Date of Filing: 19/05/2011
Date of Order: 16/07/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 16th DAY OF JULY 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 949 OF 2011
Mr. V. Raghavendra Deekshith,
S/o. late Sri. V.M. Deekshith,
R/at: No.4273/a/14, 20th main,
‘A’ Block, 2nd Stage, Rajajinagar,
BANGALORE-560 021.
(Rep. by Advocate Sri.Diwakara & Associates) Complainant.
-V/s-
1. M/s. Vinayak Cars Private Limited,
No.3/1, Railway Approach Road,
No.219/11, Bellary Road,
Ramamahashree Road,
Palace Arcade, Bangalore-560 080.
Rep. by its Managing Director
Mr. Suresh Bafna.
(Rep. by Advocate Sri. V.Durgaprasad)
2. M/s. Skoda Auto India Private Limited,
A-1/1, MIDC, 5-Star Industrial Area,
Shendra, Aurangabad-431201.
Rep. by its Managing Director.
(Rep. by Advocate Sri. Udwadia & Udeshi) Opposite parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite parties to pay a sum of Rs.13,59,152/-, are necessary:-
The complainant purchased Fabia Ambinte Car bearing registration No. KA-01-MF-4572 from the opposite party No.1 which is manufactured by the opposite party No.2 on 25.03.2010 by paying Rs.6,85,154/-. Before the stipulated time for first service the complainant noticed vibration emanating during idling of the engine of the car. Immediately the complainant contacted the service people of the opposite party No.1 situated at K.R. Puram on 13.12.2010 and explained the fault noticed. The said authorized service personnel assured the complainant of delivering the vehicle back within couple of days. On different enquires made by the complainant the opposite parties has addressed a letter dated: 10.01.2011 acknowledging and accepting the problem of vibration still persisting in spite of keen efforts of their engineers and expressed regrets in not being able to rectify the defects and stated that once the problem is rectified they will intimate it to the complainant. An e-mail was sent to the opposite party on 12.01.2011 to take back the vehicle and refund the amount. The opposite party No.1 expressed their inability/reluctance to do so on 12.01.2011. The complainant learnt that the service personnel’s of the opposite party No.1 are unable to rectify the problem and have coordinated their efforts with the technical team of opposite party No.2. Accordingly they had addressed a letter on 13.01.2011 to the complainant, that replacement of injector and igniter were done, yet the problem had persisted, even after replacement of the cylinder head the problem still persisted. The complainant is suffering lot and was forced to spend lot of amount for his every day travelling. Hence a notice was sent to the opposite parties on 25.01.2011, but the opposite parties have not cared to return the amount, which amounts to deficiency in service and unfair trade practice. Hence the complaint.
2(a). In this case the first opposite party engaged the services of an advocate, but he did not file any version or any affidavit evidence though several opportunities were given, though the case was adjourned on payment of costs of Rs.250/- also. When the matter was posted for evidence and arguments the counsel for the opposite party No.1 had filed the application seeking permission to file the version and filed a version along with it and stated that, he will file a Memo stating that the version may be read as his evidence. Hence the matter was kept by on 14.07.2011. Meanwhile he had taken back the version and IA also and the counsel did not turn up. Hence it means there is no version at all by the opposite party No.1.
2(b). In brief the version of the opposite party No.2 are:-
The complaint without mechanical inspection of the car bearing Registration No. KA-01-MF-4572 is not maintainable. The opposite party unconditionally willing to get the car subjected to examination by or otherwise seek assistance of an expert in terms provided Under Section 13(1)(c) of the Consumer Protection Act. The vehicle in question had travelled more than 11748 kilometers from the date of purchase which itself proves that there is no manufacturing defect. The vehicle is ready for delivery since 25.01.2011 after carrying out necessary repairs free of cost under warranty. The opposite party requested the complainant over phone on 25.01.2011 and e-mailed dated: 27.01.2011 to take delivery of the vehicle, but he refused to take delivery of the vehicle. On 13.12.2010 at the odometer reading of 11701 kilometers the complainant reported his vehicle for first free schedule maintenance service and did not notice any concern raised by the complainant. The vehicle was delivered to the complainant on the very day. All concern raised by the complainant was duly resolved. All the allegations to the contrary are denied.
3. To substantiate their respective cases the complainant and the opposite party No.2 had filed their affidavits. As stated supra the counsel for the opposite party No.1 who had filed an application and sought permission to file the version stating that his version may be read as his evidence has taken back the application along with version and did not turn up at all nor was present. Hence the complainant and opposite party No.2 were heard.
4. The points that arise for our consideration are:-
- Whether there is manufacturing defect/ deficiency in service?
- What order?
5. Our findings on the above points are:-
Point (A) & (B): As per the final order
For the following:-
REASONS
POINT (A) & (B):-
6. Reading the complaint in conjunction with the version of the opposite party No.2 the affidavits of the complainant and the opposite party No.2 it is an admitted fact that the complainant had paid Rs.6,85,154/- to the opposite party No.1 on 20.03.2010 and 25.03.2010 and purchased the new Skoda Fabia Ambinte car bearing registration No. KA-01-MF-4572. It is also an undisputed fact that on 13.12.2010 there was vibration, no pick-up and there was no mileage in the vehicle, hence it was informed to the opposite parties who sent one Shiva who collected the vehicle from the complainant. The said Shiva collected the vehicle under the pick-up and the delivery note of the first opposite party which reads thus:-
-0-0-0-
That is to say the vehicle had vibration from the engine; there was no pick-up, there was no mileage. After taking delivery of the vehicle it was not delivered back to the complainant by the first opposite party from 13.12.2010 till date. The opposite party No.2 has stated that it was delivered to the complainant on the very day. There is no document evincing the delivery of the vehicle to the complainant. But the letter produced by the opposite party No.2 states that the vehicle is ready for delivery from 25.01.2011 and it has not been taken delivery by the complainant. In this regard the opposite party No.1 has sent e-mail to the complainant on 10.01.2011 at 01:42 pm with respect to the vehicle in question. Which reads thus:-
With respect to the below mentioned concern, we would like to inform you that, in this case has been punchec technical team instruction we have replaced cylinder head and catlatck convertor. Still the problem is not solved, hence we have coordinated with Skoda technical team rectified we will intimate to you accordingly.
That means the opposite party No.1 has replaced the cylinder head and catlatic convertor still the problem is not solved. Hence they have to coordinate with the technical team of the opposite party No.2 and they will intimate the complainant accordingly. That means the vibration in the engine has not stopped even on the idle state. This is nothing but manufacturing defect.
7. Before this e-mail the opposite party No.2 was requested by the opposite party No.1 by e-mail dated: 08.01.2011 to which a reply was given by the opposite party No.2 on 09.01.2011 at 11.04 pm stating that the vibrating problem is there and the vehicle is with the dealer during 25 days and the problem may be due to cylinder. But even after change of the cylinder the problem is still continuing. That means it is a manufacturing defect. Even before, the complainant has also written to the opposite parties stating that the car is having problem in the engine and sought refund of the money, for which also there was no reply. Even otherwise on 12.01.2011 the opposite party No.1 has written to the complainant at 7:50 pm stating there is a defective engine and they are regretting for it. Further the first opposite party has sent an e-mail at 6.44 pm on that day which reads thus:-
We regret for the inconvenience caused to you.
We are sorry to inform you that as per our company policy we don’t have policy of replacing the vehicle or re
We would like to bring to your kind notice that, the vehicle was reported to the workshop on 14th of December 2010 vehicle vibration while idling, the case was entered in Direct Information of Service Skoda for the technical assistance technical team of Skoda.
As per the instruction of the technical team of Skoda the cylinder head and catalytic convertor was replaced concern was not solved.
Hence we have coordinated with Skoda technical team, the technical engineer of Skoda has been visited to and the inspection of the vehicle is going on.
Once the inspection is done and the work of the vehicle will be carried out as per the technical guidelines of. So we request you to kindly co-operate in this regard.
That means they are not able to replace the vehicle. The vehicle was referred to second opposite party’s technical team on their advice cylinder head and catalytic convertor was replaced. Even then also the problem is not solved and the technical team of the opposite party No.1 has also visited.
8. Further on 13.01.2011 at 5.38 pm an e-mail was sent to the complainant which reads thus:-
Further to the discussion had with our Asst Manager Mr. Yuvaraj we would like to inform you that, the case information of Service Skoda on 15th of December 2010 for the technical assistance from the technical team of Skoda.
As per the instruction received from technical team of Skoda on 16th dec 2010, the cylinder head and catalytic vehicle was replaced on 23rd of dec 2010 and found the concern was not solved.
Hence we have co-ordinated with Skoda technical team on the same day i.e. on 23rd of dec-2010 and we have and igniter but the problem was not solved. Then technical engineer of Skoda has been visited to our dealers 12th of Jan 2010. On his inspection it was noticed that, there is same problem in first cylinder and instructed cylinder head for further inspection.
The work of the vehicle is in progress and once the completion of the work, the status will be updated to you.
So we request you to kindly co-operate in this regard.
That is to say as per the instructions of the opposite party No.2 on 16.12.2010 the cylinder head and catalytic convertor was replaced on 23.12.2010 even then the problem is not solved.
9. Another e-mail was received from the customer care of the opposite parties by the complainant stating that the problem in the vibration is not solved hence it lies ill on the mouth of the opposite party No.2 to contend that the vehicle had no manufacturing defects.
10. The opposite party No.2 has contended that they are at liberty to get the vehicle examined by an expert. It is for the opposite party No.2 to move an application for an examination of the vehicle and submit his report to this forum. The vehicle is in possession of the opposite parties. Hence they could have get an independent expert summoned to their place examine the vehicle and submit his report. That has not been done. Hence an adverse inference has to be drawn against the opposite parties as rightly contended.
11. With respect to the same Skoda brand Fabia Ambinte car this forum has considered the manufacturing defect in the said brand of the car in extenso in Complaint No.591/2011 on 07.06.2011 and passed a detailed order. In paragraph No. 41, 42, & 43 of the said order this Forum has made out following observations:-
“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.
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.
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.
The said findings and reasoning holds good for this complaint also. The opposite parties are blowing hot and cold here. The complainant has used the car for nine months and drove for about 11,000 kilometers with great difficulty. The car in question is having manufacturing defect i.e., vibration from the engine. Replacement of the car is no use since the same model is having manufacturing defect. Hence if we direct the opposite parties to pay Rs.6,85,154/- to the complainant within a particular period and if it is not paid then if we order opposite parties to pay interest thereon that will meet the ends of justice along with the costs of the litigation.
ORDER
1. The complaint is Allowed-in-part.
2. The opposite parties are directed to pay to the complainant Rs.6,85,154/- within 30 days from the date of this order. Failing which it shall pay the said amount together with interest at the rate of 12% per annum from 13.12.2010 until payment within 60 days.
3. The opposite parties are also directed to pay to the complainant Rs.2,000/- as costs of this litigation.
4. The opposite parties are directed to send the amounts as ordered at Serial Nos.2 & 3 above through DD by registered post acknowledgment due to the complainant and submit the compliance report to this Forum with necessary documents within 45 days.
6. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
7. 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 16th Day of July 2011)
MEMBER MEMBER PRESIDENT
