EVM PASSENGER CAR INDIA PRIVATE LIMITED vs ARUN S.S & ANR.

This First Appeal, under Section 19 read with Section 21 of the Consumer Protection Act, 1986 (for short "the Act"), has been filed by EVM Passenger Car India Private Limited, Opposite Party No.1 in the Complaint, against the order dated 17.12.2015, passed by the Kerala State Consumer Disputes Redressal Commission, at Thiruvananthapuram (for short "the State Commission") in Consumer Case No. 15 of 2013. By the impugned order, while holding that the subject car, namely, Volkswagen Vento 1.6 CR MT (High line) Diesel Car, purchased by the Complainant, Respondent No.1 herein, from the Appellant had inherent defects, which are still persisting and hence, Opposite Parties, including the Appellant herein, are jointly and severally liable to compensate the Complainant, the State Commission has partly allowed the Complaint, with a direction to the Opposite Parties to refund to the Complainant the cost of the vehicle, i.e. 10,69,299/-, with interest @ 9%, besides 2,00,000/- as compensation for mental agony and 10,000/- towards litigation costs within a period of 30 days from the date of the said order, failing which the Complainant would be entitled to interest @ 12% from the date of the order.

Succinctly put, the circumstances, occasioning the filing of the Complaint, are as follows: 2.1 Allured by the quality and reputation enjoyed by the cars, manufactured by a multi-national company, viz. Volkswagen Group Sales - India Pvt. Ltd., Opposite Party No.2, on 27.03.2012 the Complainant, a self-employed person, had purchased the vehicle in question against a sale consideration of 10,69,299/- from the Appellant, one of the Dealers of Opposite Party No.2. When the Complainant started using the vehicle in question, it developed several problems, including steering rattling, body creaking noise while running on rubble roads as well as on turns & curves etc., rendering it not roadworthy. It was alleged that the said manufacturing defects, which had developed in the major parts of the vehicle, were occurring repeatedly and could not be cured. Though the vehicle had covered 27000 kms. but the defects persisted therein and kept on increasing day by day, resulting in its breakdown on 05.12.2012 at 12.30 a.m., with an abnormal noise from the engine. On persistent request of the Complainant, at 2.30 a.m. the vehicle was taken to the Service Centre of the Appellant, who, while agreeing that there was some engine complaint, agreed to deliver the vehicle after repairs within a short period. However, there was inordinate delay in doing so and, on enquiries, the Complainant learnt that there were some major defects in the engine and the Appellant was not in a position to repair the same due to shortage of necessary parts, costing 1,40,000/-. Due to the said delay, the Complainant, being a self-employed person, was forced to engage a taxi, incurring a lot of expenses, for which the Opposite Parties were liable to compensate him. Subsequently, as prayed by the Complainant, he was provided with an alternate vehicle, i.e. Volkswagen Jetta petrol car, with a direction to use the same only up-to 80 km. per day. Since the Complainant was travelling 200 kms. a day for his livelihood, which was clear from the usage of the vehicle in question for 27000 kms. within a period of 9 months, the Complainant felt frustrated with the said restriction to use the Jetta car. In comparison to the vehicle in question, the consumption of the alternate car was also higher, resulting in heavy expenditure on fuel. In the meanwhile, the Complainant also requested the Opposite Parties for repairing the small denting works in the vehicle in question. On 28.12.2012 the Complainant was informed that the repair works were complete and the vehicle was ready for delivery. When the Complainant visited the workshop for taking delivery, he noticed that the denting works had not been done, purportedly on the plea that there was no sanction for the job. Ultimately, it was only after the Complainant made a payment of 45,452/-, i.e. 34,216/- towards repairing charges and 11,236/- as rent for the alternate vehicle, that on 24.01.2013 the vehicle in question was delivered to him. On the very next day, i.e. on 25.01.2013 again the vehicle suffered a breakdown due to engine malfunctioning. At about 6.00 p.m. on the said date, the vehicle was delivered to the Complainant, stating that all the defects had now been rectified. However, again there was one such breakdown of the vehicle.

