Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This appeal is filed by original Complainant whose complaint was dismissed by the District Forum by giving judgement in Consumer Complaint No.174/2006 decided on 04.01.2010.
(2) Facts to the extent material may be stated s under:
The Complainant had purchased Honda Car bearing No.MH-01-PA-2248 from the Opponent Company on 09.06.2005 and at the time of purchase of the Car one booklet was given by the dealer as to how car should be used and how the car should be brought within time for free servicing. As per booklet three free services were offered to the Complainant’s car. The booklet stipulated that servicing of the car on the stipulated date is must for proper maintenance of the car. First servicing was done in time while second servicing was due on 10.09.2005. On that day the car had travelled 5000 kilometers distance. The Complainant states that on 10.09.2005 when second servicing was due it should have been given, but, Opponent did not give free servicing to his car on 10.09.2005 and thereby opponent is guilty of deficiency in service. According to Complainant he had made communication after communication for second servicing. The Opponent had given date of 28.10.2005 as a date of second free servicing. However, on 28.10.2005 second servicing was not done. It was done ultimately on 07.11.2005 and third servicing was done on 07.02.2006. According to Complainant giving of free servicing was the contractual liability of the Opponent. Opponent failed in giving free servicing on the stipulated date and therefore, he was guilty of deficiency in service. He further pleaded that in case the car develops any technical defects in future because of not offering second servicing on the stipulated date it shall be the risk and liability of the Opponent in not giving second free servicing to the Complainant’s car. It is also pleaded by the Complainant that third free servicing was also not given on stipulated date. It was given after 44 days gap than the stipulated period. It is further pleaded by the Complainant in the complaint that Complainant had also taken extended guaranty for the period of two years by paying `10,965/- extra. He claims that even after paying in advance for the extended warranty of two years he expects that he should be given prompt servicing and since servicing was not given Opponent is deficient in service pleaded that Opponent should be directed to replace the car or he should be given compensation of `17,00,000/- for the alleged deficiency in service on the part of the Opponent.
(3) Opponent was issued notice and Opponent contested the matter by filing written statement. Opponent pleaded that second servicing was fixed on 28.10.2005, but that date was not convenient to the Complainant and on his request second servicing was postponed and it was got done on 07.11.2005. According to opponent after purchase of the car as per service manual second free servicing was required to be given after 3 months or after the travel of 5000 kilometers distance whichever is earlier. Three months were over on 10.09.2005, so on that date servicing should have been given as per warranty. But, second servicing was done only on 07.11.2005. On one occasion it was the Complainant’s request to postpone the date because date given to him was not suitable for bringing the car to the garage. Opponent further pleaded that in July, 2005 in Mumbai there was unprecedented flood situation all over Mumbai and so many cars were damaged in the flood and there was heavy pressure on the garage of the opponent in carrying repairs and because of this unprecedented situation there was delay on their part in giving free servicing to the Complainant’s car, but, opponent pleaded that the car is in good working condition. Complainant has nowhere complained in the complaint that car is having any defect and they have not removed. Opponent pleaded that this was nothing but an act of God for which opponent should not be blamed. Opponent pleaded that third servicing was done to the Complainant’s car on 7th February, 2006 as per convenience of Complainant, though it was due on 23.12.2005. Opponent therefore pleaded that they are not guilty of deficiency is service and Complainant was not at all entitled to get replacement of the car or compensation of `17,00,000/- as claimed by the Complainant in his complaint.
(4) Upon perusal of affidavits and documents placed on record and upon hearing rival Counsels, the District Forum gave clear cut finding that Complainant had failed to prove that there was deficiency in service on the part of the Opponent and Complainant had also failed to prove that he was entitled to get car replaced or that he was entitled to get compensation of `17,00,000/- as demanded by him. As such, the Forum was pleased to dismiss the complaint and directed both parties to bear their own costs.
(5) Being aggrieved by this dismissal of the complaint, the original Complainant has filed this appeal.
(6) We heard submissions of Ms.Rashmi Manne, Advocate, proxy for Mr.U.B. Wavikar, Advocate for the Appellant and Mr.Farahan Dubhash @ Mr.Rishit Badiani, i/b Hariram & Co. for Respondent.
(7) We perused the impugned judgemnet passed by the District Forum. We are finding that there is virtually no substance in the appeal preferred by the Appellant. It is true that appellant was entitled to get second service done for which particular time was stipulated, but, there was delay of about 48 days in second service because of the act of God. In July, 2005 there were heavy rains in Mumbai at the unprecedented scale and thousands and lacs of cars were damaged because of flood water and there was heavy rush of the customers to every service centre or garage for getting the cars repaired which were damaged in the heavy flood. In such unprecedented situation the Respondent herein, no doubt might have given second servicing belatedly to the Complainant after about 48 days, but third servicing was also delayed as it was postponed because second service was delayed by 48 days. However, we enquired from the Appellant’s Counsel whether car was working in order or it had developed any defect because of delay in giving second free servicing on the part of the Opponent to the Complainant. Counsel could not satisfy us that there was any defect developed because of delay in second free servicing given by the Respondent.
(8) In the circumstances, we are finding that car is running properly despite the fact that there was delay in giving second free servicing to the Complainant’s car. So, merely because there was delay of 48 days in giving servicing that itself cannot be a ground to claim damages or to claim ipso facto of replacement of new car. Unless the Appellant proves to the satisfaction of this Commission that because of delayed servicing given by the Respondent the Car was damaged, no compensation of any kind can be made payable by the Respondent to the Appellant. The delay on the part of Respondent in giving second servicing free is properly explained by the Respondent and this delay was just and proper in the circumstances obtainable. In the circumstances, we are finding that there is no substance in appeal and for simple delay in giving second free servicing no compensation can be directed to be paid by Respondent to the Appellant. In the result, we pass the following order:
O R D E R
(i) Appeal stands dismissed.
(ii) Parties are left to bear their own costs.
(iii) Inform the parties accordingly.
