Skoda Auto India Private Limited vs Lata Jain And Ors.

THIS order shall decide the two above -mentioned revision petitions which arise out of the same order rendered by the State Commission on 06.03.2014. Smt. Lata Jain, the complainant, purchased a Skoda Laura vehicle, manufactured by M/s. Skoda Auto India Pvt. Ltd., OP1, through Silvertone Motors Pvt. Ltd., OP2, the Authorised Agent of OP1, on 05.09.2006. She paid its price in the sum of Rs. 18,18,638/ -. The car was under the warranty for a period of two years'', i.e., till 04.09.2008.

ON 24.07.2008, certain sound in the engine was noticed. The vehicle was taken to the service station, i.e., Fahrenheit Automobiles Pvt. Ltd., OP3, which is the Authorized Dealer and Service Provider of OP1. It transpired that ''flying wheel'' of the car was defective and it was replaced without charging any amount. Till then, the vehicle had clocked 23,000 kms., during the warranty period. On 21.03.2009, the front -breaks of the car were replaced on payment of Rs. 6,870/ -. On 27.04.2009, a ''paid -service'' of the vehicle was conducted. On 01.06.2009, the car, again, developed vibrations. OP3 replaced its ''fly wheel'' and bore 50% of the charges, till the vehicle clocked 43005 kms.

THEREAFTER , the vehicle was further driven up to 787 kms, but it again developed vibrations, on 24.06.2009. It transpired that there were some defects in the ''fly wheel'', the same were adjusted. On 07.10.2009, there was again engine nose and problem with the AC. OP3 informed that the compressors, condenser of the AC and the complete gear box were to be changed. Till then, the vehicle was driven for about 49,965 kms. The complainant was told that the estimated cost of those defects was Rs. 5,60,131/ -. However, the manufacturer of the car reduced the cost from Rs. 5,60,131/ - to Rs. 1,83,117/ -. OP 1 had agreed to bear costs of 60% of the gear box and 50% of the compressor and the condenser of the AC.

IN the meantime, on 30.11.2009, the complainant sent a legal notice to the OPs to refund the price of the car. She took the delivery of the car on 30.12.2009 without prejudice to the conditions raised by her in the legal notice. On 18.05.2010, the vehicle had developed over -heating of the engine. It was take to the nearest station at Ludhiana where thermostat was changed, for which the complainant paid a sum of Rs. 1,000/ -. On 19.05.2010, the car was sent to the Service Station and the complainant had to incur a sum of Rs. 11,587/ -.

ON 30.05.2010, when the son of the complainant was going to Jodhpur, the car developed over -heating at Jaipur, the engine of the car got seized and lot of water was put on the engine, but the car did not start. It was informed to the authorized station at Jaipur and thereafter the vehicle was towed from Jaipur to Delhi. The car arrived at Delhi at the Authorised Station, OP3, on 04.06.2010. The repair work was carried out and an invoice amounting to Rs. 5,77,148/ - was raised. The complainant failed to pay the amount and did not take the delivery of the car, which is still lying with OP3. A complaint was filed with the District Forum in the year 2010, wherein the following prayers were made: - - "a) declare that complainant is not liable to bear cost of Rs. 5,28,968/ - which has been given as cost for carrying out the repair in the car by respondent No. 3 vide tentative estimate and further declare that it is the respondents who have to jointly and collectively bear the cost of Rs. 5,28,968/ -.

b) direct respondents to return amount of Rs. 11,00,000/ - i.e., depreciated value of the car along with 18% interest to the complainant, although complainant is entitled for refund of entire amount of Rs. 18,18,673/ -, i.e., the cost of the car.

c) direct respondents to pay Rs. 1,83,117/ - to complainant which they have charged form complainant vide invoice dated 11.12.2009 towards replacement of ''fly wheel'' and other parts, etc.

d) direct respondents to pay Rs. 11,587/ - to complainant which they have charged from complainant vide invoice dated 21.05.2010 for rectifying problem of overheating of the car.

e) direct respondents to pay Rs. 15,000/ - to the complainant which complainant has to incur in getting the car towed to Delhi from Jaipur.

f) direct respondents to pay compensation of Rs. 1,00,000/ - to the complainant for causing mental tension, torture and harassment.

g) award litigation expenses of Rs. 33,000/ - to the complainant".

THE OPs contested this case and denied that there was no deficiency on their part. The District Forum accepted the claim and rendered the following order: - -

"We hereby direct: - -

i) that OP -1 & 2 shall refund Rs. 11 lakhs as the depreciated value of the car to the complainant.

ii) it is hereby directed that the complainant is not liable to pay Rs. 5,28,968/ - to the OP3.

iii) OPs shall also pay Rs. 1 lakh to the complainant as compensation for mental agony, harassment and sheer suffering together with litigation expenses.

This shall be complied within 30 days".

AGGRIEVED by that order, an appeal was preferred before the State Commission by OP1. The State Commission modified the order of the District Forum and passed the following order: - - "15. To sum up, the above said findings, the impugned orders dated 23.10.2010 passed by the District Forum (ii) are modified as under: - -

a) Appellant/OP No. 1, i.e., M/s. Skoda Auto India Pvt. Ltd., A -1/1, Five Star Industrial Area, Shendra, MIDC, Aurangabad, Maharashtra shall pay to the complainant an amount of Rs. 11,00,000/ - as the depreciated value of car within a period of 30 days from today.

b) The Appellant/OP No. 1 shall pay to the complainant the compensation to the tune of Rs. 1,00,000/ - for harassment and mental agony within a period of 30 days from today.

c) The Appellant/OP No. 1 shall pay to OP No. 3/Respondent No. 3, M/s. Fahrenheit Automobiles Pvt. Ltd. 63/8, Shivaji Marg, Moti Nagar, New Delhi - 110 005 an amount of Rs. 5,28,968/ - within a period of 30 days from today.

d) The appellant/OP No. 1 shall take away the car in question from the premises of OP3/Respondent No. 3 at his expenditure within a period of 30 days from today failing which he shall pay parking charges @ Rs. 500/ - per day to OP No. 3/Respondent No. 3.

In case of default of payments of the above said amounts, within the stipulated periods, an interest @ 12% per annum shall be payable.

This also disposes of the appeal No. 837/2010 titled M/s. Fahrenheit Automobiles Pvt. Ltd. v. Smt. Lata Jain & Ors.".

WE have heard the counsel for the parties. The first submission made by the counsel for the petitioner/OP1 is that the revision petition is barred by time. He explained that the vehicle was purchased on 05.09.2006 and its warranty period came to an end on 04.09.2008. The complaint was filed on 22.07.2010. Therefore, it is clearly barred by time. Secondly, the counsel for the petitioner/OP1, submitted that the vehicle had run on the first instant, on 24.07.2008, upto 23,000 kms. The counsel admitted that after expiry of 9 months, the ''fly wheel'' again, became defective. He contended that the vehicle was driven without any obstruction and defect. The car had clocked 59,036 kms on 19.05.2010. There is no inherent defect in the car. No report of the Expert was filed. The car was driven upto 60,000 kms, within a span of 45 months. There was no inherent defect in any of the parts of the vehicle. The complainant did not drive the car properly. The car is an automatic transmission which is extremely complex and resuscitated requiring equal level of care and caution on the part of the owner or his representative behind the wheel.

COUNSEL for the petitioner submitted that the last report clearly goes to show that he was not using coolant in his vehicle. He drew our attention towards email which reveals that there were no manufacturing defects, as such. The other reports too, do not specify any manufacturing defect in the premises in dispute and the vehicle had run about 59,925 kms. In support of his case, he drew our attention towards a number of authorities, out of which, few of those belong to this Bench, as well. These authorities are reported as under: - - "1) K.K. Velusamy v. N. Palanisamy, : (2011) 11 SCC 275.

2) Hyundai Motor India Ltd. Surbhi Gupta, RP No. 2854 of 2014, decided on 14.08.2014

3) Classic Automobiles v. Lila Nand Mishra & Anr., 1 (2010) CPJ 235 (NC).

4) Maruti Udyog Ltd. v. Hasmukh Lakshmichand & Anr., 3 (2009) CPJ 229 (NC).

5) Krishanpal Singh v. Tata Motors, : II (2014) CPJ 731(NC)

6) Bachan Narayan Singh v. Eicher Motors, IV (2014) CPJ 348 (NC)

7) Sushila Automobiles P. Ltd. v. Dr. Birendra Narain & Ors., 3 (2010) CPJ 130 (NC)

8) Fiat India Ltd. v. Syed Hasan Bukhare, RP No. 1235 of 2014, decided on 10.10.2014.

9) Ford India Ltd. v. N. Chandra Gowd, II 92014) CPJ 202 (NC)

10) Mahindra & Mahindra v. B.G. Thakurdesai, II (1993) CPJ 225 (NC).

11) Hyundai Motor India Ltd. v. Er. Gopal K. Sahi & Anr., 3 (2009)

12) Premanchal Motors v. Ramdass & Anr., 2 (2009) CPJ 98."

THE arguments urged by the counsel for the petitioner/OP1 are correct, in a measure. However, the facts of the above said authorities are wee bit different from this case. This is an indisputable fact that ''fly wheel'' of the car was defective from the very start and this defect was detected during the subsistence of the warranty period. Although, ''fly wheel'' and connected defects could never be rectified, yet, it is difficult to fathom, why, the ''fly wheel'' required replacement, time and again. Does it not give an inkling of manufacturing defect. The cause of action in regard to ''fly wheel'' is continuous. Due to this major defect, so many other connecting problems also cropped up. The counsel for the petitioner/OP1 vehemently argued that the ''fly wheel'' was removed after expiry of 9 months. This is a very strange argument. The complainant had bought a very good car, after spending a sum of Rs. 18 -19 lakhs. The argument that ''fly wheel'' was replaced again, after 9 months, lacks conviction and smacks of negligence and deficiency on the part of the OP1. The complainant had purchased a prestigious car, but not a ''toy''. If some part of the ''toy'' is to be replaced, after 9 months, it is quite understandable, but this is not the case of a ''toy''. Here, the case is altogether different. The complainant had purchased a car. The ''fly wheel'' should have properly worked without defect, at least, for a period of five years, if not, ten years. The car cannot be equated with a ''toy''.

SECONDLY , it is not understood, why the OP1 became, ''very kind'' and accepted charges of 50% only on the ''fly wheel''. This action of OP1 speaks volumes about the defects in the car and its malafide intentions. Was not it, a manufacturing defect?. The vehicles run for lakhs of meters, without any defect. This is a very strange car which, after running for a few kilometers, presents itself with so many defects.

IT is also not explained, why, the car developed vibrations on 24.06.2009. It had run only 787 kms after replacement of the ''fly wheel''. Again, it was found that for the third time, that was defect in the ''fly wheel'', which was adjusted. Again, there were vibrations, engine noise and problem with the AC. The complainant was asked to pay Rs. 5,60,131/ - but only a sum of Rs. 1,83,117/ - was charged. OP1 knew in its ''heart of hearts'' that there were some manufacturing defects in the car. That is why, the amount was reduced to such an extent. The car again, became defective, while going to Jodhpur and invoice of an amount of Rs. 5,77,148/ - was raised. Is a consumer required to pay a sum of Rs. 18,18,638/ - for a car, which was defective, from its very start, plus a sum of Rs. 5,60,131/ - which was subsequently reduced to Rs. 1,83,117/ -, plus a sum of Rs. 5,77,148/ -, meaning thereby, that within a span of four years, the consumer had to cough out more than Rs. 13.00 lakhs, in addition to the actual cost of the car?. This is a continuous cause of action. The problem started with the ''fly wheel'', during the period of warranty. The complaint was also filed within two years, from the date of expiry of warranty. Consequently, the objection that the case is barred by time, was raised merely for the sake of cavil.

LET us now turn to the report of an Expert. The facts of this case speak for themselves. This is an admitted fact that ''fly wheel'' became defective time and again. The manufacturer, OP1 has got a number of Experts/Mechanics. It could not muster the courage to file the report of an Expert to show that the car in question was '' sans'' defect. It could not file a report to show that the other defects, such as engine sound, vibrations, etc., did not come up due to defect in the ''fly wheel''.

WHEN we asked the counsel for the complainant, for how many times, the complainant had approached the OPs for repairing purposes, he replied "only for 5 -6 times". It is strange that the counsel for complainant has used the word "only". If a buyer has to come for 5 -6 times, for repairs, within a span of 3 1/2 years, in that event, the car cannot be said to be flawless. This is well settled that vibrations in the car, tantamounts to manufacturing defect.

ON the other hand, the counsel for the complainant argued that the orders passed by the fora below cannot be disturbed in view of the authorities reported in (1) Rubi (Chandra) Dutta v. United India Insurance Co. Ltd., : (2011) 11 SCC 269 and (2) Skoda Auto India Pvt. Ltd. v. Pawan Kumar Mahbirprasad Bhagerla & Ors., IV (2011) CPJ 548 (NC).

HOWEVER , we are of the considered view that the car in question cannot be replaced, sold back to OP1 on depreciated value or an amount of Rs. 11,00,000/ -, as ordered by the fora below cannot be given to the complainant. It must be borne in mind that the car was purchased as back as on 05.09.2006, almost one decade is going to elapse. The car had already clocked 59,925/ - kms. This Commission, in a case, titled Tata Motors v. Rajesh Tyagi & Anr., RP No. 1030 of 2008, decided on 03.12.2013, was pleased to hold, as under: - -

"9. It is further observed that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon''ble Apex Court in their judgements from time to time and is aimed at providing for better protection of the interests of the consumers as defined in the preamble to the Act itself. Given the facts at hand, the interests of the consumer in the present case can be protected only if he is provided a vehicle which is free from defects from all angles and he is not subjected to the technicalities of proving whether any manufacturing defect exists or not.

Based on the discussion above, we find that it shall be in the fitness of things if the petitioner and respondent No. 2 dealer who has chosen not to put appearance before this Commission, jointly make an endeavour to remove the defects in the vehicle and give a clear -cut certificate signed by a senior officer of the manufacturer, not below the rank of a General Manager, declaring in categorical terms that the vehicle is free from any defects. We, therefore, order accordingly and manufacturer and the dealer are permitted to carry out the necessary repairs in the vehicle, make it defect -free and hand it over to the consumer along with the certificate as mentioned above within a period of three months from today".

THE Hon''ble Apex Court in Special Leave to Appeal CC No. 13383/2014, filed against the above said judge its order dated 29.08.2014.

KEEPING in view the harassment, mental agony, anger, anguish, frustration, sadness, etc., which the comp direct that the car be returned to the complainant in a road -worthy condition. An amount of Rs. 5,77,148/ - would complainant. That will be borne by the OPs. Further, OPs 1 to 3 will give further warranty of two years, to the complainant. The orders passed by the fora below are modified, accordingly. The car be not returned to Rs. 11,00,000/ -, etc. The complainant, under these circumstances, is entitled to compensation in the sum of Rs. 25,000/ - for her Rs. 1,25,000/ -, plus, Rs. 1,00,000/ - for harassment and mental agony at Jodhpur, and costs of litigation before Rs. 1,00,000/ -, i.e., total being Rs. 3,25,000/ -. The said compensation is being paid in lieu of main prayer of the complainant, within 90 days'' from the date of the receipt of copy of this judgment, otherwise, after expiry o interest @ 9% p.a., till its realization.

THE car be handed over to the complainant, within a period of three months, from today, otherwise, all t penalty to the complainant, in the sum of Rs. 3,000/ - per day, till the car is made available to the complainant.