Date of Filing:24/03/2011
Date of Order:07/06/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 7th DAY OF JUNE 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
COMPLAINT NO. 591 OF 2011
M/s. Meghana Corporates (Pvt) Ltd.,
A Company incorporated under the
Provisions of the Companies Act 1956
Having its registered Office at:
No.80, “Sricharana”, 5th Cross,
10th “C” Main, 1st Block, Jayanagar,
Bangalore-560 011.
Rep. by its Managing Director,
Mr. K. Nanjundeshwara. …. Complainant.
V/s
(1) M/s. Vinayak Cars (P) Ltd.,
A Company incorporated under the
Provisions of the Companies Act 1956,
Having its registered Office at:
Ground Floor, J.P. Corporation No.219/11,
Bellary Road, Sadashivanagar Palace Grounds,
Bangalore.
Rep. by its Managing Director.
(2) M/s. Skoda Auto India Pvt. Ltd.,
Plot No.A1/1, Shendra Five Star
Industrial Area, MIDC,
Aurangabad-431 201.
Rep. by its Managing Director. …. Opposite Parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay Rs.10,31,296/- with interest at the rate of 18% per annum, are necessary:-
The opposite party No.2 is the manufacturer of “SKODA” Brand cars and opposite party No.1 is its dealer and giving service. On 21.01.2008 lured by the advertisement of the opposite parties the complainant visited the showroom of the opposite party No.1 and as per the assurance of the opposite party No.2, he was impressed with “SKODA Fabia Ambientee 1.4 TDI Model” car and on 24.01.2008 he purchased the said car by paying Rs.8,76,057/-. The said car was covered with a warranty for two years i.e., up to 23.01.2010. The opposite parties agreed to provide free service on 06.10.2008, 22.04.2009, 04.11.2009 and 01.02.2010. Within one year from the date of purchase the car developed “rattling noise in dashboard doors and seats; Mal-functioning of Air Condition (blowing hot and cold air); electrical system malfunctioning; battery failure due to faulty electrical systems (the battery had to be replaced within five months of purchase); and repeated warning from instrument clusters and indications viz., (i) ABC, (ii) Brake Systems (iii) Glow Plug Systems and (iv) Power Steering hardening, etc.,. The complainant has to reach every time when he found the defect to the opposite party No.1. Thus he took the car to the opposite party No.1 on nearly 25 occasions including the free services and had incurred another sum of Rs.98,983/-. The opposite party who gave fabulous assurance at the time of purchase are now speaking in a different voice making sarcastic remarks against the vehicle. “Same with all Fabia”, “Common complaint with all Fabia”. The complainant has sent mails to the opposite parties. The opposite parties thus sold the defective car to the complainant. It has come to the knowledge of the complainant that several complaints has been received by the opposite parties from the owners of this model of the car. Because of the dis-satisfaction the complainant issued notice to the opposite parties on 14.06.2010. In spite of that they have not paid the amount. Hence the complainant is entitled to the value of the car Rs.7,33,296/-, the expenses incurred in getting the service from time to time Rs.98,000/- and damages towards mental agony Rs.2,00,000/-. Hence the complaint.
2. In this case the opposite party No.1 though served remained absent throughout the proceedings. In brief the version of the opposite party No.2 are:-
Opposite party No.2 is the manufacturer of the SKODA car, opposite party No.1 is its dealer and service provider. The complainant purchased the car bearing registration No.KA-04-ME-8736 on 24.01.2008 with the warranty for two years are all admitted. This opposite party unconditionally expressed its willingness to get the car subjected to examination by or otherwise seek assistance of an expert in terms provided for Under Section 13(1)(c) of the CP Act. The complainant is not a consumer within the purview of the Consumer Protection Act. There is link between the purchase of the car and profit making activity of the complainant, it has been purchased for business purpose and not for personal use. It has been purchased in the name of the company and not in the personal name of any of the director. In the books of the accounts of the complainant’s company it claimed depreciation, claimed fuel expenses, drivers’ salary and maintenance for the car from the company and now it cannot take disguise as a consumer and mislead this forum. Because of the car income tax liability is reduced and the same is directly proportional to the amount of “business expenses” claimed. There is direct nexus between the purchase of the car and profit making activity of the company. The car in question has travelled more than 58259 kilometers till 07.04.2011 from the date of purchase. Thus it is evident that there is no any manufacturing defect. If the car had any such defect it would not have run such a long kilometers. As there is no manufacturing defects there is no cause as against opposite party No.1. It is the complainant out of his own will visited the showroom selected the car of his own choice and purchased the car in question. The staff of the opposite party No.1 did not assure the complainant anything regarding the alleged rattling noise in the dashboard doors and seats. The vehicle had been brought to the workshop on 06.11.2008, on that day the blower was replaced under warranty, free of cost. The dashboard was removed and re-fixed and the door adjustment was done. The vehicle is absolutely functioning as per the standards of SKODA. It cannot be termed as any defect. The rattling noise can arise due to various factors like presence of external objects put in the car, improper closure of doors, road conditions, sporty driving, etc.,. Regarding the air-conditioner, it was first reported on 24.04.2009 at the time of second free service. On inspection it was found that the fuse needed to be replaced and it was replaced, it was functioning properly. It cannot be a defect. On 24.06.2009 when the vehicle was brought, it was found that air-conditioner was functioning properly and not as claimed by the complainant. A road test was taken and the complainant was satisfied. Regarding this for the third time on 17.08.2009 the vehicle was brought. The VAS scanning was done and it was found that in the vehicle the air-conditioner was functioning properly. The complainant took it satisfactorily. Regarding this for the fourth time the vehicle was brought on 29.12.2009. At that time the AC filter was cleaned and for the concern of the dash board noise the blower motor was removed and refixed. The complainant took delivery of the vehicle satisfactorily. On the fifth occasion on 03.05.2010 as per the request of the complainant the AC was checked it was found functioning properly. On the sixth occasion on 21.04.2010 regarding the same the vehicle was brought the VAS scanning was done and the concern was duly rectified. For the seventh time on 16.06.2010 the vehicle was brought, the AC gas was removed and re-filled and the scanning was done and no fault was found and AC was functioning properly. Regarding this on the eighth occasion on 01.09.2010 the vehicle was brought, the AC was replaced and found the concern to be resolved. For the AC the last visit was on 26.10.2010 and the AC control unit was removed and refixed. The AC had no defect and it was explained to the complainant. The opposite party is ready to get the vehicle examined by an independent expert. Regarding electrical system malfunctioning, it was brought to the opposite party stating that the power steering is not working sometimes, check brakes and ABS malfunctioning and check sometimes all cluster lights getting off. In this regard on 08.02.2010 it was brought to the opposite party and the electrical unit was replaced under goodwill warranty by offering 50% discount, even when the vehicle was not in the warranty period regarding that re-failure due to the fault of electrical system, the vehicle had a brake down in December-2009 and during this period the battery was replaced. During May-2010 due to battery acid leakage the positive cable was damaged. Hence it was replaced under chargeable basis and the battery was replaced under warranty. Regarding repeated warning from instrument clusters and indications it was brought to the opposite party on 29.01.2010 and all the faults were checked and erased. The vehicle was brought to the opposite party again on 08.02.2010 which was carried out as per the technical guidelines and the electrical unit was replaced under goodwill warranty (50%). The vehicle was brought again on 22.02.2010. At that time the earthing was cleaned and the VAS scanning was made and all the problems were resolved. It was brought again for the same purpose on 03.03.2010 the faults were rectified. Again it was brought to the opposite party on 21.04.2010, the VAS scanning was done and the vehicle was functioning properly. It was brought to the opposite party on 05.05.2010 it was checked, due to battery acid leakage positive cable was damaged and it was replaced. The car when ever brought to the workshop with a concern, was attended, diagnosed and as per the standards of the opposite party it has been repaired and the parts have been replaced. The complaint given by the complainant orally and by e-mail has been addressed. The complainant had paid Rs.98,983/- in a span of two years but most of the amount is in respect of consumables and cost in respect of services like labour cost for cleaning, checking, etc.,. All the allegations to the contrary are denied.
3. To substantiate their respective cases parties have filed their respective affidavits, the complainant had filed the documents. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is deficiency in service?
- Whether the complainant is a consumer?
- What Order?
5. Our findings are:-
Point (A to C) : As per the final Order
for the following:-
-:REASONS:-
Point “A”:-
6. Reading the pleadings in conjunction with the affidavits and documents on record it is an admitted fact that the opposite party No.2 is the manufacturer of SKODA cars to which opposite party No.1 is the dealer and service provider. It is also an admitted fact that the car “SKODA FABIA Ambinete” 1.4 TDi bearing registration No. KA-04-ME-8736 is manufactured by the opposite party No.2 was purchased by the complainant through opposite party No.1 on 24.01.2008 for Rs.8,76,057/-. It is also an admitted fact that the said vehicle had a warranty for two years which expires on 23.01.2010. It is also an admitted fact that as per the terms and conditions between the parties the opposite party had to provided free services on 06.10.2008, 22.04.2009, 04.11.2009 and 01.02.2010.
7. The complainant had stated that within one year from the date of purchase the vehicle had inumerable problems as stated in Annexure-1 to the complaint and he had taken the vehicle to the opposite party on nearly 25 occasions and it had several problems which are manufacturing defects. The opposite party No.2 contended that the complainant had not brought the vehicle for 25 times but he had brought the vehicle and the defects have been attended to. The opposite party No.2 states in the version that the complainant has brought the vehicle for general repairs and the complainant had brought the vehicle for repairs apart from free services he had brought the vehicle on 06.11.2008, 24.04.2009, 24.06.2009, 17.08.2009, 29.12.2009, 29.01.2010, 08.02.2010, 22.02.2010, 03.03.2010, 21.04.2010, May-2010, 05.05.2010, 16.06.2010, 01.09.2010, 21.09.2010, 26.10.2010 that is for 16 times. The opposite party admits the payment of Rs.98,983/- regarding servicing, repairs, replacement of parts, being received from the complainant.
8. Now let us probe further in the matter in this regard. The complainant has stated in Annexure-1 to the complaint that on 16.10.2008 he had taken the vehicle to the opposite party regarding rattling problems of dash board/seats. On that day the opposite party collected Rs.2,431/- towards consumables and Rs.1,091/- towards service charges, thus in all Rs.3,522/-. This is fully corroborated by receipt No.16630, dated: 06.10.2008 issued by the opposite party. This service has been done under job-card No.10182. Regarding this the opposite party has not whispered any word. This is within one year from the date of purchase of the vehicle.
9. The complainant has stated regarding this rattling sound he had taken the vehicle thrice to the opposite party before the first service and the opposite party had stated that this will be rectified in the first service. There is no per contra material produced by the opposite party. The opposite party No.2 is the dealer of the opposite party No.1. The opposite party No.1 could have obtained the necessary documents from the opposite party No.2 and would have produced it, but that has not been done. Hence an adverse inference had to be drawn against the opposite parties as rightly contended. That means even before the first free service, even before one year this problem had occurred and the opposite party had also collected money for servicing the same. What is the meaning of warranty? Then what is the meaning of free services? Even before the first free service this is the problem with the vehicle it was noticed by the complainant and for that on the ground of consumable the opposite party had charged and also for servicing. That is to say that it is an unfair trade practice committed by the opposite parties.
10. Further the complainant had taken the vehicle to the opposite party on 04/05-11-2008 under Job-card No.11687 repairs for dash board removal and reinstallation, blower replacement, door adjustment, head light focus and for body wash. This has been established by the Job-card and corroborated by the bills. This has not been specifically denied by the opposite parties nor challenged by the opposite parties, nor any record in this regard has been produced by the opposite parties. That means within one year from the date of purchase of the vehicle the vehicle had been taken for dash board removal and reinstallation, blower replacement, doors adjustment, head light focus. How this could happened? There is no answer.
