DOF.05.02.2010
DOO.28.09.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.K.P.Preethakumari: Member
Smt.M.D.Jessy : Member
Dated this, the 28th day of September 2011
CC.44 /2011
A.P.M.Alippi,
Shabana Villa,
Near Juma Masjid,
P.o.Kottayam Malabar,
Kuthuparamba Complainant
(Rep. by Adv.N.Vinod Kumar)
1.Har Auto Pvt.Ltd.
Har Avenue,
Kannothumchal, Chovva.P.O.
Kannur 670 006
(Rep. by Adv.P.C.Mukundan)
2.M/s.Sundaram Finance Ltd.,
Thalassery Branch Office,
9/478A 1st floor,
Empee Tower,
TC Road Near railway over Bridge,
Thalassery
(Rep. by Adv.P.P.Jayarajan) Opposite parties
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under section12 of consumer protection Act for an order directing the 1st opposite party to rectify the defects in the glass channel of the front door of the car and to conduct proper service of the car and 2nd opposite party to return an amount of `125 and to a return the original keys of the car. It is also prayed to direct both the opposite parties to pay an amount of `10,000 as compensation for their deficiency in service with cost of the proceedings.
The case of the complainant in brief is as follows: Complainant purchased a Maruthi 800 through 1st opposite party dealer of 2nd opposite party on 31.1.09. A hypothecation agreement also entered with 2nd opposite party. He had paid the entire amount of installment to close the loan on 22.11.10.2nd opposite party then demanded `250 towards bank charge in respect of one dishonoured cheque and complainant paid it. On enquiry by the complainant the bank has debited only `125 towards cheque return charge. 2nd opposite party charged `125 excess illegally. Moreover, the key handed over by 2nd opposite party is not fit to start the vehicle since it was not the original key. It was complained but original key was not handed over. Complainant issued lawyer notice on 26.11.10 to return `125 original key, post dated cheque, no objection certificate and to furnish statement of account. 2nd opposite party furnished statement of account, balance post dated cheque and no objection certificate but did not return the original key and `125 and also sent reply with false allegations. On 3.9.2010 when car was given for service 1st opposite party failed to rectify the defect in glass channel of the front door of the car though 1st opposite party received `4240 from the complainant. The defects in the glass door persisted even after service and the functioning of the car is also not satisfactory despite the service conducted within the warranty period. As per the terms of warranty if any defect is found within the warranty period opposite parties are obliged to repair or replace any part found to be defective with new part at no cost. He also sent lawyer notice to 1st opposite party on 1.12.10 calling upon to rectify defect in the glass channel of front door and to return the original key of the car. Lawyer notice sent to 2nd opposite party also but failed to comply the demands. The opposite parties are liable to rectify the defects or to replace the vehicle with a new one. Hence this complaint.
Pursuant to the notice from the Forum opposite parties entered appearance and filed version. The content of version of 1st opposite party in brief is as follows:
On 3.9.2010 complainant’s car was given for service to this opposite party’s service center and satisfactorily repaired. When the complainant approached he was explained the details of defect and he was convinced and admitted. The default was caused solely due to the mishandling of the complainant. Complainant already availed three free services. There is no short coming in the service rendered by this opposite party. This opposite party is not liable for the non availability of original key. This opposite party contacted the complainant on several times to bring keys in to the showroom of opposite party to tune the key. But he never visited the office of 1st opposite party thereafter. The complaint lacks merits or sustenance. Hence to dismiss the complaint.
2nd opposite party filed version contending as follows: complainant availed loan for an amount of `1, 05,000 on 31.1.2009 for purchasing a car. He has agreed to repay the amount in 47 installments with interest. A new car is having a pair of key and one such key was deposited with 2nd opposite party at the time of executing the agreement. The cheque bearing No. 197852 dated 3.11.2010 drawn on co.op. Bank issued by complainant towards the installments had been dishonoured. As per the terms of the agreement 2nd opposite party is entitled to levy a minimum charge of `250 towards dishonouring charges. 2nd opposite party collected this minimum amount from complainant on 27.11.2010. The entire documents and the key of the car which was deposited with 2nd opposite party were handed over to complainant. It is falsehood to say that 2nd opposite party is keeping the original key. Thus has never been any deficiency on the part of this opposite party. Hence to dismiss the complaint.
Upon the above complaint the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
parties?
2. Whether the complainant is entitled for the relief as prayed in
the complaint?
3. Relief and cost.
The evidence consists of oral testimony of PW1,and documentary evidence Exts.A1 to A6 and Ext.B1.
Issue Nos.1 to 3
Admittedly complainant availed loan from 2nd opposite party for the purpose of purchasing the car. It was agreed to repay the amount by inslaments. Complainant paid entire amount on 22.11.2011 and closed the loan account. The entire document with the 2nd opposite party was returned. But complainant alleges that 2nd opposite party demanded to pay `250 towards bank charges in respect of dishonoured cheque. He under stood on enquiry that the bank debited only `125 towards cheque return charge and thus 2nd opposite party received an excess amount of `125. The further allegation of the complainant is that the key that had been handed over by 2nd opposite party could not start the car. The key given was not fit enough to start the car which makes clear that opposite party has given only a duplicate key and not the original. He further alleges that he had approached 2nd opposite party but he failed to hand over the original key. So he sent lawyer notice on 26.11.10 to return `125 received illegally and to return the original key, post dated cheque, no objection certificate and to furnish statement of account. Thus 2nd opposite party furnished statement of account, balance post dated cheque and no objection certificate but did not return the original key and refund `125. In reply notice opposite party alleged false and frivolous contentious. The complainant further alleged that the 1st opposite party failed to carryout proper service of the car and rectify the defect in the glass channel of the front door, though received `4,240. The defect still persists. Service also was not satisfactory. Opposite parties are bound to replace any part found to be defective with new part free of cost. He sent lawyer notice to opposite parties on 1.12.2010 to rectify the defect and to return original key. 1st opposite party did not respond to the notice. Complainant again sent notice to 2nd opposite party to return `125 and the original key with `10,000 towards compensation. But 2nd opposite party filed to comply the demands.
1st opposite party contended that service of the car was done satisfactorily and complainant was explained the defects and he was convinced. The defect was solely due to the mishandling of the complainant. Complainant already availed three free services The contention of 2nd opposite party is that the cheque dated 3.11.2010 had been dishonoured hence 2nd opposite party collected minimum amount of `250 towards dishnouring charges as per the terms of agreement. 2nd opposite party further contended that it is false to say that the 2nd opposite party is holding the original. The key that was entrusted with the 2nd opposite party was handed over with the complainant.
The complainant/PW1 adduced evidence by way of affidavit in tune with his pleadings. He stated that the corporation bank charged only `125 towards dishonouring charge and hence the charge excess of `125 the 2nd opposite party has taken (`250) is illegal. He understood that the key handed over by 2nd opposite party was duplicate key and not original since it could start the vehicle car. He has also stated that on 3.9.2010 he entrusted the car with 1st opposite party for service and to rectify the defect of front door. Though 1st opposite party received `4,240 defect of the front door was not cured. Ext.A1 dt. 26.10.11 is the legal notice first sent by the complainant. Complainant has specifically stated that on enquiry with the Corporation Bank, Thalassery branch it was understood that the bank has debited only `125 towards cheque return charges. Complainant in his cross examination admitted that Ext.B1 is the agreement. He has also answered to another question that “agreement {]Im-cT sN¡nsâ ASn-Øm\¯nemWv tem¬ X¶-Xp. Rm³ sImSp¯ sN¡v Corporation Banksâbm-Wv. Corporation Bank 125 cq] NmÀPv sNbvXn-«p-f-f-Xp.-I-T-]\nbpsS _m¦v NmÀPv sNbvX-sX-{X-sb¶p F\n-¡-dn-bn-Ã. sN¡v aS-§n-bXp _m¦n ss]k-bn-Ã-¯-Xn-\m-em-Wv. . The contention taken by 2nd opposite party is that `250 had been charged in accordance with the terms of the agreement. Ex.B1 is the agreement. Article 2-10© reads: “ the Borrower shall be liable to pay a flat charge as stated in the first schedule incase of dishnonour of the Post dated cheques on the first presentation”. It is an admitted fact that the cheque is dishonoured since there was no sufficient amount in the account. If that be so 2nd opposite party is entitled for an amount as is stipulated under article 2-10( c ) of Ext.B1 agreement. The first schedule to Ext.B1 has specifically shown the cheque dishnouring charges “so levied by lender’s bankers subject to a Minimum of `250 for each dishonour”. In the present case opposite party has charged minimum charge `250. Moreover, complainant was not able to say what the amount was charged by the bank of the companies. Hence it can be seen that there s no substance in contending that `125 has been illegally charged by 2nd opposite party.
The Second point to be considered is whether 2nd opposite party has retained the original key with them giving duplicate key to complainant? Affidavit evidence of complainant stated that though 2nd opposite party has given one key after closing the loan the car could not be started by using that key and thus understood that it was only a duplicate key. PW1/complainant deposed in cross examination that ‘ company F\n¡v Hcp key am{X-amWv X¶n-«p-f-f-Xp. Rm³c-mT FXr-I-£n-bpsS ]¡Â key H¶p-T-sIm-Sp-¯n-«n-Ã. OP1, OP2 hn\p sImSp¯ key tFXmsW-¶p-F-\n-¡-dn-bn-Ã. . Dealer 2nd opposite party¡v sImSp¯ key BWv F\n¡v X¶Xp F¶p ]d-ªm icn-b-Ã. Imc-WT B Key D]-tbm-Kn-¡p-T-t¼mÄ start BIp-¶n-Ã. Cu Key sImp-Xs¶ Door Xpd-¡m-\pT Un¡n Xpd-¡m-\p-T-km-[n-¨n-cp-¶p.-]s£ Engine start B¡m³ km[n-¨n-Ã. . 2nd opposite party F\n¡p X¶ key Hcn-¡-epT D]-tbm-Kn-¨n-«n-Ãm¯ keyBWv. 25000In.-ao-äÀ B ka-bT hn HmSn-¨n-«p-m-hp-T. \nc-h[n XhW Un¡n, petrol cabin F¶nh Db-tbm-Kn-¨n-«p-m-hp-T. I¼-\n-sIm-Sp¯ key BtWm 2nd opposite partyX¶Xp F\n¡v ]d-bm³ Ign-ªn-Ã. The evidence brought out in the cross examinants makes it clear that complainant was not aware whether the key given by 2nd opposite party is the key that was given by 1st opposite party to 2nd opposite party. 2nd opposite party is liable to return to complainant, the same key that had been handed over to 2nd opposite party at the time of constituting the agreement. It is seen that door and Dicky can be opened with the key. Under such a situation only an expert can say what is the real defect for the key and why it is not fit to start the vehicle. 1st opposite party contended in version that there may be chance for rust and 1st opposite party has contacted the complainant on several times to bring key into showroom of opposite party to tune the key. But complainant never visited the office of the 1st opposite party. It is true that complainant denied this contention on the ground that it is not true. But it is important to note that even after filing the version initiative could not be seen on the part of complainant to get it be tuned by 1st opposite party.
Anyhow complainant did not adduce evidence except his oral testimony in order to prove that he could not start the car with the key. Since it is denied by opposite parties it has to be proved by complainant by adducing cogent evidence. In ordinary course there is no need to keep the key with 2nd opposite party. No such intention also brought out or alleged. Anyhow, in the absence of cogent evidence that the key returned by the 2nd opposite party to complainant is not the second key of the car it is difficult to come into conclusion that there is deficiency in service on the part of opposite parties.
Another important allegation of the complainant is that 1st opposite party failed to repair the car when the car was given for service on 3.9.10, though they have received `4,240. It can be seen complainant sent legal notice to rectify the defect on 1.12.10 i.e. After two months. Complainant alleged that on 26.11.10 he had sent lawyer notice to opposite parties 1 and 2. But the lawyer notice dated 26.11.10 contains nothing about the repair. Moreover the issue of payment of excess amount and key arose only after 22.11.10 when the loan was closed, whereas, the issue of repair arosed on 3.9.10. But complainant sent first lawyer notice not up on the issue that arose first but upon another issue that arosed later more than 2 ½ months. The issue of repair arosed on 3.9.10. But complainant sent lawyer notice upon this issue on 1.12.10. The issue of excess amount towards cheque returns charge and that of key arosed only after 22.11.10. It is quite evident that the first issue got life only after sending lawyer notice calling upon the remedy for subsequently arosed issues. The prevailing circumstances give birth to a genuine doubt with respect to the question what prevented the complainant from taking up this issue earlier before arising the issues subsequently. It is also interesting to note that the issues subsequently arosed within days. That is with respect to the subject matter of defect of the front door is more serious practically speaking Ext.A3 dated 1.12.10 specifically stated that due to the defect in the glass channel, the front door glass shutter cannot be opened and shut properly. If that was the condition of the car that was a case which require repair as soon as possible If the door shutter cannot be opened and shut that is an important issue which cannot be postponed. But it took relatively much time to be taken up. The amount of expense if considered the second item is comparatively much less than that of first item of issue. The expense even to get the key tuned for operation required is only nominal much less than the repair works. Thus the very presentation of the facts itself create doubt with respect to the genuiness of the allegation.
Complainant deposed in his cross examination that “ warranty condition hmbn¨p a\-Ên-em-¡n-bn-cp-¶p. Bb-Xp-{]-Im-cT 3 free service BWv A\p-h-Zn-¨n-cp-¶-Xp. ]cm-Xn¡v ap¼p 3 free serviceDT D]-tbm-Kn-¨n-cp-¶p.. 3 free service \pti-jT service\p sImp-t]m-b-t¸m-gmWp Ext.A6X¶Xp . Warranty condition tImSXn a¼msI lmP-cm-¡m-¯Xp A\-ym-b-amb t\«T Dm-¡m-\m-sW-¶p-]-d-ªm icn-b-Ã.. Complainant alleged that the service of the car conducted within the warranty period. What is submitted by the complainant is that “as per the terms and condition of the warranty, if any defect is found within the warranty terms, opposite parties are obliged to repair or replace any part found to be defective with a new part at no cost”. But it brought out in cross examination that “3 free service\p tijT service\p sImp-t]m-b-Xn-\p-ti-j-amWv Ext.A6X¶Xp . As per the deposition it is seen Ext.A6 bill is issued after guarantee period. It is the complainant who has to prove that the repair bill Ext.A6 has been issued within the warranty period. It can be proved easily by complainant by merely producing warranty condition. But complainant did not produce the warranty condition. As per the submission complainant is entitled for free service if it is found defect occurred during the warranty period. Thus if it is not proved the repair was done within the warranty period it is not possible to castigate opposite parties upon deficiency in service. The evidence of complaint itself proved that Ext.A6 issued after the three free services.
In our view having regard to the facts and circumstances of the case including available evidence we hold that complainant is miserably failed to substantiate his case with cogent and clear evidence. Hence the issues 1 to 3 are found against complainant.
In the result, the complaint is dismissed. No order as to costs.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the complainant
A1. Copy of the lawyer notice sent to OP
A2 & 4. Postal AD cards
A3. & 5.Repy notice sent by OPs
A6. Job card retail cash memo issued by OP.
Exhibits for the opposite party:
B1.Loan agreement
Witness examined for the complainant
PW1.compinint
Witness examined for the opposite party: Nil
/forwarded by order/
Senior Superintendent
Consumer Dispute Redressal Forum, Kannur.
