Date of Filing:25/02/2011

        Date of Order:13/05/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  13^th DAY OF MAY 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 379 OF 2011

D. Rajendra Kumar,

Major, S/o. Late Sri. D. Rathnavarama

Heggade, managing Partner of Auto

Matrix, “Manjusha”, Bejai,

MANGALORE-575004.                                                         ….  Complainant.

V/s

(1) T.V. Sundram Iyengar & Sons Limited,

Division-Sundaram Motors,

A Company incorporated and

Registered under Companies Act, 1956,

No.107, Kasthurba Road,

Bangalore-560001.

Rep. by its Managing Director.

(2) Mercedes-Benz India Private Limited,

A company incorporated and

Registered under Companies Act, 1956,

E-3, MIDC, Chakan, Phase-III,

Chakan Industrial Area, Kuruli & Nighoje,

Tal: Khed, Pune-410501, India.

Rep. by its Managing Director.                                         …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay Rs.4,98,000/-, are necessary:-

          To Opposite party No.2, who is the manufacturer, sales and service of “Mercedes-Benz” car to which the opposite party No.1 is the authorized dealer.  On 21.08.2008 the complainant purchased the E280 CDI Mercedes Benz car bearing No. Ch-03-C900 from opposite party No.1 for a sum of Rs.44,64,361/-.  The complainant submitted the said car for regular service in the stipulated period.  During the first three services the complainant had submitted the car for improper functioning of brakes to the opposite party No.1 who stated it has checked and found to be correct.  But it is not a satisfactory explanation given to the complainant.  As the said car met with an accident, the complainant brought the said car to opposite party No.2 on 28.04.2010 for repairs and replacement of wind shield, head lamps as well as the bumper and associated repairs.  The opposite party No.2 promised that it may procure the spare parts within 6 days and repair it.  The complainant paid an advance of Rs.20,000/- on 29.04.2010.  The other repairs were done on 06.05.2010, but the bumper was not replaced, hence it was intimated to the opposite party No.2 to replace it on 08.05.2010.  After inordinate delay the vehicle was handed-over to the complainant on 20.05.2010.  Mr. Pathak had stated that the breaking system has been checked and repaired on 26.05.2010.  The opposite party demanded Rs.3,32,631/-.  The complainant paid Rs.3,12,631/- after deducting Rs.20,000/- paid as advance, but the opposite party declined to accept the same.  The opposite party furnished the tax invoice for Rs.3,47,269/-.  The complainant questioned the same, the opposite party gave an additional discount of Rs.15,000/-.  The complainant took delivery of the vehicle on 26.06.2010.  The act of the opposite party is nothing but deficiency in service.  Hence the complainant issued a notice to the opposite party No.1 on 10.07.2010 demanding the opposite party No.1 the modest compensation of Rs.1,75,000/-.  The opposite party No.1 replied on 26.08.2010.  Hence the complainant is entitled to Rs.2,20,000/- the cost of repair without providing estimation and taking approval, EMI of loan for May-2010 and June-2010 amounting to Rs.1,68,000/-, cost of alternative conveyance for two months Rs.1,00,000/-, travelling expenses Rs.10,000/-, and legal notice charges Rs.3,000/-.

2.       In this case the opposite party No.1 though served remained absent throughout the proceedings.  In brief the version of the opposite party No.2 are:-

          The opposite party No.1 is the authorized dealer and responsible for sales and services of the cars manufactured by opposite party No.2.  They are independent and there is no agency.  Relationship between the opposite parties are of principal to principal basis.  The complainant had purchased the car on 21.08.2008 and there is two years warranty which expires on 20.08.2010.  The car had undergone normal service and repair work, which was necessitated due to accident.  It had cloaked 24,000 kilometers as on 30.04.2010.  This is an excellent usage.  The complainant reported around this time for accidental repair of front bumper, headlights, etc.,.  It was thoroughly repaired after inspection of the car by insurance surveyor.  When technical expert of opposite party No.2 inspected the car, he found that the brake pads had worn out.  Wearing out of brake pads after the use of vehicle for more than 10,000 kilometers is normal and therefore replacement of brake pads was not premature even in this case.  As ‘wear and tear’ is not covered under warranty, it was informed to complainant by opposite party No.1 and it was done in the interest of the complainant himself and he has made a grievance which is not permissible.  Liability of the opposite party is limited to manufacturing defect.  The complainant has sought Rs.4,98,000/- in the prayer but in the paragraph-12 he has sought only Rs.1,25,000/- from opposite party No.1.  It appears that the complainant is aggrieved since the opposite party No.1 did not obtain prior written approval to the estimate for replacement of worn out brake pad.  The vehicle is in the 3^rd year of its operation and cloaked 24,000 kilometers.  All the allegations to the contrary are denied.