11. The complainant has stated that he had taken the vehicle for repairs to the opposite parties on 11.11.2008 though it has not been challenged by the opposite party; the complainant has not produced any record in this regard. But stated in Annexure-1 that the records are missing. Hence we cannot say that on 11.11.2008 the vehicle had been taken to the opposite parties for repairs.
12. Further it is seen that under job-card No.14155, dated: 18/27-12-2008 the vehicle had an accident in the sense when the complainant was in the process of parking a boulder has hit it. As a result the Blower fan has to be replaced and protective and the opposite party has charged Rs.9,638.33 paise and Rs.142.56 paise as warranty replacement. That is Rs.9,374/- in all. Even at that time the vehicle had rattling noise, dash board noise, blower replacement has been made. That means within one year from the date of purchase this blower has to be replaced twice and there is rattling noise coming from the dash board thorough the doors, seats how? There is no answer.
13. Further on 19.12.2008 the opposite party have issued a quality report where it is clearly stated that while checking for noise, in AC blower fan found noise from the AC blower fan loudly when in circulation mode switch on taken trial by changing AC blower fan and found the problem solved; and it has clearly stated that AC blower mother has to be replaced. That means within one year the vehicle had this problem and the problem which has been attended by replacing it.
14. Further it is seen that on 15.01.2009 under job-card No.15100 the horn has been replaced, head light focused and the complainant has paid Rs.2,506.73 paise for horn fab. How this could happen unless the vehicle had an manufacturing defects that too within one year.
15. On 03/04-02-2009 the vehicle was taken to the opposite party under job card No.15890 wherein the vehicle had breakdown at some place and it was found that smokes from the engine was coming and there was rattling of doors. The helpline van came and found that there was leakage of AC oil. The opposite party changed certain minor parts and charged Rs.2,215/- as labour charges. How the vehicle would eminate smoke from the engine? and how can it be rattling of the doors that too within a year from the date of purchase of the vehicle. There is no answer.
16. Further it is seen that on 26/30-03-2009 under job card No.18547 and the receipts there under the vehicle was taken to the opposite party for dash board noise, rattling of the left door noise, seats noise, wiper problem, running board sticker. The opposite party has charged Rs.1,207/- and stated that during trial run it is satisfactory and the complainant had to report after seven days. If there were no problems in the vehicle how can the vehicle got repaired and opposite party could charge Rs.1,207/- and how can the opposite party say that the vehicle had to be repaired again after seven days! this itself shows that the vehicle is having problem right from the day of purchase.
17. Further it is seen that on 22/24-04-2009 under job-card No.19761 for the second free service the vehicle was taken. The opposite party had collected Rs.8,136/- did some work with fuse replacement, did something with wiper and its service.
18. Further it is seen that on 24.06.2009 the vehicle was taken to the opposite party under job-card No.19761 for dash board noise, AC malfunctioning (blow hot and cold) at that time the blower motor was adjusted. How this could happen almost about an year after purchase of the vehicle? There is no answer.
19. Again on 24.06.2009 almost two months after the previous repair the vehicle has been taken to the opposite parties under Job card No.19761 there was dash board noise, AC was not functioning properly, the blower motor was adjusted.
20. Again the vehicle was taken to the opposite party on 17.08.2009 under job-card No.19761 for malfunctioning of the AC because it was blowing hot and cold and for general check-up the opposite parties had collected Rs.441/-. How this AC is giving problem again and again? There is no answer.
21. Further it is seen the vehicle has been taken to the opposite party on 04.11.2009 under job-card No.32619 for third free service. Wherein the opposite party has collected Rs.15,100/- in all stating that the filter element, aero-wiper, fuel filter, consumable, wind screen washer and lead weight, etc., has been replaced and collected Rs.12,210.38 in all. How this could happen? What is the meaning of third free service? There is no answer.
