Date of Filing:18.11.2008<br /> Date of Order:19.09.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 19TH DAY OF SEPTEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 2487 OF 2008<br /> <br /> Suresh Raj A.M.<br /> S/o Munivenkatappa, <br /> R/at No. 88, Sai Nilaya,<br /> Near SNS Arcade, HAL Airport Road,<br /> Bangalore 560 017 Complainant<br /> <br /> V/S<br /> <br /> 1. Honda White Field Motors (P) Ltd.<br /> No. 116, B. Narayanapura<br /> Dooravani Nagar, White Field Road<br /> Bangalore-560016<br /> Represented by its Managing Director<br /> <br /> 2. Mr. B.B. Zareer<br /> General Manager<br /> <br /> 3. Mr. Ramdas M.<br /> Sales Manager <br /> <br /> Honda White Field Motors (P) Ltd.<br /> No. 116, B. Narayanapura<br /> Dooravani Nagar, White Field Road<br /> Bangalore-560016 Opposite Parties<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.<br /> The facts of the case are that the complainant purchased car having branded with “HONDA CRV” from opposite party No.1 for a sum of Rs. 18,50,000/- exclusively for personal family use. The invoice dated 18/08/2006 is produced. The complainant availed loan from ICICI Bank and same was arranged by the financial institution for financial assistance and the vehicle has been fully insured with the insurance company. The vehicle has been duly registered with the State Transport Office Bangalore with registration No. KA-03 MF-8143. For regular service and vehicle checkup the complainant left the vehicle with the opposite party No.1 on 11/07/2008 at the showroom attached to the service center at Dooravani Nagar. The respondents have issued service check sheet and instructed the complainant to take the vehicle on the same day evening. However, the complainant was engaged on account of this unscheduled engagement the respondent company through its authorised person delivered the vehicle at complainant’s place on 11/07/2008 after service. The complainant drew the vehicle on the same day night, it was surprise that a major defects were unattended by respondent company. The defects found in the vehicle are petrol leveling system was not functioning, brake system not functioning, wheel alignment and general conditions were found as it was earlier. The complainant immediately informed the respondent company. The opposite party No.1 and 2 informed the complainant that the company authorised driver/person would come near the place of complainant and would take the vehicle on 12/07/2008. The complainant after verification and confirmation with the respondent company instructed the authorised person to take the vehicle to the service center so as to rectify the defects. Immediately, on taking the vehicle the driver in charge drove the vehicle in rash and negligent manner and dashed against house compound wall resulted in extensive damage to the total rear portion of the vehicle. The same was informed to the company. On taking the vehicle to the service center the administrative head GM Service, Sales Manager, Account Manager, Manager inspected the vehicle and all are of the opinion that vehicle is totally damaged and cannot be repaired or put into use again. The opposite party authorities have assured and reassured that a new vehicle would be replaced by assessing the value as well as by payment of the difference amount. But the opposite party company on one or the other person postponed and prolonged the matter for no justifiable reason. The complainant approached the opposite party company personally in the month of October-2008 to the dismay of complainant, the opposite party company insisted that the very same vehicle will be repaired free of cost and same would be delivered. The complainant did not agree for the proposal. The complainant caused legal notice to the opposite party and called upon to replace the vehicle immediately so as to honour the promise made and obligation. Hence, the complainant prayed to direct the opposite parties to replace the vehicle Honda CRV bearing No. KA-03 MF 8143 with brand new vehicle or to make alternative replacement. <br /> 2. Notice was issued to opposite parties through RPAD. Opposite parties put in their appearance through Advocate and defence version filed stating that the Honda CRV vehicle bearing registration No. KA-03 MF-8143 belonging to the complainant was picked up for repairs and the opposite parties carried out all the repairs to the satisfaction of the complainant. The complainant again called up the opposite parties and informed about a few additional issues with regard to the above vehicle were yet to be attended and requested to again pick up the said vehicle upon which the driver associated with the opposite parties was deputed and while reversing the car dashed the rear portion of the car to the compound wall and caused minor damages to the rear portion of the car. The opposite parties under taken to repair the damages caused to the vehicle, but the complainant was abusive and quarreled with the Driver with about 15-20 anti-social elements and by coercion and forcefully threatened all the employees of the opposite parties and took away the Demo car bearing registration No. KA-03 MG-7099 even though the opposite parties have taken up the responsibility of repairing the minor damages caused to the rear portion of the vehicle inadvertently by their by their Driver when he was reversing the car. Customer assumes responsibility of any damage caused to their vehicles when the vehicle is picked up and dropped off after service, as the same is only gratuitous service given by the opposite parties to their customers. The opposite parties have submitted that the rear door and glass with new ones imported from Japan, keeping the customers goodwill in mind. The complainant has not come and he did not take the delivery of the car and he refused to take the car until the minor scratches that already existed on the car were repainted, left with no option the opposite parties have totally painted the car and made it look like new one and even though the car was repaired, fully painted and polished the complainant did not come and take the delivery of the car. The complainant promising to take delivery of the car and postponing the same on one pretext or the other and suppressing all his misdeeds, has suddenly filed the complaint by making false allegations that the opposite parties have stated that they could not repair the vehicle and that the opposite parties have assured and reassured that a new vehicle would be replaced by assessing the value as well as by payment of difference amount. The complainant never come to take delivery of the vehicle and he was always bulling and threatening the opposite parties of dare consequences and taking advantage of his political connection and was only demanding for a new car as a replacement by giving unreasonable baseless and in flimsy grounds that the Driver of the opposite parties has damaged the rear portion of the vehicle when he was reversing the vehicle. The complainant is making illegal claims for replacement of car. There is no deficiency of service rendered by the opposite parties and all the damages have been rectified and hence there is no deficiency of services on the part of the opposite parties and prayed to dismiss the complaint. <br /> 3. Affidavit evidence of both the parties filed. Arguments are heard.<br /> 4. The points for consideration are:<br /> 1. Whether there was deficiency of service on the part of opposite parties?<br /> 2. Whether the complainant is entitled for replacement of vehicle?<br /> 5. It is admitted case of the complainant that he has purchased Honda CRV vehicle for Rs. 18,50,000/- from opposite party on 18.08.2006 and vehicle was insured with the insurance company. The vehicle was left with the opposite party for regular service and checkup on 11.07.2008. He took the vehicle on the same day night and he found that defects were unattended by the opposite party company. He immediately informed the opposite party, and the opposite party made arrangements to take back the vehicle and to rectify the defects. On 12.07.2008 the authorized person of the opposite party i.e. driver came to the residence of complainant and took the key of the vehicle from the complainant and while driving the vehicle he dashed against the compound wall which resulted damage to the rear portion of the vehicle. The complainant informed the matter to the opposite party. Manager inspected the vehicle. The authorities assured that new vehicle would be replaced. Complainant made demand for new vehicle. But the opposite party company insisted that same vehicle will be repaired free of cost and would be delivered to the complainant. The complainant did not agree for the said proposal. Hence, the complainant was forced to file the complaint. By going through entire complaint allegations it is very clear that the complainant has no grievances or whatsoever in respect of manufacturing defect in question. Admittedly, the vehicle was purchased on 18.08.2006. Complainant has used the vehicle for 2 years and as a matter of regular service and checkup he had left the vehicle with the opposite party company on 11.07.2008 and took the delivery on the same day and found that the company had not attended some problems of the vehicle and therefore, he again called the company and informed the matter. The driver of the company came on 12.07.2008 to the place of complainant and while taking the vehicle to the service centre he dashed the vehicle to the compound wall and thereby caused damage. So under these circumstances, the only remedy available to the complainant is to put up the claim before the insurance company since the vehicle had been insured. The second option for the complainant is to claim damages or compensation against the opposite party company for the damage caused to the vehicle by the driver of the opposite party company. The opposite party company will be vicariously liable for the act or omission done by the servant of the company. The driver of the opposite party company admittedly drew the vehicle in a negligent manner and dashed to the compound wall and thereby damage to vehicle had been caused. For this responsibility of the opposite party company is to see that the