SRI  NILAKANTHA  PANDA,  PRESIDENT

            The instant Complainant has filed this complaint petition, U/s – 12 & 13 of erstwhile Consumer Protection Act, 1986, (here-in-after called as the “C.P. Act - 1986”), on dated 20/12/2017, alleging a “deficiency-in-service” by the Ops, where, OP No.1 is The Manager, M/s Mahindra & Mahindra Limited, Mumbai, Maharashtra, OP No.2 is The Manager, M/s Basanti Auto Agency, Januganja Golai, Balasore and OP No.3 is The Manager, HDFC Bank, Balasore Branch, Balasore.

            The case of the complainant, in short, is that on 03/10/2016 the complainant purchased one grey colour car of Mahindra KUV-100 K2 from OP No.2 on hypothecation from OP No.3 and the said vehicle was delivered to him on 07/10/2016 with all relevant documents and the said vehicle was subsequently registered with local RTO bearing No. OD-01P-0700. That on 06/10/2017, while the complainant along with his family members were returning from Baripada trip, at about 07.00 p.m., the vehicle broke-down and also was not in a driven condition. When his client called up to Road Side Assistant (RSA) toll free number, the concerned representative did not register the complaint. For the above misfortune, the complainant had to pass the whole night by the road side along with his family members with a hope for RSA, but in vain. It is further stated that on 07/10/2017, the complainant had been to the premises of OP No.2 and contacted with Service Adviser so also Service Manager for RAS but no result was yield. Thus, the complainant extended his RSA period and warranty period by depositing the amount at Mahindra Work Shop Office at Balasore. Thereafter, the complainant returned to Baripada where his vehicle broke down and contacted the customer care in their toll-free number time and again, but they denied to provide RSA stating that RSA period was ended on 03/10/2017. When the complainant demanded the complaint registration number to RSA representatives, they did not give any reference number. On a continuous contact with the customer care and after long argument, near about 02.49 PM, one complain was registered vide No.X11725176IND and at about 07.15 p.m. one recovery van reached at the spot and took the vehicle, but they did not provide any documents to that effect. After a long harassment, lastly the complainant along with his family members returned to their home hiring another vehicle.

            It is the specific case of the complainant that he is a practicing lawyer, a busy person and did not attend his urgent works relating to his profession and his own cases for only non-availability of RSA at right time from the OP No.1 & 2, for which he suffered mental agony, harassment and financial loss. Being an Advocate and waiting full night by the road side with his family members without any assistance from the side of the OP No.1 & 2, the complainant felt embarrassed. The OP No.1 & 2 intentionally, wilfully and deliberately harassed the complainant. The OP No.1 & 2 are failed to provide any kind of assistance at the time of need to the complainant which was committed to provide at the time of purchase of the vehicle in question. Thus, the OP No.1 & 2 are jointly and severally liable for guilty of deficiency in service.

            The cause of action arose for filing of the case on 07/10/2017, when the OP No.1 & 2 did not provide RSA, on 17.10.2017, when the legal notice was sent and on 21/11/2017 when the Advocate of the complainant received reply from the OP No.1.

            Hence, this case.  

            To substantiate his case, the complainant relied upon the following documents, which are placed in the record -

1. Photocopy of retail invoice issued by OP No.2.
2. Photocopy of warranty information & maintenance guide.
3. Photocopy of shield certificate and extended warranty papers.
4. Photocopy of Advocate’s notice.
5. Photocopy of reply of OP No.1.
6. Photocopy of information regarding delivery of vehicle.
7. Photocopy of shield certificate & warranty certificate.
8. Photocopy of Mahindra RSA, terms & conditions.
9. Photocopy of DL of the driver.  

            In the case at hand, the notices were issued against the Ops. On receipt of notice, the OP No.1 appeared and files his written version. OP No.2 & 3 neither appeared nor preferred to filed written version, so, they were set ex parte vide order dated 19.03.2024.

            That the OP No.1, in its written version, although admitted the fact of purchase of vehicle in question by the complainant from OP No.2, emphatically challenged that the complainant has no cause of action to file the case and the case is not maintainable. The OP No.1 has stated, inter alia, that the vehicle in question met with an accident on 06/10/2017 at about 07.00 p.m. at Baripada and was not in a condition to operate & drive. As per the warranty manual, once a vehicle meets with an accident, the warranty does not cover. The OP No.1 has further stated that the complainant had purchased the vehicle from OP No.2 on 03/10/2016 and registered the vehicle under RSA scheme through on line, for availing RSA services. The period of RSA service was from 03/10/2016 to 02/10/2017. Therefore, the claim of the complainant that he has taken delivery of vehicle from OP No.2 on 07/10/2016 is a concocted story. Further, it is stated that even the RSA service ends on 02/10/2017, but on a sympathetically ground, this OP has reached the place of accident on 07/10/2017 and took the vehicle to the workshop of OP No.2. So, the question of deficiency in service on the part of this OP does not arise at all. Hence, it is prayed by this OP to dismiss the case with cost. Not a single document is filed by this OP in support of his stand to this case.

            In view of the above averments of parties, the points for determination in this case are as follows: -

(i)         Whether the complainant is a Consumer?

(ii)         Whether there is any cause of action to file this case?

(iii)        Whether this Consumer case is maintainable as per Law?

(iv)        Whether there is any deficiency of service on the part of the Ops?

(v)        Whether the complainant is entitled to get the relief, as sought for?

F    I    N    D    I    N    G    S

            For the sake of convenience and for better appreciation of the case matter, all the Points, as aforesaid, are taken up all-together. The complainant has filed the present case claiming compensation along with other expenses on the ground that he had purchased one Mahindra Car KUV-100 K2 from OP No.2 on hypothecation by OP No.3-Bank which was registered vide Regd. No. OD-01P-0700 and also the said car was covered under RSA. On 06/10/2017, when the complainant along with his family members were returning from Baripada near about 07.00 p.m., the vehicle broke down and was not in a driving condition. Then he contacted with Road Side Assistant in toll free number, but in vain for which they detained then and there whole night. That on 07/10/2017, he had been to OP No.2 and contacted with Service Adviser so also Service Manager for RAS but no result was yield. Thus, he extended the RSA period and warranty period by depositing additional amount at Mahindra Work Shop Office at Balasore. Then, he returned to Baripada where his vehicle was broken down and contacted the customer care in their toll-free number time and again, but they denied to provide any RSA stating that RSA period has ended on 03/10/2017. Upon further contact with the customer care and after long argument, near about 02.49 PM, one “complain” was registered vide No.X11725176IND and at about 07.15 p.m. and one recovery van has reached at the spot and took the vehicle, but they did not provide any documents to that effect. After a long harassment, lastly the complainant along with his family members returned to their home by hiring another vehicle. The complainant is a practicing lawyer, who is a busy person and could not attend his urgent works relating to his cases and own cases for only non-availability of RSA facility from the OP No.1 & 2, for which he suffered huge mental agony, harassment and financial losses. The OP No.1 & 2 intentionally, wilfully & deliberately harassed the complainant. The OP No.1 & 2 have failed to provide any kind of assistance at the time of need to the complainant which was committed to provide at the time of purchase of the vehicle in question. Thus, it is concluded that the OP No.1 & 2 are jointly and severally liable for guilty of deficiency in services.

            That it is perused that, the documents filed on behalf of the complainant. The Annexure-1 is the retail invoice which shows that the complainant had purchased the vehicle in question on 03/10/2016. The Annexure-2 reveals that the coverage of RSA was for one year from the date of “delivery of the vehicle in question”. In Serial No.6, it has been clearly mentioned that in the event of trip interruption, RSA will assist in organizing for taxi / alternate transportation / ticket and / or accommodation. Taxi / transport is free up to 50 Kms from the breakdown site, beyond which the user / customer needs to pay to the provider. Annexure-3 is the shield certificate and extended warranty which shows that extended warranty was registered on 07/10/2017 for five years. The Annexure-4 is the legal notice sent to the Ops and the Annexure-5 is the reply of OP No.1 to the Advocate of the complainant. The Annexure-6 is the information regarding the date of delivery of the vehicle wherein it has been clearly mentioned that 07/10/2016 was the delivery date. The Annexure-7 is the shield certificate wherein it has been mentioned the date of sale of the vehicle is 07/10/2016. Warranty certificate shows that the vehicle in question was covered under warranty for a period of two years from the date of retail sale to the customer.

            That on a bare scrutiny, with a naked eye, of the documents, it is clearly made out that though the retail invoice was issued in favour of the complainant on 03/10/2016, but actually on 07/10/2016 the vehicle was delivered to the instant complainant. Therefore, RSA for the vehicle started from the date of delivery i.e. 07/10/2016 and not from 08/10/2016, as per the narration written in col. No 8 of the Warranty Information & Maintenance Guide & information hoisted in company Portal / software. The OP No.1 has vehemently claimed that the vehicle in question met with an “accident” on 06/10/2017 at about 07.00 p.m. at Baripada and was not in a safe operable and driven condition. To substantiate its claim, OP No.1 has not submitted any document in support of its claim to prove that the vehicle in question of the complainant met with any road accident at or near Baripada by collecting / furnishing police papers from the nearest police station or any information from the locality. Further, the OP No.1 claimed that RSA service facilities was registered on 03/10/2016 and ends on 02/10/2017 and the complainant calling to RSA toll free number and no response from their side, is no way fault and deficiency service. It is further claimed that even the RSA service ends on 02/10/2017, on a sympathetically ground, their recovery van reached at the accidental place on 07/10/2017 and took the vehicle to the workshop of OP No.2. As stated earlier that the warranty paper with regard to RSA was provided by the OP No.1 to the customers itself reveals that coverage of RSA warranty is one year from the date of “delivery” and not from the date of purchase. When it has been evident & held that the vehicle in question was under RSA warranty coverage period, what prevented the OP No.1 to send recovery van to the spot and why the OP No.1 had showed so called “sympathy” towards the complainant? It is the duty and responsibility of the OP No.1 & 2 to provide RSA as & when required by the consumer at the time of need. The OP No.1 & 2 have received the money for the said purpose with a promise that in the event of trip interruption, RSA will assist in organizing for taxi / alternate transportation / ticket and / or accommodation. Taxi / transport is free up to 50 Kms from the breakdown site, beyond which the user/ customer needs to pay to the provider. But in the present case, Ops have not at all provided any kind of Road side assistance, as agreed upon between the parties, to the complainant for which the complainant along with his family members were to detain at the road side in the night and to return to their home by hiring vehicle of their own on the next day. On the other hand, the complainant is a practicing Advocate, a busy person and did not attend his urgent cases relating to his clients so also own cases for only non-availability of RSA from the OP No.1 & 2, for which he suffered huge mental agony, harassment and financial losses. Being an Advocate and waiting full night by the road side with his family members without any assistance from the side of the OP No.1 & 2, the complainant felt ashamed of. The OP No.1 & 2 have intentionally, wilfully and deliberately has harassed the complainant and failed to provide any kind of assistance at the time of need of the complainant which was committed to provide at the time of purchase of the vehicle in question. For the above negligent act of the OP No.1 & 2, the complainant not only suffered harassment but also suffered mental agony. From the above nature and conduct of the OP No.1 & 2, it is clear that they have committed deficiency in service towards the complainant and hence, both the OP No.1 & 2 are jointly & severally liable for the compensation as claimed by the complainant in its petition. As it reveals from the complaint petition that the complainant has not claimed any relief against the OP No.3. Therefore, the complainant is not entitled to get any relief against OP No.3, i.e. Financing Bank.      

            So, now upon careful consideration of all the materials available in the case record vis-a-vis submission made by complainant & OPs, this Commission is of the unanimous opinion that, the complainant is a consumer and has cause of action to file the present case and the case is maintainable against Ops and the O.Ps have not adjudicated the dispute properly before the Commission. That from the above analysis made in the foregoing paragraphs, it is found to held that the OPs are guilty in “deficiency in service”. There is no solution arrived by the appearing O. Ps for the loss sustained / suffered by the Complainant incurring out of deficiency on the part of O.Ps, which legally termed as deficiency-in-service by the O.Ps. Therefore, the complainant reserves the right to be entitled to get the relief as sought for in the complaint petition.

            Hence, it is ordered –

O   R   D   E   R

            Having regard to the judgement reflected above, the Complaint Petition of the instant Complainant bears merit and hence allowed on contest against the OP No.1 and on ex parte against OP No.2 & 3. That this Commission is of the unanimous opinion that there is a gross deficiency on the part of the O.Ps. Hence, the O.Ps (1 & 2) are hereby set liable, both jointly & severally for their gross deficiency of service, the case against OP No.3 is dismissed. Hence all the O.Ps, (1 & 2) are hereby directed to:-

1. To pay to the complainant a sum of Rs.02,00,000/- (Rupees Two Lakhs) only, for compensation for harassment and mental agony as suffered by the complainant, being equally divided by both the Ops (1 & 2), for deficiency in service.
2. To pay to the complainant a sum of Rs. 10,000/- (Rupees Ten thousand) only, for litigation expenses.

            All the aforesaid awarded amounts shall be paid by the O.Ps to the complainant within 45 days from the date of receipt of this order.

            In case of failure by any of the O.Ps to comply any of the orders as above mentioned, within the aforesaid stipulated time frame, the Complainant is at liberty to realize the same from the O.Ps as per the prevailing law.

            Pronounced in the open Court of this Commission on this day i.e. the 30^th September, 2024 given under my Signature & Seal of the commission.