Chandigarh

StateCommission

CC/183/2019

Anuj Gupta - Complainant(s)

Versus

Volkswagen Chandigarh, M/s Lally Motors India Pvt. ltd. - Opp.Party(s)

Ankur Gupta Adv.

28 Feb 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint No.	:	183 of 2019
Date of Institution	:	26.08.2019
Date of Decision	:	28.02.2022

 

 

Anuj Gupta son of Late Sh. Mukesh Kumar Gupta resident of H.no.120, Sector 9, Panchkula.

…..Complainant

Versus

1. Volkswagen Chandigarh, M/s Lally Motors India Pvt. Ltd., Plot No.72, Industrial Area, Phase-1, Chandigarh.
2. M/s Volkswagen Group Sales India Pvt. Ltd., 4^th Floor, B-Wing, Silver Utopia, Cardinal Gracious Road, Chakala, Andheri (East).

…….Opposite Parties.

 

Complaint under Section 17 of Consumer Protection Act, 1986.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MRS. PADMA PANDEY, MEMBER.

                   MR. RAJESH K. ARYA, MEMBER.

 

Argued by: (Through Video Conferencing):

 

Sh. Ankur Gupta, Advocate for the complainant.

Sh. Devinder Kumar, Advocate for opposite party No.1.

Sh. Manish Jain, Advocate for opposite party No.2.

 

PER  RAJESH  K.  ARYA, MEMBER

                   The complainant has filed this complaint alleging that manufacturing defect in vehicle i.e. Volkswagen Vento 1.5 AT-TDI Highline, Regd. No.HR-03-X-0092, manufactured by opposite party No.2 (M/s Volkswagen Group Sales India Pvt. Ltd.), purchased from the then authorized dealer M/s Swami Automotives Pvt. Ltd. (erstwhile dealer) for Rs.11,88,900/- (including taxes) on 18.09.2015. The vehicle was insured from United India Insurance Co. Ltd. for the period from 18.09.2015 to 17.09.2016. It is the case of the complainant that after two months of its purchase, the said vehicle started giving problems with regard to breaks, engine, software and gear shifting. The said vehicle was taken to the workshop for the first time at 8564 KMs for first scheduled service on 21.11.2015, thereafter on 15.04.2016 when brake pads were replaced. Second scheduled service was done on 23.05.2016 at 30,123- KMs, when issues with the steering wheel of the car was rectified. However, complainant was assured at the time f delivery of car from service that all is well with the car and all it needed was some lubrication, which was done and there would be no problems in future vide invoice dated 24.05.2016. Unfortunately, to the utter shock of the complainant, on 01.08.2016, there was serious problem with the engine and gearbox of the car. It stopped by giving jerks when put in Driving Mode at 44,917 KMs. The erstwhile dealer, in a malafide and fraudulent manner, attributed the sudden happening to flooding in the rainy season to be the cause. Invoices dated 8.9.2016 & 12.9.2016 have been annexed as Annexure C-7 colly. Subsequently also, the vehicle was taken to the workshop on numerous occasions vide Invoices dated 13.12.2016, 01.03.2017, 9.6.2017, 14.6.2017, 27.06.2017, 31.7.2017, 19.12.2017, 02.05.2018 and 06.08.2018 (Annexures C-8 colly. to C-12 colly.) with similar problem of jerk feeling with gear shifting and engine issues like  engine heating, engine oil leakage apart from other related issues such as software problem etc. Again on 24.09.2018, when faced similar problems, the complainant wrote email dated 24.09.2018, Annexure C-13,  27.09.2018, 01.10.2018 & 03.2018, Annexure C-14 colly. It has been stated that vide email dated 3.10.2018, Annexure C-15, Opposite party No.2 intimated that technical team recommended replacement in mechatronics of the car. Thereafter vide Invoice dated 13.10.2018, Annexure C-18, opposite party No.1 replaced the Dual Clutch and Mechatron of the car. It has been further stated that vide email dated 13.10.2018, the complainant informed that he would take the delivery of the car in question only when those issues as stated in email dated 24.09.2018 are addressed to his satisfaction. The complainant took the delivery of the car under protest on 23.10.2018. On 13.02.2019, the complainant again faced same problem in the car when it broke down complete while travelling to Solan and did not start. IT was taken to opposite party No.1 by hiring a recovery vehicle. Vide email dated 15.02.2019, Annexure C-22, opposite party No.1 sought permission to dismantle the engine from the complainant as the breakdown was due to same persistent problems of gear shifting and abnormal noise in the engine. Thereafter, for carrying out necessary repairs, estimated bill for Rs.2,88,675/- was raised, Annexure C-23.

2.                It has further been stated that the exhaustive nature of repairs establishes that the recurring problems are in the nature of manufacturing defect, which have now paralysed the car and compelling the vehicle owner to pay the exorbitant amount towards repair of manufacturing defect. It has further been stated that as per Annexure C-24, reply dated 15.10.2018, opposite party No.2 assured that the problems would be resolved but the said assurances have not been fulfilled. It has further been stated that the complainant himself had to run from pillar to post to get the entire service and repair records. It has further been stated that the vehicle has been parked with the opposite party No.1 for over 300 days, which has caused immense inconvenience both mentally and financially to the complainant as he had to arrange for alternate mode of transport. Alleging aforesaid acts as deficiency in rendering service on the part of the opposite parties, the complainant through this complaint has sought replacement of the vehicle or in alternative refund its cost i.e. Rs.12,86,110/-; refund of expenses incurred to bring the vehicle for repairs i.e. Rs.48,000/-; cost of repairs charged by opposite party No.1 to the tune of Rs.60,002/-; damages towards mental agony & harassment of Rs.3 Lakhs; expenses incurred in use of alternative mode of transport to the tune of Rs.10,50,000/- and Rs.2 Lakh towards litigation expenses besides interest @12% p.a. on the amount from the date of purchase till the date of actual payment. 

3.                Opposite Party No.1 (Volkswagen Chandigarh, Lally Motors (I) Pvt. Ltd.), in its reply, while taking certain preliminary objections as regards the relationship of the opposite parties on principal to principal basis; the dispute being civil in nature be tried before Civil Court; the complaint being bad for mis-joinder of parties, have pleaded on merits that the vehicle, in question, was repaired by M/s Swami Automobiles Pvt. Ltd. and only the said dealer can give proper reply; that opposite party No.1 is authorized dealer of opposite party No.2 from April, 2017. It has further been pleaded that as and when, the vehicle was brought to opposite party No.1, it was repaired to the satisfaction of the complainant, as per satisfaction notes dated 09.06.2017, Annexure R-1/1, 14.06.2017, Annexure R-1/4, 23.08.2017, Annexure R-1/7, 13.10.2018, Annexure R-1/9. It has further been pleaded that the vehicle remained for 43 days with M/s Swami  Automotive Pvt. Ltd. from 1.8.2016 to 12.09.2016, then for 24 days from 31.7.2017 to 23.08.2017. It has further been pleaded that the vehicle remained for 173 days with opposite party No.1 for the period from 14.02.2019 till date, as the complainant is not ready to bear the cost of repair and on his own left the vehicle in its workshop. Rest of the allegations have been denied. Pleading no deficiency in rendering service and unfair trade practice on its part, opposite party No.1 has prayed for dismissal of complaint.

4.                Opposite party No.2, in its reply, being the manufacturer of the vehicle, while taking certain preliminary objections as regards territorial jurisdiction of this Commission; the complaint is bad for misjoinder of necessary parties i.e. the erstwhile dealer - Swami Automotive Pvt. Ltd.; that the car purchased is for commercial purpose & hence, complainant cannot take disguise as a consumer; has pleaded that the responsibility of opposite party No.2 is limited for repairs and replacement of parts in the car purchased by the complainant under warranty. It has further been stated that the complainant after being satisfied with the specification and features had purchased the car at his own volition. It has further been stated that as and when the vehicle was taken to the erstwhile dealer - Swami Automotive Pvt. Ltd. and then, thereafter, to opposite party No.1, for necessary repairs etc., it was attended to properly to the entire satisfaction of the complainant vide satisfaction notes dated 06.7.2017, Annexure -C, 13.07.2018,   Annexure-D, 31.07.2017, Annexure-E, 18.12.2018, Annexure-F, 06.08.2018, Annexure-H and 05.01.2019, Annexure-J. Moreover, opposite party No.2 has supported the case of opposite party No.1 in its reply. Rest of the allegations have been denied. Pleading no deficiency in rendering service and unfair trade practice on its part, opposite party No.1 has prayed for dismissal of complaint.

5.                The parties led evidence in support of their cases.

6.                We have heard the Counsel for the parties and have gone through the record of the case and the written arguments, very carefully.

7.                Before proceeding further, we will first dispose of Miscellaneous Application bearing No. of 2020 filed by opposite party No.2 – (M/s Volkswagen Group Sales India Pvt. Ltd.) for change of its name in the memorandum of parties pursuant of its merger with its other group entities. It has been stated in the application that the Volkswagen group has merged all three Indian entities, thereby the name of newly merged Legal entity is SKODA AUTO Volkswagen India Pvt. Ltd. It has further been stated that the new legal entity as its registered office address at E-1, MIDC Industrial Area, Phase III, Village Nigoje, Mhalunge Kharabwadi Chakan, Taluka: Khed, Pune 410501. It has further been stated that for the purpose of issuance of any further communication, notice, order copy etc., this Commission may take a note that there is no change of address and the address of opposite party No.2 is same as per case title of the complaint i.e. Mumbai Office: Silver Utopia, 4^th Floor, Cardinal Gracious Road, Chakala, Andheri (East), Mumbai – 400099.

8.                With regard to the contentions made in the application, it may be stated here no doubt, after merger, the newly merged Legal Entity is SKODA AUTO Volkswagen India Pvt. Ltd. but the fact is that this complaint has been filed before the above said merger, which happened on 05.10.2019, as per copy of merger order dated 05.09.2019 annexed with the application as Annexure – A. At the time of filing the complaint or say before merger, it was M/s Volkswagen Group Sales India Pvt. Ltd., the manufacturer, which the complainant has duly impleaded as opposite party No.2. However, after merger, the address of opposite party No.2, for communication of any orders/notices of opposite party No.2, is the same as already mentioned in the memorandum of parties. In our opinion, merger does not debar or put an embargo on any company (like opposite party No.2 in the instant case), to make compliance of any direction/order passed by any Court of Law. After merger and prior thereto, the new entity i.e. SKODA AUTO Volkswagen India Pvt. Ltd. is equally liable and responsible for the acts of omission and commission done by opposite party No.2 (M/s Volkswagen Group Sales India Pvt. Ltd.). The application stands disposed of accordingly.

9.                As regards the objection raised by opposite party No.1 that relationship of the opposite parties is on principal to principal basis, it may be stated here that a principal-to-principal arrangement is advantageous because it holds the dealer solely responsible for his dealings with the buyers. However, this principle does not apply in the instant case because the complainant is alleging manufacturing defect in the vehicle, which could not be rectified despite numerous repairs and replacements of engine parts. Hence, the objection raised is rejected being devoid of any substances.

10.              The next objection raised that the dispute being civil in nature is triable before Civil Court also lacks merit as it is a simple case of alleged manufacturing defect in the vehicle, which can be settled on the basis of material and documentary evidence on record.

11.              As regards the complaint being bad for mis-joinder of parties, it may be stated here that the complainant has leveled allegations of manufacturing defect in the vehicle and replacement of major engine parts on the pretext of opposite party No.2 (Manufacturer) by opposite party no.1, its dealer. Therefore, the objection raised for mis-joinder of erstwhile dealer i.e. M/s Swami Automotives Pvt. Ltd., who also tried its level best to repair the vehicle and from whom the vehicle was purchased, is bereft of any merit.

