National Consumer Disputes Redressal
Skoda Auto India P Ltd. & 2 Ors. vs Bhawesh Narula on 3 August, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1717 OF 2014 (Against the Order dated 10/03/2014 in Appeal No. 127/2011 of the State Commission Uttaranchal) 1. SKODA AUTO INDIA P LTD. & 2 ORS. A1/1 FIVE STAR INDUSTRIAL AREA, SHENDRA , MIDC, (THROUGH SHRI NAGESH S. SANGLE, MANAGER,-LEGAL AURANGABAD MAHARASHTRA 2. OBERAI AUTO SALES, TIKONIYA CHAURAHA (NEAR ICICI BANK) NAINITAL ROAD, (THROUGH SHRI C.P KHANNA, PROP) HALDWANI UTTRAKHAND 3. CHANNEL MOTORS, TIKONIYA CHAURAHA (NEAR ICICI BANK) NAINITAL ROAD, (THROUGH SHRI C.P KHANNA, PROP) HALDWANI UTTRAKHAND ...........Petitioner(s) Versus 1. BHAWESH NARULA S/O MR.SATISH KUMAR NARULA, C/O SHREE BALAJI UTTRAKHAND GASES LTD AGM-31, RUDRAPUR, DISTRICT : UDHAMSINGH NAGAR UTTRAKHAND ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioner : Mr. Vipin Singhania, Advocate For the Respondent : MR. DUSHYANT PARASHAR
Dated : 03 Aug 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners against the order dated 10.03.2014 passed by the Uttarakhand State Consumer Disputes Redressal Commission, Dehradun (in short, 'the State Commission') in Appeal No. 127 of 2011 - M/s. Skoda Auto India Pvt. Ltd. & Ors. Vs. Sh. Bhawesh Narula by which, while dismissing appeal, order of District forum allowing complaint was upheld.
2. Brief facts of the case are that Complainant/respondent purchased Skoda Fabia diesel car from OP No. 2 / Petitioner No. 2 on 14.10.2009 for a sum of Rs.6,35,950/- which was manufactured by OP No. 1/Petitioner No. 1. On 17.05.2010. When complainant was in Dehradun, the vehicle had pick-up problem which 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 needs 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 a 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/Respondent 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. The 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/Respondent 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. Alleging deficiency on the part of OPs, complainant filed complaint before District forum. OPs resisted complaint and OP No. 1 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 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. 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/Respondent No.3 and that there is no manufacturing defect in the vehicle. 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 cannot be replaced free of cost and that there is no deficiency in service on their part and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OPs to pay jointly or severally Rs.6,84,950/- with 6% p.a. interest pendent lite and further directed to pay Rs.3,000/- as cost of litigation. Appeal filed by OPs was dismissed by leaned State Commission vide impugned order against which this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioners submitted that inspite of no proof of manufacturing defect in the vehicle and inspite of no deficiency in service, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. It is not disputed that complainant purchased car from OP No. 2 which was manufactured by OP No. 1 on 14.10.2009. It is also not disputed that after running about 16,000 kms. on 17.5.2010 the complainant observed pick up problem in the car and approached OP No. 2 and OP No. 2 delivered the car on same day after repair including replacement of filters at the cost of complainant for which complainant paid Rs.7,630/-. It is also not disputed that on 28.5.2010, complainant faced some problem and approached OP No. 3 and OP intimated to the complainant that injector has to be replaced, cost of which is to be borne by complainant to which he agreed as per paragraph 15 of the complaint.
6. When car had run for more than 7 months and covered about 16,000 kms. without any problem, no manufacturing defect in the vehicle can be presumed. Learned District forum in its order observed that case was not pertaining to manufacturing defect in the vehicle, but it pertained to deficiency in service on account of opening engine and parts again and again after first free service. On the other hand, learned State Commission observed that there was manufacturing defect in the vehicle which could not be cured even after repeated repairs, as vehicle was left for repairs on 28.5.2010 and proforma invoice was issued on 10.10.2010. It is also admitted case that complainant has not placed any expert evidence on record to substantiate that there was any manufacturing defect in the vehicle. Learned Counsel for the petitioners has placed reliance on judgment of this Commission in Maruti Udyog Ltd. Vs. Hasmukh Lakshmichand & Anr. - 3 (2009) CPJ 229 (NC) in which it was observed that manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. To prove such a defect, opinion of an Expert is necessary. Learned State Commission wrongly observed that there was no question of sending vehicle to any laboratory for examination/analysis whereas for proving manufacturing defect, expert opinion was required . Learned State Commission further observed that as vehicle was with OP-3, it could have got the vehicle examined from independent mechanic/laboratory in the presence of complainant to find out actual problem, but same was not done, so, manufacturing defect was presumed. This observation is not as per law because OP No. 3 was not under an obligation to get vehicle examined from independent mechanic regarding manufacturing defect, but complainant ought to have moved application before District Forum, though, vehicle was lying with OP No. 3. He also placed reliance on judgment of this Commission in 3 (2010) CPJ 130 (NC) - Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors. in which it was observed as under:
"At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential input. The Honble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. When the present case is considered in this backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Merely because the car had been taken to the workshop of the petitioner-dealer several times or because a number of letters/complaints had been addressed to various functionaries and authorities of the opposite party-manufacturing company, it will not by itself amount manufacturing defect".
As per condition of warranty replacement of the car or refund was expressly excluded and warranty covers repair or exchange of any part thereof which needs replacement or repair for any reason of defective workmanship or defective components which makes it clear that when there was defect only in a part, at the most it could have been ordered for replacement of that part, but there was no question for refund of price without any manufacturing defect.
7. Learned District Forum allowed refund of price on the ground that vehicle was lying with OP No. 3 since last one year whereas learned State Commission upheld order of District Forum on the ground that more than 4 months were taken in replacement of injector and repairing the vehicle and on this basis manufacturing defect in the vehicle was presumed.
8. Merely because vehicle was lying with OP No. 3 since last one year, refund of price could not have been ordered by learned District Forum as complainant himself inspite of notice did not take delivery of repaired vehicle just to avoid payment of charges for replacement of injector, etc. Learned State Commission observed that date of job card was 28.5.2010 whereas proforma invoice is of 10.10.2010 meaning thereby, more than 4 months were taken in repairing the vehicle. Perusal of record reveals that in response to notice dated 27.7.2010 given by complainant's Counsel, OP vide letter dated 30.8.2010 intimated that complainant is to take delivery of vehicle after making payment. This reply indicates that vehicle was repaired before this date. Even if it is presumed that vehicle was not repaired for 4 months. Communication by e-mail between OPs reveals that Mr. Yuvraj Patil by communication dated 16.6.2010 intimated to Girish that problem in injector occurred due to bad fuel quality which cannot be considered for replacement under warranty and he was intimated that it can be replaced on chargeable basis whereas complainant was insisting for replacement free of charge. It appears that on account of insistence for free replacement of injector delay occurred in replacement of injector and complainant agreed for replacement on 13.7.2010 and by proforma invoice dated 10.10.2010 complainant was asked to pay Rs.41,656/- for replacement of pump and filter. Aforesaid e-mail communication also reveals that on account of adulterated fuel injector was required to be replaced and in such circumstances, there was no question of manufacturing defect in the vehicle.
9. Learned District Forum allowed complaint and directed all OPs jointly or severally to refund price of the car whereas OP No. 3 was only a service station with whom vehicle was left for service. Vehicle was not sold by OP No. 3. In such circumstances, no order could have been passed against OP No.3 for refund of price; even then, District forum passed this order which was upheld by learned State Commission.
10. In the light of above discussion, it becomes clear that there was no manufacturing defect in the vehicle and impugned order is liable to set aside. Learned Counsel for the respondent submitted that as vehicle is lying with OP No.3 since last 5 years, it is not in working condition and he will be put to heavy loss for taking vehicle without proper repair. Learned Counsel for the petitioner without admitting any liability regarding manufacturing defect or liability to replace part without charges graciously submitted that petitioner will make vehicle roadworthy and will handover vehicle to the complainant without charging anything for replacement of injector and necessary repairs for making it roadworthy. In such circumstances, it would be appropriate to modify impugned order and direct petitioner to return vehicle in roadworthy condition without charging anything.
11. Consequently, revision petition filed by the petitioners is allowed and impugned order dated 10.03.2014 passed by the State Commission in Appeal No. 127 of 2011 - M/s. Skoda Auto India Pvt. Ltd. & Ors. Vs. Sh. Bhawesh Narula and order of District forum dated 27.5.2011 passed in Complaint No. 116 of 2010 - Sh. Bhawesh Narula Vs. M/s. Skoda Auto India Pvt. Ltd. & Ors. is set aside and petitioners are directed to handover vehicle in roadworthy condition to respondent within one month from today without charging any money for replacement of injector and other necessary repairs. In case respondent does not take delivery of vehicle within 15 days from receipt of intimation from petitioners about roadworthiness of vehicle, petitioners would be entitled to charge expenses incurred in repair and replacement of part before delivery. Parties to bear their own costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER