FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that  along with his brother-in-law reached M/S Ford India’s service Centre (Kaikan Ford) at Salaph, Howrah on 05.04.2021 for the periodic Servicing work for his Ford Ecosport SUV(MP19CB0702) in accordance to the prior appointment fixed based on phone calls to him by the said service centre Assistant Executive and after reaching the service centre on 05.04.2021 at around 10.30 a.m., the vehicle was parked on the approach road near the entry gate of the service centre and we met the incharge/Executive of the service centre (standing just near the entry gate of the service centre) for the periodic servicing work of the above vehicle as per the appointment.  He told us that it may take 5-6 hrs. for the said servicing work.  We told him that we will wait and take back the vehicle after the said servicing work is completed and then the Executive sent his Assistant executive for preliminary proceedings.  She inspected the vehicle and walked around the vehicle and confirmed a dent on the driver’s side door & a little scratch on the front bumper which were known to us. After observing the dent, the Assistant executive have advised us to get the repair work (for the dent) done at a very affordable price but we have informed that we have not come prepared for the repair work. Then the Assistant executive “OFFERED US/STATED ORALLY THAT WE HAVE A SCHEME IN FORCE FOR FORD CUSTOMERS FOR REPAIR WORK – If you have BUMPER TO BUMPER- Insurance Policy you have to pay Net Rs. 1000/- only or else you have to pay Net Rs. 3000/- only, irrespective of the quantum of repair job involved.” Then they all came inside Ford India’s office which is located inside the Service Centre itself and sat there. Then once again the said OFFER was reiterated by the Asst. Executive sitting just beside the Executive/ Incharge having clear Consent/ Confirmation from Incharge’s end and also they added by saying that- “the actual billing amount for the repair work you have to pay initially and we will ensure that you get refund the entire billing amount paid by you within 7 days of payment made minus Rs. 1000/- or Rs. 3000/- as the case may be and they also told that the billing amount would be Rs. 15000/- for the said repair work. Further they told that the vehicle will be sent to their Kolkata establishment for the said repair work & it will take 7 days time and they confirmed that “You will get back the vehicle duly repaired and periodically serviced on 12.4.2021” and also ;theyinformed that “You need jot to pay anything now”. During the entire process of their offer, his acceptance of the terms of the offer and final verbal agreement / contract reached between him and the service Centre’s Incharge & Asst. Executive, his brother-in law was constantly present sitting beside him in the same office hearing the matter & discussed the same with him.  Then, they asked (05.04.2021) for his “Vehicle Insurance policy” seeing the policy they informed that you have to pay Net Rs.3000/- only since the policy is not ‘Bumper To Bumper Policy” and they have taken, a copy of his Insurance policy vehicle registration card and asked for cancelled cheque.  Since I did not carry the cheque book, hence handed over the cancelled cheque of SBI, Chandernagore to them on 20.04.2021.  On 12.04.2021 at about 10 am the complainant has received a call from Ford Service Center, Salph, Howrah that his vehicle could not be delivered on scheduled delivery date i.e. today (12.04.2021) because the vehicle did not reach back from their Kolkata establishment and will be reaching at their service centre only on 17.04.2021.  On 17.04.2021, the vehicle reached Ford’s Salaph, Howrah requesting to keep the vehicle ready by 19.04.21 so that complainant can get his vehicle delivered on Tuesday (20.4.21) morning positively.  But they informed him that certain work (polishing etc) could not be completed on 19.4.21 due to a problem in the service centre’s machine / power supply and the same will be completed by the next morning (20.04.21) only.  When complainant reached the service centre in the morning on 20.04.21 the complainant noticed that the incomplete work yet to be started.  After his arrival there, pending work started and continued / completed till delivery of the vehicle afternoon on 20.04.2021.

On 20.4.2021, for taking delivery of the vehicle, complainant supposed to pay, as per the agreement/contract dated 05.04.21, the actual billing amount i.e. Rs.15000/- for the said repair work, complainant requested themto accept payment of Rs.15000/- as per the said agreement dated 05.04.21 but they refused to accept it

Finally, complainant has been compelled to pay Rs.28792/- on 20.04.21 for the repair work vide receipt no.051 dated 20.04.21 for taking delivery of his vehicle.

Hence, M/s Ford India disrespected the above agreement/contract dated.05.04.21.  Experiencing Ford India’s Indian Law violating behavior on 20.04.21, complainant thereafter started requesting /following up with M/s ford India Ltd for reminding them the contract agreement and for abiding by the same.  Complainant started requesting Mr. Arindam (after taking his mobile no. from the service centre) Insurance section of Ford India at Chetla Kolkata so that he get refund Rs.25,792/- by 27.4.21.  But here also a Consumer / customer disappointed, because of the intentional & non-cooperative attitude on part of him.  He did not receive refund amount of Rs.25792/- even after 25 days of vehicle delivery as on 15.5.2021 (the day before Covid Restriction / Lockdown measures implemented in West Bengal w.e.f 16.5.21).

