J U D G M E N T

1. Complainant’s case: On 30.09.2022 the complainant filed this complaint under section 35 of the Consumer Protection Act, 2019 for the alleged deficiency in service on the part of the respondent u/s 2(11)of the Act. And for no positive response from the concerned authorized service centre/workshop despite the complainant’s repeated request and reminder to its management for delivery of the car, no further progress of delivery of the car and thereby causing prolonged unwarranted mental and physical harassment and agony.

2. That, the complainant stated that she is a "Consumer" within the definition provided U/s2(7) oftheConsumerProtectionAct-2019.

3. That the opposite party No. 1 is Ita Ford Service, Rate Automobiles Pvt. Ltd, Workshop, (a unit of M/s Apang Rate Automobiles) Pvt Ltd., Model, Village, Naharlagun, Papum Pare District, Arunachal Pradesh, which is an authorized Dealer for Ford (sales and Service and Spares). And the opposite party No. 2, is the Manager of ITA FORDSERVICE.

4. That, the complainant is a consumer by virtue of the fact that she had availed service for repairing of her vehicle from Ita Ford Service (workshop) on 3^rdJune2019.

5. That, the complainant stated that the brief facts leading to filling of the present complaint is that the complainant had approached the workshop of the opposite party asserting that her vehicle was emitting Black smoke from her vehicle's silencer Pipe. The complainant was informed by the management that the EGR Valve (Exhaust Gas Recirculation) needed to be replaced for which the complainant made a payment of Rs.21,790/- (Rupees Twenty-one thousand seven hundred and ninety) only. Copy of the Paid Invoice dated3.06.2019 are annexed here to and marked as Annexure – I.

6. But even after the EGR Valve was changed the vehicle kept emitting Black Smoke. So, the Complainant again approached the workshop the next day, the management informed her that few parts of the vehicle were needed to be replaced, for which she again made a payment of Rs.5,250/- (Rupees Five Thousand two hundred and fifty) only on 21^st August2019.Copy of the Paid Invoice dated 21.08.2019 and repair order is annexed hereto and marked as Annexure   -II.

7. That, the emitting of Black smoke still persisted and no progress could be seen even after changing multiple parts of the vehicle. That, since no progress could be seen the complainant tried using the vehicle and many a times, she approached the workshop for finding solution to the emission of Black Smoke.

8. That, since the emission of Black smoke was increasing, she again visited the workshop, and she was handed a parts requisition slip amounting to approximately Rs.80,000/- (Rupees Eighty thousand) only and was asked to make an advance payment of Rs.30,000/- (Rupees Thirty Thousand) only for the parts needed to be ordered. Similarly, she transferred an amount of Rs.30,000/- (Rupees Thirty Thousand) only in the Account No. 3435101000422 on10/12/2020 belonging to M/s Apang Rate Automobiles and kept the vehicle in the workshop. Further, she was handed a parts of requisition slip amount dated 09.07.21. Copies of sum transferred on dated 10/12/2020 and parts of requisite slip is annexed and marked as Annexure –III (Series).

9. That, after   making   an   advance   payment   the   Complainant had   visited  the work shop many times but they always made excuse stating that the ordered parts haven’t arrived and it will take time and also requested her to come another day. Months passed and finally lockdown was imposed in the state.

10. That, after the lock down was removed and the complainant had a telephonic conversation with the Manager of the workshop namely (Narzaree Basumatary), he asked for 10 more days. After the expiry of 10 days, she again visited the workshop and inspected her vehicle, it was lying onside without any work being done. Then the complainant confronted the Manager face to face, and he replied that the parts were yet to arrive and asked for few more days. In the mean time, she was informed by an employee of the workshop that the complainant's vehicle parts were being replaced by the employees for another Blue Ford Figo, but the Manager denied on being alleged.

11. That, after another lockdown, when the complainant again visited the work shop, she could find no progress of work on her vehicle and found out that the Manager has changed but could not meet him.

