Tamil Nadu
South Chennai
CC/50/2021
Arun C.Mohan - Complainant(s)
Versus
Sirius Motors ports (India) Pvt limited - Opp.Party(s)
R.Sathish Kumar
27 Dec 2022
ORDER
Date of Complaint Filed : 09.02.2021
Date of Reservation : 09.12.2022
Date of Order : 27.12.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No.50 /2021
TUESDAY, THE 27th DAY OF DECEMBER 2022
Arun C. Mohan,
D-4, Ceebros Buildings,
32, Cenotaph Road,
Teynampet,
Chennai – 600 018. ... Complainant
..Vs..
1.Sirius Motorsports (India) Private Limited,
No.1/15, Diamond Street,
NSC Bose Nagar,
Pootapedu Road, Porur,
Chennai 600 116.
Represented by its Managing Director.
2.Mr. Sajeeth Kumar,
The Managing Director,
No.1/15, Diamond Street,
NSC Bose Nagar,
Pootapedu Road,
Porur, Chennai – 600 116. ... Opposite Parties
******
Counsel for the Complainant : M/s. Sathish Kumar
Counsel for the Opposite Parties : Exparte
On perusal of records and after having heard the oral arguments of the Counsel for the Complainant, we delivered the following:
ORDER
Pronounced by Thiru. S. Nandagopalan., B.Sc., MBA.,
1. The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Parties to deliver the car to the Complainant in fit and proper running condition and to pay a sum of Rs.25,00,000/- towards mental agony and compensation along with cost.
The averments of Complainant is brief are as follows:-
2. The Complainant is the owner of an AUDI Q7 Car with registration number TN 09 BJ 6949. In or about April 2019, the car developed certain technical problems, and the same was sent to the 1st Opposite Party whose representative was its Managing Director Mr.Sajeeth Kumar, the 2nd Opposite Party herein. It was that the car had the issue of a "glow plug warning" which led to the stalling of the car when started. The Complainant left the car with the Opposite Party for service of the said car. The Complainant submitted that Mr.Sajeeth Kumar represented that he was a qualified mechanical engineer being "Adjunct Faculty at BITS Pilani and teaches Automotive Systems Engineering and Development to various OEMs like Tata Motors, Cummins, Mahindra, Mercedes, etc." and having a large and world-class facility with latest diagnostics to deal with the issue properly and professionally. The Complainant submitted that the 2nd Opposite Party Mr.Sajeeth Kumar primarily communicated through Whatsapp. On 1st May 2019, when queried as to the issue with the car, the 2nd Opposite Party Mr.Sajeeth Kumar stated that he would check out the battery in the car and the sensors therein, and that would remedy the issue. Further, Mr.Sajeeth Kumar had also raised an unrelated issue to an alleged "leaking air" in the suspension of the car and emphasized that the suspension of the car would have to be replaced. The Complainant submitted that on the above diagnosis and repairs a bill of Rs.1,07,200/- was raised by the Opposite Party and the same was paid by the Complainant. Thereafter, the Opposite Party Mr.Sajeeth Kumar stated that the alleged fault was in the diesel filter of the car, which was replaced. The Complainant submitted that at this juncture, the Opposite Party Mr.Sajeeth Kumar had also on WhatsApp confirmed that "electrical connections and wiring are checked and it's all fine". Thereafter, on 16th May 2019, Mr.Sajeeth Kumar stated that the Opposite Party was unable to resolve the issue but had returned the car only on 24.05.2019 with Mr.Sajeeth Kumar representing that the issue with the car was fixed and its working was entirely in order.
