State Consumer Disputes Redressal Commission
Ramesh S/O. Rampratap Mantri vs 1. M/S. Scoda Auto India Pvt.Ltd., on 4 April, 2014
1 CC.No.:14-12
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH
AT AURANGABAD
Date of filing: 30.07.2012
Date of Order: 04.04.2014
COMPLAINT CASE NO.14 OF 2012
Ramesh s/o. Rampratap Mantri
R/o. Plot No.62, Jyotinagar,
Aurangabad. ... Complainant
VERSUS
1. M/s. Scoda Auto India Pvt.Ltd.,
A-1/1,MIDC Five-Star Industrial Estate,
Shendra,Aurangabad, Through its,
General Manager,
2. M/s. Asset Auto India Private Ltd.,
Opposite Vikram Tiles,
Behind Shivajinagar Bus Stand,
Pune-411 005.
3. M/s. Sara Motors Private Limited,
P-72/1, Adjacent to Sanya Motors,
Jalna Road, Aurangabad,
Through its Manager,
... Opponents
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Present: Adv. Shri. D.K. Kulkarni for complainant.
Adv. Shri. Nitin Bhavar for opponent No.1.
None for opponent No.2.
Adv.Shri. B. M. Waghmare for opponent No.3.
- :: ORAL JUDGMENT :: -
(Delivered on 4 th April, 2014) Per Shri. S.M. Shembole, Hon`ble Presiding Judicial Member 2
1. This is a complaint u/s. 17 of Consumer Protection Act, 1986 (hereinafter referred as the "Act").
2. Brief facts giving rise to this complaint are that, complainant Shri. Ramesh Ramprasad Mantri who is a retired Judicial Officer and now legal practioner was in a need of luxury car. Therefore in the month of Nov.-
December, 2009 he was in search of luxury car which suits to his needs and status. During that process he found that respondent No.1 who is a manufacturer and trader of Scoda Superb Elegance Top-class car has been advertising which would give uninterrupted service for years together. Opponents-2 & 3 are the authorized dealers of opponent No.1 M/s. Scoda Auto India Pvt. Limited. Therefore, complainant Shri. Mantri contacted opponent No.3 who impressed upon him that the Scoda Superb Elegance car is a top class luxury vehicle and would be giving smooth service without any complaint for years together. Relying on the representation made by opponent No.3, on 07.12.2009 the complainant purchased Scoda Superb Elegance AT-1.8 TSI Car for Rs.21,23,932/- by obtaining finance from Axis Bank.
3. It is alleged by the complainant that on 13.07.2010 when the car was taken on Wagholi to Pune, it stopped moving and could not be started. Therefore the complainant contacted opponent no.2 and as per the instructions of opponent No.2 he towed down the car to the workshop of the opponent No.2 spending amount Rs.3500/-. But the opponent No.2 took nearly a month for redelivery of the car by repairs. On receipt of the documents and the information supplied, it was revealed that the vital part viz. Machatronics with software of the car was faulty, and therefore it is replaced. Even thereafter the vehicle did not give trouble free service and it developed jerking and other problems. Therefore again in the month of May, 2011 the vehicle was required to be sent to the authorized workshop of the opponent No.2 and opponent No.2 kept the vehicle without doing any work for 15 days, and after 15 days informed that the battery of the vehicle needs 3 CC.No.:14-12 replacement. It is alleged that though it was under warranty period the opponent No.2 refused to replace the battery and the vehicle was left to the residence of complainant at Pune. Thereafter as the opponent No.2 refused to replace the battery the complainant contacted opponent No.3 and opponent No.3 requested opponent No.2 to honour the commitment and replace the battery. Even then the opponent No.2 refused to replace the battery. Therefore on 02.06.2011 the complainant was compelled to carry the vehicle to Auranagabad with the help of battery of another car. On the way it was found that the horn of the vehicle was not working. On 02.06.2011 the vehicle was given to opponent No.3 who replaced the battery forthwith as it was within warranty period, but informed that all the horns of the car have been removed. Therefore the complainant contacted Mr. Gauravsing who is a responsible person of opponent no.2 who admitted the removal of horns and assured that it would be dispatched to the Sara Motors at Aurangabad. It is contended that removal of the horns was with dishonest intention on the part of opponent No.2 and as this fact was suppressed from the complainant, the complainant was required to travel the vehicle from Pune to Aurangabad without horn putting serious risk of life. Even the complainant had talk on phone to the several officers of the opponent No.2 on many occasions and ultimately on 06.06.2011 the horns were dispatched by opponent No.2 by delivery to opponent No.3.
4. It is further submitted that on 21.07.2011 when the complainant's family was coming from Solapur to Aurangabad by same car, it started emitting dense white smoke and leaking large quantity of petrol from silencer. Therefore immediately on the next day the vehicle was taken to the authorized workshop of opponent No.2 and the opponent No.2 reported that there is serious manufacturing defect in the vehicle and the vehicle was detained there upto 04.08.2011. It is submitted that the complainant was not in a mental state to receive the delivery of vehicle as he was shocked because of the bad performance of the vehicle. However on repeated requests of opponent No.2 delivery of vehicle was taken under protest. It is further submitted that though the vehicle was in warranty period the opponent No.2 4 illegally recovered amount Rs.14,793/- from the complainant's representative. It is submitted that in view of the troubles, the complainant was afraid of using the vehicle. Therefore he contacted customer care of the opponent No.1 and sent e-mail, but except acknowledging the complaint there was no response. Therefore the complainant was required to serve legal notice dated 08.09.2011 upon the opponent Nos.1 & 2 and the problems with the car continued.
5. On 21.09.2011 when the vehicle was started, gear shifting problem was faced and was giving jerks. Therefore on next day again the vehicle was taken to the workshop of opponent No.2 who kept the vehicle there for four days. But even thereafter it was not working. Therefore the complainant contacted the other authorized dealer and workshop of M/s. Europa Auto (Pashankar) at Pune and the vehicle was taken there by towing and on 11.10.2011 this fact was informed to the opponent Nos. 1 & 2 by notice. The vehicle was lying with M/s. Europa Auto till the month of Jan.2012 as it had crank and complete engine problem. Even thereafter the vehicle is not working smoothly and has termed useless. Thus according to the complainant there is manufacturing defect in the vehicle. But despite his request for replacement of vehicle the opponents did not give any response. It is submitted that whenever the vehicle was required to be taken to the workshop, the complainant was required to hire other vehicle and was required to spent amount Rs.1,75,000/- for transportation. He was also required to spent amount Rs.3500/- towards expenses of towing the car from Wagholi to workshop of opponent No.2 and also required to pay Rs.21,500/- which is illegally recovered from him on various occasions for repairs of the vehicle though the vehicle was under warranty.
6. Thus alleging deficiency in service on the part of opponents and also unfair trade practice, the complainant has filed the consumer complaint claiming declaration that the car is having inherent manufacturing defect and it is not suitable and the same be replaced etc. In the alternative he has claimed for refund of the price of the car to the tune of Rs.21,23,932/- with 5 CC.No.:14-12 interest @ 18% p.a. w.e.f. 10.08.2011 i.e. the first day of repairs. He has also claimed compensation Rs.5,00,000/- for causing mental harassment & also claimed reimbursement of an amount Rs.2,00,000/- on account of illegal recovery of charges by the opponents and towards hiring the other vehicle during the period of vehicle brake down. He has also claimed amount Rs.20,000/- more towards cost of proceedings.
7. The opponent No.1 by its written version-cum-affidavit in reply resisted the complaint on the following among other grounds:-
It did not dispute that on 07.12.2009 the complainant purchased the car from its authorized dealer, opponent No.3. It also did not dispute that the warranty period was for two years i.e. upto 06.12.2011 and during the warranty period of 30.07.2010 Mechatronics with software was replaced through opponent No.2. However it is categorically denied that there is manufacturing defect in the car. It is submitted that due to wrong handling of the car by the complainant the major part viz. Mechatronics with software were failed and as it was during the warranty period, the same was replaced free of cost. It is submitted that the complainant had travelled vehicle for more than 84405 kms as still it is in use. According to opponent No.1 if there was any manufacturing defect in the vehicle the complainant could not have used the vehicle traveling for more than 84000 kms. It is submitted that when there is any manual error or accidental error on the part of the complainant, it is not liable to replace any part; even then it has replaced the 'Machatronics with software' free of cost.
8. It is further submitted that if there is any manufacturing defect in the vehicle the complainant should prove it by adducing expert evidence as provided u/s. 13 (1) (c ) of Consumer Protection Act. But without getting the vehicle inspected through any expert the complainant has filed false case. It is submitted that on 22.07.2011 the vehicle was brought to the workshop of opponent No.2 for paid service and nothing serious problem was found. It has denied all other adverse averments made by the complainant and submitted that the complainant is taking undue advantages of the replacement of 6 'Machatronics with software' during warranty period by falsely claiming manufacturing defect. It is further submitted that even after expiry of warranty period on 29.07.2012 the complainant himself got repaired the same vehicle to his satisfaction through its authorized dealer i.e. opponent No.3, certifying that "I have taken the road test of my car, now the car is in good condition and performing to my entire satisfaction,' but thereafter filed the false complaint. On all these counts it is submitted to dismiss the complaint.
9. The opponent No. 3 by its separate written version also resisted the complaint on the same grounds. It is further submitted that during the warranty period 8 times the vehicle was brought to its workshop for minor running repairs and for six times the vehicle was returned to the complainant within no time carrying out minor repairs. However, for two times more than one day period was required because for one time paint work was to be done and for another six days time was required as the horns were required to be called from opponent no.2. It has denied all other adverse averments made by the complainant and submitted to dismiss the complaint.
10. Despite service of notice the opponent No.2 did not appear and resist the complaint. Therefore complaint came to be proceeded exparte against opponent no.2.
11. In support of the complaint the complainant has filed his evidence affidavit and produced the documents including tax invoices, registration certificate, job cards etc. As against the evidence of complainant, the opponent Nos. 1 & 3 filed the evidence affidavits. Opponent No.1 has filed evidence affidavit of Mr. Nagesh Sangle and opponent No.3 has filed evidence affidavit of Mr. Prabhat Kumar Thirani, who is its Finance Manager.
12. In view of the above pleadings of the parties and evidence produced by them following issues arise for our determination and we record our findings each issue for the reasons which as follows:-
7 CC.No.:14-12Sr.No. Issue Findings
1. Whether it is proved by the complainant that there is manufacturing defect in his car ? - In the Negative
2. Whether it is proved by the complainant that during the warranty period the opponents neglected to repair the car and thereby committed deficiency in service? - In the Negative
3. Whether it is proved by the complainant that the opponents on various occasions illegally recovered Rs.21,500/- from complainant ? - In the Negative.
4. Whether it is proved by the complainant that he spent amount Rs.1,75,000/- towards transportation as claimed ? - In the Negative.
5. What order? - As per final order REASONS:
13. We heard the learned counsel for both sides, perused the written notes of arguments submitted by them and also perused the complaint, written version, evidence affidavits and also the copies of documents including the job cards.
14. The undisputed facts are that, during the warranty period i.e. 30.07.2010 the 'Mechtronics with software' of the vehicle was replaced through opponent No.2. Thereafter in the month of May, 2011 the battery was required to be replaced and it is replaced by opponent No.3. It is also not disputed that during the warranty period 7-8 times the vehicle was taken to the service centre of opponent No.3 and rendered the service as shown in the job cards. It is an admitted fact that twice the vehicle was required to be taken to the service centre to the opponent No.2 by towing. Further it is also 8 an admitted fact that on 29.07.2012 i.e. after expiry of warranty period the vehicle was taken to the service centre of opponent No.3 and opponent No.3 rendered the service by repairing the vehicle and the complainant issued certificate to the effect that he taken the road test of the car and now the car is in good condition and performing to his entire satisfaction etc. The crux in this matter is to whether there is manufacturing defect in the vehicle and further whether the opponents avoided or neglected to render the services during the warranty period or not. Therefore let us proceed to deal issues one by one.
Issue No.1:-
15. At the outset we may point it out here that, except the bare contention of the complainant that there is manufacturing defect in the car, there is no evidence to substantiate it. It is also not specifically disclosed by the complainant, the exact defect if any in his car. However it is vehemently argued by the learned counsel appearing for the complainant that when admittedly vital parts of the vehicle are replaced that too during the warranty period, this undisputed fact itself suffice to hold that there is manufacturing defect in the vehicle. It is submitted that when the undisputed facts itself speaks that there is manufacturing defect as per the principle of the "Res Ispa Loqutor", no other evidence is required to prove the same.
16. Per contra, Mr. Nitin Bhavar, learned counsel appearing for opponent No.1 submitted that if there was apparent manufacturing defect in the vehicle, it would not have continued functioning. According to him when undisputedly the complainant used the vehicle travelling for more than 84000 kms it cannot be accepted that apparently there is manufacturing defect in the vehicle. Thus according to him principle of " Res Ispa Loqutor", cannot be applicable to the present case. It is submitted that in view of the provisions of Sec. 13 (1) (c) of the Consumer Protection Act, 1986 it was incumbent on the part of the complainant to prove defect if any by getting the vehicle inspected through any authorized mechanical engineer. But the 9 CC.No.:14-12 complainant did not take any pains to adduce such evidence. Therefore in the absence of any expert evidence the bare contention of the complainant that there is manufacturing defect in the vehicle cannot be sustained. It is further submitted that as opponents replaced the 'Machatronics with software', the complainant bent upon to take disadvantage of this fact, so as to claim the replacement of the vehicle etc.
17. Considering the undisputed fact that after replacement of the 'Machatronics with software' of the car in the month of July, 2010 the complainant received the delivery of the car, and still the car is in use of the complainant, we find much force in the submission of Mr. Bhavar, learned counsel for the opponent No.1. If really there was manufacturing defect in the car it would not have possible for complainant to use the car even after replacement of its part i.e. 'Machatronics with software'. Even the complainant has not assigned any reasons as to why original 'Machatronics with software' of the car was damaged. On the contrary, it is the contention of the opponent No.1 that it might have damaged due to wrong handling of the car. However it has replaced the same part as it was required to be replaced during the warranty period. When it is the specific contention of the opponent No.1 that it was due to wrong handling of the car by the complainant, it was necessary for the complainant to verify the same by getting the car inspected through authorized mechanical engineer. But no such pains are taken by the complainant. Therefore in the absence of any expert evidence the bare contention of the complainant that there is manufacturing defect in the car cannot be accepted.
18. However it is contended by the complainant that it was for the opponent to lead the evidence of the persons from their service department and repairs, but the opponent No.1 has filed evidence affidavit of Mr. Nagesh Sangle, who is Manager Legal and opponent No.3 has filed evidence affidavit of one Mr. Thirani, Finance Manager who never attended the vehicle when it was taken to their service centre etc. It is further contended that the opponents have purposely kept away their Service Manager, so as to suppress 10 the material fact about manufacturing defect in the vehicle. It is submitted that the evidence of Legal Manager of opponent No.1 and Finance Manager of opponent No.3 is being hear say cannot be relied on etc. Thus the complainant made attempt to shift the burden on the opponents to prove the manufacturing defect in the vehicle which cannot be accepted. When complainant himself failed to discharge his initial burden by leading any cogent evidence, no evidence in rebuttal is expected from the opponents.
Therefore on any count the arguments advanced by the learned counsel for the complainant are being unfounded cannot be sustained. We therefore record our negative finding in the issue No.1.
Issue No.2:-
19. It is averred by the complainant that on 13.07.2010 when the car was stopped moving he informed the opponent No.2, but no response was given.
However after his repeated requests he was asked by the opponent No.2 to bring the car to its workshop and therefore he was required to take the car by towing and was required to pay towing charges Rs.3500/-. Even then the car was not repaired within reasonable period, but it took for one month for replacing 'Mechatronics with software' etc. We find little force in the submission of complainant, because the copy of job card reflect that the car was towed and taken to the service centre of opponent no.2 on 13.07.2010 and after replacement of the 'Mechatronics with software' the complainant received the delivery of car on 30.07.2010, which falsify the contention of the complainant that one month period was taken by opponent No.2 for replacement of "Mechatronics with software" etc. When the main part of the car was damaged and required to be replaced, in our view 16-17 days period is reasonable one and therefore there was no inordinate delay on the part of the opponent No.2.
20. Now coming to the contention of the complainant about inordinate delay caused by opponents for replacement of battery. Undisputedly on 12.05.22011 the complainant was required to change the battery of his car. Therefore the car was taken to the workshop of opponent No.2, but the 11 CC.No.:14-12 battery was not replaced there though the battery was removed there by a mechanic from the workshop of opponent No.2. It is also obvious from the copy of job card No.014116 dated 12.05.2011. Therefore the complainant was required to carry the car to the workshop of opponent No.3 at Aurangabad to replace the battery on 02.06.2011. The battery was replaced at free of charges by opponent No.3. However it is alleged by the complainant that opponent No.2 unnecessarily retained the vehicle more than 15 days at his garage and thereby committed deficiency in service. It is further alleged that opponent No.2 refused to replace the battery free of charges though it was within warranty period. But though it is contended by the opponent No.1 in its written version that complainant had availed services, it is not disputed by the complainant by filing any counter affidavit. Moreover, when undisputedly opponent No.3 who is having its authorized service centre at Aurangabad replaced the battery free of charges it cannot be accepted that the opponents or specifically opponent No.2 neglected or refused to replace battery. When the opponents-2 & 3 who are the authorized dealers of the opponent No.1, they are entitled to get replacement of the battery if required to replace the battery of car during the warranty period. No authorized dealer would refuse if battery is available. However, if the battery is not available at any particular service centre it would take some time. Therefore it may be that in the month of June-2011 when the complainant had taken his car to the workshop of opponent No.2 it would have retained the car awaiting for the availability of the battery. There could be no reason for opponent No.2 for refusal of the replacement of battery. Moreover, if the opponent No.2 would have declined to replace battery it would not have received the car in its workshop. Not only this but it would not have removed the battery as well as horns of the car. Thus on any event, in the absence of any specific evidence it is difficult to accept the bare averments of the opponent No.2 that purposely or intentionally opponent No.2 refused to replace the battery of his car.
21. Apart from the above facts it is significant to note here that undisputedly after expiry of warranty period the complainant got repaired his car through the authorized service centre of opponent No.3 that too his 12 satisfaction and signing notes dated 28.02.2013 and 15.05.2013 stating therein that "I have taken the road test of my car, now the car is in good condition and performing to my entire satisfaction". If really as noted above if there was manufacturing defect in the car and further opponents would have been neglected or avoided to render their services, in our view, no such certificate would have issued by the complainant. Thus on any count the contention of the complainant that the opponents committed deficiency in service is being unfounded cannot be sustained. We therefore record our negative finding to issue No.2.
Issue No.3:-
22. It is merely contended by the complainant that on various occasions the opponents illegally recovered from him Rs.21,500/-. But no receipts of payment etc. are produced by him. Even no details of payment made to the opponents are disclosed. However on perusal of copies of job cards it reflects that the complainant was required to make such payment towards the cost of some minor parts of the car and oil etc. though the opponents rendered services at free of cost. Therefore it cannot be accepted that the opponents illegally recovered any amount from the complainant as averred by him. Therefore we record our negative finding to issue No.3.
Issue No.4:-
23. It is contended by the complainant that at first time in the month of July, 2011 when the "Machatronics with software" of the car was replaced he could not use the car for about one month and therefore he was required to spent amount Rs.1000/- per day towards transportation etc. Thereafter in the month of June-2011 when the battery of the car was required to be replaced the car was not at his disposal. The car was retained at the service centre of opponent No.2 for the period from 21.07.2011 to 04.08.2011 and thereafter it was with opponent No.3 etc. and during that period he was required to spent amount for transportation. Thus according to the complainant he was required to spent amount Rs.1,75,000/- towards transportation during the 13 CC.No.:14-12 period when the car was required to be kept at the workshop of opponent nos. 2 & 3 for repairs. But he has not disclosed the details of the vehicle if any was hired during that period for transportation. No receipts of payment have also been produced. When undisputedly the complainant was residing at Aurangabad and doing his practice as an advocate at Aurangabad, in the absence of any specific evidence it is difficult to accept that the complainant was required to spend Rs.1,75,000/- towards transportation etc. Therefore the claim of the complainant for Rs.1,75,000/- towards transportation charges is being unfounded cannot be sustained.
24. It is further contended by the complainant that he was required to spend Rs.35,000/- towards towing charges from Wagholi to the workshop of opponent No.2. But he has not produced any receipt to that effect. Though it is not disputed that the complainant was required to carry his car to the workshop to the opponent No.2 by towing, the opponents cannot be held liable for the towing charges. We therefore record our negative finding to issue No.4.
25. It is further alleged by the complainant that the opponent No.2 removed the horns of his car and therefore he was required to drive the vehicle from Pune to Aurangabad without horns putting serous risk of life etc. It is further alleged that despite his repeated requests the opponent No.2 avoided to send the horns to the opponent No.3 etc. But we find little force in the contention of the complainant, because there could be no any dishonest intention of the opponent no.2 to remove the horns of the car. When the car was retained there for the purpose of replacement of the battery it may be that while inspections of the car at the service centre of the opponent No.2; the mechanic from the same service centre would have removed the horns. But it would not be with any dishonest intention as alleged by the complainant. If really the horns would have removed by the persons from the service centre of opponent no.2 with any dis-honest intention, they would not have sent the same horns to the service centre of opponent No.3. Moreover, no explanation is given by the complainant as to why he received the delivery of 14 car from the service centre of the opponent No.2 without verifying the condition of the horns and other parts of the car. He should not have brought the car from Pune to Aurangabad without horns. Therefore though the complainant was required to bring the car without horns from Pune to Aurangabad it was negligent on his part only, and therefore the persons from the opponent No.2 cannot be held liable for the same.
26. For the foregoing reasons the complaint is being devoid of any merit deserves to be dismissed. Hence the following order.
-::ORDER::-
1. The complaint is dismissed.
2. Having regard to the peculiar facts of the case we direct the parties to bear their own cost.
(Mrs. Uma S. Bora) (S.M. Shembole)
Member Presiding Judicial Member
Kalyankar