12. That, thereafter the complainant couldn't personally visit the workshop as    her daughter got diagnosed with Cancer at Tomo Riba Institute of Health & Medical Science Hospital, Naharlagun. The complainant had requested the management of the work shop regarding the early delivery of the vehicle since she urgently needed vehicle due to her daughter's ailing condition. Meanwhile the complainant was compelled to engaged Taxi car since frequent and multiple tests had to be conducted and had to spent a lot of money. She was finally referred to Dr. Bhubaneshwar Borooah Cancer Institute, Guwahati. Copies of the Doctor's Medical prescription dated 10-08-2021areannexed here to and marked as Annexure-IV (Series).

13. That, while the complainant was in Guwahati, she has requested her daughter’s friend to follow up   with   the   workshop but as always   management of the workshop always brought up new excuses and repeatedly asked him to come another day. The complainant came back from Guwahati in the 1^st week of June 2022 after her daughter's surgery and had a conversation with the Manager of the work shop to which they again requested for another 10 days and assured her that her vehicle would be delivered.

14. That, exactly after 11 days when the complainant visited the workshop, the complainant saw the car lying without any work and many genuine parts of the vehicle missing. Upon seeing the car the complainant told the Manager to return Rs.30,000/- (Rupees Thirty Thousand) only which was paid as an advance and deliver the car as it was along with its genuine parts. The management again requested the complainant for another 10 days, and they assured her that no part was missing and that they had taken out the parts and kept it in safe place.

15. That, for EGR (Exhaust Gas Recirculation) Valve that needed to be replaced, the complainant made a payment of Rs.21,790/- (Rupees Twenty-one thousand seven hundred and ninety) only. That, in the same month of July 2022 when the complainant went for taking delivery of her vehicle, to her surprise she was handed another Parts requisition Slip amounting to Rs. 1,55,437/- (Rupees One lac fifty-five thousand four hundred and thirty-seven) only, to which the complainant denied to pay even a single penny more and requested to return the advance money which was transferred in the account of M/s Apang Rate Automobiles. A copy of Tax invoice slip amount dated 18.07.2022isannexedheretoandmarkedasAnnexure-V.

16. That, the parts of vehicle which was kept by the management were missing. Additionally, they provided the complainant the list of missing documents and parts of vehicle. That the said vehicle of the complainant is stilllying without any work done in the work shop of the opposite parties. A copy of list of missing documents and parts is annexed here to and marked as Annexure-VI.

17. That, because of the intentional and malicious action and inaction of the opposite party, the complainant had been deprived from getting legitimate right to refund of the advance money as well as the vehicle with its original genuine parts which has been used by the opposite party for their business gain without the consent and knowledge of the complainant and there by caused wrongful loss and mental agony to complainant.

18. That, the complainant had given the opposite party ample of times which is more than enough to return the advance money of Rs.30,000/- (Rupees Thirty Thousand) only. That, the complainant is the owner and has in possession of the said vehicle by an undertaking of the seller and purchaser for transfer of ownership of the said vehicle. Further, the complainant states as she was/is busy in providing medical treatment to her daughter as such could not transfer the ownership of the said vehicle in providing medical treatment to her daughter as such could not transfer the ownership of the said vehicle. Copies of Undertaking of the seller & the purchaser for Transfer of ownership of a vehicle dated 31.03.2016  are annexed here to and marked as Annexure-VII(Series).

19. That, the complainant therefore submits that she is entitled to compensation amounting to Rs. 24,00,000/- (Rupees Twenty-four Lakh) only which includes replacing the car with a new car or in the alternative reimburse the whole amount of rupees 4,00,000/- being the price of the vehicle and   payment of total Rs.57,040/- (Rupees Fifty-Seven Thousand Forty) only paid by the complainant to the opposite parties for repair of the vehicle.

20. That, the cause of action arose on 03.06.2019, when the vehicle was handed over to the opposite party for replacement of EGR (Exhaust Gas   Recirculation) Valve and simultaneously payment of Rs.21,790/-. On 21^stday of August the next visit of the complainant to the opposite party and payment of Rs.5,250/-, On10-12-2022 another visit and handing over vehicle for repair and simultaneously payment of Rs.30,000/-, on 9-7-2021 handing over of parts of requisition slip, within the month of July 2022 when the complainant went for taking delivery of her vehicle, and she was given parts of requisition slip amounting to Rs.1,55,437/- and on all other continuing date and dates within the kind jurisdiction of the Hon’ble Commission .

21. That, the Hon’ble Commission has territorial as well as pecuniary jurisdiction to entertain this complaint. That, the present complaint is being filed within the prescribed period as mentioned/enumerated under section 69 of the Act. That this petition is made bonafide and in the interest of justice.

22. Therefore, the complainant humbly prayed to get the following relieves from the Hon'ble Commission against the opposite parties. They are: For   an   order   directing   the   opposite   party   to compensate   the   complainant, for an order directing the respondent party to refund sum of Rs. 57,040/- paid by the complainant as repairing charges which includes advance payment, for an order directing the respondent party to compensate the complainant with an amount of Rs. 5,00,000/-for   deficiencies in service, for an order directing the respondent party to compensate the complainant with an amount of Rs. 13,50,000/- for causing unnecessary tremendous harassment, mental and physical agony to the complainant, for an order directing the respondent party to compensate the complainant with an amount of rs. 50,000/-for cost of hiring taxi for the treatment of her daughter, for an order directing the respondent party to pay an amount of rs. 43,000/-as the cost of litigation to the complainant. And for an order directing the respondent party to replace the car with a new car or in alternative reimburse the whole amount of rs. 4,00,000/- being the price of the vehicle.

23. Upon the notice and warrant, the Opposite parties appeared through their learned counsel Takam Sunil and contested the complaint by filing their written version on 28.07.23 under Section 38 (3)(a) of the Consumer Protection Act, 2019 stating that the Complaint is not maintainable in its present form as there is no cause action for filing the Complaint.

24. That the Complaint is devoid of any merit and such the Complaint to be dismissed with exemplary cost. That the Complaint filed by the Complainant is hit by principles of waiver, estoppel and acquiescence. That the Complaint is barred by the principle of caveat emptor. In the instant case the Complainant was made aware of her charges to be incurred for the services of the vehicle by the Respondent. Now, to allege that the charges are more for the servicing of the vehicle is not acceptable and tenable in view of the principle of caveat emptor.

25. The opposite parties denied that the Complainant is a consumer within the definition provided under Section 2(7) of the Consumer Protection Act, 2019. That the Complainant has misused the liberty of a consumer as envisaged under the Consumer Protection Act, 2019 in as much as she has filed this vexatious and frivolous complaint against the Answering Respondent on the pretext that she has availed services for repairing of her vehicle on 03/06/2019 with the Respondents.

26. That it is not denied that the Complainant had approached the workshop of the Answering Respondent asserting that her vehicle was emitting black smoke from her vehicle silencer's pipe. That the staff at the workshop of the Respondents inspected the vehicle and heard the grievance of the complainant, thereafter it was informed by the staff at the workshop of the Respondent that the EGR Valve needed to be replaced for which the complainant made a payment of Rs.21,790/- only. That the Answering Respondent was later informed by his staff in the workshop who inspected the vehicle that the vehicle in question was an old pre-owned vehicle with many problems, so even after the change of theEGR valve, the Complainant again came to the workshop with similar problem of black smoke emission. Situated thus, the servicing staff at the workshop informed the complainant that few parts of the vehicle like Control Rad Fan SPD, spacer battery, grommet stay and blade assy wipper were needed to be replaced. As such invoice dated 21/08/2019 was prepared along with the labour charges, which comes around Rs.5,250/-. That the charges on the vehicle parts and items and even the labour charges are fixed by the parent FORD Company. And the dealer like the Respondents have to follow the rates fixed by the Ford Company for the services, parts and labour charges. Copy of the rate list fixed by the Ford Company for the parts is enclosed here with and marked as ANNEXURE-A.