22. Further it is seen that on 14.12.2009 under job-card No.35041 within two years the vehicle had been taken to the opposite party on the ground that the vehicle did not start. The helpline was called and the battery was replaced and the opposite parties charged Rs.8,388/- for battery and labour charges is Rs.772/-.
23. Further it is seen that on 29/31-12-2009 under job-card No.35849, the vehicle had been taken to the opposite parties regarding the dash board noise, failure of head light switch, malfunctioning of the AC. The opposite parties done blower assembly reaffixed on that day.
24. Further it is seen that on 04/11-01-2010 under job-card No.36060 because of the accident the vehicle was taken to the opposite parties; door tinkering work was done, mirror replaced; bumper was painted and the opposite parties charged Rs.11,947/- for this.
25. Further it is seen that on 28/01-01-2010 under job-card No.37012 there was problems with the vehicle i.e., glow plug warning lights, ABS lights cluster, exhaust circulation light, blower noise, malfunctioning of AC (blowing hot and cold air); and this has been attended too. The opposite parties has collected Rs.544/- for this.
26. Within four days thereafter on 08/12-02-2010 under job-card No.35252 the vehicle was taken to the opposite parties where ABS and brake cluster warnings were not functioning and steering hard and some time locking. This was attended too.
27. Further it is seen that on 22/26-02-2010 under job-card No.38189 it was taken to the opposite parties regarding the problem with the ABS and hand Brake cluster warning; head light not working; dickey not functioning properly and this was attended too.
28. Again it is seen that on 03/05-03-2010 under job-card No.38679 the vehicle was taken to the opposite parties regarding continued problems of ABS/ Brake/Handbrake cluster warnings; Air Condition Noise; Head light focusing; dickey malfunctioning. This was attended to by collecting Rs.1,458/-.
29. Further it is seen that on 21/22-04-2010 the vehicle was taken to the opposite parties under job-card No.40927 regarding ABS/Brake/glowing cluster/warnings; Malfunctioning of AC-blow of hot and cold; this was attended to by collecting Rs.400/-. The opposite parties has also collected Rs.9,465/- on 22.04.2010 for repair of the vehicle. How this could happen again and again? There is no answer.
30. Further it is seen that on 05/11-05-2010 under job-card No.41564 there was a breakdown of the vehicle there was continuous warnings from ABS/brake clusters; there was starting problem. It was taken to the opposite parties by pick-up and delivered. At that time new battery was replaced on 14.12.2009 within five months and again it was replaced and charged the amount of Rs.8,570/-.
31. Further it is seen that on 16.06.2010 under job-card No.43850 the vehicle had been taken to the opposite parties regarding smoke from engine, door noise AC malfunctioning, monsoon check; This was attended too by the opposite parties. Regarding this certain amounts were collected.
32. Further it is seen that on 03/10-07-2010 under job-card No.444720 the vehicle has been taken to the opposite parties regarding ABS/brake warnings; AC malfunctioning problem. The opposite parties had collected Rs.51/- and attended to the same.
33. Further it is seen that on 30.08.2010 / 02.09.2010 under job-card No.47582 the vehicle has been taken to the opposite parties regarding AC malfunctioning; power window problem. This was attended too and the opposite parties collected Rs.13,405/- towards spares and labour charges.
34. Further it is seen that on 01/02-09-2010 under job-card No.48091 the vehicle had been taken to the opposite parties regarding same problems. This was attended to by collecting Rs.10,770/- from the complainant; that is fourth free service.
35. Further it is seen that on 26.10.2010 / 03.11.2010 under job-card No.50342 the vehicle had been taken to the opposite parties regarding AC stopped functioning; continued warnings from ABS and Brake and steering becoming harder. The opposite parties collected Rs.14,739/- and attended the said repairs.
36. That means the opposite parties had collected Rs.98,983/- in all from the complainant in a span of one year 10 months from the date of purchase of the vehicle for the purpose of repairs, labour charges and a like. Unless there is manufacturing defect how can this happen? All these matter are fully corroborated by the e-mails exchanged between the parties and letters exchanged between the parties between 12.10.2008 and 03.11.2010. It is also stated in Annexure-II and the documents. None of this things are challenged by the opposite parties.
