State Consumer Disputes Redressal Commission
Thomas Joseph vs Caculo Automotive Pvt. Ltd. & Another on 24 January, 2019
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A. No. 152/2017
Thomas Joseph,
Aged 28 years of age,
Contractor, Resident of H. No. 107/A,
Poreibhat, Verna,
Salcette, Goa - 403 722. .... Appellant
V/s.
1) Caculo Automotive Pvt. Ltd,
Caculo Enclave,
St. Inez, Panaji, Goa - 403 001.
2) Volkswagen Group Sales India Private Ltd,
3, North Avenue 3/4, Maker Maxity,
Bandra Kurla Complex, Bandra (E),
Mumbai - 400 051. ... Respondents
Appellant through his Power of Attorney holder.
Ms. R. Kantak, Advocate for Respondent No. 1.
Mr. N. G. Kamat, Advocate for Respondent No. 2.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 24/01/2019
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] This Appeal is directed against the Judgment and Order dated 13/10/2017 passed by the Consumer Disputes Redressal Forum, North Goa (the "Forum", for short) in Consumer Complaint No. 25/2012. The Appellant was the Complainant and Respondents were the Opposite Parties (OPs, for short) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
22. The Complaint pertained to a Polo 1.2 diesel Trendline car manufactured by the OP No. 2 and purchased by the Complainant from the OP No. 1 for Rs. 6,10,500/- and the delivery of which was taken on 19/05/2011. The Complainant alleged that on 10/09/2011 when he was driving the said car he noticed that the coil light on the instrument panel was glowing due to which he stopped the vehicle and called the helpline number. The Complainant stated that he was advised to cool the engine and drive again but after about an hour, in the middle of the night, on the road, the Complainant while driving again noticed the light glowing and he opened the bonnet of the vehicle and got the smell of diesel from the engine compartment. According to the Complainant, the car was not starting thereafter and hence he left the vehicle on the road and called the helpline in order to tow the vehicle from Verna. The Complainant stated that the car was accordingly towed on 10/09/2011 at 9.45 a.m. and the dealer delivered the car to him on 13/09/2011 and he was told that the delay was because they could not find and rectify the fault and that the fuel pipe had a leakage. The repair order dated 13/09/2011 was issued. The Complainant stated that on 22/10/2011 when he went to Panaji from Verna along with his family the car stopped again and would not start and he called up the helpline number and he was told that he should cool down the engine and then try to start the car. The Complainant stated that it took almost two hours for the engine to cool down and he had to spend the said time on the road side and had to arrange for a taxi for his parents who are Sr. Citizens and were not in a position to be on the road side for a long time. The Complainant stated that after about two hours he started the car and drove it back home and put the engine off. The Complainant stated that when he tried to start the car again it would not start. The Complainant further stated that on the next day the dealer was contacted who told him that there could be a fault with the fuel pump and it had to be replaced and told him to bring the car to the service centre at Panaji. The Complainant further stated that 3 since the first service was due, he took an appointment for 25/10/2011 and took the car for service and he was told that the fault in the fuel pump had to be rectified. The Complainant alleged that later on in the evening he was informed that the fuel pump had to be replaced but the dealer did not have the same in stock and that it would take more than a week for the stock to arrive. The Complainant stated that no steps were taken to provide him with alternative vehicle and therefore the vehicle was taken back by him as they could not give the particular date for getting the spare fuel pump. The Complainant stated that on the day of service the wheel balancing of the car was done and that he has been using the car in that condition from 25/10/2011 which caused lot of inconvenience and tension to him since it was not known as to when and where the car would stall. The Complainant further stated that this has been a recurring problem and once the engine gets heated up the car just stalls and does not start again. The Complainant stated that he had to engage a taxi and travel to attend to emergent work and also when he had to send his parents back. The Complainant further stated that on 31/10/2011 again the car stalled at Nuvem and when he called the helpline number he got the same answer that the engine should be cooled down and then started. The Complainant stated that after about an hour the engine started and then they returned to Verna but thereafter the vehicle would not start again. The Complainant stated that on 01/11/2011 the vehicle was towed to the service station. The Complainant stated that on 01/11/2011 the fuel pump was replaced. The Complainant stated that on 19/11/2011, within a period of about three weeks of doing wheel balancing, the said wheel balancing failed and the vehicle began to wobble and become unsteady while driving and he called the service station but they did not attend and therefore he had to take the vehicle to private service station in Margao for wheel balancing. The Complainant further stated that on 28/11/2011 the panel lights began to glow while he was driving to Old Goa and as per the 4 manual this was an indication of engine mismanagement. The Complainant