3.       Subsequent to filing the complaint the complainant did not turn-up at all till date.  Only the opposite party No.2 has filed his affidavit and documents.  Heard the opposite party No.2.  Perused the complaint, records submitted by both the parties.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is any deficiency in service on the part of the opposite parties?
2. What Order?

5.       Our findings are:-

Point (A)        :           In the Positive.

Point (B)        :           As per the final Order

                             for the following:- 

-:REASONS:-

Point A & B:-

6.       Reading the complaint in conjunction with the version of opposite party No.2, documents of both the parties and affidavit of opposite party No.2 it is needless to say that the opposite party No.2 is the manufacturer, sales and services of the Mercedes Benz car and the opposite party No.1 is the dealer.  The complainant had purchased the Mercedes Benz car bearing registration No.CH-03-C900 on 21.08.2008, manufactured by the opposite party No.2 through opposite party No.1.  The said card had a two years warranty from that date and it expires on 21.08.2010.

7.       The complainant had stated that the vehicle had the problem with the brake pad.  Between 21.08.2008 to 21.08.2010, whether the vehicle has any problem of brakes is not at all stated, no document was produced by the complainant to show that the vehicle had any problem with the brakes during the said period.  It is seen that the vehicle had plyed for more than 24,000 kilometers.  This is an excellent mileage as rightly contended.  If there was any disorder in breaking system the vehicle could not ply for 24,000 kilometers in less than 24 months.  That means there is no manufacturing defect.

8.       It is an admitted fact that on 28.04.2010 the complainant delivered the vehicle for accidental repair.  In that accident the front bumper, headlights and other things were damaged.  The vehicle had insurance claim also.  When once the vehicle is delivered for accidental repair, after the inspection of the insurance surveyor, if the vehicle had been repaired and certain amount has been charged by the opposite party No.2, certain breaking system also had been damaged and it was repaired and the complainant took delivery.  Hence claiming anything is an afterthought as rightly contended.

9.       The sole grievance of the complainant is that regarding the breaking system, no estimation was given and he was made to pay for it, hence it is deficiency in service.  Only after opening the entire vehicle including the breaking system the opposite party could have known whether there is any damage to the breaking system.  In the interest of the complainant the opposite party set right the breaking system.  It should have taken care before repairing the breaking system of informing and taking consent from the complainant.  But it had repaired it, which is not disputed.  This is a small negligence and deficiency in service.  For which certain amount has to be ordered and to be paid by the opposite parties to the complainant.  That’s all.  Here there is no manufacturing defect there is no deficiency in service in any other thing.

10.     Further certain delay in repairing and delivering the vehicle to the complainant, that is owing to non-receipt of the spare parts like bumper and other things that cannot be termed as a deficiency in service.

11.     In this case the complainant had claimed at Para-12 Rs.1,25,000/- as compensation from opposite party No.1, but in the prayer he had claimed Rs.4,98,000/-.  There is no nexus or rational reason for any of these.

12.     Hence under these circumstances for the reasons stated above if we direct the opposite parties to pay Rs.20,000/- as compensation, we think that will meet the ends of justice and also direct the opposite parties to pay cost of this litigation at Rs.2,000/-.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The opposite parties are directed to pay Rs.20,000/- as compensation to the complainant within 30 days from the date of this order.
3. The opposite parties are also directed to pay Rs.2,000/- to the complainant towards cost of this litigation within 30 days from the date of this order.
4. The opposite parties are directed to send the amount as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 75 days from the date of this order.   
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 13^th Day of May 2011)

MEMBER                                               MEMBER                                     PRESIDENT