37. The opposite party No.2 has admitted in its version and affidavit on 06.11.2008 the vehicle has been repaired by it and the blower was replaced. Why the opposite party has not produced the documents with respect to this service or job-card and any other documents which are available with it. The opposite parties has admitted that on 24.04.2009, 24.06.2009, 17.08.2009, 29.12.2009, 03.03.2010, 21.04.2010, 01.09.2010, 21.09.2010, 26.10.2010 the vehicle had been brought to it for AC malfunctioning and it has stated that it has attended to. Why the concerned job-card and the alleged materials, alleged documents were not produced by the opposite parties? This itself clearly goes to show that on eight occasions that too within one year five months from the date of purchase of the vehicle it had problems, sometimes more spare parts has been replaced, this itself clearly goes to show that the entire mechanism of the vehicle was wrong it has manufacturing defect.
38. Further it is seen that on 08.02.2010 and in May-2010 the vehicle had been brought to the opposite parties. According to the opposite parties for electrical problems which has replaced certain parts taking money from the complainant within one year from the date of purchase of the vehicle had electrical problems. Within one year two months the vehicle had several problems! how could that happen? There is no answer.
39. Further the opposite parties admits that regarding ABS, braking system, blower noise and AC malfunctioning, steering hard, the vehicle has been brought to it on 29.01.2010, 08.02.2010, 22.02.2010, 03.03.2010, 21.04.2010, and 05.05.2010. This itself clearly goes to show that, the vehicle had several manufacturing defects within 27 days from the date of purchase of the vehicle. Whether it is within warranty or after warranty; how could the vehicle develop these problems? There is no answer.
40. That means within a gap of two years the vehicle had been taken to the opposite parties for repairs more than 25 times and the opposite parties has charged Rs.98,983/- for repair and service charges. This clearly goes to show that the vehicle had manufacturing defects. How can a new car develop all these things that too within a year from the date of purchase. Taking the vehicle for large number of time for repairs within two years itself proves that the vehicle had manufacturing defects. This view is fully corroborated by IV (2007) CPJ1 (NC), III (2008) CPJ 107, III (2008) CPJ 17 (NC), III (2008) CPJ 32 (NC), II (2008) CPJ 468, II (2008) CPJ 308, IV (2008) CPJ 369, IV (2008) CPJ 130, III (2004) CPJ 637, I (2006) CPJ 196. Discussing or quoting elaborately judgment of Higher Courts is prohibited by law in the regulation No.18(5) of the Consumer Protection Regulation 2005. Quoting these judgments will only bulk and bulge the records. This is also with respect to the litigation in the (2008) CPJ 111 (NC) and in SLP(c) 21178-21180 of 2009 by the Apex Court dated: 24.11.2010 in a case between Sri. C.N. Anantharam –V/s- Fiat India Limited and Another cited by learned counsel for the opposite party.
41. The contention of the opposite party No.2 is that they have no objection to get the vehicle examined by any expert and they are ready for it. If the opposite parties had any iota of truth regarding this they should have made an application seeking appointment of an expert at the cost of the opposite parties, got it examined and given the report, but that has not been done. The voluminous records produced by the complainant establishes that the vehicle had the manufacturing defect. These records are the records of the opposite parties; per contra opposite parties never produced even a scrap of paper to substantiate their claim. Even the job-cards and other allied records which are available with the opposite parties are not produced. Hence an adverse inference has to be drawn against the opposite parties in this regard. What prevented the opposite parties from seeking appointment of an expert to give their opinion? There is no answer.
42. The opposite party itself is the manufacturer of the car therefore they themselves are the expert; the opposite party would have get the car examined by their expert regarding the allegations made by the complainant in annexure-1 and 2 by the complainant along with their records and taken his opinion and produce it before this forum. Even that has also not been done. Hence an adverse inference has to be drawn against the opposite parties. Thus it lies ill on the mouth of the opposite parties to say that they are ready to get any expert appointed in this case. Nobody has sought the permission of the forum or intervention of the forum for the appointment of any expert. Under these circumstances there is no necessity that is required for appointment of an expert as rightly contended.
43. The other contention is that the vehicle had run for about 58,000 kilometers in a span of these two years, which nullifies the contention of the complainant that the vehicle had any manufacturing defects. This is an untenable contention. We are in India. A person marrying another person, without knowing that the other person is nagging, the person pulls on for some time for a year, two or three and when it becomes untolerable then the person goes to the court and not otherwise. The same thing happened in this case. The vehicle has been purchased by the complainant, weighted for two years pulled on the vehicle for 58000 kilometers, it does not mean that the vehicle had no manufacturing defects. The problems are still existing. It is seen that regarding the same model of SKODA Fabia car Jyoti Madan and 30 others had given complaint to the opposite party and have agitated as seen from the internet downloads produced by the complainant. None of these things have been challenged by the opposite parties. That means this model of the SKODA Fabia car is having manufacturing defect; it is not the one car but almost all the cars of the same model. Hence we hold the above points accordingly.
POINT No. B:-
44. The complainant is the company represented by its director. The company has purchased the car. The company has shown according to the opposite parties, that it is not in the name of the director and the driver’s expenses, depreciation, fuel expenses, maintenance are all claimed by the company, hence the complainant is not a consumer. This is an untenable contention. The opposite parties have not produced any scrap of paper to show that the complainant had claimed tax deductions regarding the car in question in the books of account. Even otherwise with the car the complainant is not doing any business. The opposite parties never stated for what commercial activities the car has been used or it being used by the complainant. The Director is using the car it does not mean the car has been purchased for the commercial purpose. Merely the car is purchased by the company it does not mean that it is for commercial purpose. Merely a company purchases the car and company’s personnel used it, it does not mean it is for commercial purpose. The complainant has not purchased the car for selling it or getting profit from the car. Even the opposite parties have not stated how the car is being used as commercial purpose. Hence we hold the above points accordingly.
POINT ‘C’ :-
45. Here the complainant has used the vehicle for two years and has spent about Rs.98,983/- for repairs and services. The complainant had paid Rs.7,33,296/- as per prayer column (a). The complainant has used the car for two and half years. It cannot be ordered to be paid the entire amount back. He seeks Rs.2,00,000/- towards mental agony and hardship but the car is still with the complainant. The complainant is also not seeking replacement of the car. Further it is seen from the complaints of Jyoti Madan and 30 others that the said model of cars has manufacturing defect. Hence if we order replacing another car of the same model the car with same defects will be given. Considering the depreciation of the vehicle as under the Income Tax Act it is 15% per annum; Under the own use vehicle it is 20% reducible as under the marketing system. Hence if we take 18% per annum as a depreciation value then the value comes to Rs.4,04,305.36 paise. This we may round it off to Rs.4,04,400/-. And considering the usage of the vehicle and the mental agony suffered if we direct the opposite parties to pay Rs.4,50,000/- to the complainant along with the cost of this litigation and ordering the complainant to surrender the car to the opposite parties we think that will meet the ends of justice. Hence we hold the above points accordingly and proceed to pass the following:-
-: ORDER:-
- The Complaint is Allowed-in-part.
- The opposite parties shall pay Rs.4,50,000/- to the complainant within 30 days from the date of this order. On receipt of the amount the complainant shall surrender the Skoda car bearing registration No.KA-04-ME-8736 to the opposite parties within three days from the date of receipt of the amount.
- The opposite parties are also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
- Both the parties are also directed to submit the compliance report to this Forum with necessary documents within 45 days.
- The opposite parties shall send the amount as ordered above in Serial Nos. 2 and 3 by way of D.D. to the complainant through registered post acknowledgment due.
- Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
- Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 7th Day of June 2011)
MEMBER PRESIDENT
