ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not providing a well maintained car and for refund of Rs.28,737/- along with interest at 12% p.a., paid in respect of getting the car on rent, for reimbursement of the taxi fair and fuel charges of Rs.18,851/- on account of hiring another car due to the breaking down of the car provided by OP for Rs.50,000/- as damages for suffering mentally and physically and Rs.10,000/- towards litigation expenses and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

OP is running the business of providing cars for the needy persons to drive for themselves on rent. It is contended that complainant booked Mahindra Scorpio car with OP on 7^th July 2018 and tour was to commence at 04.00 AM hours on 1^st August 2018 from Rajatha Greens, Nagawara Main Road, Bangalore till 10 hours on 6^th August 2018 and paid a sum of Rs.28,737/- as booking charge.

3.      It is contended that as per the schedule a red coloured Mahindra Scorpio car bearing No.KA-05-1-AA3308 was handed over to the complainant at the fixed time and place and they were informed and assured that the said given car has no apparent faults or defects and as per the agreement column 10 they have affirmed that it has performed all necessary and required routine maintenance on all its vehicles, and it is its liability to provide vehicles which are road worthy and capable given. They started their journey in the said vehicle and when it has covered 500 kms., from Bangalore to Kannur, complainant found extreme difficulty in driving the said car.  On 2^nd August 2018, at around 7.45 am., in the middle of the road at Kannur, the said vehicle stopped. There were some technical and mechanical issue in the clutch.  Complainant called zoom car helpline and requested for the help.

4.      It is stated that a tow truck was promised for towing the vehicle but it came four hours after and at 12 pm the said zoom car was towed. They were stranded in the road about eight hours and left with no alternate, as OP did not help in getting an alternate car, with the help of the local police they got a taxi arranged for themselves and due to the intervention of the police with OP. OP agreed to reimburse the taxi fare and the fuel charges. On 3^rd August 2018, at 1.30 am., OP sent a Mahindra car at Kochi and on 6^th august 2018 they reached Bangalore in the replaced vehicle and handed over the same to the representative of OP. Several correspondences were made with the OP and on 10^th August 2018 instead of returning the taxi charges and other fuel charges, has levied Rs.10,000/-as extra charges for mechanical damage holding her liable for the damage. It also denied the reimbursement of the taxi charges and extra expenses of Rs.12,500/- and Rs.6,351.20 ps., which they are entitle for refund under the head of eligible expenses.  OP willfully and dishonestly avoided emails in respect of the alleged damage.  The mechanical failure in respect of the clutch plate would not arise by driving only 500 kms. The said car was over used and the reading of the odometer at that time was 72000 kms. It is solely the responsibility of OP regarding the maintenance of the car. To avoid payment of the taxi charges and others, OP has played unfair trade practice stating that the problem of the car was due to the complainant. Due to promote their sales and service deceitfully and willingly provided a vehicle with defect and falsely represented that the condition of the vehicle is very good and road worthy. The terms and conditions and policy of OP is arbitrary and one sided. The act of OP has been nothing less than unapologetic and in human, which has put her physically, and mental hardship besides financial loss. Hence the complaint.

5.     Upon the service of notice, OP appeared before the Commission but did not file the version, inspite of taking sufficient time and as 45 days expired from the date of service of notice, and since version not filed, right to file the version was forfeited by the Commission. 

6.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

8.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.   It is not in dispute between the parties that the complainant booked the vehicle in order to go to Cochin from Bangalore with the OP and OP provided the vehicle red coloured Mahindra scorpio car bearing No.KA-05-1-AA-3308. It is also not in dispute that after covering a distance of 500 kms., the vehicle stopped in the middle of the road at Kannur and the said vehicle was towed by OP making arrangement for it.  Complainant had to travel by making her own arrangement i.e., hiring a taxi from the said place to Cochin by paying the taxi charges.

        9.     It is the specific case of the complainant that the said vehicle broke down and on getting it examined, it was found that it had a mechanical and technical problem with its clutch. They also sought to provide an alternate car for their further travel but the same was not provided and the complainant proceeded by making her own arrangements.  The email correspondences clearly shows that the same was brought to the notice of the OP who has acknowledged the same, apologized for the inconvenience caused, and agreed for them to travel from Kannur to Cochin with the cab and to upload the bill which would be refunded based on the service report which is to take 3 to 5 days and the refund to be provided upto the booking fee and that it would provide replacement vehicle at Chochi and as per the averments made in the complaint itself, OP has provided an alternate vehicle to the complainant at Cochin on later date to travel to Bangalore.

        10.   Exchange of legal notice is also admitted.       OP has also issued a notice demanding to pay Rs.10,000/- for causing damage to the vehicle.  No document worth believing is produced by OP to show that for a mere driving of the vehicle of the complainant for the distance of 500 kms., the problem in the clutch would arise.  

        11.   It is the contention of OP that the said vehicle was got serviced seven days prior to handing over the vehicle to the complainant and that the service centre has given a clean chit regarding the roadworthiness of the vehicle and the bad driving of the complainant has caused the damage. It is also mentioned in one of the email correspondence by the complainant to OP dated 11^th August 2018 that the contention of OP does not constitute proof that one day driving caused the damage to the clutch.  They have contacted mechanics of Mahindra and they confirmed that one day driving cannot cause this type of clutch problem.

