State Consumer Disputes Redressal Commission
M/S Skoda Auto India Pvt. Ltd. vs Lata Jain on 6 March, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 06.3.2014 FA-844/2010 M/s Skoda Auto India Pvt. Ltd., A-1/1, Five Star Industrial Area, Shendra, MIDC Aurangabad, Maharashtra .........Appellant Vs Smt. Lata Jain, W/o Sh. Ashok Jain, 1C/5, New Rohtak Road, New Delhi Also at D-5, Hauz Khas, New Delhi M/s Silvertone Motors P Ltd. D-179, Okhla Industrial Area Phase-I, New Delhi M/s Fahrenheit Automobiles P Ltd. 63/8, Shivaji Marg, Moti Nagar, New Delhi-110 005 ..Respondents CORAM Salma Noor, Member
N P Kaushik, Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
N P KAUSHIK, MEMBER(JUDICIAL)
1. The present appeal is directed against the impugned order dated 23.10.2010 vide which the Ld. District forum-II, Qutab Institutional Area, New Delhi passed the following directions against the Opposite Parties (hereinafter referred to as OPs):
i) That OP No.1 & 2 shall refund Rs.11 lakh as the depreciated value of the car to the complainant
ii) That the complainant is not liable to pay Rs.5,28,968/- to the OP No.3
iii) OPs shall pay Rs.1 lakh to the complainant as compensation for mental agony, harassment and sheer suffering together with ligitation charges.
2. Facts in brief are that the complainant Smt. Lata Jain r/o 1C/5, New Rohtak Road, New Delhi purchased a Skoda Laura vehicle from Silvertone Motors Pvt. Ltd. (OP No.2), who happened to be the authorized dealer of Skoda Auto India Pvt. Ltd., Aurangabad, Maharashtra (OP No.1). Price of the car was R.18,18,638/-. The car was under warranty for a period of two years. On 24.7.2008, the complainant observed certain sound in the engine and sent the car to OP No.3, authorized dealer and service provider of OP No.1. After checking it was found that the Fly Wheel of the car was defective.
The same was replaced without any costs.
On that day the vehicle had clocked 23,000/- kms. On 21.3.2009, front brake of the car was replaced on payment of Rs.6870/- by the complainant. On 27.4.2009 a paid service of the vehicle was conducted. On 1.6.2009, the car developed vibration. It was sent to the authorized service station of OP No.3. It was again found that the Fly Wheel required replacement. The appellant replaced the Fly Wheel and accepted to bear 50% of the charges. Vehicle had clocked 43005 kms. After clocking another 787 kms., the vehicle again developed vibration on 24.6.2009. On examination, it was found that there was some defect in the Fly Wheel. The same was adjusted. On 7.10.2009, there was again engine noise and problem with the Air Conditioner. The Authorized Service Station i.e. OP No.3 informed the complainant that the compressor, condenser of the AC and the complete gear box had to be changed. The vehicle had clocked 49,665 kms. The estimated costs were Rs.5,60,131/. The manufacturer of the car i.e. OP No.1 had reduced the costs from Rs.5,60,131/- to Rs.1,83,117/-. To make the things clear, OP No.1 had agreed to bear costs of 60% of the gear box, and 50% of the compressor and the condenser of the AC. The complainant on 30.11.2009 had issued a legal notice to replace the car or refund the price of the car. She however took delivery on 13.12.2009 without prejudice to the contentions made by her in her legal notice dated 30.11.2009.
3. Next submission of the complainant is that on 18.5.2010, the vehicle had developed overheating of the engine. It was taken to the nearest service station at Ludhiana where thermostat was changed.
The complainant paid Rs.1,000/-. On 19.5.2010 the car was sent to the service station. While conducting paid service, thermostat was changed. Lubrication package and engine oil were also changed. For this complainant paid Rs.11,587/-.
4. Last submission of the complainant is that on 30.5.2010, when her son was going to Jodhpur, the car developed overheating problem near Jaipur. The engine of the car got seized. On contacting the various service stations, complainant was advised to put a lot of water on the engine. The car did not start. It was towed to the authorized service station of the appellant at Jaipur and thereafter towed from Jaipur to Delhi. Car reached the workshop of OP No.3 i.e. authorized service station on 4.6.2010.
Engine of the car had seized.
Repair was carried out. Invoice amounting to Rs.5,77,148/- was raised. Money was not paid by the complainant. Complainant failed to take delivery of the car and the same is still lying with OP No.3
5. OP No.1 Skoda Auto India Pvt. Ltd.
Aurangabad is the manufacturer of the car.
In its reply it submitted that the car outlived its warranty on 4.9.2008 and the complaint has been filed after the expiry of the period of two years from the date of purchase. On 4.6.2010, the car logged 59925 kms. The contention of the OP-1 is that the vehicle is not defective, inherently or otherwise.
The damage is the result of negligence and abuse and was not covered under manufacturers warranty. The car had done 60,000 kms. (approximately) over a period of 45 months. OP No.1 Skoda Auto India Pvt. Ltd. denied that the `Fly Wheel, compressor, condenser of the AC and the gear box were defective inherently or otherwise. Submission of the OP-1 is that the car has an automatic transmission, which is extremely complex and sophisticated, requiring an equal level of care and caution on the part of the owner or his representative behind the wheel, OP No.1 had replaced the `Fly wheel on 24.7.2008. The replacement was done as a measure of goodwill within the warranty.
The appellant has enlightened this Commission by explaining literature on automatic transmission as under:
Automatic Transmission & working thereof The automatic transmission is designed to shift gears automatically from low to high without drivers control. Several major components are used in automatic transmission. These include torque converter, planetary gear system, hydraulic components, different types of clutches and bands and various controlling parts.
How Automatic Transmission Works An automatic transmission is an amazing piece of automotive technology. These devices interconnect the cars computer, hydraulics and mechanical systems so that the gears are shifted as required. The transmissions job is to make sure that the engine maintains a safe level of revolutions per minute (RPM) while providing enough torque to the driveshaft so that the car can move as fast as is needed to. This works as follows:
In lower gears, the engine works harder while the wheels turn slower. The lower gears are required when the wheels need to turn heavy load, such as when they are first accelerating, passing another car, or driving up a steep hill.
In this condition, torque and engine speed is very high. In higher gears, the engine is closer to idling speed while the wheels are turning fast with very little torque. This only works as long as the car is coasting easily along a highway or downhill and very little force is required to keep the car in motion.
The job of the transmission is to measure the required load, such as whether the car is going uphill or trying to accelerate quickly, and compare it to the current speed of the wheels. If the difference in load and speed is great, the computer system makes the decision to shift to lower gears to deliver more power to the wheels in order to increase wheel speed.
A brief literature may be referred herein below on `Flywheels as well.
Flywheels (sometimes called Flexplates) are used on engines equipped with an automatic transmission. It is a relatively large but light weight flexplate mounted on the rear of the crankshaft with a starter ring gear welded around its outside diameter (with a few exceptions) for starter drive engagement during engine start-up. It smoothes out the firing impulse vibrations and provides intertia for a smooth engine idle. It also provides some of the startic dynamic balancing needed for the rotating engine mass.
Care while driving Automatic Cars The way an automatic transmission vehicle is driven can place tremendous extra demands upon the mechanical system therein. Forcing the transmission to shift often, or to work more often under higher torque conditions, will lead to excessive wear and tear and a premature breakdown. The gear shifting is another factor that requires being done cautiously. Placing Shift Lever in Parklock(P), Drive (D) or Reserve(R) mode when the vehicle is not stationary or Placing Shift Leven in Drive(D) or Reserve(R) when the engine is at `Fast Idle can cause abrupt transmission engagement leading to early failure of clutches, bands, gear sets, driveline components and engine or transmission mountings.
6. OP No.1/Appellant admitted having replaced the `Fly Wheel on 1.6.2009. He also admitted replacing the transmission assembly (compressor, condenser of the AC and the complete gear box) when the car was sent to the authorized service station on 7.10.2009. The automatic transmission assembly was received from the manufacturer, OP No.1 Skoda Auto India Pvt. Ltd., Aurangabad, Maharashtra.
7. OP No.1 i.e. the manufacturer contended that the relationship between him and the OP No.3 i.e. the service station is that of independent contractors. He is not vicariously liable for the acts and omissions, if any, on the part of the service station. The appellant reiterated its stand that seizer of the engine may be attributed to abuse and negligence on the part of the complainant. There is a possibility of the car being driven in a overheated condition despite temperature warning lights coming alive on the instrument cluster. The appellant also submitted that the vehicle is still lying with service station of OP No.3 and the repair costs of Rs.5,77,148/- have not been paid by the complainant.
8. We need not mention here the averments of the service station i.e. OP No.3 as the number of visits to it and the jobs done are not in dispute. OP No.3 submitted that the problems occurred due to the reasons like nature, manner and conduct of usage, road conditions, oil & fuel quality, overspeeding, heavy traffic etc. His submission is that his role was confined only to the extent of repairs of the car. Manufacturer cannot absolve himself of the liability in case of a manufacturing defect.
He cannot be made a scapegoat when the vehicle is suffering from a manufacturing defect.
9. In response to the visit of the car on 4.6.2010, when the engine of the car was seized, the OP No.3 submitted that the repairs were done on the approval of the complainant. The complainant did not pay the bill for an amount of Rs.5,77,148/- and also did not take the delivery of the car.
10. OP No.2 is a dealer from whom the car in question was purchased. He denied of the vehicle had any inherent design or manufacturing defect leading to defect in `Fly wheel or clutch assembly. His submission is that only negligent and careless driving skills of the complainant could surface such defects in the engine of the vehicle.
11. We have heard the arguments addressed by the Counsels for the parties at length.
The sole issue with which this Commission is confronted is as to whether the car in question is suffering from `manufacturing defect. Admittedly after having been purchased the vehicle on 5.9.2006, it developed trouble and required replacement of `Fly Wheel on 24.7.2008. It had clocked only 23,000 kms.
Replacement was done free of costs.
The warranty had not expired. The same trouble occurred on 1.6.2009 when again `Fly Wheel had to be changed. Warranty period had expired. Manufacturer, i.e. OP No.1 bore 50% of the costs. The vehicle had clocked 43005 kms. After a period of 24 days and driving another 787 kms. the car developed vibration problem. Again `Fly Wheel had to be adjusted. Nothing has been placed on record by the OPs to show as to why `Fly Wheel required frequent replacements. Even after the expiry of warranty period, the manufacturer bore 50% of the costs. The literature relating to automatic transmission and reproduced above shows that the gear box and the automatic transmission are inter related and `Fly Wheel is one of their components. The complete gear box had to be replaced on the visit of the car on 7.10.2009. Again the manufacturer i.e. OP No.1 agreed to reduce the costs from Rs.5,60,131/- to Rs.1,83,117/-. Frequent replacements of the `Fly Wheel and the related parts i.e. gear box coupled with the sharing of costs by the manufacturer clearly goes to show that there existed an inherent defect in the car. `Fly Wheel had to be changed time and again. Manufacturing defect has been defined in a catena of judgments and in case of Maruti Udyog Limited vs. Hasmukh Lakshmichand & Anr.
reported as III (2009) CPJ 229 (NC) it is defined as under:-
Manufacturing Defect is much more than an ordinary defect which could be cured by replacing the defective parts. Manufacturing defect is fundamental basic defect which creeps while manufacturing the machinery.
12. Coming to the case in hand, the car did not allow the `Fly Wheel to live its normal life.
After some time and some mileage it warranted a replacement. In case of V.Krishna Rao vs. Nikhil Super-Specialty Hospital, reported as 2010(5) SCC 513, the Apex Court observed as under:
It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done, the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man.
13. The Apex court has opined that the requirement of expert evidence cannot be imposed upon the consumer. Facts speak for themselves. Principle of `Res Ipsa Loquitur has to be applied.
14. Manufacturer/OP No.1 was in a better position to send the vehicle for expert evidence, if he wished so. On the contrary, he kept on doing repairs or sharing costs of repairs. It is not the case of the appellant that the complainant did not cooperate in making available the vehicle for expert opinion.
Irresistible conclusion in the case is that there exists a manufacturing defect in the car and the trial forum had rightly held the complainant entitled to the refund of Rs.11 lakh as the depreciated value of the car to the complainant. The whole trouble in the car has arisen due to the manufacturing defect, liability therefore should be borne by the manufacturer i.e. OP No. 1 only. Compensation to the tune of Rs.1,00,000/- is also not on the higher side. For the same reason, let it be paid by the manufacturer i.e. OP No.1 only. Complainant cannot be made liable to pay to OP No.3 an amount of Rs.5,28,968/-. OP No. 3 should not be made to suffer for no fault of his.
Let the payment of bill of Rs.5,28,968/- be made to OP No.3 by OP No.1, the manufacturer.
Let OP No.1 take away the car from the premises of OP No.3 at his expenditure within a period of 30 days from today, failing which the OP NO.1 i.e. Skoda Auto India Pvt. Ltd. shall be liable to pay parking charges @ Rs. 500 per day to the M/s. Fahrenheit Automobiles Pvt. Ltd.
15. To sum up the above said findings, the impugned orders dated 23.10.2010 passed by the District Forum (ii) are modified as under:
(a) Appellant/OP NO. 1 i.e. M/s Skoda Auto India Pvt. Ltd., A-1/1, Five Star Industrial Area, Shendra, MIDC, Aurangabad, Maharashtra shall pay to the complainant an amount of Rs.11,00,000/- as the depreciated value of car within a period of 30 days from today.
(b) The appellant/ OP No. 1 shall pay to the complainant the compensation to the tune of Rs. 1,00,000/- for harassment and mental agony within a period of 30 days from today.
(c) Appellant/OP No. 1 shall pay to OP NO. 3/Respondent NO. 3 M/s. Fahrenheit Automobiles Pvt. Ltd.
63/8, Shivaji Marg, Moti Nagar, New Delhi 110005 an amount of Rs.5,28,968/- within a period of 30 days from today.
(d) The appellant/OP No. 1 shall take away the car in question from the premises of OP No.3/Respondent No. 3 at his expenditure within a period of 30 days from today failing which he shall pay parking charges @ Rs.500/- per day to OP No. 3/Respondent No.3.
In case of default of payments of the abovesaid amounts within the stipulated periods, an interest @ 12% per anum shall be payable.
16. This also disposes of the appeal No. 837/2010 titled M/s. Fahrenheit Automobiles Pvt. Ltd. V/s. Smt. Lata Jain & Ors.
17. A copy of this order as per the statutory requirements be sent to the parties free of charges. File be consigned to the record room.
18. FDR, if any, deposited by the appellant be released after completing due formalities.
(Salma Noor) Member (N P Kaushik) Member (Judicial) Arya