DATE OF FILING :15.12.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 30th day of March, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.SHEELA JACOB MEMBER
SMT.BINDU SOMAN MEMBER
C.C No.273/2010
Between
Complainant : Joe Jose,
Advocate,
Kalappurayil House,
Thodupuzha – 685 584,
Idukki District.
(By Adv: K.M.Sanu)
And
Opposite Parties : 1. The Manager,
Popular Hyundai,
Popular Motor World Limited,
6/567/B, Puthuppady P.O,
Perumattom, Muvattupuzha – 686 673.
(By Advs: George Cherian Karippaparambil
& Shiji Joseph)
2. The Manager,
Pulimoottil Automobiles,
Hyundai Authorised Service Centre,
Pala Road,
Thodupuzha, Idukki District.
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complainant is a practising lawyer at Thodupuzha Bar, who is the registered owner of a Hyundai Santro car bearing Reg.No.KL-6B-6141 which was purchased from M.G.F Motors, Cochin on 5.11.2002. After the purchase of the vehicle all the services and repairing works were done at the authorised service centres of the opposite party and also at the authorised service centre at Pala. On 19.09.2010 the complainant showed his vehicle at the 2nd opposite party's workshop for the complaints of reverse gear, after inspection as per the advice of the 2nd opposite party the vehicle was entrusted to the Ist opposite party on 20.09.2010. The Ist opposite party assured the delivery of the vehicle after 3 days and so the complainant approached the opposite party on 23.09.2010 at 4 p.m. The Engineer of the opposite party while conducting the trial run of the vehicle, it was found that all gears of the vehicle become jam and told to the complainant to come after 2 days. Again when the complainant enquired about the vehicle through telephone, they told to come after 4 days. Several times the opposite party postponed the date of delivery of the vehicle after service. So the complainant filed a complaint to the Chief Service Manager and also to the Hyundai Company. As per the direction of the Chief Service Engineer, it was told to deliver the vehicle on 30.09.2010. But even on 30.09.2010 the vehicle was not repaired by them. So the complainant requested for an alternate arrangement on 1.10.2010. But the opposite party never acted upon the same. The vehicle was delivered only on 11.11.2010 by the opposite party after repair. There was only a simple complaint for the reverse gear of the vehicle. The opposite party deliberately never tried to find out the original defect of the vehicle and not cared for the same, so a delay of 53 days caused for the repair of the same. It was only needed 2-3 days for the repair of the vehicle. The complainant is a Director Board Member of the District Co-operative Bank. At the time when the vehicle was at the work shop, the complainant was the Chief Election Agent of the District Panchayath Member Smt.Sheela Stephen, who contested the election from Karimkunnam Division. The complainant who is also a politician and so the vehicle was very necessary at that time. Moreover, the old mother of the complainant was needed hospital check-up. Eventhough the complainant demanded for a spare vehicle, the opposite party denied the same and so the complainant arranged a vehicle in “rent-a-car” basis from 1.10.2010 to 10.11.2010 for 40 days by paying a rent of Rs.750/- and also met the petrol expenses for the same. So the complainant caused a loss of Rs.30,000/- for the same. The vehicle was kept idle for 2 months and it was affected by rust due to heavy rain and heat. So the complainant needed repair of the vehicle in future. The opposite party deliberately delayed the repair of the vehicle and caused the loss. So this petition is filed for getting compensation to the tune of Rs.30,000/- for rent and Rs.50,000/- for mental agony and sufferings.