stated that the vehicle was taken to the showroom and on inspection he was told that the wire was damaged by rodents and in the event of a repeat of glowing of penal lights, the entire wiring had to be checked and replaced. The Complainant stated that he understood that there should be a manufacturing defect to the car which cannot be repaired. He stated that there was total deficiency in providing services to him. The Complainant also sent email to the Company stating about the troubles. The Complainant stated that the problem of light glowing reoccurred on 22/02/2012 and the vehicle was taken to the showroom on 23/02/2012 and the repairs were down but on returning with the car and on reaching Bambolim, the panel lights again started glowing. The Complainant stated that the vehicle was again taken to the showroom on 25/02/2012 for repairs. The Complainant stated on 05/03/2011 the engine of the car had a rattle sound when it was taken to the showroom and he was told that the engine foundation had worn out and will have to be replaced with hydraulic foundation. The Complainant stated that service center did not have the parts and therefore appointment was given on 17/03/2012 on which day the servicing was done. The Complainant therefore filed the Complaint praying therein to direct the OPs to refund the entire amount of Rs. 6,10,500/- together with interest from the date of purchase of the vehicle i.e. 30/04/2011 till the entire amount was paid and further to pay compensation of Rs. 3,50,000/- towards the expenses he had to incurred due to the breakdown of vehicle, hiring taxi and for mental and physical stress.
3. The Complainant relied upon the copy of RC book, insurance cover note, tax invoice of the vehicle, pick up receipt dated 10/09/2011 for towing the vehicle, tax invoice for repair dated 13/09/2011, tax invoice for repairs dated 25/10/2011, receipt dated 25/10/2011, receipt of towing of the vehicle dated 01/11/2011, 5 repair and discharge order dated 01/11/2011, bill of wheel balancing done in private service station dated 19/11/2011, photograph of penal lights, email letter sent to the Company along with reply, photograph of glowing of light dated 22/02/2012, repair order dated 24/02/2012, repair order dated 25/02/2012 and replacement of engine mounting bill dated 17/03/2012.
4. By way of written version, the OP No. 1 denied the allegations made by the Complainant which were contrary to their case. The OP No. 1 stated that the helpline number was not managed by OP No. 1 but by the personnel of OP No. 2. The OP No. 1 stated that on 10/09/2011 the vehicle was towed and it was found that there was fuel leakage from engine compartment due to which the malfunction light was glowing in the instrument cluster. The OP No. 1 stated that by this time the vehicle had run 10,810 kilometers. The OP No. 1 stated that it carried out the repairs and did complementary washing and vacuuming of the car. The OP No. 1 stated that tax invoice repair order no. S0112697 dated 25/10/2011 mentions the problems reported by the Complainant when the vehicle was brought for first servicing and at this time the kilometer reading was 14,027 kilometers. The OP stated that satisfaction note dated 25/10/2011 was signed by the Complainant. The OP No. 1 stated that on 01/11/2011 the vehicle was towed to the service station and at this time the kilometer reading was 14,567 kilometers. The OP No. 1 stated that after 25/10/2011 till 31/10/2011 the vehicle had run 530 kilometers. The OP No. 1 stated on 01/11/2011 the fuel pump was replaced. The OP No. 1 denied that the wheel balancing failed on 19/11/2011. The OP No. 1 added that the wheel balancing depends upon a number of parameters being the condition of the road on which the vehicle is driven, the speed at which the vehicle is driven, the air pressure of the tyres, etc. and consequently, there is no guarantee that can be given by any service station that the wheel balancing done will last for any particular 6 period of time. The OP No. 1 stated that as on 17/03/2012, in less than 10 months, the vehicle of the Complainant had done 27,400 kilometers. The OP No. 1 stated that after replacement of the fuel pump on 01/11/2011, there was no grievance as regards the fuel pump. The OP No. 1 further stated that the repair order No. S0114559 dated 24/02/2012 indicated that the same related to the pressure pipe and the fuel filter and the connecting hose. The OP No. 1 further stated that the glowing of the panel lights on 25/02/2012 was on account of completely different reason being related to the temperature sensor. The OP No. 1 stated that the vehicle had run on that date for 25,330 kilometers and the Complainant at the time of taking delivery of the vehicle on 24/02/2012 was fully satisfied with the repairs and had signed the satisfaction note. The OP No. 1 further stated that on 05/03/2012 the vehicle was brought contending an abnormal noise and when checked it was found that the time cover was loose and this was immediately fixed and the Complainant had signed satisfaction note. The OP No. 1 stated that on 17/03/2012 the vehicle was brought on account of a completely different reason being related to engine foundation and on this day the vehicle had done 27,400 kilometers and the repair was to the satisfaction of the Complainant under warranty and the vehicle was immediately returned to the Complainant. The OP No. 1 stated that there was absolutely no case of any technical fault or manufacturing defect in the car and there was no deficiency of service.
5. The OP No. 1 relied upon the copies of satisfaction notes dated 25/10/2011, 24/02/2012, and 05/03/2012, receipt dated 29/03/2012 and Form No. 18.
6. The Complainant filed his affidavit-in-evidence whereas the OP No. 1 filed the affidavit-in-evidence of the power of attorney holder namely Shripad Ramchandra Dewari. The Complainant, the OP No. 1 and the OP No. 2 filed written arguments before the Forum.
77. The Forum held that the Complainant failed to produce expert opinion to prove that the subject vehicle suffered from problems as alleged or to establish any manufacturing defect in the vehicle. The Forum held that the question of replacement/refund of vehicle did not arise since the warranty policy provided only for repairs and/or replacement of defective parts. The Complaint came to be dismissed. The Complainant is aggrieved by the impugned Judgment and Order.
8. Records and proceedings of Complaint No. 25/2012 were called for. The Power of Attorney holder of the Complainant argued on behalf of the Complainant; Ms. R. Kantak, Lr. Counsel argued on behalf of the OP No. 1 and Mr. Kamat, Lr. Counsel argued on behalf of the OP No. 2. We have gone through the entire material on record.
9. The Complainant has relied upon the Judgment dated 07/08/2012 passed by the Hon'ble National Commission in Revision Petition No. 2207 of 2007 ("Tata Motors Limited Passenger Car Business Vs. Navin Nishchal and another"), In the case supra, the District Forum had held that no expert evidence was necessary to establish that there were some manufacturing defects in the car, which were beyond rectification as evidenced by the repeated failures of the opposite parties to control the high consumption of engine oil and excessive emission of smoke. The District Forum had ordered the OP No. 2 to replace the defective car with a new car of the same model with a fresh warranty and had also awarded compensation of Rs. 10,000/- to the Complainant for the harassment and inconvenience suffered by him and Rs. 2,500/- as cost of litigation. The Delhi State Commission partly allowed the appeal and set aside the direction to replace the defective car with a new car and directed the appellant to refund to the respondent the entire cost of the car minus depreciated value at 10% as the consumer had used the car for more than two years and to pay Rs. 50,000/- as 8 compensation as to the mental agony, harassment, physical discomfort and emotional suffering suffered by the appellant. The National Commission held that reference of the goods to an appropriate laboratory (or expert) for determination of defects in goods is not entirely mandatory. The National Commission found that the new car was taken repeatedly to the workshops of the dealer/manufacturer. The vehicle did not run smoothly even for a month and within two months of the purchase it was taken to the workshop of the OPs with complaints of high consumption oil and in less than four months it had started emitting excessive smoke. The National Commission observed that the fact that the engine assembly had to be changed altogether is a clear admission of the reality in the case, viz there was some manufacturing defect in the engine assembly leading to excessive consumption of engine oil and emission of smoke. The orders of the District Forum and the State Commission were set aside and the petitioner was directed to pay to the complainant/respondent compensation of Rs. 40,000/- for the harassment, mental agony and expenditure suffered by him since the purchase of the car till replacement of the engine assembly and cost of Rs. 10,000/-. The facts and circumstances of the case supra are totally different from the facts and circumstances of the case before us and the above Judgment of the Hon'ble National Commission is not applicable to this case. The Complainant had purchased the said vehicle on 19/05/2011 and as on 17/03/2012, i.e. in less than three months, the vehicle had run 27,400 kilometers. By 10/09/2011, the vehicle had covered 10,810 kilometers; by 25/10/2011, it had covered 14,027 kilometers; by 01/11/2011, it had covered 14,567 kilometers; by 22/02/2011, it had covered 25,291 kilometers and by 17/03/2012, it had covered 27,400 kilometers. It should be kept in mind that from 25/10/2011 till 31/10/2011 the vehicle had run 530 kilometers. Having used the vehicle for a substantial running as above, the Complainant cannot be allowed to claim that the vehicle has technical or mechanical defect/s. From 9 the records, it is seen that the vehicle was brought to the service station for different problems every time. According to the Complainant since the vehicle had to be brought to the service station for a repeated number of times, the said vehicle had a manufacturing defect. In the type of the case as before us, manufacturing defect cannot be proved merely by way of affidavit filed by the Complainant and more particularly in a case where the vehicle had already run for 27,400 kilometers. As has been rightly held by the Forum in order to prove manufacturing defect, the Complainant had to produce evidence of some expert. The Forum has relied upon the judgment in the case of "Kumari Namrata Singh vs. Manager Indus - A Division of Electrotherm & Anr.", reported in [2012 (3) CPR 570 (NC)]. In the said Revision Petition No. 2670 of 2010, by judgment dated 06/08/2012, the Hon'ble National Commission has held that simply because the vehicle was required to be brought to the service station for curing some defects, it cannot be held positively that it was having some manufacturing defects which were not curable. It has been held that for proving the fact of manufacturing defect, expert opinion is necessary. In the present case, the Complainant has not produced any expert opinion. It is not at all proved that the vehicle has some technical or manufacturing defect.
10. The Complainant had, inter alia, prayed for refund of the entire price of the car which is Rs. 6,10,500/- along with interest. While claiming the refund of the entire price along with interest the Complainant had forgotten that he had extensively used the vehicle and the vehicle as on 17/03/2011 had run almost for 27,400 kilometers. Be that as it may, the warranty was not produced by the Complainant. Normally, the warranty policy does not provide for refund of the price of the vehicle or replacement of the car but it provides for repairs and/or replacement of defective parts. The Forum has relied upon the Judgment in the case of "Maruti Udyog 10 Ltd. vs. Susheel Kumar Gabgotra and Anr.", reported in [JT 2006 (4) SC 113] wherein the Apex Court has held that as per the agreement between the parties the terms of warranty policy provided only for repairs and/or replacement of defective parts and hence it is unwarranted and unjustifiable to direct replacement of the good itself. In the present case, it is noticed that every time the car was brought at the service station, the problem was not the same. On 01/11/2011, the fuel pump of the vehicle was replaced and since then, there was no grievance of the fuel pump. The repairs conducted on 24/02/2012 and those conducted on 25/02/2012 were not the same but completely different. Since the vehicle was used extensively, normal wear and tear was bound to be there. It is seen from the records that every time the vehicle was repaired to the satisfaction of the Complainant and every time the Complainant had signed the satisfaction note.
11. It is to be noted that the Complaint was filed on 04/04/2012 and we are now in the year 2019 but there is no single complaint regarding any defect in the said car. Be that as it may, it is an admitted fact that during the pendency of the Appeal, the Complainant has already sold the car to some other person. The Complainant has not disputed this fact.
12. In the case of "M/s. Maruti Suzuki India Limited V/s. Sadhu Ram Chandel & Others" (Appeal No. 810/2008) by Order dated 14/02/2017, the Delhi State Commission has held that law regarding sale of vehicle during pendency is that after the vehicle is sold, the Complainant does not remain a consumer. Reliance has been placed by the Delhi State Commission on the following decisions of the National Commission;
(1) Ansar Pasha Vs. Tata Motors, [IV (2011) CPJ 107]. (2) Honda Cars India Ltd. Vs. Jatinder Singh Madan [IV (2012) CPJ 258].
11(3) R.P. No. 2562/12 Tata Motors Vs. Huzur Maharaj Baba decided on 25.09.2013.
(4) Tata Motors Vs. Manoj Gadi, [II (2014) CPJ 665]. (5) Revision Petition No. 158/15, General Motors (I) Pvt. Ltd Vs. A. Jaya Krishnan decided on 18.09.2015 and (6) Revision Petition No. 612/16, Audhot Prab Vs. Dampo Marketing decided on 15.03.2016.
In the case of "Jatinder Singh Madan" (supra), the car was sold during the pendency of the Appeal before the State Commission. The Hon'ble National Commission has held that as the vehicle has been sold by the complainant during the pendency of appeal which was filed in the year 2007 and decided in the year 2012, the complainant ceases to be a consumer under C. P. Act and complaint is liable to be dismissed.
13. In view of the above, there is no substance in the present Appeal which deserves to be dismissed.
14. In the result, we pass the following:
ORDER Appeal is dismissed with no order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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