vehicle is repaired free of cost to the satisfaction of the complainant and to deliver the same vehicle for the use of the complainant. The opposite party company had given demo car bearing No. KA 03 MG 7099 to the complainant as matter of practice and good gesture since the car of the complainant was left with the opposite party for repairs. It is admitted by the learned counsel for the opposite party that the demo car is still with the complainant and the complainant has to return that car and take back his car which is ready after repairs and painting etc. The opposite party company has also come forward that the vehicle in question had been repaired at the cost of the opposite party company. The opposite party company is not at all claiming the repair charges or labour charges from the complainant. So under these circumstances there is no question of deficiency of service on the part of opposite party. The negligent driving of the driver of the opposite party company while taking the car to the servicing does not amount to deficiency of service on the part of opposite party. For causing accident and claiming any damages is different issue. The civil court has jurisdiction to decide that issue since there will be a tortuous liability on the opposite party. It is up to the complainant to file a civil suit to claim damages against opposite party company for causing accident and damaging the vehicle. The consumer forum will not be having jurisdiction to decide that liability. Admittedly, there are absolutely no allegations of manufacturing defect in the vehicle. The complainant having used the vehicle for two years without any grievance and he had left the vehicle for regular checkup and servicing. Under these circumstances unfortunate incident has taken place and in the accident some damage has been caused to the vehicle. So under these circumstances the opposite party company cannot be directed to give a new vehicle to the complainant. The complainant is very much relying upon the letter given by the officials of the opposite party company on 12.07.2008. In the letter it has been stated that they will take entire responsibility of the replacement of the car with authorization from MD as per the expectation and requirement. Alternatively, for traveling purpose another CRV is provided by the company and expenses for the same will be borne entirely by the company and they have stated in the letter they are bound to bear the expenses and damages and issue will be resolved completely on or before 17.07.2008 and they have requested time till the MD returned and on his return the issue will be resolved and company will take full responsibility of resolving the issue completely as per the expectation and sought co-operation of the complainant. By this letter the complainant cannot claim the replacement of new car. The GM – Service, Sales Manager and Accounts Manager have signed on this letter. Ultimately, they have stated that the Managing Director of the company has to settle the issue and requested time till the MD has returned. Therefore, by this letter the complainant wants to take benefit and seeking replacement of vehicle. The opposite party in the version submitted that complainant threatened the opposite party of dare consequences and by taking advantage of the political connections taken the demo car. Whatever may be the matter on the facts and circumstances of the case the question of replacement of vehicle does not arise in this case since, the vehicle had been used by the complainant for two years without any grievance and he has not made any allegation of manufacturing defect in the vehicle. Therefore, there is no responsibility or obligation on the opposite party company to replace the vehicle. The only relief that could be given to the complainant is that the opposite party should repair the vehicle of the complainant free of cost including spare parts and labour and deliver the said vehicle to the complainant. The learned advocate for the opposite party submitted that the vehicle is ready for delivery and even it has been repainted by the company and company is not claiming any amount from the complainant and requested the forum to direct the complainant to take delivery of his vehicle and return demo car. This submission by the advocate for opposite party is just, fair and reasonable. The complainant shall take back his vehicle which is ready for delivery after the repairs and painting and return the demo car to the opposite party. If the complainant has got any grievance against the driver of the opposite party company who has caused the accident while reversing the car is entirely different issue. The Consumer Fora will not be having jurisdiction to decide that issue. So under these circumstances the complaint deserves to be dismissed with the above observations. In the result I proceed to pass the following:<br /> ORDER<br /> 6. The complaint is dismissed. No order as to costs.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> 8. Pronounced in the Open Forum on this 19TH DAY OF SEPTEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER