By Sri. MOHANDASAN.K, PRESIDENT

1.The complaint in short is as follows: -

               The 2^nd complainant is the registered owner of vehicle No.KL-55-S-2070 Maruthi Swift Car. The 1^st complainant is the Power of Attorney holder of 2^ndcomplainant. Complainants are working in abroad for a long period.  They purchased vehicle for the family use and the1^stcomplainant is in possession of the vehicle at present. On 17/08/2018, the 1^stcomplainant along with family was travelling in the car and they approached 2^nd opposite party oil pump and filled diesel worth Rs. 2260/-(Rupees Two thousand two hundred and Sixty only).  But immediately moving out of the oil pump the car became off and the complainant tried to start but could not succeed.  The 2^nd opposite party immediately approached complainant and advised not to start the vehicle since water was mixed in diesel by a mistake and there was an instruction not to pump from that particular diesel pump, but the concerned worker operated the pump and expressed willingness to bear all the expenses of the complainant for the difficulties caused by filling water mixed diesel.    The complainant agreed to the same.

2.      The complainant usually availing service from the 1^stopposite party. The complainant accordingly informed the 1^st opposite party and the 1^st opposite party deputed a mechanic and the vehicle was taken to the service centre of the 1^st opposite party at Tirur, Moochikkal at the expense of complainant.  The complainant entrusted the vehicle to the 1^st opposite party to carry out required service.

3.          On examination by the mechanics of the 1^stopposite party said that the defect is due to mixing of water with diesel and so cleaning of filter and diesel tank is sufficient to rectify the defect. The complainant demanded to rectify all the defects caused by mixing of water in fuel and if required to change parts of the vehicle that also to be done at that time itself, otherwise the 2^ndopposite party, the responsible person for mixing water in the fuel will not undertake the liability.  The 1^stopposite party agreed to do the same.   Then the 1^stopposite party asked the complainant to reach at the service station along  with 10  litres of diesel on the next day.  The complainant reported at the 1^st opposite party with 10 litre of diesel and the opposite party said that tank and filter has been cleaned and the vehicle has to put in started condition after filling diesel for 12 hours.  The next day was being a Sunday the vehicle was ready to take back by complainant on Monday. On 20/08/2018 the 1^st opposite party informed the complainant that the vehicle has repaired and there are no issues at present and the vehicle can be taken away. Accordingly, complainant reached 1^stopposite party and paid service bill.  The complainant started the vehicle but just to move red signal of defects shown in the vehicle and it was reported to 1^stopposite party and the mechanic.   The reply of the opposite party was that it will be alright after driving a short distance. The complainant believing the words drove the vehicle.

4.       Thereafter two days complainant and his family were travelling to Ooty, but when it was reached at Nadukani at about 9 O’clock night, the car became off. The complainant and family were in trouble and turned back to Vazhikadavu and thereby give up the family trip.  The complainant contacted the 1^stopposite party and as per their instruction somebody was deputed from Perintalmanna –Tirurkkad Service Centre and they shifted the vehicle to service centre and it was again found that the cause for engine stop was mixing of water in the fuel.   On 24/08/2018 the people from Tirurkkad service centre examined the vehicle and found that four injectors and pump of the vehicle has become defective and to be replaced for that Rs. 60,000/-(Rupees Sixty thousand only) was required.  The complainant said that he is not ready to pay the amount but to be directed to pay by the 1^stopposite party who repaired the vehicle earlier for the similar complaint.  Then the people of the service centre misbehaved towards the complainant and said to him that the parts are not available in their shop and if the complainant is prepared, he can go to Ernakulum or Coimbatore to repair the parts or get new parts.   At last, the complainant approached at Aluva Bosch Company and it was found the defective parts worth Rs. 23000/-(Rupees Twenty three thousand only) and Rs. 12,000/-(Rupees Twelve thousand only).  Due to want of money   the complainant turned back and approached Diesel Kerala, a Shop at Calicut to repair the defective parts and for that he paid Rs. 19,240/-(Rupees Nineteen thousand two hundred and forty only). Even after that the vehicle was not started and so again some parts were got from Bangalore then only the vehicle started.  The complainant received the vehicle from the Service centre and while reached at Kottakkal, the vehicle again became defective and was informed to the 1^stopposite party and on examination by them a pipe worth Rs. 1500/-(Rupees One thousand and five hundred only) replaced and thereafter complainant approached 1^stopposite party demanding the expenses caused to the complainant on account of deficiency in service on the part of 1^st opposite party.  The 1^st opposite party said to the complainant that they are prepared to do whatever required after consultation with responsible higher officials.   The 1^st  opposite party was not ready to compensate the complainant.   They said that all the loss caused to the complainant was due to the act of  2^nd opposite party and they are bound to pay half of the expenses and thereafter 1^st  opposite party prepared to pay the balance.  The complainant submitted that the 1^st opposite party did not properly service the vehicle at the first time when the complaint of red signal was told by the complainant. The complainant also alleges deficiency in service on the side of the 2^nd opposite party by pumping water mixed diesel in to the tank of the vehicle and the 1^st opposite party even though entrusted to carry out the entire defect caused to the vehicle not done properly amounts deficiency in service.

