Date of Filing:13/01/2018

Date of Order:31/08/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated:31^ST DAY OF AUGUST 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.66/2017

Vs

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT:

1.     This is the Complaintfiled by the ComplainantU/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service and to repair the vehicle/car bearing Registration NO. KA 04 MP 1778 at the cost of the O.P company or alternative replace the new vehicle and deliver the same to the complainant and to pay a sum of Rs.2,00,000/- as damages towards the mental agony, harassment suffered by the complainant and other reliefs as this Forum deems fit.

2.     The brief facts of the complaint are that,1^st O.P is the Manufacturer and 2^nd O.P is involved in sale of the cars manufactured by O.P.No.1 and O.P.No.3 is its service center. Complainant purchased a car manufactured by O.P.No.1 for Rs.11,15,742/- the car named as VENTO DIESEL High line, registered with the authorities having registration No. KA 04 MP 1778 on 20.10.2014 and got the delivery on 23.10.2014 with warranty registration form duly signed and delivered.  On completion of the covering of required number of Kms. The car was left to O.P.No.3 for service on 16.07.2015 and on 17.7.2016.  The car had not met with any accident, when such being the case on 16.10.2016 when he was travelling from Chickmagalur to Bengaluru near Belur the engine of the vehicle completely stopped and could not be started immediately she informed O.P.No.3 who arranged for towing the vehicle from Belur to Hesaraghatta i.e. Service center of O.Ps on 17.10.2016. The senior service advisor of O.P.No.3 detected the problem and found that there is a fault in the coolant leakage from coolant tank of the vehicle. He estimated the cost of repair as Rs.8,20,564/- on 10.11.2016. The husband of the complainant did not accept the cost of the said repair and further inform that he is not liable to pay the same since is a major problem arisen within the period of warranty and hence requested O.Ps to get the same repaired free of cost. In this connection she had written letter to O.P.No.2 and 3 on 12.11.2016. 

3.     Further O.P.no.3 informed that the replacement of engine under warranty is not considered since due to external factor of coolant oil leakage from oil cooler has unnoticed.  Her husband requested O.Ps to furnish the reasons for rejection of the free repair. Complainant has not committed any default including the maintenance of the vehicle. Merely because leakage of coolant either the engine or any other part of the mechanism do not fail unless there is a manufacturing defect. The act of O.Ps in not getting the vehicle repaired under warranty period free of cost amounts to deficiency in service.  O.Ps are acting in a detrimental way to escape their obligation and liability under the warranty.  A duty is caste on O.ps to attend to the major problem by replacing the engine or the car itself. The demand of the O.ps for repair charges is illegal contrary to the terms and conditions of the warranty.

4.     O.p.No.1 being the manufacturer a reputed company in India did not stick on to the terms and conditions.  O.Ps are jointly and severally liable to get the vehicle repaired. In this connection he has issued legal notice dated 3.12.2016 demanding O.Ps to either repair the vehicle free of cost or replace the same with a new vehicle within 10 days and also to pay damages of Rs.2,00,000/- for the mental sufferance.  Then said notice was served on O.P.No.2 and 3 whereas the one sent to O.p.No.1 returned unserved.  Again for the 2^nd time the legal notice was sent to  O.P.No.1 which was served on it. Inspite of it no reply has been given nor they have complied with a demand.  There are large number of complaints against the Ops regarding the manufacturing defect of the car produced by O.P.No.1.Hence the complaint.

5.     Upon the service O.ps appeared through their counsel by engaging their advocate.  O.P.No.1 and O.P.No.2 & 3 have filed separate versions.

6.     In the version O.P.No.1 has admitted that it is a registered company engaged in manufacturing of cars and the complainant purchasing the car. It is further contended that O.P.No.1 is situated outside the territorial jurisdiction of this Forum and hence this Forum has no authority to decide the case.  The complaint is frivolous, vexatious and filed with mala-fide intention to enrich unjustly which is liable to be dismissed under Section 26 of the C.P. Act by imposing heavy cost.  The allegations made are exaggerated and mischievous has made baseless allegation regarding manufacturing defect and of causing deficiency in service which is absolutely false. Its responsibility is limited to repair and replacement of parts in the car purchased covered under warranty subject to the terms and conditions which are not absolute.  No case of replacement of car repair of the car free of cost, compensation for mental harassment has been made by the complainant. Volkswagen is a reputed company dealing in manufacturing selling and servicing the cars. For the first time after sale complainant’s car reported to the workshop of O.P.No.3 on 15.7.2015 after covering a distance of 15594 kms, first service was also done with the service provider and handed over to the complainant on 17.07.2015. 

7.     The car was reported to O.P.No.3 on 17.10.2016 for issue relating to coolant leakage from coolent tank. They got the report from the dealer that on inspecting the vehicle which was found that the vehicle was not starting and there was coolant leakage in oil cooler as oil cooler gasket was found to be damaged and on  further inspection and diagnosis which was found the compression in the cylinder were weak as per the oral approval by the complainant the dealer dismantle the engine and found that all parts including oil cooler, thermostat, CKP and CMP sensors oil sump and block were found to be over heated and melted, wiring was also found to be damaged.  The cause of the said damage was due the consequence of over driving without noticing the coolant leakage by the complainant.  The same was intimated to the complainant and estimate cost of repair of Rs.7,63,639/ was intimated.

8.     It is further contended that, complainant/driver ought to have stopped the vehicle and bound to seek assistance of the service center immediately on seeing the red warning lamp.  24 hours road side assistance on all the seven days have been provided.  The same was known to the complainant and has utilize the facility after failure of the car due to misuse.  The driver of the car kept on driving the car even after the leakage of coolant. Hence absolutely it is a gross negligence and carelessness of the driver which is clear violation of the conditions of the warranty which disentitles the complainant the benefits under warranty. 

9.     OP No.1 further stated that, the car is repairable and the dealer has given estimate for repair.  If the same is on the higher side the complainant can chose to get it repaired and avail the insurance claim for the total loss of the car.  It has admitted receipt of the legal notice and denied all the other allegations contending that there is no deficiency on their part, there is no mechanical defect and manufacturing defect in the vehicle and prayed the forum to dismiss the complaint. It has produced the new vehicle terms and conditions of warranty coverage.

10.   On the other hand O.P.No.2 and 3 filed their version, contending that, O.P.No.3 has a renouned service center and having an excellent workshop setup and providing after sale service to the cars and utility vehicles having qualified and experienced personnel.  It has further contended that the complainant has by suppressing the material facts has filed this complaint making vague, baseless, misconceived allegation with an intend to enrich herself. This complaint do not fall under the C.P. Act.  The car has been used extensively for commercial use. It has covered 36000 kms within a span of 2 years on an average of 1500 p/m. this speaks about extensive use of car for business purpose, hence this Forum has no authority to decide the case. Complainant has neglected to follow the guidelines given in the owners manual for the smooth and maximum performance of the car she has neglected dos and don’ts in respect of the maintenance.  The warranty offered on the car is subject to terms and conditions mentioned therein. The car purchased by the complainant is of the highest quality.   It was delivered after inspection.  

11.   There is no expert opinion produced to prove the allegation of manufacturing defect. Considering the usage of the car by the complainant it is to be held that it was roadworthy condition and was attended in respect of minor and running repair. O.P.No.3 is prompt in attending the requirement of the car, hence replacement of the car or refund of price of the car is not acceptable. Complainant is bound to abide by the conditions of the contract and denied the allegations made in the complaint parawise. The warranty and extended warranty are issued strictly in accordance with the terms and conditions mentioned in the booklet. The vehicle was left for service as mandated.  The car reported to the workshop on 16.7.2017 in respect of coolant leakage and coolant tank. It was found after diagnosis that there was leakage of the coolant tank, oil cooler gasket found to be damaged, compression of the cylinder weak and on the approval of the complainant the engine was opened.  And it was found that oil cooler, thermostat, CKP, CMP, sensors oil sump and block found to be over heated and melted, wiring found to be damage. The reason for the same is driving of the vehicle without noticing the leakage of the oil. The driver ought to have stopped the vehicle and sought for road assistance. Which is clear violation of the warranty. The complainant can obtain insurance from the insurance company and that he will facilitate the same and it is also prerogative of the complainant to claim the damages.  O.P is in the service industry and or not manufacturers. The allegations made against O.p.No.3 is unfounded misplaced and a claverstratagy chosen the tarnish the image of O.P.No.3. mere apprehension cannot be treated as facts and evidence. The vehicle suffered damage due to leakage of coolant which will be indicated in the dash board cluster. Immediately the driver of the vehicle ought to have stopped the vehicle. Since he continue to drive the vehicle the vehicle got damaged.   Complainant has made reckless allegation against it. They have a professional mechanic and dedicated persons to attend the job. Without any basis, the complainant has come to the conclusion that there is manufacturing defect.  Replacing of the vehicle or in the alternative for paying the cost is not permissible under the warranty and hence all these ground prays to dismiss the complaint.

12.   In order to substantiate his case, the complainant examined himself as PW-1 and produced receipt for paid the transportation charge of the Rs.12,555/-, packing list, copy of the legal notice and the postal acknowledgment letter and emails. Heard the arguments. The following points arise for our consideration:-

                   (1)   Whether the complainant has proved the

deficiency in service on the part of the O.P?

(2)  Whether the complainant is entitled to

the relief prayed for in the complaint?

13.   Our answers to the above points are:-

POINT 1: In the affirmative.

POINT 2: In the partly affirmative.

                for the following:

REASONS

POINT No.1:-

14.   On perusal of the pleadings of the complainant’s evidence and documents, and that of the O.Ps, it becomes clear that the complainant purchased car VENTO bearing No. KA 04 MP 1778 from the O.Ps on 23.10.2014. There is no allegation by the O.P that complainant has not stick on to the terms and conditions of the guidelines and handbook of user manual.  The only allegation made by O.Ps are that, complainant has not at all taken care of the coolant in the tank and the same was drained and inspite of it the car was made to run and i.e. why the coolant leakage in the oil cooler as oil collar gasket was found damaged. It is the specific case of the O.P that on the verbal approval of the complainant, the engine was dismantled and found all parts including oil cooler, thermostat, CKP and CMP sensors oil sump and block were found to be over heated and melted and wiring was also found to be damaged  and hence they have denied repair of the said vehicle free of cost.

15.   On the other hand it is the contention of the complainant that immediately after the car stopped at near Belur and when she tried to restart the car it did not start and She complained the same to Op.No.3 and the said vehicle was towed down to O.P.No.3’s garage and that he has not driven the vehicle as stated by the O.ps and to shrek their responsibilities and liability of repairing the vehicle free of cost, they are making false allegations that the complainant is negligent in driving the vehicle without there being the coolant in the coolant tank and thereby the engine became overheated. Except the statement of O.P there is no materials placed before this Forum to show that the complainant was negligent and driven the vehicle and thereby the engine become overheated.

16.   It is the specific case of the complainant that, the vehicle was purchased on 23.10.2014 and the problem with the arose on 16.10.2016 and the said vehicle was towed down to O.P.No.3 on 17.10.2016 and hence the car is under two years normal warranty period and O.Ps have to get the repair of the vehicle free of cost and hence when he requested them to do the same O.Ps have refused and hence he has to filed this complaint before this Forum. The warranty documents is produced by the complainant wherein, it is mentioned that +++++++++++++++++++++

17.   When this is taken into consideration the vehicle purchased is under two year normal warranty with unlimited mileage for all new vehicles. The exclusion is also mentioned the said warranty but it has not stated that the engine repair / replacement is excluded within the said period. Only labour charges are to be collected within the said period and the replaced parts will be the property of the O.Ps. In view of the non-allegation of the violation of the terms and conditions of the warranty and not producing any evidence to show that the vehicle was run without coolant and there by the engine became over heated due to which the said problems arise, we are of the opinion that the said vehicle is within the warranty period and liable to be repaired with free of cost which the O.ps have refused to do so and hence there i s violation of the terms and conditions of the warranty and there is deficiency in service on behalf of the O.Ps.

18.   Complainant has produced various news published in the newspaper regarding the defects of the vehicles manufactured by the O.Ps and also various decisions rendered by the District Forums, State Commissions and National Commission.  In view of the same the denial of the repair of the vehicle within the warranty period amounts to deficiency in service and hold Point No.1 in the Affirmative.

POINT NO.2:

19.   In view of the above O.Ps are liable to get the vehicle repaired free of cost as per the standard prescribed by them for the smooth running of the vehicle and it is liable to make the vehicle road worthy.  The act of the O.ps in not repairing the vehicle free of cost made the complainant to suffer mentally, physically and financially for which we are of the opinion that if a sum of Rs. 2,00,000/-is ordered to be paid to the complainant as damages and for delay in getting the vehicle repaired.  The denial of the O.Ps in getting the said vehicle repaired free of cost made the complainant to file this litigation by spending money, time and energy and we are of the opinion that if a sum of Rs.20,000/- is ordered towards litigation expenses will be met. Hence, we answer Point No.2 Partly in the Affirmative and pass the following:

ORDER

1. The Complaint is hereby allowed in part with cost.
2. O.P No.1 to 3 are hereby directed to get the vehicle repaired free of cost in all respect as per the standard prescribed by them for the smooth running of the vehicle on road  and to make the vehicle road worthy within 30 days from the date of this orderto the complainant, failing which O.ps are directed to replace the vehicle with a new one.
3. Further O.P 1 to 3 are hereby directed to pay a sum of Rs.2,00,000/- towards damages and Rs.20,000/- towards  cost of the litigation expenses.
4. The O.Ps are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 31^st Day of AUGUST 2018)

MEMBER                            PRESIDENT

*RAK

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Copy of the Receipt amount paid by the complainant.

Doc.No.2: Copy of the packing list issued by the O.P

Doc.No.3: Copy of legal notice dated 17.03.2016.

Doc.No.4: Copy of the mails sent by the complainant.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

- Nil -

Copies of Documents produced on behalf of Opposite Party/s

-Nil -

MEMBER                        PRESIDENT