherwise seek assistance of the expert. It is to be bear in mind the car in question was sold subject to warranty and it is found from the enquiry that the car when complainant alleged about manufacturing defect was well within the warranty period and the parties to the warranty bond are bound by the terms and conditions were not at all considered by the forum below. In such circumstances, in our view, Forum below has to be held committed gross error to arrive at a conclusion only on the basis of importing an order said to have been passed by the Forum below in CC/591/2011 decided on 07.06.2011 holding that all cars manufactured by OP had inherent defects. It is to be noted herein that the Forum below incorporated the order passed by the forum which is not reached to finality under law. We have to bear in mind that the orders of the higher courts or commission as the case may be shall have binding force and its own order. The forum relying on its own order denied the OP to rebut as to the finding recorded therein. It would be appropriate to make mention of  para-11 of the impugned order for better understanding as to how the forum below appreciated the materials on record as to how arrived at such conclusion. “… that in paragraph no.41, 42 and 43 of the order passed in CC/591/2011 arrived at the conclusion that model of the Skoda Fabia Car is having manufacturing defect.  It  does mean it is not the one car but   almost all the cars of the same model, which in our view not only be  held improper but   unjust for simple reason that in CC/591/2011, Forum could have decided on facts of that case which shall not have any binding force. In other words facts are not binding but the law. It is not known as to the final result of the said case. Ld. Counsel for the Ops would submit an appeal was preferred against the said award.  If we could read para-11 of the impugned order could see the vehicle has been purchased by the complainant, was used for 02 years, running 58,000kms, whereas on facts in these appeals, complainant used only for 09 months and run the vehicle for 11,748kms.  Therefore, alleged vibration in engine could not be decided on the facts of a different case. The forum below vest with powers under Section 13(1)(c) of Consumer Protection Act, 1986 could have been exercised since   OP2/manufacturer was willing to send the car for experts opinion. In such circumstances passing order in haphazard way of conducting enquiry has to be held unsustainable in law.   In such   view, of the matter obtaining of an expert report from a technical person is very much necessary before arriving at a conclusion that car manufactured by OP2/appellant is defective in order to refund the whole sale price paid.

8.   Learned counsel for appellant/OP2 rightly submitted Forum cannot conclude that car had inherent defect based on mere statement of the complainant without obtaining an expert report that to when car had run about 11,748kms within span of 09 months from the date of receipt of the car. 

9. In our view, importing an order passed by the Forum below in some other matter and without obtaining experts report as contemplated under law to hold that the car manufactured by OP is defective could not be appreciated by the commission. Ld. Counsel   for appellant submitted that OP1 is a dealer has to co-ordinate with the manufacturer and he is link in between complainant/purchaser and OP2 manufacturer, as such his duty is to keep complainant informed, had sent letter, informing as to the process of resolving the issues as on 10.01.2011 does not mean to say it was their admission as to the defectiveness of the car has some considerable force was not at all perceived by the Forum below in right way. Mere writing of a letter by a dealer, informing the purchaser could not be said either an admission of defects in the car or it could be said confirmation of any kind of manufacturing defect in the car was not properly understood by the forum below.  Further the conclusion of the Forum below, that the model of Skoda Fabia Car is having manufacturing defect in general has to be held perverse is liable to be set-aside without further requirement of any other contentions. In such conclusion, we are of the considered view matter requires to be reconsidered by the Forum below not only to exercise powers vested under Section 13(1)(c) of Consumer Protection Act, 1986 but to obtain any other additional materials on record as to the final result of case in CC/591/2011 incorporated in para-11 of the impugned order and to decide as to how such findings recorded are binding on this complaint.

10. Accordingly, we hold question of deciding on A/2457/2011 filed by complainant seeking enhancement of compensation as he was prayed in the complaint does not survive for consideration and  proceed to allow A/3118/2011 on the file of I Additional District Consumer Disputes Redressal Forum, Bengaluru in CC/949/2011 and remanded back with a direction to  re-admit the case to decide as observed afresh affording opportunity to both parties as early as possible not later than 03 months from the date of receipt of the order.

11. The Amount in deposit is directed to be transferred to Forum below for needful.   

12. Remit back the LCR to the District Commission.

13. Send a copy of this Order to the District Commission and parties to the appeal.

        Lady Member                             Judicial Member     

*GGH*