5.      Hence the prayer of the complainant is that to direct opposite parties to pay an amount of Rs. 51,056/-(Rupees Fifty one thousand and fifty six only) as repair cost along with compensation of Rs. 2,00,000/-(Rupees Two lakh only) and cost of Rs. 50,000/-(Rupees Fifty thousand only). Complainant also pray for refund of cost of diesel along with other reliefs which are suitable to redress the grievance of complainant.

6.    On admission of the complaint notice was issued to the opposite parties.  First opposite party appeared and filed version.  The 2^nd opposite party despite   receipt of notice not turned up and so set exparte. 

7.         The 1^st opposite party denied the entire averments and allegations contained in the complaint.   The 1^st opposite party submitted that they are unnecessary party and there is no cause of action against them and so the complaint to be dismissed with cost.   The submission of the 1^st opposite party is that the complaint is regarding defect caused to the vehicle as result of pumping water mixed diesel in the vehicle from the 2^nd opposite party.   The vehicle was serviced from the 1^st opposite party and thereafter the vehicle was driven by the complainant.  The defects to the vehicle caused thereafter due to filling of diesel from the 2^ndopposite party pump again. So, the 1^st opposite party is not at all responsible for the inconveniences as alleged in the complaint.

8.     The 1^stopposite party denied that the complainants were working abroad, at presently they are in native place, the vehicle was using for the family purpose, vehicle is handling by the 1^st complainant since the 1^stopposite party is not aware of those facts.   The contention in the complaint that on 17^thAugust 2018, the complainant filled diesel from the 2^nd  opposite party petrol pump for Rs. 2260/-, immediately thereafter engine put off, the 2^nd  opposite party came to him and told that the water mixed diesel filled in the  tank by   mistake, he is prepared to  redress the grievance , it was directed  not to pump  diesel from that particular  point , by mistake it was operated by the worker , all are  denied by the first opposite party since they are not  in the direct knowledge of the first opposite party. The 1^st opposite party admitted that the complainant approached before the 1^stopposite party for service is correct. But the statement that the complainant regularly approaching the 1^st opposite party for service is not correct. 

9.         The contention  that  the mechanics of the 1^st  opposite party examined vehicle,  found the  defect as  mixing of water with diesel , cleaning  of tanker and filter  is sufficient to rectify the defect,   the complainant asked to  correct the entire  defects  due to  water mixed  diesel filling, if it is required to change the parts of the vehicle to be done, if any defect arises  subsequent the service  the 2^nd  opposite party  will  not be liable, the complainant was asked to  report  along with ten litre  diesel on the next day , he was told that the defect rectified and the vehicle has to be kept in started condition for 12 hours, the next day  was being Sunday  vehicle  will be released on Monday, he was informed the vehicle is ready to take back , when the vehicle was  taken from the 1^stopposite party  red signal  was shown and it was reported to the 1^stopposite party,  told that need  not consider  seriously and it will be all right driving   a short distance the complainant was not required the vehicle for two days  and thereafter  on 20/08/2018  the complainant  along with family  went to Ooty  and on the way vehicle again stopped the family  put in fear, the trip were cancelled,  complainant sustained  financial loss, on contact with 1^st  opposite party the people came from  Tirurkkad, vehicle was taken to there, it was found that mistake was due to  water mixed diesel- all are  incorrect and   baseless.  The opposite party also denied that the service centre Tirurkkad informed the complainant that pump and four injectors of the vehicle are turned defective and also directed to install a new one which will worth Rs. 60,000/- and the complainant  was directed to pay the amount, the complainant refused to pay the same,  there was  misconduct  from the service centre , it was told that  the complainant has to bring  parts from Ernakulum or Coimbatore for replacing the parts and accordingly complainant  approached at  Bosch company, Aluva  and it was  learned  huge amount is required  and thereafter  complainant approached at Calicut diesel Kerala to repair the parts  and he paid Rs. 19,240/- for repairing the parts  and thereafter he bought  two  injectors  from Bangalore  and  on receipt of Rs.24,992/-Tirukkad Service centre returned the vehicle to complainant. The complainant while driving from there the vehicle again became defective from Kottakkal and it was found pipe is defective and approached 1^st opposite party and asked to refund and also to pay all the expenses which the complainant incurred due to defective and deficient in service of the opposite party.    The opposite party denied the claim and said that half of the expenses has to be made by second opposite party.   The real cause for defect was incomplete service by the first opposite party, and due to that complainant suffered financial loss and mental agony which is not correct, hence the first opposite party denied the same. 

10.      The allegation that the defect was not properly verified by the 1^st  opposite party and thereby caused the financial loss and mental agony is not correct hence denied by the 1^stopposite party.

11.        The submission of the 1^stopposite party is that complainant filled diesel from the 2^nd opposite party and thereafter due to damage the 1^st  opposite party was informed and the 1^st opposite party duly serviced the vehicle and the vehicle was taken away by the complainant. The alleged incidents took place during flood period in the entire state.  The work place of 1^st opposite party also affected flood. Even then considering the interest of the complainant undertook the work to carry out within a short period.  The complainant said to the opposite party that there is an important function in the family of the complainant and the vehicle is to be repaired urgently.  The time provided for service was not sufficient.  The opposite party engaged mechanics and convinced complainant and 2^nd opposite party that the defect was due to filling of water in the diesel tank.  The opposite party serviced the vehicle and replaced filters and cleaned the diesel tank.   The vehicle was tested after fresh diesel filling and placed the vehicle in a started condition for three hours.  The contention of the opposite party is that there was requirement of water level sensor replacement and also periodical maintenance, but the complainant took delivery of the vehicle. The complainant was informed   the risk of taking the vehicle before completing the entire services.   The complainant thereafter never turned to the 1^st opposite party.

12.      The opposite party submitted that the defective vehicle was brought to the service centre on 17/08/2018 by evening.    On the next day itself the 1^st opposite party in presence of complainant and 2^nd opposite party   convinced the content of water in the diesel and work started. The next day was being Sunday, the vehicle was tested several times and found that there were no other defects to the vehicle.  The first opposite party had ordered for water level sensor and the same was received in the service centre and tried to replace the same.  The replacement require four hours work.   But the complainant was not ready for the same and even was not ready for periodical maintenance and he took delivery of the vehicle.  The opposite party submit that the delivery of vehicle was at the risk of the complainant and it was recorded there in the job card also.  Again on 29/8/2018 the vehicle reported break down at Vazhikadavu and vehicle was taken to the service centre with Road side Assistance.  On examination of the vehicle prima facie itself it was found that defect was caused due to mixing of water with diesel.  Hence the complainant and 2^ndopposite party was asked to report the service centre and the fact was presence of water in the diesel convinced them and thereafter repair work was started.  The submission of the first opposite party that the damages reported on 29/8/2018 was solely because of mixing of water in the diesel and on examination it was found injectors also damaged  due to presence of water.  The 1^stopposite party convinced both the complainant and second opposite party the requirement of replacing injectors and pump .The opposite party  specifically contented that  the defect caused  on 29/08/2018 is not at all  a continuation of the defects  reported on  17/08/2018.  1^st opposite party submit that the mixing of water with diesel happened on 17/08/2018 is not the reason for damages occurred on 29/08/2018.  The 1^st opposite party also submitted that the complainant filled diesel from the same pump from which he filled diesel on 17/08/2018.The 1^st opposite party submitted that   nobody will direct or will allow to drive a vehicle, if the water level sensor replacement is advised.   If it was done, he could have realised whether he filled water containing diesel or not.  The complainant according to 1^stopposite party acted against the advice of the service centre.     The 1^st opposite party has recorded the defect of the vehicle in the job card.   The submission of the complainant that the defect happened on 29/08/2018 at Nadukani Mountain is not correct. But it was happened at Vazhikadavu.  The opposite party had advised the necessity of replacement of injectors and pump and also an estimate was given to the complainant.  But the complainant  responded that he is prepared to do the same through the authorised service centre of Bosch and accordingly  he contacted  a person  at Tirur and on  advised from that person  the complainant  approached at  Ernakulum  and not as per the  advice of the 1^stopposite party.  Actually the spare parts where available in the service centre, but the complainant opted to avail the same from Ernakulum and thereafter from Calicut.  The first opposite party is not sure to provide 100% guarantee for the working condition of the pump after repair and the usual advice is to replace the same.    The refixing the repaired part not safe and there is chance for causing rust.   The complainant had taken four injectors and out of that two of them repaired and two of them replaced with new.  The 1^st opposite party availed maximum discount to the complainant. The complainant on the way to his residence again approached at  Vettichira branch of the 1^st  opposite party and from there  he replaced a part worth Rs. 1500/-.  Actually, the opposite party submit that there was no need of that work at that time.   In the circumstance it can be seen that there is no deficiency in service on the part of first opposite party and so complaint against 1^st opposite party may be dismissed with the cost.

