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Krishna Auto Sales, Jalandhar- Phagwara Road, Post Office, Khazurla, District Kapurthala & Another v/s Rohit Arora

    First Appeal No. 536 of 2008

    Decided On, 26 February 2013

    At, Punjab State Consumer Disputes Redressal Commission Chandigarh

    By, THE HONOURABLE MR. INDERJIT KAUSHIK
    By, PRESIDING MEMBER & THE HONOURABLE MR. VINOD KUMAR GUPTA
    By, MEMBER

    For the Appellants: A.S. Bakshi, Advocate. For the Respondent: Nitin Thatai, Advocate.



Judgment Text

Inderjit Kaushik, Presiding Member:-

1. This order shall disposed of two appeals i.e. First Appeal No.536 of 2008 (Krishna Auto Sales & Anr. Vs Rohit Arora) and First Appeal No.1132 of 2008 (Rohit Arora Vs Skoda Auto India Pvt. Ltd. & Anr.), as both the appeals are directed against the same order dated 17.04.2008 passed by the learned District Consumer Disputes Redressal Forum, Kapurthala (in short 'the District Forum'). The facts are taken from First Appeal No.536 of 2008 and the parties would be referred by their status in this appeal.

2. Facts in brief are that Sh. Rohit Arora, respondent/complainant (hereinafter called as 'the respondent') filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, 'the Act') against the appellants/opposite parties (hereinafter called as 'the appellants'), asserting that he purchased a Candy White colour SKODA Octavia Rider 1.9 TDI car and paid the entire sale consideration and the vehicle was delivered on 30.11.2005. The warranty was for 24 months from the date of purchase.

3. The said car started giving problem just within a few days of its purchase and it was sent to appellant no.1, authorized dealer of appellant no.2. The complaint was that the pickup of the car was very low and there was problem of horn and lights of the car and it was giving huge noise while moving. The respondent made several complaints. The car used to break down often on the road. The respondent handed over the vehicle after coverage of 5400 kmts. for checking and repair but the same was given back without any repair and the troubles persisted. The respondent visited the office of the appellant no.1 on 16.05.2006 when the mileage of the car was 11807 kmts. and the respondent was not satisfied with the service rendered by the appellants.

4. On 28.06.2007, the car broke down and the respondent contacted appellant no.1, but appellant no.1 flatly refused to provide the service and the respondent has to tow the car after paying Rs.5,000/- to third agency. The appellants informed that there was failure of turbo which will cost Rs.1.10 lacs apart from the labour fitting charges. The car was within warranty period and appellant no.1 told the respondent that the turbo is not available and the respondent purchased the turbo worth Rs.1.10 lacs from outside and the same was fitted by appellant no.1 and appellant no.1 charged Rs.4692/- for the same. The car was delivered with the running mileage of 50,200 kmts. at the time of delivery on 25.07.2007.

5. On 04.08;2007, the car again broke down on G.T. Road near Amritsar and the respondent informed appellant no.1 and requested to send the service executive, but appellant no.1 refused and the respondent has to pay Rs.5,000/- to tow the car to the workshop of appellant no.1. The manager of appellant no.1 informed the respondent that the engine of the car has failed and it has to be replaced and demanded Rs.4.30 lacs. The respondent requested that the car is within warranty period and he has spent a lot, but the appellants did not bother, nor provided any service. The respondent suffered a lot of mental tension and harassment and is entitled to get the car replaced. A legal notice dated 11.09.2007 was issued, but no reply was filed nor any service was provided despite the offer of 25% less given. The act of the appellants amounts to deficiency in service.

6. It was prayed that the appellants may be directed to replace the defective car of the respondent with a new one, or in the alternative to pay the entire sale consideration i.e. Rs.11,08,500/- along with interest @ 14% p.a. from the date of purchase till realization, to pay Rs.1.10 lacs spent on turbo, Rs.10,000/- as towing charges, Rs.4692/- as labour and fitting charges, Rs.2.00 lacs as compensation and Rs.11,000/- as litigation expenses.

7. In the written version filed on behalf of appellant no.2, purchase of the car in question as well as the warranty for 24 months was admitted. It was further submitted that the respondent was provided with a car manual according to which he could get two free services upto one year or when the car has travelled upto 15000 kmts. If the car was giving any problem then the same should have been brought to the garage of the appellants and the defect could be removed. In fact, the respondent brought the car to the garage of appellant no.1 only on 16.05.2006 for first service when the car had travelled 11807 kmts., whereas the first service wad due at 7500 kmts. On 16.05.2006, a job card no.2326 was opened for free service and on that day, no complaint was made. The car gave trouble free service even for the next 13 months when the car had travelled upto a distance of 57359 kmts. It was brought to the garage of appellant no.1 on 27.06.2007 for second free service and the free service as well as running repairs were made. It was noticed by First Appeal No.536 of 2008 4 the engineers of appellant no.1 that filters in the car were duplicate which were not genuine Skoda parts. A note to this effect was given on the job card. The intercooler needed replacement, but the respondent refused to get it replaced at his own risk. The service advisor, who signed the note, also warned the respondent that this could cause problem to the turbo in future, but the respondent refused to replace the intercooler.

8. It was admitted that the car broke down on 28.06.2007 and appellant no.2 refused to replace the turbo and appellant no.1 informed the respondent about the same. The appellant no.2 agreed to compensate the respondent upto 25% of the price of turbo on a pure goodwill gesture, but the respondent refused to get a genuine turbo from appellant no.2 and purchased it from the open market at a cheaper rate and brought it to the appellant no.1 for fitting the same and appellant no.1 charged Rs.4692/- as labour charges for opening and fitting of the turbo. The respondent, before bringing the car to the garage of appellant no.1, took the car to a third agency/unauthorized service centre, but the respondent is concealing the name of the agency as it must have been not an authorized agency. The said agent must have tampered with the car. It is not possible that during one year and three months, the car travelled more than 57000 kmts. The car was being got serviced from some unauthorized garages who did not possess genuine Skoda part and replaced spurious filters. After the breakdown of the car, it was taken to unnamed and unauthorized agency and thereafter the car was brought to the garage of appellant no.1, who found that the turbo of the car had failed. The appellant refused to replace the car/engine for the reasons that the respondent has failed to get the service of the car done regularly from any authorized agency on scheduled intervals as per the directions given in the Skoda Car Manual. Similar other pleas were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.

9. In the written version filed on behalf of appellant no.1, purchase of the car and warranty was admitted. Similar other pleas as taken by appellant no.2 were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.

10. Parties led evidence in support of their respective contentions by way of affidavits and documents.

11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed as follows:

'We find reverse picture of dismal role on the part of the complainant himself in maintenance of expensive Skoda car in violation of warranty condition and his callous negligent handling of the vehicle. He has failed to produce expert evidence of automobile engineer to prove manufacturing defects in the engine so as to warrant for its replacement within warranty period. Since opposite party Skoda Company has offered 25% discount in the parts from authorized dealer, we direct that in the event of vehicle Skoda car being brought to the workshop of opposite party no.2, they would provide 25% discount on the purchased price of the spare parts consistent with goodwill gesture towards the customer'. The complaint was dismissed.

12. Aggrieved by the impugned order dated 17.04.2008, the appellants have come up in the present appeal, with a prayer to set aside the impugned order on the ground that at some point of time, the Skoda people showed the goodwill gesture and offered 25% concession on a particular spare part to be replaced and they are not bound to show the same gesture again and again whenever the respondent brings the car to the appellant for repair. This is completely unacceptable and illegal blanket order for all times in future and the appeal qua the same may be accepted and the rest of the order may be upheld.

13. On the other hand, the respondent/complainant has filed cross appeal i.e. First Appeal No.1132 of 2008 (Rohit Arora Vs Skoda Auto India Pvt. Ltd. & Anr.), with a prayer that the impugned order may be set aside and the complaint filed by the respondent may be accepted with costs and the appellants may be directed to compensate the respondent about the amount of loss suffered along with 18% interest from the date of loss and also to pay compensation.

14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties as well as perused the written arguments filed on behalf of the respondent.

15. Learned counsel for the appellants has argued that the order of the District Forum, dismissing the complaint is correct, but directing the appellants to give 25% discount in the parts for all times to come, is a blanket order and is liable to be set aside. The 25% discount was given as a gesture of goodwill on a particular part, but it was not for all times to come and the appeal may be accepted and the impugned order qua it may be set aside.

16. In the written arguments filed on behalf of the respondent/ complainant, the pleadings were repeated. It was further submitted that the respondent left the car in the custody of appellant no.1 and contacted appellant no.2 through e-mail which was sent on 03.07.2007 to Sh. Sudhir Srinivas with all the details given. The rude behavior of appellant no.1 towards the customer was also mentioned. The appellants responded on the same day through e-mail and it was intimated that the dealer has been asked to provide the details of the vehicle and the company will revert back in this regard as soon as possible, but all in vain. A legal notice was served and the same was replied, but all the facts were refused. The District Forum failed to appreciate that the respondent has not violated the warranty conditions as the respondent kept on complaining from the very beginning about the manufacturing defect in the car to appellant no.1, but the matter was delayed on one pretext or the other. The District Forum ignored the fact that appellant no.1 refused to service the car and the respondent took the car first time at 5400 kmts. and complained that there was manufacturing defect, but appellant no.1 kept on delaying the matter and thereafter, did not provide the due service. The respondent has to spend Rs.10,000/- on towing the car. The order passed by the District Forum is against the facts and evidence and is liable to be set aside and the appeal filed by the respondent may be accepted and that of the appellants may be dismissed.

17. We have considered the respective submissions of the parties and have thoroughly scanned the entire record and other material placed on the record.

18. The version of the respondent is that the car in question was giving problem from the very beginning and he brought it to the notice of the appellants, but the appellants did not provide the due service, nor replaced the defective parts and the car broke down on the way several times and was towed down to the workshop of appellant no.1. He has to spend a lot of money on the spare parts and ultimately, turbo of the car in question was to be replaced and even thereafter, there was manufacturing defect in the car and the car in question should be replaced.

19. On the other hand, the version of the appellants is that the car was brought to the service centre of appellant no.1 and at that time, no such defects were reported. The respondent has been getting the car repaired from some unauthorized agent and spurious parts were used which resulted in breaking down of the car and the appellants were not responsible in such a situation. No expert has been examined to prove that there was manufacturing defect in the car.

20. The onus of proving the manufacturing defect in the car or that the car was giving problems time and again, was on the respondent. The respondent has placed on record the copy of legal notice Ex.C-1, copies of postal receipts Ex.C-2 and Ex.C-3, UPC receipts Ex.C-4 and Ex.C-5, reply Ex.C-6, registered A.D. Ex.C-7, insurance cover Ex.C-8, customer invoice Ex.C-9, invoice-cum-receipts Ex.C-10 and Ex.C-11, copies of e-mail Ex.C12 and Ex.C-13.

21. On the other hand, the appellants have placed on record the warranty certificate Annexure R-3, job card Annexure R-1 dated 16.05.2006 and the reading at that time was 11807. The occasion was first free service and the same was done and there was no complaint whatsoever of the respondent. Another job card Annexure R-2 is dated 27th June, 2007 and necessary routine repairs were done and a note was given on behalf of appellant no.1 that all filters were duplicate, intercooler needs to be replaced, but the customer refused at own risk.

22. Thus, from the above, it is clear that the respondent has failed to bring on record any material to prove that there was any manufacturing defect in the car or any other part of the car, including the engine. No expert evidence is on record. On the other hand, the appellants have produced the job cards as per which, there was no complaint of whatsoever kind, but the filters were spurious and intercooler was required to be changed, but the same was not got changed. The respondent has miserably failed to prove that there was any manufacturing defect in the engine or any other part of the car in question. The complaint is false and frivolous and the same has been rightly dismissed by the District Forum, but the order of

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the District Forum to provide the spare parts at 25% discount in the event of the vehicle Skoda being brought to the workshop of appellant no.1 for all times to come, is also illegal and is not sustainable and no such blanket order could be passed by the District Forum. The offer of 25% discount was at one point of time for a particular part, but that was not availed by the respondent and it cannot be made available for all times to come. Therefore, the order of the District Forum, directing the appellant to provide 25% discount on purchase price of the spare parts in the event the vehicle Skoda being brought to the workshop of appellant no.1, is liable to be set aside. 23. In view of above discussion, the appeal filed by the appellants (F.A. No.536 of 2008) is accepted and the impugned order under appeal dated 17.04.2008 passed by the District Forum, qua the above observation of 25% discount, is set aside and the order dismissing the complaint is affirmed and upheld. First Appeal No.1132 of 2008:- 24. In view of the reasons and discussion held in First Appeal No.536 of 2008 (Krishna Auto Sales & Anr. Vs Rohit Arora), the First Appeal No.1132 of 2008 (Rohit Arora Vs Skoda Auto India Pvt. Ltd. & Anr.) is dismissed. No order as to costs. 25. The arguments in both these appeals were heard on 18.02.2013 and the orders were reserved. Now the orders be communicated to the parties. 23. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases. 24. Copy of this order be placed in First Appeal No.1132 of 2008.
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