DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

 Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Wednesday, the 27^th day of November 2024

CC No. 588/2015

Complainant

                        Aswanth.K.P,

                        S/o Vasantha Raj,

                        ‘Veena’, Kunnamangalam (PO),

Kozhikode.

(By Adv. Sri. Sreejith Cherote)

Opposite Parties

1.                  Audi India,

Volkswagen Group Sales India Private Ltd,

                          4^th floor, Silver Utopia, 

Cardinal Gracious Road, Chakala,

Andheri East, Mumbai,

Maharashtra – 400099.

2.                Branch Manager,

K.P. Motors,

Survey No. 228/1, NH.47,

Vytilla Aroor Bypass Road,

Marudu, Cochin -682 304.

3.                Branch Manager,

K.P. Motors,

NH-17, Calicut –Kannur road,

Pavangad, Puthiyangadi (PO),

West Hill (via), Kozhikode – 673 021.

(OP 1 By Adv. Sri. Azeem Muhammed)

OP2 and OP3 by Advs. Sri. V. Krishna Memon, Sri. K. Abdulssalam,

Sri. U.K. Devidas)

                                                                                 ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows;

The complainant is a doctor by profession. He has purchased an Audi car manufactured by the first opposite party and sold and serviced by the second and third opposite parties. The vehicle is registered as KL-57-K-6777 and it has been in the use of the complainant. At the time of purchase, the sale executive of the third opposite party insisted the complainant to get the vehicle insured from the insurance provided by the third opposite party i.e. ‘ Audi insurance’ which was declined by the complainant and so the officials of the third opposite party had shown their distress, dissatisfaction and disappointment towards the complainant.

3. The vehicle met with an accident in the month of January 2015 and it was brought to the service centre of the second opposite party for repairs. The vehicle was repaired after replacing some body parts, for which, the second opposite party had received full payment of Rs. 3,05,947/-. The vehicle was delivered back to the complainant on 24/03/2015. When the complainant enquired about the replaced body parts, he was informed from the office of the second opposite party that the same had been kept in safe custody and the complainant could come and take the same at any time. Accordingly, the complainant entrusted the same with the second opposite party for safe custody.
4. Later the complainant informed the second opposite party by email that he was coming to claim the body part of the vehicle. But he was astonished to hear from the second opposite party that they had sold away the replaced body parts. Further they regretted their action and offered to settle the matter for Rs. 15,000/-, for which, the complainant was not ready.
5. The second opposite party had deceived and cheated the complainant, for which, all the opposite parties are vicariously liable. They have misappropriated the property of the complainant for illegal gain and they acted fraudulently and deceptively to make the complainant regret for not taking the insurance policy of the opposite parties.
6. The body parts of the vehicle would at least fetch an amount of Rs. 1,00,000/. The actions of the opposite parties constitute deficiency in service and unfair trade practice. All the opposite parties are jointly and severally liable to make good the loss suffered by the complainant. The complainant issued a notice to the opposite parties, for which, the second opposite party had sent a reply stating false contentions. Hence the complaint to direct the opposite parties to pay the value of the body parts of the vehicle amounting to Rs. 1,00,000/- along with compensation of Rs. 75,000/-.
7. The opposite parties have resisted the complaint by filing written version wherein they have denied all the allegations and claims made against them in the complaint.
8. According to the first opposite party, the complaint does not disclose any cause of action against them. The customer is at liberty to take insurance from any insurance company of his own choice. Accidental repairs are not covered under warranty. There is no role  for the first opposite party in this matter. The first opposite party understand from the dealer that the vehicle was reported to the service centre of the dealer on 05/03/2015 for accidental repairs under insurance coverage and it was delivered back to the complainant on 24/03/2015 after repairs to his satisfaction. In the satisfaction note, the complainant had duly acknowledged the receipt of all replaced parts/materials. The complainant after having acknowledged the receipt of the same, for reasons best known to him, did not remove the replaced parts from the work shop of the dealer and discarded the same in the work shop. As the complainant did not turn up to remove the replaced parts from the work shop for over a week, the dealer as a routine practice, treated the said parts as scrap and sold it. The complainant had never requested the dealer to keep the replaced parts in safe  custody. The complainant first time requested for return of the replaced parts on 28/05/2015 i.e. after 2 months of taking delivery of the vehicle. The offer of Rs. 15,000/- given by the dealer was not on account of any admission of the mistake. But it was an offer as a gesture of good will and to maintain good customer-dealer relationship. The allegation that the replaced parts if sold in open market would fetch Rs. 1,00,000/- is false and hence denied. The complaint is an afterthought and is misconceived. It is, therefore, prayed to dismiss the complaint with costs.
9. In the written version filed by the second and third opposite parties jointly, it is stated that there was no insistence on their part to take Audi insurance. The allegation that the officials of the third opposite party had shown dissatisfaction and disappointment to the complainant on account of  this is false and hence denied. The vehicle was entrusted to them for attending accidental repairs under insurance coverage on 05/03/2015 and the work was completed and the vehicle was delivered back on 24/03/2015 to the complainant being convinced of the work done. In the satisfaction note dated 24/03/2015, the complainant had duly acknowledged the receipt of all the replaced parts, materials including accessories of the vehicle. However, he did not remove it from the work shop and discarded it over there. As there was no attempt to remove the replaced parts for over a week, they as per the practice in vogue,  had treated the said parts as scrap and sold it after a week from 24/03/2015.
10. The averment that the complainant had requested them to keep the replaced parts in safe custody is false and hence denied. It was on 28/05/2015 i.e. after 2 months  of taking delivery of the vehicle that the complainant for the first time requested for the return of the replaced parts. The offer of Rs. 15,000/- discount made by the opposite parties was not on account of any admission of the mistake committed by them, but as a gesture of good will and to maintain a good customer - dealer relationship. The allegation that the replaced parts if sold in open market would fetch Rs. 1,00,000/- is false and hence denied. There has been no deficiency in service or unfair trade practice on their part and the complainant is not entitled to get any compensation. With the above contentions, the second and third opposite parties also pray  for dismissal of the complaint.
11. The points that arise for determination in this complaint are;

1. Whether there was any unfair trade and business practice or deficiency of service on the part of the opposite parties, as alleged?
2. Reliefs and costs.

12. Evidence consists of the oral evidence of PW1 and Exts A1 to A7 on the side of the complainant. RWs 1 and 2 were examined and Exts B1, B2 and B2(a) were marked on the side of the opposite parties. 
13. Heard both sides. The complainant has filed brief argument note also.
14. Point No 1: The complainant, who is a doctor by profession,  has approached this Commission alleging unfair trade and business practice and deficiency of service on the part of the opposite parties. The first opposite party is the manufacturer of Audi car. The complainant purchased the Audi car manufactured by the first opposite party and which is sold serviced by the second and third opposite parties. The vehicle was brought to the service centre of the second and third opposite parties for accidental repairs under insurance coverage and the same was delivered back to the complainant after replacing some body parts. The grievance of the complainant is that the second and third opposite parties did not return the replaced body parts to him and they sold the same and misappropriated the amount received as consideration and thereby the opposite parties have indulged in unfair trade and business practice and also committed deficiency in service resulting in loss to the complainant for which, the opposite parties are jointly and severally liable. The second and third opposite parties offered an amount of Rs. 15,000/- and that too in future services, which was not acceptable to the complainant. According to the complainant, the value of the replaced body parts,  if sold in open market would have fetch at least Rs. 1,00,000/-. The prayer in the complaint is to get Rs.1,00,000/- being the value of the replaced body parts and compensation of Rs. 75,000/- for the loss suffered on account  of the unfair trade practice and deficiency in service of the opposite parties.  
15. In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim.  Ext A1 is the copy of the lawyer notice dated 09/07/2015, Ext A2 series are the postal receipts, Ext A3 series are the postal acknowledgment cards, Ext A4 is the copy of the email dated 15/06/2015, Ext A5 is the email dated 05/06/2015, Ext A6 is the copy of the email dated 16/06/2015 and Ext A7 is the copy of the email dated 17/05/2015 and 27/05/2015.
16. The case advanced by the opposite parties is that on delivering back the vehicle after repairs on 24/03/2015, the complainant had duly acknowledged receipt of all the replaced parts/materials including accessories of the vehicle. But he did not remove the same from the work shop and discarded the same over there and as he did not make any attempt to remove the replaced parts, as per the practice followed, they had treated the said parts  as scrap and sold  after a week. However, as a gesture of good will and to maintain good customer dealer relationship, they had offered Rs. 15,000/- discount in future service. According to the opposite parties, the replaced parts of the vehicle would not fetch Rs. 1,00,000/- as claimed by the complainant.
17. RW1 is the CEO of the M/s KP Cars Ltd, Kozhikode. RW1 has filed proof affidavit and deposed supporting and reiterating the contentions in the written version. Ext B1 is the satisfaction note dated 24/03/2015. RW2 is the Senior Divisional Officer of New India Assurance Company Ltd. RW2 has produced the office file relating to the claim of the Audi car. It is marked as Ext B2. Ext B2(a) is the copy of the policy schedule-cum-certificate of insurance.
18. It is not disputed that the Audi car of the complainant was entrusted to the second and third opposite parties on 05/03/2015 for accidental repairs under insurance coverage and it was delivered back to the complainant after repairs on 24/03/2015. Some body parts of the vehicle were replaced in the course of the repairs. The second opposite party had received full payment of the repair charges. In Ext B1 satisfaction note, the complainant had endorsed that he had received all the replaced parts/materials including accessories of the vehicle. But the parts were not removed by the complainant from the work shop. Later the same was sold as scrap by the second and third opposite parties. However they had offered an amount of Rs. 15,000/- to the complainant which could be adjusted in future repairs. However, this proposal was not acceptable to the complainant. There is no serious dispute  on the above aspects.
19. Going by the pleadings, admission and the evidence let in by the parties, it can be seen that despite the receipt endorsement in Ext B1, the fact remains that the replaced body parts of the complainant’s vehicle remained with the second opposite party. The complainant did not actually receive those items. Equally, there is nothing to indicate that the complainant had entrusted the same to the safe custody of the second opposite party as claimed. The opposite parties sold the replaced body parts of the complainant’s vehicle without his consent or knowledge. The case of the opposite parties is that since the complainant did not turn up to take back the items, they sold the same treating as scrap. There is absolutely nothing in evidence to show that the opposite parties had requested the complainant to take back the items from their premises before selling the same. No oral or written request was there from the part of the opposite parties. No notice was issued to the complainant before proceeding to dispose of the items by way of sale. Admittedly, the entitlement of a customer to get the replaced body parts of the vehicle from the work shop cannot be disputed.   Selling the articles belonging to the complainant and appropriating the sale proceeds undoubtedly amounts to unfair trade and business practice and deficiency of service. Realising the mistakes and latches on their part, the opposite parties had offered an amount of Rs. 15,000/- as discount in the future service /repairs and thereby the opposite parties have indirectly admitted their latches in this regard. There is proof of unfair trade and business practice and deficiency of service on the part of the opposite parties.
20.   It goes without saying that the complainant is entitled to get the value of the replaced body parts. The claim is for Rs. 1,00,000/-. The claim of the complainant for that much amount is not supported by any evidence. No evidence was let in the complainant to show the actual value that the replaced body parts would fetch. The opposite parties have offered Rs. 15,000/-. But they have not produced any document showing the actual amount they had received by way of sale of the items. RW1 is in darkness in this regard. RW1 has admitted that there are documents available with them to show the consideration they had received by selling the replaced body parts. But the said documents are not forthcoming. At the same time, it may be noted that the savage value shown in Ext B2 by the insurance company at the time of settlement of the claim is Rs. 2,046/- . Which are the parts of the vehicle that were replaced is not disclosed by either side. However, Ext B2 shows that the cost of the parts allowed is Rs. 2,52,644/-. There is absence of data showing the actual price that the replaced body parts  would fetch. However,  considering all the aspects of the matter, on a rough estimate, we are of the view that  the value of the replaced body parts of the vehicle disposed of by the opposite parties can be fixed at Rs. 25,000/-. The complainant is entitled to get the said amount from the opposite parties. In addition to that, the complainant is entitled get Rs. 10,000/- for the loss suffered due to the unfair trade practice and deficiency in service of the opposite parties. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings. The opposite parties are jointly and severally liable. Point found accordingly.
21. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;
    1. CC.588/2015 is allowed in part.
    2. The opposite parties are hereby directed to  pay the complainant a sum of Rs. 25,000/- (Rupees twenty five thousand only) towards the value of the replaced body parts of the vehicle.
    3. The opposite parties are directed to pay a sum of Rs. 10,000/-(Rupees ten thousand only) to the complainant for the loss suffered due to the unfair trade and business practice and deficiency of service of the opposite parties. 
    4. The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to complainant.
    5. The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 25,000/- shall carry an interest of 9% per annum from the date of this order till actual payment.
    6. The liability of the opposite parties to make payment shall be joint and several.

Dictated to the Confidential Assistant, transcribed by her, corrected and  pronounced by us in open Commission,  this the  27^th  day of November, 2024.

Date of Filing:   17.11.2015

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PRESIDENT                                              MEMBER                                                    MEMBER                                

APPENDIX

Exhibits for the Complainant :

 Ext A1 - Copy of the lawyer notice dated 09/07/2015,

Ext A2 series -  Postal receipts, Ext A3

Ext A3 series  -Postal acknowledgment cards,

Ext A4 -  Copy of the email dated 15/06/2015,

Ext A5 - Email dated 05/06/2015,

Ext A6 -  Copy of the email dated 16/06/2015

Ext A7 - Copy of the email dated 17/05/2015 and 27/05/2015.

Exhibits for the Opposite Party

Ext B1 - Satisfaction note dated 24/03/2015

Ext B2 - Office file relating to the claim of the Audi car.  

Ext B2(a) -  Copy of the policy schedule-cum-certificate of insurance.

Witnesses for the Complainant

PW1  -   Aswanth.K.P    (Complainant).

Witnesses for the opposite party

RW1 –  Jacob Eapen Sam

RW2-     Deveedar.M.S

     Sd/-                                                              Sd/-                                                              Sd/- 

PRESIDENT                                              MEMBER                                                    MEMBER                                

                                                                                    True Copy,      

                                                                                                          Sd/-  

                                                                                            Assistant Registrar.