State Consumer Disputes Redressal Commission
M/S Skoda Auto India Pvt. Ltd. And Others vs Bhawesh Narula on 10 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 127 / 2011
1. M/s Skoda Auto India Pvt. Ltd.
A-1/1, M.I.D.C. Five Star Industrial Area
Shendra, Aurangabad - 431201
2. M/s Oberai Auto Sales
Kuanwala, Haridwar Road
Dehradun through its Proprietor / Partner
3. M/s Channel Motors
Tikoniya Chauraha, Near ICICI Bank
Nainital Road, Haldwani
through its Proprietor / Partner
......Appellants / Opposite Parties
Versus
Sh. Bhawesh Narula S/o Sh. Satish Kumar Narula
C/o Shree Balaji Uttarakhand Gases (P) Ltd.
AGM-31, Galla Mandi
Rudrapur, District Udham Singh Nagar
......Respondent / Complainant
Sh. S.K. Gupta, Learned Counsel for the Appellants
Ms. Anupama Gautam, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 10/03/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 27.05.2011 passed by the District Forum, Nainital in consumer complaint No. 116 of 2010. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellants - opposite parties to pay, jointly or severally, to the respondent - complainant the cost of Skoda Fabia 1.4 PDTDI (Classic) Diesel car with accessories amounting to 2 Rs. 6,84,950/-, together with interest @6% p.a. pendente lite and future and Rs. 3,000/- towards litigation expenses. It was also directed that on the date of compliance of the order, the respondent shall submit the ownership documents of the vehicle / letter of subrogation with the appellants.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that on 14.10.2009, the complainant had purchased Skoda Fabia 1.4 PDTDI (Classic) Diesel car from the opposite party No. 2 - M/s Oberai Auto Sales, Kuanwala Road, Haridwar Road, Dehradun for sum of Rs. 6,35,950/-. The said car was manufactured by the opposite party No. 1 - M/s Skoda Auto India Pvt. Ltd., Aurangabad. It is alleged that on 17.05.2010, when the complainant was in Dehradun, the vehicle had pick-up problem.
The said problem was brought to the notice of the opposite party No. 2. The complainant was told that the vehicle requires servicing. The Service Manager of the opposite party No. 2 told the complainant that all the filters of the vehicle including the diesel filter need to be replaced. The diesel filter is required to be replaced only after the vehicle had run 30,000 kms. The complainant agreed for change of the filters. The vehicle was repaired by the opposite party No. 2 the same day and was delivered to the complainant on 17.05.2010 itself after repairs. The complainant paid sum of Rs. 7,630/- for the work carried out in the vehicle. The complainant drove the vehicle from Dehradun to Haldwani. However, when the complainant reached Kashipur, the vehicle again started creating same problem. The complainant somehow reached Haldwani and took the vehicle to the opposite party No. 3 - M/s Channel Motors, Haldwani on 28.05.2010. There, the Service Manager of the opposite party No. 3 told the complainant that the filters of the vehicle have not been changed by the opposite party No. 2 and that the repair work will take one day.
3The complainant left the vehicle with the opposite party No. 3 and came back the next day to take the delivery of the vehicle. The complainant was told that the problem in the vehicle is not detectable. In order to detect the problem / fault in the vehicle, every part of the engine was opened. Inspite of above, the fault in the vehicle could not be detected and after a period of 20 days', the complainant was told that there is some injector problem in the vehicle and the injector is required to be replaced and the cost thereof has to be borne by the complainant. The complainant asked the opposite party No. 3 that the vehicle is under warranty and, therefore, the injector should be replaced free of cost, but the opposite party No. 3 refused to replace the injector free of cost. The complainant asked the opposite party No. 3 to replace the injector because he was facing difficulty. The complainant was told that the part, which is required to be changed, is not available with it and it is required to be ordered from the opposite party No. 1. On 13.07.2010, the complainant was told by the opposite party No. 3 that the injector has been received and the same has been replaced, but the vehicle was creating the same problem. Then every part of the engine was again opened, but the defect in the vehicle could not be found. The complainant thereafter sent a legal notice to the opposite parties on 22.07.2010 for replacing the car in question with a new car, but inspite of service of the notice upon the opposite parties, the needful was not done. The complainant thereafter filed a consumer complaint against the opposite parties before the District Forum, Nainital.
3. The opposite party No. 1 filed written statement before the District Forum and pleaded that the vehicle needs to be sent to appropriate laboratory for analysis as per the provisions of Section 13(1)(c) of the Consumer Protection Act, 1986; that the vehicle is not lying in unrepaired condition; that on examination of the vehicle, it 4 was found that the problem of pick-up occurred because of use of adulterated fuel and on account thereof, the piston injector was damaged; that the same was not covered under the warranty as it was not a manufacturing defect; that the vehicle was duly repaired and that the complainant has not been sold a defective vehicle.
4. The opposite party No. 2 filed written statement before the District Forum and pleaded that on 15.05.2010, the vehicle was brought to their workshop for servicing, oil change, for checking the pick-up and for checking the suspension of the vehicle; that the vehicle was handed over to the complainant after necessary work in the vehicle; that on 28.05.2010, the vehicle was taken to the opposite party No. 3 and that there is no manufacturing defect in the vehicle.
5. The opposite party No. 3 filed written statement before the District Forum and pleaded that the defect in the engine of the vehicle had occurred on account of use of adulterated fuel; that the complainant was told that the fuel injection system is not covered under warranty; that the injector can not be replaced free of cost and that there is no deficiency in service on their part.
6. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 27.05.2011 in the above manner. Aggrieved by the said order, the appellants have filed this appeal.
7. We have heard the learned counsel for the parties and have also perused the record.
8. There is no dispute with regard to the fact that there is defect / problem in the vehicle in question and that the vehicle is still lying 5 with the opposite party No. 3, as has also been pleaded by the opposite party No. 3 in para 32 of its written statement. The stand of the appellants - opposite parties is that the defect in the engine of the vehicle had occurred on account of use of adulterated fuel by the respondent - complainant and since the same was not covered under the terms and conditions of the warranty and, as such, the complainant had to bear the cost of the said repair work and he refused to pay the repair bill and left the vehicle with the opposite party No. 3.
9. So far as the plea of the opposite parties regarding sending the vehicle to appropriate laboratory for analysis as per the provisions of Section 13(1)(c) of the Consumer Protection Act, 1986 is concerned, we do not find any force in the same. The reason being that there is no dispute with regard to the defect in the vehicle and the same persisted even after repairs. When the appellants have admitted the defect in the vehicle and that the fuel injection system of the vehicle has gone defective, there is no question of sending the vehicle to any laboratory for examination / analysis. Even otherwise, the vehicle is with the opposite party No. 3, it could have got the vehicle examined from an independent mechanic / laboratory in the presence of the complainant, to find out the actual reason behind the problem in the vehicle, but the same was not done in the instant case. This apart, the perusal of the impugned order of the District Forum shows that the opposite parties did not move any application before the District Forum for getting the vehicle tested / examined from an appropriate laboratory. Therefore, the opposite parties can not take any benefit of the provision of Section 13(1)(c) of the Consumer Protection Act, 1986 and the plea to that effect taken by the opposite parties, was rightly turn down by the District Forum.
610. So far as the territorial jurisdiction of the District Forum, Nainital in the matter under reference is concerned, the opposite party No. 1 - manufacturing company is having its dealers throughout the country and opposite party No. 3 situated at Haldwani, District Nainital, is one of its dealers. There is no dispute with regard to the fact that the complainant had taken his vehicle to the opposite party No. 3 for repair work on 28.05.2010 and the vehicle is still lying with the opposite party No. 3. Therefore, part of cause of action in the instant case, had arisen in favour of the complainant within the territorial jurisdiction of District Forum, Nainital and hence the District Forum, Nainital had territorial jurisdiction in the matter and the District Forum has not erred in entertaining the consumer complaint and deciding it on merit by the order impugned.
11. So far as the merit of the case is concerned, as is stated above, the opposite parties have taken the stand that the defect in the engine of the vehicle had occurred on account of use of adulterated fuel by the complainant. There is no iota of evidence on record to substantiate the said plea of the opposite parties. The complainant has specifically pleaded in his consumer complaint that the Service Manager of the opposite party No. 3 was not able to detect the defect / fault in the vehicle. The complainant has come up with a specific case that the vehicle had persistent problem of pick-up and the same could not be cured by the opposite parties even after repairs. There is proforma invoice dated 10.10.2010 issued by the opposite party No. 3 on record (Paper No. 60). In the said proforma invoice, the date of job card has been mentioned as 28.05.2010. This shows that a period of more than four months' was taken in replacement of the injector and repairing the vehicle. The consumer complaint was filed by the complainant on 04.10.2010. The opposite parties have not given any explanation / reason as to why so much time was taken in repair of the 7 vehicle. The complainant has specifically stated in his consumer complaint that several times, the engine of the vehicle was opened by the Service Manager at the behest of detecting the fault in the vehicle, but the fault could not be found. As is stated above, the opposite parties have not filed any cogent evidence to show that the defect in the engine of the vehicle and the fuel injection system getting defective, was on account of use of adulterated fuel by the complainant and, as such, the same was not covered under warranty of the vehicle.
12. From the discussion made above, it is clear that there is manufacturing defect in the vehicle and the defect could not be cured even after repeated repairs of the vehicle and the complainant had to remain without his vehicle for no fault on his part and clear-cut deficiency in service on the part of the opposite parties and the District Forum was perfectly justified in allowing the consumer complaint per impugned order.
13. Learned counsel for the appellants pressed into service the decision of the Hon'ble Apex Court in the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another; I (2006) CPJ 3 (SC), wherein the Hon'ble Apex Court has held that under warranty, the obligation of the manufacturer is only to repair or replace any part found to be defective. In the case under hand, as is stated above, the opposite parties have also admitted that there is defect in the vehicle and the same persisted even after repairs and could not be cured. Learned counsel also cited a decision of the Hon'ble National Commission in the case of Branch Manager, Sanghi Brothers Vs. Raj Kumar Jaiswal; 2011 (2) CPR 365 (NC). In the said case, it was held that there was violation of terms of warranty on the part of the complainant. There is no such position in the present case, nor the 8 opposite parties have pleaded or proved that there has been any violation of the terms of the warranty by the complainant. Learned counsel also cited another decision of the Hon'ble National Commission in the case of Krishna Kanhaiya Gontiya Vs. Tata Engineering and Locomotive Company Limited and others; 2011 (1) CPR 58 (NC). In the said case, the problems recorded in the job cards did not point out any manufacturing defect in the vehicle. In the instant case, the problem of pick-up in the vehicle persisted even after repairs of the vehicle and as is stated above, the opposite party No. 3 took more than four months' in repairing the vehicle, which itself is sufficient to prove that there is manufacturing defect in the vehicle and inspite of that, the problem of pick-up persisted in the vehicle and was not cured. Learned counsel cited one more decision of the Hon'ble National Commission in the case of Maruti Udyog Ltd. Vs. Atul Bharadwaj and another; I (2009 CPJ 270 (NC). In the said case, it was held that the vehicle was taken to service station on many occasions and the complaints were duly attended and rectified and that the inherent manufacturing defects in the vehicle were not proved. In the instant case, even after repeated repairs, the defect / fault in the vehicle could not be removed / cured and the problem still persisted. Learned counsel also cited a decision dated 14.09.2012 of this Commission rendered in First Appeal No. 43 of 2011; Commercial Motors Vs. Smt. Jeevanti Devi and another and First Appeal No. 44 of 2011; Tata Motors Limited Vs. Smt. Jeevanti Devi and another, wherein it was held that the complainant has not been able to prove that there is manufacturing defect in the vehicle. In the present case, the facts speak themselves and are sufficient to prove that there is inherent manufacturing defect in the vehicle. Learned counsel for the appellants also submitted the copy of the warranty terms and conditions. In the instant case, there is no question of replacement of any part of the vehicle for the reason that even after repeated repairs, 9 the vehicle is not free from defect and the defect is still persisting and hence the appellants are liable to refund the cost of the vehicle to the respondent, which the District Forum has rightly directed.
14. The Hon'ble National Commission in the case of Escorts Ltd. Vs. Naryan Prasad and another; I (2012) CPJ 213 (NC), has held that admission on behalf of the opposite parties that defects in tractor were removed shows that there were defects in tractor and, therefore, the provisions of Section 13 of the Act would not be applicable and that as there were manufacturing defects in the tractor, the manufacturer and dealer, both are liable. In the instant case also, the opposite parties have not denied the fact that the vehicle is suffering from defect and the record shows that the opposite parties have not been able to remove / rectify the defect in the vehicle and get the vehicle roadworthy and in perfect running and working condition free from any defect / fault.
15. The complainant has undergone a lot of mental harassment and agony amounting to torture because of defects in vehicle. There can not be a case of bigger mental harassment than to carry vehicle for repairs to workshop so many times and still, problem remaining unsolved. We can not deviate ourselves with the observations recorded by the District Forum that the vehicle suffers from manufacturing defect. There is also nothing on record to prove that the complainant has mishandled the vehicle or got the same repaired from any unauthorised dealer or used the adulterated fuel in the vehicle.
16. The Hon'ble Apex Court in the case of Lucknow Development Authority Vs. M.K. Gupta; (1994) 1 SCC 243, has held as under:
10"The word 'compensation' is of very wide connotation. It has not been defined in the Act. According to dictionary it means, 'compensating or being compensated; thing given as recompense'. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him."
17. The District Forum has considered all the facts and circumstances of the case in detail and has passed a reasoned order, which does not require any interference. The appeal being devoid of force, merits dismissal.
18. For the reasons aforesaid, appeal is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K