BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.64/2015

Dated this the 14^th day of March 2018

(Date of Institution: 06.11.2015)

A. Antoine Lenard rep. by Power Agent

A. Frederic Lenard

No.12, Amala Street, Blaze Nagar

Puducherry – 605 001.

...       Complainant

vs

The Manager

Lanson Motors Private Limited

LANSON TOYOTA – PONDY                

No.18, Ellaipillaichavady Main Road

Near Rajiv Gandhi Statue

Puducherry – 605 001.

2. The General Manager

    Toyota Motors India

    No.24, 10^th Floor, Canberra Block

    Vital Mallya Road, Bangalore – 560 001.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru P. Raja, Advocate                        

FOR THE OPPOSITE PARTIES:  Thiru L. Swaminathan, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Parties to pay a sum of Rs.5.00 lakhs as damages for the physical, mental agony and monetary hardship due to the negligence on the part of opposite parties for delayed services and to pay a sum of Rs.2.00 lakhs towards compensation for deficiency in service and unfair trade practice.    

2.  The case of the complainant is as follows:

            The complainant purchased  a Toyota Innova vehicle bearing Reg No. PY-01-AQ-0468 from the first opposite party on 31.03.2008, for the sake of his son, who runs Travel agency air ticketing by name i-Transits, hence he owns the above mentioned vehicle for his personal use.  From the date of purchase he is letting his vehicle for service with first opposite party service centre.  On 31.07.2015 his son  A Frederic Lenard brought the vehicle for service at first opposite party service centre at 10.46 am with Job order No. GSJ15-09834.  The main faults to be attended for service requested by the complainant’s son was ROOF LEAKAGE, GENERAL SERVICE, DO WHEEL ALIGNMENT, REPALCE TIE ROD END, REPLACE THE FRONT WIPER BLADE, LHS OUTSIDE MIRROR FIX, REPLACE FRONT GLASS.  The complainant stated that first opposite party service centre promised to deliver the vehicle on 31.07.2015 at 17.30 hrs.  But it was not done so.  That his son visited first opposite party company did not complete the service as per the job order but further requested another couple of days for completing the service.    That his son on 04.08.2015 called one
Mr. Somnath, the Service Advisor to know the status of the vehicle.  But it was told that the Service Advisor went to Chennai for training, so complainant’s son received the text message to complainant’s son mobile phone to contact on
Mr. Arulmurugan.  At once complainant’s son called the said Arulmurugan to know the status of his vehicle.  Then Arulmurugan answered by confirming that he would revert to complainant’s son before the evening of the same day but no reply came from the said Arulmirugan, first opposite party service personnel.  On 05.08.2015, the next day his son again called the service personnel for knowing the status of the vehicle but first opposite party service personnel told the same story that he would call back but he did not.  That with much mental agony his son on 06.08.2015, the day he directly went in person to first opposite party service centre to know the status of the vehicle.  To his shock the vehicle service was not completely done, the roof was completely dismantled and work was not finished.  At once complainant’s son met one Mr. Sivakumar who is responsible for body shop and insurance.  The said sivakumar advised complainant’s son to change the vehicle’s roof completely because the service man could not weld the roof.  That he accepted to change the roof then he was informed that his vehicle could not be delivered on or before 10^th August 2015.

