Date : 12/12/2012

O  R  A  L    O  R  D  E  R 

Per Mr.K.B.Gawali, Hon`ble Member.

1.       The appellant Shri.Harish Shamlal Milwani who was the original complainant ( herein after termed as “complainant”)  has filed this appeal challenging the judgment and order dated 03/06/2008  passed by the Dist. Forum, Jalgaon in complaint bearing CC.No. 586/2007. The respondent No. 1 is the Hyundai Motor India Ltd manufacturing company  who was opponent No. 1, whereas respondent No. 2 and 3 are the authorized dealers of the respondent No. 1 company who were original opponent No. 2 and 3.

2.       The case of the complainant in a nutshell is that he had purchased “Santro Zing XL Car” bearing No. MH-19-AE-5868  on 04/04/2007 from the respondent No. 2 and hence he is a consumer “ of the respondent No. 1 and 3”. That the respondent No. 2 had supplied  to him printed manual and service booklet along with free service coupons at the time of the delivery of the car. That the respondent No. 2 had also informed that for his convenience  he could get the schedule maintenance and free service of the car  by  the respondent No. 3 being local dealer at Jalgaon, where the complainant  has his place of  residence. Accordingly  on 04/06/2007 he approached to the respondent No. 3 for servicing and schedule maintenance of his car  but he flatly    refused to carry out the free servicing and maintenance on the ground that the car was not sold by him but by the respondent No. 2. That due to illegal refusal by the respondent No. 3 he made telephonic complaint to respondent No. 1 through the person namely “Shiwani” on toll free No. 1-6380586 and was also reminded  on 04/07/2007 on the said number when the other person namely “Neha” was present. However, no action was taken by     respondent No. 1 and hence he issued legal notice dated 11/07/2007 by RPAD to all the respondents No. 1 to 3,  claiming arrangement of maintenance of service of his car.  However, inspite of the said notice no steps were taken by the respondents and  hence he filed complaint to the Dist.  Forum seeking direction to the respondent No. 1 to 3 to pay him jointly and severally the damages worth of Rs 50,000/- towards mental and physical harassment and Rs 5000/- towards cost of the complaint.

3.       The respondent No. 1 and respondent No. 3 appeared before the Dist. Forum and resisted the claim by way of their written version. The respondent No. 2 though served did not remain present and hence ex-parte order was passed by the Dist. Forum against him. The respondent No. 1 submitted that complainant had never approached to the respondent for the maintenance and servicing of the car. It was also submitted that the respondent No. 3 vide his letter dated 21/08/2007 had informed to the complainant for bringing his car for servicing but the complainant did not take his car to the respondent. It was therefore contended that the allegation about deficiency in service against the respondent  No. 1 to 3 is false and baseless and complaint be dismissed.

4.       The respondent No. 3 also submitted that the complainant had never approached to him for servicing of his car and therefore there was no question of  refusal of the  said servicing of the car. It was contended that the respondent No. 3 is the dealer of the respondent No. 1 and for maintenance/servicing work of the company’s manufactured car, the dealer receives charges from the company i.e. respondent No. 1 hence, there was no reason to refuse the said work and get financial loss in his business.  The respondent No. 3 thus contended that there is no deficiency in service on his part and hence complaint being frivolous be dismissed.

5.       The Dist. Forum on the basis of material on record and also hearing the parties  dismissed the complaint on the ground that the complainant did not produce any documents in support of his claim.

6.       Dissatisfied and discontented by the said judgment and order of the Dist. Forum the present appeal is  filed in this Commission by the original complainant. The appeal was registered and notices were served to the respondent No. 3 and by way of news paper publication of notice to the respondent No. 1 and 2. The appeal was finally heard  on 03/10/2012. Adv. Shri.Vinod Khairnar was present for appellant/complainant and filed written notes of argument. None was present for the respondent No. 1 and 2  although Adv. Shri.S.S.Ladda  had appeared for respondent No. 3 on earlier dates.

7.       We have perused the record placed before us, along with  written notes of argument as filed by the learned counsel Adv.Vivek Khairnar appearing for the appellant. The learned counsel submitted that appellant had approached to respondent No. 3 and continuously  requested to carry out the maintenance and free servicing as it was binding on him, being the  dealer of respondent No. 1 company. However, he flately  refused the maintenance and servicing. The learned counsel further contended that the Dist. Forum below has failed  to appreciate the facts of the complaint and also  available record  produced in support of the same. He contended that on  refusal of the said servicing by the respondent No. 3, the complaint was made on toll free on 12/06/2007  he had talked with  the person “Shivani” and when he remanded on 04/07/2007 on same number he had a talk with the person namely “Neha” but there was no response from the respondent . He had therefore issued legal notice dated 11/07/2007 to the respondent No. 1 to 3 but none of the respondents responded to the said notice.

