BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, EAST SIKKIM AT GANGTOK

CONSUMER COMPLAINT CASE NO.11 OF 2018

{PRESENT:-            1. Prajwal Khatiwada, President

                                                 2. Anita Shilal, Member

                                                    3. Rohit Kumar Pradhan, Member}

1. Mrs. Khusbu Pradhan,

       W/o Manish Rai,

       R/o Sumbuk, South Sikkim,

      Temporarily residing at Upper Sichey,

      Gangtok, East Sikkim

 2. Manish Rai,

      S/o Narendra Kumar Rai,

      R/o Sumbuk, South Sikkim

      Temporarily residing at Upper Sichey,

      Gangtok, East Sikkim

                                                                                     ....Complainants

                                                          -Versus-

     1. Entel Motors,

         Maruti Suzuki Dealer,

         6^th Mile, Tadong, Gangtok,

         East Sikkim

     2. Ankit Drolia,

         Area Service Manager,

       Maruti Suzuki Centre,

         4^th Floor, Quantum Building, Paribahan Nagar

       Matigara, Siliguri, West Bengal

                                                                                    ....Opposite Parties

FOR THE COMPLAINANTS : Ld. Counsel Shri Shakil Karki

FOR THE OPPOSITE     :           Ld. Counsel Shri Sudesh Joshi &

PARTIES                                       Shri Uma Shanker Sarda

O-R-D-E-R

1. This is to decide the complaint filed by the complainant claiming deficiency in service on the part of the Opposite Parties (OPs), particularly the OP No.1. They have, accordingly, prayed for compensation/damages under various heads.
2. Briefly stated, it is the case of the complainants that the complainant No.1 is a government employee while the complainant No.2 is her husband. Sometime in the year 2014, the complainant No.1 had purchased a Maruti Suzuki-Swift ZDI vehicle from the OP No.1(Entel Motors) which is a registered dealer of Maruti Suzuki vehicles and has its workshop at 6^th Mile-Tadong, Gangtok, East Sikkim.
3. According to the complainants, even after the expiry of the initial free servicing period in respect of the above vehicle it used to be often taken to the workshop of the OP No.1 for periodic maintenance and regular servicing. Similarly, on 27.04.2018 the complainant No.2 had taken it to the workshop of the OP No.1 for regular servicing and repair. The OP No.1, accordingly, took over its possession and assured the complainant No.2 that it would be properly serviced and would be returned by the end of the same day. The complainant No.2 also paid the estimated bill amount of ₹ 3,166/-(Rupees Three thousand one hundred and sixty-six) only for which he was duly issued a money receipt(Exhibit 2). Later that day when the complainant No.2 came back to the workshop of the OP No.1 for taking back the vehicle the latter requested him to take back the vehicle in a while as certain problems were there in its engine which required to be checked and repaired. He, accordingly, agreed and left.
4. According to the complainants, when the complainant No.2 again visited the workshop for taking the vehicle its engine suddenly burst into fire and smoke. On enquiry the OP No.2 requested him to take back the vehicle on the following day after the concerned problems in the engine were thoroughly checked and repaired. Left with no option the complainant No.2 left the workshop.
5. The complainants would aver that the vehicle had no problems in the engine when it was brought to the workshop of the OP No.1. On the following day i.e., 28.04.2018, when the complainant No.2 against visited the workshop, to his utter surprise he found all the parts of the vehicle scattered on the floor and the vehicle itself was in a dilapidated condition. On enquiry the OP No.1 assured him that it would take the full responsibility of the vehicle and repair its engine at no cost. The repaired engine would have a warranty period of two years according to it. However, it was not willing to replace the engine.
6. As per the complainants, though the life span of the vehicle engine is more than five years it had only been four years when it was brought to the workshop of the OP No.1. It was in a good and working condition when it was handed over to the OP No.1 for periodic/regular servicing. They had not instructed the OP No.1 to check its engine. However, the OP No.1 on its own meddled with the engine and it is as such guilty of deficiency in service.
7. The complainant No.2 even lodged a general diary report regarding the matter before the Ranipool Police Station(PS) on 01.05.2018. The complainant also contacted the OP No.2(Area Service Manager of Maruti Suzuki vehicles) over the phone regarding the matter who assured that the matter would be resolved and rectified at no cost. Few emails were also received from the OP No.2 in that regard.
8. As there was no progress in the matter the complainants sent a legal notice dated 21.06.2018 to the OPs. However, despite the receipt of the same the OPs did not do the needful. Owing to their negligent attitude the complainant No.1 claims to have suffered mental tension, pain and agony.
9. The complainants would, accordingly, claim that there has been deficiency in service on the part of the OPs, particularly the OP No.1. They would thus claim compensation/damages/reliefs as follows:-

               (a) Replacement of the old vehicle above with a new vehicle;

               (b) In case it is not replaced the engine issue should be resolved by replacing the old engine with a new engine which shall have a warrant of five years or more;

               (c) Repainting of the entire body of the vehicle along with maintenance of its basic running parts;

               (d) Compensation to the tune of ₹ 80,000/- for causing mental tension, pain, agony, harassment and hardship to the complainants and for causing additional financial burden on them;

               (e) Cost of legal proceeding; and

               (f) Any other relief or reliefs.

10. According to the complainants, the cause of action for filing the present complaint first arose on 27.04.2018 when the vehicle was given to the OP No.1 for routine servicing. It again arose on 28.04.2018 when the complainant No.2 went to the workshop of the OP No.1 for taking back the vehicle but had to return empty-handed. It further arose on 21.06.2018 when the concerned legal notice was issued to the OPs. Thereafter, the cause of action has been continuing within the jurisdiction of this Commission.
11. It may be mentioned here that though the OPs appeared on receipt of notices issued to them, the OP No.1 failed to file its written version/reply within the statutory period under Section 13(2)(a) of the Consumer Protection Act, 1986. Though the written version was filed by it after the concerned statutory period, vide order dated 10.06.2019 it was returned to it after hearing it and the complainants in that regard. As a matter of fact, the complainants had filed an application in that regard. However, the OP No.1 was allowed to participate in the proceedings and was also allowed to adduce evidence. The OP No.2, on the other hand, filed his written version much earlier than the OP No.1. He would claim that the complainants have no cause of action against him and that he has unnecessarily been arraigned as a party in the matter. He is thus not a necessary party in the matter. As a matter of fact, the complainant fairly conceded through their Counsel during the latter part of the proceedings that no specific role had, in fact, been attributed to the OP No.2 claiming deficiency in service on his part.
12. The following points were framed for determination after hearing the parties through their Counsel and on careful consideration of the pleadings of the complainants and the OP No.2 as well as the various documents filed in the matter. The onus of proof was fixed accordingly:-

1) Whether the complaint is maintainable?(opc)

2) Whether there has been any deficiency in service on the part of the OP No.1 while carrying out the repairs/periodic maintenance-service of the vehicle of the complainant No.1 which was entrusted to it?(opc)

3) Whether there has also been deficiency in service on the part of the OP No.2?(opc)

4) Whether the damage caused to the engine of the concerned vehicle is attributable to the complainant No.1 herself?(opr) and

5) Whether the complainant No.1 is entitled to the reliefs prayed for by her?(opc)

13. The complainant No.2 examined himself and witness Arjun Sewa(CW2) who had supposedly accompanied him(complainant No.2) to the workshop of the OP No.1. They both filed their evidence-on-affidavits(Exhibits 7 & 9, respectively) in the matter and confirmed/authenticated it before us on oath. The OP No.1 examined its Works Manager Kushal Rai(D₁W₁) while the OP No.2 examined himself.
14.  After the parties closed their evidence, their Ld. Counsel were heard on arguments.
15.  It may be mentioned here that the matter was considerably delayed owing to the prevalent situation arising due to COVID-19. Part-proceedings were conducted through video-conferencing.
16. Ld. Counsel Shri Shakil Karki, appearing for the complainants, mostly reiterated the submissions of the complainants above. According to him, the complainants have been able to prove a case of deficiency in service on the part of the OP No.1. The convincing evidence and materials put forward by them would clearly establish their case.
17. It was also contended by Shri Karki that the OP No.1 has admitted that the concerned vehicle was brought to its workshop. It has, however, not given any plausible explanation as to what caused the engine of the vehicle to burst therefore clearly making out and establishing a case of deficiency in service on its part. Though it has baldly claimed that the engine had burst due to its poor maintenance by the complainants it has not been able to substantiate the same. It was, however, fairly conceded by Shri Karki that the complainants have no case against the OP No.2.
18. Ld. Counsel Shri Sudesh Joshi, appearing for the OPs, on the other hand, contended that no case of deficiency in service on the part of the OPs has been made out by the complainants. According to Shri Joshi, though the OP No.1 was not allowed to place its written version before this Commission nevertheless it has been able to bring on record that the vehicle was not being properly and regularly maintained/serviced by the complainant No.1 which led to the deterioration in its condition. According to Shri Joshi, after the last periodic servicing of the vehicle done in the workshop of the OP No.1(when the vehicle had covered 12001 kilometers) the complainants have not put forward anything which could even faintly suggest that there was any further servicing until the vehicle was ultimately brought to the workshop of the OP No.1 after having run upto 50194 kilometers. The complainant No.2 has himself admitted during his cross-examination that before bringing the vehicle in the workshop of the OP No.1 its last periodic maintenance was done on 23.04.2015 at the mileage of 12001. Further, he would also admit the poor condition of the vehicle. He has categorically admitted that during the process of changing the coolant the hosepipe of the vehicle broke due to aging and poor maintenance. The complainants have not put forward any documents such as bills or invoices to prove that the vehicle was regularly/periodically maintained between 12001 to 50194 kilometers. Therefore, it is the complainants who were negligent in properly maintaining the vehicle and its engine and they are simply trying to put the blame on the OP No.1. It was, accordingly, prayed that the complaint be dismissed with exemplary costs.
19. It was also contended by Shri Joshi that the complainants admittedly have no cause of action against the OP No.2. The said OP has as such been arraigned in the matter without any basis.
20. We have given our anxious and thoughtful consideration to the submissions put forward by the Counsel for the parties and have carefully gone through the evidence/materials placed before us.
21. The points for determination above shall be taken up together.
22. As seen above, it is the case of the complainant No.1 that her husband(complainant No.2) had taken her Maruti Suzuki Swift vehicle bearing registration No.SK-04-P-9963 to the workshop of the OP No.1 on 27.04.2018 for its periodic maintenance. The OP No.1 took over its possession for servicing and assured that it would be returned by the end of the same day after servicing. The necessary bill amount in that regard was also paid by the complainant No.2 to the OP No.1. However, when the complainant No.2 returned to the workshop later on the same day the OP No.1 requested him to take the vehicle in a while as according to it there were certain problems in the engine which needed to be checked and repaired. The complainant No.2 accordingly left the workshop. Later again when the complainant No.2 came back to the workshop to take the custody of the vehicle its engine suddenly burst into fire and smoke in his presence. According to the complainant No.1, her vehicle was in absolutely good working condition when it was given to the OP No.1. It is as such owing to its negligence that its engine burst in fire and smoke. As her husband/complainant No.2 was then requested to come on the following day to take the possession of the vehicle he(complainant No.2) accordingly came back to the workshop on the following day. To his utter surprise, he found all the parts of the vehicle scattered on the floor and the vehicle itself was in a dilapidated condition. The dismantling was done without the permission of the complainants. When the complainant No.2 raised objections to it the OP No.1 assured him that it would take full responsibility for the vehicle and would repair its engine at no cost. Such repair would however have a warranty only of two years according to it. It was however not willing to replace the engine with a new one which it ought to have done as the engine of the vehicle was in a good and working condition before it was given to the OP No.1. The complainants would accordingly claim negligence and deficiency in service on the part of the OP No.1. As indicated earlier above, though the OP No.1 filed its written version it was returned to it vide order dated 10.06.2019 as it had been filed beyond the statutory period provided under Section 13(2)(a) of the Consumer Protection Act, 1986. However, it was allowed to participate in the proceedings. It was also allowed to cross-examine the complainant No.2 and further permitted to adduce evidence. It examined its Works Manager/authorized representative Kushal Rai(D₁W₁). From the trend of cross-examination of the complainant No.2 and CW2 Arjun Sewa as well as from the evidence of D₁W₁ it can be seen that it has been the stand of the OP No.1 that when the vehicle was produced at its workshop for servicing it was found that its coolant was in its worst condition as the same had not been changed in the last many years. Further, it was found that the vehicle was not being periodically serviced as per the required schedule. As a matter of fact, it is noted that it is admittedly not a case where the engine had actually burst. Instead, there was only smoke and spark in it. This has been admitted by the complainant No.2 himself. He would also admit during his cross-examination by the OP No.1 that during the process of changing the coolant the hosepipe broke due to aging and poor maintenance. Interestingly, the complainant No.2 would also admit that the last periodic maintenance of the vehicle was done on 23.04.2015 at the mileage of 12001. Although before making the said admissions he did deny the suggestion put to him by the OP No.1 to the effect that his wife/complainant No.1 had not caused the periodic maintenance service of the vehicle from 12001 kilometers till 50194 kilometers(i.e., the mileage covered by the above vehicle when it was brought to the OP No.1 on 27.04.2018, as is clear from Exhibit 2, money receipt/job card filed by the complainants), the complainants have however not produced any document or worthy evidence in that regard. It is rather strange that the complainant No.1 would not have the necessary documents such as servicing invoices and suchlike indicating that her vehicle was indeed serviced periodically. Her other witness would also claim ignorance about she having run/used her vehicle extensively for around 40000 kilometers without any periodic maintenance service. CW2 could also not say if the vehicle had been maintained very poorly. Suffice it to say, once all the above facts and circumstances have come on record from the complainant No.2 & CW2 it is difficult to attribute any deficiency or negligence on the part of the OP No.1 for the concerned condition of the vehicle engine. Being a machinery the complainant No.1 ought to have periodically maintained and serviced her vehicle and its engine. It is also highly improbable that the engine of the vehicle which had supposedly been taken by the complainant No.2 to the workshop of the OP No.1 merely for routine/periodic service would all of a sudden have smoke and spark without any underlying mechanical defects, whether latent and patent.  Given the admitted condition of the hosepipe which had broken while changing the coolant due to aging and poor maintenance and the fact that the complainants have not produced anything to indicate that the vehicle was being regularly maintained/serviced it becomes clear that it was not maintained/serviced periodically. Moreover, we do not see anything on record to even faintly suggest that the OP No.1 had actually done anything with regard to the engine. The said occasion would in any case not have arisen when it is the case of the complainants themselves that the vehicle was otherwise in absolutely good working condition. It is not understood as to why the OP No.1 would even care to check the engine when it was only a case of routine servicing and for which the estimated bill amount of mere ₹ 3,166/- had already been paid by the complainants which fact is clear from the claims made by them at paragraph 8 of their complaint as well as at paragraph 4 of his evidence-on-affidavit (Exhibit 7) filed by the complainant No.2. It is seen to be a clear case of negligence on the part of the complainants, particularly, the complainant No.1. In Kinetic Engineering Ltd., Petitioner v. Milind S. Chaurasia & Ors., Respondents II (1995) CPJ 4(NC) the Hon'ble National Commission would observe in a somewhat similar situation where the concerned complainant was irregular in causing the periodical maintenance/servicing of his vehicle and had not been taking proper care of it, that in such a case it could not be said that there was any negligence or deficiency in service on the part of the concerned dealer/manufacturer/service providers. Point No.4) thus stands decided in the affirmative.
23. Apart from the above, it is worthwhile to mention here that the complainants never caused the engine of the vehicle to be inspected and examined by an independent expert or surveyor who could have also put some light on the reasons for its above condition. Therefore, even on that ground it is difficult to attribute any negligence on the OP No.1. The points No.1), 2), 3) & 5) are accordingly decided in the negative.
24. Resultantly, the complaint stands dismissed being sans merit.  However, we leave it to the OP No.1 to repair the concerned engine as earlier undertaken by it as a sign of goodwill. No costs.

                     PRONOUNCED

      (Anita Shilal)                (Rohit Kumar Pradhan) (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRC(E) at Gangtok       DCDRC(E) at Gangtok                 DCDRC(E) at Gangtok                                 

LIST OF WITNESSES EXAMINED BY THE COMPLAINANTS

01.        CW1     -  Manish Rai(Complainant No.2)

02.        CW2     -  Arjun Sewa

LIST OF DOCUMENTS EXHIBITED BY THE COMPLAINANTS

01.        Exhibit 1    - Original certificate of registration of vehicle

02.        Exhibit 2    - Copy of money receipt/job card

03.        Exhibit 3    -      Photograph of the vehicle

04.        Exhibit 4    -      Copy of General Diary(GD) report

05.        Exhibit 5    -  Copies of emails(2 Nos.)

06.        Exhibit 6    -  Copy of legal notice dated 21.06.2018

07.        Exhibit 7    -  Evidence-on-affidavit of CW1

08.        Exhibit 8    -      Postal receipts

09.        Exhibit 9    -  Evidence-on-affidavit of CW2

LIST OF WITNESSES EXAMINED BY THE OPPOSITE PARTY NO.1

01. D₁W₁ -         Kushal Rai

LIST OF DOCUMENTS EXHIBITED BY THE OPPOSITE PARTY NO.1

01. Exhibit A – Original authorisation letter

02. Exhibit B – Vehicle Owner's Manual(original)

03. Exhibit C -  Evidence-on-affidavit of  D₁W₁

LIST OF WITNESSES EXAMINED BY THE OPPOSITE PARTY NO.2

01. D₂W₁ -         Ankit Drolia

LIST OF DOCUMENTS EXHIBITED BY THE OPPOSITE PARTY NO.2

01. Exhibit A2 – Evidence-on-affidavit of  D₂W₁

   Anita Shilal)                (Rohit Kumar Pradhan)     (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRC(E) at Gangtok      DCDRC(E) at Gangtok                 DCDRC(E) at Gangtok