State Consumer Disputes Redressal Commission
Capt. Sukhjeet Singh Hara vs Skoda Auto India Pvt. Ltd. on 17 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1139 of 2009
Date of institution : 13.08.2009
Date of decision : 17.05.2013
Capt. Sukhjeet Singh Hara son of Sh. Dharamjit Singh, C/o Garden
Resorts, VPO Nandpur, Sahnewal, Tehsil and District Ludhiana.
.......Appellant- Complainant
Versus
1. Skoda Auto India Pvt. Ltd., Plot No.A-1/1, Shendra, Five Star
Industrial Area, MIDC, Tq. & District Aurangabad-431 201
through its Managing Director.
2. Krishna Auto Sales, Authorized Dealer for Skoda Auto,
Dhandari Kalan, GT Road, Ludhiana through its
Director/Managing Director Shri Sachit Passi.
......Respondents- OPs
First Appeal against the order dated
8.7.2009 of the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Shri Navjeet Singh, Advocate. For the respondents : Shri A.S. Bakshi, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complaint under Section 12 of the Consumer Protection Act, 1986 (in short "the Act") was filed by the appellant/complainant, Capt. First Appeal No.1139 of 2009. 2 Sukhjeet Singh Hara, before District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum") for the issuance of following directions to the respondents/opposite parties:-
(a) To replace the vehicle on account of the manufacturing default,
(b)To pay a compensation of Rs.2,00,000/- for mental agony and harassment,
(c) To pay a compensation of Rs.1,50,000/- paid for hiring the rented car from time to time;
(d)To pay Rs.15,000/- as counsel fee and Rs.10,000/- as litigation expenses.
The complaint was partly allowed, vide order dated 8.7.2009 and for the harassment and agony caused to the complainant by the opposite parties, they were directed to pay Rs.25,000/- in addition to Rs.2,000/- as litigation expenses. Feeling aggrieved by the quantum of compensation the complainant has preferred the present appeal for the modification of the order and to enhance the amount of compensation.
2. According to the complainant, he purchased one car make LAURA SKODA from opposite party No.2 for about Rs.16,00,000/-. This huge amount was spent by him to enjoy the esteem status and luxuries of the car. Since the date of purchase the air-conditioner (A.C.) was not working efficiently and he made complaints to that effect to the opposite parties from time to time. It was assured to him First Appeal No.1139 of 2009. 3 that the A.C. was automatic and takes directions from the sensors fitted in the car irrespective of the temperature or weather and that the same would work efficiently. On account of winter season, he did not check the efficiency of the A.C. as there was no need thereof in that season. The problem again started in the summer season and he brought that fact to the notice of opposite party No.2. The A.C. was repaired by that party a number of times but failed to rectify the problem. Even the replacement of each and every part of the A.C. did not yield any result. It was disclosed to him by opposite party No.2 that it was a manufacturing default/problem and, as such, the help was required from opposite party No.1. Even in the e-mail, which was sent by opposite party no.2 to the official of opposite party No.1, it was admitted by the engineers of that party that A.C. worked erratically and urgent help was required from the Company itself for the repairs thereof. The service engineers of opposite party No.1 scrutinized whole engine and the A.C. parts but they failed to rectify the problem. They came up with the plea that the A.C. was O.K. but when he used the car, the same defect occurred. Even opposite party No.1 failed to rectify the defect/problem in spite of repeated efforts made by it. Ultimately, he made a written complaint to opposite party No.2 on 11.6.2007 and left the car in its workshop. Despite repeated e-mails and registered letters, opposite parties no. 1 and 2 did not show any positive attitude for 18/20 days. In reply they had been requesting him for the test drive and for taking the delivery of the car. When he First Appeal No.1139 of 2009. 4 demanded written assurance from opposite party No.3, the officials started giving excuses on one pretext or the other. He is a professional pilot and having other business in India and Canada and, as such, usually visits Delhi and other major cities. On account of the defect in the car, he was compelled to use a hired car for travelling, which caused a loss of Rs.1,50,000/- to him. On 13.7.2007 on the written assurance given by opposite party No.2 he took the delivery of the car but when the same was driven a number of problems occurred, which were duly mentioned by him in the written representation sent by him to opposite party No.2 on 17.7.2007. Opposite parties No.1 and 2 are deficient in service by not providing efficient working of the A.C. and that defect is a manufacturing default, which cannot be cured by replacing the parts thereof. They are also deficient in service in not providing the proper service to him.
3. In the written reply submitted by the opposite parties it has been averred that no such complaint was made by the complainant regarding the A.C. for first five months of the sale of the car. It was for the first time that on 7.4.2007 when the car had already covered a distance of 27569 kilometers that the complaint was made about the A.C. Necessary repairs were carried out. On 14.4.2007 the car was again brought and the pressure switch of the A.C. was replaced and other necessary repairs were also carried out. It was only when the complainant gave a full satisfaction report on the job card that the vehicle was delivered to him. The car was again brought to the garage First Appeal No.1139 of 2009. 5 on 22.4.2007 when the electric fan of the A.C. was not working. After necessary repairs were effected the electric fan started working. The car was again brought on 2.5.2007 for check-up and at that time it was found that all the parts of the A.C. were working properly and the computer showed zero fault. When the car was brought on 13.6.2007 for running repairs, nothing was found wrong with the A.C. and the complainant could not actually explain as to what degree of effectiveness would satisfy him. Originally the A.C. gave trouble and the Company Engineers came to Ludhiana and replaced the compressor assembly, electric fan and condenser assembly. They found that everything including A.C. was in perfect condition and the car was accordingly delivered to the complainant. The complainant had been complaining about the functioning of the A.C. but every time the same was found to be proper. No such written assurance that the A.C. would not develop any trouble could have been given as any machine can develop some problem when it is worked over a period of time. The running of the car for a period of one year and covering a distance of 33745 kilometers is bound to cause some wear and tear. Wear and tear does not come under the warranty. In fact, the complainant wants the replacement of the car, which is not possible. After the expiry of such period and running of the car for such a long distance, it is not a case of either replacement of the car or for refund of the money. The complaint does not disclose any cause of action. The vehicle was purchased for commercial purposes and, as such, the First Appeal No.1139 of 2009. 6 complainant is not a consumer. They prayed for the dismissal of the complaint with heavy costs and damages under Section 26 of the Act.
4. Both the sides produced their evidence in support of their respective averments. After going through the same and hearing learned counsel for both the sides the District Forum partly allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by learned counsel for the complainant that the District Forum on the basis of the evidence produced on the record came to the correct conclusion that the complainant suffered harassment and agony on account of the defective A.C., which the opposite parties could not set proper in spite of the efforts made by them a number of times. He suffered that harassment and agony for more than one year and suffered financial loss also as he had to hire the other car for travelling, as the car remained with opposite parties for repairs. In these circumstances, the compensation of Rs.25,000/- so awarded by the District Forum is very meagre and the same is liable to be enhanced and the compensation as claimed in the complaint should be allowed.
7. On the other hand, it was submitted by the learned counsel for the opposite parties that the car in question was replaced by the opposite parties with a new car after the complainant was not satisfied with the functioning of the A.C. of that car and after the replacement First Appeal No.1139 of 2009. 7 of the car he ceases to be a consumer and no cause of action survives to him. No expert was examined by the complainant for proving the defect in the A.C. In fact, the A.C. was set right by the opposite parties but every time he insisted for the replacement of the old car with a new one and keeping in view that they would not be able to satisfy him, they agreed for the replacement of the old car with a new one, which was done accordingly and that fact has been incorporated in the order of the District Forum. In these circumstances, there is no question of making any modification in the order of the District Forum so as to enhance the compensation awarded to the complainant.
8. We do not agree with the submissions made by the learned counsel for the opposite parties that after the replacement of the old car with a new one the complainant ceases to be a consumer and that no cause of action survives to him. The acts and omissions on the part of the opposite parties complained of in the complaint had taken place before the replacement of the car and at that time the complainant was a consumer of the opposite parties. The rights which became invested in him do not stand divested subsequently by the replacement of the car. At the most, it can be said that one of the directions sought for by him regarding the replacement of the car has become infructuous.
9. A perusal of the grounds of appeal makes it very much clear that the complainant is seeking the enhancement of compensation on the ground that the car, which was of the make Laura Skoda, has been replaced with another car make Octavia worth Rs.11.35 lakh, which is First Appeal No.1139 of 2009. 8 less than the price of the original car by Rs.4.50 lakh and that the compensation is liable to be enhanced keeping in view the difference in the prices of those two cars.
10. The compensation cannot be enhanced on the said grounds. It is pertinent to note that the complainant filed an application for the amendment of the complaint so as to take up these facts and for claiming a sum of Rs.2,75,000/- on account of the replacement of the car by a car of lower cost. That application was dismissed by the District Forum, vide order dated 23.4.2008. No revision was filed against that order and the same has become final. It was observed by the District Forum, while dismissing that application, that the facts which the complainant wanted to take up by way of amendment give him a right to file a separate complaint. That was a fresh cause of action and the complainant could have filed a fresh complaint. After the dismissal of that application for amendment, these facts cannot be taken into consideration for enhancing the amount of compensation so awarded to the complainant.
11. We also do not find any merit in the submissions made by learned counsel for the opposite parties that after the replacement of the car the complainant ceases to be a customer and, as such, no such relief could have been granted to him. All the acts complained of in the complaint relate to the period prior to the replacement of the car. It may be said that the cause of action regarding the replacement of the car ceases after the car was replaced but for any loss or injury suffered First Appeal No.1139 of 2009. 9 by him during the period the original car was being used by the complainant, he can certainly be awarded compensation under Section 14 of the Act. It is to be noted that the opposite parties came up with an application for dismissal of the complaint on the same grounds, which have been so submitted by their learned counsel at the time of arguments. That application was dismissed by the District Forum vide order dated 12.11.2008. Admittedly no revision has been filed against that order and the same has become final. It was correctly observed by the District Forum, while dismissing that application, that the damages are being sought by the complainant for deficiency in service for the period during which he remained the owner of the vehicle and that the sale of defective vehicle to opposite party No.2 during the pendency of the complaint would not absolve the opposite parties for paying compensation for deficiency in service.
12. In view of the admissions made by the opposite parties in their written reply that the car was repeatedly brought to the workshop for the repairs of the A.C. and that the parts thereof were changed from time to time, we need not to discuss the evidence produced by the complainant to that effect. However, it was pointed out by the learned counsel for the opposite parties that for the first time such a complaint about the defect in the A.C. was made by the complainant after six months of the purchase of the car and in view of the evidence on the record learned counsel for the complainant had to admit that fact. He tried to exert that there was no possibility of finding such a defect in First Appeal No.1139 of 2009. 10 the A.C. as it was winter season during that six months. It is a fact that the car was purchased on 21.7.2006 and in this State the months of July to September are very hot and every car owner, if provided with A.C. facility, uses the same. So, it is to be taken that for the first six months there was no complaint regarding the functioning of the A.C. However, thereafter there was such a defect for which the car was taken to the opposite parties repeatedly. It also stands proved from the oral and documentary evidence produced by the complainant, which was not challenged at the time of arguments, that the said defect could not be rectified by the engineers of the opposite parties. It appears that on that very account the opposite parties had agreed for replacing the old car with a new car. That was replaced, vide invoice Ex.C-10 dated 11.9.2007. Till the replacement of that car, the complainant was being put to inconvenience on account of improper functioning of the A.C. of the car. As already observed above, it was after six months that the complainant brought the defect in the A.C. to the notice of the opposite parties. No doubt, he has tried to take up the plea in the complaint that from the beginning the A.C. was not functioning properly but he has not proved on record any such documentary evidence in support of that fact. If there was such a defect, there should not have been any hitch on his part to take the car immediately to opposite party No.2 for rectifying the defect. The car was replaced after about one year and two months and if the first six months are excluded, the period during which the complainant First Appeal No.1139 of 2009. 11 suffered harassment, inconvenience or agony comes to eight months. To our mind the compensation of Rs.25,000/- awarded by the District Forum is on the lower side for such inconvenience. No doubt, as per the averments of the complainant, he suffered financial loss of Rs.1,50,000/- for hiring the other car when his car was with the opposite parties for repairs but he has not produced on record any such receipt against which he paid the amount for the hired car nor has proved on record affidavit of any such person whose car was hired. In the absence of any such evidence no such amount can be awarded as compensation. However, keeping in view the nature of inconvenience and harassment suffered by him for the period of 8 months, the compensation of Rs.25,000/-, so awarded by the District Forum, is enhanced to Rs.50,000/-. The appeal is allowed to that extent. The order of the District Forum is modified and the opposite parties are directed to pay Rs.50,000/- to the complainant as compensation and that is to be paid within a period of 30 days of the passing of this order.
13. The arguments in this case were heard on 15.5.2013 and the order was reserved. Now, the order be communicated to the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
May 17, 2013 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.1139 of 2009. 12