8.       The learned counsel also contended that the Dist. Forum below has wrongly observed that, the appellant/complainant did not produce evidence of job card or any other documents to show that he approached to the respondent No. 3. His contention is that unless the vehicle was accepted and repair or servicing was carried   out the job card is not prepared. In the present case, the said car was refused tobe taken for servicing by the respondent No. 3 and hence there was no preparation  of job card. He further alleged  that letter dated 21/08/2007 is forged as it was  sent  on wrong address of the complainant i.e. R/o. Morgaon Tq.Raver Dist. Jalgaon.  The said address is nowhere given in any of the documents of the said car.  The learned counsel Shri.Khairnar thus contended that the Dist. Forum has not properly considered the facts and evidence produced by the complainant and has erroneously passed the impugned judgment and order which requires to be quashed and set aside.

9.       We have perused the material before us as well as the written notes of argument as submitted by the learned counsel for the appellant. The Dist. Forum in it’s impugned judgment and order has held that, the complainant is the consumer of the respondent No. 1 to 3. However, Forum dismissed the complaint on the ground that, non submission of documentary evidence such as job card or any other documents in support of the claim made in the complaint.

10.     When we speak about the documentary evidence we have to see what type of documentary evidence should have been  submitted to support the allegation of the complainant. That the respondent No. 3 refused to carry out the schedule maintenance of servicing of the said car. As contended by the learned counsel for the appellant the evidence of  job card can not be expected  because the job card is prepared only when certain maintenance  or servicing is done. In the instant case, the allegation against the respondent No. 3 is that, he had  refused to do such work pertaining to the said car and hence we can not accept  view of the Dist. Forum about submission job card as documentary evidence to prove the refusal of doing maintenance work. Secondly, as there is no case of the complainant that he had got the said work done from elsewhere. Therefore, it was not proper on the part of  the Dist. Forum below to expect the documents of job card.

11.     Now, we have to verify the other evidence available on record which could help to prove the allegations of the complainant that the respondent No. 3 did not provide him services for which  he was under obligation being the dealer of the respondent No. 1. The complainant after said refusal to carry out the maintenance of servicing as on 04/08/2007 had made  complaint to the respondent No. 4 on toll free number where  he had a contact with the operator Smt. “Shivani” and also remanded on 04/07/2007  when there was another person  on the said phone number namely “Neha”. This contention of the complainant that he had made telephonic complaint to the respondent No. 1 which has not been denied either by the respondent NO. 1 and No. 3 and hence we have to accept the same.

12.     The question is therefore whether the action was taken by the respondent No. 1 and 3 regarding the said complaint. The reply to  this question has tobe given in  negative because there is no proof to  show that any action was taken by both the respondents in response to the said telephonic complaint. It is only in reply to the legal notice dated 11/07/2007 given  by the complainant the respondent No. 1 “interalia”  has contended that the respondent No. 3 vide letter dated 21/08/2007 written to the complainant expressing his clear interest in providing requisite service to the complainant. However, the truthfulness of the said letter appears tobe doubtful as also contended by the counsel for two reasons ---- (I)  ( The address given on the said letter is as Morgaon Tq.Rawer Dist. Jalgaon however, the complainant has given his address in all his relevant documents  as R/o. of A.G. – 621, Shamanagar Shirsoli at post Jalgaon  and (II). Secondly the  respondent No. 3 has not made a mention of   this letter in the written version dated 26/08/2007. Hence inference    can be drawn that the letter dated 21/08/2007 is not genuine  but is an attempt  to prove that there was no deficiency in service on the part of respondent No. 3, ultimately on that part of respondent No. 1.

13.     In the aforesaid facts and circumstances it is very well  proved that the respondent No. 3 has refused to provide schedule servicing to  the complainant. Therefore it can be said that the respondent No. 3 has committed deficiency in service and so the respondent No. 1    being, principle  of respondent No. 3 i.e. agent. The respondent No. 2 can not be held responsible  for the alleged deficiency and therefore he is discharged from the liability.

14.     We have now to decide   the extent of compensation tobe paid to the complainant. The complainant  as per the complaint has claimed  the compensation only towards mental harassment and cost of the complaint. However, the quantum of compensation and also the cost as claimed are not  proper and  justified. Considering the nature of the complaint and  resultant   mental as well as physical harassment, we are of the view that Rs 10,000/- would be the proper compensation towards mental/physical harassment and Rs 2000/- as cost of the complaint. Hence we pass the following order.

O   R    D    E    R

1.       Appeal is  partly allowed.

2.       The impugned judgment and order passed by the Dist. Forum is

          hereby quashed and set aside.

3.       The respondent No. 1 and 3 are directed to pay to the complainant jointly and severally a compensation of Rs 10,000/-         towards the mental and physical harassment and Rs 2000/- as        cost of the complaint.

4.       Copies of the judgment and order be sent to both the parties.