The Complainant submitted that shortly after the car was returned, on 6th June 2019, the said issue resurfaced and the Opposite Party deputed one Mr.Hari to check the issue and the various issues in the brakes and steering vibrations in the car. It is pertinent to note that these issues had arisen only after the car had been allegedly repaired by the Opposite Party. The Opposite Party upon questioning about these issues, asked the Complainant to send the car to the service center for repairs and accordingly the said car was again left for service with the Opposite Party. The Complainant submitted that after working on the same, the Opposite Party returned the car on 15th June 2019 reiterating that the issues are entirely resolved. The Complainant submitted that on 12.07.2019, the Opposite Party was informed that the car was undrivable to which Mr.Sajeeth Kumar responded with a quote of Rs.26,700/- towards fixing the "fuel pressure regulator" stating that on WhatsApp that "we are hoping this will fix the issues". Further, when queried if there was any issue with the fuel pump Mr.Sajeeth Kumar, on 16th July 2019 on Whatsapp stated the same is unlikely as it does not fail at this stage. Again, on 29th July 2019, following a series of representations with pictures, the Opposite Party confirmed that Mr.Sajeeth Kumar drove the car for 50 km and the issue stands resolved. The Complainant submitted that however, on 2nd August 2019, the Complainant noted that the same original issue for which the car had been sent to the Opposite Party persisted. On 4th August 2019, Mr.Sajeeth Kumar reiterated that the Opposite Party would finally fix the issue thereby acknowledging that they have not been able to resolve the issue. On 5th August 2019, Mr.Sajeeth Kumar stated that the Opposite Party had identified the issue as being with the "fuel pump". However, there was no response from the Opposite Party for nearly 3 weeks thereafter during which the Opposite Party continued to retain the car without any intimation to the Complainant. The Complainant submitted that on 26th August 2019 in the Whatsapp conversations between the Complainant's son and Mr.Sajeeth Kumar, the former asked him that "R we confident this will completely resolve the issue, After spending 2 Lakhs I don't wanna be stuck in the same situation" for which Mr.Sajeeth Kumar on WhatsApp stated that "for sure sir. I'll make sure it is fixed" in response to queries if replacing the fuel pump would fix the issue. The Complainant submitted that this is directly contrary to the advice given earlier by the Opposite Party in July 2019 that a fuel pump failure was extremely unlikely.
The Complainant submitted that an invoice for Rs.1,93,517/- was further raised, and the same was paid in good faith on the request of the Opposite Party that the issue would stand resolved. It is to be noted that throughout this period the car remained in the custody of the Opposite Party. Further, on 28th August 2019, when queried on WhatsApp that "let us Hope this fixes the issue", Mr.Sajeeth Kumar replied on WhatsApp that "I'll fix it sir. Shouldn't be a problem". Again on 9th September 2019, Mr.Sajeeth Kumar informed us that he had commenced work on the fuel pump and he would deliver the car by 10th September 2019. Thereafter, Mr.Sajeeth Kumar stated that he was unable to fix the issues in the car and would have the car back by 18th September 2019. Even on the said date, a series of explanations were sent for work not being completed and it was represented that the car would be running on 26th September 2019 stating on WhatsApp that "we are fixing everything back now. Should have it running tonight sir". On 1st October 2019, Mr.Sajeeth Kumar sent pictures of the engine of the car removed entirely from the body starting on WhatsApp that he would have to "assemble gearbox to engine" and thereafter "fix engine back to compartment", and specifically represented that he would finally deliver the car by 4th October 2019. Further, on 3rd October 2019, it was queried on WhatsApp that "Pls test it, after all this time and effort, the same issue shouldn't crop up", to which Mr.Sajeeth Kumar replied on the same day stating that he "will do that" along with a video of the engine running in allegedly perfect condition. On 4th October 2019, it was announced that the retainer key in the gearbox of the car had to be replaced, and your company proceeded to do the same. The pictures of the car's gearbox separated from the car and opened for the said purpose were circulated, and when it was queried that "Trust it won't lead to future issues", Mr.Sajeeth Kumar had responded on WhatsApp that "will not be a problem sir. The keyway retainer is a standard SS key". It is worthwhile noting that the said issue was not highlighted till such juncture when the engine and gearbox had been opened up and removed from the body of the car (as apparent from the pictures circulated by Mr.Sajeeth Kumar) to replace the fuel pump. Mr.Sajeeth Kumar thereafter made a series of representations on his diligent efforts to resolve the issue and that he would deliver the car without any issues on 22nd October 2019. In response to a query from us on WhatsApp that "I trust there is no compromise on the quality", the response of Mr.Sajeeth Kumar was on WhatsApp "None whatsoever".
