Amar Kumar Saraswat Petitioner(S) v. Volkswagen Group Sales India Pvt. Ltd. And Another (S).

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1. The instant Revision Petition filed against the impugned order dated 30/08/2016 passed by the State Commission, Maharashtra which party allowed the First Appeal filed by the Respondent No.1 (OP No.2) wherein the order of District Forum involves modified.

2. This fact of the case is as under:

The Complainant booked a Volkswagen Car at OP 1 (dealer), it was manufactured by OP 2. The Complainant was told by the Agent Mr. Imran that model of December 2011 would be delivered however, in fact the OP1 delivered to him May, 2011 model car on 04/02/2012. The Complainant noticed number of defects in the car like boot of the car was not opening with the remote, the steel grip in the boot was ripped off and the spark like noise was coming from the steering wheel. Being aggrieved the complaint filed by the Complainant before the District Forum, Thane against the OPs for giving alleged one year old defective car.

3. The Opposite Party filed its written version and denied the allegations. It was further submitted that the huge discount of ₹87,000/- was offered to the Complainant and after satisfaction only the car was delivered to him. The defects were minor and not manufacturing defects.

4. On hearing both the parties, the District Forum partly allowed the complaint and directed OPs as;

"A) Buy back the old car after deciding the price of the said car by expert valuer by taking into consideration the present condition of the car and deducting the price from the price of new car of the same model which should be given to the Complainant at discounted price at 60% of showroom price of new car of the same model.

OR

B) The Opposite Party shall pay to the Complainant the value of the old car at the price arrived at after the examination by the expert valuer."

5. Being aggrieved the OP 2 the Manufacturer preferred the First Appeal before the State Commission, Maharashtra, Mumbai.

6. The State Commission disposed of the appeal with modification of the order of the District Forum with following observations:-

"There was no expert opinion on record produced on behalf of the Complainant about expert examination of the car so as to warrant relief to give price of the car to the Complainant on the basis of expert valuer's report. What was on record was mere repairs estimated at the sum of ₹7500/- which we do consider and to end the consumer dispute we order the appellant to pay a sum of ₹7500/- to the Complainant so as to enable him to get the car replaced from the garage as desired by the Complainant. We set aside the impugned order and modify the same by direction that the appellant shall

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pay a sum of ₹7500/- to the Complainant to enable the Complainant to get the car repaired in road worthy condition. Compensation awarded is on higher side. We reduce it to ₹5000/- as reasonable compensation which shall be payable by the appellant to the complainant apart from the sum of ₹7500/-. Costs of litigation is also awarded on higher side. We reduce it to ₹5000/- as reasonable costs of the litigation which shall be payable to the appellant to the complainant apart from the sum of ₹7500/-. Impugned order is modified accordingly. Appeal stands disposed of

accordingly."

7. Aggrieved by the order of the State Commission the Complainant filed the instant Revision Petition.

8. We have heard the Complainant - Petitioner in Person and the Learned Counsel for the Respondent No.1. Perused the order of both the fora below.

9. We note that the complainant after being completely satisfied with the condition of car, the complainant took the delivery of the car on 04.02.2012. He himself on his own got done the registration and insurance of car. Thus he was aware of the year of manufacturing as 05/2011. The District Forum erred while passing the order of replacement of the car. The manufacturer of the car was not made a necessary party before the District Forum. Therefore, in the absence of the manufacturer, the order of the District Forum about replacement of car is not sustainable. The Complainant has not produced any expert opinion to prove that the car had manufacturing defects. We further note that the defects pointed out by the Complainant about oil chamber leakage, low oil level, engine running noise and about the remote etc. are repairable without any hassle. In our view, those are not manufacturing defects as per the definition of defect in Section 2(1)(f) of the Act 1986.

10. We agree with the appraisal made by the State Commission while modifying the order of the District Forum. We do not find any error apparent which requires de novo re-appreciation of the evidence in revision within the ambit and scope of Section 21 (b) of the Consumer Protection Act, 1986.

11. The Revision Petition, being devoid of merit, is dismissed.

Per Hon'ble Mr. Dinesh Singh, Member

12. The District Forum vide its Order dated 26.12.2014 determined 'defect' in the subject car and made an Award ordering that the old Car be bought back at an amount arrived at by an

"expert valuer" and a new Car provided at 60% of its showroom price, or, in the alternative, to pay to the Complainant the amount arrived at by an "expert valuer".

13. In respect of an allegation of 'defect', the procedure to be adopted is laid down in Section 13 (1) (c) to (g) of the Act 1986:

Section 13 (1) (c) to (g) of the Act 1986:

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Procedure on admission of complaint. — (1) The District Forum shall, on admission of a complaint, if it relates to any goods,—

(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;

(d) before any sample of the goods is referred to any appropriate laboratory under clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question;

(e) the District Forum shall remit the amount deposited to its credit under clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in clause (c) and on receipt of the report from the appropriate laboratory, the District Forum shall forward a copy of the report along with such remarks as the District Forum may feel appropriate to the opposite party;

(f) if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory;

(g) the District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under clause

(f) and issue an appropriate order under section 14.

14. 'defect' has to be determined as per the procedure prescribed, that is, the goods concerned have to be referred to an appropriate laboratory, the report from the appropriate laboratory has to be provided to the Opposite Party, if any side disputes the correctness of the findings or the methods of analysis or tests adopted by the appropriate laboratory, objections in writing in regard to the report of the appropriate laboratory have to be invited, and opportunity has to be afforded to both sides of being heard as to the correctness or otherwise of the report, before passing an appropriate order under Section 14.

15. The procedure prescribed cannot be circumvented as being, say, a 'mere technicality' etc. A bare reading of the procedure prescribed in Section 13 (1) (c) to (g) shows that its objective is to ensure that 'defect' is determined after obtaining impartial expert technical analysis or tests and after hearing both sides on the report, and the findings so arrived at pass credence in scrutiny. That being so, non-adherence to the procedure prescribed vitiates the findings.

16. 'appropriate laboratory' is defined under Section 2 (1) (a) of the Act 1986:

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Section 2 (1) (a):

(a) "appropriate laboratory" means a laboratory or organisation—

(i) recognised by the Central Government;

(ii) recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or

(iii) any such laboratory or organisation established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect;

17. When 'defect' in the Car, in its manufacture, was alleged, the District Forum was required to refer the Car to a laboratory or organization as defined under Section 2 (1) (a) (i) or

(ii) or (iii). Here it may be added that, if, due to any reason, it was not feasible for the District Forum to refer the Car to a laboratory or organization recognized by the Central or the State Government under Section 2 (1) (a) (i) or (ii), it was still feasible for it to take recourse to Section 2 (1) (a)

(iii) and refer the vehicle to a government financed or aided laboratory or organization having the requisite expertise and technical wherewithal for the purpose, as, for example, a government financed or aided Institute or College of Engineering or Technology, whose repute & expertise speaks for itself, and whose report would pass credence in scrutiny. That is to say, the (non) proximal availability etc. of a Central or State Government recognized laboratory or organization under Section 2 (1) (a) (i) or (ii) should not be (and can not be) an excuse for not putting the Car to test. Recourse to Section 2 (1) (a) (iii), with the due awareness and the due application of mind, was always feasible.

18. The District Forum has erred in not adhering to the procedure prescribed, in returning its finding of 'defect'. It has also erred in making an Award which, on the face of it itself, is arbitrarily and whimsically arrived at, sans any reason or logic.

19. The State Commission, in its Order dated 30.08.2016, has, thus, rightly disagreed with the District Forum on this count.

20. However, the State Commission has erred in understanding that the manufacturer was not impleaded as an opposite party ("We also find that manufacturer of the car is not inducted as opponent by the complainant."). It is seen that the opposite party no. 2 before the District Forum was 'Volkswagen Group Sales India Private Ltd. through MD & President'. It can, thus, not be said that the manufacturer was not impleaded. The manufacturer was duly impleaded through its Sales Company, as such, was aware of the case.

This, but, in the light of the observations made by this Commission apropos 'defect' in paras 13 to 18 above, does not materially affect the State Commission's disagreement with the District Forum in respect of the latter's (erroneous) findings of 'defect'.

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21. The afore apart, the State Commission has made apt appraisal of the evidence apropos the servicing / repairing of the subject Car, and has made a just and equitable Award on this count, to enable the Complainant to get the subject Car repaired and made roadworthy (Rs.7,500/-), along with reasonable compensation (Rs.5,000/-) and reasonable cost of litigation (Rs.5,000/-). No misappreciation of the evidence, or a legal principle ignored, or jurisdictional error, or miscarriage of justice, is visible on this count, as may call for interference by this Commission in the Award made by the State Commission.

22. The Revision Petition, being ill-conceived and bereft of merit, is dismissed. The Award made by the State Commission is confirmed.

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DR. S.M. KANTIKAR

PRESIDING MEMBER

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DINESH SINGH

MEMBER

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