2.2 Under the stated factual scenario, alleging inherent manufacturing defects in the vehicle, which was lying at the Service Centre of the Appellant since 06.12.2013, the afore-noted Complaint came to be filed before the State Commission. The Complainant had prayed for a direction to the Opposite Parties to refund to him the entire value of the vehicle, 10,69,299/-, with interest @ 18% from the date of payment, i.e. 27.03.2012; take back the vehicle; return the amount of 45,452/-, collected by the Opposite Parties as repairing charges and rental charges, with interest @ 18% from the date of payment; and 10,00,000/- as compensation besides costs of the proceedings, in which the afore-noted directions have been issued. Hence, this Appeal.

It is pointed out by the Office that the Appeal is barred by limitation, inasmuch as there is a delay of 138 days in filing the same. Although an Application, seeking condonation of delay in filing the Appeal, had been filed with the Appeal but, on leave being granted vide order dated 05.10.2016, an additional affidavit, explaining the delay, has also been filed. In paragraph 2 of the said affidavit, the Appellant has furnished the following additional explanation: "2. In the above Appeal the impugned Order was received on 8.2.2016. There was an Assistant General Manager (Service) Sri Hariram who was dealing with the legal matters. It is submitted that by letter dated May 20, 2016 Mr. Hariram had intimated the company that he may be permitted to resign from the company. A copy of the Resignation Letter dated May 20, 2016 is attached herewith and marked as Annexure A/1. However, the general of the Appellant had considered the above letter and thereafter Mr. Hariram to continue his services till a suitable replacement is made. A copy of the reply letter dated May 26, 2016 is attached herewith as Annexure A/2. However, he had not reported from June 6, 2016 without handing over the charge to anyone. Consequently the services of Mr. Hariram was terminated by the Appellant by letter dated July 4, 2016. A copy of the Termination Letter dated July 4, 2016 is attached herewith and marked as Annexure A/3. After his removal when it was noticed about the Judgment rendered by the State Commission, Shri Hariram was contacted and it was informed by him that the file was entrusted to an Advocate for filing appeal. On verification it was found that no appeal was filed and the file was not entrusted as well. It is submitted that I have received notice from the lower Forum towards execution of the Order and thereupon I traced out the impugned Order. It is submitted that I have made earnest effort to trace it out and I found out the impugned order on 20.07.2016. It is submitted that on getting the order I have contacted the Counsel and informed the matter and got prepared the appeal memorandum. In these circumstances there occurred a delay of 140 days in filing the appeal. It is submitted that the delay was not at all intentional or willful, but occurred due to the reasons stated above."

We have heard learned counsel for the Appellant on the question of delay.

To say the least, the explanation furnished is vague to the core and wholly unsatisfactory. Admittedly, the certified copy of the impugned order was received by the Appellant on 08.02.2016, which, in any professionally managed company, like the Appellant, has to be put up to the Chief Executive Officer, looking after the day to day affairs of the Company to decide further course of action. Having regard to the quantum of the amount involved, the impugned order must have been brought to his notice. We feel that an officer of the level of an Assistant General Manager would not have been competent to take decision regarding future course of action in the matter. It is unbelievable that the said employee would have been taking independent decisions in such like matters. No cogent evidence in support of the afore-extracted explanation has been brought on record. No Board resolution, authorizing Hari Ram to take independent decision in this regard, has been brought on record. Assuming for the sake of argument that it was so, it belies our conviction as to why Hari Ram took no decision in the matter for over three months, before he decided to resign from the company. By that time, the period of limitation to file the Appeal had already expired. We have no doubt in our mind that the explanation, laying the entire blame on the employee, is an afterthought and does not evince any credibility. We are of the opinion that the Appellant has failed to make out a "sufficient cause" for condonation of inordinate delay of 138 days in filing the present Appeal.

Bearing in mind the afore-stated facts and the observations of the Hon''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] to the effect that while deciding an application for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the Consumer Foras are entertained, we are not inclined to condone an inordinate delay of 138 days in filing the present Appeal and subject the Complainant to further harassment, who, despite having parted with the a huge amount as cost of the vehicle in question in March 2012, is still not able to use the vehicle, which is lying at the Service Centre of the Appellant Company since December, 2013.

Consequently the Appeal is dismissed in limine on the ground of limitation.