27. The opposite parties vehemently deny that the complainant was handed a parts requisition slip amounting to approximately Rs.80,000/-. However, it is not denied that the complainant paid an advance amount of Rs.30,000/- for the parts needed to be ordered. But the amount of Rs.30,000/- was transferred in the Account No.343510100422 on 10/12/2022 purportedly belonging to the Service Manager's personal account rather the Account of M/s Apang Rate Automobiles. The Answering Respondent states that the dealership by the name and style M/s Apang Rate Automobiles Pvt Ltd., does not have the Account No. 343510100422. It was only on 09/07/2021, that the Respondent gave the parts requisition slip amounting to Rs. 56,735/- only to the complainant. Thus, it is evident that the total amount for the parts requisition slip was much less than Rs.80,000/- as alleged by the complainant.

28. That due to the advent of COVID 19 pandemic in whole world from March, 2020 to 2021 along with lockdown and restriction, the requisition items and partsnever use to come on time.That the service staff or the management did inform the complainant about their inability to procure the parts due to the covid lockdown, whenever she visited the workshop to see the status regarding her vehicle. It is denied that after the lockdown was removed, the complainant had telephonic conversation with the Manager of the workshop and he had asked for10 more days and after expiry of 10 days, she again visited the workshop and inspected her vehicle. That there was genuine difficulty in procuring the parts of the vehicle from the parent company. It is vehemently and categorically denied that the she was informed by an employee of the workshop that the complainant's vehicle parts were being replaced by the employees for another Blue Ford Figo. That the complainant in order to malign and tarnish the image of the dealership and the Answering Respondent has levelled this allegation in thin air, without any iota of proof thereof. It is specifically denied and reiterated that the allegation of genuine parts being taken out from the complainant vehicle is a false statement used for illegal gain.

29. That the Complainant failed to give any specific date regarding her alleged visits. Amidst the pandemic and lockdown, the staff of the Answering Respondent performed their duties by putting their life at risk and tried their best to serve their customers within the boundaries of pandemic and lockdown. It was impossible to satisfy the customers during the pandemic and lockdown. Even then, the staff of the Answering Respondent, responded well to the complaints of the Complainant.

30. That under no circumstances, the alleged ill health of the daughter of the Complainant has any connection with the vehicle servicing or with the Answering Respondent and his staff. It is denied that while the Complainant was in Guwahati, she had requested her daughter's friend to follow up with the workshop but as always, the management of the workshop always brought up new excuses and repeatedly asked him to come another day. The complainant did not mention the name of the alleged friend of her daughter while making the statement.

31. That on 18/07/2022, the authorized signatory of the Answering Respondent handed over the bill invoice for the work done with the vehicle to the complainant to which she cried foul play and denied to accept the bill in voice and pay the bills for the vehicle. That after repeated request also the complainant did come to clear her bills and take her vehicle from the workshop after the same was ready for delivery. When the complainant abandoned the vehicle in question, which was ready for delivery to her, the Management put up a notice in the daily newspaper for general public and for the complainant to collect her vehicle from workshop. But the complainant did not come forward to collect her vehicle.

32. That it is for the complainant to prove that she has the ownership over the vehicle in question from the original owner. The Answering Respondent and his staff at the workshop did their best to serve the complainant with outmost sincerity and labour. Initial delay in starting the work was caused due the pandemic and frequent lockdown because of the pandemic and due to which the requisitioned parts could not be procured on time. Thereafter, the Complainant abandoned the vehicle on the pretext of her alleged daughter's illness. Subsequently, the vehicle was ready for delivery and she was provided with bill invoice amounting to Rs.1,55,437/- on 18/07/2022 by the staff, to which she denied any payment. Thereafter, on 14/03/2023, the Answering Respondent again published one general notice for the complainant to collect her vehicle in the local daily namely Arunachal Times. Copies of the Bill Invoice dated 18/07/2022 and Newspaper cutting of Arunachal Times dated 14/03/2023 are enclosed herewith and marked as Annexure- B and C respectively.

33. Under such circumstances, the Answering Respondent and his staff are not at fault for any reason whatsoever. The complainant's vehicle was a pre-owned car which had many problems due to its longevity and it was quite natural that the vehicle would have problems; and because of which many parts of the vehicle was not working properly and they required changes. As such, there is no question of any compensation or replacing of new car or reimbursement of Rs.4,00,000/. Therefore, there is no deficiency of service on behalf of the Answering Respondent and his staff for the foregoing reasons. All other statement and allegation which are not specifically dealt with are deemed to be denied inseriatim.

34. That it is denied that there is any cause of action for this complaint. The dates raised by the complainant are imaginative and fictional which are developed by the complainant for illegal gain. The complaint petition is a vexatious litigation which should not be entertained by this Hon'ble Commission. That the complainant is not entitled to any of the reliefs as prayed for.

35. Under such circumstances, the Answering Respondent No.1 prays for dismissal of the complaint of the Complainant, for abusing the process of the Commission and further prays for imposition of exemplary cost for filing this vexatious and frivolous complaint.

36. Points for determination:

1. Whether the opposite party caused deficiency of service as provided U/S 2 (11) of the Consumer Protection Act, 2019?
2. Whether the complainant is entitled for any other relief/reliefs?

37. Argument and submission by the learned counsels:

On 24.11.2023, both the parties, i.e., the learned counsels for the complainant and the Opposite Party made their final hearing. Ms. Likha Moriam, the learned counsel appearing for the Complainant besides reiterating the statement made in her complaint stated that Times dated 14^thMarch, 2023, was published

38. Therefore, the complainant humbly prayed to direct the opposite parties for the appropriate compensation for committing negligence and failure to provide service or deficiency in service, mental, physical and other financial loss and harassment to the complainant.

39. The learned counsel for the respondents also besides reiterating the statements made in his reply stated by submitting written argument that the complainant has made baseless allegation without backing them with any evidence. That the act of the Respondent no.1 was intentional and malicious, however, not an iota of   evidence was brought on record by the complainant to support the allegations.

40. The opposite parties by filing their written argument submitted that the complaint petition is a vexatious litigation. That it is established beyond all probabilities that the complainant has filed a vexatious, whimsical, and wrong complaint case with a malicious intention to make unlawful gain against the Respondent No.1.That all the allegations contained therein the instant complainant case are vague and false and not single evidence was brought before this Court to substantiate any of the allegations made against Respondent no.1 and accordingly, the instant complaint case is liable to be dismissed and exemplary cost for wasting   the precious time of the Hon'ble Commission .

41. Therefore, the opposite parties have humbly prayed that as there was no deficiency in service by the opposite party, so not to direct the opposite parties to make any compensation to the complainant.

42. Findings and reasons for decisions:

We have given our sincere consideration on the entire evidences on record both oral and documentary and other materials like annexures produced by both the complainant and the Opposite Party.Now, let us see, how far the complainant has been able to prove her case against the opposite party on the basis of material available on record.

43. Section 2 (11) and 35 of the Consumer Protection Act, 2019, being relevant are reproduced below:

44. Section 2 (11) of the Consumer Protection Act, 2019, gives the definition of the word Deficiency, which says, “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-

1. Any act of negligence or omission or commission by such person which caused loss or injury to the consume; and
2. Deliberate withholding of relevant information by such persons to the consumer.

45. Section 35 of the Consumer Protection Act, 2019 speaks of manner in which complaint shall be made. — (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by— (a) the consumer, —

1. to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided; or
2. who alleges unfair trade practice in respect of such goods or service.

46. Now let’s see the first point for determination as to whether the opposite party caused deficiency of service as provided U/S 2 (11) of the Consumer Protection Act, 2019.

47. We have carefully gone through the available materials on record. It is observed that admittedly the complainant had approached the opposite parties for repairing her vehicle for the emission of black smoke and with knowledge and consent of the complainant the opposite parties agreed to change many parts of the vehicle. There is no dispute of both the parties that the complainant had paid Rs. 21,790/-(rupees twenty-one thousand seven hundred ninety) only on 03.06.2019 for EGR Valve STF 4, and paid rs. 5250/- (rupees five thousand two hundred fifty) only to the opposite parties on 21^st Aug’ 2019 for replacing few more parts of the vehicle.

48. The complainant stated that on 10.12.2020 she was handed parts requisition slip of Rs. 80,000/- (rupees eighty thousand) only by the opposite parties and she transferred an amount of Rs. 30,000/- (rupees thirty thousand) only in the Account No. 345101000422 on 10.12.2020. But this Commission  could not find the requisition slip dated 10.12.2020 of Rs. 80,000/-. Whereas the requisition slip of 09.07.21 is found available for changing 24 numbers of parts.

49. Further it is not disputed by the opposite parties that the complainant had submitted the amount of Rs. 30,000/- in the account of its staff, though not into the direct account of opposite parties.

50. And on 18.07.2022, the complainant was handed over a Tax invoice with description of items/work done by the opposite parties amount to Rs. 1,55,437/- (rupees one lakhs fifty-five thousand four hundred thirty-seven) only for having changed 40 (forty) numbers of parts, which the complainant refused to pay. So, the opposite parties published a public notice in newspaper ‘The Arunachal Times’ on dated14^thMarch, 2023, by stating that the vehicle was fully ready for delivery.

51. That the complainant has also alleged that many documents and parts of her vehicle were missing as has been duly verified and signed by three staffs of the opposite parties too and annexed as Annexure -VI.

52. This Commission found that the opposite parties repaired the vehicle of the complainant many a times, but not with long lasting effect. Because of which the complainant had to visit the workshop of the opposite parties many times.

53. Decision: Therefore, taking into the consideration the facts as stated by the parties and as per the annexures, we decide all the points for determination together by holding that the opposite party caused deficiency of service as provided U/S 2 (11) of the Consumer Protection Act, 2019 and the complainant is entitled to get compensation from the Opposite Parties.

O R D E R

Therefore, this Commission after hearing both the learned counsels, perusing of the documents and annexures submitted by the parties, held that it is found that the complainant could make a case of deficiency of service caused by the Opposite Parties to the complainant.

However, taking leniency for the covid-19 and its restrictions along with the problems, the opposite parties are simply directed to repair the vehicle of the complainant within a period of one month from today by replacing all the missing documents and the items as alleged by the complainant in her Annexure -VI and also ensuring that the main problem of emission of black smoke does not exist anymore.

And by adjusting Rs. 30,000/- (rupees thirty thousand) paid by the complainant into the account of Opposite parties’ staff, the complainant is also directed to pay the remaining balance amount ofRs.1, 25, 437/- (rupees one lakh twenty-five thousand four hundred thirty-seven) only, out of the final bill of Rs. 1,55,437/- (rupees one lakhs fifty-five thousand four hundred thirty-seven)to the opposite parties at the time of taking delivery of the vehicle.

           With this order, the case is disposed of on contest.

            Given under our hand and seal of this Commission on 22^ndday of Dec’ 2023.

(Miss Deepa Yoka)                                                     (Mr. Tarh Loma)

    Member                                                                       Member                 

(Smt. Jaweplu Chai)

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