R. Lakshminarsimha Rao, Incharge President
Both the complaints bear similar facts and as such they are being disposed of by a common order. C.C.No.29 of 2013 is taken as lead case.
The complaint is filed seeking direction to the opposite parties to replace the defective car with a new defect free one by meeting the registration and the insurance amount
OR
in the alternative refund the cost price of Rs.29,33,699/- along with registration charges of Rs.2,64,290/- and the insurance amount of Rs.2,13,529/- with 12% interest p.a. from 25-10-2009 till the date of realization; together with compensation of Rs.5,00,000/- and costs of Rs.50,000/-.
The averments of the complaint are that the complainant and his professional partner, Sri Korada Ravi Kumar purchased two Mercedes cars in a gap of one and half months. The complainant purchased Mercedes Benz car bearing model No.C200K, Chassis No.WDD2040416L0222421, engine No.27195031184132 on 25-10-2009 vide Invoice No.ADO10910RIN00104 for a consideration of Rs.29,33,699/- from second opposite party vide invoice dated 27-10-2009. The complainant submitted that the vehicle was hypothecated to HDFC Bank Ltd., and for the first time after eight months of purchase of car in June/July, 2010 it started emanating foul smell during driving after a few kilometers which would gradually increase developing a nauseatic sensation to the driver and passengers in the car.
The complainant submitted that he immediately informed the problem to second and third opposite parties and as the problem surfaced during warranty period, it is a manufacturing problem and he has been corresponding continuously from 21-11-2011 through emails and phone calls and the email dated 21-11-2011 states that the problem of foul smell has been experienced a year ago and after several half hearted efforts to solve the problem failed. The complainant submitted that the chain of emails from 21-11-2011 to 13-8-2012 will clearly show the traumatic experience undergone by him.
The complainant submits that the opposite parties had taken his car for inspection of the foul smell problem five times in a span of one year. On two occasions the opposite parties kept the car with them at Hyderabad for 60 days and on another occasion again for 30 days in Vizag yet the problem could not be identified or rectified. The complainant submitted that the opposite parties have informed him that senior technical experts inspected the vehicle and the complainant submitted that his car was for most of the time with the opposite parties for inspection or âstationed condition in his cellar.
The complainant submitted that the opposite parties had not disclosed the nature of works that were carried out to resolve the problem and that sufficient number of attempts by second and third opposite parties could not rectify the problem. The complainant submitted that although he has been complaining about the foul smell from June/July, 2010 to opposite parties, they cleverly managed to skip to mention it in the vehicle history sheets and when the problem of foul smell went on increasing, he has been complaining the same persistently and the opposite parties suspecting the foul smell from the interiors opted to clean the interiors and did the cleaning of interior in 4th visit on 24-6-2011 which is not done for new premium cars like Mercedes.
The complainant submitted that he got issued a notice to the opposite parties and an e-notice to Daimler AG, Germany on 30-12-2012 to replace the defective car with a new defect free car of the same model or refund the cost price along with interest @ 12% p.a. from 25-10-2009 till realization together with compensation. There was no reply to the e-notice from Germany, the manufacturing company in India received the notice and it did not choose to reply, notice addressed to dealer in Andhra Pradesh returned unserved and though notice was served on the local dealer at Visakhpatnam, there was no response. Thereafter the opposite parties sent their technical team to Visakhpatnam to inspect both the cars once again and when the complainant and his partner refused to send the vehicles to Hyderabad, they requested to spare the car for few days in their office at Visakhpatnam and after duly examining both the cars certified that âfound foul smell from the car, identified the source of four smell from insulation under carpet and stated that they ordered necessary parts for replacement. The complainant submitted that there is crystal clear diagnosis of the opposite parties that the vehicle is suffering from manufacturing problem and due to this problem, it travelled only 19,765 kms and the failure on behalf of opposite parties is deficiency in service. Hence the complaint.
The opposite party No.3 resisted the case contending that the car Mercedes-Benz C-200k was of international standard and sold subject to two year warranty and was purchased by the complainant on or about 27-10-2009 this is more than 3 years ago. The opposite party No.3 submitted that the complainant purchased the vehicle and taken delivery of the car after a thorough examination and trial of the car and on being fully satisfied of its condition and submitted that general principle of law relating to the sale of goods is âcaveat Emptor or âBuyer Beware and it is the responsibility of the buyer to purchase goods of his choice, to maintain and use it appropriately and the present case of âfoul smell related to maintenance of the vehicle only.
The opposite party No.3 denied the allegation of the complainant that he experienced foul smell 7-8 months after purchase of the vehicle and submitted that there is no evidence that the foul smell arose during warranty period and such an allegation was made vide his email dated 21-11-2011. The opposite party No.3 submitted that the foul smell emanated on one occasion due to strong perfume sprayed in the car which appears to have reacted with the interiors and as the complainant was not satisfied, they deputed their Senior technical expert to the workshop of OP2 and the necessary job was carried out by the dealer under the technical expert of OP3 and after repairs, a test trial was carried out and no abnormal smell was observed. The complainant kept insisting that he still experiences the foul smell.
The opposite party No.3 submitted that on the second instance, it was clearly maintenance related issue since residue of car wash was accumulated at the bottom below the carpet and such factors cannot be attributed to any manufacturing defect and opposite party No.2 communicated to the complainant that smell is a sensory perception and practically it is impossible to check the source of it as the source could be totally abstract and written an email dated 26-11-2011 to the complainant. The opposite party No.3 submitted that in order to address the issue raised by the complainant, it again deputed its Senior Technical expert in the month of December, 2012 who inspected the car for reported concern of foul smell and suggested for replacement of few spare parts which were ordered and received by OP 2 and on the advice of its Technical expert and OP2 requested the complainant to spare the vehicle for planned repairs/replacement of parts at vizag. The complainant has not handed over the vehicle for the necessary job and that the complainant has wrongly stated that he is unable to use the car.
The opposite party No.3 submitted that the complainant is using the car continuously which is evident from the following record:
| Date | Mileage (KM) |
8/12/2009 | 834 |
| 29/10/2009 | 6,797 |
| 13/12/2011 | 14,375 |
| 16/6/2012 | 17,513 |
| 27/11/2012 | 19,765 |
The opposite party No.3 submitted that in the event the vehicle suffers from any manufacturing defecting during warranty period from the date of its purchase, such defective part/s (subject to certain exclusions) are either repaired or replaced free of charge at the absolute discretion of Manufacturer. The opposite party No.3 submitted that foul smell may be caused due to extraneous factors such as accumulated pollutants from environment, foreign matter in interior, saturation of filter etc. and as ascertained from its authorized dealer, the foul smell was reported verbally for the first time approximately after one year of purchase of the car and brought it to the work shop of the opposite party No.2 on December, 30, 2011 well two years after expiry of the warranty period.
The opposite party No.3 submitted that after inspection of the vehicle, it was observed that the customer had sprayed some kind of strong perfume in the car which appears to have reacted with the interior and foul smell emanated. The insulations were replaced under warranty, interior policy was done free of cost and the complete interior was changed and the complainant was provided with a loaner car of the same model to commute hassle free till the car was delivered to the complainant and further the car was checked and rechecked and no foul smell was found. The opposite party No.3 submitted that the complainant insisted that he still experiences foul smell and on the second occasion, car wash residue was found accumulated at the bottom of the carpet. The opposite party No.3 further submitted that the complainant be directed to get his vehicle tested by any appropriate laboratory under the provisions of Section 13 of Consumer protection Act and prayed for dismissal of the complaint with costs.
Opposite parties 1 and 2 filed memo adopting the written version of opposite party No.3.
The complainant has filed his affidavit and also the affidavits of Mr.Sudhir Sikand and Adeep Bhnoji Rao and the documents, Exs.A1 to A27. The General Manager, Legal Affairs and Company Secretary of the opposite party No.3 filed his affidavit and relied on Exs.B1 and B2 and Head Technician of OP2 filed his affidavit any relied on documents Exs.B3 and B4.
The learned counsel for the complainant and the opposite party no.3 have filed written arguments.
The points for consideration are :
i) Whether the opposite parties supplied defective car to the complainant?
ii) Whether there is deficiency in service on the part of the opposite parties?
iii) To what relief?
POINT NO.1 and 2:
The third opposite party is the manufacturer of Mercedes Benz cars in India and the opposite party no.2 is its dealer at Hyderabad and the opposite party No.3 is its authorized service centre at Vishakhapatnam. The complainant and his friend Korada Ravi Kumar, the complainant in C.C.No. 30 of 2013 are chartered accountants and they have been running âSisir and Ravi Associates, Chartered Accountants and Enforcement Agentsâ . The complainant submitted that their firm is having 25 branches all over India and deal with high end clients.
The complainant purchased Mercedes Benz car bearing model numberNo.C200K, Chassis No.WDD2040416L0222421, engine No.27195031184132 on 27-10-2009 for consideration of Rs.29,33,699/- The complainant complained of foul smell emanating from the car in the month of July, 2010 which the complainant termed as manufacturing defect in the car and surfaced during the warranty period. The opposite party no.2 contends that the complainant for the first time complained of foul smell in the car two years after the car was purchased which is beyond the period of warranty. The opposite party No.3 supported the version of the opposite party no.2 that the complaint as to the car emitting foul smell for the first time was made in the month of December,2011.
The job card dated 20.05.2010 does not speak of any foul smell emanating from the car as also there is no other document placed on record to show that the foul smell in the car was observed for the first time in the month of June, 2010 or July, 2010. The learned counsel for the complainant has drawn support for her contention from email dated 21.11.2011 wherein it is stated that problem of foul smell was observed a year prior to the date of email. The second opposite party has stated that the statement of the complaint that he complained of foul smell in the month of June/July, 2010 is incorrect. He has stated :
âI respectfully submit that the complainant complained about the alleged foul smell for the first time during December, 2011, i.e. more than two years after he purchased the car. I respectfully submit that the allegation that the complaint was noticed sometime in June/July, 2010 is denied as not being true and correct, and seems to have been only for the purpose of enabling the complainant to file the present complaint and make out of a non existent cause of actionâ.
The statement of the second opposite party is supported by the documents placed on record as also it would be strengthened by non-submission of any job card or the like document by the complainant showing making of complaint either at the time the car was brought to the second opposite party for free servicing or at any other occasion.
The complainant has stated that the foul smell related problem is a manufacturing defect in the car and it developed during the period of warranty. We would consider a little later whether the problem of foul smell in the car is a manufacturing defect. Admittedly, at the time it was delivered to the complainant after the car was taken for test drive and after subjecting it to redelivery inspection to the satisfaction of the complainant, the second opposite party delivered the car to the complainant. In this regard, the second opposite party has stated:
âI respectfully submit that as per records of this opposite party, when the complainant approached the opposite party herein for purchase of car, he test drove the car before taking delivery and upon his satisfaction the car was delivered to the complainant. I further say that the opposite party herein has conducted â PRE-DELIVERY INSPECTION before the car was delivered, the report which is filed herewith for the kind perusal of this Honble Commission (Ex.B3) I respectfully submit that on a perusal of the same it is evident that the vehicle has been delivered to the complainant in complete satisfaction of the technical norms of the opposite parties hereinâ .      The opposite party no.3 furnished warranty on the car for a period of two years from the date of its purchase. The car was purchased on 25.10.2009 and it was brought to the first opposite party for the first time on 13.12.2011 with the complaint of foul smell and at the time the odometer reading of the care was 14375 kms. It is not clear as to when the complainant encountered the problem. The complainant has not stated the specific date on which he noticed and experienced the foul smell being emanated from within the vehicle.
The complainant has stated that the problem of foul smell, i.e., the foul smell emanated from within the vehicle went on increasing and he had been persistently complaining the problem to the opposite parties. The opposite parties refuted the charge stating that the problem of foul smell was brought to their notice for the first time on 13.12.2011. The technician of the second opposite party company in paragraph 16 of his affidavit stated the date of reporting the problem as 13.12.2011 and he stated :
âI respectfully submit that for the first time, the complainant had raised the issue of foul smell emanating from the car as could be noticed at the odometer reading of 14375 Kilometres on 13-12-2011 beyond the period of warrantyâ.
The company secretary of the opposite party company has referred to the paragraph 3(e) of the complaint and stated that as admitted by the complainant it is on 21.11.2011 the complainant reported the problem pertaining to the emanating of foul smell on 21.11.2011 which is not made within the warrant period. He has stated:
âI deny the contention of complainant that opposite parties did not address his problem effectively or acted negligently is vehemently denied. I submit that, it is not correct to say that complainant he experienced foul smell 7-8 months after purchase of vehicle. There is not even an iota of evidence to that effect. Though complainant has tried to project that foul smell related concern arose during warranty period, as admitted by complainant himself n paragraph 3(e) of his complaint he such an allegation for the first time on 21.11.2011â
The complainant has not mentioned the date on which he experienced foul smell in the car for the first time and he has averred in paragraph 3(e) of the complaint that he made correspondence with the opposite parties with regard to the problem of foul smell in the car since 21.11.2011 and the complainant referred to the email dated 21.11.2011 that he had sent to the opposite parties stating that the second opposite party had also experienced the foul smell in the car a year prior to the date of email. Whatever may be the date of reporting the complaint, the opposite parties had undertaken to rectify the problem under warranty of course according to the second opposite party as a good will gesture and as per the version of the third opposite party, it was done merely under warranty.
The job card-history of the car indicates that the complainant had taken the car for the first time to the workshop of the second opposite party company on 8.12.2009 and at the time the kilometer reading of the vehicle was 834 kms. The complaint at the time made was in regard to bumper and trunk lid etc., and subsequently the vehicle came to the opposite party no.2 for annual inspection on 20.05.2010 and thereafter for servicing on 29.10.2010. The next time the vehicle was brought to the second opposite party on 24.06.2011 and at the time its odometer reading was 10942. On request of the complainant, the second opposite party carried out interior cleaning and body paint of the car and till the time there was no any complaint as regards to foul smell emanating from within the vehicle.
We would consider a little later the problems complained of and attended thereto, when subsequently, the car was brought to the second opposite party on 13.12.2011, 24.07.2012 and 27.11.2012. The terms of warranty under the head âwhat is coveredâ provide for liability of the opposite party no.3 to replace certain spare parts and it reads as under:
âWhat is covered
1. Vehicles supplied by MB India are warranted to be free from defects in material and workmanship and are covered under this warranty for a period of 24 months commencing from the date of first registration or date of sales invoice/delivery note:-whichever comes earlier-without mileage limitation.
2. This warranty shall, at the option of MB India, cover and be limited to either repair of goods supplied or replacement of parts which MB India recognizes as defective.
3. For the parts replaced during such repair, the same warranty applies until the end of MB India warranty period of the vehicle as stipulated herein.
4. Labour or/and material costs for the job under warranty will be accepted only if the vehicle is serviced and maintained according to the defined schedule by an authorized service workshop of MB India.
5. Labour or/and material costs for the job under warranty will be accepted only when maintenance/repairs are done by authorized service workshop of MB India
The terms of warranty also provide for exemption from the liability of the opposite party no.3 as regards certain other parts of the car and the relevant clause under the head âwhat is not coveredâ reads as follows:
WHAT IS NOT COVERED:
1. Under this vehicle warranty, MB Indias liability is limited to the value of the service, repairs/replacement of parts found to be defective within the warranty period. Beyond servicing and/or repairing defective parts in the vehicle, MB India does not undertake to replace the vehicle and/or reimburse the purchaser by payment of any money towards any consequential loss or damages in respect of the vehicle purchased by them.
2. MB India shall not be liable for any damage or loss caused to any property, article, disability or death caused to any human life arising out of electric fault, short circuit, fire, negligent use of the vehicle or accidental handling. The maximum liability in monetary terms shall be restricted to the value of the defective parts and/or workmanship only.
3. Batteries music system and tyres have their respective warranties provided directly by the respective manufacturers/suppliers (please contact MB India authorized workshops for further details).
4. Services by a service workshop which is not authorized by MB India.
5. Any damages if the vehicle is not handled or driven in accordance with the instructions is the Owners Manual supplied with the vehicle and if the defined regular service/maintenance work is not performed.
6. Any changes in the original technical characteristics of the vehicle or the components. For example, usage of wheels/tyres not recommended by MB India, additional electrical fitment, spoilers, changing engine specifications to increase its power or any other modification in the vehicle that may have an effect on the performance of the vehicle.
7. Wear and tear of parts, required periodic maintenance, adjustments, cleaning
8. Damage caused by common abrasion (for instance brake pad etc.) or impact of the elements such as discolouring or deformation of any interior leather, plastic chrome or painted surface.
9. Damages which became serious since unattended because during the normal usage the vehicle owner failed to detect the defect and/or failed to claim and having rectified the defect when the same was apparent during vehicle delivery or immediately after delivery or at a later date.
10. Any damages to the fuel system due to water, adulteration or foreign objects in the fuel.
11. Damages due to any of the causes listed below:
(a) Misuse, Improper operation/storage/transportation/maintenance or repairs not in accordance with MB India specifications.
(b) Accidents and general damages caused by external forces, fire collision, theft or secondary damages based on any of these occurrences.
(c) Use of non genuine/counterfeit parts.
(d) Use of lubricants or accessories other than those approved by MB India.
(e) Exceeding permissible capacities such as axle loads/overloading, passenger, speed and rpm limitations.
(f) Driving the vehicle under severe conditions such as un-pliable or water logged roads, in races or rallies.
(g) Natural disasters including but not restricted to earthquakes, storms, floods fire and accidents.
(h) Use as a commercial vehicle or use other than the intended purpose.
(i) Use of adulterated/improper service products such as fuel, oils, brake fluids, coolants, washing and polishing products and the like.
(j) Damage caused by the installation of non recommended equipments such as radio, car telephone, CD/DVR set or other parts.
(k) Glass damages like breakage and scratches.
(l) Soot and smoke, chemicals, bird droppings, sea water, sea breeze, salt, stone chipping, scratches iron dust acid rain or any other chemical influences (regarding paint or body damage, specially stone throw, air-born rust industrial fall out), damage t catalytic converter due to use of wrong/bad quality duel used in the vehicle.
12. Sensory complaints by owner against noise, vibration, smell, temperature of sidewalls or foot well which may occur for reasons such as but not limited to, upkeep and maintenance of the vehicle, road condition, nature of usage or environmental reasons and do not affect product quality, function or performance of the vehicle.
13. Consumptive parts: spark plug, belt drive chains, air cleaning element, Air conditioner dust filter, fuel filter, oil filter, clutch parts, brake parts, tyres, glasses, wiper blades, bulbs, carbon brushes, fuses, etc.
14. Oil/Grease and other fluids: engine oil, automatic transmission fluid, brake fluid, coolant, wing shield washer fluid, battery fluid, air conditioner refrigerant, other lubricants, etc.
15. Warranty will seize to operate in case of accident/s.
16. No warranty repair shall be made if it is found that the vehicle identification number like chassis/engine number, odometer of the warranty and service booklet, have been tampered with/ or not matching with master date available at Dealer/MB India.
17. Battery defect due to parking of the vehicle for lengthy period and if the battery charge is not checked regularly.
This list is neither exclusive nor exhaustive.
The decision of MB India shall be final and binding.
The question arises for consideration is whether the foul smell emanated from within the car is a manufacturing defect. The learned counsel for the complainant has submitted that the problem of the car emitting foul smell goes to root of the manufacturing defect and as it could not be cured, the opposite parties are liable to replace the car with a new defect free car. The learned counsel for the opposite parties have contended that Mr.Sudhir Sikand and Adeep Bhnoji Raowho filed their affidavits stating that they travelled in the car are not an experts in the automobile field and in the absence of any independent and reliable technical experts opinion, there cannot be any definite finding that the car suffered from manufacturing defect.
The learned counsel for the complainant has submitted that the technician of the second opposite party reported the problem as relating to insulation kit of the vehicle which is a manufacturing defect and as such the opposite parties cannot harp on the complainant adducing an experts opinion. The car was taken to the opposite party no.2 on 13.12.2011 and at the time its odometer reading was 14375. The job card dated 13.12.2011 would show complaint made, the service carried out and the parts replaced which read as under:
| Sl.No. | Part No. | Part Description | Amount (Rs.) |
1 | AD-MOBIL5W50 | Mobil Engine oil | 6297.5 |
2 | A2711800109 | FILTER ELEMENT | 1697.94 |
3 | N007603014106 | Seal Ring | 66.25 |
The complaint reported on 24.07.2012 was regarding repair of the door of the car and the odometer reading of the car at the time was 18113. The job card would show repair of door repair/replacement of the following spare parts:
| S.No. | Customer concern | Standard text | Diagnosis remarks | Amount (Rs.) | Unfinished |
1 | FR RH door denting and painting | 1st door on right repair | Word done at VIZ | 1200-00 | N |
2 | FR LH door denting and painting | 2nd door on left repair | Â | 795-00 | N |
3 | Â | Rear Fender on left repair | Â | 795-00 | N |
4 | Â | Front fender on right remove/install | Â | 1440-00 | N |
5 | Â | Front RHS door painting | Â | 8490-00 | N |
6 | Â | LHS Rear door painting | Â | 8490-00 | N |
7 | Â | Left rear fender paining | Â | 9495-00 | N |
For the last time the complainant had taken the vehicle on 27.11.2012 to the second opposite party with the complaint of âengine not starting and at the time the odometer reading of the vehicle was 19765 kilometres. The learned counsel for the complainant has submitted that the opposite parties had not taken any action for rectifying the problem of foul smell emanating from within the car and the complainant got issued notice for which there was no response from the opposite parties and the opposite parties inspected the vehicle only after the notice was issued to them.
The technician of the opposite party no.2 opined that the source of foul smell was identified as insulation kit under the carpet. The learned counsel for the complainant has submitted that the opposite parties have shown the cause for the vehicle emitting foul smell as the use of strong perfume in the car and on the second instance, it was maintenance related issue since residue of car wash was accumulate at the bottom of the carpet. She has submitted that the admission of the opposite parties as to accumulation of the car wash would throw any amount of light on the negligence of the opposite parties in attending the problems posed by the car. The learned counsel for the opposite party no.3 has submitted that the problem reported is maintenance related problem and he has submitted that there is no manufacturing defect in the vehicle.
The learned counsel for the opposite parties has submitted that the complaint of foul smell was reported on 30-12-2011 and the technician of the second opposite party has attended to the problem and thereafter there was no complaint of foul smell emanating in the car and the complainant had sent email subsequent to 13.12.2011 in order to make out a case and gain sympathy of this Commission. We do not find any substance in the contention of the learned counsel as the technician of the opposite party no.2 company has stated that the complainant had given it feedback that the odour was again felt in the car and it had got inspected the car and it had not noticed any odour and delivered the car to the complainant on 20.2.2012 and it had taken feedback from the complainant on 31.3.2012 wherein the complainant had confirmed that the issue was resolved to the extent of 75% and the technician had stated as under:
âFurther, we had taken feedback from the complainant on 31st March, 2012, wherein he had confirmed that the issue is resolved upto 75%, based on the confirmation from the complainant himself, a mail to the customer was sent as confirmation of the statement on 2nd April, 2012 (Ex.B4)
I respectfully submit that the complainant had again sent a mail on 13th Aug. 2012 t O.P.No.3 stating that foul smell is again emanating for which a reply was sent on 10th Oct-2012 and 6th Nov.2012 requesting the complainant to spare the vehicle at Dealers workshop at Hyderabad, so that Technical experts of O.P.No.3 will attend the vehicle personally to resolve the issue, if any; satisfactorilyâ.
Thus it can be stated that the odour or foul smell emanating from within the car was not completely cleared off. However, the foul smell emitted by the car, in the absence of evidence thereof cannot be held an inherent or manufacturing defect. The opposite parties expressed their readiness to get the vehicle inspected to find whether the problem reported can be categorized as inherent or manufacturing defect in the vehicle. However, the inaction of the complainant in handing over the vehicle to the opposite party no.2 company cannot by itself be made a platform for the opposite parties to contend that there was no negligence or deficiency in service on their part.
Even in the case of manufacturing defect of a vehicle, the vehicle in toto cannot be ordered to be replaced in view of the ratio laid in â Maruti Udyog Ltd., Vs Susheel Kumar Gabtoraâ reported in AIR 2006 SCC 1586 wherein the Supreme Court opined that warranty condition referred only to the replacement of the defective part and not of the car.
In another case, the Honble National Commission held in âM/s TELCO Ltd., another Vs. M.Moosaâ, 1986-94 page 1367 (NS) that the section 14(1) of the Consumer Protection Act authorizes the Forum to have the defects removed even if there are numerous defects which can be rectified and that it will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defects appear which can be rectified or defective part can be replaced.
In view of the aforesaid discussion and in the light of the judgment of the Honble Supreme Court we do not find the respondent entitled to the replacement of motor cycle or refund of its cost of the car unless he handed over the vehicle for inspection by technical experts of the opposite parties.
The complainant has not denied that the opposite partyno.2 requested him to handover the vehicle for replacement of certain spare parts as pointed out by its technical expert under Ex.A8 even after the spare parts were ordered and received on 17.12.2012 by the opposite party no.2. The head technician (body shop) of the opposite party no.2 has stated as under:
âI respectfully submitted that on repeated requests the complainant had given approval for inspection of the vehicle at Vizag 6th and 7th Dec.-2012. Upon which Mr.Rameshan Nair Technical Expert from the opposite party No.3 visited to our Vizag branch ad inspected the vehicle. I say that the Technical Expert observed no foul smell was emanating from the car. (Ex.A8). However, for the satisfaction of the complainant, the Technical Expert requested for replacement of few parts. Accordingly, the said parts have been ordered and received by Dealership on 17-12-2012. However, unfortunately, inspite of repeated requests the complainant has not brought the car for replacement of these parts in order to address his grievance though the vehicle has reported for other complaints/service and the complainant was very specific not to touch the said concern. I state that the said parts are readily available for replacement, if the customer is ready to get them replacedâ.
The complainant ought to have handed over the vehicle in order to enable the second opposite party to replace the spare parts as advised by its technical expert.
Mercedes Benz is a globally reputed company in the automobile field and its reputation is untainted. However, in the present case the opposite party had not exercised due diligence in attending the foul smell emitted from within the car and one can imagine the inmates inconvenience while travelling in the car emitting odour. The opposite parties could have been smooth in their response to the allegations made by the complainant who is none other than their customer. The learned counsel for the complainant has submitted that the negligence exhibited by the opposite parties in attending the complaint of foul smell emanating from the car is of lesser degree of harassment compared to the opposite parties attributing malafides to the complainant in filing the complaint. We find substance in the contention of the learned counsel.
We find substance in the contention of the learned counsel for the complainant that the opposite parties had brushed aside the complaint of the complainant that the foul smell has emanated from within the vehicle, is sensory perception of the complainant as it is found even in the version of the opposite parties that two views were entertained as regards usage of strong perfume and the other maintenance related issue on the premise of residue of car wash accumulated at the bottom of the carpet. These two views if considered combinedly, they do not take the observer anywhere near the plea of sensory perception. The opposite parties attributing such element to the plea of the complainant establish negligence on their part, certainly would have made the complainant suffer from mental tension.
In the light of request made by the opposite party no.2 to the complainant to handover the car for the purpose of replacement of certain spare parts which were ordered and purchased by it on the advice of its head technician (body shop), we are inclined to hold the complainant entitled to the replacement of the parts so as to rule out any foul smell emanating from within the car. For the inconvenience caused and mental agony suffered by him, the complainant is held entitled to a sum of Rs.1,00,000/- towards compensation.
The complainant in C.C.No.30 of 2013 has failed to establish any negligence or deficiency in service on the part of the opposite parties and as such the complaint is liable to be dismissed.
In the result, the complaint C.C.No.29 of 2013 is allowed directing the opposite parties no.1 to 3 are directed to replace the parts as advised by the Head Technician (Body Shop) of the opposite party no.2 company and address the grievances of the complainant pertaining to the car bearing chassis No.WDD2040416L022421 on it being handed over by the complainant and pay a sum of Rs.1,00,000/- towards compensation together with costs of Rs.5000/- to the complainant. Time for compliance four weeks.
C.C.No.30 of 2013
In the result the complaint C.C.No.30 of 2013 is dismissed. There shall be no separate order as to costs.