Kerala

Idukki

CC/115/2019

Binu Mathew - Complainant(s)

Versus

Bosch Automobile Services and solutions ltd - Opp.Party(s)

Adv.K M Sanu

06 Jul 2023

ORDER

 

DATE OF FILING :12.6.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   6^th  day of  July,  2023

Present :

                   SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.115/2019

     Between

Complainant                                       :        Binu Mathew,

                                                                   Kunnumpurath House,

                                                                   Mudavoor P.O.,

                                                                   Muvattupuzha.

(By Adv: K.M. Sanu)

        And

Opposite Party                                    :        The Manager / Proprietor,

                                                                   Bosch Automobile Service and Solutions

                                                                             Pvt. Ltd.,

                                                                   Konappana Agrahara,

                                                                   Electronic City Phase 2, Hosur Road,

                                                                   Opp. D Mart, Bengaluru – 560 100.

(By Adv: Padmaraj K.)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Case of the complainant is briefly discussed hereunder :

 

          Complainant is residing in Muvattupuzha and working in Bangalore.  He owns a car bearing Registration No.KL-17J-59951, Ford Fiesta 2012 model.  Complainant had entrusted this car with opposite party, namely, Manager / Proprietor of Bosch Automobile Services and Solutions Pvt. Ltd., having its service centre in Bangalore.  At that time, car had run 81974 kms.  Complainant had given the vehicle to opposite party for oil change, coolant change and other works necessary for servicing the vehicle.  Car was handed over on 25.3.2019.  It was returned to complainant on 27.3.2019, after completion of works.  Rs.8,389/- was charged by opposite party for servicing the car.  Rs.1,866.33/- was charged towards cost of engine oil and Rs.102.11 was charged towards price of coolant.  Complainant had then driven the vehicle from Bangalore to his native place on 27.4.2019.  However, engine of the car had stalled when it had                                                                                                                       (cont….2)

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reached Thodupuzha.  Vehicle was towed to the nearest authorized service centre of Ford, namely, Kairali Ford, in Muvattupuzha.  After inspecting the vehicle, complainant was informed by the service personnel there, that there was no engine oil or coolant.  There was no leakage of oil.  Complainant alleges that opposite party had omitted to fill up engine oil and coolant despite having charged the complainant for price of consumables and labour involved.  This is deficiency in service, owing to lack of oil, engine had sustained extensive damages.  Complainant had to spend about Rs.1,60,000/- for repairs.  Complainant prays for reimbursement of repair charges from opposite party with 12% interest, compensation of Rs.75,000/- towards deficiency in service and loss occasioned thereby, along with litigation costs of Rs.5,000/-. 

 

            2.  Opposite party had entered appearance and filed a written version.  Its contentions are briefly discussed hereunder :

 

            According to opposite party, complaint is not maintainable as there is a jurisdiction clause amongst general terms and conditions, upon  estimate / job card that all disputes and differences arising from repair order shall be settled by mutual discussions and in case no settlement is arrived at, dispute shall be subject to exclusive jurisdiction of courts in Bangalore.  As the complainant had specifically agreed for subjecting himself to the jurisdiction of courts in Bangalore, present complaint before this Forum is not maintainable.  Opposite party further submits that complainant had brought his car for general service and works mentioned in job card.  Vehicle was serviced and complaints attended to. Opposite party submits that as per e-mail dated 14.5.2019, complainant had claimed that coolant level in the car was appearing very low and engine oil had very dark colour and was thick in composition.  This would imply that there was engine oil and coolant inside the engine.  It is common knowledge that due to regular usage of car, coolant and engine oil may undergo some changes, but it does not evaporate.  Though complainant had sought reimbursement of repair charges, he had not submitted a invoice copy and the diagnostic report from the said service centre.  He is deliberately withholding information.  There is no deficiency in service from the side of opposite party as defined under Section 2(g) of the Act.  Car was serviced and repaired to the satisfaction of complainant.  He had driven the car for a full month without raising any complaints.  He has acknowledged in the e-mail sent by him that there was engine oil and coolant in the car.  Therefore, damage to the engine cannot be attributed to opposite party.  It is further contended that opposite party so arrayed is only manager of service centre owned and operated by Automobility Services and Solutions Pvt. Ltd.   Complainant had failed to make the Company a party to this complaint.  Hence complaint is to be dismissed for non-joinder of necessary parties.  On these premises, opposite party prays for a dismissal of complaint with costs.

                                                                                                                   

                                                                                                                        (cont….3)       

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            3.  Thereafter sufficiency opportunity was afforded to both sides for taking steps.  Case was then posted for evidence.  No oral evidence was tendered by both sides.  Documents produced by complainant were marked as Exts.P1 to P6 and those produced from the side of opposite party, as Exts.R1 to R7.  Evidence was closed. On the date of hearing  opposite party or counsel were not present. There was no representation from it’s side. We have  heard complainant’s counsel.  Now the point which arise for consideration are :

1)  Whether  complaint is maintainable ?

2)  Whether there is any deficiency in service and unfair trade practice from the side of opposite party ?

3)  Whether complainant is entitled for reliefs prayed for ?

4)  Final order and costs ?

 

4.  Point No.1

 

            Maintainability of complaint is challenged upon 2 premises.  Firstly, on the basis of a jurisdictional clause contained in the job card and secondly, due to non-joinder of the company as a formal party, in this complaint.  Ext.R1 is a copy of job card proved from the side of opposite party.  Conditions and terms of business are printed on the reverse of job card.  Evidently a job card is drawn up only after the customer entrusts the vehicle for service. There are no pleadings and evidence to the effect that conditions of repair were made known to the customer before the vehicle was entrusted.  Since vehicle was already entrusted and job card drawn up, it cannot be said that conditions printed on the reverse of the job card will be binding upon a customer, since customer was not made aware of the terms and conditions before the contract was concluded between parties. Therefore we are of the view that jurisdictional clause cannot be applied here.  That apart, the clause is only with regard to courts in Bangalore.  Remedy provided under the Act as per Section 3 is in addition to and not in derogation of provisions of other statutes which may be applicable.

 

            In the cause title, opposite party is described as Manager / Proprietor of the Company.  In the instant case, one of the directors of the company was authorized as per Ext.R6 resolution to represent the company and thereafter Ext.R7 power of attorney was executed in favour of the said director to represent the company before this Forum.  For all matters company  is duly represented in these proceedings by its authorized director.  Written version has been filed by him and documents have been produced by him.  As company is  represented in this case, technical mistake of not showing the Company as such, separately as a party does not appear to us as a serious flaw.  There is no defect of non-joinder, as company has already been represented in the proceedings.  Challenge against maintainability therefore fails.  We are of the view that complaint is maintainable. 

                                                                                                                   (cont….4)

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5.  Point Nos.2 and 3 are considered together :

 

            Before adverting to the merits of the case, it would be apposite to refer to documents produced by both sides.  As mentioned earlier, Exts.P1 to P6 were admitted in evidence from the side of complainant.  Ext.P1 is photocopy of registration certificate of the car.  Ext.P2 is copy of invoice given by opposite party dated 27.3.2019 for Rs.8,389/-.  Ext.P3 is copy of an invoice given by Parumala Crane Service, Muvattupuzha, to complainant for having towed the car to Kairali Ford, Muvattupuzha from Thodupuzha Manakkadu.  Ext.P4 is copy of repair order and analysis report of vehicle prepared by Kairali Ford, Muvattupuzha.  Ext.P5 is photocopy of invoice given by Kairali Ford, Muvattupuzha for the works carried out.  Ext.P6 is copy of online letter  sent by complainant to opposite party with regard to incident.

 

            From the side of opposite party, Exts.R1 to R7 were admitted.  Ext.R1 is photocopy of the job card.  Ext.R2 is copy of tax invoice dated 27.3.2019, which was already marked as Ext.P2.  Ext.R3 is print out of e-mail sent by complainant to opposite party dated 14.5.2019.  Ext.R4 is letter addressed to President of this Forum by opposite party and Ext.R5 is its postal receipt.  Exts.R4 and R5 are not at all relevant for consideration here.  Though in Ext.R4, grievances has been voiced by opposite party that it was not in receipt of documents filed along with complaint, upon verification, we find that this  is not correct.  Copy of complaint and documents produced by complainant along with it are sent by registered post to opposite party from the office of this Forum. Opposite party has not tendered any oral evidence through its representative in this regard. Since opposite party was in receipt of notice and had appeared in obedience to the same, we find that it was in receipt of complaint and documents as well.   

 

            Coming to the question of deficiency in service, complainant has alleged that he had entrusted his car to the service centre of opposite party for carrying out general service which included replacement of engine oil and coolant.  Ext.R1 is copy of job card given by complainant to opposite party dated 23.3.2019.  It is seen from Ext.R1 that request was given by complainant for general check, rat entry, rat bite etc..  In the version, details of work requested to be done are given.  Ext.R2 is copy of invoice with regard to service carried out by opposite party.  Ext.P2 is a similar copy.  Ext.R2 invoice is for a total amount of Rs.8,389/-.  In Ext.R2, one litre engine oil is seen charged at Rs.1,866.33/- and 0.5 litre of coolant is charged at Rs.102.11/-.  Invoice reveals that engine oil and coolant were to be filled as part of general check up demanded by complainant.  In view of Exts.R1 and R2, it is clear that complainant’s car was serviced for general check up and as part of general check up, engine oil and coolant were claimed to be refilled / replaced by opposite party.  As a matter of fact in the written version, it is claimed that there was refilling / replacing of engine oil and coolant.                                                                                                                      (cont….5)

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Opposite party has only stated that complainant’s car had stalled one month after it was serviced by opposite party.  That as per Ext.R3 e-mail message, complainant had admitted that there was engine oil and coolant in the engine.  Thus, dispute is not that there was never any entrustment for filling up of engine oil or coolant, instead defense taken is of due  performance of service, that is filling up of coolant and engine oil.

 

            Opposite party is relying upon Ext.R3, wherein complainant has stated that coolant level was looking very low and that engine oil look very dark as thick at the time when he had taken delivery of his car.  Now it will be appropriate to consider Ext.P4 which is copy of repair order and analysis report maintained by Kairali Ford at Muvattupuzha.  First complaint raised is for checking engine’s abnormal noise and excess vibration.  It is seen noted that the engine had broken down and vehicle was brought by check up van.  Upon primary inspection, engine oil level was found to be very low.  Further information received after complete diagnosis is given in Ext.P4.  In the repair order it is seen noticed that engine assembly and turbo charger has sustained damages due to lapse of engine oil.  It is also seen noted in Ext.P4 that engine oil one number costing Rs.395.01/- and coolant arteco one number costing Rs.475/- was replaced.  In view of these findings contained in Ext.P4, we are of the view that  sufficient quantity of engine oil and  coolant in the engine were not there when the vehicle was brought for repairs to Kairali Ford, Muvattupuzha, on 28.4.2019.  It is evident that the vehicle had broken down at Thodupuzha and was towed to the service centre at Muvattupuzha for which complainant had paid Rs.2500/- as towing charges vide original of Ext.P3 bill.  Admittedly, engine work was done. Several components were  replaced along with consumables as per Ext.P4 work order.  Ext.P5 is copy of invoice given by Kairali Ford Muvattupuzha dated 31.5.2019 for the service carried out.  Total amount paid is shown to be Rs.1,42,674/-.  It is proved by Exts.P4 and P5 that there was extensive damage to  engine.  It was repaired by payment of costs vide original of Ext.P5 bill. 

 

            Now the only question is whether this was due to any latches from the side of opposite party.  Apparently, it is so.  Ext.R1 job card copy of opposite party reveals that the car had run 81974 kms when it was brought there for general check up and other services.  Ext.P4 reveals that the car had run 82777 kms when it was towed to Kairali ford workshop, one month after on 28.4.2019.  In between Exts.P4 and R1, vehicle had covered only 803 kms.  According to complainant car was driven from Bangalore to Thodupuzha while on his way to Muvattupuzha where he was residing.  Distance from Bangalore to Thodupuzha is approximately 561 kms.  Apart from this journey from Bangalore to Thodupuzha, vehicle had run only 242 kms.  If engine oil and coolant were replaced from the workshop of opposite party, there is no possibility of engine oil being very low and coolant level being low by mere  driving such distance. It is also evident from P4 that there was no leakage of engine oil or coolant. Therefore, complainant’s                                                                                                             (cont….6)

• 6  -

case that there was no replacement / topping up of engine oil and coolant from the workshop of opposite party is very much believable. R3 E-mail message referred to by opposite party confirms this fact.  Complainant has  voiced his concerns while taking delivery of the vehicle from opposite party workshop that the coolant level was very low and engine oil appear to be very thick and dark.  Therefore we find that there was no replacement or topping up of engine oil and coolant by opposite as part of general check up and service.  However, price of engine oil and coolant along with labour charges were taken from complainant.  Due to latches, from the side of opposite party, engine had stalled when it had reached Thodupuzha and complainant was put to much inconvenience.  Car was towed to the authorized workshop of Kairali Ford in Muvattupuzha and repaired there.  Complainant had to go without his vehicle.  He had to pay towing charges for moving the vehicle to Kairali Ford workshop at Muvattupuzha and thereafter he had paid Rs.1,42,674/- for the repairs done to engine.  All these were occasioned due to deficiency in service from the side of opposite party.  Giving a vehicle without service and misrepresenting that all the requisite jobs were done after demanding and getting service charges and costs of materials would also amounts to unfair trade practice.  That being so, complainant is entitled to get back the money spent by him as per Exts.P5 and P3 invoices along with compensation for the inconvenience to which he was put to.  Total amount as per Exts.P3 and P5 would come to Rs.1,45,174/-.  Complainant is entitled for this amount towards reimbursement.  Complainant has prayed for a compensation of Rs.75,000/-.  Upon a fair estimate, we are of the view that Rs.50,000/- should be paid as compensation to complainant by opposite party, for deficiency in service and unfair trade practice.  Complainant will be also entitled to receive reimbursement of engine oil and coolant price paid vide Ext.P2, Rs.1968.44/-, rounded off to Rs.1968/-  from opposite party.  He will be also entitled to receive Rs.3000/- as litigation costs.  Point Nos.2 and 3 are answered accordingly. 

 

6.  Point No.4 :

 

            In the result, complaint is allowed in part with costs upon following terms :

 

1.  Opposite party is directed to pay a sum of Rs.1,47,142/- towards amounts expended as repair charges paid to Kairali Ford, towing charges and amount paid for engine oil and coolant to opposite party, with interest at the rate of 12% per annum from 31.5.2019 (date of P5)onwards till payment or realization. 

 

2.  Opposite party  shall further pay Rs.50,000/- as compensation for deficiency in service and unfair trade practice from opposite party with interest at the rate of 12% per annum from the date of complaint, that is, 12.6.2019, until payment or realization.

 

3.  It shall pay  Rs.3,000/- as litigation costs to complainant.

                                                                                                                   (cont…..7)

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4.  Amounts ordered as per serial numbers 1 to 3 above shall be paid by opposite party within 45 days from the date of receipt of a copy of this order.

 

5.  In case of non-payment, complainant will be entitled to execute this order and realize the amounts therein ordered to be paid from opposite party in accordance with law.  Parties shall take back extra copies without delay.

 

                            Pronounced by this Commission on this the  6^th  day of July, 2023

 

                                                                                                                                                            Sd/-

SRI. C. SURESHKUMAR, PRESIDENT                                   Sd/-

           SMT. ASAMOL P., MEMBER

                             Sd/-

          SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

 

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1     -Photocopy of registration certificate of the car. 

Ext.P2    -  Copy of invoice given by opposite party dated 27.3.2019 for Rs.8,389/-. 

Ext.P3    -  Copy of an invoice given by Parumala Crane Service, Muvattupuzha.

Ext.P4    -  Copy of job card / repair order of Kairali Ford, Muvattupuzha. 

Ext.P5    -  Photocopy of invoice given by Kairali Ford, Muvattupuzha.

Ext.P6    - Copy of letter sent by complainant to opposite party with regard to incident.

On the side of the Opposite Party :

Ext.R1    -  Photocopy of the job card. 

Ext.R2   -  Copy of tax invoice dated 27.3.2019, which was already marked as Ext.P2. 

Ext.R3   -Print out of e-mail sent by complainant to opposite party dated 14.5.2019. 

Ext.R4   - Letter addressed to President of this Forum by opposite party.

Ext.R5 - Postal receipt for Ext.R4.

Ext.R6    -Certified copy of resolution passed by the opposite party.

Ext.R7    -  Copy of special power of attorney.

                                                                                                                                                                Forwarded by Order,

 

 

                                                                                           ASSISTANT REGISTRAR