2. As per the written version filed by the Ist opposite party, it is stated that the petition is not maintainable before this Forum. The Forum lacks territorial jurisdiction to entertain the same. The only averment pertaining to the 2nd opposite party is that, it is at the instance of the 2nd opposite party the car was entrusted with the Ist opposite party for repairs. Hence the 2nd opposite party is an unnecessary party to the proceedings and was purposely included as 2nd opposite party in the party array in order to fall in the territorial jurisdiction of this Forum. The vehicle was purchased from Ernakulam in the year 2002 and the Ist opposite party is carrying on business at Muvattupuzha in Ernakulam District. So the repair of the vehicle was carried at Ernakulam and it is evident that the complaint is not maintainable before this Forum as no part of the cause of action has arisen within the territorial jurisdiction of this Forum. The complainant never undertaken the services of his vehicle in the authroised service centre. The vehicle covered 110464 Kilometers and on the basis of the vehicle repair history, maintained with the Hyundai Global Dealer Management System, there is only one record of maintenance which is carried out for the complainant's vehicle on 14.05.2003. The complainant's vehicle had a serious complaint which could not be rectified by the 2nd opposite party and hence was referred to the Ist opposite party. The delay in repair happened beyond the control of the Ist opposite party. Since the vehicle is 2002 model, the main failed part SHAFT ASSY-SHIFT Part No.4389002004 was not available with the Ist opposite party and as it was also not available anywhere in Kerala among the Hyundai dealerships, hence there occurred a delay in procuring the damaged part which was beyond the control of the Ist opposite party. There were 2 part numbers were available for the same part, the Ist opposite party ordered the first part number and unfortunately that part was not suit for the gear box of the complainant's vehicle. Accordingly the Ist opposite party ordered the second part number to Hyundai and at that point of time, this part was not available in Chennai and finally Hyundai supplied the part after a period of 12 days. Thereafter the Ist opposite party assembled the gear box and during the trial run of the complainant's vehicle, the Ist opposite party noticed that apart from the reverse gear all the forward gears were very tight to operate. Accordingly the Ist opposite party again removed the gear box from the complainant's vehicle and on inspection it was noticed that the related parts which takes the functioning of engagement of all forward gears were out of alignment due to the failed part. This was a consequential damage. The Ist opposite party again replaced some more parts such as Spring Synchronizer, fork shift, pin, nut locking etc. to overcome the issue. The reverse gear of the complainant's vehicle was tight to operate because the complainant would have applied excessive force to engage the reverse gear resulting in the SHAFT ASSY-SHIFT to bend, so the forward gear shifting mechanism which is linked with this shift shaft to bend. The consequential damage is visually not ascertainable. So once the SHAFT ASSY-SHIFT is replaced, the related shifting mechanism failed to operate during practical initial operating condition. So after the replacement of the above mentioned part, the problem of complainant's vehicle could be rectified to the satisfaction of the complainant. Further during the completion of the aforesaid repairs, the complainant requested the Ist opposite party to check the engine misfiring complaint also. So the Ist opposite party also rectified the misfiring of the engine after the rectification of the gear box. No damage has been caused to the vehicle while keeping at the workshop of the opposite party. At the time of taking delivery of the vehicle, the complainant had test driven the vehicle and had taken delivery of the vehicle with full satisfaction. Complainant has no cause of action against the Ist opposite party. So the complaint is not at all maintainable and hence the petition may be dismissed.
3. The 2nd opposite party is exparte.
4. The points for consideration are whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?
5. The evidence consists of the oral testimony of PW1 and Exts.P1 to P6 marked on the side of the complainant and DW1 marked on the side of the Ist opposite party.
6. POINT NO.1 :- Whether the petition is maintainable before this Forum ?
The main contention of the opposite party is that the petition not at all maintainable before this Forum because of the lack of territorial jurisdiction. The complainant had purchased the vehicle from M.G.F Motors, Cochin and the vehicle was produced before the Ist opposite party for repair at the instance of the 2nd opposite party. The Ist opposite party is conducting business at Muvattupuzha in Ernakulam District. The repair of the vehicle was carried out at Ernakulam. Hence no part of the cause of action has been arised within the territorial jurisdiction of this Forum. Hence the complaint is prima facie not maintainable. As per the complainant, he entrusted the
vehicle at the 2nd opposite party, who is the authorised service centre of the Ist opposite party and after inspection, as per the advice of the 2nd opposite party, it was entrusted to the Ist opposite party on 19.09.2010 for repair. DW1, who is the service Engineer of the Ist opposite party deposed while cross examined by the learned counsel for the complainant that the Ist opposite party was having authorised service agency at Thodupuzha. But it is heard that it is not working at Thodupuzha for the last one year. The vehicle was produced before the 2nd opposite party on 19.09.2010 and after that it was entrusted to the 2nd opposite party on 20.09.2010. So it is admitted by the DW1 himself that they were having an authorised service centre at Thodupuzha and DW1 is not aware that, whether it is working at Thodupuzha for the last one year. It is also admitted that the vehicle was entrusted at the 2nd opposite party at Thodupuzha and after that it was produced before the Ist opposite party. As per the complainant he produced the vehicle at the 2nd opposite party, who is the authorised agent of the Ist opposite party at Thodupuzha and after inspection of the workshop person there and with their advice it was entrusted to the Ist opposite party. So the cause of action of the complaint arised at Thodupuzha and we think that this Forum is having jurisdiction to entertain this complaint. So the contention of the opposite party that the Forum is having lack of territorial jurisdiction to try the case is not sustainable.
7. POINT NO:2 :- Whether there is any unnecessary delay caused to the repair of the vehicle, if so, what compensation can be awarded ?
The complainant produced evidence as PW1. He purchased the Hyundai Santro car in the year 2002 and copy of the RC Book of the vehicle is marked as Ext.P1. A repair order was given to the complainant at the time of producing the vehicle for repair by the Ist opposite party, which is marked as Ext.P2. The bill issued for the repair of the vehicle is marked as Ext.P3. The vehicle was entrusted to the Ist opposite party on 20.09.2010 for complaint of reverse gear and the Ist opposite party told PW1 to come after 3 days. PW1 while approached, the opposite party told that after taking trial run it showed complaint in all the gears of the vehicle and again told the complainant to approach after two days. Then also they requested 4 days time for delivery. Even after several excuses the vehicle was not delivered to the complainant. So PW1 filed a petition to the Chief Service Manager and also to Hyundai company. As per the direction of the Chief Service Manager, the opposite party promised to deliver the vehicle on 30.09.2010. But eventhough on 30.09.2010 when the complainant approached, the opposite party never repaired the same. So the complainant requested for an alternate arrangement of another vehicle, but which was not done by the opposite party. So PW1 arranged another vehicle in “rent-a car” basis, Ext.P4 is the bill issued for the same. The vehicle was delivered only after 53 days and issued a detailed workshop bill for the repair of the vehicle, which is Ext.P3. The complainant who is a practising lawyer and also a Director Board Member of the District Co-operative Bank. He is a politician and he was also the Chief Election Agent of Smt.Sheela Stephen, who was a candidate of the District Panchayath. The order for appointing the complainant as the Chief Election Agent is marked as Ext.P5. There was no complaint for the other gears of the vehicle other than the reverse gear, at the time of entrusting the vehicle for repairs to the opposite party. The vehicle also found rust because it was kept idle about 2 months due to rain and sun. Several damages were also caused to the vehicle and the complainant needed repair in future. The Service Manager of the opposite party deposed as DW1 admitted that Ext.P2 was supplied by him and as per condition No.3 of Ext.P2, it is written “ The customer will not hold Popular Motor World Private Limited, responsible/liable for any delay in delivery or in carrying out of repairs or procurement of spare parts for reason beyond Popular Motor World Private Limited, control”. It is admitted by DW1 that the vehicle was entrusted there on 20.09.2010 for the complaint in reverse gear, but it was told to deliver the vehicle after 10 days. It was told like that because the vehicle was not serviced in the authorised work shop. But it is not written in Ext.P2. The trial run was conducted on 23.09.2010 in front of PW1. The trial run was conducted in order to check whether all the defects were cured. The delay was caused because the parts were not available at the opposite party's workshop and it was needed time to get the parts from the company. It is beyond the control of the Ist opposite party. Since the vehicle was 2002 model, the main failed part SHAFT ASSY-SHIFT was not available with the Ist opposite party and it was also not available anywhere in Kerala among the Hyundai dealerships, hence occurred the delay in procuring the damaged parts. Moreover 2 part numbers were available for the same part, the Ist opposite party ordered the first part 'number' and unfortunately that part was not suited for the gear box of the complainant's vehicle. Accordingly the Ist opposite party ordered the second part number to Hyundai company and at that point of time, this part was not available in Chennai and finally Hyundai supplied the part after a period of twelve days. So it is admitted by DW1 himself that there is a long delay caused to the repair of the vehicle. It is also admitted by the opposite party that the delay was caused because of the delay in getting the parts from the company. In the affidavit itself DW1 deposed that Hyundai company supplied the parts after a period of twelve days. So the parts were received after a period of twelve days, eventhough the opposite party never cared to repair the vehicle in time. As per the opposite party, at the time of entrusting the vehicle, they told the complainant to come after ten days. But as per the complainant, he was told to come after three days. But it is admitted by the opposite party in his version that the complainant was present after three days at the workshop while the Engineer of the Ist opposite party was taking trial run of the vehicle. It means that the vehicle was repaired and the trial run was conducted, at that time the complainant was present there. So it is nothing to disbelieve the version of the complainant that the opposite party told to come after three days. On that day, it was found that there is complaint in the other gears. DW1 deposed that the gear box of the complainant's vehicle was opened five times. It is also admitted by DW1 that the complainant demanded for a spare vehicle when the long delay caused. After a long delay when the vehicle was delivered, the detailed bill supplied was only for an amount of Rs.7,620/-. So we think that it is not a major complaint to the vehicle to repair for 53 days because the bill for the same is only nearly Rs.7,620/-. DW1 is also aware that the complainant is a practising lawyer and a Director Board Member of the District Co-operative Bank. Ext.P5 shows that the complainant was the Chief Election Agent of the District Panchayath candidate Smt.Sheela Stephen. It means that the complainant was very urgent for his vehicle at that time. So the complainant arranged another vehicle in “rent-a-car” basis. Ext.P4 is the bill for using the same. But in Ext.P4 bill, it is written that from 1.10.2010 to 11.10.2010 the rent is Rs.30,000/-. As per PW1 he used the vehicle for 10 days and the rent was Rs.750/- per day. As per PW1, it is a mistake happened in the bill by the person who supplied the bill. But the opposite party argued that Ext.P4 is a forged one. Anyway we think that the amount calculated in Ext.P4 bill is not believable. It may be true that the vehicle was very necessary for the complainant at that time, because he was a practising lawyer and also a Director Board Member of the District Co-operative Bank. Moreover he was the Chief Election Agent of the District Panchayath candidate Smt.Sheela Stephen. So severe mental agony has been caused to the complainant for the non-availability of the vehicle. So we fix Rs.10,000/- as compensation for the delay caused by the opposite party for the repair of the vehicle. It may be true that the vehicle may have got severe damages, even rust was spread to the vehicle because it was kept in Sun and rain and we fix Rs.3,000/- for the future repair of the vehicle. The 2nd opposite party never challenged any of the allegations raised by the complainant, because they were absent even notice duly served.
Hence the petition allowed. The opposite parties are directed to pay Rs.13,000/- as compensation for the delay caused for the repair of the vehicle and Rs.2,000/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% per annum from the date of default.
Pronounced in the Open Forum on this the 30th day of March, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
SMT. SHEELA JACOB(MEMBER)
Sd/-
SMT. BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - Joe Jose
On the side of Opposite Parties :
DW1 - Wills Augustine
Exhibits:
On the side of Complainant:
Ext.P1 - Photocopy of RC Book of vehicle bearing Reg.No.KL-06B-6141
Ext.P2 - Repair Order dated 20.09.2010 issued by the Ist opposite party
Ext.P3 - Bill dated 11.11.2010 issued for the repair of the vehicle
Ext.P4 - Trip sheet for Contract Carriage – vehicle No.KL-38-132 used in “rent-a car” basis
Ext.P5 - The Order for appointing the complainant as the Chief Election Agent
Ext.P6 - Photocopy of Maintenance Record Sheet
On the side of Opposite Parties :
Nil