The Complainant submitted that while the said car was being repaired by the Opposite Party, they delivered on 1st October 2019, a Toyota Corolla for the Complainant's use due to him being denied his valuable car but the said car was found to be entirely unusable, and unsafe. When the same was highlighted, Mr.Sajeeth Kumar assured the Complainant that he would be sending a fully functional and well-maintained BMW car for the Complainant's use to compensate for the inconvenience caused till all issues in the car was fixed but the same has not been delivered till date. The Complainant submitted that when the car was delivered on 24th October 2019, it was found to be entirely undrivable with the transmission not engaging and the suspension had collapsed and returned to the Opposite Party to remedy the same. Again, on 26th October 2019, Mr.Sajeeth Kumar stated that he would fix all these issues as the same only needed some electronic coding for which he had engaged persons in America. The car was thereafter retained by Mr.Sajeeth Kumar, and on 7th November 2019, he reiterated that he had fixed the gearbox issues identified when the car was earlier delivered stating on WhatsApp that "The gearbox shifting issue is solved sir. Working on the adaptive suspension", and on the phone assured that he was on the brink of resolving the suspension issue identified when the car was earlier delivered. He further confirmed on WhatsApp that "all the air suspension components are perfect. No issues with any of them". The Complainant submitted that he represented repeatedly that it was only a minor coding issue in the suspension which was well within his wherewithal to resolve. Given the time that had lapsed and the gross inconvenience the Complainant had suffered due to the Opposite Party's deficiency of service, irrefutable incompetence, and inability to deliver, the greatest prejudice was caused to the Complainant even after having paid extortionate sums of money. The Complainant submitted that the issues in the car remain entirely unidentified by the Opposite Party despite the assertion of their credentials to the contrary. The Complainant submitted that to add insult to injury, Mr.Sajeeth Kumar thereafter represented that given his inability to fix the car as per stated timelines, he would organize to sell the car at its market price, and he would get his associate to carry out the transaction. This in turn proved to be another exercise in extortion as a shocking rate of Rs.5,00,000/- was offered by the Opposite Party to buy the car and Mr.Sajeeth Kumar emphasized that since the car was entirely unusable due to the work carried out by him, no-one else would be willing to purchase the same and that the Complainant would have no option but to sell the same to him. At this juncture, it became apparent that the entire purpose of this exercise was to illegally retain the car and profit from the same. Mr.Sajeeth Kumar further stated that he was the nephew of a senior police officer, and he would ensure that there would be no remedy against the Opposite Party for their acts of negligence, fraud, professional mismanagement, and extortion.
The Complainant submitted that this was followed by threats of adverse consequences in pursuing any action against him due to his alleged connections with the aforesaid senior police officer. It is further stated that one Mr.T.N.Ashwin, also a director of the Opposite Party had routinely reassured on conference calls as to the quality of work being carried out by Mr.Sajeeth Kumar, and is also directly party to such acts of negligence, fraud, professional, mismanagement, and extortion. The other person who also gave various assurances about the work done was Mr.Hari, who claimed to be the Opposite Party's "main mechanic", and was the person picking up and dropping off the car. It is also placed on record that the Opposite Party's various social media prominently advertise their alleged expertise in the field of engineering, and relying on such misrepresentation amongst other things, the Complainant directly has been subject to a vast degree of harassment and suffering for nearly 6 months. The Complainant submitted that the Opposite Party has not delivered the car back to the Complainant to date and that is causing grave prejudice and threat to them. The Complainant submitted that the Opposite Party continues to retain the car under the pretext that all issues in the same would stand entirely resolved. It is further stated that Mr.Sajeeth Kumar has not sent any communication in respect of the car retained by the Opposite Party and has not been attending any calls.
The Complainant is presently unaware of the status of the car, as Mr.Sajeeth Kumar has instructed his staff to prevent the Complainant or his driver from inspecting the same at the Opposite Party's premises. Upon query with the above-said Mr.Hari by the Complainant's driver, it was informed that the car has been disposed of by the Opposite Party. The said act confirms the perverse intention of the Opposite Party herein. The Complainant submitted that on or about 15th January 2020, Mr.Sajeeth Kumar had made a counsel call to the Complainant to "settle" the issue by resolving all issues in the car, and there has been no communication thereafter, confirming the Opposite Party's intent to cause the Complainant gross prejudice by continuing to retain the car and ensuring that its mechanical unworthiness caused due to the Opposite Party's gross and malafide negligence continues to persist. Hence the Complaint.
3. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents marked as Ex.A-1 to Ex.A-8 Despite sufficient notice served on the Opposite Parties, the Opposite Parties failed to appear before this commission and they have been called absent and set Ex-parte.
Points for Consideration
1. Whether there is deficiency in service on the part of the Opposite Parties?
2. Whether the Complainant is entitled for reliefs claimed?
3. To what other reliefs the Complainant is entitled to?
Point No.1:
The Complainant is the owner of the AUDI Q7 car with registration number TN 09 BJ 6949 as found in EX.A-1. The Complainant averred that on April 2019 the car developed certain technical problems like the glow plug warning which led to the stalling of the car when started therefore to address the same, Complainant approached the 1st Opposite Party and its representative the Managing Director Mr.Sajeeth Kumar the 2nd Opposite Party herein. Moreover, the Complainant stated in his complaint that the 2nd Opposite Party proclaimed that he was a qualified mechanical engineer and Adjunct Faculty at BITS Pilani and teaches Automotive Systems Engineering and Development to various Automobile Companies alongside having a large and world-class facility with the latest diagnostics to deal with the various automobile issues properly and professionally. Primarily Complainant communicated with the 2nd Opposite Party through Whatsapp, eventually on 1st May 2019 when enquired about the issue of the car, the 2nd Opposite Party stated that he would check out the car's battery and sensors therein by that it will remedy the issue. Subsequently, the 2nd Opposite Party alleged that there is an issue of "leaking air" in the car's suspension and emphasized that the suspension of the car should be replaced. The Complainant submitted that by believing and having good faith in the 2nd Opposite Party's technical expert opinion in the findings of the car issue accepted to pay a sum of Rs.1,24,500/- towards the fixing charges. Furthermore, the 2nd Opposite Party stated to the Complainant that there was an alleged fault in the diesel filter of the car which required to be replaced as seen in the Whatsapp conversation. On careful perusal of WhatsApp conversations between the Complainant and the 2nd Opposite Party it is admissible that there were numerous technical issues narrated by the 2nd Opposite Party but on the contrary, failed to resolve the technical glitch that persisted upon every commitment to deliver the vehicle in the said time. Pertinently the issues claimed and addressed by the 2nd Opposite Party mostly resurfaced allowing the Complainant to suffer due to the Opposite Parties' deficiency of service. Moreover, the 2nd Opposite Party confirmed in WhatsApp to the Complainant that the electrical connections and wiring are checked and it's all fine reiterating that the issues are entirely resolved but the issues were persisting even after the repairs were carried out by the Opposite parties. However, the Complainant submitted that on 12.07.2019 the Opposite Parties were informed that the car was undrivable to which the 2nd Opposite Party quoted Rs.26,700/- towards fixing the "fuel pressure regulator” ensuring to resolve the total issue of the car. Nevertheless, the issues are inevitable even after relevant expenses were incurred by the Complainant instead the car continued to be in the Opposite Party premises without any proper intimation. As per the WhatsApp conversation on 26.08.2019 the 2nd Opposite Party speculated that "for sure sir. I'll make sure it is fixed" by replying to the Complainant's query whether all the issues can be resolved after spending 2 lakhs. Simultaneously the 2nd Opposite Party advised the Complainant that replacing the fuel pump would fix the issue was directly contrary to the advice given earlier in July 2019 that a fuel pump failure is most unlikely. The series and sequence of happenings is a clear case of deficiency of service caused by the Opposite Parties demonstrating an ulterior motive of deceiving the Complainant causing immense hardship. Henceforth as per Ex.A-4 dated 29.08.2019 an invoice for Rs.1,93,517/- was paid by the Complainant having good faith in the Opposite Party's repeated representations reiterating that all the persisting issues will stand resolved. Further, the 2nd Opposite Party assured the Complainant that they will fix everything back and keep the car running that night as seen in a WhatsApp conversation dated 26.09.2019 but failed to comply. The Complainant submitted that the Opposite Party handed over a Toyota Corolla Car for Complainant usage and also assured a fully functional BMW car as compensation for the inconvenience caused to the Complainant but failed to fulfill the commitment. On careful perusal of the Complainant's materialistic facts and the respective Exhibits, it is pertinent to note that as per Ex.A-8 the Whatsapp conversations between Complainant and Opposite Parties it is admissible that the Opposite Party indulged in deficiency in service towards the Complainant on frivolous grounds causing mental agony and immense hardship with a series of failure commitments and unresolved cars technical glitch that resurfaced again and again even after respective payments and required timeline were given by the Complainant still the issue remains unresolved. The Complainant further submitted that the 2nd Opposite Party inability to fix the car within the timelines instead initiated to organise and sell the car at its market price, which in turn resulted in another upset and insult to the Complainant by offering a price of Rs.5,00,000/- against the market value of Rs.25,00,000/- by emphasising that the car was entirely in unusable condition. Moreover, it is noticeable that as per Ex.A-6 & A-7, the Toyota Corolla car which is given by the Opposite Parties for usage as compensation for the delay caused to the Complainant has been returned by the Complainant being it is unusable and unsafe occupying the parking space and even got the acknowledgment for the same stating that the car has been returned in proper condition. It is noteworthy that the Opposite Parties continuously failed to respond to the notices served on them by holding back the possession of the Audi Q7 car by not disclosing the whereabouts of it is a clear case of deficiency in service caused by the Opposite Parties. Hence it is pertinent to note that the whole instance deliberately elucidates and demonstrates the Opposite Parties dereliction of duties in resolving the car's persistent issues that resurfaced again and again even after relevant payments and sufficient time failing to comply with the commitments amounts to deficiency in service. Accordingly, Point No.1 is answered.
Point Nos.2 and 3:
As discussed and decided Point No.1 against the Opposite Parties, the Opposite Party 1 and 2 are liable to deliver the AUDI Q7 Car bearing Registration No. TN 09 BJ 6949 to the Complainant in fit and proper running condition and to pay a sum of Rs.25,000/- towards deficiency in service and mental agony caused to the Complainant along with cost of Rs.5,000/-. Aaccordingly Point Nos. 2 and 3 are answered.
In the result, the complaint is allowed in part. The Opposite Parties 1 and 2 are directed to deliver the AUDI Q7 Car bearing Registration No. TN 09 BJ 6949 to the Complainant in fit and proper running condition and to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards deficiency in service and mental agony caused to the Complainant along with cost of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant within 8 weeks from the date of receipt of this order.
In the result this complaint is allowed.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 27th of December 2022.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 21.03.2017 | Copy of Registration certificate for the vehicle No.TN09BJ6949 |
Ex.A2 | 31.05.2019 | Tax Invoice being No.SMPL-190005 issued by Opposite Parties to the Complainant |
Ex.A3 | 23.08.2019 | Tax invoice being No.SMPL-19-0034 issued by Opposite Parties to the Complainant |
Ex.A4 | 29.08.2019 | Payment receipt issued by the Opposite Parties |
Ex.A5 | 17.12.2019 | Notice issued by Complainant’s counsel to Opposite Parties |
Ex.A6 | 28.01.2020 | Reminder notice issued by Complainant’s counsel to Opposite Parties |
Ex.A7 | 29.01.2020 | Further notice issued by Complainant’s counsel to Opposite Parties |
Ex.A8 | 01.05.2019 to 13.11.2019 | Whatsapp chat conversation between the Complainant and Opposite Parties along with the Photographs |
List of documents filed on the side of the Opposite Parties:-
NIL
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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