CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Santhosh Kesavanath P. President
Smt. Bindhu M. Thomas, Member.
CC No. 24/2008.
Monday, the 24th day of October, 2011.
Petitioner : Maya K.S,
Kunnamchira House,
Kaduthuruthy Village,
Vaikom Taluk, Kottayam Dist.
(By Adv.P.K. Chithrabhanu)
Vs.
Opposite parties : 1) The Maruthy Youdyog Ltd.,
1st Floor, Capital Towers-180,
Kodampakkam, Chennai
reptd. by its Zonal Manager.
(By Adv. Zakhier Hussain)
2) M/s. AVG Motors Ltd.,
Erayilkadavu, Kottayam
reptd. by its Managing Director.
(By Adv. Sony Sebastian)
O R D E R
Sri. Santhosh Kesavanath P., President
Case of the petitioner, filed on 26..2..2008, is as follows. Petitioner is a beautician and she is the proprietor of Haritha beauty parlour, Appanchira, Kottayam. First opposite party is the manufacturer of motor car and second opposite party is the dealer and distributor of motor car. According to the petitioner for the purpose of effective functioning of the beauty parlour petitioner purchased a motor car manufactured by the first opposite party. Petitioner spent a total amount of Rs. 2.96 lakhs as cost of the car, Rs. 17,000/- as road tax, Rs. 9,000/- as premium for comprehensive insurance. At the time of purchase of the car opposite parties issued 2 years warranty. Petitioner put the motor car for her professional as well as personal use. She was very strictly following the direction contained in the users manual provided by the
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opposite party. On covering a distance of 4562 KMs petitioner took the vehicle to second opposite party to their service station at Erayilkadavu, for second service. On the same day second opposite party informed the petitioner that the vehicle involved in a accident, while the mechanic of the service station was driving the vehicle to the public road nearby. Petitioner was informed that they were thinking to replace the vehicle involved in the accident with a brand new one and requested the petitioner to wait for 2 days. On receiving the information petitioner rushed to the service station and the petitioner saw the vehicle lying in a dilapidated condition. The front portion of the vehicle was damaged. Bonnet and mud guards were crumpled in to metallic mass. The engine was also damaged. As informed by the opposite party, petitioner was waiting for decision of second opposite party. But there was no response from their side. In the meantime second opposite party repaired the vehicle and it was repainted without informing the petitioner. According to the petitioner act of the opposite party in taking the vehicle for drive and causing damages to the same amounts to deficiency in service. Due to the accident, value of the motor car is diminished, So, to the petitioner prays for a direction to the opposite party to replace the damaged motor car with a new one or in the alternative petitioner pray for refund of Rs. 2,96,000/-. Petitioner claims Rs. 30,000/- as additional expense incurred by the petitioner for her journey. Petitioner claims Rs. 15,000/- as compensation and cost of the proceedings.
First opposite party entered appearance and filed version contenting that petition is not maintainable petition is bad for mis joinder of opposite
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party. Vehicle in question met with an accident during a road test after free service. First opposite party is not responsible for the alleged accident. According to the first opposite party they are only manufacturer of Maruthi Suzuki range of vehicle. Relationship between first opposite party and the second opposite party, dealer, is that of principle to principle basis and governed under dealership agreement. Petitioner is not entitled for any relief against the first opposite party and they pray for dismissal of the petition with their costs.
Second opposite party entered appearance and filed version contenting that the petition is not maintainable. According to the second opposite party
petitioner is not a consumer. Vehicle admittedly is used by the petitioner for effective functioning of beauty parlor, a commercial purpose, so the petitioner is not a consumer. Petitioner’s vehicle was entrusted to second opposite party for carrying out routine service on 22..10..2007 at 5`72 KMs. On the same day, while the vehicle was moved from the mechanical wing to carry out water service, Vehicle had hit against another vehicle parked inside the work shop building and it had caused minor damage to the bonnet, bumper, A/c condenser, right side fender and radiator. Second opposite party informed the matter to the petitioner and informed the petitioner that vehicle would be delivered to her in the same condition as it was before, on getting her approval for the same. Petitioner came to second opposite party service center on 23..10..2007. She saw the vehicle and demanded immediate repair, in the condition it was before, at nil cost to the petitioner. There upon job card for carrying out body repair were opened and petitioner duly affixed her
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signature. After repair second opposite party informed the petitioner on 26..10..2007 that vehicle was ready for delivery. On 29..10..2007 vehicle was inspected by the petitioner and satisfied, with ulterior motives petitioner refused to take delivery of vehicle. The vehicle was lying at the second opposite party work shop for a long time . Second opposite party, as per letter Dtd: 23..11..2007, requested to the petitioner to take delivery of the vehicle. Second opposite party there upon received a legal notice. On 3..3..2008 petitioner along with a vehicle surveyor took delivery of the vehicle, after recording a not satisfied note. According to the second opposite party there is no deficiency in service on their part. No damages what so ever had happened to the engine of the vehicle only minor repairs and replacement are needed for the vehicle. They pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether the petitioner is a consumer or not?
ii) Whether the deficiency in service on the part of the opposite parties?
iii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties Ext. A1 to A13 documents on the side of the petitioner and Ext. B1 to B9 documents on the side of the opposite parties.
Point No. 1
According to the opposite party petitioner is not a ‘consumer’ because, vehicle in dispute is used by the petitioner for effective functioning of the beauty parlor, which is a commercial purpose. Hence the petitioner is
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not a consumer. Section 2 (d) (ii) of the Consumer Protection Act 1986 defines a ‘consumer’ as any person who hires or avails any service for a consideration and includes any beneficiary of such service. But when such services are availed with approval of the first mentioned person, but does not include the person who avails of such service, for any commercial purpose. So, the question to be looked in to is what is the direct nexus between the hiring of the service and commercial activity. Here admittedly petitioner avail the service of the opposite party with regard to the free service of the vehicle offered by the first opposite party. So, in our view there is no direct nexus between the service availed by the opposite party and commercial activity, run by the petitioner. So, the petitioner is a ‘consumer’ and the petition is maintainable before this Fora.
Point No. 2
The crux of the case of the petitioner is that petitioner entrusted the vehicle to opposite party for second free service, on covering a distance of 4562 KMs. On 22..10..2007, on the same day the vehicle met with an accident while the mechanic of the service station was driving the vehicle. For the act of deficiency petitioner prays for replacement of damaged motor car with a brand new one or for refund of the value of the vehicle. Opposite party admitted occurrence of the accident inside work shop building. According to the petitioner act of the opposite party in not providing proper service by handling the vehicle without proper care amounts to deficiency in service.
‘Deficiency’ is defined in Section 2 (d) of Consumer Protection Act 1986 as any fault imperfection short coming for inadequacy in the quality,
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nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be perform by a person in pursuance of a contract or in relation to any service. Here being the service provider 2nd opposite party has an implied duty to take care of the vehicle while carrying out the service. So, in our view act of the 2nd opposite party amounts to deficiency in service.
The next question to be decided is what is the quantum of damages which is entitled for the petitioner for the act of deficiency? Counsel for the petitioner argued for allowing following relief. (a) He claimed replacement of the damaged motor car or the refund of the value of the vehicle. (b) He Claimed Rs. 30,000/- being additional expense incurred for the travel of the petitioner (c) He Claims Rs. 15,000/- as compensation and cost of the proceedings.
According to the petitioner the vehicle sustained severe damages the front portion of the vehicle was totally damaged. The bonnet and mud guards were crumbled in to metallic mass and engine was damaged. On the other side according to the second opposite party minor damages were caused to the bonnet, bumper A/c condenser, right side fender, and the radiator. The ex-parte commissioner appointed by Fora for the inspection of the vehicle filed his report and the report is marked as Ext. C1 commissioner is examined as CW1. The commissioner reported the following damages.
a) Pannel Ft Hood replaced.
b) Ft Bumper replaced
c) Ft Grill replaced
d) Ft Fender RH replaced
e) Radiator & A/C Condenser replaced
f) H/L assy RH & LH replaced
In Ext. B1 job card the works done were reported from Ext. B1 and
Ext. C1 report it can be seen that some front parts of the vehicle damaged. From Ext. B1 job card it can be seen that the vehicle has covered a distance 5173 KM. CW1 expert commissioner appointed by the forum reported that the accident affected the resale value of the vehicle very meticulously. But CW1 has not mentioned about the gravity and the volume of the damage caused to the vehicle or else to what extent resale value is affected. According to the opposite party, since they repaired the vehicle free of cost petitioner is not entitled for any other amounts neither as reduction in re sale value nor as compensation. Opposite party produce the print out from the Maruthi dealer management system containing the history of the services of the petitioners vehicle, including one at Popular automobiles, and the same is marked as Ext. B6. From Ext. B6 document it can be seen that the vehicle had done only general checkup and their was no defect to engine. So, in our view the claim of the petitioner for replacement of the vehicle or its cost is not allowable. For travel expenses incurred for the travel of the petitioner, during the repair of the vehicle period, petitioner produced certain vouchers and the same were marked as Ext. A13 series document – Total expenses as per Ext. A13 series will come to Rs. 25,710/-. The person who issued Ext. A13 is examined before the Fora as DW 1. During cross examination he stated that he is ready to produce the counter foil of Ext. A13 series document but nothing has produced before the Fora. Without saying what had happened
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may caused much inconvenience to the petitioner. From Ext. A11 document it can be seen that petitioner is a beautician by profession. So, petitioner probably have journey frequently to decorate and make up brides in connection with her job. So, the case of the petitioner that a motor car is an un avoided accessory for her profession is believable. Any way due to the act of deficiency committed by opposite party 2 the resale value of the vehicle is meticulously affected due to the accident. In our view the petition is not able to sell her car for a fair price, as the same model car worth . So, point No. 2 is find accordingly.
Point No. 3
In view of the finding in point No. 1 & 2 petition is allowed in part. 2nd Opposite party is ordered to pay the petitioner an amount of Rs. 60,000/- being the diminished value of the motor car. 2nd Opposite party is ordered to pay an amount of Rs. 10,000/- being the additional expenses incurred for the travel of the petitioner. 2nd Opposite party is ordered to pay an amount of Rs. 3,000/- as compensation for mental agony and financial stress. Rs. 2,000/- is ordered as litigation costs. Order shall be complied with within one month of receipt of copy of order . If the order is not complied, as directed, petitioner is entitled for 9% interest for the award amount from the date of order till realization.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 24th day of October , 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
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APPENDIX
Documents for the petitioner:
Ext. A1: Receipt Dtd: 31..5..2007
Ext. A2: Copy of the R.C
Ext. A3: Extended warrantee registration form
Ext.A4: Copy of certificate of insurance
Ext. A5: Delivery check list book let.
Ext. A6: Copy of job slip
Ext. A7: Copy of lawyers notice
Ext. A8: Postal receipts
Ext. A9: Post AD card
Ext. A9(a) Postal AD card
Ext. A10: Copy of reply notice dtd: 7..12..2007
Ext. A11: Copy of certificate
Ext. A12: Kanyaka magazine
Ext. A13series Vouchers.
Documents for the opposite parties
Ext. B1: Job order card
Ext. B2: Letter Dtd: 23..11..2007 issued by the petitioner to the second
opposite party.
Ext. B3: Job Card
Ext. B3(a) Job slip.
Ext. B4 series Photos
Ext. B5 series Photos
Ext. B6: Vehicle history
Ext. B7: Letter Dtd: 7..12..2010 from the petitioner to second opposite
party.
Ext. B8: Letter Dtd: 22..12..2007 from the petitioner to second opposite
party.
Ext. B9: Copy of satisfaction note.
Witness
DW1: Manojkumar
CW1: Manoj N.K.
By Order,
Senior Superintendent
