BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.574 of 2012/25 of 2015

Date of Instt. 17.12.2014/28.1.2015

Date of Decision :17.04.2015

1. M/s International Agencies, 5, Roshan Road, Hoshiarpur through its Partner Deepak Bhandari.

2. Deepak Bhandari, Partner, M/s International Agencies, 5, Roshan Road, Hoshiarpur.

..........Complainants

Versus

1. Ford India Pvt Ltd, Via S.P.Koil, Chengalpattu, Chennai-603204, Tamil Nadu, India.

2. M/s A.B.Motors Pvt Ltd, Opp.Delhi Punjab School, Jalandhar, Phagwara Highway, Jalandhar.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Ashok Paruthi Adv., counsel for complainant.

Sh.Sanjeev Sharma Adv., counsel for OP No.2.

Order

J.S Bhatia (President)

1. The complainants have filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that complainant is a consumer qua opposite parties. The opposite parties No.1 is a manufacturer of the Ford Fiesta Car and have got their service station at Jalandhar. The opposite party No.2 is running the service station as an agent of the opposite party No.1. The complainant No.1 is owner of vehicle No.PB07R-5964 Ford Fiesta, Chassis No.6UB9042, Engine No.6UB9042. The complainant No.1 is a partnership firm and Deepak Bhandhari is its partner and competent to move the present complaint. The complainant has been getting the service conducted on the said vehicle from time to time only from opposite party No.2. On 8.11.2011, the complainant had handed over the aforesaid vehicle to opposite party No.2 for necessary repairs. The opposite party No.2 told the complainant that since the vehicle is already in their workshop and that the next service was due in the near future, therefore advised the complainant to get the service of the vehicle conducted also. The complainant agreed to the advise of the opposite party No.1 and instructed their officials to conduct the service on the said vehicle and also instructed them to change engine oil and to carry out the necessary things required for the proper service of the vehicle and consequently, invoice No.130400 dated 22.11.2011 was issued by the opposite party No.2 in the name of the complainant. The payment was made by the complainant against the aforesaid invoice vide cheque No.678252 dated 23.11.2011 for Rs.1,11,165/- drawn on OBC, Hoshiarpur against receipt No.3000 dated 24.11.2011 issued by its Jalandhar Office. The said invoice included the necessary repairs and providing of the necessary components to carry out the repairs alongwith the charges of engine oil alleged to have been changed. The complainant had made the payment to opposite party No.2, replying upon their version that engine oil has been changed and necessary service has been done against the said invoice. Complainant took the delivery on 24.11.2011. However, later when the opposite party No.2 asked about the fact whether the complainant was satisfied with the service, the complainant made it clear to the opposite party No.2 that the engine is giving noise and the said fact was reported to them in response to the calls of opposite party No.2. Even, opposite party No.2 was intimated accordingly with regard to the deficiency of service and with regard to the non satisfaction of the complainant. Consequently, the concerned officer at Jalandhar office told the complainant to bring the vehicle in the workshop. With a hope that opposite party No.2 will do the needful, the complainant intimated them that he would bring the said vehicle to their office on 22.2.2012. When the complainant was on the way to handover the vehicle to the opposite party No.2, the vehicle stopped and the same could not be driven. The complainant immediately informed the opposite party No.2 with regard to the said fact and the complainant was told to tow the vehicle to their Jalandhar office/workshop. The complainant then handed over the said vehicle to the opposite party No.2 by getting it towed. Said vehicle was entered in the premises of the opposite party No.2 and a repair order/job card No.ROABB1O949OA dated 22.2.2012 was issued by them. The vehicle was received by the opposite party No.2 intact without any damage. The complainant was told to enquire about the vehicle after a week as it would take time to detect the fault. The complainant approached the opposite party No.2 again in March 2012 twice, but could not get any proper reply from their officials. The workshop manager was apprised of this situation, who advised the complainant to contact the body shop manager. Both of them told the complainant that they would check the vehicle and would let the complainant know about the defect. Thereafter about two months, the complainant was told by the opposite party No.2 that the engine of the vehicle has seized and it required its opening. They also advised the complainant to sign the blank claim papers. The said blank claim papers were got signed from the complainant and they assured the complainant that they would do the needful. Later, when the complainant again approached them, it was told that the engine required heavy repair, because it has seized on account of the non existence of the engine oil and it stood damaged on that account. The complainant told the opposite party No.2 that since, the engine oil was supposed to be changed and filled on 22.11.2011 by their office when the vehicle was got serviced, but they had no reply. Ultimately, it was confessed by the opposite party No.2 that inadvertently they could not put in the engine oil at the time of service conducted on 22.11.2011. It is submitted that the complainant had paid for the said purpose and it was the fault of the opposite party No.2. The opposite party No.2 is guilty of deficiency in service as they had failed to put in engine oil at the time of service on 22.11.2011. The complainant was also made to know that the insurance company has not allowed the claim which was submitted by opposite party No.2. However, no copy of the report was handed over to the complainant by their office nor such copy was ever handed over to the complainant by the insurance company. The damage to the vehicle was caused on account of deficiency in service by the opposite party No.2. On such like averments, the complainants have prayed for directing the opposite parties to deliver the car in good condition to them. They have also demanded Rs.10,00,000/- as compensation and further Rs.1,00,000/- as damages on account of harassment.

2. Upon notice the opposite parties appeared and filed their written replies. In its written reply, the opposite party No.1 took preliminary objections regarding the maintainability, not approaching the Forum with clean hands and suppressing material facts etc. It further pleaded that it is dealing with opposite party No.2 on principal to principal basis. It denied other material allegations of the complainant on the ground that the same related to opposite party No.2.

3. The opposite party No.2 in its separate written reply pleaded that in fact the vehicle mentioned in the complaint, was brought by towing away to the opposite party No.2 (who is authorized service station of opposite party No.1) and the vehicle was accidental and damaged one. Thereafter the vehicle was delivered on 24.11.2011 after repairs of the accidental and damaged vehicle. The engine oil was changed and amount was charged accordingly. Thereafter, till 22.2.2012, presumably, the performance of vehicle remained satisfactory and upto mark as the complainant never come up to the service centre of the opposite party No.2 till February 2012. On 8.11.2011, when the vehicle was brought for service to the service centre of opposite party No.2 and engine oil of the vehicle was changed, the odometer reading of the vehicle was 125113 KM as on the date of delivery of vehicle in November 2011 and thereafter on 22.2.2012, when the vehicle was again brought for repairs, the odometer reading was 13221 KM meaning thereby, the vehicle has been driven for about 7100 KM between a time span 24.11.2011 to 22.2.2012. On 22.2.2012, when the vehicle was brought to the service station, the same was in complete breakdown condition and the same was towed away to the workshop by the complainant. On 22.2.2012, the vehicle was inspected and the complainant was fully appraised about the condition of the vehicle. The concerned mechanic sought the permission of the complainant to allow him to open the vehicle but the same was refused by the customer/complainant and the complainant revealed that the vehicle was fully insured with the insurance company and the complainant was interested to lodge claim before the insurance company. The formalities were completed by the complainant at his own level and it was only after 6.6.2012 when after opening the engine by replying opposite party No.2 found that the Pan of engine oil/Oil Sump was punctured due to strike of some hard object resulting into leakage of engine oil. Further, due to lack of engine oil for the aforesaid reason, there was heavy friction in engine block; the engine of the vehicle has seized. Thereafter, the opposite party No.2 believes that the complainant pursued the matter with the concerned insurance company at his own level and it was only in the month of January 2012 when the opposite party came to know that the complainant has filed the present false and frivolous complaint against the replying opposite party. Thus, being unsuccessful from getting any claim from insurance company the complainant is trying to burden the opposite parties with liability of his own negligent acts and conduct out of sheer frustration. Otherwise, there is no negligence or deficiency on the part of the opposite party No.2 in any manner as the opposite party No.2 is only concerned with the payment of service/repair charges and payment of service and other spare parts of the vehicle and the cost of the same comes upto Rs.1,54,064/-. The charges and payment has to be given either by the complainant or by the concerned insurance company to the opposite party No.2. Till date neither the estimate charges, nor the parking charges which comes up to Rs.500/- per day has been paid either by the complainant or by the insurance company. It denied other material averments of the complainants.

4. In support of their complaint, learned counsel for complainants has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C15 and closed evidence

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavits Ex.OA and Ex.O1/A alongwith copies of documents Ex.O1P/1 to Ex.O1P/3 and closed evidence. Further learned counsel for opposite party No.2 tendered into evidence affidavit Ex.OW1/A alongwith documents Ex.RA, Ex.R2 to Ex.R25 and closed evidence.

6. After going through the evidence on record and hearing learned counsel for the parties, the complaint was dismissed by this Forum on the ground that the car was purchased by complainant firm in connection with its business and as such it can not be termed as consumer and its remedy is to approach Civil Court, vide order dated 14.11.2013. However, the complainants filed appeal before Hon'ble State Commission and Hon'ble State Commission in appeal dismissed the complaint against opposite party No.1 and remanded back the case to this Forum for deciding the same afresh on merits on the basis of evidence already adduced by the parties.

7. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of opposite party No.2.

8. It is not disputed that complainants had availed the services of opposite party No.2 for repair of the car in question. Now we are to see whether there is any deficiency in service on party of the opposite party No.2 while repairing the car of the complainants?

9. Counsel for opposite party No.2 contended that the complainants have intentionally not impleaded the insurance company with whom the car was insured and has intentionally withheld the information in reply to application for production of documents moved by opposite party No.2 and as such adverse influence liable to be drawn against the complainants. He further contended that complainants have suppressed the material facts and in fact the car in question was brought to the service station of opposite party No.2 on 8.11.2011 and the vehicle was accidental and damaged one and thereafter engine oil was changed besides carrying out other repairs and amount was charged accordingly and car was delivered to the complainants on 24.11.2011. He further contended that till 22.2.2012 the performance of vehicle remained satisfactory as the complainant never came up to the service centre of the opposite party No.2 till then. He further contended that on 8.11.2011, when the vehicle was brought for service to the service centre of opposite party No.2 and engine oil of the vehicle was changed, the odometer reading of the vehicle was 125113 KM and thereafter on 22.2.2012, when the vehicle was again brought for repairs, the odometer reading was 13221 KM meaning thereby that the vehicle has been driven for about 7100 KMs during period from 24.11.2011 to 22.2.2012. He further contended that on 22.2.2012, the vehicle was inspected and the complainant was fully appraised about the condition of the vehicle and the concerned mechanic sought the permission of the complainant to allow him to open the car but the same was refused by the customer/complainant and he revealed that the car was fully insured with the insurance company and the complainant was interested to lodge claim before the insurance company. He further contended that formalities were completed by the complainant at his own level and it was after 6.6.2012 when after opening the engine of the car, opposite party No.2 found that the Pan of engine oil/Oil Sump which is situated below the floor of the vehicle, was punctured due to striking of some hard object resulting into leakage of engine oil and due to this reason engine of the vehicle had seized. He further contended that there is also indication of less engine oil over the front penal of the car but the complainant has apparently neglected the same and has driven the vehicle without engine oil and opposite party No.2 can not be liable in any manner. He further contended that the opposite party No.2 believes that the complainant pursued the matter with the concerned insurance company at his own level and it was only in the month of January 2012 when the opposite party No.2 came to know that the complainant has filed the present false complaint against it. He further contended that repair charges comes to Rs.1,54,064/- and the payment has to be given either by the complainant or by the insurance company and till date neither estimate charges, nor the parking charges have been paid by the complainant or the insurance company. He further contended that delay is due to the act and conduct of the complainant and there is no deficiency in service on part of the opposite party No.2. On the other hand, learned counsel for the complainants contended that when the vehicle was firstly taken to opposite party No.2 on 8.11.2011 for repair, the opposite party No.2 alleged to have changed the engine oil but infact engine oil was not changed. He further contended that complainant took the delivery on 24.11.2011 and when the opposite party No.2 asked whether the complainant was satisfied with the service, it was made clear to opposite party No.2 that engine is given noise and this fact was reported to opposite party No.2 in response to the call of the opposite party No.2. He further contended that due to non changing of engine oil, the engine seized and resulted in loss to the engine. He further contended that the fact engine oil was never changed by opposite party No.2 is even admitted by it in its application dated 21.2.2013. We have carefully considered the contentions advanced by learned counsel for both the parties. In application under section 13(4) of the Consumer Protection Act moved by opposite party No.2 on 21.2.2013, it is mentioned in para 3 as under:-

"That the complainant has intentionally not impleaded the insurance company which was otherwise necessary party and in fact the vehicle was damaged in accident and thereafter the part of engine Pan Oil was damaged by driving the vehicle by complainant leading to pilferage/leakage of engine oil ultimately resulting into damage to engine block; as the engine oil was never changed by opposite party and never the opposite party even proclaimed/advised the complainant or charged money for change of engine oil. The same facts would have been cleared by the surveyor's report of insurance company and only for this reason the insurance company has not been impleaded as party which was otherwise a necessary party since the vehicle was not within warranty period".

10. So in the above said application moved by opposite party No.2, it is admitted that engine oil was never changed by it nor it charged any money for change of engine oil. Ex.C5 to Ex.C7 is invoice dated 22.11.2011 issued by opposite party No.2 at the time of first repair to the car in question. From the perusal of Ex.C7 i.e third page of the retail invoice it is clear that Rs.1102/- were charged on account of engine oil. On the one hand, opposite party No.2 is alleging in the above said application that engine oil was not changed by it nor any amount was charged for the same but from the perusal of the above said retail invoice dated 22.11.2011 it is evident that infact opposite party No.2 has charged for change of engine oil. So from the admission contained in the above said application moved by opposite party No.2 itself, it is evident that engine oil was not changed by it and without changing the engine oil, it charged for the same vide retail invoice dated 22.11.2011 Ex.C5 to Ex.C7. So it constitute deficiency in service and also unfair trade practice. So engine must have seized due to non changing of engine oil by opposite party No.2 while carrying out repair on 22.11.2011. The car might have run to some extent with the remaining engine oil. In the above circumstances, we have no hesitation to hold that engine of the car of the complainant seized and caused damaged to it due to non filling or changing of the engine oil by opposite party No.2.

11. In view of above discussion, the present complaint is accepted against opposite party No.2 and opposite party No.2 is directed to fully repair the car of the complainant without charging any amount from it within one month from the date of receipt of copy of this order. The complainants are also awarded Rs.20,000/- as compensation from opposite party No.2 and further Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

17.04.2015 Member Member President