12.           The next objection raised is that the complainant is not a consumer as he purchased the vehicle for commercial use. In this regard, it may be stated here that there is nothing on record to show that the said vehicle was being plied as a taxi.  Per Retail Invoice, Annexure C-1, it was purchased in the name of the complainant, Sh. Anuj Gupta. Hence, the objection raised is rejected being unsustainable in the eyes of law.  

13.              The factum of purchase of the vehicle from the erstwhile dealer i.e. M/s Swami Automotives Pvt. Ltd. (erstwhile dealer) for Rs.11,88,900/- and then taking it to the erstwhile dealer and subsequently, to opposite party No.1 (Volkswagen Chandigarh, M/s Lally Motors India Pvt. Ltd.) for defects and necessary repairs are admitted on record. The question before this Commission, whether the vehicle, in question, from the date of its purchase, was having manufacturing defect or not, for which, it was taken to the erstwhile dealer and opposite party No.1 for repairs? Per record, it is established that from day one of its purchase i.e. 18.09.2015, the vehicle was taken to the erstwhile dealer i.e. M/s Swami Automotives Pvt. Ltd. and to opposite party No.1 (Volkswagen Chandigarh, M/s Lally Motors India Pvt. Ltd.) numerous times, as is proved from the Invoices placed on record by the complainant as Annexure C-4 to C12 colly., pertaining to the period from 21.11.2015 to 06.08.2018. Per Job sheet dated 08.09.2016, Annexure  C-7 colly., at Page 50, windscreen was replaced. On 13.12.2016, Annexure C-8 colly, there was problems of “all gear shift is late and miss some time” as is clear from invoice at Page 54. Similar was the problem of gear not shifting was reported on 01.03.2017 (Page55). On 14.06.2017,  again problem of “check gar shifting not working” was reported (Page 58). On 27.06.2017, the vehicle did not start, for which it was brought to opposite party No.1 for “check vehicle does not start” (Page 59). Thereafter, “abnormal noise coming from the engine side while starting pick by local rsa” was report on 31.07.2017 (Annexure C-1, Page 60). Vehicle was repaired and Invoice/Bill for Rs.44,855/- was raised (Page 61). Again on 19.12.2017, the vehicle was reported for “Stop warning blink in cluster meter”, “Abnormality feel in gear shifting” & “coolant leak under body check” (Annexure C-11 colly, Page 62). Vehicle was repair was handed over to the complainant, and Bills of Rs.56,311/- (Page 63) and Rs.11,006/- (Page 66) were raised. On 02.05.2018, the vehicle was again reported for “VEHICLE OVERHEATING NEED TO BE CHECK”, “AIR NOT COMES FROM MIDDLE AC VENT” (Annexure C-12, Page 67),  and after repairs, Bill of Rs.19,962/- (Page 68) was raised. Again, there was “ENGINE OIL LEAKAGE NEED TO BE CHECK”, for which the vehicle was reported to the workshop on 06.08.2018 (Page 70) qua which, Bill of Rs.2,500/- was raised.  Consequent to above position, vide email dated 3.10.2018, Annexure C-15 (Page 79), Opposite party No.2 intimated that technical team recommended replacement in mechatronics of the car and subsequently, vide Invoice dated 13.10.2018, Annexure C-18, opposite party No.1 replaced the Dual Clutch and Mechatron of the car. The said email dated 03.10.2018, Annexure C-15, being relevant, is extracted here-in-below:-

“Dear Mr. Gupta,

Greetings!

Technical team has recommended to replace Mechatronics for the vehicle.

We are awaiting Mechatronics and will convey as it is received.

Regards

Amit Rattan”

 

14.              It is noteworthy that vide email dated 20.10.2018, Annexure C-21 (Page 87), agitated the matter before the opposite parties whereby, he reiterated his grievances and further intimated that he is being pressurized by the Company to take the delivery of the vehicle. He reiterated his prayer for replacement of vehicle with same model in case the defect occurs again and reimburse the expenditure borne by him due to the manufacturing defect i.e. repair expenses, expenses borne by him towards his transportation as the car remained in the agency due to the manufacturing defect and other external expenses like crane/towing expenses etc. Next document is email dated 15.02.2019, Annexure C-22 (Page 88), whereby the Service Manager of Volkswagen Chandigarh informed the complainant that on initial diagnosis, it was found that the Self Starter is not working, engine oil quantity is very less and engine not cranking and for further diagnosis and estimate, they need to dismantle the engine, for which, approval of the complainant was sought and for carry out necessary repairs, estimated bill for Rs.2,88,675.86 was raised, Annexure C-23 (Pages 89-91). This all goes to show the high-headedness of the opposite parties that despite numerous and major repairs in the vehicle relating to engine parts and gearbox etc., they kept on insisting the complainant to receive the said defective vehicle despite knowing the fact that the said defect is again reoccurring again and again. Thus, from the above repair record, it cannot be ruled out that the vehicle is suffering from an inherent manufacturing defect in it. Therefore, raising an estimate of Rs.2,88,675.86 for such defect, being manufacturing defects, is an act of unfair trade practice which further burdens the complainant financially for no fault on his part.

15.              It is important to mention here that this Commission vide order dated 22.04.2021 also requested Director of Punjab Engineering College, Chandigarh to give directions to the concerned wing to check whether the vehicle, in question, is having any manufacturing defect or not. Since the vehicle was stranded in the premises of opposite party No.1 and they had dismantled the same and couldn't be moved, this Commission on an application moved by the complainant bearing No.415 of 2021, vide order dated 02.07.2021 allowed the complainant to take the vehicle in dismantled condition in a recovery van or in any other vehicle or by any means to Punjab Engineering College, Chandigarh. However, opposite party No.1 was directed to deploy their technical person on the vehicle, in question, who would remain there at the time of inspection. Opposite party No.2 was also directed to ensure transportation of the dismantled vehicle to the premises of Punjab Engineering College, Chandigarh. Opposite party No.2 was further directed to seek prior confirmation from the Punjab Engineering College, Chandigarh with regard to the date and time of inspection, on which date, the parties were to remain present there. Inspection Report was directed to be filed (in a sealed envelope) by Punjab Engineering College, Chandigarh within a period of 45 days from the date of passing of order. However, fee for carrying out inspection  was ordered to be borne by the parties, in equal share, as already determined by this Commission in order dated 22.04.2021.

16.              The committee of experts of Mechanical Engineering Department, Punjab Engineering College (Deemed University), Chandigarh, comprising of Prof. S. K. Mangal, Professor & Head, Prof. Ankit Yadav, Assistant Professor,  and Sh. Gopal Dass, W.I, gave its report expert opinion/report dated 23.08.2021, which this Commission received on 24.08.2021. The said report, being relevant, reads thus:-

“In Reference to Memo No.PEC/MED/815 dated 23.07.2021 on the subject cited above, the vehicle in question was brought before the committee for inspection on 06.08.2021 at 12.00 Noon in the Mechanical Engineering Department of the Institute by Sh. Vikram Kumar Sharma, Service Manager, VW Chandigarh (Lally Moors Ind Pvt Ltd.), Sh. Sharad Mishra, Technical Manager Volkswagen-Skoda Group Support and Sh. Dalwinder Singh, Master Technician, VW Chandigarh (Lally Motors Ind Pvt. Ltd.), Sh. Anuj Gupta, the Complainant, was present during the inspection. The vehicle having registered no.HR03X0092, Chassis No.MEXH15609GT028822 was presented for inspection.

          After going through the material available on record and inspection, the committee is of the opinion that the vehicle in question is having problems since the purchase of the vehicle. The service provider was not able to rectify it timely and completely, which in turn caused the failure of the vehicle. So the same may be attributed to a manufacturing defect.”

17.              To the aforesaid report, both opposite party No.1 and opposite party No.2 filed their replies/objections, wherein, it has been stated that the said committee does not has the requisite power authority and competence in law to conduct examination and give its finding/report. It has further been stated in the reply that the said technical opinion given by the said university/external committee has no sanctity of law and or any legal binding force. It has further been stated that the technical opinion nowhere mentions about the equipments/tools used by the External Committee to arrive at the conclusions stated in their expert report and hence, the expert report cannot be said to be exhaustive. It has further been stated that the expert report clearly lacks conviction as the said committee has used the term “may”, which clearly shows that the said expert committee was not sure about the findings given and hence, the said report cannot be relied upon at all. It has further been stated that the vehicle was in a dismantled condition and the expert committee has failed to mention the same in its expert report and has failed to mention the parts they have inspected. It has further been stated that the expert report also does not deal with the part which may be defective. It has further been stated that the expert opinion is based on theoretical analysis and hence, cannot be construed to be correct factually.

18.              We are not accepting the contention of the opposite parties that expert committee does not has the requisite power, authority and competence in law to conduct examination and give its finding/report. It is our specific orders passed by this Commission that the said committee examined the vehicle and gave its report. Though the expert committee did not refer to the condition of the vehicle with regard to its in dismantled condition yet the fact is that it was very much in the knowledge of the parties and this Commission that the vehicle was in dismantled condition, when it was examined by the expert committee under orders of this Commission. So, we are unable to understand, what benefit opposite party No.2 could take out of it. Rather, the vehicle, in question, lying in dismantled condition in the premises of opposite party No.1 give a very shocking picture of the vehicle. Therefore, the contention raised that the expert report did not point out the part which may be defective, is without any merit and substance. Looking at the provisions of Section 13(1)(c) of Consumer Protection Act, 1986, the expert/technical opinion given by the expert Committee has full sanctity in the eyes of law and also a legal binding force. It is also very significant to mention here that the aforesaid report has been given by the experts, who are qualified mechanical engineers, headed by Head of Mechanical Engineering Department, Punjab Engineering College, who are certainly having an in-depth knowledge about the working of the automobiles. In the absence of any other technical/expert report to the contrary, it would be unfair to say that this report should not be relied upon, while taking a decision in this manner. We would also like to mention that it is not a thumb rule that an expert committee is not expected to give each and every detail in the expert report. An expert report is always a report based on both analytical and practical analysis of the members of the expert committee, who are experts/masters of their field, meaning thereby that the said report should be a concise statement of the facts and assumptions used by the Expert and his analysis followed by the Expert's opinion. The Expert is required to include a summary of the instructions he has received in whatever form they have been given. In the instant case, the expert report is very much clear on facts and expertise/experience at the end of the expert committee, which, in no manner, can be doubted. In our considered opinion, the onus that there was manufacturing defects in the vehicle also stands proved by the complainant through the report aforesaid submitted by Punjab Engineering College. It is cardinal principle of law that ordinarily, the burden of proving the fact rests on the party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is distinction between the phrase burden of proof and onus of proof. Explaining the said distinction, in A. Raghavamma & Anr. Vs. A. Chenchamma & Anr. AIR 1964 SC 136, a three-Judge Bench of the Hon'ble Supreme Court held that there is essential distinction between burden of proof and onus of proof: burden of proof lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts.  Such a shifting of onus is a continuous process in the evaluation of evidence.

19.           In the present case,  since the case of the complainant that the vehicle in question is suffering from manufacturing defect has been proved from the expert report aforesaid meaning thereby he has been able to prove deficiency in providing service on the part of the opposite parties, then the onus would shift on to the opposite parties to discharge the onus to prove their denial, by placing on record some cogent and convincing evidence to the contrary, which they have miserably failed to do so.  Manufacturing defect as per P. Ramanatha Aiyars Advanced Law Lexion, 3RD Edition, Volume 3, 2005, defines to mean as:-

“An unintended aspect of finished product due to error or omission in assembly or manufacture, that causes injury.

BusinessDictionary.com defines it to mean:-

Frailty or shortcoming in a product resulting from a departure from its design specifications during production”.

The manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. Manufacturing defect is a fundamental basic defect which creeps while manufacturing machinery. In our considered opinion, no prudent person will like to drive a vehicle and that too a new one, which uses to shutdown in between and giving other multiple problems relating to engine, gearbox, software etc. etc., while driving, as the same can be the cause or a contributing factor to an accident. The job-sheets and the invoices placed on record by the complainant, running from Annexure C-4 to C-12 colly. are evidence, which goes in favour of the complainant and prove inherent manufacturing defect in his vehicle, which the opposite parties are unable to rectify on various occasions. Therefore, we can safely say that the said defects being inherent manufacturing defects could not be rectified by the opposite parties despite making attempts to do so and as such, are beyond repairs. It is settled proposition that Consumer Protection Act is a benevolent social legislation and is aimed to provide better protection of the interests of the consumers as defined in the preamble to the Act itself. Whenever a brand-new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from, any kind of fault or imperfection or shortcoming in the quality, potency and standard which is required to be maintained. Whenever a consumer goes for purchase of a brand-new goods like vehicle in this case, his expectation is that he would not encounter or face any inconvenience or hardships from the very beginning. If he has to take the vehicle time and again to the workshop for removing one defect or the other, he suffers immensely in terms of loss of time, business, physical discomfort and emotional suffering, having not reaped the fruits of paying hard earned money for purchase of a new vehicle. One can imagine the plight of the complainant, who purchased a costly brand-new vehicle for his comfort but on the other hand, it became a headache for him, as defects occurred therein, within a few months of its purchase. In C.N. Anantharam  Vs. M/s. Fiat India Ltd & Ors 2010 STPL (CL) 1802 SC,  the Hon’ble Supreme Court ordered to replace the defective vehicle with a new one or to refund of the vehicle, which had inherent manufacturing defects.  In Bhopal Motors Pvt.Ltd. Vs. Saudan Singh & Anr  II (2008) CPJ 174 , the Hon’ble National Commission held that if manufacturing defect in the vehicle is proved, the dealer is liable either to replace the vehicle or to pay its costs. Therefore, by floating such a vehicle having manufacturing defect in the market, which was purchased by the complainant and those defects could not be rectified despite umpteen number of repairs, the opposite parties indulged into deficiency in rendering service and unfair trade practices.

20.              In the present case, we are of considered view that the interests of the complainant can be protected only if he is provided with the relief of refund of amount paid along-with interest and compensation. However, it is important to add here that since admittedly, the vehicle in question stood used by the complainant for quite a long time, though with defects, as such, we are of the considered view that if the benefit of 25% depreciation on the total amount paid is ordered to be given to the opposite parties, that will meet the ends of justice.

21.              For the reasons recorded above, this complaint is partly accepted with costs, in the following manner:-

(i)       Opposite party No.2 is directed to refund the amount of Rs.8,91,675/- (Rs.11,88,900/- minus (-) Rs.2,97,225/- i.e.25% depreciation on the total cost)  received from the complainant towards purchase of the vehicle in question vide invoice dated 18.09.2015, Annexure C-1 along with interest @9% p.a. from 18.09.2015 onwards within a period of 30 days, from the date of receipt of a certified copy of this order, failing which it shall be liable to pay penal interest @12% p.a. on the said amount from the date of passing of this order till realization.

(ii)      Opposite parties no.1 and 2, jointly and severally, shall pay compensation to the tune of Rs.50,000/- to the complainant for causing him mental agony and harassment and also deficiency in providing service and also to pay cost of litigation to the tune of Rs.25,000/- within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amounts shall carry penal interest @9% p.a. from the date of passing of this order till realization.

(iii)    The complainant is directed to hand over possession of the vehicle in question to opposite party no.2 on receipt of the decretal amount and in case, the vehicle is still stationary in the workshop of opposite party No.1, then it (opposite party No.1) shall do the needful.

22.              Certified Copies of this order be sent to the parties, free of charge.

23.              The file be consigned to Record Room, after completion.

Pronounced.

28.02.2022.

(RAJ SHEKHAR ATTRI)

       PRESIDENT

 

(PADMA PANDEY)

       MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

Ad