Advocate A.P. Akut for the Complainant
Advocate R.R.Ganu for the Opponents
Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 5th April 2013
This complaint is filed by senior citizen against the opponent for deficiency in service. Brief facts are as follows-
[1] The complainant is resident of Pune. He had booked Skoda car on 16/10/2010 from the Show-room of the Opponent No.2 who is a dealer by making payment of Rs.25,000/-. Then he has paid rest of the amount by credit card on 26/10/2010. The Opponent No.2 assured that the car will be delivered on or before 29/10/2010. But the delivery of the car was not made on or before 29/10/2010 as per the promise and ultimately it was delivered on 25/11/2010.
On 23/12/2010 when he visited to Mumbai the car was suddenly stopped near Priyadarshini, Chembur, Mumbai due to overheated. He had attempted to contact with the Opponents but the Opponents did not give any response. The car was break down. Then the car was brought to the workshop at Sewri (W), Mumbai and it was found that the radiator fan of the said car was not working and as such the car got overheated. The complainant has not received any positive response from the opponents. Subsequently the radiator fan was replaced and other parts were also replaced. The car was lying with the workshop of the opponents for long period. Hence the complainant had sustained monetary loss. He has also sustained mental and physical torture. There were manufacturing defects in the car. Hence complainant has filed this complaint and prayed for replacement of the car, interest on the amount of Rs.6,43,583/-, compensation for delayed delivery, extra cost incurred due to the use of other transport, compensation for mental and physical inconvenience, loss of business, cost of accessories etc. The total claim of the complainant is Rs.1,46,045/-.
[2] The Opponents appeared and resisted the claim by filing written version. They have denied the contents of the complaint in toto. It is flatly denied that there is manufacturing defect in the disputed car. It is further contended by the Opponents that they have provided effective service to the complainant as per the requirement. The radiator fan was replaced without charging any amount. The complainant has not produced any report of expert showing that there is manufacturing defect in the car. It is also denied that opponents had agreed to give delivery of the car on or before Diwali i.e. on 30/10/2010. The availability of the car was subject to model, variant and colour as mentioned in the pricelist of the showroom and due to the festival season there was waiting period of three months for the delivery of the car. The Opponents have flatly denied the particulars as regards the expenses incurred by the complainant as well as the amount of compensation on various counts as alleged. The Opponents have prayed for dismissal of the complaint.
[3] Considering the pleadings of both parties, scrutinizing the documentary evidence on record and hearing the argument of both counsel following points arise for my determination. The points, findings and the reasons thereon are as follows –
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has proved that there is manufacturing defect in the disputed car ? | In the negative |
2 | Whether the complainant is entitled for replacement of the car or cost of the car in the alternative ? | In the negative |
3 | Whether the complainant has proved that there is deficiency in service ? | In the affirmative |
4 | Whether the complainant is entitled for compensation ? | In the affirmative |
5 | What order? | Complaint is partly allowed |
REASONS
As to the Point No. 1
As regards the manufacturing defect the complainant has mostly relied upon the affidavit and as per the contents of affidavit he found that there is defect in the car when he run the car for 300 kms towards Mumbai, the car was overheated and break down. The defect was caused due to defective radiator fan. The said part was replaced by the Opponents without charging any amount. It is significant to note that at the time of filing of the complaint complainant has not made any allegation that the car which is purchased by him from the Opponents is not working properly. In such circumstances I held that the so called defect which was observed by the complainant is removed and if any part is defective then the replacement of the car is not contemplated. Hence I held that complainant is not entitled for replacement of the car as well as cost of the car.
As to the Point Nos. 2 to 5
The complainant has claimed compensation on various grounds. Firstly he has claimed compensation for delay in delivery of the car. It is the case of the complainant that he had expected delivery of the car at the time of Diwali 2010 i.e. before 30/10/2010. But it reveals from the documentary evidence that the complainant has made full and final payment of the car on 26/10/2010. It is not in much dispute that the manufacturing unit of the Company is situated at Aurangabad and after placing the order there must be span of time for delivery of the car. It is further significant to note that there is no documentary evidence to show that the opponents agreed to deliver the car on or before 29/10/2010. But the complainant can expect for delivery of the car within 15 days from the date of full and final payment. The delivery of the car is made on 25/11/2010 and there was delay of 10 days. Hence I held that the complainant is entitled for compensation for delay in delivery of the car to the tune of Rs.5,000/-.
It is further alleged by the complainant that due to the sudden break down of the car he has sustained mental agony as well as physical sufferings and he had required to spend huge expenses for bringing the car to the work shop of the Opponents. Certainly the complainant who is senior citizen must have been annoyed due to the sudden break down of the car on the very first journey. Hence in my opinion he is entitled for compensation of Rs.10,000/- for mental agony and physical inconvenience. The complainant has claimed compensation for loss of business. It is significant to note that if the car is used for business then the Consumer Forum has no jurisdiction to grant compensation for commercial purpose. Hence I held that this Forum has no jurisdiction to grant compensation for loss of business. The complainant is compelled to approach the Consumer Forum due to certain defects in the car. Hence the costs of the proceedings should be saddled with the opposite party. After considering the nature of circumstances in the present proceeding I held that the complainant is entitled for costs of Rs.5000/-. In all the complainant is entitled to get Rs. 20,000/-. I answer the points accordingly and pass the following order-
:- ORDER :-
1. The complaint is partly allowed.
2. It is hereby declared that the Opponents have caused
deficiency in service.
3. The Opponents are jointly and severally directed to pay
total compensation of Rs.20,000/- to the complainant within six weeks from the date of this order.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 05/04/2013
