IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 14thday of February, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C CNo. 205/2019 (filed on 19-11-2019)
Petitioner : Varghese Abraham
S/o. late P.K. Abraham.
Pallikkal House,
Ezhumattoor P.O. and Village,
Kottankudi, Mallappally Taluk,
Pathanamthitta – 689 586.
Vs.
Opposite Parties : 1) M/s. M.K. Motors,
Malankara Buildings,
Channanikkad P.O.
Kottayam - 686 533,
Rep. by its Manager,
Malankara Buildings,
Channanikkad P.O
Kottayam Taluk,
Kottayam Dist. – 586 533.
2) The Managing Director,
M/s. M.K. Motors,
Malankara Buildings,
Channanikkad P.O.
Kottayam – 686Kottayam Taluk,
Kottayam Dist. – 586 533.
(For Op 1 and 2, Adv. SibyChenappady,
Adv. Noble Joseph, Adv. Divya Susana Sunil Adv. Rosh Mathew and Adv. Appu Jose)
O R D E R
Sri. Manulal V.S. President
The complaint is filed under Section 12 of Consumer Protection Act, 1986.
During the month of October, 2019 the complainant visited the showroom of the opposite parties and selected a brand new TATA HEXA XTA 4X2diesel model car. The sales representative of the opposite parties assured the complainant that the same model of TATA HEXA CAR will be delivered and offered a gold coin as additional benefit for ordering the car before 24-10-2018. A scratch and win card was also promised. The order for the purchase of the car was placed before 24-10-2018. And the complainant purchased the brand new TATA HEXA diesel model car from the 1st opposite party on 12-11-2018. The opposite party delivered the car without roof rail by assuring that the same will be fixed immediately without charging any extra amount. On scratching the card it was found that the complainant is eligible to get an iron box as prized and the same was immediately hand over to the complainant by promising to give the gold coin immediately on receipt of the same from Tata Motors.
The 1st free service of the car was due on 24-01-2019 and the car was entrusted to the opposite parties. At that time, the service person of the opposite party assured to return the car by 5.00 pm on the same day. But when the complainant approached the service center of the opposite party, he was informed that work will be completed only on the next day. But the 1st opposite party could not return the car on the next day, and the promise to return the car on the next day was repeated for 6 more days. At last the car was returned to the complainant on 31-03-2019. The complainant has to wait for 8 days due to the deficiency of service on the part of the 1st opposite party and had spent an amount of Rs.10,000/- towards the travelling expenses.
It is averred in the complaint that the 1st opposite party failed to fix the roof rail as promised even after 2 months from the delivery of the car. The gold coin was not given to the complainant. The complainant had to spend an additional amount of Rs.30,000/-towards the price of various accessories which are not available in the model delivered to him.
At the time of delivery of the car, an amount of Rs.17,999/- was paid by the complainant towards Bumper to Bumper insurance premium for the 1st year and an amount of Rs.9,200/- was also paid by the complainant towards bumper to bumper insurance premium for the 2nd year. But no policy of insurance was given to the complainant in respect of 2nd year. The complainant’s request for handing over the insurance policy of the 2nd year before the expiry of insurance policy for the 1st year was refused by the opposite parties. Then the complainant was constrained to take a fresh insurance policy for the 2nd year by remitting a sum of Rs.24,510/-. It is further alleged in the complaint that during the subsequent service of the car; the service and allied work were completed in a span of 5 to 6 days and no spare car was provided to the complainant. The opposite parties are duty bound to provide alternative arrangement for the complainant. The opposite parties are failed to return the car within the reasonable time and the delay was occurred due to the deficiency in service on the part of the opposite parties. The complainant had suffered a damages amounts to Rs.1 lakh due to the delayed delivery of the car during the 1st and 2ndservices. According to the complainant, the opposite parties are bound to repay Rs.24,510/- which spend by the complainant for obtaining the insurance policy for 2nd year. Hence this complaint.
Upon notices, opposite parties appeared before the Commission and filed version contenting as follows.
The opposite parties admitted that the complainant had purchased TATA HEXA diesel car from them on 12-11-2018. The allegation in complaint that the car shown to the complainant was a full option model with roof rail and required no additional fittings is false. The opposite parties never offered any roof rail free of cost to the complainant. The complainant was well aware that the car would be delivered without roof rail.
The complainant’s vehicle was entrusted to the 1st opposite party for the 1st service and accident repairs on 25-01-2019. The complainant had demanded for insurance claim with respect to the repairs which was informed to the insurance company for confirmation. The following consecutive days were holidays and on the very next working day ie. on 28-01-2019 insurance surveyor came and gave confirmation with regards to the repair. After the repair works and pending works was completed on 30-01-19 and vehicle was delivered to the complainant on 31-01-19. The 1st opposite party never gave any assurance to the complainant that the vehicle would be delivered on the same day. The complainant is not eligible for spare car as there is no scheme of giving a spare car to the clients during the service of vehicle.
The opposite parties are not liable for accessories alleged to have purchased by the complainant. The iron box which was gifted to the complainant was not a defective one. The complainant after issuing the lawyers notice, received the gold coin from the first opposite party. The alleged delay in delivering the gold coin by the manufacturer was not due to the negligence of the opposite party. There was no delay in delivering the gold coin from the part of the opposite parties. The 1st opposite party received Rs.17,999/-for bumper to bumper own damage for the period from 19-11-2018 to 08-11-2019. The 1st opposite party did not received any amount for the 2nd year bumper to bumper insurance policy. The amount paid by the complainant for the 2nd year bumper to bumper insurance policy is Rs.24,510/- and it was paid as per the request of the complainant. It is further submitted in the version that the total amount ought to have paid before the registration of the vehicle was Rs.61,553/-. But the complainant had paid the subsided rate of Rs.17,999/- for 3 year 3rd party insurance policy and Rs.9,200/- for one year bumper to bumper damage insurance policy. The averment that the subsequent service of car took 14 days is false. The car was returned on the same day itself. There is no inordinate delay or negligence of service from the part of the 1st opposite parties. The 2nd opposite party has unnecessarily impleaded with malafied intention to harass them.
The complainant filed proof affidavit in lieu of chief examination and got marked Ext.A1 to A8. One Jain Elias, who is the power of attorney holder and legal Manager of the 1st opposite party filed proof affidavit in lieu of chief examination and Ext.B1 to B4 were marked.
On evaluation of complaint, version and evidence on record, we would like to consider following points.
- Whether the complainant has succeeded to establish any deficiency in service from the part of the opposite parties?
- If so, what are reliefs?
For the sake of convenience, we would like to consider Point No.1and 2 together.
Point No.1 and 2
There is no dispute on the fact that complainant had purchased TATA HEXA XTA 4X2 motor diesel car from the opposite parties on 12-11-2018. Ext A1 is the registration certificate of the said vehicle. The specific case of the complainant is that though the opposite party assured the complainant that they would deliver a full option model with roof rail, the opposite party delivered a car without roof rail. According to the complainant, the opposite party assured him at the time of delivery, that roof rail would be fixed immediately without levying extra amount. Opposite party contented that they never offered roof rail as a free of accessory. It is further submitted by the opposite parties that the representative of the 1st opposite party clearly informed the complainant at the time of booking of the vehicle that the new model of TATA HEXA CAR is delivered without roof rail. The complainant did not adduced any evidence show that the opposite parties offered a car with roof rail to him. Though the complainant produced an estimate dated 07-11-2018 issued by the opposite parties, he did not care to got it marked in evidence. On a mere perusal of that estimate it can see that the opposite parties never offered roof rail to the car of the complainant at free of cost. Moreover the complainant did not produced any brochure or any other evidence before us to show that another car of same model having the roof rail. Therefore the contention of the complaint on this aspect is not sustainable.
Another allegation of the complainant is that at the time of delivery of the car, he had paid an amount of Rs.17,999/- to the opposite party for bumper to bumper insurance premium for the 1st year and an amount of Rs.9,200/- towards bumper to bumper insurance premium for the 2nd year. But the policy issued to him was only in receipt of the 1st year. Therefore he constrained to pay Rs.24,510/- to avail bumper to bumper insurance for the subsequent year. Ext.A4 is the policy certificate issued by the new India Assurance Co. Ltd for the period of 09-11-18 to 08-11-21. On perusal of Ext.A4, we can see that the insurer offered an own damage indemnity for the period of 09-11-2019 to 08-11-2020. It is further offered a coverage for motor liability for the period of 09-11-18 to 08-11-2021. This contention of the complainant is resisted by the opposite party stating that the opposite partyreceived Rs.17,999/- for bumper to bumper on damage for the period from 09-11-2018 to 08-11-2019. It is further contented by the opposite party, the total amount ought to have paid before the registration of the vehicle for availing the insurance policy both own damage and 3rd party insurance is Rs.61,153/-. However the complainant had paid the subsidy rate of Rs.17,999/- that is for 3rd party insurance coverage for 3 year and Rs.9,200/- for one year bumper to bumper damage insurance policy. It is pertinent to note that the complainant did not produce the insurance policy which was issued in the 1st year. Ext.B1 is the bundled motor policy for private cars which is issued by the New India Assurance Company Ltd. On perusal of Ext.B1 we can see that the offered insurance coverage for own damage of vehicle for a period of 09-11-2018 to 08-11-2019 vide insurance policy No.12220031180950075700. It is further offered the motor liability coverage for a period of 09-11-2018 to 08-11-2021. On perusal of Ext.B1 we can see that the net amount for the own damage policy premium was Rs.24,819/- and the total amount of premium for the 3rd party insurance coverage was Rs.27,005/- and the gross premium paid was Rs.61,153/-. On perusal of Ext.A4 we can see it is stated that the policy no. of motor liability coverage is 12220031192050074663 and previous policy no. for the own damage coverage is as same. Therefore, we can see that the oppositeparty has received the amounts for obtaining own damage coverage for one year and 3rd party coverage for 3 years. Normally one can opt for a bundled policy for 3rd party coverage of 3 or 5 years but the own damage coverage is applicable for only one year for cars. Thus we are of the opinion that the complainant failed to prove that the opposite party had committed deficiency in service by not obtaining coverage for own damage to the vehicle for the 2nd year.
Another contention of the complainant is that though he entrusted the vehicle to the 1st opposite party on 21-01-2019 for the 1st free service which was returned after the free service only on 31-01-2019. According to him due to the inordinate delay of 8 days occurred in completing the service he had to spent Rs.10,000/- for travelling expense. It is further alleged by the complainant that the inordinate delay to return the vehicle after completing the service occurred in subsequent service also. The opposite party failed to provide an alternative vehicle for 14 days, the dates on which the vehicle was in the custody of the opposite party for the service. According to the opposite party, the vehicle was entrusted to the 1st opposite party on 25-11-2019 for 1st free service and accident repairs since the complainant demanded for the insurance claim, the same was intimated to the insurance company and on 29-01-2019, the insurer surveyor came and gave confirmation with regard to the repair. Thereafter, the repair works was started and the vehicle was delivered to 31-01-2019. To substantiate their case, opposite party produced Ext.B3 and B4 tax invoices. On perusal of Ext.B3, we can see that it is a tax invoice dtd.30-01-2019. On perusal of Ext.B1 we can see that the job card was granted on 24-01-19 and service type is 1st free service. But however on perusal of Ext.B4, which is also a tax invoice dtd.31-01-2019, we can see that the job card was generated on 30-01-2019 and service request type was accident. It can be seen from job card and workshop copy which is annexed to Ext.B4 that the repair works was advised by the repair works was advised by the service advisor and not by the insurance surveyor. On perusal of job card workshop copy we can see that the repair works was started only on31-01-2019. On perusal of Ext.B2 we can see that the insurance company gave a no claim bonus on 20% towards the premium for the coverage of insurance for own damage for the period from 09-11-2019 to 08-11-2020. It is clear from the Ext.B2 that the complainant had not avail any insurance claim to the said vehicle during the coverage from 09-11-2018 to 08-11-2019. This curtains the root of the contention of the opposite parties that the delay occurred in delivering the vehicle in the time of the 1st free service was due to the delay caused to conduct the service by surveyor of insurance company. The opposite party failed to explain the actual reason for the delay of 8 days which was occurred to complete the 1st free service of the vehicle of the complainant.
Hon’ble Supreme Court in recent judgementdtd.06th October, 2021 in SGS India Ltd. Vs. Dolphin International Ltd. categorically held that the onus of rule that there was deficiency in service is on the complainant. The Hon’ble Supreme Court further held that if the complainant is able to discharge its initial onus, the burden would be shifted to the oppositeparty.
Though the opposite parties in version and proof affidavit submitted that the delay occurred in returning vehicle after the free service was due to the delay caused in conducting the service by the insurance surveyor,as discussed earlier they failed to prove their contention with cogent evidence including the approved estimate by the insurance surveyor or any other documents. Therefore we are of the opinion that the opposite party has committed deficiency in service to the complainant by not completing the free service of vehicle within the reasonable time. No doubt the complainant had suffered much mental agony, loss and hardship due to the deficient act of the opposite parties. Though the complainant claimed that an amount of Rs.10,000/- was spent by him for travel expense, he did not produce any evidence to substantiate this contention. Considering the nature and circumstances of this case, we are of the opinion that a compensation of Rs.10,000/- for the mental agony and hardship which was caused to the complainant will meet the ends of justice. Therefore, we allow the complaint in part and pass the following Order.
We hereby direct the opposite parties to pay Rs.10,000/- to the complainant as compensation for mental agony and hardship suffered by him.
The Order shall be complied within a period of 30 days from the date of receipt or Order. Failing which, the amount will carry 9% interest from the date of Order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her,corrected by me and pronounced in the Open Commission on this the 14thday of February, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1 - Copy of RC book (KL 28 D 4300)
A2 – Copy of legal notice dtd.08-03-2019
A3 – Copy of reply notice dtd24-04-2019
A4 - Copy of insurance policy No.12220031192050074663
A5 – Copy of tax invoice dtd.31-01-19
A6-Copy of receipt voucher dtd.04-11-19
A7 – Copy of job slip dtd.28-11-19
A8 – Copy of tax invoice dtd.30-11-19
Exhibits marked on the side of opposite party
B1- Copy of insurance policy No.12220031180950075700 issued by New India
Assurance Co. Ltd.
B2 - Copy of insurance policy No.12220031192050074663 issued by New
India Assurance Col Ltd.
B3 – Tax invoice dtd.30-01-19 and job card workshop copy
B4 - Tax invoice dtd.31-01-19 and job card workshop copy
By Order
Senior Superintendent
