Chandigarh

StateCommission

CC/159/2019

Deepak Aggarwal - Complainant(s)

Versus

Volvo Auto India Pvt. Ltd. - Opp.Party(s)

Parmod Sharma Adv.

09 Nov 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.

:

159 of 2019

Date of Institution

:

19.07.2019

Date of Decision

:

09.11.2021

 

 

Deepak Aggarwal son of Shri Vinod Aggarwal, resident of House no.209, Sector 36-A, Chandigarh.

……Complainant

 

V e r s u s

 

  1. Volvo Auto India Pvt. Ltd., Corporate Office 6th Floor, Park Centra, Sector 30, NH-8, Gurugram-122001, Haryana, through its Managing Director.

 

  1. Krishna Auto Sales, 177-E, Industrial Area, Phase 1, Chandigarh, PIN 160002, through its Managing Director.

…..Opposite parties

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS. PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present through video conferencing:                

                             Sh.Parmod Sharma, Advocate for the complainant.

                             Sh.Ankush Chowdhary, Advocate for opposite party no.1.

                             Sh.Jagvir Sharma, Advocate for opposite party no.2.

                            

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   This complaint has been filed by the complainant seeking refund of the amount paid by him to opposite party no.2 (dealer), towards purchase of the vehicle make SUV Volvo XC60 D5, bearing chassis no.YVIUZ68ACJ1084904, engine no.2479918 (manufactured by opposite party no.1), on the ground that the said vehicle suffered from manufacturing defects. It is the case of the complainant that the vehicle in question was purchased vide invoice dated 19.05.2018, Annexure C-1, yet, after few days and that too within the warranty period, it was noticed that without giving any command/indication, it turns to the left side on its own, on moderate or high speed. It has been pleaded that on account of the aforesaid manufacturing defect, on number of occasions, the said vehicle was about to hit the berm of the roads, thereby causing life threat to the complainant and general public on roads. It has been further pleaded that not only as above, other defects also occurred in the said vehicle, as a result whereof, it was taken to the workshop of the opposite parties, a number of times, yet they failed to rectify the defects therein, meaning thereby that it suffered from inherent manufacturing defects. When the grievance of the complainant was not redressed, he served legal notice dated 07.02.2019, Annexure C-2 upon the opposite parties, seeking refund of the amount paid alongwith compensation etc. but to no avail.

  1.           By stating that the aforesaid act of the opposite parties amount to negligence on their part, which has caused lot of mental agony, harassment and financial loss to the complainant,  he has claimed following relief:-

 

  1. “To take back the car and to refund the amount of Rs.69,19,428/- paid by the complainant at the time of purchasing the car along with the cost borne on its registration and insurance; and
  2. To pay a sum of Rs 5,00,000/- for the harassment suffered by the complainant; and
  3. To pay the cost of litigation.
  4. Allow photocopies/dim copies/true typed copies of Annexure C1 to C-2 to be placed on record.
  5. The Hon'ble forum may be pleased to pass any other order as deemed fit and proper in the interests of justice.”

 

  1.           Opposite party no.1 in its written reply stated that the complainant has concealed material facts from this Commission; that the complaint filed is frivolous and vexatious; that the complainant has failed to place on record any expert report/opinion to prove that the vehicle in question suffered from any  inherent manufacturing defects and unless the said onus is discharged by him, the liability of opposite party no.1 is limited to the removal of defects or replacement of defective parts of the vehicle; that the defects reported in the vehicle in question were removed, as and when, the same was taken to the workshop, during warranty period; that opposite party no.1 cannot be held responsible for any wear and tear of the vehicle in possession of the complainant; that the defects pointed out by the complainant could be the result of uneven air in the tyres or bad driving; that the defect of turning of vehicle to the left side was for the first time reported on 13.09.2019, when it had already covered 18340 kms; that alignment of the vehicle was looked into by opposite party no.2 and thereafter it had been running satisfactorily; and that otherwise during routine services, no defects were reported by the complainant.
  2.           Opposite party no.2 in its written statement also pleaded that the complainant has failed to place on record any expert report/opinion to prove that the vehicle in question suffered from any  inherent manufacturing defects; that no dates of visit to the workshop of opposite party no.2 has been mentioned by the complainant in his complaint; that it was for the first time on 01.12.2018 that the complainant brought his vehicle with the complaint of whistling sound from engine while acceleration, which was rectified after replacing the power pulse hose; that thereafter on 27.05.2019, he brought his vehicle with the complaint of malfunctioning light blinking on cluster, which was rectified after updating the software; that thereafter on 13.09.2019, he brought his vehicle with the complaint that it is pulling left hand side while driving, as result whereof, the matter was discussed with opposite party no.1; that thereafter opposite party no.1 deputed its Manager Technical and Support and Training; that the said defect was rectified where-after, the vehicle was handed over to the complainant on 19.09.2019 after test drive and to his complete satisfaction; that during the period intervening the vehicle in question was also brought for routine services and the complainant did not report any defects therein; and that thereafter the vehicle has been used by the complainant extensively and as such it cannot be expected that it has covered such a distance with manufacturing defects therein.    
  3.           On merits, the fact regarding purchase of the vehicle in question from opposite party no.2 by the complainant and that some defects were reported in the said vehicle during warranty period have not been disputed by the opposite parties. Prayer has been made to dismiss the complaint  against the opposite parties.
  4.           The contesting parties led evidence in support of their case. Written arguments were also filed by the parties, which were taken on record.
  5.           We have heard the contesting parties at length and have gone through the evidence and record of the case, including the written arguments, very carefully.
  6.           It is not in dispute that the complainant had paid an amount of Rs,58,47,900/- to opposite party no.2 (dealer), towards purchase of the vehicle in question (manufactured by opposite party no.1),  vide invoice dated 19.05.2018, Annexure C-1. It is also not disputed that within few days of purchase of the said vehicle and that too during the warranty period, it was taken to the workshop of opposite party no.2 i.e. firstly, on 01.12.2018 with the complaint of whistling sound from engine while acceleration; thereafter on 27.05.2019, with the complaint of malfunctioning light blinking on cluster, which was rectified after updating the software; and thereafter on 13.09.2019 (during pendency of this complaint), with the complaint that it is pulling left hand side while driving. It is coming out from the record that the defect of whistling sound from engine while acceleration, was rectified after replacing the power pulse hose and malfunctioning light blinking on cluster, was rectified after updating the software.
  7.           However, the present complaint has been filed by the complainant alleging that the defect of vehicle pulling left hand side could not be rectified, (which had been pointed out by him to the opposite parties earlier, and, also in the legal notice dated 07.02.2019), despite the fact that the mechanics/engineers of the opposite parties have tried their level best. During the course of arguments also, it has been vehemently contended by Counsel for the complainant that driving the vehicle in question on roads by the complainant with the said defect (pulling to the left hand side) is of such a nature, that it is a danger to the life of the complainant; his family members; and also the general public on roads. It has also been vehemently contended by him that the said defect is an inherent manufacturing defect, as the mechanics/engineers of the opposite parties failed to rectify the same, after making so many attempts, as such, the complainant is entitled to get back his money paid towards the said vehicle.
  8.           On the other hand, the opposite parties, through their Counsel contended that the defects reported by the complainant in his vehicle were rectified to his complete satisfaction. It was further contended with vehemence that since the complainant has failed to place on record any independent expert opinion/report to prove that the vehicle is suffering from inherent manufacturing defects, and also the fact that it has already been used extensively by the complainant, as such, his claim seeking refund of the amount paid towards the vehicle in question is not maintainable.
  9.            During pendency of this complaint, when the opposite parties had already filed their written replies; written arguments on behalf of the complainant as well opposite party no.1 were also filed; and the complaint was to be fixed for final arguments, Counsel for opposite party no.1 requested this Commission on 17.02.2021 to refer the matter to an expert for its opinion in the matter, to which the complainant also agreed. It was under those circumstances, that this Commission vide order dated 17.02.2021, requested the  Director of Punjab Engineering College, Chandigarh (PEC) to constitute a team of  experts to look into the matter and submit a report to the effect that, as to whether the vehicle in question pulling towards left side while driving, is suffering from any manufacturing defect, as mentioned in the complaint. The parties were ordered to be present at the time of inspection of the vehicle in question, to rule out any allegations against each other. Relevant part of the said order dated 17.02.2021 is reproduced hereunder:-

 “…….Written arguments on behalf complainant  as well as OP No.1 has been filed.  Copy be supplied to counsel opposite forthwith.  

Sh.Ankush Chowdhary, Advocate for OP No.1 stated that in the circumstances of the present case, opinion of expert is required.  Further, Sh.Parmod Sharma, Advocate for complainant also requested that the matter be referred to an expert. 

In this view of the matter, we request Director of Punjab Engineering College, Chandigarh to constitute a team of two experts to look into the matter and submit a report to this Commission to the effect that as to whether the car in question is pulling towards left side while driving having manufacturing defect, as mentioned in the complaint. Copy of the complaint be also sent to Director of Punjab Engineering College, Chandigarh. The complainant is directed to submit all relevant documents to the inspection committee. The complainant is also directed to present the car before the Committee constituted by the Director, Punjab Engineering College, Chandigarh on 1.3.2021 at 10.30 AM, on which date the OP No.1 shall also remain present. The car be inspected in the presence of the parties/their representative to whom notice of the date be also given.                      

We also fix fee of Rs.20,000/- to be deposited by complainant and OP No.1 in equal share with Director, Punjab Engineering College, UT, Chandigarh for seeking expert opinion.   

The matter is adjourned to 22.3.2021 for awaiting report.

Director of Punjab Engineering College, UT, Chandigarh is requested to send the requisite report to the office of this Commission on or before the next date of hearing i.e. 22.3.2021. 

Certified copy of this order be given dasti to the complainant, who shall hand over the same to the Director, Punjab Engineering College, UT, Chandigarh, so that the committee can be constituted in advance.

Copy of this order be sent to the parties/Counsel through email/whatsapp……”  

  1.           Thereafter, Expert Opinion/Report of Mechanical Engineering Department, Punjab Engineering College (PEC), Chandigarh, was received by this Commission, vide Memo No.PEC/MED/905 dated 11.08.2021, wherein, it was opined by three experts namely Sh. Gopal Dass, W.I.; Prof. Ankit Yadav, Assistant Professor; and Prof SK Mangal, Professor & Head, Mechanical Engineering Department of PEC, that on inspection and test drive of the vehicle, it was found that the vehicle was pulling towards the left side while driving, which may be attributed to a  manufacturing defect. Relevant part of the said report is reproduced hereunder:-

“Memo No.: PEC/MED/905

Dated 11 AUG 2021

 

Subject: Expert opinion in CC/159/2019 titled as Deepak Aggarwal Vs Volvo Auto India Pvt. Ltd.- regarding.

 

In Reference to Memo no. PEC/MED/814 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 10.30 A.M. in the Mechanical Engineering Department of the Institute by Sh.Deepak Aggarwal, the complainant. Sh Shrey Goel, Advocate, Sh. Suresh Kumar (S.A.) Krishna Volvo and Sh. Bachittar Singh (Technician) Krishna Volvo were present during the inspection and test drive.

 

The vehicle having registration no. CHO1458, Engine No. 2479918, Chassis No.YVIUZ68ACJ1084904 was presented for inspection. The vehicle in question was inspected and test-driven for 35 km.

 

On perusal of records, inspection and test drive the committee is of the opinion that the vehicle in question is having a problem pulling towards the left side while driving. As informed by the complainant that this problem pertains since the purchase of the said vehicle and the service provider is not able to rectify it. So the same may be attributed to a manufacturing defect.

 

Sd/-

11/08/2021

Sd/-

11/08/2021

 

Sd/-

(Sh. Gopal Dass) W.I.

(Prof. Ankit Yadav) Assistant Professor

(Prof SK Mangal)

(Professor & Head) Mechanical Engineering Department, Punjab Engineering College (Deemed to be University), Chandigarh…”

0172-2753551

 

 

  1.           A bare perusal of the report aforesaid clearly transpires that when on 06.08.2021 at 10.30 A.M., the vehicle in question was inspected and test-driven for 35 kms. in the presence of Sh.Deepak Aggarwal, complainant; Sh Shrey Goel, Advocate, Sh. Suresh Kumar (S.A.) Krishna Volvo and Sh. Bachittar Singh (Technician) Krishna Volvo, it was found that it was still suffering from the defect of pulling towards the left side while driving. It has been further clearly opined by the experts in the said report that if the said defect/problem pertains, since the purchase of the said vehicle and the service provider is not able to rectify it, it may be attributed to a manufacturing defect.
  2.           It is 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 matter. In our considered opinion, the onus that there was manufacturing defect in the vehicle also stands proved by the complainant, through the report aforesaid submitted by the PEC.  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.

                   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.  

  1.           It is very pertinent to mention here that it is an admitted fact that apart from the defect of pulling the vehicle to left side, it also suffered defects of whistling sound from engine, which was attended by the opposite parties on 01.12.2018. Thereafter, on 27.05.2019, another defect pertaining to malfunctioning light blinking on cluster arose in the said vehicle, which was rectified after updating the software. However, when the defect with regard to pulling the vehicle to left side while driving was still not rectified by the opposite parties, the complainant served legal notice dated 07.02.2019 upon them, to refund the amount paid alongwith compensation etc. but the same was not even replied what to speak of redressing the grievance of the complainant.
  2.           Admittedly, it was only for the first time that on 13.09.2019, i.e. during pendency of the complaint, that the matter was discussed with opposite party no.1, which deputed its Manager Technical and Support and Training to rectify the said defect. It is also coming out from the record that the vehicle in question remained in the possession of the opposite parties from 13.09.2019 to 19.09.2019 and thereafter it was handed over to the complainant. However, still the complainant experienced that the vehicle was pulling on the left side while driving. Perusal of the job card on record reveals that wheel alignment of the said vehicle was done and the vehicle was returned to the complainant.  It was only thereafter that when this consumer complaint had been filed that during pendency thereof, Counsel for opposite party no.1 himself, on behalf of opposite party no.1, requested this Commission on 17.02.2021, to refer the matter to an expert for its opinion in the matter.
  3.           As stated above, the experts of the PEC inspected the vehicle on 06.08.2021 at 10.30 A.M., i.e. after about two years from 13.09.2019 (the date when the said defect was reported to the opposite parties and they allegedly repaired the same), yet, still it was found that while driving, it was pulling towards the left side. As stated above, the case of the complainant has been proved from the expert report submitted by the PEC to the effect that defect of pulling of the vehicle to the left side is of such a nature that the same cannot be rectified. 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 navigate to one side on its own, without giving any command/indication, while driving, as the same  can be the cause or a contributing factor to an accident.

  1.           It is significant to mention here that it was opposite party no.1, which made request to this Commission on 17.02.2021 to refer the matter to an expert for its opinion in the matter, to which the complainant also agreed and the matter was referred to the Director of Punjab Engineering College, Chandigarh for the purpose. Thereafter, if the expert report did not come in favour of the opposite parties, they have no right to raise bald objections to the same, which are not supported by any cogent and convincing evidence, and especially, when the inspection and test drive of the vehicle in question was carried out in presence of all the parties. There is nothing on record to  show that the opposite parties raised any objection with the experts of the Punjab Engineering College, at the time of inspection and test drive of the vehicle in question. It was only, for the first time, that opposite party no.1 vide application dated 21.09.2021 raised objection to the said expert report and that too without any cogent and convincing evidence to the contrary. Accordingly, the objections raised by opposite party no.1 in its miscellaneous application bearing no.615 of 2021, which are not supported by any evidence, stands rejected and this application stands disposed of accordingly.  

                   Thus, even if the contention of the opposite parties to the effect that they had rectified the said defect on 13.09.2019 and handed over the vehicle to the complainant in satisfactory condition is accepted to be correct, even then, while placing reliance on the expert report dated 06.08.2021 (about two years from 13.09.2019), which still says that the said defect of pulling the vehicle to the left side existed therein, we can safely say that the said defect being an inherent manufacturing defect could not be rectified by the opposite parties, despite making attempts to do so and as such is beyond repairs.   

  1.            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. 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 alongwith interest and compensation, as during arguments, his counsel pleaded that the complainant has lost faith on the brand (vehicle) of the opposite parties. 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 10% depreciation on the total amount paid is ordered to be given to the opposite parties, that will meet the ends of justice.
  2.           To strengthen the case of opposite party no.1, Counsel for opposite party no.1 has placed reliance on following judgments of the Hon’ble National Commission:-  
    1. Sushila Automobiles Pvt. Ltd. v. Dr. Birendra Narain Prasad Revision Petition No. 1652 of 2006;
    2. Maruti Udyog Limited v. Hasmukh Lakshmichand, Revision Petition No. 827 of 2004;
    3. Surendra Kumar Jain v. R.C. Bhargava, First Appeal No. 235 of 1997;
    4. M/s. Toyota Kirloskar Motors P. Ltd. v. Tirath Singh Oberoi, Revision Petition No. 2944 of 2008 and
    5. Skoda Auto India P Ltd. v. Bhawesh, Revision Petition No. 1717 of 2014

 

It may be stated here that we have gone through the said judgments very carefully and found that the same have been passed in favour of the companies holding by the Hon’ble National Commission that the consumers/complainants have failed to place on record any expert opinion/report to prove their case that the goods/products suffered from manufacturing defects. However, in the present case, as stated above, there is a clear-cut report of the experts of PEC holding that on 06.08.2021 when the vehicle in question was inspected and test-driven for 35 km. in presence of both the parties, it was pulling towards the left side while driving, which may be attributed to a manufacturing defect. In this view of the matter, no help can be drawn by Counsel for opposite party no.1 from the judgments referred by him.

  1.           For the reasons recorded above, this complaint is partly accepted with costs, in the following manner:-
    1. Opposite party no.2 is directed to refund the amount of Rs.52,63,110/- (Rs,58,47,900/- minus (-) Rs.5,84,790/- i.e.10% depreciation on the total cost)  received from the complainant towards purchase of the vehicle in question vide invoice dated 19.05.2018, Annexure C-1 alongwith interest @9% p.a. from 19.05.2018 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.

 

  1. Opposite parties no.1 and 2 jointly and severally shall pay compensation to the tune of Rs.25,000/- 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.

 

  1.           The complainant is directed to hand over possession of the vehicle in question to opposite party no.2 on receipt of the decreetal amount.
  2.           Certified Copies of this order be sent to the parties, free of charge.
  3.           The file be consigned to Record Room, after completion.

 

Pronounced

09.11.2021

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/

(PADMA PANDEY)

          MEMBER

 

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 

Rg.

 

 

 

 

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