O.P. Gupta (Member Judicial)

1. The complaint has been filed on the averments that complainant is an advocate by profession and his prime place of practice is in the Supreme Court and Delhi High Court. His residence is situated in East of Kailash, New Delhi and his office is also in the same vicinity. His average travelling is approxm. 16 to 20 km. a day. OP 1 who is manufacturer of luxurious vehicles is in business in India for very long time. It is well aware with the road condition and traffic pattern prevalent in Indian city. It has appointed number of dealers across India to sell its vehicle and provide after sales service to its customer. OP 2 is one of such dealer from whom complainant availed services against charges.

2. OP 1 through advertisements in the electronic and print media boasted about the quality and durability and sophistication of vehicle manufactured by it. OP 1 lured innocent people to buy its expensive cars of different models. Complainant purchased Skoda (Petrol engine) manufactured by OP 1 which was registered as DL-1-CS 7872 from Dr. Sudhir C Joseph and got registration of the car transferred in his name. On 03.10.12 when he was travelling back from Chandigarh to Delhi his car stopped, he and his wife was stranded on the highway. He called customer care service of OP 1 which refused to provide any service alleging that car was out of warranty. After great inconvenience he arranged for a breakdown vehicle to carry his car to workshop of M/s Sedak Automobiles Pvt. Ltd., Karnal, Haryana who was authorized dealer of OP 1. After inspection of car he was informed that the fault could not be repaired immediately and break down was caused as a result of failure of a part called 'Mechatronics' which is essential part in the engine and works like brain in the engine. He was also told that on request by authorized dealer, OP 1 provides the part free of cost as 'Goodwill gesture' as the same costs around Rs. 1.5 lakh. The complainant was forced to leave the car in Karnal as the exchange of correspondence was to take a few weeks. He hired a cab to reach back Delhi which caused great deal of trouble, humiliation, mental and physical agony to him and his wife.3. Prior to going to Chandigarh the car was sent for required service on 14.08.12 to the workshop of authorized dealer of OP 1 and there was no problem in the car. A week after the complainant left the car in Karnal, the dealer informed that OP 1 had agreed to bear the cost of the said part. He was asked to pick up the vehicle. He hired the cab to reach Karnal where he was told by Sedak Automobile that it was unable to update all the functions of the car and he had to get the same done at authorized dealer’s workshop in Delhi. Copy of retail invoice dated 13.10.12 issued by Sedak Automobile is Annexure-2 collectively. After reaching Delhi he took appointment with Fahrenheit Automobiles Pvt. Ltd., Moti Nagar which took almost half day in updating the functions of the car. Copy of relevant invoice dated 18.10.12 from said agency is Annexure C-3.

4. Though the car was being run only 15 to 20 km. in a day on an average it was noticed that averages fuel consumption has gone up and car was giving 9 km a litre. On 12.11.13 when he came out of Delhi High Court he could not start his car and all the functions were dead. He called OP No. 2 who sent service station break down vehicle and the car started just by locking and unlocking. He was charged Rs.850/-. OP 2 could not find any fault and told the complainant that at times in automatic vehicles, locking and unlocking gets faulty and the same might have caused the problem. At times the ignition does not get unlocked. In December 2013 complainant realized that car was taking lot of exhilaration in the first to third gear and sent the car to OP 2 to check and rectify the defect. He was told that there was no short cut and extra exhilaration may be a cause of AC pads getting chocked. OP 2 changed AC pads though the AC was not being used during the peak winter in Delhi. In April 2014 complainant could not start his car but on trying trick of locking, unlocking the car a few times with a key, the car started. From next day the car refused to start even by locking and unlocking. He called the OP who told that fault could not be repaired without taking the car to workshop. Accordingly car was taken to workshop by arranging a break down vehicle on expense of the complainant. After examining the car and corresponding with the head office of OP 1 he was told that one vital part of the engine i.e. 'mechatronics' has failed and needed to be changed. The complainant informed the mechatronics was changed only in Oct., 2013 and asked why mechatronics faulted in such a short span of time. He was informed that this was common occurrence in all superb vehicles particularly petrol version manufactured by OP 1, due to some manufacturing/design defect in the engine. Car covered only about 40,000 kms. In almost 5 years and this was the second time when vital part of the engine failed. After repeated calls to OP 2 and sending e-mail to OP 1 , after a month he was told that OP 1 agreed to bear the cost of part for the second time. This was for the reason that there was an inherent defect in the engine of the car.

