Date of Filling:      27.01.2017

                                                                                                                       Date of Disposal:  14.09.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.05/2017

Dated this Friday the 14^th day of September 2018

K.Saravanan,

S/o.Kaliya Perumal,

No.614/52, Sannathi Street,

Thirumaichur Post,

Thiruvarur District - 609 403.                                               …..Complainant.

                                             //Vs//

The Branch Manager,

Concorde Motors (India) Limited,

No.79-80-81 (SP)

Ambattur Estate Branch,

Ambattur, Chennai -600 058.                                   …..Opposite party.

This Complaint is coming on for final hearing before us on 07.09.2018 in the presence of Thiru.A.R.Poovannan, counsel for complainant, opposite party called absent and set ex-parte, perused complainants side documents, and heard the arguments on the side of the complainant and the case having stood over this day for consideration, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU.R.BASKAR KUMARVEL,MEMBER.

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite party seeking direction to a sum of Rs.1,02,000/-towards loss of income and a sum of  Rs.10,000/-towards interest and penal charges and a sum of Rs.50,000/-compensation for mental agony, hardship and strain due to the deficiency in services and Rs.10,000/-towards cost.

2.The brief  facts of the complaint are as follows:-

 The complainant has been purchased a TATA INDIGO car at BST Auto Agency Private Limited, Thichy, bearing registration No.TN-50-AB-1202 on 09.05.2016.  The complainant herein is a driver by profession and he purchased the said car to eke his lively hood by hiring the car for private transport.  Thus the complainant is only using the car for his livelihood and not for any other commercial purpose and thus he is a consumer under the Consumer Protection Act.

3.That the complainant to get regular services linked his vehicle with a service agency called OLA and since they demanded the complainant that the service will be provided around the Chennai City and thus the complainant came down to Chennai and plied his vehicle in and around Chennai city through his service agency.

4. The complainant on 23.11.2016 handed over the above vehicle for regular service at 10.15 A.M. and he was assured by the opposite party staffs that the vehicle will be returned back by the evening itself. But the opposite party had not returned the vehicle as promised and without ascertaining any reason they retain the complainants vehicle.  The complainant visited the opposite partys service center daily and there is no proper response from their end.   That the opposite party all of a sudden told that they are awaiting a spare from the plant and will be returning the vehicle shortly but the opposite party was not clear how long it will take to return the vehicle.  Therefore on 17.12.2016 issued a legal notice to the opposite party claiming return of the vehicle and damage.  The opposite party in spite of the receipt of the legal notice on 20.12.2016 had not chosen to return the vehicle or to give any reply.  That without any valid reason the opposite party retained the complainants vehicle and returned back the vehicle only on 26.12.2016.  Because of the said delay the complainant lost his income and was to put to great loss and hardship and complainant was not able to repay the same in time because of non employment for 34 days.  For the delay in repayment of this monthly due and the complainant was forced to pay the delay charges and penal interest.

5. The complainant was put to such hardship only because of the deficiency in service by the opposite party.  Therefore the complainant obliged to file this complaint for damage and compensation.

6.  In spite of notice duly served to the opposite party, the opposite party neither appeared nor to represent through counsel, though sufficient time given to the opposite party but not ready to appear before this Forum and answered complainant claim.

7. On the side of the complainant, the complainant filed proof Affidavit in order to substantiate his case and Exhibit A1 to A 8 are marked on his side.

8. At this juncture, the points for determination before this Forum are as follows:-

1. Whether there is any deficiency in service on the side of the opposite party as alleged in the complaint?

2. Whether the complainant is entitled for any relief as prayed for?

9. Written arguments filed and oral arguments also adduced on the side of complainant.

10. In such circumstances, this Forum decided to conclude this matter fully on merits with available evidence and documents put forth before this Forum though the opposite party is set Ex-parte.

11.Point No:1:-

 According to the case of the complainant, the complainant purchased a TATA INDIGO car from BST Auto Agency Private Limited, Thichy, bearing Registration No.TN-50-AB-1202 on 09.05.2016.  The complainant himself is a driver by profession and complainant purchased the said car to eke his lively hood by hiring the car for private transport.  Intention of the complainant to purchase the car for his own use and to earn money for his lively hood not for commercial purpose therefore the complainant becomes a Consumer under the Consumer Protection Act. In order to fulfill is lively hood purpose the complainant linked his vehicle with service agency called OLA to get regular services from them.  Since, the service Agency said to the complainant that they can provide service to the complainant only in and around the Chennai City that the complainant came down to Chennai and plied his vehicle in and around Chennai City through his service agency.

12. In this instance case the complainant submits that, the opposite party is a dealer and authorized service center of TATA car. There is no dispute of the complainant with opposite party while he had previous services of his vehicle with the opposite party. For the subsequent service the complainant on 23.11.2016 handed over the above vehicle with the opposite party as per the terms and conditions of the contract it is the free regular service only the opposite party staff assured to the complainant the vehicle will be returned back by the evening itself, but as per the promise of the opposite party has not returned the vehicle on that day.  Regarding this fact the complainant personally had visited the opposite party service center many days and enquire about the states of the vehicle whether it is repaired or not for which, the opposite party replayed to the complainant that the spare parts are not available as soon as we get to the spare parts we will repair the car and handed over to you but they have not specified the time when they will return the car after servicing it.

13. In this circumstance the complainant made is mind to issued a legal notice on 17.12.2016 to the opposite party demanding to return the vehicle and also damage for delay in handing over the vehicle to the complainant.    After receiving this legal notice of the complainant the opposite party not chosen to give any reply in spite of that the opposite party return the vehicle on 26.12.2016 by keeping the vehicle unnecessary with them till the above said period.

14. The complainant case is that the complainant was earning not less than Rs.3,000/-  per day through hiring the above vehicle which he has lost due to delay in handing over the vehicle by the opposite party which has caused loss of income and hardship to the complainant.  Moreover, the complainant has purchased this vehicle by getting finance from TATA Motors finance.  Because of the negligent act of the opposite party he was not able to pay the EMI.  Therefore deficiency of service by the opposite party towards the complainant has caused inability to pay his regular EMI to the finance company and he had penal interest for delay in payment of EMI.  All together the complainant makes a claim against the opposite party for his loss of income for 34 days and penal interest paid to the loan amount availed for purchasing car and also faced monitory problem to maintained for himself and his family for food and other necessary expenses which has caused untold mental agony and hardship to the complainant due to the deficiency of service by the opposite party.

15. It goes without saying that it is bounden duty of the complainant to prove the averments made in the complaint against the opposite party by means of relevant evidence though the opposite party remained Ex-parte.  At the outset, on careful perusal of the evidence produced by means of proof Affidavit on the side of the complainant, it is learnt that the complainant has been purchased the vehicle from the opposite party through Exhibit A1.  The Registration certificate and the Motor vehicle cover note of the new India Assurance Company limited are marked as Exhibit A1 and Ex.A2 respectively.  Further the Tax Invoice issued by the opposite party to the complainant is marked as Ex.A3 and at the time of delivering the vehicle by the complainant with opposite party issued a job Card is marked as Ex.A4 and the legal notice sent by the complainant to the opposite party is marked as Ex.A5 and the complainant received the acknowledgement card from the opposite party is marked as Ex.A6.  It is further stated that the tax invoice filed by the complainant it is marked as Ex.A7 and TATA Motors Finance Limited Cardex I (Contract Details) filed on the side of the complainant which is marked as Ex.A8.

16. According to the facts and circumstances of the complainant case and thoroughly going in to the evidences filed on the side of the complainant it is clearly shows that the opposite party committed deficiency of service towards the complainant.  Exclusively the document Ex.A4 shows that the vehicle handed over for service on 23.11.2016 to the opposite party and vehicle has been delivered on 29.12.2016 only to the complainant proved by the document Ex.A7.  Therefore as pleaded by the complainant in his complaint the opposite party handed over the vehicle in delay of 34 days is crystal clearly proved. It shows that the opposite party committed deficiency of service against the complainant.

17. Regarding other issue of the complainant was earning not less than Rs.3,000/- per day through hire purchase of his vehicle, no evidence has been produced on the side of the complainant to substantiate his above stated. Further, the complainant claims in the complaint that he has paid penal charges to the non-payment of loan amount for the above said period with TATA Motors finance limited but there is no relevant evidence produced by the complainant to prove the said claim.  Therefore the complainant is not entitled to get relief as prayed in the complaint for prayer one and two.  From the above facts and evidence it goes without saying that, allegations made by the complainant against the opposite party with regard to the deficiency of service has been clearly proved.  Thus the point No.1 is answered accordingly.

18. Point No:2:-

At the outset, as per the decision arrived in the point No.1, this Forum came to conclusion that the complainant is entitled to get compensation for mental agony, hardship and strain occurred to the complainant and his family members due to the deficiency of service on the part of the opposite party. Thus the point No.2 is answered accordingly.

In the Result, this complaint is allowed in part.  Accordingly, the opposite party is directed to pay a sum of Rs.5,000/-(Five thousand only) towards compensation and with the cost of Rs.2,000/- (Two thousand only)towards the litigation expenses to the complainant.  Regarding other reliefs, this complaint is dismissed.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the President to the steno-Typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum on this 14^th September 2018.

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MEMBER                                                                       PRESIDENT

List of documents filed by the complainant.

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          MEMBER                                                                  PRESIDENT