National Consumer Disputes Redressal
Skoda Auto India Pvt.Ltd vs 1. Shri Pawankumar Mahabirprasad ... on 24 August, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1270 OF 2011 (From the order dated 25.10.2010 in Appeal No.1581/2007 of the State Commission, Maharashtra) SKODA AUTO INDIA PVT.LTD. THROUGH ITS COMPANY SECRETARY PLOT NO.A-1/1, SHENDRA FIVE STAR INDUSTRIAL ESTATE, MIDC, AURANGABAD - 439201 Petitioner Versus 1. SHRI PAWANKUMAR MAHABIRPRASAD BHAGERIA PLOT NO.19, UPVAN SHIVAJI PARK, KOLHAPUR AND 25, SHOPPING CENTRE, 1ST FLOOR, ICHALKARANJI, KOLHAPUR 2. SHRINE AUTO PVT LTD. MEHARNAZ, 22/22E, KOLHAPUR (THROUGH ITS MANAGER) 3. AUTO BAHN INDUSTRIES PVT.LTD. PLOT NO.3, STREET NO.9, ZAKARIA BANDAR ROAD, NEAR THE BALMER AND LAVRI, SEWREE (W), MUMBAI-400015 (THROUGH ITS MANAGER) Respondents BEFORE: HONBLE MR.JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr. Uday B.Dube, Advocate Pronounced on : 24th August, 2011 ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition, there is challenge to order dated 25.10.2010 passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short State Commission) vide which appeal of the petitioner was dismissed.
Further, petitioner has also challenged order dated 1.2.2011, vide which application for recall the order dated 25.10.2010 was dismissed.
2. Brief facts of the case are that respondent No.1/complainant, purchased a Skoda Laura Luxury Car from the dealer of the petitioner Skoda Auto at Kolhapur by paying an amount of Rs.15,88,000/- and for the same, he had taken a loan of Rs.13,00,000/- from Tamil Nadu Merchantile Bank. Respondent no.1 alleged that car was not performing well right from beginning and it required repairs at various time. It is also stated that spare parts were changed by the petitioner during the course of period of warranty but later on, he was charged for the repairs. Respondent no.1, thus, alleged that there is a manufacturing defect in the car and, hence, he is entitled for refund of the total price of the car along with the amount of insurance and interest paid on loan along with interest and cost.
3. Petitioner and other opponents filed common written statement and opposed the plea of respondent no.1. It was submitted that during the period of warranty, vehicle was duly repaired as and when demanded by respondent no.1, as per warranty guidelines of the subject vehicle. Hence, there is no deficiency on the part of the opponents.
It was also submitted that the alleged tyre wear and tear was due to external influence and due to rash and negligent driving of the car which cannot be covered under warranty by any manufacturer as their life is dependent upon the usage. Against an allegation that the vehicle stopped on 10.11.2006, after examination of the vehicle by the experts, it was submitted that, some foreign particles were present in the turbo system which was stubborn remnants that caused an obstruction in suction but not due to any manufacturing defect.
It is pertinent to note that after the vehicle was resorted to normalcy and after proper rectification, petitioner repeatedly asked respondent no.1 to take the vehicle. However, respondent no.1 did not take away the vehicle for oblique purposes for which petitioner is not liable in any manner. It was further submitted that problem in the Turbo and Intercooler does not render the entire vehicle as defective even when all necessary repairs were carried to the respondents entire satisfaction. Thus, there was no deficiency on the part of the petitioner and hence, the complaint deserved to be dismissed.
4. District Forum after going through the pleadings of the rival parties and evidence on record, vide order dated 20.9.2007 held that respondent No.1 has supplied a defective vehicle and ordered that it should replace the vehicle of the basic price and the same model, or refund the price of the vehicle of Rs.15,88,000/- + insurance premium of Rs.20,461/- + Registration Fees Rs.1,11,189/- and interest thereon @ 7.5% per annum with effect from 11.3.2007. The District Forum further awarded compensation of Rs.25,000/- towards the mental harassment and cost of Rs.5,000/-.
5. Being aggrieved by the order passed by the District Forum, petitioner and respondent Nos.2 and 3, preferred appeal no.1581of 2007 before State Commission.
6. State Commission vide impugned order dismissed the appeal on the ground of delay.
7. Application for recall/setting aside of the order dated 25.10.2010, was also dismissed by the State Commission, vide its order dated 1.2.2011.
8. It is contended by learned counsel for the petitioner that during pendency of appeal several attempts were made to settle the matter amicably and the same is noted in various orders passed by the State Commission. The petitioner also handed over the vehicle in road worthy condition to the respondent No.1 during the pendency of appeal and respondent No.1 also had issued satisfaction note being entirely satisfied with the service and with the vehicle. It is also contended that respondent No.1 is in use and operation of subject vehicle, without any problem and present odometer reading of the vehicle reported is 1,35,508/- k.ms., which proves that the vehicle does not have any defect.
9. There is delay in filing of the present revision petition before this Commission. Petitioner has filed an application for condonation of delay. The ground taken for condonation of delay is that, after receipt of the certified copy of the order petitioner sought legal opinion from lawyer at Mumbai.
Petitioner was advised to file an application for recall/review of order dated 25.10.2010 and accordingly, petitioner filed an application which was dismissed on 1.2.2011. Some time was lost in getting the translation of Marathi documents as required and demanded by the lawyer of the petitioner at Delhi.
Thus, there is no intentional delay on the part of the petitioner.
10. In the entire application for condonation of delay, petitioner has nowhere stated the name of any lawyer who advised petitioner to file application for recall/review. Neither, the name of lawyer at Delhi, who had demanded the translation, has been mentioned nor any affidavit of these lawyers have been filed. Thus, we find that no sufficient ground for condonation of delay is made out and on this point alone, petition is liable to be dismissed.
11. Now, coming to the merits of the case, District Forum in its order has held ;
15. The fact that from the purchase of the vehicle by the complainant on 1.9.2006, defects of one or another nature are cropping up in the vehicle, has been accepted by the respondents in their say. Out of those defects, the defect in horn which was of trivial nature, was removed by the respondents free of cost. After purchase of the vehicle, on 4th day, when the vehicle was taken to Hyderabad the tyre of the vehicle got burst. As contended by the respondents, this may be due to the bad condition of the roads. However, when the complainant made a demand that the cost of the tyre be given to the complainant, no heed was paid to the said demand. But, after getting the notice of the present complaint filed before this Forum, the respondents have sent a cheque of Rs.5,500/- and there is no mention about this fact in their say. We have taken of this fact.
16. On 2.3.2007, when the complainant was going to Mumbai to meet his ailing mother, the vehicle stopped/failed. As the complainant was stranded on the road for six hours and there was delay in meeting the mother, the complainant suffered a lot of mental harassment.
17. When the complainant sent the vehicle to respondent no.3 as advised by the respondents, as the turbo and intercooler were faulty, the same were replaced and the vehicle was returned to the complainant on 9.3.2006. The said two parts cost Rs.95,347/-. As the vehicle was under warranty, the respondents have replaced the said parts without charging anything, which fact has been admitted by the complainant. There is a mention about the fact that the said parts are faulty in the job card of the respondents. Thereafter, again immediately on 11.3.2007, the vehicle stopped due to failure of turbo and intercooler and the complainant was required to send it to the respondents. We have taken note of this fact.
18. Turbo and Intercooler, both are important and cost Rs.95,347/-. The respondents have also admitted in their say and on the job card that the said parts are faulty. There is substance in the contention of the complainant that if these parts are required to be replaced after warranty period, it would be a big financial loss. The contention of the respondents that on 10.11.2007, while traveling to Mumbai, the vehicle stopped due to exhaustion of petrol and he could not notice this fact, cannot be accepted, inasmuch as, the complainant is a regular user of the vehicle. Even, as on today, he is using the SKODA OCTAVIA vehicle of the SKODA company.
The said vehicle is giving service even after running 1,60,000 k.m.s. Albeit, as the first vehicle gave good performance, the complainant has purposely purchased the luxury model of the same company by spending Rs.6 lakhs more. Therefore, the contention that only to extract money or to cause harassment to the respondents, the complainant has been filed, has no substance.
19. It is the contention of the respondents that the reason for stopping of vehicle on account defect in the turbo and intercooler but due to the foreign particles.
Due to the said particles the vehicle stopped and when it was repaired and though this fact was intimated to the complainant orally and in writing, he did not take delivery/possession of the vehicle from the garage of the respondents. As per the say of the respondents, their company is well knownb for its performance/merit/quality of vehicle and quality control. Despite this, it is wroth special noting that when the new brand car was taken to the garage/workshop for repairs of the costly and important parts, due to the negligent attitude of the expert technicians of the company some foreign particles are left in the car and due to which the Turbo and intercooler parts are damaged and the car stopped moving.
20. No proof has been adduced by the respondents to convincingly prove that the said defect was not in the turbo and intercooler but only because of foreign particles. The complainant has also filed an affidavit of another customer i.e. Shri Rajendra Gandhi, who has purchased the same model, in which, he has mentioned that due to the stoppage of the turbo engine of the car, how much inconvenience and harassment he was required to face. His statement in the affidavit that, even after buying a car worth more than 18 lakhs, I do not feel safe or confident about traveling in it. A Maruti is much more reliable aptly describes as to what a customer expects from the vehicle. It is most important that a customer feels confident, safe and secured while he sets out for travel in the vehicle which he has purchased by spending huge amount. We have reached a conclusion that if the vehicle fails/stops due to failure of import parts and the customer is stranded on the road and he gets a feeling that I do not want this vehicle, then the company, which has produced the vehicle is solely responsible for this.
12. State Commission while dismissing the appeal, in its impugned order observed ;
This application is for condonation of delay to condone the delay of 70 days in filing appeal.
Way back on 24.3.2008, the Commission warned the counsel appearing for appellants that no further adjournment would be granted and matter would be heard finally.
Thereafter, some time is sought on the ground of settlement talk were going on and dragged the matter upto this date. Thereafter, adjournments were sought on behalf of applicants/appellants to take instructions from the client.
On 9.8.2010, Advocate Mr. Vishal Bodhe, proxy counsel Mr.Pramod patil, who is also present today on behalf of applicants/appellants, again sought adjournment and the Commission granted adjournment by way of last chance for hearing on delay condonation application subject to payment of cost of Rs.500/- to be credited in the Consumer Legal Aid Fund of this Commission. Again, today, Advocate Mr. Bodhe appearing for the applicants/appellants, proxy counsel for Mr.Pramod Patil, tried to seek adjournment. We refused to grant adjournment. Thereafter, when we asked the learned counsel to make his submissions, he preferred to keep mum and did not make any submission. In these circumstances, we heard Mr.Patwardhan, learned counsel appearing for the respondent.
Delay of 70 days is not at all satisfactorily explained as could be seen from the statement made in para 3 of the application for condonation of delay. Copy of the impugned order which was received on 20.9.2007, was forwarded at the fag end of expiry of limitation i.e. first week of October, 2007 and, thereafter, no effective steps appears to have been taken to file appeal. We are not satisfied with the reasons mentioned and we find that the delay is not satisfactorily explained. We hold accordingly, and pass the following order :
1. Misc.
Application no.2142/2007 for condonation of delay stands dismissed.
2. In the result, appeal no.1581/2007 is not entertained.
3. No order as to costs.
4. Cost awarded on 9.8.2010 if not paid within 15 days, Registry to take necessary steps to issue recovery certificate to the Collector.
13. Not satisfied with getting two adverse findings in its favour, petitioner filed an application for recall of order dated 25.10.2010 of the State Commission, which was rightly dismissed by the State Commission.
14. It would be pertinent to point out that there is nothing on record to show that petitioner has till date paid or deposited the cost as imposed by the State Commission vide order dated 9.8.2010.
15. The entire chain of circumstances as narrated above, goes on show about the conduct of petitioner, which is very casual and callous. Carelessness and negligence is writ large on the part of the petitioner. Petitioner has taken the foras below for granted and has scant respect for the judicial system. Petitioner even failed to pay or deposit the costs imposed by the State Commission. Moreover, at every stage, there has been delay on the part of the petitioner in pursuing this litigation. It is well settled that inefficiency and delay cannot command premium. Moreover, why due to negligence and careless ness on the part of petitioner, respondent no. 1, the consumer, be made to suffer.
16. Looking from any angle, the conduct of the petitioner in pursuing this litigation in a most casual manner cannot be condoned.
17. It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited.
18. Recently, Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
19. Here in the present case, after scanning through the record, we find that there is no illegality or infirmity in the impugned order passed by the State Commission.
20. The present revision petition filed on behalf of the petitioner is merit less. Same has been filed just to waste the time of this Commission as well as of the fora below. Accordingly, we dismiss the application for condonation of delay as well as this petition with punitive costs of Rs.30,000/- (Rupees thirty thousand only).
21. Petitioner is directed to deposit the cost of Rs.30,000/- in the Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
22. List on 30.9. 2011 for compliance.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER Sonia/