          3. There was no reply from the service centre even on 10^th August 2015.  Hence, his son visited the service centre on the same day and found the vehicle in the same condition without the roof.  Again the service personnel promised to deliver on 13^th August or 14^th August 2015.  Again the same thing happened till 17^th August 2015 also.  His son visited on the same day and found vehicle in the same condition (without roof).  The service personnel informed that there were no stocks of new roof and made him to wait till 22^nd August 2015.  On 24^th August 2015 at about 1.30 pm his son went and found his vehicle in the same condition and got fed up by their delay and returned back without the vehicle.  That on 29^th August 2015 at about 2.30 pm again he visited the service place and found the vehicle without roof and the seats were seen dismantled.  And the same story was repeated that the spares were sold out and out of stock.  And till the date of 7^th September 2015 he was left to wait without reasonable explanation.    On 8^th September 2015 at about 3.00 p.m his son went to first opposite party service place, in the mood of taking back the vehicle.  But the service personnel prepared the invoice saying that the work is done at about 5.10 p.m. then his son verified the invoice found some errors in billing at payment of Rs.13,162/- was changed to Rs.12,333/-.  And a second invoice was made with said correction.  Then the service personnel asked complainant’s son to pay another invoice for changing the cracked glass and roof works.  The complainant stated that the insurance company of complainant had approved an amount of  Rs.10,.657/- for the glass change works.  But first opposite party service centre compelled his son to pay the entire amount of Rs.34,879/- of invoice dated 31.08.2015.  But the future General Insurance Co. had approved the  coverage amount so he was wantonly made to wait further 00.45 hrs for confirmation and the final bill was arrived so that his son paid the amount of Rs.12,330/- immediately.  After making the payment the vehicle was delivered at about 05.30 p.m. on 8^th September 2015.  That on his way back, to his shock he found his vehicle was not at all well service and maintained.  The audio player was not connected, the dash board was not properly fixed , the vehicle was covered with full of dust and stains, the beading on the roof tops were not properly pasted and started to fly in the air while driving the vehicle.  That his son again called the Mr. Somnath the Service Advisor and made complaints to him regarding the deficiency in their service who asked the complainant to bring back the vehicle again to the service centre.  Hence his son took the vehicle to first opposite party service centre.  The said Somnath promised him that the deficiency in service would be rectified in another 00.30 hrs but they did not deliver the vehicle as they promised and his son was made to wait till 07.35 p.m. on the same day.   Later, the said Somnath expressed that the vehicle cannot be delivered and they needed another full day to rectify the problems arose due to their deficiency of service.  That on 09.09.2015 the vehicle was delivered in his son’s premises by the service personnel of first opposite party service centre.  But, vehicle was with the same deficiencies arose out of their services.  At the time of delivery it was found that the interior of the vehicle was full of paint stains, the basic things like charging the battery was not done ( that could hardly cost Rs.50/- even) and further dash board, steering wheel and mirror control panel was with full of pain stains.  The complainant stated that his son’s nature of business requires vehicles to travel and also he goes to Chennai to attend meetings at CII (Confederation Of India Industries) because of first opposite party's delayed service and delayed delivery of his vehicle he could not make his business meeting and trips promptly and further the complainant is a Senior Citizen and he was looked after by his son and his son often took him to hospitals every weeks for his ill health by the above said vehicle only but his son could not do so.  So he incurred heavy monetary loss and mental agony due to it.  The complainant submitted that there is a deficiency in service on the part of the first opposite party for not giving the vehicle in stipulated time as promised by him.  The complainant submits that since his son was using the vehicle and he attended this service process with the first opposite party has sent the legal notice on 16.09.2015 to both the first and second opposite parties. The first opposite party received the legal notice on 19.09.2015 and second opposite party received the legal notice on 22.09.2015.  On 06.10.2015 the first opposite party had sent the reply notice with cooked up denial stories without reasonable explanation.  Hence, this complaint.

          4. The reply version filed by the first opposite party and adopted by second opposite party briefly discloses the following:

           The complaint is not maintainable either in Law or on facts.  The complainant, only to achieve unlawful gains through suppression of materials facts had approached this Hon’ble Consumer Forum with unclean hands.  Section 2 (d) of the Consumer Protection Act clearly defines as to who should be construed as a Consumer.  There exists no contract between the said A. Antonie Lenard with the first opposite party herein.   From the averments of the complainant's  legal notice dated 16.09.2015, it is crystal clear that the consideration or availing the services of the first opposite party had been paid by Frederic Lenard.  As the Hirer of Contract of Service is only A. Frederic Lenard and not A. Antonie Lenard, the entire complaint is misconceived /not maintainable and the said A. Antonie Lenard is not a consumer and hence cannot file the present consumer complaint as against the opposite parties.  It is submitted that the Toyota Innova vehicle bearing Reg. No.PY 01 AQ 0468 Purchased from the first opposite party company on 31.03.2008 and the said car is nearly 8 years old.  By perusing the job order dated 31.07.2015 filed by the complainant herein it could be seen that “…… Next service due at 1,85,000Kms………….”.  By bare reading of the entire pleadings, it could be seen that A. Frederic Lenard had hired the services of the first opposite party either with A. Antonie Lenard or with the hirer A. Frederic Lenard.  Without mentioning either in the pleadings or in the cause of action column pertaining to the role/involvement of the second opposite party herein in the so called alleged deficiency of service when there exist no manufacturing defects the complainant had unnecessarily impleaded the second opposite party in the complaint which clearly portrays that the complainant is heel-bent to enrich himself at any cost from the hands of the opposite parties herein.  When no hiring/availing of services had taken place from the second opposite party, namely, Toyota motors India Bangalore impleading then as a party to the present consumer proceedings is unwarranted superfluous and it is a clear case of mis-joinder of parties.  Hence the present complaint has to be Dismissed with cost for mis-joinder of parties.  By reading of each and every para of the complaint, it could be seen that the said A. Frederic Lenard is being provided with the status of the vehicle and its repairs periodically which has been brought for certain services to be attended.  It is also an admitted fact that while attending the faults of the vehicle, the Mechanics of the first opposite party herein had identified certain other defects to be attended/rectified which is admitted in para No. vii of the complaint and
A. Frederic Lenard is fully aware about the defects to be rectified / time for delivery of the vehicle and therefore the issue of either deficiency in service or negligence cannot be invoked even to a slightest extent.  Similarly, A. Frederic Lenard was also put to notice regarding the necessity for replacement of the roof of the vehicle.  When the entire hiring of services/payment of consideration were effected by the said A. Frederic Lenard, the allegation of mental agony suffered by A. Antonie Lenard who has neither availed the service of the first opposite party herein nor came to the premises of the first opposite party company to identify the conditions/rectifications of the defects carried out by the first opposite party does not sound merit.  In the special power of attorney dated 16.10.2015 as well from the narration of the complaint it clearly reveals and exposes that A. Antonie Lenard is aged and suffering from senility and chronic illness/ailments and could not move out of the house and the Toyota innova car was used by A. Frederlic Lenard from the date of its purchase in the year 2008.  Hence the entire contentions/ averments made in the complaint to the effect that A. Antonie Lenard is subjected to mental agony on the alleged deficiency in service/negligence is illogical / specious/fallacious and A. Frederic Lenard cannot enrich himself at the hands of the opposite parties by narrating a cook and bull story as though A.Frederic Lenard had hired the services of the first opposite party.  It could be seen that the future General Insurance company had inspected the vehicle and has approved for the change of the glass work which A. Frederic Lenard is fully aware of.  Therefore it could clearly seen that A. Frederic Lenard is periodically inspecting the  defects cured by the first opposite party and attributing delay lacks merit and substance and cannot be entertained even to a slightest extent.  The complaint was not specific/totally silent regarding as to whether the complainant has raised any written objection after delivery of the car from the service centre on the allegations made in the complaint as against the first opposite party.    There is no cause of action for the complainant to agitate as against the opposite party

5.       On the side of the complainant, the complainant who is the power agent of the Principal was examined as CW1 and Exs.C1 to C12 were marked.  On the side of the opposite party, no witness was examined and documents were marked.     

6.       Points for determination are :

1. Whether the Complainant is a Consumer?
2. Whether the complaint is bad for mis-joinder of  parties?
3. Whether the opposite party attributed any deficiency in service?
4. To what relief the complainants are entitled to?

7. Point No.1:

          The learned Counsel appearing for the opposite parties alleged that the hirer of service is only Frederic Lenard and not A. Antoine Lenard, hence, the complaint is misconceived / not maintainable and the said A. Antoine Lenard is not a Consumer and cannot file the present complaint as against the opposite parties. 

On perusal of  Ex.C1 the Job Sheet, it is found that the Toyota Innova Vehicle bearing  Regn. No. PY 01 AQ 0468 was handed over by Antoine Lenard, the Principal of the Power Agent, to the first opposite party on 31.07.2018 to rectify the defects. The Antoine Lenard who is the original hirer of service for the vehicle has executed a Special Power of Attorney in favour of his son Federic Lenard on 16.10.2015 vide Ex.C12.  On the capacity as Power Agent of Antoine Lenard, the complainant has filed this complaint and contested the same.  The Antoine Lenard purchased the vehicle bearing Regn. No. PY 01 AQ 0468 for his personal use from the first opposite party on 31.03.2008 which is manufactured by the second opposite party.  The Antoine Lenard gave the vehicle for service  with the first opposite party on 31.07.2015 vide Ex.C1 and availed services from the first opposite party.  Hence, the complaint is maintainable and the complainant is construed as a Consumer to the Opposite parties as per the Consumer Protection Act.  These points are answered accordingly.

          8.  Point No.2:

          The learned Counsel for the opposite parties contended that the alleged vehicle was purchased from the first opposite party on 31.03.2008.  Further contended that either in the pleadings or in the cause of action column, there is no mentioning about manufacturing defect and hence, the second opposite party has unnecessarily added as a party in this complaint.  Further, there is no hiring / availing of services with the second opposite party  and therefore, the complaint is bad for mis-joinder of unnecessary party.   We have carefully perused the complaint and the material on record available in this case.  Though there was no specific allegation alleged against second opposite party, being the first opposite party as the agent / dealer of the Toyota Innova cars manufactured by the second opposite party being the principal, they are arrayed as second opposite party as necessary party in this complaint.  Therefore, this Forum found that the complaint is not bad for mis-joinder of parties.  This point is answered accordingly.

          9.  Point No.3:

We have perused the complaint, reply version, evidence of CW1 and Exs.C1 to C12 and the arguments advanced by both the Counsels of both parties.  The Counsel for the opposite parties endorsed on the complaint that there is no oral evidence of their side.  The complainant alleged that he purchased a Innova vehicle bearing Regn. No. PY 01 AQ 0468 from the first opposite party, manufactured by the second opposite party on 31.03.2008 for his son A. Frederic Lenard.  On 31.07.2015 his son brought the vehicle for service to the first opposite party vide Ex.C1 and requested to attend some defects.  The first opposite party assured to deliver the vehicle after service on the same day at 17.30 hrs., but failed to do so.  The complainant further alleged that his son  visited the first opposite party on 31.07.2015 and 01.08.2015 for taking delivery of the vehicle, but the first opposite party did not complete the service.  On 4.8.2015 and 5.8.2015 the complainant's son called the Service Advisor and informed about the non-service of his vehicle, even then, his vehicle was not set right by the first opposite party.  The complainant's son visited again and again the first opposite party on 06.08.2015, 10.08.2015, 24.08.2015 and 29.08.2015 and found his vehicle without the roof and the seats were dismantled.  On 08.09.2015 the complainant's son approached the OP1 and paid for the invoice vide Exs. C3 and C4 raised by OP1and took delivery of the vehicle.  During his short span of driving, the complainant's son found that the vehicle was not properly serviced and maintained and the audio player was not connected, the dash board was not properly fixed, the vehicle was covered with full of dust and stains, the beading on the roof tops were not properly pasted and started to fly in the air while driving the vehicle.   Immediately, the complainant took back the vehicle to the first opposite party for rectification who assured to rectify the same in another 00.30 hrs, but they did not do so and then expressed their inability at 7.35 p.m. on 08.09.2015 and requested for another one day for rectification and the vehicle was delivered on 09.09.2015.  Being not satisfied with the act of the second opposite party, the complainant sent a legal notice dated 16.09.2015 vide Ex.C7 to the opposite parties which was acknowledged by the opposite parties vide Exs.C8 and C9.  The first opposite party sent reply dated 06.10.2015 vide Ex.C10.  Due to the act of the first opposite party, the complainant incurred heavy monetary loss and mental agony. 

          10.   On the other hand, the opposite parties stated that being no manufacturing defect in the car, no relief could be granted against the second opposite party and being the defect was reported, the same was duly rectified by the first opposite party and also found some other defects rectified other than the defects stated by the complainant and it took some more time to set right the same.   

          11. On perusal of Ex.C1 the job order, it is found that the arrival date and time of the vehicle to the OP1 was 31.07.2015 at 10.46 hrs. and the promise delivery date and time was 31.07.2015 at 17.30 hrs.  Further, on perusal of Ex.C3, the payment for accessories made by the complainant on 31.08.2015, but the vehicle was delivered to the complainant only on  09.09.2015 which is evident by Ex.C5, the Gate Pass.   Though the first opposite party in his reply notice Ex.C10 dated 06.10.2015 stated about the conditions of the vehicle, the parts to be replaced and about the insurance claim were explained to the complainant by their Technical Team, but the opposite parties not come forward to establish their case through oral and / or  documentary evidence. 

           12. From the documents available on records and the averments made in the complaint, it is found that the OP1 made the complainant to approach the OP1 service centre for more number of times for rectifying the main defects identified by the complainant in the Innova Car.  The above act of the OP1 in delivering the vehicle to the complainant with enormous delay,  would have definitely caused monetary loss and mental agony to the complainant.  As already stated that the non-appearance of OPs and failure to let in evidence not only leads to have a conclusion that the first opposite party had committed negligent act, and also to have an adverse inference against them.    Since the first opposite party is the dealer and agent of the second opposite party, the second opposite party is also responsible for the delay in delivering the vehicle after duly rectifying the defects in the complainant's vehicle. 

13. Hence in view of the discussions made supra, it is held by this Forum that the opposite parties have committed negligent act leading to deficiency in service due to which, the complainant suffered mental agony and monetary loss and the same is to be compensated by the opposite parties.  This point is answered accordingly.

14. Point No.4

In the result the complaint is hereby allowed and the opposite parties are directed

1. To pay a sum of Rs.20,000/- as compensation towards mental agony monetary loss suffered by the complainant due to the deficiency service by the opposite parties
2. To pay a sum of Rs. 5000/- towards the cost of the proceedings. 

Dated this the 14^th  day of March 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:

CW1           18.04.2016           A. Frederic Lenard

OPPOSITE PARTY'S WITNESS: NIL

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   NIL

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER