BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.42/2016

Dated this the 22^nd day of February 2018

(Date of Institution:19.10.2016)

B. Srivathsan, son of Balasubramanian

No.7, Balaji Nagar, Saram,           

Puducherry.

…      Complainant

Vs

1. Ford India Pvt. Ltd.,                             

   Ford Corporate Office rep. by its Authorised Signatory

   Singaperumalkovil Post                     

   Chengalpattu, Tamil Nadu.

2. Sarvesh Ford, Puducherry rep. by its Authorised Signatory

    100 feet road, Mudaliarpet,         

    Puducherry – 4.

3. Sarvesh Cars and Motors Private Limited rep. by its

    Authorised Signatory           

    3/106, Saneeswaran Koil Street,           

    Moratandi, Near Auroville,

    Near Auroville, Vanur T.K.

    Villupuram District, Tamil Nadu.

…      Opposite parties

BEFORE:

            THIRU. A. ASOKAN, B.A., B.L.,

            PRESIDENT 

THIRU V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

TMT. D. KAVITHA, B.A., LL.B.,

MEMBER                 

FOR THE COMPLAINANT                     :  Thiru R. Mugundhan, Advocate

FOR THE OPPOSITE PARTIES   :  M/s M.A.R. Pragash and R. Haripriya,  

                                                             Advocates for OP1

                                                             OPs 2 and 3 - Exparte

O R  D  E  R

(By Thiru. A.  ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties to pay a sum of Rs.5,00,000/- as compensation for the mental agony, financial loss and physical hardship suffered by him due to the negligence and deficiency in service; to pay a sum of Rs.50,000/- towards cost of this complaint.   

          2.  The case of the complainant is as follows:

The complainant purchased a Ford Ecosport Car manufactured by first opposite party for Rs.9,78,746/- through their dealer 2^nd opposite party which at the time of purchase was known as MPL Ford and the vehicle was registered with the RTO Pondicherry vide Regn. No. PY 01 CK 6667 by availing loan of Rs.8,80,000/- from HDFC Bank and paying the monthly instalments at Rs.28,354/-.  The complainant stated that during the floods in Chennai in December 2015, the said car got struck in the floods and the same was informed to the second and third opposite parties on 09.12.2015, but the vehicle was taken to the service centre only on 21.12.2015.  The insurance company approved the question for repair on 18.01.2016.  After that the service center was supposed to start the repair work and hand over the same within a week or two, but after a delay of 7 months that too, after several personal visits and emails, the third opposite party sent email that the car was ready for delivery on 21.06.2016.  When the complainant asked for the delay in delivery and the parts changed and road worthiness of the car, the third opposite party was not able to give satisfactory reason. Because of non-delivery of his own car for his professional and own purposes, he has suffered mental pain and agony apart from financial loss.  The complainant issued a legal notice on 29.07.2017 to the opposite parties which was received by first and third opposite parties on 30.07.2016 and the second opposite party evaded the service and returned the same.  The first opposite party issued reply dated 16.08.2016 apologing the inconvenience caused.  The complainant took delivery of the vehicle on 17.08.2016 and noticed warning light on the dashboard.  When the complainant brought it to the notice of the third opposite party, they have assured that it would be cleared on running of the vehicle, but it was not cleared.  It is a fault of the EGR valve which is very important for the proper running of the vehicle.  Due to non-availability of his own car, the complainant was forced to hire taxi for his use which has caused financial loss to the complainant.  Hence, this complaint. 

