Andhra Pradesh
Visakhapatnam
CC/89/2014
THAKURADAS KARNIDAN RATHI - Complainant(s)
Versus
SRI JAYALAKSHMI AUTOMOTIVES PVT LTD., - Opp.Party(s)
INPERSON
28 Nov 2014
ORDER
Date of registration:13.03.2014
Date of order :28.11.2014
BEFORE THE DISTRICT CONSUMERS FORUM-I,
VISAKHAPATNAM : AP
PRESENT: Smt K.V.R.Maheswari, B.A., B.L., LL.M.,
Lady Member & FAC President
Sri V.V.L.Narasimha Rao, B.A., LL.M., PGDHR,
Member
Friday, the 28th day of November, 2014
Consumer Complaint No:89/2014
Between:
Sri T.K.Rathi S/o late Karnidan Rathi, Hindu, aged 74 years, residing at D.No.10-50-19/2, Siripuram Junction, Visakhapatnam District. … Complainant
And:
Sri Jayalakshmi Automotives Pvt. Ltd., Birla Junction, NH-5 Road, Muralinagar, Visakhapatnam, rep. by its Authorised Signatory.
… Opposite Party
This case is coming for final hearing on 24.11.2014 in the presence of Sri T.K.Rathi Advocate for the Complainant and of Sri D.V.Subba Rao, Sri D.V.S.S.Somayajulu & Sri M.R.K.Gandhi Advocates for Opposite Party and having stood over till this date, the Forum delivered the following:
: O R D E R :
(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on
behalf of the Bench)
1. The case of the complainant is that, the complainant send his spouse’s (Rajini Devi Rathi) car, model No.Santro XO 2006, registered No.AP31 AP 6390 for paid service maintenance to the serving centre of the opposite party at Vehicle Care facility, HPCL Millennium outlet, Siripuram Jucntion, Visakhapatnam. The car was handled by Mr.Parthasarathi (executive) under careful observation of complainant’s son Mr.S.K.Rathi who was there at the time of service. The Complainant stated that it was brought to his notice by his son that an excess amount was charged to the complainant on 3M Throttle Cleaner which had MRP of Rs.331/- (inclusive of all taxes) and the opposite party prepared invoice No.B201403328 dated 08.03.2014 for item No.2, Part No.NPNKATBC, Throttle Body Cleaner 3M, Quantity 1 Nos. priced at Rs.839.86p.s + VAT @ 14.5% thus it created an alarming signal to the complainant and made him proceed to Forum as no proper reply was given which could satisfy such charges. Hence, this complaint to direct the opposite party;
a) to pay Rs.550.77p.s. + VAT difference of Rs.79.86p.s. towards the excess amount collected from the complainant.
b) to pay Rs.75,000/- towards compensation for deficiency of service and costs.
2. On the other hand, the opposite party filed its counter and pleaded that the allegations mentioned in the complaint are false and untenable. The opposite party pleaded that it is the law of practice of Consumer Forum that every complainant is supported by complainant’s affidavit which ensures that the complainant has personal knowledge and takes the responsibility for the allegations made therein. But the complainant avoided filing affidavit and did not even affirm “the statements made in the complaint as true and correct”. In the absence of affidavit and affirmation, no judicial or quasi judicial Forum can take cognizance of unverified allegations and proceed with the adjudication. The vehicle is admittedly owned by the complainant’s spouse and presented for service by the complainant’s son but the complainant himself has no personal knowledge or involvement, all the allegations are hearsay. In any event the complainant has no locus standi to file the impugned complaint. He is also not a “consumer” and is not entitled to file this complaint. Hence, the opposite party stated that on 08.03.2014 vehicle was presented and sought repair services for his vehicle including the Throttle Body Cleaning and the same was noted in a abbreviated form “TBC” in “Manual repair order” and the amount estimated was Rs.3,500/- which covers the cost of other listed services. After acceptance of manual repair order, a computerized repair order R201403498 is generated as the opposite party’s invoice etc., are computerized. The services as requested were carried out and the computerized repair order plus the invoices were presented. But the customer raised a dispute and refused to sign computerized repair order, but signed the invoice with a remark “Item No.2 to be checked with CTO”. These documents clearly establish that the complainant had sought the services of TBC and not sought sale of “3M Throttle body cleaner”.
3. The Opposite party stated that the pack of 3M cleaner has not been sold/delivered to his customer in a sealed condition with contents therein intact i.e., the pack was not offered on take away and give away basis which is a normal retail trade practice and this opposite party do not sell any item whether consumable packs or spares to any individual on take away basis as is done in retail trade practice, but uses the same as and when required in the course of rendering repair services and such use or replacement is a deemed sale in terms of sales tax/VAT parlance since the same involves transfer from dealer to vehicle owner. The contents of packing were used by the opposite party for the benefit of vehicle owner while undertaking throttle cleaning service as desired by the customer. Vehicle owner’s normally seek this service. Vehicle owner’s normally seek this service after use of vehicle for about 30,000kms plus and in other words, the cleaner is not delivered to the vehicle owner; but is used in carrying out throttle plate cleaning operation on customer’s vehicle. The cleaning process is “initially the vehicle engine will be off and then the air intake boot will be removed at the manifold. Using an extension tube it is to be inserted into the actuator using twisting motion. Then the cleaner will be applied to both ides of throttle plate and surrounding area by spraying or wiping with a cloth. It takes 15 – 20 minutes for the cleaner to work. After 20 minutes some softened deposits will be identified which will be cleaned thoroughly. The same process will be repeated while the engine is turn on and by monitoring the engine idle rpm; finally the resultant deposit particles exit through exhaust of the vehicle. For this process it takes minimum one hour for which two technicians will be engaged and one bottle of cleaner is consumed.
4. This service being a standard type of service, a composite charge is fixed after taking into account various costs including cost of taxable in puts and standard charge applied to all kinds of vehicles. The opposite party also submits that the entire tax levied and collected against the relevant invoice has been remitted to the state as per VAT provisions and in proof thereof a certificate issued by the Chartered Accountant is enclosed. Thus, it is clear that the opposite party is not benefited by the levy and collection of tax. The authorized dealers are required to use spares/consumable items at the time of repairs and to be registered as dealer under VAT regulation and to levy and collect tax on such items of transfer and remit the tax periodically after adjusting the in put tax credit as per tax regulations.
5. The opposite parties plea is that the opposite parties rendered a “standard and comprehensive service” viz., throttle body cleaning and in the process consumed exclusive one pack 3M pack cleaner a taxable in put, a comprehensive and standard price is charged. The MRP provisions have no application as the product is not delivered to a customer on “take away basis/give away basis across the counter” as is the case in retail trade and such retail sale is normally not accompanied by any post-sales service. Normally the retail sale transaction involves simple “delivery of a sealed pack with content” across the counter and consumer after taking delivery of same the consumer is at liberty to use or otherwise deal with content and packing. This is the difference between retail sale simplicitor and sale with service”. More over in settled law, Consumer Forums cannot adjudicate price fixing by a service provider. The Opposite party reiterated his version that there is no retail sale of common parlance and opposite party had exclusively utilized one pack of 3M cleaner besides providing the attendant services of qualified technicians and other infrastructure facilities to complete the service. Thus, present transaction cannot be termed as retail sale and complainant is not entitled to seek application of MRP. Hence, the complaint is to be dismissed by awarding exemplary costs to the opposite party.
6. At the time of enquiry, the complainant filed evidence affidavit, along with documents which are marked as Exhibits A1 to A3. The Complainant in person represented that there are no written arguments and heard the complainant in person.
7. On the other hand, the opposite party filed its counter, evidence affidavit and written arguments along with documents which are marked as Exhibits B1 to B12. Heard the counsel of the opposite party who reiterated his version.
8. In view of the respective contentions, the point that would arise for determination is:-
Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?
9. As per Ex.A1 dated 08.03.2014 one Mr.T.K.Rathi i.e., complainant approached the opposite party and opposite party issued invoice bearing No. B201403328 for car bearing No.AP31 AP 6390. The version of the complainant is that, that car belongs to his wife and the complainant sent his wife’s car to opposite party service under the careful observation of his son and the opposite party charged more than MRP on Throttle cleaner. The complainant in his affidavit which was filed on 16.07.2014 pleaded that the opposite party charged extra amount of Rs.550.77p.s. even after protest of the complainant, the opposite party refused to release the vehicle without payment of amount, then, the complainant paid the amount through his credit card. More over in the detailed bill i.e., Ex.A1 item purchased are mentioned and more particularly labour charges are separately mentioned. Even admitting for a moment that what ever mentioned is correct, even then, the opposite parties have collected Rs.169.74p.s. as extra amount. Ex.A2 is the picture of the item charged where the MRP shows Rs.331/-. Exhibit A3 is the copy of the manual repair order. The complainant calculated in his affidavit that MRP of the Throttle Body cleaner is Rs.331/- and VAT is Rs.47.99p.s. and labour charge for one hour as per Ex.B5 is Rs.260/- plus service tax of Rs.32.13/- in total it is Rs.670.12p.s. but the opposite party collected Rs.839.86p.s., thus Rs.167.74p.s. was collected by the opposite party.
10. But the version of the opposite party is that the complainant is not a Consumer as he has no locus standie. Because, the car is in the name of his wife and the services are obtained by his son from the opposite party and also, the complainant not filed any authorization from the owner of the vehicle to file this complaint on her behalf, which is statutory requirement, hence, the complainant has no locus standie. But in our view, Ex.A1 clearly shows that the complainant himself approached the opposite party on 08.03.2014 and paid amount and also the complainant himself admitted that he paid that bill amount with his credit card, thus we came to know that the complainant has knowledge on the transaction. But as per decision relied by the opposite party;
Amith Sharma Vs. BHEL & others II(2013) CPJ 505 (NC), where under it clearly mentioned that “nothing to show that petitioner’s husband had been incapacitated in any manner or was prevented in any manner whatsoever, from filing the complaint. The petitioner had not been authorized by her husband to file complaint on his behalf. Hence the complaint is not a consumer”. Here in this present complaint also the Complainant not obtained any authorization from the owner of the car to represent in the Forum on her behalf. The Complainant might have been paid the amount on behalf of his wife, but he is not the actual consumer.
The Opposite party relied on another decision Ram Niwas Soni Vs.Vaish Model Sr.Sec.School & others II a(2013) CPJ 396 (NC) where in it held that there should be locus standie to file the complaint. The Complainant filed the complaint on behalf of his major son which was not maintainable and the complainant did not fall within the purview of consumer as there was no authorization by his son to the complainant in this case”.
11. Exhibit B1 is the copy of Manual repair order dated 08.03.2014 and bill dated 08.03.2014. Ex.B2 is the photos of car and engine. Ex.B3 is the Certificate issued by Chartered Accountant regarding verification of account books of opposite party, they certified that VAT was collected for the month of March 2014 and it has been accounted properly in the account books maintained at the branch. They also mentioned the bill number, date and bill amount how much VAT was collected. Ex.B4 is the letter issued by Vishnu automobiles regarding the confirmation that 3 M Products “Throttle plate and intake cleaner” cannot be supplied to any retail outlet and this treatment will be applied on one of Engine part which is Throttle plate and also mentioned that “this requires to be done by a two knowledgeable trained technicians for a minimum time up to one hour. Ex.B5 is the Hundai Service Bulletin wherein it mentioned under Group-IV the hourly labour rate is Rs.260/-. Ex.B6 is the set of manual repairs, computerized repair order and Invoice of M/s R.K.Trading Corporation dated 07.01.2014 this exhibit is in the name of Haridas who is one of the customers of opposite party. Ex.B7 is the set of manual repairs, computerized repair order and Invoice of M/s Pratim Kumari Midha dated 07.01.2014 there in 3rd page of Ex.B7 which is in the name of another customer of opposite party, the amount mentioned for TBC is Rs.839.86/- . Ex.B8 dated 09.01.2014 is also set of manual repairs, computerized repair order and Invoice of D.Madhuri who is one of the customers of opposite party. Ex.B9 dated 17.02.2014 is also set of manual repairs, computerized repair order and Invoice of G.Mohan Rao who is one of the customers of opposite party. Ex.B10 is the sales invoice issued in favour of Ch.Ashok for sale of vehicle inclusive of standard warrantee services dated 01.07.2011 . Ex.B11 is the extended warrantee invoice for the said vehicle with service tax to Ch.Ashok who is one of the customer of opposite party. Ex.B12 is the invoice issued for the complainant’s wife vehicle on 22.11.2011 which included Throttle body cleaning service.
12. The Opposite party’s contention is that the complainant is not a real consumer and he relied upon IV(2013) CPJ 506 NC Vijay Kumar Das Vs.Indian Railway Catering and Tourism Corporation Ltd., & others wherein held that as there is no locus standie the complaint is dismissed because on whose name tickets were booked they neither came forward to file complaint nor filed affidavit in this regard”. Here in this case also no affidavit filed by the owner of the car regarding her case. The opposite party stated that Throttle body cleaner is not sold on take away/give away basis with the seal of package and contents intact which is a retail sale practice and its plea is supported by Ex.B4 i.e., letter issued by Vishnu Mobiles. Hence, we are of the view that the opposite party charged the amount for TBC including service charges. Why because, the complainant himself cannot clean Throttle body cleaning on his own, hence the opposite party not sold on take away basis and more over there is no denial by the complainant in his affidavit regarding this contention of seeking the item for retail purchase. Moreover, as per Ex.B3 the opposite party remitted the tax to the Government. Ex.B4 mentioned that to carryout for TBC it requires to be done by two knowledgeable trained technicians for a minimum time up to one hour. The Complainant in his affidavit stated that “even admitting for a moment that what ever mentioned therein is correct, even then they have collected an amount of Rs.169.74p.s.more. But the complainant calculated the labour charge for one hour Rs.260/- for one technician, as per Ex.B4 which is given by 3rd party automobiles clearly mentioned that two knowledgeable technicians are required, so as per document No.5 for two persons labour charges are Rs.260 + Rs.260/- plus service tax + Rs.331/- i.e., MRP of TBC + VAT. Thus, the opposite party did not collect separate labour charge for its service. The amount collected by opposite party i.e., Rs.839.86p.s. + VAT is including service charge of two technicians and service tax.
13. The opposite party filed another job cards of other customers those are Exhibits B5 to Ex.B8 and Ex.B12 i.e., old invoice of customer’s wife date 22.04.2011 and confirmed that i.e., practice of opposite party regarding the collection of cost of TBC including service charges. Moreover, the complainant have knowledge as he approached Opposite parties for this Throttle Body Cleaning to their car previously i.e., on 22.04.2011 nearly before three years from the said cause of action. As per Ex.B10 and B11 the Forum came to know that a product is sold with inclusive of cost of service, the entire value is subjected to sales tax when a service is rendered independently the service tax is levied. Thus, in this case price of TBC inclusive of cost of product and service charge. More over these type of items are not for retail sale and these items needs professional service persons to do service.
14. The Opposite party relied upon another decision The Federation of Hotels & Restaurants Association of India & others Vs. Union of India & others wherein, it held that sale of item is different from the sale of item with service i.e., “when a person goes to hotel or restaurant and consumes such commodities this does not fall within the definition of consumption as contained in Section-2(d) of Consumer Protection Act”.
15. As per Amita Sharma Vs. BHEL & others case R.P.NO.3188/2010 which was decided on 01.03.2013, in this present complaint also “There is nothing on record to show that complainant’s wife had been in capacitated in any manner or was prevented in any manner whatsoever, from filing the complaint. That too there is no authorization given by his wife to the complainant. Thus Mr.T.K.Rathi is not a consumer”.
16. After careful analysation of the facts of the complaint, counter and with related documents, the Forum is of the view that the complainant may have knowledge as he paid the amount as per Ex.A1 through his credit card, but he failed to file the affidavit of owner of the car or the affidavit of his son on whose observation the car was serviced. More over as per the citations given by the apex court cited above, there is no authorization given by the wife of complainant and as per the documents, we came to know that TBC is not sold to any one on retail and that too knowledgeable trained technicians only can use it for Throttle Body Cleaning of the car. As per exhibits filed by the opposite party it came to know that there should be two trained technicians to do Throttle body cleaning, hence the opposite party collected Rs.839.86p.s. for TBC including service charges and that too in Ex.A1 there is no mention about the service charges collected by them separately regarding Throttle Body Cleaning, but the opposite party paid VAT tax as well as service tax to that bill and it was clearly mentioned in that Ex.A1 and Ex.B3 also reveals that the service tax and VAT was paid by the opposite party against Ex.A1. Hence, we are of the view that there is no unfair trade practice or deficiency of service on the part of the opposite party in collecting Rs.839.86p.s. for TBC, as it includes the service charges. Hence, we do not find any irregularity or unfair trade practice on behalf of opposite party, as such the complaint is dismissed with no costs.
17. In the result, the complaint is dismissed. No order as to the costs.
Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 27th day of November, 2014.
Sd/- Sd/-
Member President (FAC)
District Consumer Forum-I
Visakhapatnam
Consumer Complaint No:89/2014
APPENDIX OF EVIDENCE
Exhibits Marked for the Complainant:
Ex.A1 | 08.03.2014 | Invoice copy of Opposite party | Original |
Ex.A2 |
| Picture of item charged. | Photograph |
Ex.A3 |
| Manual Repair Order issued by Lakshmi Hyundai. | Duplicate |
Exhibits Marked for the Opposite Parties:
Ex.B1 | 08.03.2014 | Manual repair order, computerized repair order and Invoice copy of Opposite party | Office copies |
Ex.B2 | 27.03.2014 | Photographs in Three Nos. | Prints |
Ex.B3 | 03.05.2014 | Certificate issued by Chartered Accountant. | Original |
Ex.B4 | 16.04.2014 | Certificate issued by Vishnu Automobiles. | Original |
Ex.B5 | 30.12.2013 | Hyundai Service Bulletin. | Original |
Ex.B6 | 07.01.2014 | Set of Manual repairs, computerized repair order and invoice of M/s R.K.Trading. | Photostat copy |
Ex.B7 | 07.01.2014 | Set of Manual repairs, computerized repair order and invoice of Mrs Pratim Kumari Midha. | Photostat copy |
Ex.B8 | 09.01.2014 | Set of Manual repairs, computerized repair order and invoice of Mrs. D.Madhuri | Photostat copy |
Ex.B9 | 17.02.2014 | Set of Manual repairs, computerized repair order and invoice of Mr.G.Mohan Rao. | Photostat copy |
Ex.B10 | 01.07.2011 | Sale Invoice issued by the opposite party. | Quadruplicate |
Ex.B11 | 28.06.2013 | Service tax invoice issued by the Opposite party. | Duplicate |
Ex.B12 | 22.04.2011 | Invoice/Cash memo along with Job sheet issued by the opposite party. | Original |
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Sd/- Sd/-
Member President (FAC)
District Consumer Forum-I
Visakhapatnam
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