Karnataka

Bangalore 4th Additional

CC/14/578

Syed Isaq S/o Late Ghouse Pasha - Complainant(s)

Versus

The Branch Manager ,M/s.Metro Ford - Opp.Party(s)

30 May 2018

ORDER

Complaint filed on: 24.03.2014

                                                      Disposed on: 30.05.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027    

 

 

CC.No.578/2014

DATED THIS THE30^thMAY OF2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Syed Isaq, S/o Late  Ghouse Pasha, Aged about 48 years, R/at 7th Cross, Devagowda Layout, Sadashivanagara, Tumkur Town   By.Adv.Devaraju.K.L.		The Branch Manage, M/s Metro Ford, Service Station, Sy.No.69/2, Mallasandra Village, Hesaraghatta Road, Bangalore-560 057.     By.Adv.Siddartha.S.G.

 

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Party directing tohandover the ford Fiesta car bearing Regd.No.KA-04-MC-7878 to the Complainant after fully repair, with good condition, to pay compensation of Rs.6,00,000/- with Govt. interest and other expenses till realization of the Complainant for intentional negligence made by the Opposite Party.

2.       The brief facts of the case of the complainant are that he is owner of the metro ford car Registration No.KA-04-MC-7878 (hereinafter referred as the said car), the Opposite Party is the authorized service station for the service of ford cars, the Complainant car was met with an accident in the date of 10^th July 2011 and after the said accident was Namadacheluma, Urdigere Hobli, Tumkur Taluk, Tumkur, the Complainant approached with the Opposite Party, the Opposite Party has agreed for repair the said car and the Opposite Party took the delivery of the car, to repair in the month of July 2011, the Opposite Party had gave the estimate bill for Rs.3,00,000 to 3,25,000 approximately and thereafter the Complainant was approached with the insurance authority agent and asked for how much claim can the Complainant get from the insurance company and for the same, the insurance company told with the Complainant, for getting upto Rs.2,80,000/- and for the same, the Complainant agreed and accordingly, the Complainant had paid Rs.50,000/- cash to the Opposite Party and gave approve to carry on the repair work with the Opposite Party. The Complainant submits that thereafter the Opposite Party has took a lot of time to get it ready and he gave a shock to the Complainant through the final bill of Rs.5,63,500/-, because of that act, the Complainant suffered a lot to make on arrangement for the remaining amount of Rs.2,33,500/-, the Complainant got only Rs.2,80,000/- from the insurance company, and the said amount received by the Opposite Party from the insurance company, the Complainant had taken 3 to 4 month for arranging the said bill amount with a lot of difficulties, but there is no end to the problem of the said car, the Complainant hired taxies for his business  purpose in the city and the said car is not in good condition to take out for long drives, for the same, the Opposite Party is only responsible. The Complainant again sent the said car for service to get problems to repair on 23.3.2013, but again the Opposite Party made a bill of Rs.4,000/- which paid by the Complainant, even the Opposite Party not do their proper repair work to the said car  belongs to the Complainant and at the same time, the Opposite Party installing the damaged parts to the said car, hence, it is the intentional negligence on the part of the Opposite Party. After the said car brought by the Complainant, again there is shock, because the said car was break down, immediately the Complainant informed the same to the Opposite Party by sending a mail to the branch manager, and at that time, the Complainant stating that he is filing a case in consumer court, immediately the Opposite Party called back the Complainant and requested him for not to file a case and the Opposite Party also promised with the Complainant for solve the problems by repairing the said car, as early as possible without any extra cost to the repair work and for the same, the Complainant believing the word of the Opposite Party, on 4.4.2013, the Opposite Party sent his men and they tried to solve the problem in the place of Complainant itself, but it was not possible for them, they towed the said car to the service station with their own risk and fixed and brought back the vehicle on 5.4.2013, hence the said car is in the custody of Complainant on the said day, but there was still many mechanical problem to the said car by seeing this again, the Complainant called the Opposite Party, but the Opposite Party told that as he has installed new parts to the car, it will take time so, the Opposite Party told to the Complainant to run the said car upto 10,000 kilometers after that, the problems will be solved by itself, the same was believed by the Complainant, but again the said car was break down on 25.1.2014 and immediately the Complainant intimated the same to the Opposite Party and at that time, the Opposite Party sent their men to the place of the Complainant on27.1.2014 and on the same day, the Opposite Party get the car from the Complainant for repair work, till today the said car is in the custody of the Opposite Party. It is no possible for the Opposite Party to repair work to the said car, now in the service station of the Opposite Party, the Opposite Party was called the Complainant on 28.1.2014 and directing to the Complainant to come to the service station and accordingly, the Complainant was approached with the Opposite Party, at that time, they will handed over the estimate bill of Rs.63,000/- and the Opposite Party told to the Complainant that the parts which they installed in 2012, they have charged Rs.5,63,500/- again the Opposite Party need to change it once again, the said car only run for 20,000/- km from the 1^st service in 2012. The Complainant submits that he was paid total amount of Rs.5,63,375/- to the Opposite Party for the repairing the said car, but the Opposite Party intentionally not repair the said car properly, hence it is the intentional negligence on the part of the Opposite Party and at the same time, it is legal duty of the Opposite Party to hand over the said car into the custody of the Complainant after made proper repair to the said car and also the duty of the Opposite Party to repay the excess amount received by the Complainant. The Complainant now spending Rs.2,000/- per day for hired taxi, the Complainant is the reputated business man, in the Tumkur City and he is need the car for his own business and for his status, without the car, it is not possible for the Complainant to do his business. It is the intentional negligence on the part of the Opposite Party, the charges received by the Opposite Party is very exorbitant amount which was received by the Opposite Party, the said car not repaired to the satisfaction of the Complainant. Hence, the Complainant was got issue legal notice dt.1.2.2014 to the Opposite Party, but the Opposite Party not replied to the said notice issued by the Complainant. Hence, this complaint.

3.On receipt of the notice, the Opposite Party did appear and filed the version denying the claim of the Complainant. The Opposite Party has admitted in respect of sending the said car on 23.3.2013 for service having run close to 13000 km since the last repair having run without any problem, further the car itself having run in total 1,23,244 kms and it false that the car was not running smoothly and had developed problems. It is also the specific contention of the Opposite Party that the said car required attention for service that is required for any car having run 1,20,000 kms. In this context, the Complainant has failed and neglected to get the car serviced at the required intervals and has run the car for close to 13,000 kms without maintenance or service. The said car did not break down immediately. It is also the case of the Opposite Party that on 6.4.2013, the car was returned to the Complainant, where the exhaust gas recirculation valve was scanned and reprogammed as the carbon deposit had accumulated in the car, which is a natural occurrence due to usage, more so keeping in mind that the same had run more than 1,20,000 km and the same was rectified free of cost as a goodwill gesture. The Opposite Party further submits that the Complainant himself has clearly admitted in paragraph-2 of the legal notice that the car was running smoothly without any problem for several months. Accordingly, the averment that there were still mechanical problems and the Opposite Party told the Complainant that new parts were installed, hence to run the car for 10,000 km which will solve the problem is all a figments of his imagination and denied as false. Further submits that this stand is totally contrary to the Complainant’s averment in the legal notice and even otherwise, assuming that the car had mechanical problems, there was no way that the car will run for 10000 km which clearly shows that there were no problems. It is also the case of the Opposite Party that the Complainant opted to engage a local mechanic to check the car, who was not an authorized Ford mechanic for the problem of non-starting of the car which was not resolved. Hence, the Opposite Party’s personnel attended to the Complainant’s call immediately and towed the car back to Bangalore from Tumkur on 27.1.2014. In this context, the repair order is at Ex-R3. The Opposite Party further submits that the said car had already run more than 9000 km since the last checkup and it is true that the Opposite Party has given an estimate of Rs.63,000/-. However, the Complainant has refused to give his approval for the same and hence, the car has remained in the same state as when it was towed. Further upon external preliminary examination, the Opposite Party has noticed that the car’s drive belt was broken and a piece of the same had entered into the timing belt causing misalignment of the same which can lead to the valve and piston damage in the engine, despite which the Complainant has continued to use the car resulting in further damage and break down. Opposite Party further submits that the additionally the car has been fitted with a non-genuine ford part being a damper pulley at a local/unauthorized work shop, which may have resulted in or influenced the occurrence of the current problem and making all warranty terms, if any void. The warranty for replaced parts is applicable only up to 10,000 km or 6 months, whichever is earlier, for all parts, excluding wear and tear parts which have under warranty. The Opposite Party further submits that it was never told to the Complainant that the parts they replaced earlier required to be replaced again. The problem with the car was a new problem and not connected to the parts that were installed in the beginning of 2012. Even otherwise, the Complainant has clearly admitted that the car has run 20,000 km from the last repair, which infact is 22,000 kms which establishes that no defective parts were installed as falsely alleged by the Complainant. The say of the Complainant that although he paid the money, the Opposite Party has intentionally not repaired the car and has been negligent is false and afterthought. Further Opposite Party submits that the car is manufactured in the year 2006 and has run 1,32,000 km. As the Complainant has failed to maintain his car and moreover with his history of rash and negligent driving causing major accident including getting the car repaired in an unauthorized service station by installing non ford parts has led to this state of the car.  It is clear from the foregoing reasons, there has been no deficiency in service nor has any excess payment need to be paid by the Opposite Party. Further submits that the Complainant is neither giving his approval for the repairs nor is he taking the car back. Hence, the Opposite Party reserves its right to recover the applicable demurrage calculated at a sum of Rs.350/- per day from 27.1.2014, till date of the Complainant taking back the car as claimed in its reply notice.  On this ground and other grounds, prays for dismissal of the complaint.

4.       The Complainant to substantiate his case, filed his affidavit evidence and got marked Ex-A1 to A28. The Opposite Party has also filed affidavit evidence and got marked Ex-R1 to R5. Both the parties have filed their written arguments.Heard the learned counsel for the Complainant and also the Opposite Party.

          5.       The points that arise for our consideration are:

1)Whether the Complainant is a consumer comes under the  

definition of section 2 (1) (d) of CP Act?

2) Whether the complainant proves the deficiency in service on

thepart of the OPs, if so, whether he isentitled for the relief

soughtfor?

 

          3) What Order?

 

          6.Our answers to the above points are as under:

 

Point No.1 : Negative

Point No.2 : does not survive for consideration

Point No.3 : As per the final order for the following

 

REASONS

          7. POINT NO.1:    We have briefly stated the contents of the complaint filed by the Complainant as well as the version of the Opposite Party. Ongoing through the contents of the complaint, the Complainant has specifically stated in Para-5 of his complaint. The Complainant now spending Rs.2,000/- per day for hired taxi stating that the Complainant is the reputed business man in the Tumkur City and he is need the car for his own business and for his status, without the car, it is not possible for the Complainant to do his business.  Further, the Complainant in his affidavit evidence at Page-2 stated that “£Á£ÀĸÀzÀj £À£ÀßPÁgÀ£ÀÄߣÀ£À߸ÀéAvÀªÀåªÀºÁgÀPÉÆÌøÀÌgÀ vÀĪÀÄPÀÆgÀÄ£ÀUÀgÀzÀ°è§¼À¸ÀÄwÛzÀÄÝ, FUÀ£Á£ÀĨÁrUÉPÁgÀ£ÀÄߧ¼À¹PÉÆAqÀÄ£À£ÀߪÀåªÀºÁgÀªÀiÁqÀ¨ÉÃPÁVgÀÄvÀÛzÉ.”If these factors are taken into consideration, the Complainant was using the said car bearing No.KA-04-MC-7878 for his business purpose. When such being the fact that he is not comes under definition of section 2 (1) (d) of the CP Act,in the light of the decisions reported in IV (2009) CPJ 24 (H.P.) in the case of Naveen Kumar V/s Eicher Motors Ltd., wherein it is held as under:

Motor vehicle-purchased for commercial use-Not a consumer.

Complaint-Maintainability of-contention, vehicle used for commercial purpsoes, hence Complainant not a consumer-contention allowed-even incase where vehicle used for commercial purpose, complaint maintainable only in case where deficiency in service/manufacturing defect occurred during the warranty period-No such defect occurred during the warranty period-No consumer dispute proved-complaint not maintainable-Complainant’s appeal for enhancement of compensation dismissed.

Duggirala Prasad Babu V/s Skoda Auto India Pvt. Ltd., II (2014) CPJ 82 (NC)

Motor vehicle-purchased in relation to business of petitioner-Commercial purpose-Not a consumer.

Consumer Protection Act,1986-Sections 2 (1) (d), 21 (b)-Consumer-Purchase of car-Commercial purpose-Complainant took benefit of depreciation of value of car for purpose of his income tax liability-Car was purchased in relation to business of petitioner-Complainant not consumer. 

In this context, we come to the conclusion that the complaint filed by the Complainant is not maintainable before this forum as he is not consumer. Accordingly, this point is answered in the negative.

8.       POINT NO.2:  In view of our finding on Point No.1, holding that the Complainant is not a consumer,this issue does not arise for our consideration.

9.       POINT NO.3: In the result, we proceed to pass the following:

ORDER

The complaint filed by the Complainant is dismissed holding that the Complainant is not a consumer. Anyhow, an option is left open to the Complainant to get redress his remedy by way of filing a suit before the competent court of law having got jurisdiction to try the same.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open forum on 30^thMay 2018).

 

(ROOPA.N.R) MEMBER

(S.L.PATIL)   PRESIDENT

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Syed Isaq., who being the Complainant was examined.

 

Copies of Documents produced on behalf of Complainant/s:

 

EX-A1-A2	Vehicle report  and work approval for the car
EX-A3-A4	Metro ford quality care
EX-A5	Metro ford break down duty sheet
EX-A6-A17	Metro ford repair invoice copies
EX-A18-A24	E-mail copies
EX-A25 & 26	Cash receipt
Ex-A 27-28	Legal notice, spare copies

 

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

 

G.S.Prashanth Kumar, General Manager., who being the Opposite Party was examined.

 

Copies of Documents produced on behalf of Opposite Party

 

Ex-R1	Estimation
Ex-R2	Legal notice dt.1.2.2014
Ex-R3	Repair order
Ex-R4	Reply notice
Ex-R5	Acknowledgement

 

(ROOPA.N.R) MEMBER

(S.L.PATIL) PRESIDENT