PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint for the reliefs to declare that Opposite Parties are guilty of deficiency in service, for recovery of Rs.54,000/- traveling expenses from house to office and for clarification, guarantee, etc.

2)        The case of the Complainant in short is as under –

           The Complainant is the resident of Vashi.  The Complainant owns a Fiat Car model siena No.MH-01-CA-1088 and he was using it for communicating to his office at Nariman Point from Vashi residence.  In the first week of September, 2011 the said car was picked up by Opposite Party No.2 for repairs.  According to the Complainant, there were three problems with the car overheating due to a fan problem, air conditioning problem and minor break problem. There was no communication regarding status of the car from Opposite Party No.2 for two months. The Complainant made umpteen calls to Opposite Party No.1 to 3 but in spite of repeated follow-up, have absolutely no information, feed back or explanation as to what was happening, where the problem was and who was responsible. On 31/10/2011 Complainant received reply from Opposite Party No.2 informing that parts for vehicle in question are not readily available and those are in process as soon as they get the same they will update the complaint.  Opposite Party No.2 has not made arrangement of spare parts of the car in question for two months.  The car is lying at the service centre without repair for two months due to gross failure of Opposite Party No.2.

3)        The further case of the Complainant is that, he filed three Complaints with Opposite Party No.3 bearing No.14070256557, 12151737251, 13661057661 and his first two complaints were closed by the call centre without resolving problem and without communicating to him.  After two months Opposite Party No.3 informed to the Complainant that parts have been arrived and sent him estimate dtd.08/09/2011 for astronomical amount Rs.22,544/- which was received to him on 15/11/2011.  The Complainant was intending to understand from Opposite Party No.2 about the car, expenses and loss incurred to him due to non availability of car and high cost of the proposed repairs. The Complainant made several attempts to contact senior management for an explanation on phone but that was not allowed and the management had refused to come to the phone.  The Complainant had sent letter to Opposite Party No.1 and informed that their designated person should call the Complainant and resolve the issue but, no one from Opposite Party No.1 has contacted the Complainant. There was no information and communication from Opposite Parties for three months and Opposite Parties kept the Complainant in the dark.  On 9 December, 2011 Opposite Party No.2 informed to the Complainant that Opposite Party No.2 is not responsible for condition of car in question because it was lying unused in the garage.  Opposite Parties are engaged in unfair trade practice and also guilty of deficiency in service.  The Opposite Parties have caused mental torture to the Complainant.  Hence, this complaint for the reliefs mentioned in above para no.1. 

4)        Opposite Party No.1 resisted the claim by filing written statement. The contention of Opposite Party No.1 is that, the responsibility of making spare parts available to the distributor/service centre/dealer rests with Opposite Party No.3 manufacturer.  The complaint, if any should have been filed only against manufacturer and Tata Motor Ltd. shown in the title clause of complaint is erroneousness, the complaint is not maintainable for misjoinder and non joinder of the parties.  The Complainant has not paid or promised to pay any consideration to Opposite Party NO.1 therefore, there is no relation between the Complainant and Opposite Party No.1 as consumer and service provider.  The Complainant has purchased the vehicle in question on 18/03/2000.  The warranty period was of 18 months ending 17/09/2001.  The Complainant approached to Opposite Party No.2 for carryout repairs in the year 2011 after expiry of warranty period.  Opposite Party No.1 is not responsible for alleged delay in supply of spare parts and for failing to repair the vehicle in question.

5)        Opposite Party No.2 resisted the claim by filing written statement. The contention of Opposite Party No.2 is that, Opposite Party No.2 had checked the vehicle in question and there was problem in radiator switch, the same was replaced. Subsequently the radiator was checked and it was blocked the blockage was removed in the workshop.  In the meantime Mr. Madhav Godse informed to check the problem in air condition and break problem.  On 08/09/2011 Opposite Party No.2 had given estimate to the representative of the Complainant who had produced the vehicle in question to the workshop of Opposite Party No.2.  The estimate of parts, air condition condenser assembly, brake pad (front), AC gas, compressor oil of total Rs.22,544/- was given to the representative of Complainant. It was informed to the said representative that the model was old of the year 2000 and it is closed.  The AC spare parts condenser assembly was not readily available in the workshop of Opposite Party No.2.  After placing the order for above spare parts it will take time for arrival of those spare parts.  It was also informed to the Complainant that as soon as the parts should be available they will inform to the Complainant.  After installation of air conditioner condenser air condition system recharged and after that it came to know AC compressor was short, the cost of said compressor was Rs.16,500/- so an additional estimate was given and the total estimate including previous amount was to the tune of Rs.39,044/-.  As soon as the parts were made available Opposite Party No.2 sent e-mail to the Complainant on 18/11/2011 and asked for sending approval for starting the work of repair of the car in question.  The Complainant has not given approval for the said work.  The Complainant has not given approval therefore, said vehicle is lying idle in the workshop of Opposite Party No.2.

6)        Opposite Party No.3 resisted the claim by filing written statement dtd.21/05/2012.  The contention of Opposite Party No.3 is that registered office of Opposite Party No.3 is situated at Pune and the vehicle in question manufactured at Ranjangaon, Pune.  The Complainant did not seek permission of the Forum to institute the present complaint in this Forum.  Hence, this Forum has no jurisdiction to try complaint against Opposite Party No.3.  No service has been provided by the Opposite Party No.3 as defined in Sec.2(o) of the Consumer Protection Act, 1986, therefore, the Complainant is not consumer as defined in Section 2(1)(d)(ii) of the said Act.  No consideration has been paid or promised or partly paid or partly promised or assured under the system of deferred payment by the Complainant to Opposite Party No.3 and therefore, for want of consideration the Complainant is not consumer.

7)        The further contention of Opposite Party No.3 is that the vehicle in question is more than 12 years old. The warranty period has been already lapsed, the manufacturer and the customer are bound by the terms and conditions of the warranty once the warranty period is over there would be no liability.  The vehicle in question of 12 years old therefore, reasonable wear and tear ought to be expected. The Complainant has not made allegation regarding manufacturing defect of the vehicle in question. The contention of Opposite Party No.3 is that Opposite Party No.3 and Opposite Party No.2 share a principal to principal relationship and hence, Opposite Party No.2 cannot be termed as an agent of Opposite Party No.3.  Opposite Party No.3 has sold car in question to the Complainant independently and in perfect running condition and was functioned in all respect. On 04/11/2011 Opposite Party No.3 promptly replied the e-mail sent by the Complainant dtd.03/11/2011. Opposite Party Nos.1 to 3 have denied all rival allegations of the Complainant and prayed for dismissal of the complaint with cost.  

8)        The Complainant has submitted his affidavit of evidence on 05/08/2013.  Opposite Party No.1 has submitted affidavit of evidence of Shalini Sinha.  Opposite Party No.2 has submitted affidavit of evidence of Ramesh Harbansal Jaggi, a Manager Opposite Party No.3 has submitted affidavit of Raghavendranath Raju, a legal representative.  We have gone through the documents filed by the Parties.  We heard oral argument of Complainant in person, Smt. Anita Marathe, Ld.Advocate for Opposite Party No.1, Shri. Kiran Chadwadkar, Ld.Advocate for Opposite Party No.2 and Smt. Mahima Sinha, Ld.Advocate for Opposite Party No.3.

9)        Opposite Party No.3 in its written statement dated 21/05/2012 has specifically raised objection regarding maintainability of complaint against Opposite Party No.3 on the ground of non comply of provision of Sec.11(2)(b) of the Consumer Protection Act, 1986, by the Complainant.   

            Opposite Party No.3 has pleaded that registered office of Opposite Party No.3 is situated at Pune.  The vehicle in question was manufactured at their plant in Ranjangaon, Pune.  The Complainant did not seek or obtain leave of this Forum for institution of present complaint against Opposite Party No.3.  All the orders passed by this Forum in so far as they relate to Opposite Party No.3 are null and void ab-initio.

            The Complainant has pleaded in para no.10 of the complaint that, he received e-mail dtd.04/11/2011 i.e. two months after the car was sent for repairs, from Ashish Bhattacharya, Customer Services, Fiat India Automobiles Ltd., Pune – 412 210 regarding inconvenience caused to him.  The Complainant has produced alongwith his affidavit of evidence, copy of said e-mail.  The Complainant has also produced alongwith his affidavit of evidence copy of e-mail sent by Mangesh Kodalkar, Customer Services.  The address of Ashish Bhattacharya Customer Services and Mangesh Kodalkar Customer Services in e-mails dtd.04/11/2011 & 16/11/2011 have shown as customer services, Fiat India Automobiles Ltd., Ranjangaon, Pune–412 210.  The Complainant received above two e-mails from Ranjangaon, Pune, therefore, he was/is having knowledge of that the Head Office/Registered Office of Opposite Party No.3 is situated at Ranjangaon, Pune. The Complainant has not made party to the Registered/ Head Office of the Opposite Party No.3 to this complaint.  Not only this the office of Opposite Party No.3 is not within the territorial jurisdiction of this Forum.  The Head Office of Opposite Party No.3 is necessary party to the complaint.  In the absence of hearing to the head office of Opposite Party No.3 complaint cannot be decided against Opposite Party No.3.  Opposite Party No.3 has raised objection regarding maintainability of complaint against Opposite Party No.3 on the ground of non-compliance of provision of Sec.11(2)(b) of the Consumer Protection Act, 1986. The Complainant has not sought permission of the Forum to proceed the complaint against Opposite Party No.3 u/s.11(2)(b) of the Consumer Protection Act.  Under these circumstances the complaint against Opposite Party No.3 is not maintainable for want of compliance of Sec.11(2)(b) of the Consumer Protection Act.

10)      Opposite Party No.1 has submitted it’s written notes of argument on 10/02/2014.  The Complainant has received copy of said written notes of argument on the same day.  Opposite Party No.1 in para no.13 of the written notes of argument submitted that Complainant has not complied with the provisions of Sec.11(2)(b) for the purpose of instituting complaint against Opposite Party No.2 & 3 since both these Opposite Parties have their offices out side the territorial jurisdiction of this Forum.  Neither permission from Forum is taken nor do Opposite Parties Nos.2 & 3 acquiesce for filing of complaint in this Forum.  In view of the above irregularity the complaint is liable to be dismissed. Since from 10/02/2014 till the date of final argument the Complainant has not taken any steps for taking permission of this Forum for institution of complaint against Opposite Party Nos.2 & 3 as laid down u/s.11(2)(b) of the Consumer Protection Act, 1986. We have already held that, complaint is not maintainable against Opposite Party No.3 for non compliance of Section 11(2)(b) of the Consumer Protection Act, 1986.

11)      After 10/02/2014 the Complainant has not sought permission of this Forum for institution of complaint against Opposite Party No.2, therefore, complaint is not maintainable against Opposite Party No.2.  Opposite Party No.2 has not raised any objection in its written version or in the written notes of arguments regarding non compliance of Sec.11(2)(b) of the Consumer Protection Act, 1986.  For the above reason if it is presumed that Opposite Party No.2 acquiesce for filing of complaint against it (Opposite Party No.2) in this Forum then the Complainant failed to prove that there is deficiency in service on the part Opposite Party No.2.

12)      Admittedly the Complainant has handed over car in question to Opposite Party NO.2for repair in the first week of September, 2011. Opposite Party No.2 has submitted its written version on 16/04/2012.  Opposite Party No.2 has pleaded in the written version that the problem of car was stated regarding over-heating.  The said vehicle was checked and there was problem in radiator switch, the same was replaced.  Subsequently the radiator was checked, the said radiator was blocked.  The blockage was removed in the workshop of Opposite Party No.2.  In the meantime Mr. Madhav Godse representative of the Complainant informed to check the problem in air condition and break problem. On 08/09/2011 Opposite Party No.2 had given estimate to the representative of the Complainant who had produced the car to the workshop.  The estimate of AC condenser assembly, break pad front, AC gas, compressor oil was total of Rs.22,544/-.  It was informed to the representative of the Complainant that as the said model as an old of the year 2000 and the model was closed AC parts i.e. condenser assembly were not readily available in the workshop of Opposite Party No.2 and after placing the order it will take time for arrival of said spare parts.  The representative of the Complainant had agreed for the same.  It was also informed to the Complainant that as soon as the parts would be available they will inform to the Complainant. On 18/11/2011, Opposite Party No.2 sent e-mail to the Complainant whenever the spare parts were available to Opposite Party No.2.  Opposite Party No.2 asked the Complainant by the said e-mail for approval of estimate so that Opposite Party No.2 will be in position to start the work of repair of car in question. The Complainant has not denied in his affidavit of evidence, all the above facts.

13)      Opposite Party No.2 has submitted affidavit of evidence of Mr. Ramesh Harbanslal Jaggi.  The said witness has stated on oath in his affidavit of evidence all the facts narrated by Opposite Party No.2 in the written version.  The pleading and above evidence of Opposite Party No.2 remained unchallenged. The said pleading and evidence of Opposite Party No.2 are intact.  The above evidence clearly goes to show that, at the first instance Opposite Party No.2 carried out repair work of radiator of the car in question and thereafter the Complainant pointed out the problem of car of air condition and break pad.  The car in question was of old model and it is closed therefore, spare of parts of said model were not readily available in the workshop of Opposite Party No.2. Opposite Party No.2 was to get available those parts by placing the order.  The head office of Opposite Party No.3 is the manufacturer of model of car in question and its spare parts. The Complainant has not made party to the said Company.  The office of Opposite Party No.3 is not within the territorial jurisdiction of the Forum.  We have already held that complaint is not tenable against Opposite Party No.3.  Under these circumstances it cannot be said that there is delay in getting the spare parts on behalf of Opposite Party No.2.  Opposite Party No.2 had already informed to the representative of the Complainant that spare parts are not available with them and after placing order it will take time for arrival of those spare parts and the representative had agreed for the same.  It means the Complainant had given consent for starting the repairing work of his car after the arrival of spar parts.  Opposite Party No.2 had informed to the Complainant the fact of arrival of spare parts by e-mail on 18/11/2011.

14)      The Complainant comes with the case that, Opposite Party No.2 has given estimate of exaggerated amount of Rs.22,544/-.  The Complainant has not produced any document or other evidence in support of his above contentions.

15)      The Complainant had made enquiry with Opposite Party No.2 about status, feed back of his car and its repairing work by the e-mail on 24/10/2011 at 3.07 p.m., on 31/10/2011 at 12.55 p.m., 2.55 p.m. and 5.33 p.m., on 01/11/2011 at 3.21 p.m., on 03/11/2011 at 1.05 p.m., 4.40 p.m., on 14/11/2011 at 3.50 p.m..  Opposite Party No.2 replied the above e-mails of the Complainant by sending e-mail to the Complainant on 31/10/2011 at 3.50 p.m. The head office of Opposite Party No.3 had also made contact with the Complainant regarding his grievance of non availability of spare parts by the e-mail on 04/11/2011 at 9.34 a.m. and on 16/11/2011 at 10.30 a.m.  Opposite Party No.2 sent estimate of spare parts to the Complainant by e-mail on 16/11/2011 at 3.00 and asked the Complainant for his approval.  The Complainant has not given approval to it.  Opposite Party No.2 has promptly replied the e-mail sent by the Complainant and asked approval of Complainant after arrival of the spare parts. This communication and evidence shows that there is no deficiency in service on the part of Opposite Party No.2.  Opposite Party No.2 is the dealer of the Opposite Party No.1.  We have already held that Complainant failed to prove the guilty of Opposite Party No.2 of deficiency in service therefore, there is also no deficiency in service on the part of Opposite Party No.1.  The grievance of Complainant is that there is delay in supply of spar parts to Opposite Party No.2. The manufacturer of said spare parts is head office of Opposite Party No.3.  The said head office is not party to the complaint, hence, it can not be said that there is deficiency in service on the part of Opposite Party No.2.  The Complainant has relied on the decision of competitive Commission in Case No.3 of 2011.  However, said decision is not helpful to the Complainant as head office of Opposite Party No.3 is not party to the present complaint and the said decision is under the provisions of competitive Act.  Hence, said decision is not applicable to the fact of this case.

16)      The Complainant has claimed Rs.54,000/- towards the expenses made by him for traveling from his house to office for three months as the car was lying with Opposite Party No.2 during the said period.  The Complainant has not pleaded how much amount he expended per day and by which particular vehicle he traveled during the said period.  The claim made by the Complainant of Rs.54,000/- towards traveling expenses against Opposite Parties in our view cannot be accepted as there was no specific agreement between the Complainant and Opposite Parties that if the vehicle in question would not be repaired to the satisfaction of the Complainant within particular period, the Opposite Parties would be liable to pay traveling charges towards their deficiency in service. Opposite Party No.2 has shown previous amount of bill of repair of the car Rs.1,909/- in the estimate which has been sent to the Complainant by e-mail on 16/11/2011. The Complainant has not deposed in his affidavit that the amount shown of previous work in the said estimate is not due against him. The Complainant has only stated that estimate of spare parts is exaggerative but he has not produced any evidence to that effect. The Complainant has also claimed Rs.2,50,000/- from Opposite Parties for purchasing secondhand car on the allegations of deficiency in service on the part of Opposite Parties by filing addendum to the complaint.  He has also claimed in the said addendum Rs.85,000/- towards the expenses made by him on traveling and legal expenses.  The said claim made by the Complainant cannot be entertained as the Complainant has not sought permission to amend the complaint.  The Complainant in our view has made the claim against the Opposite Parties without any legal basis. On 24/06/2013 Opposite Party No.2 has produced a copy of e-mail dated 19/04/2013. Opposite Party No.2 had requested to the Complainant by said e-mail for collecting the car from the workshop before the manson and Opposite Party No.2 would not responsible for any  detoration of car as it is lying in the workshop unused for long time, Opposite Party No.2 by the e-mail dated 08/12/2011 had also made above such request to the Complainant.  Opposite Party No.2 is also claiming parking charges Rs.300/- per day from the Complainant in the written notes of argument. The Complainant has not shown his readiness and willingness to take back his car nor he had given the approval for the repairing work of car in question. From the above fact it appears the Complainant is only interested in claiming the compensation and he is not interested to get repair his own car.  Considering the facts and circumstances of the case we are of the opinion that the Complainant is expected to take back his car which is in the present condition from the workshop of Opposite Party No.2 by settling the dispute with Opposite Party No.2. The Complainant failed to prove the deficiency in service on the part the Opposite Parties and wrongly claimed the reliefs as discussed above.  In the result complaint deserves to be dismissed.  Considering the nature of complaint both parties have to bear their own costs.  Hence we proceeds to pass following order –

O R D E R

                     i.      Complaint No.327/2011 is dismissed.

            ii.       Both the parties shall bear their own costs.  

            iii.      Certified copies of this order be furnished to the parties.