COMPLAINT FILED ON: 30.10.2009

DISPOSED ON:09.12.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

9^th DAY of DECEMBER– 2011

       PRESENT:- SRI. B.S.REDDY                       PRESIDENT                        

                         SMT. M. YASHODHAMMA              MEMBER    

                         SRI. A. MUNIYAPPA                     MEMBER

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainant filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Party (herein after called as O.P) to deliver (wrongly typed as declared) a new Skoda Car or to pay Rs.15,00,000/- together with such amount availed forcefully from the complainant. Further to pay sum of Rs.2,50,000/- together with the services charges of RS.10,883/- with interest 18% along with costs of the proceedings on the allegation of deficiency in service on the part of OP.

2. The case of the complainant to be stated in brief is that:

The complainant is the owner of Car No.23 MC1-Skoda Laura Car-manufactured by Skoda Auto India Saloon-make April-2006. The complainant left the car for service on 11.03.2009 with the OP. OP lost key of the vehicle on or about 13.03.2009 at their end and hence the vehicle was not delivered to the complainant from 11.03.2009 till 03.10.2009. OP by their letter dt.18.08.2009 and 19.08.2009 contended that the new keys are ordered and the keys would be available in 5 working days and in spite of such admission the vehicle was delivered only on 03.10.2009 as per their invoice dt.03.10.2009. OP besides not delivering the vehicle left for service demanded Rs.18,331/- and forced the complainant to pay such amount by coercion. The complainant caused a legal notice dt.21.08.2009. The complainant is put to irreparable loss, hardship ad injury due to this act and action of the OP. Further due to non-delivery of the vehicle for more than 7 months the entire vehicle has become junk and the complainant is entitled for an alternative new vehicle or in the alternative damages of Rs.15,00,000/-. Hence the complaint.

3. OP filed version and additional version admitting that the complainant purchased a Skoda Laura Car registered as KA 23 MC 1 on 17.10.2006. It is also admitted that the complainant brought the car to OP’s workshop on 11.03.2009 for service and other repairs. The Car had run about 62,818 kms as to that date. The Car was repaired and kept ready for delivery on 14.03.2009. The complainant did not come forward on the said date to collect the car and in the interim the Op’s security personnel inadvertently misplaced the key of the Car. This was informed to the complainant immediately and OP requested for the spare key. The complainant informed the OP that he did not have the spare key with him and that he had lost it some time ago. The Op was constrained to order for another spare key from the manufacturing company. OP received the key on 21.08.2009 and the Car was delivered to the complainant on 22.08.2009. It is categorically denied that OP did not deliver the Car till 03.10.2009. It is denied that OP coerced the complainant to pay the amount. OP admits that legal notice dt.21.08.2009 was received, OP has been in touch with the complainant and has been making all efforts to explain the situation to him and in the interim the complainant has chosen to approach this Hon’ble Court for relief. OP was constrained to order for spare key as the complainant did not have his spare key. The delay, if any, is solely due to this and for no other reason. In fact the complainant also ordered for another spare key for himself over and above to the one that OP ordered. OP is not liable to pay any amounts claimed to the complainant. There has been no deficiency in the service rendered, the complainant is not entitled for Rs.2,50,000/-. The OP has only charged for services rendered by them and not for any other reason. The complainant is legally bound to pay the said amount and cannot now claim for a refund from the OP. Hence, it is prayed to dismiss the complaint with exemplary costs.

4. In the additional version filed by the OP, it is denied that the complainant has suffered irreparable loss or injury nor put to hardship by the OP. It is denied that due to non use of the vehicle for more than 7 months, the entire vehicle has become junk. The complainant has been using the Car since and he is, well aware that it is in road worthy condition. The complainant is not entitled for an alternative new vehicle or in the alternative damages of Rs.15,00,000/-. The OP has only charged for service rendered, the complainant is legally bound to pay the said amount. It is prayed to dismiss the complaint with exemplary costs.

5. The complainant in order to substantiate complaint averments filed affidavit evidence. One M.S.Viswanath employed as Head Service in OP filed affidavit evidence in support of the defence version and one Mallesh employed as Security Supervisor in OP filed affidavit evidence.

6. The complainant field written arguments and additional written arguments. Further documents are produced with Memos dt.18.07.2011 and 16.09.2011 regarding the bills issued. OP filed written arguments and produced further documents with Memo dt.30.09.2010.

7. Arguments on both sides heard.

8. Points for consideration are as under:

       Point No.1:-  Whether the complainant has

   proved the deficiency in service

    on the part of the OP?

