BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 7th day of April 2017
Filed on : 30-12-2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.903/2013
Between
K.T. Chekkunni @ Manu, : Complainant
S/o. Kunju Mohamed Haji, (By Adv. Ashik K. Muhamed Ali,
Kottammal house, Chamber No. 542, KHCAA Chamber
Post Puliyakode, Porur, Complex, Near High Court, Ernakulam,
Wandoor, Malappuram. Cochin-682 031)
And
1. BMW India Pvt. Ltd., : Opposite parties
Registrade office at DLF Cyber City, (1st o.p, by Adv. Shyam Prashanth,
Phase II, building No. 8, tower B,
7th floor, Gurgaon – 122 002,
Haryana, rep. by its Managing Director,
Philip George.
2. Platino Classic Motors (India) Pvt. Ltd., (2nd o.p. By Adv.V.K. Krishna Menon,
NH-47, by Pass road, Maradu P.O., Menon & Menon, Kumaran Arcade,
Cochin-682 304, 1st floor, Power house road, Kochi-682 018)
rep. by its Managing Director,
P.Ashique, res. at 28/729,
Ponnam Parambath house,
Chevayur P.O,Kozhikode-673 017.
3. P. Ashique, res. at 28/729,
Ponnam parambath house,
Chevayur P.O., Kozhikode-673 017.
4. Shamina, W/o. P. Ashique,
res. at 28/729, Ponnam Parambath
house, Chevayur P.O.,
Kozhikode-673 017.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant's case
2. The complainant is a business man residing in Malappuram district. He bought a BMW 520D model car bearing registration No. HR 55 HT8636 from M/s. Ambience Hotels and Resorts, Gurgaon, Hariyana on 05-09-2011. A “no objection certificate' was also obtained in the name of the son of the complainant Mr. Shaheen Muhammed Rizwan. The complainant took insurance of the vehicle by paying Rs. 29,143/- on 16-01-2012 pending preregistration formality by RTO Malappuram. Meanwhile, the vehicle developed some faults, while it was used in ghat roads. It was getting over heated during such drive. Since the 2nd opposite party is the only authorized service centre in Kerala. The complainant took the vehicle to the service centre of the 2nd opposite party in Kozhikode on 20-03-2012. As no defect was found during preliminary inspection, the opposite party sought more time for further inspection. Thereafter in the last week of July 2012 the representative of the 2nd opposite party informed the complainant that the defects can be rectified by replacing some parts of the cooling system and which would incur an expense of Rs. 3,00,000/-. As there was lack of facilities in the Kozhikode branch to undergo this particular repairs. The opposite parties sought permission to get the vehicle service at Ernakulam Branch. Accordingly the complainant paid Rs. 3,00,000/- to the 2nd opposite party on 01-08-2012. But even after two months the vehicle was not repaired by the opposite party. The 2nd opposite party, with dishonest intention of making unlawful gains induced the complainant to pay an amount of Rs. 3,00,000/- without rendering service thereof the 2nd opposite party had done all this with the knowledge and concurrence of office 1, 3 and 4. The complainant had committed deficiency in service and unfair trade practice. The non service of the vehicle is denial of comfort and service to the complainant. The complainant is entitled to claim the value of such denial of facilities. Even though the complainant had paid Rs. 29,143/- towards premium of insurance the complainant was not able to use the vehicle during the full face of such incident. The complainant was not able to realize the vehicle in kerala since the vehicle was not aware after repairs. Hence the complainant seeks a direction to the 2nd opposite party to repair the vehicle within a specified period with compensation, interest and costs.
3. Notices were issued to the opposite parties 1 to 4. All of them appeared to resist the claim.
4. The 1st opposite party resisted the claim contending that the complainant is not a consumer as the car was sold to M/s. Ambience Hotels and Resorts and not to the complainant by the 1st opposite party. The complainant can not step into the shoes of M/s. Ambience hotel, Gurgaon on the pretext that he had purchased it from them. There was no privity of contract between the complainant and the opposite parties and that there was no cause of action for the complainant against the 1st opposite party.
4. The 2nd opposite party also filed a version challenging the competency of the complainant to file the complaint on the ground that he was not a consumer, by having allegedly purchased a used vehicle.
5. The 3rd and 4th opposite parties also took up the very same contentions and sought dismissal of the complaint.
6. The evidence in this consists of the oral evidence of PW1 and Exbts. A1 to A6 on the side of the complainant. The opposite parties examined DW1 and Exbts. B1 to B6 were marked.
7. The following issues were settled for consideration.
i. Whether the complaint is maintainable?
ii. If so has the complainant proved deficiency in service on the part of the 2nd opposite parties ?
iii. Reliefs and costs
8. Issue No. i. Exbt. A1 is the photo copy of the Registration Certificate of the vehicle HR 55 HT 8636. As per Exbt. A1 the vehicle stands in the name of M/s. Ambians Hotels and Resorts, Gurgaon with effect from 19-10-2008. The insurance of the vehicle is also seen taken in respect of in the name of Ambience Hotels and Resorts , Gurgaon covering a period of 16-01-2012 to 16-01-2013 as seen from Exbt. A2 . The vehicle was entrusted to M/s. Platina Clasic Motors, the 2nd opposite party by one Mr. Manu as customer. Exbt. A4, cash receipt for Rs. 3,00,000/- was issued in favour of M/s. Ambience Hotels and Resorts on 01-08-2012. None of the above documents, the complainant is not seen to be a party. Exbt. A5 is form No. 35 issued by M/s. Ambians Hotels and Resorts by its authorized signatory in blank. Exbt. A6 application and no objection certificate is seen issued in the name of one Mr. Shaheen Muhammed Rishwan. The name of the complainant is not seen in any of the documents produced by him, in order to show that the complainant had some thing to do with the vehicle concerned and the opposite parties. The complainant has therefore not proved that he was a consumer of the 2nd opposite party or the 1st opposite party in order to qualify himself to file this complaint. We therefore find that the complainant is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act and the complaint is therefore found not maintainable. Issue is accordingly found against the complainant.
9. Issue No. ii. Having found that the complainant is incompetent to file the complaint against the opposite parties the question of deficiency in service need not be considered. Issue is found against the complainant.
10. Issue No. iii. Having found the issue Numbers i and ii against the complainant we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 7th day of April 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent
APPENDIX
Complainants Exhibits
Exbt. A1 : Copy of certificate of registration
A2 : True copy of Private car package policy
A3 : Service Reception at the car check-list
A4 : Cash receipt dt. 01-08-2017
A5 : Copy of Form 35
A6 : Copy of Application and grant of no
objection certificate
Opposite party's Exhibits:
Exbt. B1 : True copies of the e-mails
B2 : True copy of e-mail dt. 04-07-2013
B3 : Copy of BMW C1 service copy
B4 : Copy of letter dt. 05-08-2013
B5 : New Vehicle warranty terms
and conditions
B6 : 2011 BMW Dealer agreement
Depositions:
PW1 : K.T. Chakkunni
DW1 : C.P. Kunjumuhammed
Copy of order despatched on :
By Post: By hand:
