ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in providing him a car with AC malfunctioning and for refund of Rs.8,506/- collected from him towards booking of the car and for Rs.40,000/- towards the expenditure incurred by him as OP did not provide alternate vehicle and for Rs.4,50,000/- towards compensation for the hardship, inconvenience caused and harassment suffered and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant booked a Zoom car for his requirement for a trip in Rajasthan from 3^rd August to 8^th August 2019. He booked the car from Bangalore on 28,05,.2019 by paying Rs11,505/-, out of which Rs.2,999/- is a refundable deposit.  The car booked was Ford Figo for his and his friends trip at Rajasthan.  Complainant landed in Jaipur on 03.08.2019 and went to pickup the car at the notified place.  When he was to take the delivery of the car, he took the photographs of the vehicle and made a video from outside.  The vehicle had damages outside, in the front and when enquired with the officials of OP, they agreed in respect of the damages on the front side, but informed him that the vehicle is in a good running condition.  Though he requested for the exchange of vehicle, they prevailed on him to take the said vehicle only. Left with no alternative, he took the vehicle and started his journey. Immediately he found that the air condition of the vehicle was not working properly. The same was brought to the notice of the OP, but, no alternate vehicle was provided.  When they started journey to Pushkar to visit the Brahma temple, the air cooler of the vehicle completely stopped working.  Himself and his friends suffered suffocation inside the car due to non working of the AC.  The same was brought to the notice of the customer care of the OP which did not respond properly and also not provided the address of service centre for repair.  Afterwards, he located a service centre at Jodhpur which was 200 kms., away.  He was compelled to drie the vehicle without air condition in the hot sun and they were made to inhale the gases emitted by other vehicles on the road, which aggravated his asthmatic condition.  The ford service centre informed him that the air condition was not working and entire cooling unit of the car has failed and it was unsafe and risky to drive the car in the extremely hot condition, which could seize the engine.  Even it informed that it would take a week to get it set right.  He also came to know that the said car had met with accident earlier and hiding the said fact, OP handed over the car for the use of the complainant to make illegal profits at the risk of the complainant.  The complainant informed to OP and requested to send the representative for the joint inspection for which OP did not agree. He made the video of the damage that has caused to the car. They had to walk two kms., from the service station to find a travel agency to get a car for sightseeing at Jodhpur by paying Rs.5,000/- as the car hired by them from OP was not usable.  The complainant last his time and also money for the taxi.  

3.      It is contended that after returning to Bangalore, he started following up OP for refund and for closure of the trip.  On 14.08.2019, the security deposit along with fuel bill was refunded.  When he requested for refund of the entire booking amount and the damages they suffered for deficiency in service and negligence, OP started demanding from him Rs.10,000/- towards the damages caused to the vehicle.  When correspondences made by sharing the video of the car, OP agreed that there is deficiency in service on its part and agreed to refund Rs.4,795/-.  Afterwards OP suddenly made a u-turn and demanded Rs.10,000/- for the damages caused to the car.  He was also threatened by OP that they would take civil and criminal action against him to recover the same, and damage his CIBIL rating and it is an arm twisting act of the OP. Since there is deficiency in service and unfair trade complainant filed this complaint.

4.      Upon the service of notice, OP remained absent and hence placed exparte.  Afterwards he made an application under order 9 rule 7 CPC and also u/s 151 CPC to set aside the exparte order and to permit him to file the version. The same was rejected on 24.11.2020.  No Appeal or Revision Petition has been preferred against the said order to set aside.

5.      In order to prove the case, complainant has filed affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

7.     POINT No.1:-

   Perused the complaint, affidavit evidence and the documents produced by the complainant.  It is borne out from the record that the complainant booked a car for the trip to start at 8 am., on 3^rd August 2019 and to end at 4 pm on 8^th August 2019 by paying a booking fee of Rs.17,012/- of which Rs.8,506/- was discount.  A sum of Rs.12/- would be charged after first 1280 kms., and 1280 kms., would be free.  Total cost for the trip mentioned is Rs.8,506/- and the refundable deposit amount is Rs.2,999/-. The conditions have been spelt out in the read our free policy.  There is exchange of email and in one of the email OP has apologized for the inconvenience caused and also due to technical issue the damage charges were wrongly added and the same has been checked with and reversed and also complainant has demanded for refund of the booking fee.  Though OP has claimed in one of the email that the vehicle given to the complainant was undergone extensive and in depth inspection process prior to pick up and post drop, no such document or its inspection report has been filed by the OP.  

        8.     When all these facts and circumstances are taken into consideration, it becomes clear that the OP has provided a faulty vehicle to the complainant for their travel.  It is the most responsibility of the OP to provide a proper well maintained, trouble free vehicle for the member to drive the vehicle as the customers will book the car to drive on their own along with their friends or family members to have the pleasure of privacy and convenience.  If a defective vehicle was given and there was some trouble or mechanical brake drown on the road, the entire purpose of hiring a self driving car would defeat and the pleasure of a private trip is gone forever and are running this life risk. 

        9.     Further OP has also sent a notice demanding the complainant to pay Rs.10,000/- for the damages caused to the vehicle.  No report of accident or damage said to have been caused by the complainant is produced before the forum.

        10    Under these circumstances, the contention of the complainant regarding providing a defective car has remained unchallenged and also the demand of Rs.10,000/- for damage said to have been caused is proved by producing the demand notice. Hence we answer point No.1 in the affirmative.

11.   POINT NO.2:

        In the complaint, the complainant has sought for refund of the amount paid towards booking.  He has also sought Rs.40,000/- for the expenditure incurred and Rs.4,50,000/- for the damages for suffering mental harassment, inconvenience and hardship.  No proof is produced in this regard.  No documentary proof of spending Rs.40,000/- for the repair charges of vehicle or for hiring an alternate vehicle is produced.  Further it is the cardinal principle of granting damages that it shall not be a bounty or luxury for the claimant, whereas it should be just and reasonable.

        12.   When this is taken into consideration, no material is placed before the forum. Even though the complainant has said that they hired taxi for sightseeing at Jodhpur by paying Rs.5,000/-.  No receipt in respect of the same is also produced. Since the complainant has used the car booked by him with OP and though it is defective he has not abandoned the car in the very inception itself as he was very well knowing that the AC was not working. When he came to know that the AC was not working, he ought to have left the vehicle then and there and claimed refund of the amount and making his own alternative arrangement.  He has used the vehicle though not fully for the trip at least for the major portion of the same. Hence he is not entitle for refund of the booking amount, whereas he is only entitle for the damages for suffering mentally and physically and hence we award a sum of Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses. Hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses to the complainant.
3. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 09^TH  DAY OF MARCH 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the booking summary dated 28.05.2019

Ex P2: Email communications

Ex. P3: Copy of the invoice

Ex P4: Letter dated 29.08.2019 received by email

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                                        PRESIDENT