BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                             C.C.No.7/2012

Dated this the 5^th day of July 2016

(Date of Institution: 18.04.2012)

Ipour M. Ramakrishnan, son of  Ipour R. Munusamy

No.254, Lal Bahadur Sastri Street,

Pondicherry 605 001.

….     Complainant

vs

1. M/s Lanson Cars Private Limited rep. by its

    Authorised Signatory            

    No.18, Ellaipillai Chavadi Main Road

    (Near Rajiv Gandhi Statue), Puducherry – 605 009.

2. M/s Lanson Cars Private Limited, Head Office,

    Rep. by its Authorised Signatory 

    No.34, Poonamallee High Road

    Koyambedu, Chennai – 600 107.

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru S.P. Vassudevan, Advocate

FOR THE OPPOSITE PARTIES: Tvl. L. Swaminathan and I. Ilankumar,

Advocates.

O R  D  E  R

(by Thiru V.V. STEEPHEN, Member)

              This is a complaint filed by the complainant u/s 12 and 13 of Consumer Protection Act for ;

1. Directing the Opposite Parties to deliver the car to the complainant;  
2. Directing the Opposite Parties to pay a sum of Rs.1,32,478/- (As per Bill No. 1573, 1599, 1600, 1605) which has been paid to M/s Shivam Travels, Puducherry;
3. Directing the Opposite Parties to pay a sum of Rs.1.00 lakh towards compensation for mental agony, deficiency in service and other losses sustained by the complainant;
4. to pay the cost Rs.20,000/- towards this complaint.

2.  The case of the complainant is as follows:

          The complainant purchased a Toyoto Corolla Car, vide Invoice No.A2005000144, bearing Registration Number  PY-01-AD-1777 from the first opposite party on 15.12.2005.   The said car is being serviced by the first opposite party from the day one till now.   He used to park his vehicle at Door No.27 Second Cross, Rainbow Nagar, and Puducherry.   That during the month of October to November 2011, there was a heavy rainfall all over the state of Puducherry. Particularly on 26.10.2011, there was heavy rainfall and the surroundings of the Rainbow Nagar were flooded with heavy rain water.  On that date, the rainwater came into the parking area of the complainant's house and thereby the complainant's car was fully covered with said rain waters.  This happening was immediately informed to the first opposite party company on the same date i.e on 26.10.2011.  But the first opposite party people came to the spot only on 28.10.2011 and took the car to their place.   On 09.12.2011 the first opposite party raised an invoice, wherein the first opposite party has mentioned all their charges on various heads. The same was duly accepted by the complainant and the matter was also duly informed to his insurer M/s. New India Assurance Company Limited, Puducherry.   From the month of November 2011, the complainant was regularly asking the first opposite party to deliver the car after due completion of all aspects.   But, as and when he called, some evasive reply were given by their service people.  But, no confirmation was given about the delivery of the vehicle till now.  Due to the act of the Opposite Party and having failed to deliver the car within the reasonable time, the complainant has incurred lot of expenses and losses by hiring cabs for his daily local trips and trips to Bangalore and Chennai in all these months.   The complainant further beg to state that he has planned to spend his Christmas and Pongal Holidays with his family in Kodaikanal.  But due to the aforesaid act of the Opposite Party he was forced to cancel his trips to Kodaikanal and cancel his commitments. The delay caused by the first Opposite Parties is not only inordinate, unwanton but unacceptable and the Opposite Parties put the complainant into maximum hardships, stress, financial loss and mental agony.   The complainant was constrained to issue a legal notice to the first Opposite Party on 12.01.2012.   The said notice was acknowledged by the first Opposite Party on 14.01.2012.   Further the same has been intimated to the second Opposite Party vide notice dated 21.01.2012.   Thereafter, after a period of twenty days i.e. on 07.02.2012 the first Opposite Party has sent a vexatious reply notice. The same was acknowledged by the complainant on 09.02.2012. Deficiency in Service.   Hence,  this complaint.

3. The reply version filed by the first opposite party and adopted by the second Opposite Party briefly discloses the following:

          The complaint is not maintainable either in law or on facts. The complainant,  only to achieve unlawful gains through suppression of material facts has approached this Forum with unclean hands.   Further, the present complaint is barred by Limitation.   The Registration Number of the Vehicle of the complainant is not given by the Opposite parties.  The First Relief sought by the complainant had already become infractions as the complainant has taken delivery of car without any remarks on 22-02-2012 itself.  The Opposite party is no way responsible for flooding of rain water in Rainbow Nagar and it is the owner of the vehicle ought to have been vigilant and careful in parking the car.   Further,
M/s New India Assurance Company Limited being the Insurer had inspected the car of the complainant and the charges raised by the Opposite Party for the repair of the car are paid by the Insurance company to its admissible extent and the complainant is not aggrieved as against the invoice raised by the Opposite Party which is evident from the relief sought in the Person complaint.  Further, after receipt of Legal Notice dated 12-01-2012, Reply Legal Notice dated 07-02-2012 was issued to the Complainant's Counsel by clearly stating that the Car can be taken delivery on or before 13-02-2012 which the Complainant is fully aware of.   The Complainant for his own personal reasons had evaded to take delivery of the Car on or before 13-02-2012 and after filing of this complaint on vexatious grounds had taken delivery of the Car on 22-02-2012. Thus it is  clear that the Complainant had approached this Forum without any cause of action and the complaint has to be dismissed with heavy cost. The Opposite parties cannot be held responsible for the travel to Bangalore, Chennai in Taxi as the Complainant is well aware about the defects of the Car and the duration for repair. Further the Complainant was also clearly informed to take delivery of the Car with old seat cushion fitted for a Temporary period but however the complainant was very particular to have a new Driver Sear Cushion. The complainant is not aggrieved against the repairs of the Vehicle executed by the Opposite party.   Hence, prayed for dismissal of the complaint with costs.

 4.      On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C13 were marked.  On the side of the opposite parties, no witness was examined.  However, Ex.R1 alone marked through CW1 during cross-examination.

5.  Points for determination are :

1. Whether the Complainant is a Consumer?
2. Whether the complaint is barred by limitation?
3. Whether the opposite parties attributed to any deficiency of service?
4. Whether the  complainant is entitled for any relief?

6.  Point No.1:

          It is submitted by the complainant that that the complainant has purchased a Toyota Car vide Regn. No. PY 01 AD 1777 (Ex.C1) from the first opposite party who is the authorised dealer and service centre of the Lanson Toyota Car and having its registered Head Office at Chennai, the second opposite party herein.  The complainant further submitted that the car mentioned herein parked at the residence of the complainant got damaged due to flooding caused by heavy rainfall occurred in the month of 2011 and on request by the complainant, the first opposite party took the said car for service to set right the damage caused by the rain (Ex.C2).  In this context, it is observed by the Forum that since the complainant has availed the service for his car from the first opposite party being authorised dealer and Service Centre of the Toyota Car and the second Opposite Party being the registered Head Office of the first Opposite Party, the complainant is construed to be a Consumer as per Sec. 2 (1) (d) (ii) of the Consumer Protection Act.  This point is answered accordingly. 

7.  Point No.2:

It was submitted by the Opposite that the cause of action of this complaint arose on 15.12.2005 the date on which the car was purchased from the first opposite party and the complaint was filed on 14.02.2012 and hence, the complaint filed was barred by limitation.  On the perusal of the complaint, it is observed that though the date of purchase of the car is 15.12.2005 (Ex.C1), the estimation letter dated 09.12.2011 (Ex.C2) was generated by the first Opposite Party for the service of the car damaged due to the heavy rainfall occurred in the month of October 2011 give rise to subsequent cause of action and the complaint filed on 14.02.2012 is within the period of limitation and the plea of the opposite party that the complaint is barred by limitation is unsustainable.  This point is answered accordingly. 

          8. Point No.3:

          The complainant submitted that the complainant purchased the Toyota Corolla car in the year 2005 vide invoice No. A2005000114 bearing Regn. No. PY 01 AD 1777 (Ex.C1) from the first opposite party who is the authorised dealer and the service centre of the Toyota Car having registered office at Chennai who is the second opposite party herein. 

9. The complainant further submitted that during the month of September 2011 there was a heavy rainfall due to which the car was covered with water which as parked at the residence of the complainant and got damaged and on request of the complainant, the first opposite party took the car of the complainant on 28.10.2011 for service to set right the damage caused by the rain and the car was delivered after service to the complainant on 22.02.2012 (Ex.C13).

              10. The complainant further submitted that since he was a petroleum dealer, the complainant has to attend the meetings of the dealers held at various places and the unreasonable delay in delivering the vehicle after service by the opposite party led the complainant to spend a lot in hiring private cabs for attending meeting held at various places and also cancelled his holiday package trip with family due to the non-availability of his car and hence, this complaint is filed seeking compensation for deficiency of service by the opposite parties.

          11. The opposite parties submitted by denying the claim of the complainant that there was no unreasonable delay and they acted promptly and delivered the car after service to the complainant within a reasonable time and hence, no deficiency of service attributed by the opposite party. 

          12. Both sides were heard and records were perused by this Forum and observes as follows:

          On the perusal of the complaint, it is observed that there is no allegation / complaint by the complainant against the opposite parties for non-rectification of defects or for the service done for the damage caused due to heavy rainfall, but only for the non-delivery of vehicle in time after the service by the first opposite party.  Further, one of the relief sought for in the complaint filed is for the delivery of the car to the complainant, but on 22.12.2012 (Ex.R1) the car was delivered by the first opposite party to the complainant.  Hence, the first relief of the complainant directing the first opposite party to deliver the car to the complainant was withdrawn by the complainant. 

          13. The complainant submitted that the complainant is a petroleum dealer of Hindustan Petroleum and has to travel a lot to attend meeting held at various places and due to non-availability of his car, the complainant was forced to hire private cabs to attend the business meetings held at various places and thereby, incurred heavy expenses in paying the taxi charges (Ex.C3).  On the perusal of taxi receipts (Ex.C3), it is the found that the taxi bills (Ex.C3 – 4 in numbers) are not payment receipts and the bills Ex.C3 issued by one Mr. Kannan claimed to be the owner of the Private Taxi (Shivam Travels, Pondicherry) was reported dead on 21.01.2013 (Ex.C1)3 and no document was produced to prove that the deceased Kannan was the owner of the Shivam Travels, Pondicherry and the contents and the execution of the bill (Ex.C3 – 4 nos.) left unproved by the complainant and hence, the documents Ex.C3 produced by the complainant in support of the proof of expenses borne by the complainant in engaging private cabs cannot be taken into consideration.

          14. The complainant submitted that since the car left for service with the first opposite party was not delivered in time, the scheduled travel plan in his car with his family for a holiday package stay (Ex.C5)  at Coakers Villa, Kodaikanal, offered by private resorts company was cancelled since the hiring of the private cars for the said purpose will incur heavy expenses, but this submission of the complainant was disproved during the cross-examination wherein, the complainant has stated that the holiday trip to Kodaikanal with his family was cancelled on his own accord and the evidence is as follows. 

"It is true to say that I have cancelled the trip to Kodaikanal as per Ex.C5 on my own accord."

          15. Further, the cancellation of the subsequent booking of holiday stay at Coakers Villa, Kodaikanal for the period from 13.01.2012 to 17.01.2012 also did not incur any loss to the complainant, as the contents of the cancellation letter (Ex.C7) clearly reveals that the offer of the holiday package of stay at Kodaikanal for the complainant which was cancelled by the complainant was re-credited to the account of the complainant to be utilized by the complainant on any future dates.  Hence, the contents of the complainant that the complainant incurred monetary loss in cancelling the holiday package stay for the family in holiday resort due to non-availability of his car in time cannot be taken into consideration.

          16. It is observed by the Forum that even though the complainant failed to substantiate the claim of monetary loss due to the inordinate delay of service of the car by the opposite party, the act of the opposite parte by retaining the car of the complainant for service for almost four months would have definitely caused inconvenience and hardship to the complainant's business and the reason given by the opposite party in their reply notice dated 07.02.2012 (Ex.C12)  that only on the supply of spare part from their company at Bangaluru, the service to the car has to be done cannot be taken into consideration and further it is evidence from the contents of the reply notice (Ex.C12) that the work of the vehicle is not fully completed.   

          17. It is further observed by the Forum that admittedly, the vehicle of the complainant was taken for service by the first opposite party on 28.11.2011 but, the estimation bill (Ex.C2) for carrying out repairs was issued by the first opposite party only on 09.12.2011 and the complainant not having objected to the estimation bill (Ex.C2) and the estimation being approved by the insurer on 10.12.2011 the first opposite party, thereafter has taken a period of 2-1/2 months  for the delivery of the vehicle to the complainant (i.e. on 22.02.2012 the date of delivery of the vehicle – Ex.R1) causing inordinate delay amounting to deficiency of service by the opposite party. 

          18. In the view of the discussion in the paras above, it is held that even though the complainant failed to prove the monetary loss, the unjustifiable and inordinate delay in delivery of the car after the service by the opposite party to the complainant would have definitely resulted in mental agony which is attributed to the deficiency of service by the opposite parties and it is just and proper that the complainant has to be compensated by awarding a reasonable amount of compensation for the mental agony suffered by the complainant due to the deficiency of service by the opposite parties and hence, the opposite parties are jointly and severally liable to pay compensation. 

19.     Point No.4:

          In the result, the complaint is allowed and the Opposite Parties are directed;

1. To pay a sum of Rs. 20,000/- to the complainant as compensation for the mental agony suffered by the complainant due to the deficiency of service by the opposite parties;
2. To pay a sum of Rs.5000/- to the complainant as cost of the proceedings. 

Dated this the 5^th  day of July 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           02.05.2014           Ipour M. Ramakrishnan

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                   21.02.2012           Photocopy of letter signed by Complainant and

first opposite party marked through CW1

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER