BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 224 of 2018
Date of Institution : 07.09.2018
Date of Decision : 20.08.2019
Suresh Kumar son of Shri Hazari Lal, resident of House no.25, HUDA, Ward No.17, Ellenabad, Tehsil Ellenabad, District Sirsa.
……Complainant.
Versus.
- M/s Joy Honda, Ashwani Cars Pvt. Ltd., V 7 PO Moriwala, Hisar Road, Sirsa, District Sirsa, through its Manager/ Prop.
- M/s Joy Honda, Ashwani Cars Pvt. Ltd., Plot No.2, near Jeet Dharam Kanta, O.P. Jindal Marg, Hisar, District Hisar, through its Director/ Authorized Signatory.
- M/s Honda Car India Ltd., Plot No.A-I, Sector 40/41 Surajpura Kasana Road, Greater Noida, Gautam Budh Nagar- 201306 (UP), through its Director/ Authorized Signatory.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA………………. ……PRESIDENT.
SH. ISSAM SINGH SAGWAL……...MEMBER.
MRS. SUKHDEEP KAUR……………..MEMBER.
Present: Sh. Monu Verma, Advocate for the complainant.
Sh. Ashish Singla, Advocate for opposite parties no.1 and 2.
Sh. Ajay Bansal, Advocate for opposite party no.3.
ORDER
The case of the complainant, in brief, is that complainant purchased a new Honda City Car from opposite party no.2 and the same was got registered with the Registering Authority vide registration No.HR-44G/3989. That complainant availed regular service on this car from both the ops no.1 and 2 at Sirsa/ Hisar. That on 29.5.2018, the aforesaid car of the complainant met with a road side accident on Fatehabad bye pass. Thereafter, the complainant managed to send car to op no.1 for conducting necessary repairs on the same. The op no.1 promised that repair work will be completed within 15 days. It is further averred that on 11.6.2018, op no.1 sent an email at the e-mail ID of son of complainant and thereby intimated that the vehicle is ready and to take delivery. On 13.6.2018, son of complainant visited op no.1 for taking delivery of the car, but op no.1 refused for giving delivery by saying that vehicle is not ready for delivery. On the protest of his son, the op no.1 could not give any satisfactory reply to the same, however, op no.1 stated that due intimation will be given when the vehicle will be ready for delivery. That on 26.6.2018, the complainant also got served a legal notice upon ops for delivery of car to him, but the ops did not give any reply to the same. That thereafter, till 5.7.2018, the complainant did not receive any intimation from op no.1 about completion of repairs despite his inquiries and on every occasion, he was told that vehicle is not ready. It is further averred that on 5.7.2018, the complainant was present at petrol pump of Ellenabad, where he witnessed that his car was being driven by someone else and on seeing the same, the complainant got stopped the car and then found that an employee of op no.1 was driving the said car. The complainant asked from him where he was taking the said car, whereupon he told the complainant that he was on a private work of owner of op no.1. The complainant was shocked and surprised to hear this from the employee of op no.1, because the complainant was being told that the vehicle is not ready for delivery, but the vehicle was being used by op no.1 for its personal work. The complainant raised a strong protest with the said employee of op no.1 about using the car for personal work, then he left the car at the spot and fled away from the spot. The complainant noticed that the car was not fully and properly repaired. It is further averred that complainant inquired from op no.1 about making use of car for its personal use and for not delivery but op no.1 could not give any satisfactory reply to the same. That in this manner, the ops no.1 and 2 unauthorisedly and unlawfully kept the vehicle with them and did not deliver the same after conducting repairs on the same and used the same for their personal works, which amounts to criminal breach of trust. That the ops by their act and conduct have been indulged in unfair trade practice and have also committed gross deficiency in service towards the complainant and have caused harassment and mental agony to him. Hence, this complaint.
2. On notice, opposite parties appeared. Ops no.1 and 2 filed reply taking certain preliminary objections. It is submitted that the complainant had required the supervisor to deliver the car at his home. The car was delivered by the supervisor at the residential premises of the complainant. A false story has been put forth by the complainant. The complainant had presented his car for further repairs and same was delivered to the complainant well in time at the address provided by him. All other contents of the complaint are denied in toto and prayer for dismissal of complaint made.
3. Op no.3 in its separate reply resisted the complainant taking certain preliminary objections. It is submitted that all allegations made by complainant pertain to ops no.1 and 2 alone and not a single allegation can be made out against the answering op who has been unnecessarily dragged into the present proceedings. It is further submitted that legal relationship between the answering op and ops no.1 and 2 is derived from an express dealership agreement between the parties which strictly states it to be on principal to principal basis. There is no master agent relationship between the answering op and op no.1, therefore, the question of vicarious liability cannot arise. It is submitted that answering op is only obligated to the extent of repair or replacement of an individual part found to be defective that too within the parameters of the warranty policy. In the present case, the warranty policy provided by the answering op has ceased to operate due to the actions of the complainant i.e. rash and negligent driving causing a road side accident and therefore, no liability can be imposed on the answering op. Remaining contents of the complaint are denied. With these averments, dismissal of complaint prayed for.
4. The parties then led their respective evidence.
5. We have heard learned counsel for the parties.
6. Learned counsel for complainant has strongly contended that the complainant is the registered owner of the Car bearing registration No. HR-44G/3989 which met with an accident on 29.5.2018. The damage vehicle was taken to op no.1 for repair and they promised to deliver the duly repaired car within stipulated time, but however, they did not deliver the same. Op no.1 sent an email on the ID of the son of complainant on 11.6.2018 in which they apologized for the delay for the delivery of the vehicle and assured that they will not repeat the same in future, which is evident from Ex.C2. It has further been contended that on 26.6.2018 a legal notice was served to the ops calling upon them to deliver the vehicle to the complainant. Despite approaching a number of times to op no.1, the delivery of the vehicle was not made by ops. It has also been contended that on 5.7.2018, complainant saw his Car at the Petrol Pump at Ellenabad which was being driven by some employee of op no.1 and on inquiry he told that he has come with the vehicle in connection with personal work of the owner of op no.1. The vehicle was stopped and taken from that person. Gate pass was also recovered from the vehicle. It has further been contended that in this way, ops have committed criminal breach of trust and also committed deficiency of service for not carrying on repair of the vehicle well in time and further unfair trade practice for misusing the vehicle for the complainant for number of days.
7. On the other hand, learned counsel for ops no.1 and 2 has strongly opposed the contentions of learned counsel for complainant. It has been contended that as per contention of complainant, he approached op no.1 for delivery of the vehicle and same was not delivered on the due date. A letter of apology was written on 11.6.2018 through email, but however, second part of the letter clearly reveals that they have intimated that “Your vehicle is ready for delivery, you tell, if the vehicle is to be delivered to the house or you will come to pick yourself” which is evident in Ex.C2 relied upon by complainant himself. It has also been contended that vehicle was sent for delivery with gate pass to the complainant on 5.7.2018 and vehicle was taken into possession by complainant, but however, complainant did not sign the gate pass/ delivery challan Ex.C6 which has been produced by complainant himself in his evidence and proves the fact that delivery of the vehicle was made by op no.1 at the premises of complainant. The complainant even refused to sign the satisfactory note regarding the vehicle. There is no deficiency of service or unfair trade practice on the part of op no.1. Nothing was charged by op no.1 on account of repair of the vehicle as vehicle was fully insured and claim was claimed from the insurance company. It has also been contended that delay in delivery of the vehicle was due to the fact that son of complainant himself pointed out that certain parts are to be repaired further, as a result of which delivery of the vehicle could not be made well in time. Again complainant brought his vehicle for checking of parts which was done without any cost. The complaint is liable to be dismissed.
8. Learned counsel for op no.3 has contended that complainant has not leveled any allegations against op no.3 and as such complaint against op no.3 is not maintainable and liable to be dismissed.
9. We have considered the rival contentions of the parties and have perused the case file carefully.
10. Admittedly the complainant is owner of the car bearing registration No. HR-44G/3989 which was insured with insurance company. On 29.5.2018, the vehicle of complainant met with an accident and was damaged and same was taken to the workshop of op no.1 where necessary repair was carried out at the costs of insurance company under terms and conditions of the insurance contract and no amount was claimed by op no.1 on account of repair charges from the complainant. The bone of contention between the parties is qua delivery of the vehicle. As per contention of complainant, the delivery of vehicle after repair was not given well in time rather complainant had been approaching op no.1 time and again for taking delivery. As per contention of op no.1, vehicle was got repaired, but however, son of complainant came to take delivery of the vehicle and he pointed out certain defects in the repair work, as a result of which further repair was carried out and it took more time to deliver the vehicle after repair.
11. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A and copies of documents Ex.C1 to C10 and photographs Ex.11 to Ex.C13. On the other hand, op no.3 produced affidavit of Sh. M.K. Bipin Manager Legal as Ex.R3/A, authority letter Ex.R3/1 and copy of dealership agreement Ex.R3/2 and copy of warrantee booklet Ex.R3/3. Ops no.1 and 2 produced affidavit of Sh. Pavnish Garg, Director Ex.RW1/A and copies of gate pass and tax invoices etc. Ex.R1 to Ex.R7.
12. The perusal of Ex.C2 email reveals that same was sent by op no.1 to the complainant at the ID of the son of complainant by which request was made to the complainant to take delivery of the vehicle as it is ready and they apologized for the delay in car delivery and stated that in future it will not be repeated and they feel extremely sorry. In the second part of email, it is mentioned that “Your vehicle is ready for delivery, you tell, if the vehicle is to be delivered to the house or you will come to pick yourself”. This email has been tendered by complainant in his own evidence. The complainant has further tendered copy of legal notice Ex.C3 sent through counsel Sh. Mahesh Kumar Tiwari, Advocate, Ellenabad by which ops no.2 and 3 were called upon to release and hand over the vehicle to his client with compensation amount of Rs.10 lacs within a period of seven days. From email Ex.C2, it can be easily presumed that offer was made to the complainant to take delivery of the vehicle as same was ready for delivery after feeling sorry and in the second part of email, it was categorically mentioned that “Your vehicle is ready for delivery, you tell, if the vehicle is to be delivered to the house or you will come to pick yourself.” The complainant has not placed on record any other letter or reply to said email except a legal notice sent through counsel by which they called upon the ops to release and hand over the vehicle to his client meaning thereby that delivery of vehicle was to be made by op no.1 to the complainant at his place. So, it can be presumed that it was desire of the complainant that delivery should be made to the complainant at their own place.
13. The perusal of record further reveals that it has categorically been mentioned in the complaint by complainant that on 5.7.2018 they found the car at their petrol pump that someone was driving his car at Ellenabad and he stopped the car and took possession of the vehicle from that person and on inquiry the driving person explained that he has come for personal work of owner of op no.1 and as per contention of complainant, his car was being used by op no.1 for personal work without consent of complainant. The evidence of complainant reveals that complainant has tendered and relied upon Ex.C6 gate pass of the vehicle by which delivery of the vehicle was to be made. During the course of arguments, learned counsel for complainant himself has contended that this gate pass Ex.C6 was found in the vehicle when possession of vehicle was taken at Ellenabad but same does not bear signatures of customer i.e. complainant. So from this document, the defence plea of ops finds corroboration that their person had gone to Ellenabad to deliver the vehicle alongwith this gate pass in order to get same signed from the complainant on their calling upon by the complainant through legal notice to deliver the vehicle in response to the email Ex.C2 of op no.1. So, this contention of the complainant that vehicle was being misused by op no.1 while driving the same at Ellenabad appears to be devoid of any merit. Moreover, complainant has not led any other cogent and convincing evidence in order to prove his allegations in the complaint qua misuse of his car by op no.1. The complainant has failed to disclose the name of the person who was driving the vehicle at the time when he took possession of the vehicle. The complainant did not issue any receipt of taking possession of the vehicle from the person of op no.1 who was driving the vehicle. So, it appears from the evidence on record that vehicle was delivered to the complainant at Ellenabad as per his own will and choice.
14. In view of our above discussion, the complaint of the complainant appears to be devoid of any merit and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. Member Member President,
Dated:20.08.2019. District Consumer Disputes
Redressal Forum, Sirsa.