12.   On the other hand, though the OP has not filed the version and adduced evidence has produced by way of written submission a kind of written argument, contending and admitting the fact of booking the vehicle by the complainant, receiving of the advance money and the time schedules. It has further contended that the complaint deserves to dismissed u/s 26 of the C.P. Act as it is a frivolous one, and filed with a malafide intention alleging mechanical fault in the vehicle. The stoppage of the vehicle in the middle of the road is due to the act of the complainant who has driven the vehicle in a rash and negligent manner by over pressing the clutch of the vehicle.  He has not come up with clean hands. They undertook to reimburse the taxi charges and other charges and complete the refund only on the basis of service report. Complainant has leveled allegations without any iota of evidence.  The allegations made are of uncalled, false and based on the presumption and assumptions. Complainant has to prove the deficiency in service.  It has full filled the obligation as per the agreement entered into by the complainant.  The vehicle provided to complainant had gone periodic service at the authorized service centre and no problem whatsoever observed in the concerned vehicle. Just a week prior to the booking and handing over the vehicle to the complainant it was serviced and the condition of the vehicle was very good.  As per 11.6A of the Agreement, OP is not liable for the cost borne by the member as a consequence of accident or break down.  The brake down of the vehicle in this case is due to the complainant’s driving habit. As per the fee policy in case any damage to the vehicle, as a consequence of the member driving the car including over pressing of the clutch, the member is liable to pay the cost of repair post damage to the vehicle + loss of expected revenue arising out of the damage. Complainant was informed that the bill for cab from Kannur to Cochin will be assessed based on the internal assessment and also informed that with brake down is as a result of mechanical failure the refund would be processed and in case if it is a driving negligence, it would charge the complainant and no refund would be possible.  Complainant was provided with an alternate car in Cochin bearing Reg. No.KA-51 AA 2831.  Denying all the other allegations made against it prayed this Commission to dismiss the complaint.

13.   Though it has contended that the said vehicle was sent for service and it was serviced on 23^rd July 2018, on perusing the tax invoice, the service agency has examined the brake fluid, sticker weight, megasole rust, changing of engine oil, particle filter HVAC compact and adding ulter cool one liter oil and testing AC crush and clip.  The service was done after 70000 kms., and the wheel rim repaired and wheel alignment has been done.  There is no report regarding the examination of the brakes, examination of the clutch plate and the clutch system.  Had the service authorities examined the clutch system of the vehicle and given the certificate that the said clutch system has no problem and in a working condition, then the contention of OP could have been believed that due to bad habit of driving, such a mechanical defect has taken place.  Merely driving the vehicle for 500 kms., will not cause or effect the clutch system of the vehicle.  It is to be borne in mind that the clutch system subjects to wear and tare and when the vehicle has done 70000 kms., there is every possibility of the clutch plate and the clutch system suffers the wear and tare and it is likely to be replaced periodically. No document worth believing is placed by the OP as to when exactly the clutch system examined or replaced.  Hence the contention of OP that due to bad driving behavior caused the mechanical trouble in respect of the clutch.  If the same principle is accepted for argument sake, when the OP has provided another alternate vehicle to travel from Kannur to Bangalore, and the same driver has driven the said vehicle, in the same driving habit, then that vehicle also ought to have suffered the same damage to the clutch system.  That has not taken place, even though the complainant drove the vehicle for much more distance. Hence the defect that arose in the clutch system of the said vehicle cannot be considered as due to the bad driving habit of the complainant. The said mechanical defect is due to the ware and tare of the clutch system which OP has not taken care of, at the time of servicing the said vehicle and handing over to the complainant.  

        14.   In view of this we hold that there is deficiency in service on the part of OP and not returning the amount which the complainant has spent by hiring another taxi or cab from Kannur to Cochin. OP made the complainant to wait for eight hour at Kannur in not providing the towing the vehicle at the earliest point of time. They last their valuable time waiting for towing vehicle.  Further OP has issued a notice to the complainant seeking payment of Rs.10,000/- towards the repair charges of the said vehicle which in our view is unrichous. Rather paying the cab charges to the complainant as they have took in alternate cab to reach their destination of Cochin from Kannur, OP has demanded the complainant to pay Rs.10,000/-.  In our view it is unethical and probably to snub the complainant from making their claim of reimbursement of the amount spent for taking an alternate cab. Hence we answer point No.1 in the affirmative.

15.   In the result OP is required to refund the cab charges which the complainant hired from Kannur to Cochin.  According to the complainant they paid Rs.18,851/- for the said cab.  This amount OP has to refund in view of the brake down of the vehicle in the middle of the road at Kannur.  The defect in the vehicle that has occurred is only due to not properly maintaining the vehicle by the OP.  Further OP put the complainant on the road for about eight hours in sending the towing the vehicle and made them to loose their precious time. Hence we award a sum of Rs.10,000/- as damages towards the same for causing mental agony, physical hardship and further a sum of Rs.5,000/- towards litigation expenses as OP made the complainant to approach this commission by engaging an advocate to prefer this complaint and also spending time, money and energy in pursuing this complaint. inspite of this, OP cannot claim damages of Rs.10,000/- as per the notice issued or on any other ground. hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to refund the hired charges of Rs.18,851/- to the complainant.
3. OP is further directed to pay a sum of Rs.10,000/- towards damages and Rs.5,000/- towards litigation expenses to the complainant.
4. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 15^th day of December 2020)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Booking summary with payment voucher and

Ex P2: Copies of the car where it stopped and also to show the reading of Odometer and other two photographs to show that there was no damage to the vehicle

Ex. P3: Email correspondences

Ex P4: Reminder issued to me by OP

Ex P5: Copy of the remainder

Es P6: Copy of the notice

Ex P7: Copy of the receipt for having send the letter and also the copy of the receipt for having the send same to the courier

Ex P8: Copy of the legal notice issued by the OP.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                                        PRESIDENT