Order-14.
Date-17/09/2015.
In this complaint Complainant SauravBafna Partner of Oswal Towers LLP by filing this complaint has submitted that complainant intended to purchase a car absolutely for the personal use of the partners as well as their family members and accordingly complainant was authorized to purchase the said car in the name of the said company after taking car loan amount of Rs. 6,50,000/- from the Bank and accordingly complainant went to the op no.1 the nearest authorized dealer of Maruti car and decided to purchase a Maruti car being Model CIAZ VXI for a total consideration amount of Rs. 7,99,849/- and out of the said amount complainant paid the entire amount to the op no.1 by taking car loan from the bank from their own fund and the Chasis Number of the car is MA3EXMG1S00112584 and Engine No. K14BN7051837 and the Registration No. WBO2AG2797.
Op also persuaded to the complainant for purchase of the Extended Warranty and accordingly complainant purchased the Extended Warranty for the said car from the op no.1 for a period of 4 years on making payment of the amount of Rs. 10,697/- and the said extended warranty is valid till 28.11.2018.Op no.1 also issued the delivery challan, Insurance Certificate, Road, Tax, Smart Card of the car to the complainant after receiving the entire consideration money from the complainant against the purchase of the car in question.
On the date of booking of the car, complainant asked to the sales personnel regarding the cost of rear view camera as an accessory of the car but most unfortunately op no.1 without any confirmation/affirmation of the complainant installed the rear view camera to the car and a hole had been done on the rear bumper to install the lens and the original rear view Mirror was damaged and the op no.1 forced the complainant to pay the amount against the price of the rear view camera for an amount of Rs. 12,999/-.When complainant refused to accept the rear view camera and refused to pay the charges then op no.1 refused to deliver the car to complainant and also behaved in a rude manner with the complainant and harassed the complainant by different means and for which complainant was compelled to return back car and on the same date i.e. on 03.12.2014, complainant sent the E-mail to the ops stating all the facts and demanded the delivery of the car without any accessory, without any hole in the bumper and without any damaged parts.
That the op by E-mail replied dated 05.12.2014 and intimated to the complainant that they shall not claim any amount against charges of rear view camera till satisfaction of the complainant and if the complainant is dissatisfied with the said accessories regarding rear view camera and hole of rear bumper within two weeks in that event ops promised to replace the rear view camera with original rear view mirror and the rear bumper shall also be replaced by new one in place of hole bumper at free of cost and for which complainant relied upon ops on good faith and took the delivery of the car from the ops.
After use of the car in question, complainant was not satisfied with the accessories such as rear view camera as already installed by the ops without the permission of the complainant and accordingly complainant sent the car to the ops on 16.12.2014 for installation of the rear view mirror in place of rear view camera and also change of rear bumper but the technician of the ops tried to fit the original mirror but the fitter cracked the wind shield screen and when complainant enquired about the same the ops told the complainant that the car shall be taken to the workshop for repair of the wind shield screen and to that effect complainant communicated the written complaint to the ops by E-mail on 17.12.2014 but no reply was received from the op no.1 for which complainant again by E-mail dated 20.12.2014 requested to the op no.1 to return back the car in factory fitted condition and on the same date op no.1 replied to the complainant that the car shall be delivered to the complainant in Factory Fitted Condition and the repair work shall be done in presence of DGM.
On 22.12.2014 op no.1 intimated to the complainant that the repair of the car is under process and by E-mail replied on 24.12.2014 that the ops intimated to complainant that the .modified rear view mirror is fitted in the car, Windshield must have got cracked while fitting/removing the mirror as particular component is sliding fitted if not removed properly then glass is likely to get crack.So, component cannot be covered under MCIL warranty and demanded to claim to the insurance company against replacement of the windshield and on 29.12.2014 ops delivered the car to the complainant by replacing the windshield but they installed the same old rear view camera by which the driver’s view being blocked by the said camera mirror for which by E-mail reply dated 29.12.2014 complainant duly informed the matter to the op no.1 by way of complaint.
Thereafter ops practiced foul play with the complainant and issued the mis-statements and communicated the E-mail on 30.12.2014 and by reply dated 30.12.2014 complainant communicated to the ops regarding the mal practice committed by them and by E-mail dated 09.01.2015 ops most ridiculously intend to know from the complainant as to whether complainant is interested to keep the rear view camera or would want to remove or replace it with mirror since the prime issue of the complainant was for replacement of added accessories installed by the ops such as rear view camera and replacement of rear bumper where a hole has been done and after so many communications the ops asked such ridiculous question to complainant and not onlythat the ops demanded the amount of Rs.11,990/- from the complainant against forceful installation of rear view camera by E-mail dated 09.01.2015.
Again complainant by E-mail dated 09.01.2015 stated that ops made the false and wrong reply to complainant and again complainant demanded the Factory fitted car by installing original rear view mirror and complete useable conditions of the car and by E-mail dated 15.01.2015 complainant again intimated to the op no.1 stating all the facts and anomalies committed by the ops and by E-mail dated 17.01.2015 op no.1 replied that .please not that all the cost will be borne by the company for all those rectification jobs. and the rear view camera and bumper shall be replaced within 7 days as promised by the ops and by this time two months has already been elapsed from the date of purchase of the car but no effective result was given by the ops.
On 17.01.2015 when the ops did the repairing works then the black marks near rear view mirror has been done and made a Dent on the right side of the newly purchased car and to that effect op made a mail communication dated 19.01.2015 to complainant and by E-mail dated 27.01.2015 ops again confirmed that the car shall be delivered on the next date i.e. on 28.01.2015 after making necessary repairing jobs.
But op no.1 again failed to deliver the car in question to the complainant on 28.01.2015 and after long persuasion ops last of all delivered the car to the complainant only on 05.02.2015 and that too the car is not factory fitted condition as promised by the ops and the ceiling of the car is found loose as it has been unfitted to take out the wire of the camera and is discharging a continuous sound while moving the car and the complainant first of all refused to accept the defective car and lastly complainant was forced to sign the satisfactory note and took the delivery of the car and to that effect complainant made the complaint to ops vide E-mail dated 07.02.2015.
Op vide E-mail dated 09.02.2015 stated to the complainant they shall re-fit the ceiling of the car in front of the complainant for satisfaction of the complainant by claiming themselves that the ceiling has been fitted properly as like new car and on the same date the complainant replied that if the fitment of the ceiling is correct then why they are ready to re-fit the ceiling but till date no reply has been received from the ops as a result of which complainant is still unable to use the car properly with full satisfaction even by making payment of the price of the new car complainant is unable and/or restrained to use the car as brand new only due to the gross deficiency in service and unfair trade practice of the ops and even after several communication made by the complainant the op no.2 is still in idle condition and failed to do any needful till date and at present complainant is processing the car with several defects and the dent of the car has been done which is completely uneven to the original portion of the car and the same is visible in condition.
Ops as a service providers promised to complainant for providing services and received the consideration money from the complainant but failed to provide such services to the complainant and due to the gross deficiency in service and adoption of unfair trade practice complainant has sustained monetary loss and also suffered physical and mental harassment for which ops are liable to compensate the complainant and also liable to replace the car or refund the money of Rs. 7,99,849/- + Rs. 10,697/- against extended warranty with 15 percent interest to the complainant and to that effect this complaint is filed for redressal.
On behalf of the op no.1 Dewar’s Garage Ltd. &Anr. by filing their written statement submitted that the present complaint is not maintainable in view of the fact that complainant is a limited liability Partnership and is governed under the provisions of the Limited Liability Partnership Act, 2008 and it appeared that the said vehicle was purchased in the name of the said Limited Liability Partnership and not in the name of the complainant and the company is a profit making body and as such the said vehicle purchased in the name of the partnership does not render the partnership or any of its partners, a consumer, as defined in the Consumer Protection Act, 1986.
It is specifically mentioned that any of the personnel of the answering op persuaded the complainant to purchased Extended Warranty for the said vehicle, as alleged or at all but such extended warranty was availed of by Oswal Towers LLP on its own volition.It is specifically mentioned that the complainant requested the personnel of the answering op to install a rear-view camera in the said vehicle along with a modified rear-view mirror which will give the visuals from the said camera to the driver of the said vehicle and for such installation a small hole had to be made in the bumper of the car for installation thereof.However after such installation was made at the request of the complainant, the complainant was not inclined to pay for the same and requested the answering op to remove such installation.At such juncture, the personnel of the answering op requested the complainant to use the services of the newly installed rear-view camera and in the event the complainant did not prefer its usage the answering op undertook to remove the same.Save as aforesaid, every allegation in the paragraphs 5 to 10 are false and fabricated and the story of installation of camera without any affirmation or confirmation of the complainant or the original rear-view mirror was damaged or that the answering op forced the complainant to pay for the newly installed rear-view camera or that the answering op was rude towards the complainant or harassed. So, all the stories are false and fabricated.
It is further submitted that answering op bonafidely requested the complainant to inform as to whether complainant was interested to keep the said rear-view camera installed in the said vehicle or wanted the removal thereof and in any event, all the work done upon the said vehicle by the personnel of the answering op at the request of the complainant, no piece was charged and was rendered at a free of costs by the answering op.
It is specifically stated that complainant signed on the satisfactory note while taking delivery of the said vehicle after having taken detailed inspection of the said vehicle to which answering op wants to show that although the ceiling of the said vehicle was in factory fitted condition and the brother of the complainant expressed dissatisfaction with the same.So the answering op requested the complainant to be present in person so that the said vehicle’s ceiling could be refitted to his satisfaction and in fact there is no such defect and there is no deficiency of service rendered by the answering op whois/was always ready and willing to cater to the demands or requests of the complainant.Further all the services rendered to the said vehicle was made on the request of the complainant, but the answering op did not raise any bill or charge the complainant for the same and the allegation regarding adopting unfair trade practice and complainant sustained monetary loss or that the answering op physically and mentally harassed the complainant as alleged are completely false and fabricated and op never harassed the complainant but always rendered services and in fact the answering op is always helpful to the complainant.
In the above circumstances, the present complaint should be dismissed as the entire claim is baseless and without any foundation, so, the complaint should be dismissed.
Decision with reasons
On careful consideration of the complaint and written version and also considering the argument as advanced by both the parties including the Tax Invoice-cum-vehicle Invoice, it is found that total price of the said vehicle along with VAT is Rs. 7,99,894.80 paisa, Road Tax, Registration Fee of Rs. 45,567/- was paid and for extended warranty period of Rs. 10,697.80 paisa was paid and it was valid up to 28.11.2018 and Registration No. is WB028G2797 as per Smart Card and it was manufactured in the month of October-2014 and it is evident that after purchase for the period from 24.11.2014 to 23.11.2015 all the problems were reported by the complainant but order of purchase for purchase was made on 19.11.2014 and it was delivered on 01.12.2014.
Complainant’s main allegation is that op no.1 without any affirmation/confirmation of the complainant installed the rear view camera as accessories of the car and a hole had been done on the rear bumper to install the lens and original rear view mirror was damaged and for rear view camera and for other repairing, op claimed a sum of Rs. 12,999/- and complainant refused to accept the rear view camera and refused to pay the charges then op no.1 refused to deliver the car to complainant and also behaved in rude manner towards the complainant and harassed the complainant in different means and for which complainant was compelled to return back without car and on the same date i.e. on 03.12.2014, complainant sent the E-mail to the ops stating all the facts and demanded the delivery of the car without any accessory, without any hole in the bumper and without any damaged parts.
Fact remains that ultimately op by E-mail replied dated 05.12.2014 and intimated to the complainant that they shall not claim any amount against charges of rear view camera till satisfaction of the complainant and if the complainant dissatisfied with the said accessories regarding rear view camera and hole of rear bumper within two weeks on that event ops promised to replace the rear view camera with original rear view mirror and the rear bumper shall also be replaced by new one in place of hole bumper free of cost and for which complainant relied upon ops on good faith took the delivery of the car from the ops that is after 05.12.2014.
Admitted position is that complainant was not satisfied with the accessories such as rear view camera already installed by the ops without the permission of the complainant and accordingly complainant sent the car to the ops on 16.12.2014 for installation of the rear view mirror in place of rear view camera and also change of rear bumper but the technician of the ops on tried to fit the original mirror but the fitter has cracked the wind shield screen and when complainant enquired the same the ops told the complainant that the car shall be taken to the workshop for repair of the wind shield screen and to that effect complainant communicated the written complaint to the ops by E-mail on 17.12.2014 but no reply was received from the op no.1 for which complainant again by E-mail dated 20.12.2014 requested to the op no.1 to return back the car in factory fitted condition and on the same date op no.1 replied to the complainant that the car shall be delivered to the complainant in Factory Fitted Condition and the repair work shall be done in presence of DGM.
It is also admitted fact that on 24.12.2014 that the ops intimated to complainant that the .modified rear view mirror is fitted in the car, Windshield must have got cracked while fitting/removing the mirror as particular component is sliding fitted if not removed properly then glass is likely to get crack.So, component cannot be covered under MCIL warranty and demanded to claim to the insurance company against replacement of the windshield and on 29.12.2014 ops delivered the car to the complainant by replacing the windshield but they installed the same old rear view camera by which the driver’s view being blocked by the said camera mirror for which by E-mail reply dated 29.12.2014 complainant duly informed the matter to the op no.1 by way of complaint and that is proved by e-mail document and op has not denied all those e-mails and also their reply.
In this context we have considered the e-mails issued by the op to the complainant on 05.12.2014 wherefrom it is found that op admitted that they will replace the rear view camera with original rear view mirror and the rear bumper shall also be replaced by new one in place of hole bumper and they had made scratch in the same and no payment for rear view camera will be made by the complainant till that time.Complainant is not satisfied and after issuing for 15 days, if complainant is satisfied, complainant shall have to make payment, otherwise not.
By e-mail dated 20.12.2014 complainant requested the op no.1 to return back the car in factory fitted condition and on the same date op no.1 replied to the complainant that the car shall be delivered to the complainant in Factory Fitted Condition and the repair work shall be done in presence of DGM.Further op by sending e-mail dated 22.12.2014 expressed their apology for windshield breaking and the cost of the windshield breaking cannot be confirmed by their engineers.But it shall be placed to Taratala Workshop for further repairing.Subsequently by e-mail dated 24.12.2014 ops intimated to complainant that the .modified rear view mirror is fitted in the car, Windshield must have got cracked while fitting/removing the mirror as particular component is sliding fitted if not removed properly then glass is likely to get cracked and the said component is not covered against under MCIL Warranty.But that defect shall be rectified as early as possible.
On 30.12.2014 op wrote a letter to the complainant stating that reverse parking sensors are a part of the original factory fitted car and regarding the utility for trial usage for 15 days passed, then remove the rear view camera and replace the mirror as complainant did not like it.So, op required to keep the vehicle for repairing of mirror which cracked due to changing of rear view mirror and asked the complainant to send the vehicle.
From the e-mail dated 09.02.2015 it is found that op asked the complainant whether complainant is interested to keep the rear view camera or want to remove or replace it with which the vehicle is dispatched and in case of keeping the camera, complainant is required to pay Rs. 11,990/-.Further by E-mail dated 17.01.2015 op informed that they have taken up the car of the complainant for replacement of the mirror and the rest of the replacement of bumper will be done within 7 days’ time and all cost will be borne by the company for all those rectification cost and they apologized for the cause of inconvenience of the complainant and on by sending of e-mail dated 19.01.2015, op informed that the black marks rear view mirror has been done and a dent on the right side (driver’s side) of the newly purchased car will be taken when they will ask the complainant for taking his vehicle for the back bumper job which they have already placed and the cost will be borne by the company and complainant was asked to sign to the delivery note of the vehicle.
By e-mail dated 27.01.2015 op informed to the complainant that they received rear bumper for the car.So, they will take the car from complainant’s residence for above mentioned job on 28.01.2015 and same shall be delivered on 29.01.2015.Admitted position is that on 29.01.2015 car was not delivered.But ultimately the car was returned to the complainant on 05.02.2015.When it was detected that the ceiling of the car was found loose and that was reported.Further by E-mail dated 09.02.2015 op informed the complainant to send car for refitment as per requirement of the complainant.
Considering all the above letters of the ops, we are confirmed that there is no such order placed by the complainant to the op for fixation of any additional accessories like camera and other in respect of order which was placed by the complainant to the op and there was no such request for fitment of any camera or any.So, it is clear that ops had their own style fitted it and at the time of delivery, complainant found all those things and refused to accept it.Thereafter as per request of the ops, complainant used 15 or more days but finding no service for which asked the op to remove it.
No doubt there after ops took the car in their garage/workshop to remove the same.But in the meantime bumper hole was done and at the time of fitment of mirror etc. windshield was cracked and it is admitted by the op and it was cracked at the time of fitting the mirror.So, it is clear that the new car was damaged by the op no.1, thereafter op admitted in so many letters that they shall have to replace the same, repairing the same and for that purpose if denting was required that shall be done and in fact after denting and removing of camera and fitting of the same glass windshield was crackedand that has not been properly repaired.
At the same time the ceiling was found loose and it was making noise at the time of use.Though op by their E-mail already admitted that the car shall be deliveredin company fitted condition.But ultimately it was agreed by letter dated 20.12.2014 that the vehicle will be delivered in factory finished condition but till now complainant found different type of defects in a new car which cannot be proved otherwise by op.
Truth is that all those defects were caused by the op for which op assured that after repairing of the car it shall be delivered like factory finished condition, but till now it is not in factory finished condition.At the same time it is proved that all the defects were created by the ops for their negligence and in fact ops’ version is that complainant asked the op to fix the camera is completely false and it is now the business of Dewar’s Garage to sell such accessories in such a manner and to cause some damages in the carthough the customers are not willing to fix it and in the present case it is proved that at the time of making or placing order, complainant did not submit any such order for fitting any camera but that was done and ultimately that was removed when complainant refused to accept it and after removal when the original mirror and etc. are being fitted at that time windshield was cracked for fitting mirror etc. and still leg bumper is damaged condition though all those matters were repaired but like factory finished condition is not as yet found.
So, invariably complainant had no fault for such damages, no doubt damages was caused by the ops as op has also admitted that they shall have to deliver the car after proper repairing and just like company finished car but that has not yet been proved.When the damages had been done by the op, then it is the liability of the op to remove all those defects andmake the car free from all defects and to prepare it like factory fitted car and inside materials must be just like new car of a company.
Op has admitted that he has delivered such a car after repairmen and like company finished condition but that has not been completed as yet.So, the negligence and deficiency on the part of the ops is well proved and at the same time deceitful manner of service on the part of the op is also proved.Further it is proved that op has failed to handover factory finished condition car as yet.
At the same time after ops Ld. Lawyers’defence of last argument when this Forum asked why all those matters were done without written consent of the complainant.In this regard ops’ Ld. Lawyers submitted that they are willing to make the car in factory finished condition and in their written argument in Page-10 Paragraph-20 has admitted that op no.1 is willing to redo the car as per the complainant’s satisfaction but till date complainant has not submitted the car at the workshop of the op no.1 for which it could not be properly finishedbut in all occasion op rendered service as and when any complication was detected by the complainant and reported to the op.
Considering all the above fact and circumstances and materials and the admission of the op and further relying upon the ops’ letters, we are confirmed that the new car in question was damaged by the op no doubt.So, it is the legal liability of the op to make the car like company finished car and in this regard op no.1 is liable to repair the same making it like company finished car and each and every part shall be free from any defect and after completion there must be the certificate to that there is no such defect in the car and make the denting at par company finished car windshield which is broken shall be replaced and in proper manner, ceiling should be properly fitted and about fitment of the car, there must be a certificate of the engineer of the M/s. Dewar’s Garage Companywhich shall be handed over to the complainant along with the car after proper repairing and if same cannot be done by the op no.1, in that case op no.1 shall have to replace a new car and in default op nos.1& 2 shall have to refund the entire price amount of the car to the complainant.But it must be completed within 45 days from the date of this order.
In this case ops’ Ld. Lawyer vehemently submitted that it was purchased for commercial purpose and complainant is a limited partnership Firm as per Company’s Act 2008.So, the present complaint is not maintainable.But in this regard we have gathered that there is warranty up to 2018.Op no.1 as dealer and service provider of the said car during the period of warranty caused damage and it is no doubt a deficiency of service and even if the car is purchased for commercial purpose, purchaser will be a consumer in respect of service by supplier during warranty period and so the present complainant is a consumer under the op and particularly in this case before delivery of the car, op no.1 fitted some accessories without the consent, without the order of the complainant and by that act he has damaged the car and that has been admitted by the op in their E-mail.
So, op no.1 cannot anyway deny to discharge their liability by any means and the fact remains that damages were caused by the op within warranty.So, invariably complainant is entitled to get such relief even if it was purchased for commercial purpose because warranty clause is there, warranty is valid up to2018.So, during warranty period if damage is caused by the seller before delivery or at the time of repairing, in that case, op no.1 including the company is liable to give such proper relief and redressal as service provider, seller and manufacturer.
In the light of the above observation we are convinced to hold that the present complaint is maintainable.Relied upon the ruling reported in I CPJ 2006 Page -256 NC and II 2007 CPJ 231 NC and I 2006 CPJ Page-1 Supreme Court because op no.1 caused damage of the said car before delivery.
In the result, complaint succeeds.
Hence, it is
Ordered,
That the complaint be and the same is allowed on contest against the ops with cost of Rs. 5000/-.
Op no. 1 is hereby ordered that Op no.1 shall have to make the said car free from all defects and also prepare it like company finished car within 45 days from the date of passing of this order and along with that op shall have to give a certificate of Maruti Suzuki India Ltd. to that effect that the car is free from any defect and all the defects as made by the op no.1 have been repaired and has been fully replaced by new one and status of the car is like company finished car and there is no further manufacturing defect in the said car and this certificate was must be supplied to the complainant at the time of delivery of the car by making further repairing etc. to the complainant by the op no.1.If op no. 1 fails to comply that order and fails to give such certificate along with company finished like car, in that case, op no.1 shall have to refund the entire price amount of Rs. 7,99,849/-.
For causing mental pain, sufferings and also for adopting deceitful manner of service and further for monetary loss of the complainant, op shall have to pay a sum of Rs.50,000/- as compensation and that shall be paid within 45 days from the date of this order.
If op fails to comply any part of the order within the stipulated time of 45 days from the date of this order, in that case, op shall have to pay penal damages at the rate of Rs. 200/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if it is found that ops are reluctant to comply this order, in that case ops shall be prosecuted u/s 25/27 of C.P. Act 1986, for which further penalty and fine shall be imposed upon them.
