State Consumer Disputes Redressal Commission
Sri. V.L.C.V.S.S. Prasad vs 1. M/S. Olympus Motors Pvt Ltd., on 3 August, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.71/2018
Between :
Sri V.L.C.V.S.S. Prasad, S/o. Late. Sri Pichaiah,
Occ: Business, R/o. Flat No.604, Block-A,
Landmark Residency, Madinaguda, Hyderabad - 500050.
...Complainant
And
1.M/s. Olympus Motors Pvt. Ltd., 2-684/A, Road No.12, NBT Nagar, Banjara Hills, Hyderbad - 500034.
2. M/s. Audi India, Rep.by its Managing Director, 04th Floor, Silver Utopia Cardinal Gracious Road, Chakala-Andheri East, Mumbai - 400069.
...Opposite parties Counsel for the Complainant : Mr. G. Kalyan Chakravarthy Counsel for the Opposite party No.1 : M/s. M. Papa Reddy Counsel for the Opposite party No.2 : M/s. G. Venkateswara Rao QUORUM: Hon'ble Sri V.V.Seshubabu, M ember (M -J), & Hon'ble Smt.R.S.Rajeshree, M ember (N-J) THURSDAY, THE THIRD DAY OF AUGUST, TW O THOUSAND TWENTY THREE.
***** Oral order : (Per Hon'ble Sri V.V.Seshubabu, M ember (M -J )
1. The complaint is filed on 13.03.2018 U/s.17 (1) (a) (i) of C.P.Act,1986, to direct the opposite parties to pay Rs.70,00,000/- towards cost of the car; to refund Rs.19,48,992/- towards service charges paid to opposite party No.1; to pay Rs.5,00,000/- for compensation; to pay interest @ 18% p.a., from the date of filing of the complaint and for costs of Rs.50,000/-.
2. The brief averments of the complaint are that the complainant purchased Audi Q7 Car bearing No. AP 28 DB 4455 from opposite party No.1 for about Rs.70,00,000/-; that the car was given by opposite party No.1 to the complainant with three major 2 complaints viz., (i) rear LH side seat noise while driving (ii) MMI is not working (iii) adaptive suspension malfunction display in cluster; that opposite party No.2 is the manufacture of Audi Cars in India and opposite party No.1 is its dealer; that the complainant who is a business man with high profile and to maintain repute and status in the society purchased the premium car; that the car was retained in the opposite party No.1 service centre for about three months; that on 31.05.2017 while receiving the car it was enquired with opposite party No.1 regarding the road safety of the car to travel long distance for which the opposite party No.1 replied positively; that complainant realized that the car was making some dangerous noises and so, he had cancelled the programme due to the persistent problem and handed over the same service on 01.06.2017 after a test drive by the service adviser of opposite party No.1; that while test driving the service provider abruptly stopped the car and noticed that by mistake screws were not properly tightened, and due to the same the left front wheels would have rolled out and also observed two bolts of the right front wheel were also not tightened; that after attending minor repairs car was retuned back to the complainant; that on 04.06.2017 the car was again given to opposite party No.1 in pursuance of their advise and it was delivered back to him on 23.06.2017; that it was found the right front wheel was damaged and to cover up the same replaced withhold service tyre and General Manager of the opposite party No.1 agreed to pay 50% of the cost of the tyre, but not paid so far; that on 24.06.2017 when the car was started, the indicator shows no coolant and so, the car was taken to the service station on the next day; that all the acts of the opposite party No.1 shows their negligence and carelessness; that all these aspects were taken to the notice of CEO of the opposite party No.1 at Hyderabad, who made the complainant wait for two hours and ultimately promised to provide 3 the best services and requested the complainant not to take legal action; that the coolant was filled and on the test drive it was found the smoke coming out from exhaust and it shows deficiency of service; that for each and every repair and spare parts huge amount was collected from the complainant without any justification; that on 17.10.2017 the complainant sent a detailed letter to the opposite party No.2 but no reply was given; that on 01.06.2017 the service manager of the opposite party No.1 under a letter categorically admitted the mistake of their negligence, that opposite party No.1 given a reply email for the letter dt.17.10.2017, given to the opposite party No.2; that the car is with the opposite party No.1 for the last seven months; that complainant paid in total Rs.19,48,992/- for the service and repairs during the period from 31.05.2017 to 02.08.2017; that on 08.11.2017 legal notice was issued to the opposite parties but they have not responded; hence, the complaint.
3. The brief averments of the opposite party No.1 are that:-
The complaint is not maintainable under law or facts; that it is filed to make an illegal gain; that there is no negligence or any deficiency in service towards the complainant; that courtesy vehicle of Audi A6 make was provided to the complainant which was grossly misused and driven rashly and negligently by the complainant and so, it is lying in the workshop of opposite party No.1, wanted for extensive repairs; that when the complainant was called upon to pay the charges for repair, this complaint is filed to avoid payment with cooked up claims; that the car was purchased by complainant in the year 2011; that earlier also repairs were carried out vide job card dt. 14.11.2016 and when it was advised to the complainant about the damage to the suspension, which require repairs, that complainant refused to give consent to carry out such repairs, but opposite party 4 carried out the repairs under job card dt. 17.05.2017 and received Rs.8,25,045/- from the complainant towards repairs charges; that on 23.06.2017 car came for routine servicing and after road test it was observed the front left tyre was worn out by 50% as got burst and as a goodwill gesture 50% discount was given as per the company norms on the new tyre; that having satisfied with the work done complainant taken the vehicle by paying Rs.30,000/- and also signed on the satisfactory note; that on the next day vehicle was reported with coolant leakage due to againg of the pipe and it was replaced as a goodwill gesture; that again on 07.07.2017 a coolant leakage was reported and on inspection it was found that coolant hose pipe near exhaust gas recirculation valve was damaged and there was problem with injectors; that after attending the repairs, when tried to start problem of emission of white smoke was encountered; that on inspection it was found that, EGR had been damaged and so, a quotation was sent for Rs.1,36,266/- for replacement and waiting for the approval of complainant; that the complainant had not paid any amount for service dt. 20.06.2017; that on the request of complainant a duplicate invoice was given to him for repairs carried out and by misusing the same, wrongful claim is made; that amount of Rs.5,00,000/- paid by the complainant is being adjusted towards repair charges to be incurred for the repairs caused to the courtesy Audi A6 vehicle given to the complainant; and that the complainant is not entitled for any reliefs. With this requested to dismiss the complaint with exemplary costs.
4. The material averments of the written version of opposite party No.1 are also pleaded by the opposite party No.2. The other brief averments of the written version are that, it is a company registered under the laws of India dealing in marketing, sale and servicing of 5 Volkswagen Group Vehicles through its dealers across the India appointed on principal to principal basis; That Audi Cars are well known all over the India for its impeccable features and high safety standards; that after passing through stringent quality tests and safety tests, it was delivered to the opposite party No.1.; that there is no cause of action against the opposite party No.2 due to the absence of any deficiency of service; that there is no territorial jurisdiction to this Commission against the opposite party No.2.; that the complainant not approached the Commission with clean hands and trying to make wrongful gain; that the responsibility of opposite party No.2 is limited for repairs and replacement of parts under warranty subject to terms and conditions; that in no case, refund of cost of the car will be given; that as on 17.05.2017 the car covered mileage of 1,22,968 Kms. and it shows extensive usage; that not giving a reply to the legal notice of the complainant does not amount to the acceptance of the allegations. With this requested to dismiss the complaint with costs.
5. To prove the case, complainant filed the evidence affidavit as PW1 and got marked Ex.A1 to A12. Mr. T.R. Ganesh Aiyer, the Authorized Signatory of opposite party No.1 filed evidence affidavit as RW1, but no document is marked. Though two documents are referred as Ex.B1 & B2 in the evidence affidavit, they were not marked. Opposite party No.2 not adduced any evidence nor advanced arguments either oral or written. Heard the arguments of complainant and opposite party No.1 counsel.
6. Now the point for determination are:-
(i) Whether the opposite parties No.1 & 2 are found with deficiency of service and unfair trade practice against the complainant?
(ii) Whether the complainant is entitled for various claims?