5. During the period his car was parked at workshop of OP 1 great hardship was caused to his family mentally and monetarily. He had to hire a car from 16.04.14 to 30.05.14 from M/s PNS Cruise Pvt. Ltd. and had to pay Rs. 2,36,124/-. Copy of receipt dated 01.06.14 is Annexure C-8..

6. Complainant studied about ‘mechantronics’ and found that there was more than 1000 complaints against OP 1 for selling cars having manufacturing defects in respect of the mechatronics. Still OP 1 did not take any steps for recalling the faulty vehicle back. Copies of opinions and complaints available on internet is Annexure C-9. He issued notice dated 30.06.14 calling upon OP 1 to replace the faulty engine and to compensate monetarily for trouble, hardship, humiliation and mental agony. No response was received. He is scared of taking his car out of station as he is not sure whether he would come back without any trouble. The person spending so much money on purchasing a car would like to be mentally satisfied and at ease that the car is not only comfortable but most importantly having good sound and strong engine which is long lasting and hassle free.

7. In proposed amendment of Road Transport and Safety Bill 2014, Govt. was considering to include provision for mandatory recalling of the vehicle where there was more than 100 complaints about a particular defect. Copy of news article in that regard was published in Hindustan Times dated 08.11.2014 which is Annexure C-12. Hence this complaint for directing OP to replace engine of his car with a new and defect free zone, to pay Rs. 49,333/-charged on pretext of repair of car , to pay Rs. 2,36,124/- for hiring the car in April-May 2014 and sum of Rs. 25,00,000/- towards mental agony and harassment. Complaint filed on 06.02.15 is within limitation as he came to know about the inherent manufacturing defect in engine of the car in April 2014.

8. OP 1 put in appearance on 23.07.15 and was directed to file WS within six weeks. It failed to do so and its right to file WS was closed on 15.02.16. Any how I am mentioning the plea taken in the WS so as to bring clear picture.

9. OP 1 filed WS raising preliminary objection that car was sold on 15.07.09 and has travelled more than 45000 km. till 15.05.14. The car was still in possession of complainant and was running uninterruptedly. Had there been any kind of manufacturing defect the same could not have run more than 45,000 km and complainant would not have used the same till today. The car was out of warranty at the time of filing the complaint. The complaint was beyond the prescribed limitation under Consumer Protection Act. The receipts obtained from PNS Cruise Pvt. Ltd. is false and fabricated with intention to create false evidence to get compensation. OP 1 is manufacturer and never provided any services to complainant. Relationship between OP 1 and OP 2 is purely master to master relationship and there was no relation of master and agent. Quantum of compensation claimed by complainant is immensely exaggerated. Without prejudice to the plea OP 1 expressed unconditional willingness to get the vehicle subjected to examination by or otherwise seek assistance of an expert in terms of section 13(1) (c ) of the Act and guidelines enunciated by National Commission in Swaraj Mazda Limited vs. P.K.Chakappore II (2005) CPJ 72. The complaint does not disclose any cause of action. Complainant is not covered under the definition of consumer. The allegations are purely of civil nature and cannot be decided in summary proceedings. As per job card and invoices annexed with complaint RES IPSA LOQUITUR and principle of CAVEAT EMPTOR were applicable. The vehicle has been used in very unprofessional manner and very racially resulting in malfunctioning of electronic component. There was no compulsion on the complainant to purchase the vehicle. He could have returned back the vehicle to OP 2 but he opted to use the same and took periodical service as per service manual.10. On merits OP 1 denied that on 03.10.12 complainant was travelling back the car from Chandigarh to Delhi and his car stopped on the highway. Customer care service refused to provide any service alleging that car was out of warranty or the allegations of taking the car to M/s Sedak Automobiles has also been denied. Factum that Sedak Automobiles informed the complainant that OP 1 agreed to bear the cost of the part has also been denied. It has also been denied that complainant was informed that this was a common occurrence in all superb vehicles particularly petrol version manufactured by OP 1. Hiring of car from M/s NPS Cruise Pvt. Ltd. between 16.04.14 to 30.05.14 has been denied. Receipt of notice dated 30.06.14 has also been denied. It prayed for dismissal of the complaint with directions to the complainant to pay Rs. 10,00,000/- for filing false, frivolous complaint.

11. OP 2 was proceeded exparte vide order dated 15.02.16.

12. The complainant moved application dated 11.02.16 for permitting him to file documents attached with the said application and allow him to increase the demand of repair charges from Rs. 49,333/- to Rs. 1,76,988/-.

13. The complainant filed his own affidavit in evidence. All the material averments made in the complaint has been repeated and documents have been exhibited.

14. OP 1 could not file evidence as its WS was not allowed as noticed above.

15. Complainant has filed written arguments.

16. We have gone through the material on record and heard arguments at length. In written arguments the complainant has highlighted that OP 1 has replaced mechatronics free of cost despite of expiry of warranty period which shows that there are manufacturing defect in the engine of the vehicle. After running few kilometer coolant sign came on the dashboard signaling that there was no cooling in the vehicle. The same was pointed out by Jai Auto Vehicles Pvt. Ltd.

17. In the meantime the complainant moved an application dated 26.10.17 for taking note of subsequent events that mechatronics is not fitted in all cars manufactured by OP 1 but only in model owned by complainant in respect of which there are numerous complaints of inherent manufacturing defect. Complainant has already moved application dated 11.02.16 bringing defects faced by him to the notice of this Commission. In Sept. 2017, he noticed that sunroof of the vehicle started operating itself when the car was in motion. Car started taking lot of race while in motion. On 06.10.17 when he and his family landed at IGI Airport, New Delhi car refused to start and all features stopped working completely. Ultimately he had to hire private taxi to reach back home and he stayed with the driver to arrange for tow away vehicle. Some of the features of car started functioning on pressing of electronic key couple of times but still car refused to start. Next morning his driver went to air port and tried ignition, the car responded and started. On 16.10.17 Jai Automobiles arranged a pick up for car and took the car to work shop. Mr. Munish, one of the Technical Supervisors informed that the car was having certain issues with respect to fuel pump, water pump etc. The Supervisor advised that mechatronics was malfunctioning and at any time could stop functioning. On 21.10.17 Mr. Ritesh Singh, Manager of Jai Automobile informed that it has already sent report and scanned video to OP 1 at Aurangabad. On 23.10.17 OP 1 confirmed that the defect in the car was due to malfunctioning of mechatronics and agreed to replace the same free of cost. On 24.10.17 Mr. Ritesh Singh informed OP 1 has dispatched mechatronics for complainant’s vehicle that would be received within a week. All over the world and in India reclaimed car manufacturers have been recalling defaulted units of their brand and had been replacing the same but OP 1 has not recalled any of its defaulted pieces in India. It is only where the owners of the vehicle have taken a legal recourse that OP 1 has owned responsibility and replaced the vehicle. Complainant has filed some such cases from website where OP 1 changed vehicle as a result of malfunctioning of mechatronics. Complainant requested for taking on record said subsequent facts.