Point No.2:-   If so, whether the complainant is

                     entitled for the relief’s claimed?

      Point No.3:-  To what Order?

9. We record our findings on the above points:

Point No.1:- Affirmative.

Point No.2:- Affirmative in Part.

Point No.3:- As per final Order.

R E A S O N S

At the out set it is not in dispute that the complainant being the registered owner of Car No.KA.23 MC1-Skoda Laura Car-diesel and make April-2006, left the vehicle for service on 11.03.2009 with OP authorized Service Centre. Annexure-A is the copy of the RC, Annexure-B is the inventory check by OP, Annexures- C to F are the workshop Job Card/ Pre-order/ repair order/ Material Requisition Slip. After attending the service, the complainant claims that the vehicle was delivered on 03.10.2009, as per the Invoice copy of which is marked as Annexure-J, but as per the defence version because of the key of the vehicle being misplaced, the new key was obtained from the company on 21.08.2009 and the vehicle was delivered to the complainant on 22.08.2009. Further the defence of OP is vehicle was kept ready for delivery after attending the required service on 14.03.2009 itself, but the complainant has not turned up to take the delivery of the vehicle.

10.OP has not produced any material to show that the vehicle was repaired and kept ready for delivery on 14.03.2009 itself, but the complainant did not come forward on the said day to collect the car. The main reason for delay for delivery of the car is the key of the vehicle was misplaced by the security personal and the complainant had also no spare key as he had lost the same, hence OP was constrained to place an order for another spare key from the manufacturing company. As the key is manufactured by the Manufacturer at their German plant only. The key was received on 21.08.2009 and the car was delivered to the complainant on 22.08.2009. It may be noted that OP has produced the copy of an extract of delivery register in support of its defence that the car was delivered on 22.08.2009. The delivery register extract reveals that the vehicle car No.KA23MC1 is shown as delivered on 22.08.2009. One Mallesh Security Supervisor of OP has filed affidavit evidence swearing to the facts that he is working as a Security Supervisor since 01.01.2009 in OP and he is in charge of maintaining the delivery register. He used to note down the number of the car, customers name and time of the delivery at the gate. The car bearing No.KA23 MC 1 has been delivered on 22.08.2009. On the basis of the delivery register extract and affidavit evidence of the Security Supervisor and the affidavit evidence of General Manager of OP. We are satisfied that the car has been delivered to the complainant on 22.08.2009.

11.The learned counsel for the complainant contended that under Invoice dt.03.10.2009 total amount of Rs.18,331/- has been collected by OP after delivery of the vehicle on that day that amount was collected by coercion. In our view, only on the basis of Invoice it cannot be said that the vehicle was delivered on 03.10.2009, the delivery register extract clearly goes to show that the vehicle has been delivered on 22.08.2009. OP intimated the complainant for the 1^st time on 18.08.2009 with regard to the order placed for the key of the vehicle with the company. Further in the letter dt.19.08.2009 marked as Annexure-H the complainant was informed that on receipt of the new key the same was not suiting to the vehicle hence once again they have placed order for new key on 25.07.2009, the key was expected within 5 working days from Skoda Aurangabad. We are unable to accept the reason for delay in delivering the vehicle only on the ground that key of the vehicle being misplaced and the new key was ordered with the company and after receipt of the new key OP was able to deliver the vehicle to the complainant. The vehicle was left for service on 11.03.2009, there could not have been such a long delay in obtaining the new key for delivery of the vehicle. The act of OP officials in misplacing the key of the vehicle is gross negligence on the part of the OP.

12.The documents produced by OP with Memo dt.30.09.2010 relates to the Journal Voucher dt.09.07.2009 which indicates that the complainant has been provided one key free of cost and an amount of Rs.7,419/- has been debited to Mac Security Services for misplacing the key of the Car. The copy of the Job Card dt.21.09.2009 and the repair order copy, copy of Retail Invoice reveals that the vehicle was brought again to Ops workshop on 21.09.2009 and the complainant has sought for another remote and main key. Further, the copy of the delivery register dt.23.10.2009 reveals that the car was delivered on 23.09.2009 after attending the required service. Further the copy of the job card dt.03.10.2009 and copy of the repair order the copy of the Retail Invoice goes to show that again the car was brought to the workshop to replace rear brake pads on 03.10.2009 and after attending the required service the car was delivered on 03.10.2009 to the complainant as per delivery register extract. Thus it becomes clear that after the car was delivered on 22.08.2009, the vehicle was brought back to the workshop on 21.09.2009 and 03.10.2009 for attending the required service, the vehicle was redelivered on 21.09.2009 and 03.10.2009. Therefore it cannot be said that after the vehicle was left for service on 11.03.2009 the same was not delivered till 03.10.2009 as contended by the complainant. As on 11.03.2009 when the car was left for the service with OP it had run 62,816 Kms. As pr the inventory checking, as on 21.09.2009 when the car was brought back again to the workshop the vehicle had run 66,229 Kms as on 03.10.2009 again when the vehicle was brought to the workshop for service it had run 67,582 Kms as per Job Cards and Retail Invoice, if the vehicle remained in the workshop from 11.03.2009 when it had run 62,816 Kms and the vehicle was delivered only on 03.10.2009 the running KMs could not have been 67,582 KMs as on 03.10.2009. By no stretch of imagination it can be said that the vehicle had run within the workshop to an extent of 4,366 KMs without the complainant making use of the same after taking its delivery on 22.08.2009. Thus we are unable to accept that the vehicle was delivered only on 03.10.2009 after the same was given for servicing to OP on 11.03.2009.

13.The complainant has produced subscription bills, estimate of repairs with Memo dt.18.07.2011 and 16.09.2011. All these bills relates to the replacement of spare parts and labour charges in attending the complaints regarding the vehicle. The estimate of Repairs dt.03.09.2011 discloses the spare part Exhaust Manifold with Turbo and Fly wheel are required to be fixed to the vehicle and the total estimate of those two parts is shown at Rs.1,63,784.62, the estimated labour charges are shown at Rs.8,824 thus in all Rs.1,72.608.62. As the complainant has used the vehicle and taken the necessary services attended by replacing certain parts required for smooth running of the vehicle. We are unable to accept the contention because of this complaint filed against the OP, OP is charging huge amounts for attending the repairs of the vehicle.

14.In the additional Written Arguments filed by the complainant it is claimed that the car is totally unusable hence OP is to be directed to provide alternative car. It may be noted that OPs produced the satisfactory notes issued by the complainant dt.14.02.2011 and 12.04.2011 in respect of job No.33734 and 35744 respectively. As per these satisfactory notes duly signed by the complainant, the complainant has certified that his car bearing registration No.KA23 MC-0001 was attended for repairs by OP and all the jobs have been carried out to his entire satisfaction. He has taken road test of his car. Now the car is in good condition and performing to his entire satisfaction. The estimate of repairs dt.03.09.2011 produced by the complainant itself reveals that the vehicle had run 1,27,260 KMs. As on 03.10.2009 the vehicle had run 67,582 KMs, thus within 2 years the vehicle had run 59,630 KMs in between 03.10.2009 and 03.09.2011. On the basis of satisfactory notes issued by the complainant and the vehicle used to cover a distance about 60,000/- KMs clearly goes to show that the complainant has been making use of the vehicle the same is roadworthy. Therefore, we are unable to accept the contention of the complainant that because of the vehicle being remained in the workshop for long time it has become junk and not fit for the use on the road.

15.There is no merit in the contention of the complainant that an amount of Rs.18,331/- collected by the OP as pr their Invoice dt.03.10.2009 was taken by coercion. The said amount has been paid by the complainant towards the services attended by the OP, the complainant is bound to pay his service charges. The complainant has claimed damages of Rs.15,00,000/- there is no material as to how the complainant has suffered damages to that extent. However, OP has detained the car for about 5 months in the workshop depriving the complainant from making use of the same for his day today work. At Para-8 of the complaint it is stated that he has been put to irreparable loss, hardship and injury, further he has stated that he has been put to the following loss due to non-delivery of the vehicle by the OP. He has not furnished the details of the losses suffered. The act of OP in not delivering the vehicle for more than 5 months on the ground of vehicle key being misplaced and for securing new key from the company, and misplacing of the key by the security staff of the OP is gross negligence on its part which is deficiency in service. Taking into consideration of all the facts and circumstances, we are of the view that the ends of justice would be met by awarding compensation to an extent of Rs.50,000/- on account of complainant being put to hardship as the vehicle was not made available for his day today use for about 5 months and made him to incur expenses for traveling.  Accordingly, we proceed to pass the following:               

                                O R D E R

The complaint filed by the complainant is allowed in part.

The OP is directed to pay an amount of Rs.50,000/- as compensation to the complainant along with litigation cost of Rs.5,000/- within 4 weeks from the date of this Order.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 9^th day of December– 2011.)

MEMBER                    MEMBER                      PRESIDENT                     

Cs.