(iii) Relief?6
7. Point No.1 & 2:- It is important to note that the first relief made in the complaint relates to pay cost of the car paid by PW1 at the time of purchase. It is nothing but asking for a new car. Unless there is manufacturing defect there is no question of payment of total purchase money or replacement of car. No pleading is made in the complaint pointing out any manufacturing defects. There is a warranty for e very car like present one and the liability of opposite parties depends upon the terms and conditions of the warranty and also the time frame fixed in the said warranty for replacement of any parts either free of cost or for money. For the reasons better known to either side, no warranty card or booklet is filed before this Commission and get it marked. The registration certificate of the car bearding No. AP 28 DB 4455 Audi Q7 car is not filed including the insurance policy of the year 2017 & 2018 to know the value of the car in question as on that day by the insured/PW1. Likewise, no car purchase documents are also filed to know on what date and month in the year 2011, the car was purchased. Admittedly, the car purchased in the year 2011 and it was used without any major repairs until 17.05.2017, i.e., the day on which the car was given for repairs to the opposite party No.1 with a odo meter reading 1,22,968 Kms.
8. It is also to be observed that the wear and tear of the car depends upon how it was used. If the vehicle was exposed to weather conditions or plied on the rugged roads and driven by inexperienced persons, are some of the reasons which results, the life span of the vehicle becoming-less. Nothing is focused by PW1 regarding the maintenance of the car, for the last six years prior to 17.05.2017. It is pleaded in the written version of opposite party No.1 that on the previous occasion, when the car came for repairs job card dt. 7 14.11.2016 shows, there was damage to the suspension and it requires repairs, but PW1 not given consent to carry out the said repair of course, but under the job card dt. 17.05.2017 those repairs were attended and PW1 paid Rs.8,25,045/-. All the above aspects discussed supra shall be taken into consideration in deciding the case. Here, it is also to be observed that the opposite parties not filed the job card dt. 14.11.2016 to prove the negligence of PW1 in attending repairs to car immediately as and when problem surfaced.
9. Ex.A1 is the letter dt.01.06.2017 addressed by opposite party No.1 to PW1. As per the same on 17.05.2017 the car was given for repairs with the complaints of viz., (i) Rear LH side seat noise while driving on uneven roads. (ii) MMI not working. (iii) Adaptive suspension malfunction display in cluster. It further goes to show that, the car was delivered to the customer on 31.05.2017 after test drive by the technical engineer for three kms., followed by another three kms. with PW1 and on the same day at 5:00 PM the customer asked for the safety to drive the vehicle upto Vijayawada, for which they have given green signal; that and it was delivered to the customer at 8:00PM and by 9:00 PM, the customer informed; that, some abnormal noise coming on the front side and so, they advised to bring back the car to the workshop on the following day. Accordingly, it was brought and when a joint test drive was made with the customer observed that LH tyre wheel bolts for torque is not as per the required specifications and technician was called for from workshop, who rectified the torque and also found two bolts on front RH side also not met the standards. After paying amount for repairs worth Rs.8,25,045/-, missing the bolts for both front right and left wheels is a miserable failure in attending repairs. They are basic repairs to attend. It shows, the utter negligence on the part of opposite party 8 No.1 and it amounts to deficiency in service. It is also mentioned in Ex.A1 that, PW1 cancelled his trip to Vijayawada and the sales manager and the staff of opposite party No.1 accepted their responsibility as a mistake, even apologised and even promised to be careful in future and not to repeat the mistake. It is mentioned in the written version that, the while taking delivery of the car on 31.05.2017, PW1 executed satisfaction letter. Though the said letter is mentioned as Ex.B2 in the evidence affidavit of RW1, it was not marked, even though the document is filed. The perusal of the document goes to show that it was printed on 31.05.2017 at 21:57 hours. As per Ex.A1 the mistake was found only on the next day i.e., 01.06.2017. It means, in a routine manner the satisfactory letter dt.31.05.2017 from PW1 was obtained, to absolve the liability of the opposite party No.1 in attending the repairs. It shows, the obtaining of the satisfaction letter, dt.31.05.2017 amounts to unfair trade practice, when basic needs of tightening screws and bolts nor done.