          3. The Opposite parties were duly served, but remained absent and set ex parte.

          4. The reply version filed by the first opposite party briefly discloses the following:

This opposite party started that the matters in the complaint are matters between the complainant and the 2^nd and 3^rd opposite parties.  The first opposite party is a separate legal entity and operates on principal to principal basis with its dealerships.  This opposite party stated that after initial survey of the vehicle, the second opposite party has promptly submitted an estimate to the Insurance company and the condition of the car and the extent of damage was assessed and conveyed to the complainant and the insurance company who also inspected the vehicle and the approval to commence the repair works was given to the MPL Cars Private Limited.   This opposite party further stated that due to unforeseen circumstances, M/s MPL Cars Private Ltd.,has closed down its business operations and the complainant's vehicle was transferred to M/s Sarvesh Ford on 01.04.2016 for carrying out aforesaid repair works.  The opposite party does not have the vehicle records for the period between January and March 201.  It is further stated by this opposite party that the Sarvesh Ford had not indicated that they would delivery the vehicle within a week of its reporting and also stated that it is inconceivable that the vehicle with such complex repairs could be repaired within week's time.   The complainant's insurance company had given approval for the works on a stage by stage basis, further, the required parts for repairs have to be ordered and procured from the plant, as they are  not usually kept as inventory unlike parts that are used for regular servicing of vehicles.  These parts can be ordered and procured only after inspection and approval of the initial estimate by the insurance surveyor.   Further stated that the delay was not intentional and the process of thorough analysis of a problem, identifying the repairs to be done and carrying out repairs effectively takes time.  The vehicle was kept ready for delivery in proper working condition since 4.6.2016 and it is the complainant who has failed to take delivery of the vehicle despite repeated reminders.  Further stated that the complainant's insurance company not paid the differential costs and the complainant paid the same only on 15.06.2016.  There is no deficiency in service on the part of first opposite party.  Hence, prayed for dismissal of the complaint. 

           5.  On the side of complainant, the complainant B. Srivathsan was examined as CW1 and through him Exs.C1 to C10 were marked.    On the side of opposite parties, one B. Srinivasan, the legal assistant of OP1 company was examined as RW1 and through him Exs.R1 and R2 were marked.      

6.  POINTS FOR DETERMINATION:

1. Whether the complainant is a Consumer?
2. Whether the OPs have attributed any negligent act leading to deficiency in service to the complainant?

3. Whether the complainant is entitled for any relief?

 7.  POINT No.1 :

          The complainant is the owner of Ford Ecosport vehicle bearing Regn. No. PY 01 CK 6667 vide Ex.C3 and he purchased the same by availing loan from HDFC Bank Limited.  Further, on perusal of Ex.C4, the complainant delivered his vehicle for service with the third opposite party who is the service provider of OP1 the manufacturer and OP2 the dealer.  Hence, the complainant is considered to be a Consumer of opposite parties under section 2 (1) (o) of Consumer Protection Act, 1986. 

          8. POINT No.2: 

          It is submitted by the complainant that his car got struck during the floods in Chennai during December 2015 and the same was informed to the Opposite Parties 2 and 3 on 09.12.2015 who in turn taken the vehicle to the service centre on 21.12.2015.  The complainant further submitted that his insurance company approved the quotation for repair on 18.01.2016.  The complainant alleged that he had availed loan of Rs.8,80,000/- from HDFC Bank vide Ex.C2 and repaying the same by EMI at Rs.28,354/-.  The complainant further alleged that the opposite parties 2 and 3 took much time for rectifying the defects and ultimately, sent email Ex.C5 expressing apology on 13.07.2016.  Due to the inordinate delay in delivering the vehicle after rectifying the defects, the complainant was forced to hire taxi and paid rent to them which caused the complainant monetary loss and mental agony.   The complainant issued legal notice dated 29.07.2016 vide Ex.C6 to the opposite parties, the same was received by OP1 and OP3 vide Exs.C7 and C8 and the OP2 refused to receive and returned the same vide Ex.C9.  The OP1 alone sent reply dated 16.08.2016 vide Ex.C10.  

          9. The Opposite Parties 2 and 3 though received summons not caused appearance before this Forum and not filed their reply versions and ultimately, they were set ex parte.

          10. The first opposite party filed their reply version and vehemently contended that they are only manufacturer of Ford Cars and the relationship between the manufacturer and dealer is on the basis of principal to principal and they have nothing to do with the delay caused by the opposite Parties 2 and 3 in delivering the vehicle after service.  However, they have contended that M/s MPL Cars Private Limited has closed down its business operations and the complainant's vehicle was transferred to M/s Sarvesh Ford on 1.4.2016 to carryout the repairs.  Further, the complainant's insurance company gave its approval stage by stage and the required parts have to be ordered and procured from the plant which has caused some delay in delivering the vehicle.  Since no service was provided by the first opposite party to the complainant, they cannot be held liable to compensate.

          11. This Forum carefully perused the complaint, reply version of OP1, documents and evidences of complainant and OP1.  There is no dispute with regard to vehicle got struck in the Chennai flood during December 2015.  The first opposite party alleged that the second opposite party gave estimate to the complainant's insurance company, who also inspected the vehicle and only after getting its approval, they had commenced the repair works.  According to the complainant, their insurance company gave approval as early as on 18.01.2016.  Though the first opposite party alleged that they got insurance company's approval belatedly, they have not stated as and when the insurance company gave approval and no reliance placed for the same.  Hence, the plea of the delayed approval by the insurance company cannot be taken into consideration. 

          12. The other allegation raised by the first opposite party is that due to unforeseen circumstances, M/s MPL Cars Private Limited has closed down its business operations and the complainant's vehicle was transferred to M/s Sarvesh Ford on 1.4.2016 for carrying out the repair works.  Even though the transfer of business operations happened, the assets and liabilities of the company will existing continuously and nothing prevented the opposite parties to carry out the repair works and to inform the situation to the complainant.  Therefore, the reason attributed by the first opposite party for the delay in delivering the vehicle has no relevance at all.  

          13. Further the first opposite party alleged that  the complainant's insurance company had given approval for repairing works on stage by stage basis and the required parts for attending repairs have to be ordered and procured from the plant which also caused the delay in carrying out the repairs. On perusal of Ex.C4, the customer information sheet, the complainant's car was taken for service / repair on 21.12.2015.  On perusal of Ex.C5 page 3, the third opposite party sent mail to the complainant that the car is ready for delivery with effect from 16.06.2016.  Further, the RW1 admitted in his cross examination that the car was only ready on 04.06.2016 for delivery.   No doubt, there was no deliberate delay to carry out the repairs and delivering the vehicle to the complainant by the second and third opposite parties.  But, keeping the vehicle for about six months in handing over the car in proper condition to the complainant, that too not sent a message or intimation would amounts to negligent attitude of the opposite parties.  The inordinate delay leading to deficiency in service might have caused mental agony, loss and sufferings to the complainant.      Moreover, on perusal of Ex.C2, it is evident that the complainant availed loan from the HDFC Bank, Puducherry and made the payment of EMI to the bank without using the car which would definitely cause monetary loss to the complainant.

          14. The Opposite Parties 2 and 3, though received the summons from this Forum, not come forward to appear and put forth their contentions, but, the complainant has established his claim with material evidence as against OPs 2 and 3.  This Forum also comes to a conclusion that the Opposite Parties 2 and 3 have only committed deficiency in service which caused the complainant the mental agony and the monetary loss.  Thus, the complainant is entitled for compensation from OPs 2 and 3.  Regarding the averments of complainant that the expenditure incurred by him for availing Taxi is not proved through any piece of evidence.

          15. This Forum found that the vehicle was taken by OP3 to their service centre for carrying out repair works.  The OP2 is the local dealer.  On perusal of entire materials available on records, there is no allegation against the OP1 who is the manufacturer of car.  The complainant also admitted in his cross examination that "I have not contacted the OP1 after handing over the car to the OP2 and OP3."  Hence, this Forum found that the first opposite party is nothing to do with the allegation of the complainant and hence, this Forum held that the OP1 is not liable and the OP2 and OP3 alone liable for the negligent act and the complainant should be compensated.

          16.  POINT No.3:

          In view of the discussions made supra, the complaint is hereby allowed and the second and third opposite parties are jointly and severally directed

1) to pay a sum of Rs.25,000/- as compensation for causing mental agony and monetary loss to the complainant due to deficiency in service. 

          2) to pay a sum of Rs.5000/- towards cost of this proceedings. 

  Dated this the 22^nd day of February 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           13.02.2018           B. Srivathsan   

OPPOSITE PARTY'S WITNESS:   

RW1           30.03.2017           B. Srinivasan, Legal Assistant of OP1

COMPLAINANTS' EXHIBITS :

OPPOSITE PARTYS' EXHIBITS:  

Ex.R1                   13.02.2017           Authorisation letter

Ex.R2                                                Photocopy of dealer sales and service agreement

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

   PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER