State Consumer Disputes Redressal Commission
Mira Exim Ltd. vs Continental Auto Serves on 9 November, 2012
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 9.11.2012 Case No. C-155/07 MIRA EXIM LTD. - COMPLAINANT HAVING ITS REGISTERED OFFICE AT: 523-524, World Trade Centre, Barakhambha Lane, New Delhi 110001 ( India) Though its duly constituted Authorised Representative Sh. S.N. Pandey Versus 1. CONTINENTAL AUTO SERVES - OPPOSITE PARTIES Authorised Dealer of Skoda Auto India PVT. Ltd. A-13, Mohan Co-op. Industrial Estate, Mathura Road, Opposite Sarita Vihar, New Delhi 110044. 2. SKODA AUTO INDIA PVT. LTD. Plot No. A-1/1, Shendra Five Star Industrial Area MIDC, Aurangabad 430201. CORAM : SALMA NOOR - Presiding Member V.K. GUPTA - Member (Judicial) 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? V.K. GUPTA (ORAL) ORDER
1. This is a complaint under Section 12 of the Consumer Protection Act 1986.
2. The brief facts are that the complainant purchased Skoda Superb 2.8 L Car having registration No.DL 2F GG 4000 from OP-1, who is authorized dealer of Skoda Auto India Pvt. Ltd., OP-2 on 13.9.05 for a sum of Rs. 22,58,375/-. The said vehicle was imported as part of the first lot of vehicles under Direct import Scheme by the OP-2 and falls assurances were given that it is luxry car and has durability. After 30,000 Kms of its running, during its warranty period, the said vehicle developed major manufacturing defect. Whenever the said vehicle was driven for a distance of 30 to 40 kms, its engine would start missing and heating up bring the vehicle to an abrupt halt on the road.
This fact was immediately brought to the notice of OP-1 who requested that the vehicle be sent at the service centre and the problem will be removed. On 26.4.07, the vehicle was sent to the Service Centre but the mechanics and engineers of OP-1 were unable to localize the fault. Again it was sent to the expert but he was also unable to detect or identify the exact problem of the vehicle. Anyway, it was assured by the engineers of the OP-1 that the problem has been rectified in as much as they had changed the radiator coolant, oil and filter etc., but the vehicle again started giving the same problem.
On 6.6.07, the vehicle again gave the problem and it was sent to the OP-1 to rectify the recurring defect of the said vehicle. It was pointed out by the officials of the Company that this vehicle is imported one and they were manufactured to meet European Standards. These vehicles were made only to withstand temperature upto 35 degree centigrade but in case of the city like Delhi, it is more than 35 degree centigrade. On 14.6.07, OP-2 informed the complainant that the problem has been detected and required spare part will be dispatched to their dealership i.e. OP-1 and the problem would be sorted out. It was also pointed out that there was a heavy carbon deposit on the head assembly because of a weak spot and this defect has been rectified by cleaning of head and replacement Gasket and because of this reason that the vehicle is giving problem. The Company has sought the second opinion from the various dealers of Mercedes Benz, who vide letter dated 27.7.07 informed that on diagnosis it was found that the fuel pump does not function properly as it gets heated up and due to this the RPM drops and the engine stalls. According to the averment made by the complainant, there is a manufacturing defect, therefore, the complainant prays for the replacement with the new one and in the alternative refund of Rs.22,58,375/-, pay Rs. 10,84,020/- towards interest, Rs. 15 Lac as compensation and legal expenses to the tune of Rs. 55,000/-
4. OP-1 has filed the written statement and denied the entire allegations. It is admitted that the car was purchased on 13.9.05. The complainant himself admitted that he got the services of unauthorized services provider, therefore, the complainant is not entitled to any relief. The vehicle was driven in negligent and in a careless manner of the complainant. Whenever there was any minor problem in the car it was sent to the service station and they were immediately removed. The car was purchased on 13.9.05 since then upto 26.4.07, there was no complaint on the side of the complainant at all regarding the standard and quality as well as performance of the car.
The manufacturing defects have been denied. On 13.5.07, the vehicle was taken by the complainant after complete satisfaction. Radiator, coolant, oil and filters etc. were changed as routine or as and when required on free of cost. According to the job card, there was no complaint about the heating up or stoppage of the engine of the vehicle. The complainant Company is not the automobile engineer or expertise in this field, therefore, complainant could not reach to the conclusion that merely cleaning the engine head and changing the gas kit assembly shall not solve the problem. Under these circumstances as there is no manufacturing defect or any other defect in the engine, the complainant is not entitled to claim any relief.
5. OP-2 has filed the separate written statement and admitted that the car in question was purchased on 13.9.05 and the complaint was filed the complaint after 2 years of the purchase, therefore, it is barred by time. The car was purchased in the name of the Company and mainly for the commercial purpose and not for the personal use, therefore, it is outside the purview of the jurisdiction of the Consumer Forum. Except these two pleas, the OP-2 has taken the same grounds in respect of the defects as taken by the OP-1, therefore, they are not being reiterated.
6. The complainant has filed rejoinder and denied the fresh allegations in the written statement.
7. Both the parties have filed the evidence by way of the defects in their favour.
8. We have heard Ld. counsel for both the parties and peruse the material on record.
9. Ld. Counsel for the complainant very vehemently submitted that he purchased the car from the OPs after paying Rs. 22,58,375/- but within a period of 2 years defects came out , which have been mentioned in the complaint relating to the heating up of the engine and started misfiring and stopping in the middle of the road. According to the contention of the Ld. Counsel for the complainant, these are the manufacturing defect, therefore, the OP be directed to replace the vehicle with a new one or refund the entire amount. On the other hand, it is argued by the counsel for the OPs that there is no evidence at all that there is any manufacturing defect and whenever minor problems appears in the vehicle and it is brought to the service station, they were immediately removed, even radiator coolant, oil and filters etc. and the other minor parts were immediately changed.
10. It is admitted case of both the parties that the car was purchased on13.9.05 and within a period of 2 years, it has run 30,000 kms., however, some minor problem arose , which were taken to the service station and immediately they were removed. The complainant has filed the job card which is paper No. 46 showing that Selector Level HAN was changed, paper No. 47 shows that engine missing heck, they are found and they were removed.
Similarly paper No. 48 & 49 goes to show that Fuel Unit Double IGM Fuel also changed and the missing was also removed. Further other parts were also checked and they were formed in order. Except these defects, there are no other defects in the vehicle.
11. The Counsel for the complainant placed reliance on R.Raja Rao vs Mysore Auto Agencies and Anr.
II(2006) CPJ 64(NC) wherein it was held that if the trouble started within few days of the purchase of the vehicle and proceeds even after several repairs, the dealer and the manufacturer jointly and severally liable to refund the cost of the vehicle with interest. The reliance was also placed by the Counsel for the complainant on Nachiket P. Shir Gaonkar vs.Pandit Automotive Ltd. & Anr II (2008) CPJ 308 (NC) wherein it has been held that in case of the manufacturing defect, the manufacturer and the supplier are jointly and severally liable to pay price of the vehicle along with interest.
12. On the other hand, the Counsel for the OP has cited the decision of the Honble Supreme Court reported Maruti Udyog Ltd. vs Sushil Kumar Gangotra and others II 2006 CPJ(SC) wherein it was held that request for replacement of car even on the allegation of the manufacturing defect cannot be accepted. It was further observed that responsibility of the dealer under warranty was only to repair or replace any part found to be defective and if necessary repairs and replacement of components are carried out free of charges during the period of warranty it does not constitute deficiency-in-service. Replacement of the vehicle simply because clutches or assembly were repaired or replaced during the warranty was held unjustified in this case and only a sum of Rs.50,000/- was awarded as compensation to the aggrieved parties.
13. In other case reported as II 2005 CPJ 72(NC) Swaraj Mazada Ltd vs P.K. Chakrapur and ors., it was held that lower mileage does not amount to manufacturing defects. In a recent case decided by the National Commission reported as Classic Automobiles vs. Leela Nand Mishra II (2010) CPJ 235 it has been held that if no expert evidence is produced to prove manufacturing defect in the vehicle, and the vehicle is repeatedly brought to Service Station for repairs cannot make a ground to hold that vehicle suffers from manufacturing defects. Similar observations have been made in Revision Petition No.1153 of 2005 that Honble National Commission while observing that admittedly it had warranty of 18 months which expires on 10.12.2000 and the complaint had been filed on 21.2.2002 while the Ld. Counsel for the complainant could not satisfy as to what be liability of the manufacturer after the expiry of the warranty period. No expert evidence was brought on the record in the said case to support that the vehicle had been manufacturing defects, therefore, it was held that District Forum is not following the procedure made under Section 13 of the C.P. Act erred in holding the manufacturer guilty of deficiency-in-service or that the vehicle had manufacturing defects. The Honble National Commission long back had held in this case that the award of compensation under the CP Act had to be made only on well recognized legal norms covering quantification of damages or compensation. The compensation has to be awarded on a rational basis after consideration of material produced before the Adjudication Forums, enumerating sufferings, mental torture and the extent to which monetary loss has been caused thereby to the complainant.
14. The vehicle is being used by the complainant after its purchase and slight defects were removed immediately when it was taken to the workshop. There is no material on record to establish that vehicle is suffered any manufacturing defects. The complainant was not satisfied with the performance of the vehicle, therefore, the OP cancan be held guilty of deficiency in service as defined under the Consumer Protection Act, 1986 for which this Forum is empowered to issue order directing the OP to do one or more of the following things under Section 14 (1) of the Act:
i) To replace the goods with new goods of similar description free from any defect;
ii) To return to the complainant the price or as the case may be the charges paid by the complainant and;
iii) To pay such amount as compensation for any loss or harassment suffered by a consumer due to negligence of the OP and also;
iv) To dis-continue the unfair trade practice or restrictive trade practice are not repeated reference is made section 14 of the Act.
15. As stated earlier, there is no manufacturing defect, therefore, the question of the replacement of the vehicle or the refund of the amount does not arise.
16. As revealed from the facts as impleaded by both the parties, we find that the main grievance of the complaint is that vehicle had been over heating and giving some problem and sometimes it is stopped on the road. From the job card and the papers filed by the complainant, it can be found that overheating was not persistence and it depends upon the driving habit of the driver and whenever some problem relating to the heating arose, it was immediately removed and rectified by the OP at the other workshop to the full satisfaction of the complainant and the job cards were showing by the complainant.
17. There is no denying the fact that for a period of about 2 years, the complainant has run the vehicle for 30,000 kms and complainant has been using the vehicle and the entire refunding of the priceto the complainant for the vehicle shall be too harsh. It is a matter of common observation that there is depreciation @ 10% per year.
The car is still in use by the complainant, therefore, the value of the car at present comes to about 12 Lac (approx.) after deducting the amount of the depreciation @ 10% per year.
18. So far as the amount of the compensation is concerned, it is not denying the fact that the complainant has paid the amount of Rs. 22 Lac for the purchase of the vehicle but it is started giving trouble.
Obviously, a person who has spent such huge amount for the purchase of the vehicle, which causes problem in the running, it would cause mental agony, harassment and sheer suffering to the complainant, which we quantify to Rs. 50,000/-.
19. Under these circumstances, we hereby direct that:
(1) OP-1 & 2, jointly or severely shall refund the amount of Rs. 12 Lac to the complainant.
(2) OP-1 & 2 shall jointly or severely pay compensation of Rs. 50,000/- to the complainant for mental agony, harassment and sheer sufferings.
The entire amount as mentioned at serial No. 1 shall be paid within 30 days from the receipt of the order and in case this amount is not refunded within this stipulated period, both the OPs shall pay interest @ 9% p.a. till the date of realization on the payment of the amount, the car in question shall be returned to the OPs.
20. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
(SALMA NOOR) PRESIDING MEMBER (V.K. GUPTA) MEMBER(JUDICIAL) rn