10. Ex.A3 email dt. 22.07.2017 by opposite party to PW1 goes to show that, on 23.06.2017 the car came for general service and during the road test the front LH tyre (which was worn out by 50%), got burst and the management agreed to bear 50% cost of the new tyre. It is contended that, in a customer friendly attitude the opposite party No.1 agreed to bear 50% cost of the new tyre. It is not disputed by PW1. So, PW1 cannot be permitted to contend that due to the negligence of opposite party No.1, the said tyre got burst. In any view of the matter when a promise was made to reimburse 50% cost of the tyre, the opposite party shall stick on to its promise.
11. It is also mentioned in Ex.A3 that, on 24.06.2017 coolant was found leaking from coolant return pipe, due to aging of the part 9 and it was replaced under goodwill gesture. It is also mentioned in Ex.A3 that on 06.07.2017 again car came to the workshop with a complaint of coolant leakage and then they made diagnosis and found coolant hose pipe near EGR valve (due to aging part) was damaged and order was made, it procured and work started on 22.07.2017 to fix the pipe. It is also mentioned under the email dt.20.10.2017 (part of Ex.A3); that after replacing Injectors for "engine" car was not starting and it was resolved, but they found smoke coming out from exhaust, and on diagnosis found need to replace EGR. At the bottom of the email as a note it is mentioned "after replacing EGR system need to check further for TURBO and ENGINE compression". The above discussion made by us goes to show that, for the reasons better known to opposite party No.1 it failed to diagnosed the repairs at a time and they are observing problems time to time in a trial and error manner. Certainly, this type of approach of opposite party No.1 will cause serious mental agony to any customer. Here one cannot brush aside the concern of PW1, for surfacing problems one after the other.
12. It is mentioned in the reply notice of the opposite party No.1 dt. 27.12.2017 (part of the record but not marked); that they have sent a quotation for Rs.1,36,266/- for replacement of EGR and had been waiting for approval to carry out the said details. It seems PW1 not given any approval for the replacement of EGR. Email dt 24.10.2017 by opposite party No.1 to PW1 (part of Ex.A3) goes to show that opposite party No.2 stated that "they sincerely apologize to you for any inconvenience this may have caused". It is further stated that, the complaint of vehicle not starting, was resolved by replacing injectors and they are carrying out test drive to attend the complaint of white smoke from exhaust. It means, the new problem of white smoke emission is not attended or cleared.
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13. Vexed with the attitude of opposite party No.1, PW1 got issued a legal notice dt. 08.11.2017 to the opposite parties No.1 & 2, where under he explained everything and demanded for the repayment of already undergone the repair charges of Rs.17,54,159/- besides cost of the car Rs.70,00,000/- and Rs.1 crore for negligence with interest @18% p.a., and costs of Rs.50,000/- for the notice. Reply notice was given belatedly dt. 27.12.2017 by denying everything and also stated that, they have given a courtesy car and due to bad driving, the said car returned to workshop with extensive repairs and when demand was made, this notice was issued by PW1, to escape the liability. It is also contended that PW1 paid only the amounts mentioned under the head "ABD" heads but not Rs.1,99,553/- for the service dt.20.06.2017 and on that day, the car never came to the workshop; that only on the request of PW1 made on 08.06.2017 a duplicate bills was issued dt.20.06.2017, and it was misused by PW1 to make a wrongful gain.
14. Ex.A12 goes to show that opposite party No.1 received Rs.5,00,000/- by way of cheque dt.02.08.2017 from PW1. The opposite party No.1 admitted the payment of amounts of Rs.8,25,045/- dt.31.05.2017; Rs.1,99,553/- dt.08.06.2017, Rs.30,000/- dt.22.06.2017. So, altogether opposite party admittedly received Rs.15,54,598/- and disputing the bill dt. 20.06.2017. As per Ex.A5 tax invoice dt. 08.06.2017, opposite party No.1 issued the same for Rs.1,99,553/- for the replacement of damper with labour details for the removal of 2 suspension strut. As per the same, the kilometres reading at the time of entering into the workshop was at 123004 and while leaving out reading shows 123008. Ex.A8 is the tax invoice dt.20.06.2017 replacement of damper with part No. 7L8616039H and for the removal of 2 suspension strut with labour details shows the 11 amount @Rs.1,99,553/-. This time the meter reading shows 123108 while entering and while leaving it is 123409. The part name damper as mentioned in the Ex.A6 is different for the same part mentioned in the Ex.A8. The value of the damper is also different, beside the labour charges. So, we are of the view that, Ex.A8 cannot be considered as a duplicate bill given on the request of PW1 as contended. If the entry and exit book/register maintained by opposite party No.1 is produced, one can clearly observe, whether car in question in fact actually came to the workshop on 20.06.2017. For the reasons better known to opposite parties, no effort was made to establish that the car not visited the workshop on 20.06.2017 as contended. So, the points are answered in favour of PW1.
15. Point No.3:- In view of the above discussions, it is very clear that the opposite parties exhibited their negligence and also deficient in services towards PW1. It is also to be observed that PW1 is not entitled for the refund of cost of the car @Rs.70,00,000/-. The amount paid towards repairs is in fact, actually incurred for the replacement of parts. At the same time, for the reasons, PW1 failed to give consent to attend the repairs to the car to an extent of Rs.1,36,266/-, even though it was informed to him. For the reasons better known to opposite parties, they maintained silence in attending repairs, such and by taking advantage of the non-approval they have also not issued any notice or email demanding PW1 to take back the car in case, if he has not interested to get the repairs done. PW1 also thrown, caution to the winds and left the car in the workshop of opposite parties. He should have brought back the car and shown the same to any expert to attend the repairs and then should have made the claim for repairs and whatever the heads under which entitled for the money. Normally, if car is kept in any workshop the owner of the 12 same is entitled for demurrage charges. By taking into consideration all aspects we are of the view that the complaint can be allowed within the following directions.
16. In the result, the complaint is partly allowed and in partly dismissed against opposite parties No.1 & 2 with joint and several liability:-
(i) The opposite parties are directed bear the estimated cost of the EGR damage quotation of Rs.1,36,266/- and also to check and rectify the turbo and engine compression if they found with any repairs.
(ii) The opposite parties are directed to rectify the car, in all aspects and it shall be roadworthy in all aspects by incurring expenses from their pocket and are prohibited to claim any demurrage charges.
(iii) To pay compensation of Rs.4,00,000/- for causing mental agony to the complainant.
(iv) The complainant is directed to pay the insurance premium and also shall obtain pollution clearance certificate after the car was declared as roadworthy by attending, the directions as made under the heads 1 & 2 that too after paying compensation of Rs.4,00,000/-.
Time for compliance of one month and in case of failure to do so, all the amounts will carry interest @12% p.a., till actual compliance.
Typed to the dictation to the steno on system, corrected and pronounced by us in the open bench on 03.08.2023.
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M EMBER(J) M EMBER(NJ)
Dated : 03.08.2023.
BS R
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainant: Opposite parties:
PW1: V.L.C.V.S.S. Prasad RW1: T.R. Ganesh Aiyer
13
EXHIBITS MARKED
For Complainant:
Ex.A1: is the Photostat copy of Letter, dated: 01.06.2017. Ex.A2: is the Photostat copy of Letter, dated: 02.08.2017. Ex.A3: is the Photostat copy of Email, dated: 22.07.2017. Ex.A4: is the Photostat copy of Tax Invoice, dated: 31.05.2017. Ex.A5: is the Photostat copy of Tax Invoice, dated: 08.06.2017. Ex.A6: is the Photostat copy of Tax Invoice, dated: 23.06.2017. Ex.A7: is the Photostat copy Tax Invoice, dated:23.06.2017. Ex.A8: is the Photostat copy of Tax Invoice, dated: 20.06.2017. Ex.A9: is the Photostat copy of Office copy of Legal Notice, dated:
08.11.2017.
Ex.A10: is the Original copy of Reply Notice, dated: 27.12.2017. Ex.A11: is the Photostat copy of Letter, dated: 06.07.2017. Ex.A12: is the Photostat copy of Receipt, dated: 02.08.2017. For Opposite Parties:
Nil/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt: 03.08.2023.
BSR
14
VVS (M-J) & RSR (M-NJ)
TELANGANA STATE
CONSUMER DISPUTES
REDRESSAL COMMISSION
AT HYDERABAD
CC.NO.71 OF 2018
ORDER DATE : 03.08.2023.
BSR