18. In documents filed by the complainant on 27.04.15 there is extract of complaint dated 15.10.09 from Rohit to effect that he bought a black colour skoda superb from Arshia Motors Faridabad on 16.03.09 he was having a feeling that said whole lot was defective and the manufacturer should recall the said car. The same goes on to add that quality of car sold in India was substandard, service levels were really poor. Within six months of purchase of Superb 2009 model he has visited service centre almost every month for one problem or the other. On 11.09.09 while going to airport the gear box was damaged and the car went out of control. In reply OP 1 admitted that unit of gear box i.e. mechatronics is needed to be replaced as the same has developed fault. To the same effect is a complaint dated 15.10.09 from Harishv, Krish, Jaggu also posted similar mail dated 15.10.09.

19. Frequent visit by complainant to service station and occurring problem prima facie show that there was major defect in the car of the complainant. Otherwise OP would not have agreed to replace the part worth Rs. 1.5 lakh free of cost and that too not only once but twice. OP did not reply to notice served by complainant before filing the complaint. That also shows that OP has no defence.

20. Counsel for complainant relied upon decision of this Commission in FA 02/2010 titled as M/s Honda Siel Car India Ltd. vs. Rohit Jain decided on 19.09.12 in which the manufacturer was directed to pay Rs. 10.76 lacs to the complainant alongwith interest of 9% per annum and Rs. 1,00,000/- as compensation besides Rs. 20,000/- as cost of litigation.

21. Complainant also relied upon decision of this Commission in FA No. 844/10 titled as M/s Skoda Auto India Pvt. Ltd. vs. Lata Jain on 06.03.14 in which OP was directed to pay Rs. 11,00,000/- as depreciated value of the car, compensation of Rs. 1,00,000/- for harassment and mental agony. At the same time the manufacturer was allowed to take away the car from the dealer. That case pertains to none else but OP 1 of present case.

22. In Maruti Udyog Ltd. vs. Hashmukh Lakshmi Chand III (2009) CPJ 229 National Commission held that manufacturing defect is much more than an ordinary defect which could be cured by replacing the defective parts. Manufacturing defect is fundamental basic defect which creeps while manufacturing the machinery.

23. In Nachiket P. Shrigaonlkar vs. Pandit Automotive Ltd. II (2008) CPJ 308 National Commission held that if vehicle is having any manufacturing defect there is no need to refer the vehicle to the third party.

24. In Marudi Udyog Ltd. vs. Sushil Kumar Gangotra II (2006) CPJ Hon.ble Supreme Court held that request for replacement of car with allegations of manufacturing defect c

annot be accepted. It was further held 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 charge during the period of warranty it does not constitute deficiency in service. 25. In Swaraj Mazda Ltd. vs. P.K.Chakrapur II (2005) CPJ 72 National Commission held that lower mileage does not amount to manufacturing defect. 26. In Central Switchgear India Pvt. Ltd. vs. Daimler Chrystar India Pvt. Ltd. IV (2007) CPJ 1 National Commission held that after spending a lot, consumer is not satisfied if there are frequent troubles. Present case is squarely covered under the ratio of law laid down in that case. In that case 50% of the amount was directed to be refunded. 27. In view of the above discussion we do not find that complainant has made out case of replacement or refund of the whole price. The car is of the year 2009, complainant is second purchaser, having purchased his car from Sudhir C. Joseph in 2012. During arguments it was stated by counsel for the complainant that price of the new car was Rs. 24,00,000/- and complainant purchased the same for Rs. 18,00,000/-. Repair would not satisfy the complainant as there would be unending complaints that he still faced one difficulty or the other. Thus the proper course is to direct the OP to refund 50% of the amount which complainant paid i.e. 50% of Rs. 18,00,000/-. The same would take care of depreciated value of car, compensation for harassment and litigation charges. Complaint against OP No. 2 merits dismissal. Upon paying aforesaid sum OP 1 would be entitled to tale away the car from the complainant. Ordered accordingly. Copy of the order be sent to all the parties free of cost.