Haryana

Ambala

CC/242/2016

Jaswinder Pal Singh - Complainant(s)

Versus

Velocity Automotives LTd. - Opp.Party(s)

Suksham Aggarwal

08 Dec 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

        Complaint Case No:  242 of 2016

                    Date of Institution    : 08.06.2016

                     Date of Decision       : 08.12.2017

Jaswinder Pal Singh @ Jaswinder Rekhi, son of S.Inderjit Singh Rekhi, resident of 324 Sector-9 Ambala City

……Complainant.

Versus

 

1. Velocity Automotives Limited through its Managing Director/Proprietor near Jandli Bridge, N.H.1 G.T. Road, Ambala City 133203.
2. Vokkswagon Group India Pvt. Limited through the Chief Executive Officer/MD/Director, Silver Eutopia 3^rd and 4^th Floor, Cardinal Gratious Road, Chakala, Andheri East Mumbai, Maharashtra-400099.
3. Volkaswagon, through the Chief Executive Officer, Chakan Plant, E1MIDC, Phase 3, village Nigoje, Kharab Wadi, Pune, Maharashtra 410501.

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:       SH.D.N.ARORA,PRESIDENT.

                        MS. ANAMIKA GUPTA,MEMBER.

                        SH.PUSHPENDER KUMAR,MEMBER.

                       

Present:          Sh. Shubham Aggarwal and Ms.Suksham Aggarwal, Advocates for                            complainant.

                        Sh. S.R.Bansal, Adv. for OP No. 1.

                        Sh.Manish Kashyap, Adv. for OP No.2.

                        Sh.Amit Kumar, Adv. for OP No.3.

 

ORDER

 

                        The complainant has filed the present complaint against the OPs with the averments that OP No.1 is carrying of business of sale and service of Vokkswagaon Cars being dealer. On 16.06.2014, the complainant purchased a Volkswagon Vento Model car from OP No.1 for a sum of Rs.9,98,000/- and also paid registration fee/road tax of Rs.60,000/- on the same day. The vehicle was allotted registration No.HR01AJ/4872 on 17.07.2014.  The complainant got the same insured with Oriental Insurance Company  for a period of one year by paying the premium to the tune of Rs.31,405/-. He also obtained extended warranty under the scheme of Volkswagon India Group Private Limited on 30.01.2016 for a period from 16.06.2016 to 15.06.2018.  The car in question started creating problem from the very first year of its purchase as it suddenly broke down when the complainant was returning from work in the third week of April, 2015.  The complainant managed to take his car to the service centre by towing the same but he was taken by surprise on knowing that the engine of his new car was defective and the official of the service centre asked that the same needs to get replaced. The complainant when left with no other option get the engine of the car replaced and during this process the OP No.1 kept the car with it for about one month without providing a stand by car.  Thereafter the complainant kept on asking the OPs about continuous noise in the car but Op No.1 assured that the engine has been replaced and the car would be trouble free but in the month of February, 2016 the car again developed problem in ignition shaft/crank shaft as it stopped working. The complainant again towed the car to the service centre where he was intimated that the ignition shaft/crank shaft has got broken due to which the car cannot start and it needs replacement.  The complainant got the same replaced, therefore, he sent emails to the Op No.2 qua his harassment and mental agony. The OPs assured that there would no problem in the car in future but again in the month of May, 2016, the car again went out of order, therefore, the complainant left the same to the OP No.1. When the complainant visited the Op  No.1 then came to know about short circuit in the wiring, therefore, Op  No.1 opened each and every part of the car. Due to irresponsible behavior and unfair trade practice the complainant decided not take back the vehicle  but the Op No.1 admitted the mistake about opening the car without the permission of the complainant. The complainant left the car with the Ops after taking the documents from it. The OPs have sold defective car to the complainant for which he had raised loan from HDFC Bank Ambala City and regarding this he has been making the installments till today.   The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C12.

2.                     On notice, OPs appeared and contested the complaint by filing their separate replies. OP No.1 in its reply has submitted that the present complaint is not maintainable as the complainant has not come to this Forum with clean hands. The vehicle was having minor problem about normal wear and tear which was due to excessive run which was showing 45274 kms. There was no defect in the engine. The vehicle is still lying ready since May 2016 but the complainant is not coming for collecting the vehicle despite many calls.  Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

3.                                 OP No.2 in its reply has submitted that the Op No.2 sells and further provides service of Volkswagen Group vehicles through its dealers across India on principal to principal basis and the vehicles have been delivered to the customers after quality tests and safety standards. The car was brought to the service station on 25.04.2015 when it had completed a mileage of 35389 kms within one year of purchase of car which shows that the complainant was in extensive use of the car from the date of purchase till date. After conducting thorough enquiry engine alongwith other relevant parts were replaced at the cost of OP No.2 under the warranty policy. The car was delivered to the complainant after being satisfied and taking of test drive. The complainant was provided courtesy car on 05.05.2015 till the delivery of vehicle on 31.05.2016. There was no manufacturing defect in the vehicle as on most of occasions the car was brought to the workshop of OP No.1 for routine repairs and maintenance. The dealer had carried out the repairs and rectifications in the car under warranty whenever the same were possible, where the repairs and rectifications were not possible to cover under the warranty the complainant was charged for the same.  The car was again brought to the service centre on 25.05.2016 after completing a mileage of 67343 kms for its 5^th routine service alongwith dry cleaning but during dry cleaning there was short circuit in the car and this issue was communicated to the complainant verbally. The Op No.1 had sent three mails to the OP No.2  wherein it has been stated that the complainant has been intimated that the car is ready for delivery in roadworthy condition but the complainant did not come, therefore, parking charges of Rs.5,00/- per day is being levied on him since 02.06.2016.  The allegation regarding defective car sold by the OP is baseless less as it had run 67343 kms within a period of two years of its purchase. No mental harassment and financial loss has been caused to the complainant. Objections about territorial jurisdiction and cause of action etc. have been taken. Other allegations levelled in the complaint have been controverted and prayer for dismissal of the same has been made.

4.                     OP No.3 in its reply has submitted that there is no privity of contract with the complainant as it does not sell the car either to the dealer or to the customer directly. There was no manufacturing defect in the vehicle and the present complaint has been filed by the complainant just to enrich himself by taking the undue advantage and the present complaint is without any basis. There is no expert report on the case file and without it manufacturing defect cannot be detected. The productions of vehicle to the service station cannot be a ground to hold that the vehicle suffers from manufacturing defect. Lastly, prayer for dismissal of the complaint has been made.

5.                     In evidence, OP No.1 has tendered affidavit Annexure RX and document Annexure R1/1. OP No.2 has tendered affidavit Annexure RY and documents Annexure R1 to Annexure R13. No evidence has been led on behalf of OP No.3.

6.                     We have heard learned counsels for the parties besides going through the material available on the case file very carefully.

7.                     Undisputedly, the complainant had purchased a car Volkswagon Vento in June, 2014 for a sum of Rs.9,98,000/- from OP No.1 as is evident through (Annexure C1) and the same has allotted registration No.HR01AJ-4872 by the Registering Authority, (MV) Ambala (Annexure C2). The vehicle in question is insured with Oriental Insurance Company (Annexure C3). The complainant had obtained extended warranty for the vehicle in question having validity from 10.06.2016 to 15.06.2018 (Annexure C4).

8.                                 Learned counsel for the complainant argued that the vehicle stopped working within one year of its purchase  and when it was brought to the OP No.1 then it came to notice that the engine of the same is out of order and it needs to be replaced. Since the complainant was no other option but to replace the same, therefore, it was got replaced on 30.05.2015 within a shorter period despite the fact that the car was in warranty period and in support of his contentions he drew the attention of this Forum towards Annexure C5 (tax invoice) issued by OP No.1. Learned counsel for the complainant has further argued that the vehicle was creating problem even after changing of engine and in order to get the same defect free he again visited the service centre (Annexure C7) in the first week of September, 2015 with many defects which were got removed by the Op No.1. Thereafter the car again went out of order in the month of February, 2016 as it developed problem because ignition shaft/crank shaft of the car had stopped working, therefore, the complainant again brought the car to the service centre and the crank shaft of the same was also replaced after few weeks of replacement of engine as the crank shaft is the part of the engine and regarding this he had sent emails (Annexure C8) to the customer care of the Ops which was duly replied by customer care of OP (Annexure C9) but despite the Ops did provide satisfactory service  as the car again went out of order and he again brought the same to the service centre in the month of May, 2016 but due to mistake on the part of Op No.1 short circuit occurred in the wiring of the car and the Op No.1 opened each and every part of the same without the consent of the complainant, therefore, due to this unscrupulous and irresponsible behavior the complainant left the same to the OP No.1 because the Ops have failed to rectify the defect in the same as it went out of order time and again due to manufacturing defect in the vehicle, therefore, the complainant had to purchase new vehicle by spending a sum of Rs.6,28,752/- (Annexure C12). The act and conduct clearly proves deficiency and unfair trade practice on their part of OPs.

9.                     On the other hand learned counsels for the OPs have argued that there is no manufacturing defect in the vehicle and the vehicle is still lying ready roadworthy with OP No.1 but the complainant did not turn up to collect the same despite sending many letters. It has been further argued that the engine and crank shaft were replaced as the complainant had used the vehicle extensively because at the time of replacement of engine the car had run 35389 kms and even most of the times the vehicle was brought the service centre for routine service. It has been further argued that the vehicle was delivered after replacement of necessary materials to the complainant upto his satisfaction and in support of this the attention of this Forum was drawn towards Annexure R3 duly signed by the complainant. It has been further argued that the complainant was provided courtesy car on 05.05.2015 till the delivery of his car after repairing on 31.05.2015 (Annexure R4).  Learned counsel for the OPs have further argued that after replacement of the necessary/defective parts there was no complaint regarding non working of the same as it had travelled upto 75000 kms till 25.05.2016 but thereafter the complainant did not come for collecting the despite issuance of many emails (Annexure R11 to Annexure R13).  It has been further argued that there is no expert evidence on the case to show that there was manufacturing defect in the vehicle and no compliance of Section 13 (1) (c) of Consumer Protection Act has been made, therefore, it cannot be said the vehicle was having manufacturing defect.

10.                               The complainant had purchased the vehicle in question from the Op No.1 on 16.06.2014 and  till 25.05.2016 (when the complainant left the vehicle with Op No.1 for repair work) he had to visit time and again to the Op No.1 for pointing out the problems/defects in running of the said vehicle being faced by him. The complainant had purchased the car in question by spending huge amount but  it is strange the engine of the same was replaced within one year of its purchase during warranty period. Though the OPs have tried to cover up this by raising a plea that the complainant had used the vehicle extensively but it cannot set them free from any liability. Moreover, this stand taken by the Ops is contrary to the version taken by the OP Nos. 2 & 3 in their reply wherein it has been claimed that the car was having impeccable features with high safety standards for trouble free and safe driving. Undisputedly, the engine and shaft crank of the vehicle were replaced after receiving nominal charging from the complainant but it must be borne in mind that this must have caused harassment, mental agony, anger, anguish,  frustration and sadness on the part of the person,  who  had  bought  a very new car. As per literature, crankshaft is an engine component that coverts the linear motion of the piston into rotary motion. The crankshaft is the main rotating component of an engine and is commonly made of ductile iron and it is a system that coverts linear energy into rotational energy. It is worthwhile to mention here that the service centre/ manufacturer are duty bound to provide after sale service but in the present case it appears that the Ops have violated the provisions of Consumer Protection Act by not providing service after selling the vehicle as it went out of order number of times firstly within warranty period and then during the extended warranty period. It was the duty of the service centre to get the vehicle trouble free after repairs but in the present case it appears that the vehicle continued to give problems after replacement of the engine and crank shaft which shows that the vehicle was of sub-standard quality and has failed to fulfill the purpose for which the complainant had purchased the same. On this point reliance can be taken from case law titled as III (2014) CPJ 130 (NC)  Harpreet Motors Private Limited, National Insurance Co. Limited V. Dr.Prithipal Singh Bhandari & Ors.  DOD 26.05.2014 - wherein it has been held by Hon’ble national Commission that  Once the vehicle had been sent to petitioner for repairs, it was their duty to carry out all necessary repairs in one go and give vehicle back in perfect running condition-Vehicle continued to give problems even after delivery of vehicle had been given to  complainant after charging sum of Rs.2,78,500/-.   It is pertinent to mention here that the service centre and manufacturer are not suppose to earn profit from the customers and they cannot be permitted to defeat the benevolent provisions of the Consumer Protection Act because after sale of the product it remains their duty to redress the grievance of the customer but in the present case the appearing Ops have failed to do so. On this point reliance can be given from case law titled as Nishad Nagesh Kulkarni Versus Sony India Pvt. Ltd. & ors. I (2016) CPJ 584 (NC).  

11.                               The OPs have specifically taken a plea that there is no compliance of Section 13 (1) (c) of Consumer Protection Act as there is no expert report on the case file to show that the vehicle was having inherent defect in it.  No doubt in the present case there is no expert report on the case file but it is strange when the soul (engine) of the vehicle has been replaced within a period of one year and further the shaft/cramp of the vehicle was changed after four months of the replacement of the engine then there is no need to call any expert report because visiting of complainant to the OP No.1 service centre time and again is enough to reach at the conclusion that there was manufacturing defect in the vehicle and the OP No.1 has also failed to satisfy the complainant. Moreover, Section 13 (1) (c) is wee bit unfavourable to the consumers and the consumers cannot be equated with manufacturer/service centre. Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like manufacturer/service centre, to get the expert appointed with the permission of this Forum to prove that the car does not suffer from any manufacturing defect. In the present the Ops have even not bothered to produce their own Experts who are always available at their beck before this Forum to prove that the car was not suffering from any defect. It was open for the OPs to move an application for getting the vehicle examined through expert but it has not been done so. However, Hon’ble National Commission in case titled as Scooters India Limited & Anr. Vs. Madhabananda Mohanty & Ors II (2005) CPJ 136 (NC)  has held that it is not always necessary for the consumer to give expert testimony though if he does so, it will add to the weight of the evidence. However, it must be shown that the use of the vehicle has been substantially impaired on account of the defect. In view of the law laid down in the aforesaid cases, it is not necessary to file the expert evidence in order to come to the conclusion whether the vehicle in question having the manufacturing defect. As per service record placed on the file by the OPs it is clear that there were many defects in the vehicle and the same were removed/rectified as and when the complainant brought the car to the OP No.1 and the parts thereof were also replaced. Though the Op No.1 sent many emails to the complainant to collect the vehicle but when the complainant has lost faith in the product of the OPs then this Forum also cannot even force to the complainant to take the vehicle and even the Ops also cannot take the benefit of the same because there is no surety that the same would not went out of order again.  We should not forget that the complainant had to visit the service station time and again for no fault of his which stands adequately proved. The complainant had purchased the vehicle on 16.06.2014 after spending a huge amount of Rs.9,98,000/- and the extended warranty of the vehicle was upto 2018. 

12.                        The Op No.1 has come with the plea that the vehicle is ready to deliver since 26.05.2016 and this fact has been duly intimated to the complainant but he did not come forward to receive the vehicle in question, therefore, no fault lies with it. This plea is not tenable because due to the defects in the vehicle in question the complainant has to visit the service centre time and again and when he did not satisfy with the work and conduct of the Ops as well as performance of the vehicle then under compelling circumstances he had to purchase a new vehicle which is evident through Annexure C12 (Invoice certificate dated 31.05.2016). It is clear from the photographs Annexure C9 and CD Annexure C10 that the many parts of the vehicle were opened and when the complainant had visited OP No.1 to bring back the vehicle after service then OP No.1 took the plea that due to wiring problem the parts of the vehicle had to be opened. It is strange when the engine and crankshaft were replaced then what was the reason to open the parts of the vehicle again which clearly shows that the vehicle was having inherent defect in the same and was not in a position to ply on the road. The case laws titled as Hindustan Motors Ltd. and another Vs. N.Siva Kumar and another 2001 (2) CPC 334 and Tata Engg. & Locomotive Co.Ltd. & Anr. Vs. Niravbhai  III (2017) CPJ 468 (NC) relied upon by learned counsel for the Op No.1 are not applicable to the case in hand because the complainant has specifically mentioned about the blunder done by it at the time of servicing of the vehicle and this fact has not been rebutted.

13.                               Keeping in view the facts and circumstances, we are of the confirmed view that the complainant has been able to prove his case by leading cogent and reliable evidence. It is strange that that manufacturer of the vehicle have specifically stressed about the impeccable features in the vehicle but when the vehicle in question has become defective within a short period then it marks question on the features as well as performance of the vehicle, therefore, we do not find it fit to deduct any depreciation on account of using of the vehicle because in a regular intervals the complainant visited the service centre for repairing of the vehicle.  The vehicle is still lying with the service centre but when the complainant is not satisfied with the performance of the vehicle and fed up with the services of the Ops, then question of returning the vehicle to complainant by the Op No.1 would be un-justice to him and would contrary to the benevolent provisions of the Consumer Protection Act. Since the complainant has purchased new vehicle and the vehicle which was already lying with the authorized service centre Op No.1 is of no use for him, therefore, we have no option but to refund the cost of the car in question. In the present case, the complainant also claimed the compensation on account of mental agony and harassment, wastage of the precious time and money and other sufferings  amounting to Rs. 3,00,000/-. Needless to mention that the complainant has paid the amount of Rs. 9,98,000 for the purchase of the vehicle in order to enjoy its fruit in the journey but during the period of the two years, it was taken to the service station so many times during the service period the opposite parties have replaced the engine and further crankshaft  of the vehicle inspite of the replacement of the abovesaid  features, the vehicle in question remained in defective condition. Taking into consideration, the entire facts and circumstances of the case, we quantify amount of compensation for mental agony, harassment and sheer suffering Rs.50,000/-. Accordingly, we allow the present complaint with costs which is assessed at Rs.10,000/- to be paid by the OPs jointly and severally. The Ops are further directed as under:

1. To pay a sum of Rs. 9,98,000/- cost of the vehicle to the complainant within a period of 30 days on receiving the copy of this order failing which the amount would carry simple interest @ 9% per annum for default period till actual realization subject to completion of formalities such as change of registration certificate in the name of OPs or any person as per their wish.  

Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

Announced on: 08.12.2017                                                            (D.N.ARORA)

                                                                                                  PRESIDENT

 

              (ANAMIKA GUPTA)

                                                                                        MEMBER

 

 

                                                                                    (PUSHPENDER KUMAR)

                                                                                                MEMBER