FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU , Member ,
The case of the complainant in a nutshell is that, the complainant purchased a Toyota Corola Altis bearing Registration No.WB06H1574, Chasis No. MBJ53NEE004005996 by paying total consideration amount of Rs.14,76,378/- from the OP1 on 25/08/2011. In the month of August 2018 the said car started generating problems and the complainant sent the car to the Company’s Workshop where the complainant came to know that the alternator of the car had to be replaced which involved a cost of Rs.60,000/-(approx). At that point of time the complainant was out of Kolkata due to medical urgency in his family and subsequently it was informed to the employee of the OP1& 2 and it was also communicated to said employee that the repair-work could only be done upon complainant’s return to Kolkata. But the OP1 intimated the complainant through sms that if the complainant not opt to start the car work immediately, the OP1 shall start charging him a garage rental fee of Rs.200/- on a daily basis. Therefore, the complainant engaged his sister to co-ordinate with the employee of the OP1 to start the car repairing work and accordingly she made an initial payment of Rs.40,000/- to the OP1. On 29/08/2018 the driver of the complainant took the delivery of the said car from the workshop of the OP1 and within 2 to 3 hours of receiving the car it started to malfunction. Moreover, the seats of the car were torn and there were few torn materials on the boot of the said vehicle. On the next day the car was sent to the workshop of the OP1& 2 and on 31/08/2018 the complainant came to know that there were rat-bites which had resulted into loss of wiring and thus the car was malfunctioning.On 06/11/2018 another employee of the OP1 sent the estimate of repair-works to the complainant vide an e-mail. The complainant sent an e-mail to the said employees of the OP1 raising several questions. Two officers from the Customer Relations of the OPs 1& 2visited complainant’s office to convince the complainant to bear the cost of the repair works arising out of damage that had happened due to mishandling of the vehicle at the workshop of the OPs 1& 2. From 17/11/2018 onwards the complainant sent several emails to the OP1 regarding concerned queries to the car being repaired but the OPs chosen to ignore his queries. Having no other alternatives, the complainant was forced to send a legal notice on 03/12/2018 to the OPs 1 to 4 and in reply OP1 admitted that they have been in possession of the said car and has raised the charges for garage rent/parking charges upon the complainant but did not take any initiative to resolve the matter. Therefore alleging unfair trade practiceand deficiency in service on the part of the OPs, the complainant has filed the present complaintbefore this Ld. Commissionseeking relief/reliefs.
OPs 1 and 2 have contested the case by filing WV denying all material allegation of the complaint. In the WV it has been stated that the said vehicle was 7 years old and had travelled 88823kms i.e. an average of approx. 11000kms per annum. After diagnose the said vehicle in the workshop it was revealed that the alternator of the vehicle was needed to be replaced which involved a cost of Rs.60,000/- and the same was informed to the complainant with a request to provide a written approval to carry out the work and a 50% of the estimate amount as advance payment as per rules of their company. The complainant sent a sms to the OP1 on 30/08/2018 stating that he was out of station on some medical emergency in the family and wouldcall back the OP1 after return. OP1 waited for 1 month to get response from the complainant after that messages were sent on complainant’s number and letters sent to his residence by registered post which were duly received. Moreover, as the dealership has a regular inflow of vehicles and space is a real constraint, it cannot continue to keep vehicles for indefinite time, standing in idle condition. So after a waiting of considerable period of time the garage rentals @ Rs.200/- per day are charged. Customers are provided with a receipt of payment to that effect. The complainant deputed his sister to contact the dealership and the formalities was completed on 10/10/2018 almost 2 months after the said vehicle was brought to the dealership. Further OPs 1 and 2 submitted that said vehicle was standing in the workshop for 74 days (55 days before the job was started, 2 days when the job was carried out and 17 days after completion of the job). But the OP1 has charged for only 21 days. The complainant took the delivery of the said vehicle on 29/10/2018 and sent back again in the evening due to problem in indicator lights on the dashboard. Detailed investigation revealed that the wiring of the vehicle was cut by rats/rodents at different places and the wiring harness needs to be replaced and the same was intimated to the complainant on the same day. Getting no response from the complainant OP1 communicated with the complainant on 06/10/2018 and offered to send him an estimate for repair of the said vehicle. But the complainant demanded free of cost repair because the damage had occurredwhile the vehicle was in workshop. Thereafter the complainant sent a mail to the OP1 on 08/11/2018 with some hypothetical questions demanding point wise reply to the same. In reply OP1 considered to meet with the complainant through their Senior Manager and Asst. Manager of Customer Relations on 17/11/2018 as fixed by an appointment and offered to share a certain amount of cost. But the complainant was not ready to accept any proposal other than a free repair of his vehicle.Therefore they are strongly object to all allegations leveled against them.
OPs 3 & 4 too have contested the case by filing WV denying all materials allegation of the complaint. It is the specific case of the OPs 3 & 4 that the complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Act as there neither any manufacturing defect proved in the vehicle in question nor any deficiency in service is being established against the OPs 3 & 4 . The vehicle was purchased in the year 2011 and the issue arose in the year 2018 which itself signifies that the complainant used the vehicle without any problem for 7 long years. As per the records of the OPs the subject vehicle was brought at the service center on 17/08/2018 with complaint of not starting and after the replacement of alternator the said vehicle was handed over to the complainant in running condition on 29/10/2018. On that day the complainant again informed the OP1 over phone that the malfunctioning of the lights in the said vehicle and the vehicle was brought to the service center. On 31/10/2018 after duly diagnosing the vehicle, it was found that wiring harness needs replacement due to rats/rodents bites at different places and the cost estimate was provided to the complainant. But the complainant was reluctant to pay for the repairing charges.The service center as a goodwill gesture also offered to share the cost but of no avail. The issue in the vehicle arose due to the damage of the wiring done by the rat for which the OPs cannot be held liable /responsible. The complainant has filed the present complaint only with the malafide intention of making wrongful gain and causing wrongful loss to the OPs.Therefore, the instant complaint is liable to be dismissed.
Despite service of notices OPs 5 & 6 did not turn up to contest the case by filing WV within stipulated period. Thus the case runs ex parte against the OPs 6 & 7.
In order to substantiate his case and claim the complainant has filed E/chief supported by an affidavit and also relied the documents annexed with the complaint petition. On the other hand OPs 1 & 2 and OPs 3 & 4 did not rely any documents in support of their case.
We have gone through the record very carefully and also heard both the counsel at a length. Perused the Evidence on affidavit of the complainant along with written argument.
Admittedly the complainant purchased Toyota Corola Altis car from OP1 on 25/08/2011 and the said vehicle was duly registered. In course of hearing Ld. Advocate for the complainant submitted that in the month of august 2018 the alternator of the subject vehicle was malfunctioning and had to be replaced which involved a cost of approximately Rs.60,000/- . At that point of time the complainant had to move out of Kolkata due to medical urgency in the family and the OP1 charged the entire garage rent for 21 days as the said vehicle was at the workshop of the OP1, but the OP 1 had put the said charge under the head of the vehicle check - up. In the WV OP1 submitted that the said vehicle was standing in their workshop since 30/10/2018. Despite several correspondence the complainant sent the advance amount of Rs.40,000/- through RTGS on 10/10/2018 i.e. about after 43 days. After completion of repair work the OP1 intimated the complainant to take delivery of the vehicle on 12/10/2018. But the complainant took delivery on 29/10/2018. Undoubtedly the vehiclein question was sent to the workshop of the OPs for repairing in the month of August 2018 and the complainant took delivery from the workshop of the OP1 on 29/10/20118 which means the said vehicle was in the workshop of the OPs for more or less 2 months and OPs charged STORAGE CHARGE @Rs.200 for 21 days. In this regard we found the gesture of the OPs 1& 2 towards the complainant is appreciable.
Ld. Advocate for the complainant alleged that after taking the delivery of the said car from the workshop of the OPs 1 & 2 on 29/10/2018 the vehicle again started to malfunctioning within 2 to 3 hours and seats of the said car were torn for which again the said vehicle was brought back to the work shop of the OPs 1& 2.After diagnosis it was found that malfunctioning was caused dueto rat-bites and the employeeof the OPs 1 &2 intimated the complainant that company would sent the estimate for repairs to the complainant. Further Ld. Advocate for the complainant alleged that, the aforesaid incident took place while the said vehicle was in the Possession of the OP1. As such, OP1 was solely responsible for the abovementioned situation, hence the OP1 should bear the cost of the repairing. In the WV OPs 1 & 2 submitted that:
“It was time and again clearly mentioned in all our correspondence that the dealership or the manufacturer will in no way be responsible for any consequential damages arising out of vehicle standing in idle condition.”
In this context, we are of the opinion that this submission of the OPs 1& 2 has no legs to stand. Moreover,Annexure ‘G’ furnished by the complainant reveals that in reply of the legal notice sent by the complainant to OPs1to 4, Sr. Manager(CR) namely Varalakshmi Choudhury of the OP1 stated that:
“It was made clear to your client during the visit of our representatives that the company is not responsible for this damage as vehicles are parked in open ground and though sufficient pest control measures are taken up by the company it cannot prevent rats coming from outside into our compound . It is an unfortunate incident and for the sake of our relation with your client we had offered to share some amount as a gesture of goodwill.”
In view of the above, our observation is that OPs 1 & 2 cannot shook off their responsibilities regarding the damages caused to the said vehicle of the complainant and ask the complainant to pay for a damage that has occurred when the said vehicle was in their custody. It appears to us as an utter negligence, deficiency of service and unfair trade practice on the part of the OPs1& 2.
On the other hand, in the complaint petition no manufactural grievances are made by the complainant. Therefore, no liabilities/responsibilities on the part of the OPs 3 to 6 are found by us as the issue in the vehicle arose due to the damage of the wiring and seats done by the rats while the said vehicle was in the custody of OPs 1 & 2 for which the OPs 3 to 6 cannot be held liable/responsible.
For the reasons stated herein above, the consumer case is disposed of on contest against OPs-1 to 4 with the following directions:-
- OPs 1 & 2 are jointly and severally directed to bear the costs of repairing the damages that has been caused to the vehicle of the complainant during their possession and the vehicle should be repaired within 45 days from today.
- OPs 1 & 2 are also jointly severally directed to pay an amount of Rs.20,000/- as compensation for mental pain and harassment along with litigation cost of Rs.10,000/- to the complainant within stipulated period failing which the amount shall carry interest @ 9% p.a. from the date of the order till its realization.
- Thus, the consumer case is dismissed on contest against OPs 3 & 4 and also dismissed ex parte against OPs 5 &6.
Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.