A series of phone calls w.e.f. 12.4.21 followed by a series of email communications  w.e.f. 16.05.21 on wards till 04.07.2021 made, which had taken place among M/s Ford India’s Customer care Executives (M/s Rahul Sethi / Bharat Kumar V/Murali Kumar D/ Neeraj C) Ford service Center’s Incharge/Executive (Mr. Aniruddha) / Assistant Executive (Ms. Jhuma), Insurance section (Mr. Arindam), service Manager(Mr. KingshukMaity), DCRC Manager (Ms. Nupur) at Salaph, Howrah Kolkata office & the Undersigned.

These communications include, among others, appeal for justice by respecting the agreement/contract dated 05.04.2021 and refunding the Difference Amount/Excess Amount Charged by M/s ford India i.e. Rs.4284/- positively by 06.07.2021 and enclosed email communications with the Executive (Mr. Aniruddha) / Assistant Executive (Ms. Jhuma), Insurance section (Mr. Arindam) no reply received since the MNC intentionally violated/set aside the Indian Laws and Primary Acceptance by M/s Ford India vide email dt.17.05.21 – 17.48 hrs. and complainant’s email dt.22.5.21 – 13.42 hrs. to Mr. Murali Kumar of M/s Ford India, submitting his refund claim but no reply received since the MNC intentionally violated/set aside the Indian Laws. And his emails to the service manager claiming refund of excess amount charged but Negative reply received from the service manager and concluding request/reminder given to M/s ford India (Service Manager Mr. Kingshk Maity& Customer Relationship Centre – M/s Bharat Kumar V/Rahul Sethi / Neeraj C for giving justice by refunding excess amount charged within 7 days but no reply received addressing The Core Issue since the MNC intentionally violated/set aside the Indian Laws and 2^nd concluding request/reminder given to M/s Ford India (Mr. Bharat Kumar V – Customer Relationship Centre) for giving justice by refunding excess amount charged on / before 06.07.21 but again no reply received addressing the Core Issue rather adopted Delaying / Denial Technique, since the MNC intentionally violated / set aside the Indian Laws and last & final concluding request/reminder given to the M/s Ford India (Ms. Nupur – DCRC Manager) for giving justice by refunding excess amount charged on /before 06.07.21 but again no reply received, since the MNC openly violated / set aside the Indian Laws when failed to get any reply / justice, finally, Compensation Claim of Rs. 50 Lakh Lodged with M/s Ford India (Mr. Anurag Mehrotra – President & Managing Director) with subsequent 3 Reminders Thereof but no Reply Received till 25.08.21.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 50 lakhs.

Defense Case:-The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the instant complaint is not maintainable against the OP for the sole reason that the complainant is not a consumer of the OP within the purview of the definition provided under the Act.  It is submitted that there is no privity of contract between the complainant and the OP and as such the complainant doesn’t have the locus standi to file the present complaint against the OP and it is imperative to mention at the outset that the complainant has  impleaded the wrong person as anecessary party herein and hence the present complaint is liable to be set aside for mis-joinder of parties in accordance with the code of Civil Procedure, 1908.  It is germane to suggest that the OP is not associated with the OP in any manner whatsoever and he is not the President and Managing Director of the OP.  The same is reflective from the master data of the OP which is no manner suggests that OP is anywhere even remotely connected with the op and it is not out of place to mention herein that a bare perusal of the complaint would reveal that the complainant has his grievances and issues against M/s Kaikan Ford and no allegation stand proved against the OP and hence this complaint against the op deserves to be set aside at the outset even without going into the merits of the same and the complainant took his vehicle for repairs to the Authorized Dealer of the OP i.e. Kaikan Ford.  The OP is nowhere concerned or related to the present dispute that has been alleged by the complainant and hence the complaint is liable to be dismissed at the outset and the OP’s obligation with its Authorized dealers are only limited to the selling and distribution of vehicles.  The op is in no manner associated or responsible for dealing with customers and the authorized dealer i.e. M/s Kaikan Ford is the necessary party herein.  The relationship between the op and its authorized dealer is solely on a principal-principal basis and the op is in no manner concerned or associated or liable for any of the shortcomings in service by its Authorized Dealer and whatever grievance the complainant has alleged persists against the Insurance Company for the non-payment of insurance claim.  A bare perusal of the complainant would reveal that the complainant has impleaded the op only with a view to harass the op and to extract unlawful gains out of its behest.  The Complainant has demanded a compensation of Rs.50,00,000/- from the op in a matter wherein the op has completely extended its cooperation to the best of its abilities.  The Insurance company which has allegedly not paid the complainant’s dues has not even been made a necessary party herein for the reasons best known to the complainant.  For the sole reason mentioned herein, the present complaint deserves to be quashed at the outset and the complainant has annexed no proof whatsoever with respect to any alleged contract or promise towards refund of the incurred amount towards expenses and the complainant wrote to the op for the first time on 16.05.2021 bringing to its notice the aforementioned incident.  The said email was immediately acknowledged by the customer care department of the op and assured that appropriate communication shall be extended to M/s Kaikan Ford.  Despite Covid restrictions being in place, the op ensured that diligent and timely services are being offered to the complainant without any issues.  Further, the op also reverted to the complainant vide an email dated 17.5.2021 thereby enclosing the contact details of Service Manager of M/s Kaikan ford and also assured that the said dealership shall take forward the issues at hand.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that complainant has taken his vehicle of Kaikan Ford company to the M/S Ford India’s service Centre (Kaikan Ford) at Salaph, Howrah.
2. It is also admitted fact that the said vehicle is Ford Ecosport SUV(MP19CB0702).
3. There is no controversy over the issue that he had taken the said vehicle to the service center at Salaph, Howrah on 5.4.2021 at 10:30 am.
4. There is no dispute over the issue that the complainant at the said service center had come across with assistant executive on 5.4.2021 at 10:30 am.
5. It is admitted fact that at the said service center the said vehicle was inspected and had taken steps for servicing the vehicle.
6. It is also admitted fact that the assistant executive thereafter advised the complainant and his brother in law to get the repair work (for the dent) done at a very affordable price.
7. There is no controversy over the issue that thereafter the assistant executive of the said service center “OFFERED THEM/STATED ORALLY THAT WE HAVE A SCHEME IN FORCE FOR FORD CUSTOMERS FOR REPAIR WORK”.
8. There is no dispute over the issue that the assistant executive also stated if the complainant have BUMPER TO BUMPER- Insurance Policy complainant has to pay Net Rs. 1000/- only or else complainant has to pay Net Rs. 3000/- only, irrespective of the quantum of repair job involved.
9. It is admitted fact that thereafter the complainant and his relative went to the office of Ford India which is located bedside the service center.
10. It is also admitted fact that officer of the Ford India’s Office reiterated the same fact which has been stated by the assistant executive of the service  center and told that the billing amount would be Rs. 15,000/- for the repair work.
11. There is no controversy over the issue that the service center had sent the said vehicle to the Kolkata establishment of Ford India’s office for repairing work.
12. There is no dispute over the issue that the Kolkata establishment of Ford India’s office specified and/ or fixed a certain period for conducting the said repair work.
13. It is admitted fact that the complainant received back/ taken back the said vehicle after repair on 20.4.2021.
14. It is also admitted fact that the complainant finally has been compelled to pay Rs. 28,792/- on 20.4.2021 to the op instead of Rs. 15,000/-.         

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has taken the plea that he had to pay Rs. 28,792/- instead of Rs. 15,000/- which was the actual billing amount as per agreement dt. 5.4.2021 which amounts to deficiency of service and negligence on the part of the op but on the other hand the op has adopted the plea that this case is not maintainable and this case is also bad for defect of parties and there is no privity of contract.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant had to pay Rs. 28,792/- instead of actual billing amount of Rs. 15,000/- as per agreement dt. 5.4.2021. This matter is clearly indicating that the complainant had to make extra payment of Rs. 13,792/-. In this connection no definite explanation or cogent evidence has been given by the ops. This matter is clearly indicating that there is deficiency of service on the part of the op. Moreso, over this issue the definition of expression “service” in Section 2 (O) of Consumer Protection Act, 1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon’ble Apex Court and it is reported in 2022(2) CPR 249 (SC).Thus, it is crystal clear that the above noted defence plea of the op is not acceptable in the eye of law.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 112 of 2021 be and the same is allowed on contest but in part against the op.

it is held that the complainant is entitled to get Rs. 13,792/- which is the extra amount paid by the complainant to the op and complainant is also entitled to get Rs. 5000/- as compensation for deficiency of service on the part of the op and also entitled to get litigation cost of Rs. 2000/- from the op.

Opposite party is directed to pay the said amount of Rs. 20,792/- to the complainant within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.