For Complainants                     :     Representative 

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(1)                                This is the case wherein the Complainant has alleged deficiency in service against the Opponents. The facts in brief which give rise to the present complaint are as follows :-

 

(2)                    The Complainant Lt. Snehil Sood is serving in Indian Navy as Naval Officer. At present he is posted at Vizag Naval base in Andhra Pradesh. The Complainant had purchased Ford Fiesta Titanium Car from Pune on 22/9/2011. As the Complainant is posted at Vizag, the car was handed over to Opponent M/s. Balaji Cargo Carriers (who shall be hereinafter referred as “Carriers”)   on 26/9/2011 for delivering it to the Complainant at Vizag. The car speedometer displayed 97 km running, at the time of hand over to the Carrier. The car had no scratches and the fuel tank was filled approximately one third its capacity. The Car was also fitted with other standard fixtures, fittings and accessories. A sealed packet containing miscellaneous items and the duplicate key was kept in boot of the car. An acceptance report to this effect was given to the Complainant by the Carrier. The Carrier had promised to deliver the said car within five days of its booking. During various follow up calls made by the Complainant pertaining to the status of delivery, he was informed that the consignment had moved towards Hyderabad and would be held there for couple of days.    However on 4/10/2011, the Complainant’s father received a call the representative of the carrier asking for the car’s duplicate key. On insisting reasons for need of duplicate key, the Complainant’s father was informed that the car had never moved out of Pune and was then found abandoned near village Kondhpuri ( Taluka – Shikrapur) on Nagar Road. Parents of the Complainant rushed to the the site to find the car parked next to a small eatery. The right side of rear buffer, fender and a door of the car were damaged. The remote key of the car given to the representative of the carrier was missing. In order to get the duplicate key, right side quarter glass of the car had to be broken. On switching on the car it was noticed that the odometer reading showed 282 kilometers running and the fuel tank was half empty. On being questioned, representative of the carriers had no answer. Since the car could not be started it was towed to the Ford service station at Wagholi. When the car was inspected by the Ford technician, it was noticed that the car had a petrol engine and was filled with diesel in the fuel tank, thus immobilizing it. This fact is mentioned in the status report submitted by Ford technicians. The incidence delivered a severe mental shock to the Complainant’s parents to the extent that Complainant’s mother had to undergo a medical treatment to recover from this trauma. In addition, the Complainant’s parents had to visit the car service station daily to monitor its repairing, which took 45 days. The final bill of the repairs came to Rs.84,447/- out of which Rs. 63,055/- was paid by Insurance Company whereas the rest of the amount was paid by the Carrier.   The Complainant’s brand new car required thorough repairs before he could use it himself hence the Complainant demanded the replacement of the car. The carriers had in fact agreed to the same but refused later on. It is the grievance of the Complainant that in view of the highest degree of deficient service and the unfair trade practice adopted by the Carriers, they need to be severely punished. In view of the breach of trust and the above mentioned facts and circumstances the Complainant has requested the Forum to order carrier to replace his vehicle with a new brand car or to pay the current cost of the vehicle along with other amounts of compensation and costs. The Complainant has filed affidavit and ten documents vide exh.6 in support of his complaint. 

 

(2)                    The notice addressed to Chinchwad branch of the Carrier (impleaded as Opponent No.1) was returned with remarks “Unclaimed” whereas the notices addressed to the head office of the Carrier, Mumbai (impleaded as the Opponent No.2) was duly served. The delivery report in this respect is filed at exh.16.   However in spite of the receipt of notice, Opponent No.2 did not appear before the Forum. In view of the above facts ex-parte order was passed against the Opponent No. 1 and 2 on exh.1. Thereafter, the affidavit of evidence was filed on behalf of the Complainant and the authority holder of the Complainant was heard in person and the matter was posted for judgment.

 

(3)                    On perusal of the documents filed by the Complainant specially car acceptance report filed by him at exh. 6/4, it can be seen that the odometer reading of the disputed vehicle at the time of its booking with Carrier was 97 kilometers.    It can be also seen from the other details of this report that the car was in a good condition with fuel tank filled to its 1/3^rd capacity.     According to the vehicle status report submitted by the Talera Ford service station and filed by the Complainant at exh.6/6, odometer reading of the disputed vehicle was 282 kilometers.    It can be also seen from documents filed on the   record that the fuel tank was filled with wrong fuel and the car was force opened for   recovering the duplicate keys.    The car was handed over to the carrier on 26/9/2011.   The vehicle status report given by Talera Ford is dtd.4/10/2011.   The Carriers have not come forward with explanation as to why the car which was handed over to them on this date was found near Kondhpuri, Shikhrapur, Nagar Road. There is also no explanation from the Carrier why the key of the car was missing, why there was diesel filled in the fuel tank instead of petrol and why the car was damaged. Since the carriers have not come forward with an explanation in respect of abovementioned points, an adverse inference needs to be drawn against them. The Carriers have failed in their contractual duty by not taking proper care of the car which was handed over to them and was in their custody. Hence Carriers are definitely guilty for rendering deficient service to Complainant.    

 

(4)                    If we go to the prayer clause of the Complainant it can be seen that he has requested the Forum either to order replacement of the car or to refund the cost of vehicle. The argument which was advanced on behalf of the Complainant was that the pleasure of using the brand new vehicle was lost due to mishandling and misusing the car by the representatives of the Carriers. If we go through the purchase bill it can be seen that the car was purchased on 22/9/2011 and had traveled only 97 kilometers. So these figures definitely prove that the brand new vehicle of the Complainant was ruined/damaged by the representative of the Carrier. However the said car was repaired and is in a working condition now. There is nothing on record to prove that the car is not in pliable condition due to the mishandling. In fact there is no pleading to this effect by the Complainant. It is specific prayer of the Complainant to have his car replaced or compensation equivalent to present showroom price of the same car as the pleasure of the new car was lost. However, under present circumstances it will not be proper to order replacement of the car nor will it be proper to order the refund of its showroom price, as the car is still in working condition, albeit the contention of complainant that there is a loss of pleasure of using the brand new car can never be undermined. Further it cannot be denied that the Complainant as well as his parents must have gone through tremendous physical and mental discomfort due to this unpleasant incident. The Complainant has also produced certain medical certificate in respect of his mother’s health. The carrier is solely responsible for the safety of consignments and any damage to it reflects highly irresponsible and unprofessional behavior on its part. It can also be seen from the records produced before the Forum that the technicians of Ford required 45 days to repair the car and Complainant was deprived of use of his car during this period. Therefore the forum feels that the Complainant needs to be adequately compensated. Since the car is in a working condition we cannot order the replacement or the refund of the price of the car but taking into consideration the entire incidence we feel the punitive damages of Rs.1,00,000/- should meet the ends of justice. Hence we direct the Carriers to pay Rs.1,00,000/- by way of compensation and Rs.5,000/- by way of cost to the Complainant within 30 days of receipt of a copy of the judgment failing which he will have to pay interest on this amount. In view of the above findings, we proceed to pass the following order :-

 

// ORDER //

1.      The complaint is partly allowed.

 

2.       The Carriers are directed to pay Rs.1,00,000/- by way of compensation and Rs.5,000/- by way of cost to the Complainant.

 

3.      The Carriers have to pay the above mentioned amounts to the Complainant within 30 days from the date of receipt of the judgment, failing which they will have to pay interest @15 % on the abovementioned order from the date of judgment till realization.

 

4.      If the Carriers do not comply the above mentioned orders within stipulated time the Complainant will have right to proceed against them under the provisions of Consumer Protection Act.

 

5.      Copies of this judgment be supplied to all the parties free of costs.