| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Wednesday, the 17th day of July 2024 CC.485/2012 Complainant Mohammed Shihas, S/o M.A. Hashim, Spice Apartments, East Hill Road, P.O. East Hill, Calicut. Opposite Parties - M/s Vision Motors,
Near Vikram Maidan, Barracks Junction, West Hill, Kozhikode. Represented by its Manager. - M/s Vision Motors,
Kunnathumkara, Ollukkara (P.O), Paravattani, Thrissur. Represented by its Manager. - M/s Skoda Auto India Pvt. Ltd,
Plot No. A1/1, Shentra, 5 Star Industrial Area, Aurangabad – 431 201. (OP1 and OP2 – By Adv. Sri. K. Madhu Mohan, OP3 – By Adv. Sri. Shahir Singh)) ORDER By Sri. P.C. PAULACHEN – PRESIDENT. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - The case of the complainant, in brief, is as follows:
The complainant is the user with approval of the Skoda Superb Car bearing registration No. KL-43-2562, besides being the power of attorney holder of the owner Sri. Afthab Kodakkadan, who is now abroad. The complainant has been in use of the car since 13/01/2011. On 16/05/2012 the complainant noticed water coolant leak in the car. On intimating the same to the service manager of the first opposite party, who is the authorised dealer in Kozhikode for Skoda, he was asked to bring the car to the service centre at Kozhikode. On enquiry, the complainant came to know that it was a non-operational service centre. The complainant informed the first opposite party that the car was not in a fit condition to be driven due to water coolant leak and then the first opposite party sent service personnel to inspect the car. The service personnel after inspecting the car was also of the opinion that the car was not in a fit condition to be driven and they told that the service centre of the first opposite party had not started functioning and hence the car had to be towed to their service centre at Thrissur (second opposite party herein). - Accordingly on 19/05/2012 the car was towed to the second opposite party and the complainant was asked to pay Rs. 7,000/- as towing charges. Even after 10 days, there was no communication from the opposite parties. On 29/05/2012 the complainant personally met the sales manager of the first opposite party, who informed that it would take 15 days for arrival of spare parts. On 30/05/2012 the complainant issued an e-mail to the first opposite party enquiring about the delay in handing over the car after service. He had also demanded refund of the towing charges.
- On 06/06/2012 a reminder e-mail was sent to the first opposite party with copy to the Skoda Automobiles, but no reply was received. Another reminder e-mail was sent to the customer care of skoda automobiles on 08/06/2012, which also evoked no response. However, on 15/06/2012 the car was finally repaired and the same was informed to the complainant and he had gone to the Kozhikode service centre as instructed for taking delivery of the vehicle. When the complainant inspected the car, it was noticed that the front row left side leather upholstery was in a damaged condition. There was dampness in the seats. There was water in the floor and the floor mat was wet. Water was present at the left side, front side and on the floor. The leather upholstery was the original upholstery supplied by the manufacturer. The complainant signed the satisfaction note under protest after writing the reasons for the protests. He paid Rs. 16,284/- as service charges under protest.
- There was gross negligence and deficiency of service on the part of the opposite parties. He is entitled to get the money spent by him towards towing charges as the opposite parties were duty bound to repair the vehicle at Kozhikode itself. There was unreasonable delay on the part of the second opposite party in delivering back the vehicle after repairs. The car was retained by the second opposite party for about one month, which is not justifiable. The opposite parties are liable to compensate the complainant by providing new genuine leather upholstery for the vehicle. Besides, the complainant was put to severe mental agony and inconvenience due to the negligence and latches on the part of the opposite parties, for which, they are liable to compensate him. Hence the complaint seeking refund of Rs. 16,284/- collected towards bill for repairs, refund of Rs. 7,000/- paid towards towing charges and compensation of Rs. 2,00,000/- for the mental agony and suffering caused. Further the opposite parties are to be directed to replace the entire upholstery of the car, or in the alternative, pay an amount of Rs. 3,00,000/- towards its replacement.
- The opposite parties have entered appearance. The first and second opposite parties have jointly filed written version denying and disputing all the allegations and claims made against them in the complaint. No written version is seen filed by the third opposite party.
- According to the first and second opposite parties, the complaint is not maintainable either in law or on facts. No part of the cause of action has arisen within the jurisdiction of this Commission. The averment that the complainant is the user with the approval of the car in question and that he is the power of attorney holder of the registered owner is not admitted.
- It is true that they had informed the complainant that their service centre at Kozhikode had not become operational and requested him to take the vehicle to any approved operational workshop of his choice. But the complainant wanted the car to be taken to the second opposite party. Accordingly, they sent a technician and on inspection it was found that the car was relatively old being 2006 model and it was not in a fit condition to be driven to Thrissur. On the request of the complainant M/s Mythree Crane Service agreed to carry the vehicle on flat bed to Thrissur for Rs. 7,000/-, out of which, the complainant paid Rs. 2,000/- as advance. The opposite parties had no role in the decision of the complainant to have the care repaired at Thrissur and also tow the same to Thrissur.
- After inspection of the car, orders were placed by the second opposite party for necessary spare parts to be sent by the manufacturer. No commitment was given regarding the delivery time of the car. After repairs, the second opposite party had arranged the vehicle to be driven to Kozhikode, on the request of the complainant and it was delivered to him after collecting the repair charges as well as Rs. 5,000/- payable to the crane service. At that time, the complainant had made an illegal demand that towing expenses should be borne by the second opposite party, which was rightly refused by them. The complainant then threatened that he would teach them a lesson. It is incorrect to say that the front left seat upholstery got damaged due to the negligence of the second opposite party. This damage was there when the vehicle was brought to the second opposite party for service. There was neither any negligence nor unreasonable delay in attending the vehicle. The opposite parties are not liable for refund of any amount or pay any compensation as claimed. The complaint is devoid of merits. With the above contentions, the first and second opposite parties pray for dismissal of the complaint with compensatory costs.
- The points that arise for determination in this complaint are;
- Whether the complaint is maintainable?
- Whether there was any deficiency of service on the part of the opposite parties, as alleged?
- Reliefs and costs.
- Evidence in this case was recorded by our learned predecessors-in-office which consists of the oral evidence of PW1 and Exts A1 to A5. No evidence was let in by the opposite parties.
- Heard. The complainant filed argument note.
- Point No. 1: The opposite parties have taken a contention in the written version that the complaint is not maintainable as the complainant herein is not the registered owner of the vehicle. Ext A1, the copy of the registration certificate, shows that Sri. Afthab Muhammed Kodakkadan is the registered owner of the vehicle. But it may be noted that the complainant has filed the present complaint as he is the user by approval of the vehicle in question. So he is a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. Moreover, he is the power of attorney holder of the registered owner as per Ext A2. The power of attorney holder can file consumer complaint on behalf of the complainant. On this ground also, the contention of the opposite party cannot be sustained.
- Another contention of the opposite parties is that this Commission has no jurisdiction to entertain the complaint as no part of the cause of action has arisen within the jurisdiction of this Commission. The learned counsel for the complainant has pointed out that part of cause of action has arisen in Kozhikode. We find much force in the contention. The first opposite party is situated at Kozhikode within the jurisdiction of this Commission. The complaint to the vehicle arose in Kozhikode. The said complaint of coolant leakage was informed to the first opposite party, which is situated in Kozhikode. The first opposite party sent service personnel to inspect the car and it was towed to the service centre at Thrissur as per the instruction of the first opposite party as the service centre at Kozhikode, was non-operational. The delivery of the repaired vehicle was made to the complainant at Kozhikode. The repair charge was paid at Kozhikode. The damage in the interior of the car was noticed at Kozhikode. Thus the cause of action in part has arisen within the territorial jurisdiction of this Commission. Therefore this Commission has territorial jurisdiction to entertain the complaint.
- The complaint is not time barred. The complainant is alleging unfair trade practice and deficiency of service on the part of the opposite parties. So the grievance of the complainant will come under section 2(1)(c), (g) and (r) of the Consumer Protection Act, 1986.
- For the aforesaid reasons, we have no hesitation to hold that the complaint is perfectly maintainable and this Commission has ample jurisdiction to entertain the complaint.
- Point No 2: The complainant has approached this Commission claiming compensation for the alleged deficiency of service and unfair trade practice on the part of the opposite parties. The complainant is the user with approval of the Skoda Superb Car bearing registration No. KL- 43-2562, owned by Sri. Afthab Kodakkadan, who is now abroad and who has appointed the complainant as his power of attorney holder.
- Going by the pleadings, it can be seen that the main grievances projected in the complaint against the opposite parties are 3 in number. The first grievance is that he was made to spend Rs. 7,000/- towards towing charges for towing the vehicle to the service centre at Thrissur whereas the opposite parties were duty bound to repair the car at Kozhikode itself. The second grievance is that there was unreasonable delay in delivering back the car to him after repairs. The third grievance is that the upholstery of the car was damaged due to the negligence of the second opposite party.
- In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Exts A1 to A5 were marked through PW1. Ext A1 is the copy of the registration certificate, Ext A2 is the copy of the power of attorney, Ext A3 is the copy of the e-mail dated 06/06/2012, Ext A4 is the photographs of the damaged seats and Ext A5 is the copy of the satisfaction note signed by the complainant under protest.
- Now let us look in to the first grievance regarding payment of towing charges. Admittedly, the towing/crane service expenses was met by the complainant. According to the first and second opposite parties, Rs. 2,000/- was paid to M/s Mythree Crane Service as advance by the complainant and the balance Rs.5,000/- was collected by them at the time of delivering back the vehicle. According to the opposite parties, they had no role in the decision of the complainant to have the car repaired at the second opposite party workshop and also to tow the same to Thrissur for that purpose. It is an admitted fact that there was coolant leak in the car and it was not in a fit condition to be driven to the service centre. Admittedly, the service centre at Kozhikode was not operational at that time. So the complainant had no other option than to approach the nearest service centre available. It is the duty of the manufacturer to make requisite arrangements and network for having service centres before marketing the vehicle. The failure to have a full-fledged operational service centre at Kozhikode, amounts to deficiency of service. The first opposite party was duty bound to repair the vehicle at Kozhikode itself. The complainant was constrained to tow the vehicle to Thrissur, due to the latches on the part of the opposite parties in making necessary arrangements and network for having sufficient service centres. The complainant, being a customer, should not be made to suffer for want of service centre at Kozhikode. Hence, according to us, this is a fit case where the opposite parties should be directed to pay a sum of Rs. 7,000/- to the complainant which was paid by him as towing charges for taking the vehicle to the service centre at Thrissur.
- Now the grievance regarding unreasonable delay in delivering back the vehicle after repairs is to be considered. Admittedly, the car was entrusted to the second opposite party for repairs on 19/05/2012. The car was repaired and was ready for delivery only on 15/06/2012. There was delay of nearly one month in repairing the water coolant leak. It has come out in evidence that the complainant had been issuing remainders and was contacting the opposite parties enquiring about the unreasonable delay. The explanation offered by the opposite parties is that there was delay in procuring the spare parts, for which, orders had to be placed by the second opposite party to get the same from the manufacturer. It is the duty of the opposite parties to make necessary arrangements and provision for prompt supply spare parts. It is for the opposite parties to ensure availability of the spare parts. There is no justification for making the complainant wait for such a long period for lack of co-ordination among the opposite parties in the matter of supply of spare parts. The unreasonable delay is not justifiable especially when any alternative arrangement for travel is not arranged to the complainant by the opposite parties. The unreasonable and inordinate delay in handing over the vehicle after repairs by itself amounts to gross deficiency of service, which, undoubtedly, has put the complainant in to severe mental agony, hardship and inconvenience.
- Yet another grievance of the complainant is that the entire upholstery of the car was damaged due to the negligence of the second opposite party. PW1 has categorically deposed that on delivery of the vehicle it was noticed that the upholstery of the car was in a damaged condition and there was dampness on the seat and water on the floor and the floor mat was also wet. There is no reason to disbelieve PW1. Even though PW1 was cross examined at length, nothing has been brought out to discredit his version in this regard. The protest endorsed in Ext A5 also lends support to the case of the complainant. There is nothing in evidence to indicate that the opposite parties have objected the complainant noting the protest in Ext A5. If what is stated therein was untrue, naturally the opposite parties would have raised objection in making such an endorsement of protest in the satisfaction note. Ext A4 photograph also supports the same. Ext A4 show that the upholstery is in a damaged condition.
- The case tried to be set up by the opposite parties is that the damage of the upholstery was there when the vehicle was brought to the second opposite party for repairs. Obviously, the vehicle will be inspected by the second opposite party before receiving in the workshop for service and the details of damage etc, will be noted. No such document evidencing damage to the upholstery at the time of entrustment of the vehicle for service is forthcoming. No evidence is let in by the opposite parties in support of the contention that the damage to the upholstery was existing at the time of entrustment of the vehicle for the repairs. None of the opposite parties has entered the box. They did not file affidavit to prove the contents in the version filed. The evidence of PW1 coupled with Ext A4 would prove that damage was caused to the seat upholstery due to the negligence and latches of the second opposite party.
- To sum up, we hold that there is proof of deficiency of service on the part of the opposite parties. As already stated, the opposite parties are liable to pay a sum of Rs. 7,000/- to the complainant, being the towing expenses paid by him. The complainant has claimed Rs. 3,00,000/- towards replacement of the leather upholstery. Admittedly, the vehicle was 2006 model and the incident was in 2012. So the claim for Rs. 3,00,000/-appears to be excessive. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 1,00,000/- is to be granted towards replacement of the upholstery of the car. Apart from this, complainant deserves to be compensated adequately for the mental agony and suffering caused to him due to the deficiency of service of the opposite parties. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 20,000/- will reasonable compensation in this regard. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings. The opposite parties are jointly and severally liable.
- The complainant has claimed refund of Rs. 16,284/- collected from him towards bill for repairs. The complainant has no case that the repairs were not done to the satisfaction of the complainant. On the other hand, PW1 has admitted in the cross examination that he has no complaints with regard to the repair work carried out by the second opposite party. That being so, the claim for refund of the repairing charges is not allowable.
- Point No. 3:- In the light of the finding on the above points, the complaint is disposed of as follows;
a) CC.485/2012 is allowed in part. b) The opposite parties are hereby directed to pay a sum of Rs. 7,000/-(Rupees seven thousand only) to the complainant, being the towing charges paid by him. c) The opposite parties are directed to pay a sum of Rs. 1,00,000/- (Rupees one lakh only)to the complainant towards cost of replacement of the upholstery of the car. d) The opposite parties are directed to pay a sum of Rs. 20,000/- (Rupees twenty thousand only) as compensation to the complainant for the mental agony and hardship suffered. e) The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainant. f) The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 7,000/-, Rs. 1,00,000/- and Rs.20,000/- stated above, shall carry an interest of 9% per annum from the date of this order till actual payment. g) The opposite parties shall be jointly and severally liable to pay the amount as afore stated. Pronounced in open Commission on this, the 17th day of July, 2024. Date of Filing: 12/11/2012 Sd/- Sd/- PRESIDENT MEMBER APPENDIX Exhibits for the Complainant : Ext A1 – Copy of the registration certificate. Ext A2 - Copy of the Power of Attorney. Ext A3 – Copy of the email dated 06/06/2012. Ext A4 – Photographs of the damaged seats. Ext A5 – Copy of the satisfaction note signed by the complainant under protest. Exhibits for the Opposite Party NIL Witnesses for the Complainant PW1 - Mohammed Shihas (Complainant) Witnesses for the opposite party NIL Sd/- Sd/- PRESIDENT MEMBER True Copy, Sd/- Assistant Registrar. | |