13.         The complainant and 1^st opposite party filed affidavit and documents.  The documents on the side of complainant marked as Ext. A1 to A8. Ext. A1 is power of Attorney executed by 2^nd complainant in favour of 1^st complainant on 25/9/2018.  Ext. A2 is copy of Tax Invoice, Ext. A3 is a copy of Tax invoice dated 11/09/2018,Ext.A4 is copy of Tax invoice dated 20/08/2018, Ext. A5 is a copy of Tax invoice, and Ext. A6 is a copy of ICICI Bank statement of transaction in savings account from 01/08/2018 - 31/08/2018. Ext.A7 is a copy of Tax invoice dated 21/09/2018, Ext. A8 is a copy of RC of vehicle No. KL/55/S/2070.  Opposite party documents marked as Ext. B1 to B4. Ext.B1 is copy of vehicle history for 9 pages, Ext. B2 is copy of a Job card dated 20/08/2015, Ext.B3 is also job card 20/08/2015, Ext.B4 is a copy of Sensor checking report in two pages from 18/8/2018 to 21/08/2018.

14.  Heard both sides perused affidavit and documents and stood for  consideration of the following points.

1. Whether there is deficiency in service?
2. Relief and cost?

15. Point No.1& 2

                 The grievance of the complaint is that the vehicle stopped immediately after filling   diesel from the second opposite party pump   and was taken to the first opposite party service centre and the vehicle got repaired.  When the complainant  was travelling in the vehicle again the vehicle got complaint and was taken for service to the first opposite party.  Now the allegation of the complainant is that the first opposite party did not repair the vehicle at the first instance properly and thus caused defects subsequently. Complainant submit that, he was supplied water mixed diesel  by the second opposite party and there was  improper  and deficient service  from the side of first opposite party, he is sustained  financial loss  and mental agony and so  the prayer is to  order  to pay  an amount Rs. 51,056/- (Rupees Fifty one thousand and fifty six only) as repair cost  along with  compensation of Rs.2,00,000/-(Rupees Two lakh only)  and Cost of Rs. 50,000/-(Rupees Fifty thousand only). He prays for refund of cost of diesel also.

16.          In this complaint second opposite party remained exparte and  1^st opposite party filed affidavit and documents.  Ext.B1 is service record   of the vehicle.  The contention of the first opposite party is that there was proper service and advice from their part and there is no deficiency in service from their side.  The contention of the 1^st  opposite party is that the defect caused to the vehicle of the complainant was due to filling of water mixed diesel   in the vehicle.   The complainant reported the same to the 1^stopposite party on 17/08/2018 evening on the next day itself in presence of complainant and 2^nd opposite party it was convinced that there was water presence in the diesel. The 1^st opposite party without delay entrusted the vehicle to the mechanic for the repair of the vehicle.  Since the next day was being Sunday, the vehicle was delivered to the complainant on 20/08/2018 and the first opposite party said to the complainant that periodical maintenance and other certain works also to be carried out.  It is  said to complainant that taking delivery   before availing the suggested service will be at the risk of the complainant.  But the complainant was in urgent need of the vehicle and he took delivery of the vehicle against the advice of the 1^st  opposite party. 

17.     The 1^st opposite party also submitted that; the complainant reported the vehicle on 29/08/2018 with the same defects.  Again, the complainant and second opposite party were called to the 1^st opposite party and convinced the defect was again due to mixing of water in the diesel.  The specific contention of the 1^st opposite party is that the defect caused is not continuation of defects reported on 20/08/2018.  The 1^st opposite party submitted that the vehicle was repaired and tested on 20/08/2018 after filling newly bought diesel in the vehicle.  The first opposite party submit that the complainant again had filled diesel from the second opposite party. The 1^st  opposite party carried out the service without delay and done properly.  The replacement and the repairing of defective parts were done at the option of the complainant and not as per the advice of the 1^st opposite party. 

18.       The opposite party produced documents Ext. B1 to B4 shows that there was regular service from the first opposite party to the vehicle.  The alleged period also the vehicle was serviced from the first opposite party.  The service history and job card shows the service done and advice given by the 1^st  opposite party.   The disputed period the defect was due to the mixing of water in the diesel.  So, it can be seen that root cause for the defect is mixing of water in the diesel.  The complainant repeated the filling of diesel from the 2^nd opposite party even after first incident.  The complainant has not denied the allegation of the 1^st opposite party regarding the filling of diesel from the 2^nd opposite party again. The 1^st opposite party has got a specific contention on 20/8/2018 the delivery of the vehicle was taken against their advice and the 2^nd opposite party from where the complainant even after the first incidents filled diesel in the vehicle.  1^st opposite party submit that there is no deficiency in service and the root cause for the damage to the vehicle is result of mixing of water in the diesel.  In the above circumstances we find merit in the contention of the first opposite party.  Now it can be seen that the vehicle got damaged due to the filling of water mixed diesel from the 2^nd opposite party and he is liable to compensate the complainant.   The complainant has got a contention that on 17/08/2018 while he filled diesel from the 2^nd opposite party pump it  was told by the 2^nd opposite party that it was a mistake on their part of pumping water mixed diesel in the vehicle.   The contention of the complainant is that the 2^nd opposite party had undertaken to provide the expenses incurred by the complainant due to filling of water mixed diesel in the vehicle.  So we find the 2^nd opposite party is liable to compensate the complainant.

19.   Hence we allow the complaint as follows:-

1. The 2^nd opposite party is directed to pay Rs. 51,056/-(Rupees Fifty one thousand and fifty six only) as the repair cost of the vehicle.
2. The 2^nd opposite party is  directed to pay Rs.1,00,000/-(Rupees One lakh only) as compensation on account of deficiency in service and thereby caused inconvenience and hardships to the complaint
3. The 2^nd opposite party is also directed to pay Rs. 5000/-(Rupees Five thousand only)  as cost of the proceedings.

           The  2^nd opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which  the complainant is  entitled for interest at the rate of 9% per annum  for the above said  entire amount till  realisation.

Dated this 14^thday of February, 2022.

MOHANDASAN.K, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER

APPENDIX

Witness examined on the side of the complainant                            : Nil

Documents marked on the side of the complainant                          : Ext.A1to A8

Ext.A1 : Power of Attorney executed by 2^nd complainant in favour of 1^st complainant on

               25/09/2018. 

Ext. A2 : Copy of Tax Invoice.

Ext. A3 : Copy of Tax invoice dated 11/09/2018.

Ext.A4  : Copy of Tax invoice dated 20/08/2018.

Ext. A5 : Copy of Tax invoice.

Ext.A6 : Copy of ICICI Bank statement of transactions in savings account from 1/8/2018                 

              to 31/08/2018.

Ext.A7 : Copy of Tax invoice dated 21/09/2018.

Ext. A8 : Copy of RC of vehicle No. KL/55/S/2070. 

Witness examined on the side of the opposite party                        : Nil

Documents marked on the side of the opposite party                     : Ext. B1 to B4

Ext.B1 :Copy of vehicle history for 9 pages.

Ext.B2 :Copy of a Job card dated 20/08/2015.

Ext.B3 :Copy of a Job card 20/08/2015.

Ext.B4 : Copy of Sensor checking report in two pages from 18/8/2018 to 21/08/2018.

MOHANDASAN.K, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER