BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

25^th DAY OF AUGUST 2020

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Party (herein after referred as OP) with a prayer to direct the OP to terminate the contract with the complainant and transfer the vehicle/car papers in complainant name, cancel the commercial license, to refund of Rs.1,00,000/- towards expenditures with 24% interest, to compensate with an amount of Rs.10,00,000/- for breach of policy/agreement to pay an amount of Rs.5,00,000/- towards harassment, mental agony, hardship and to pay costs of the proceedings alleging deficiency in service and unfair trade practice.

2. The brief facts of the complaint are that:

Complainant submitted that on looking into the advertisement on website of the OP, OP stated that “It’s a guaranteed money maker”.  The complainant decided to invest in business by being an associate for the OP Company.  The complainant contacted OP sales executive, the OP explained the complainant about the advantages of engaging an associate with the company.

      The complainant further submitted that as per the advertisement brochures circulated and the words of the OP sales executive any person investing as an associate for the company by engaging his car with the portal for daily rentals would get a chance to earn more than Rs.20,000 in 30 days after accounting for deduction due to service, maintenance cost, fuel cost and taxes.

      The complainant further submitted that he owned a car before associating with OP.  The complainant proposed to get associated with the OP with the same old car but OP forced him to buy a new car i.e., Ford Figo Diesel (Trend Model) year 2017.  As per the assurance made by the OP with regard to guarantee rental income, the complainant purchased a new car and leasing out to the OP through a lease agreement dated 23.06.2017 which came along with the ZAP terms and conditions and other policies.

The complainant further submitted that the complainant purchased a vehicle on certain make, model, technical specification and colour as mutually agreed between the OP and the complainant.  For the requirement of commercial renting all the documents of the vehicle were done in the company’s name.  Further the OP contended that the company license would protect the associate from liabilities arising while a customer was driving the car.  Hence, as per clause 2.1.2 of the agreement the purchaser’s invoice and vehicle documents all in the name of company, to comply with specific registration requirements under the Motor Vehicle Act.  The complainant further submitted that he was initially confident with the ZAP being able to locate the car.  There was no issues with the customer picks and drops from the parking zone.  But on one occasion the complainant was completely harassed because the car was parked 4 km away from the parking zone.  Complainant further submitted that though the OP claims that there is device in the car that restricts the top speed of the car which help to reduce wear and tear in the car, as well as the overall accident maintenance cost.  There was an incident reported with regard to AC, the AC was not working due to an internal damage caused due to speeding and in the course of incident this was one of those accidental case where the complainant had to spend almost Rs.10,000/- for fixing it.  The OP was refused to pay the amount and stated that damage was part of maintenance.  However as per the OPs website if an accident occurs the complainant is supposed to provide bumper to bumper insurance.  The said behavior of the OP, complainant get a very less income and repeated troubles, harassment and expenditure.  Hence the complainant has decided to terminate the contract with the OP but the OPs have not terminated the contract.  Complainant felt there is a deficiency in service on the part of OP.  Hence complainant filed this complaint.

3. After registration of the complaint, notice was issued to OP.  Inspite of service of notice, OP remained absent without sufficient reason and cause.  Hence OP called out as absent and has been placed exparte.

4. In the course of enquiry into the complaint, the complainant has filed affidavit evidence reproducing what he has stated in his complaint.  The Complainant has produced documents along with complaint.  Complainant has submitted written arguments.  We have heard the arguments of the complainant side and we have gone through the oral and documentary evidence of the complainant scrupulously. 

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OP, if so, whether he is entitled for the relief sought for?

2. What order?

6. Our findings on the above points are as under:

Point No.1:   Affirmative in part

                 Point No.2:   As per the order below

REASONS

7. Point No.1: On perusal of the document Annexure-A it clearly shows that the OP had assured a guaranteed money of Rs.20,000/- if car has list 30 days.  Complainant in his affidavit oath firmly stated that on looking into the website of the OP, the complainant entered into an lease agreement with the OP.  The complainant alleged that as per the assurance given by the OP at the time of entering into an agreement, complainant has not received the amount.  Hence complainant sought for termination of contract with the OP but the OP has not terminated the contract.  Hence the complainant approached this Forum.

8. To rebuttal the evidence of the complainant, the OP has not appeared in the instant case though the notice was duly served and thereby the OP remained absent in the sense the OP either admits the averments of the complainant in toto or they have nothing to say contrary to the complainant’s averments.  If the matter is viewed on this line, it proves that the OP has agreed the same impliedly.  In this regard, the decision reported in 2018(1) CPR 325 (NC) in the case of Kotak Mahindra Old Mutual Life Insurance Ltd., vs. Dr.Nishi Gupta, wherein it is held that, “non-filing of the written version amounts to admission of allegations made by the Complainant in the consumer complaint”.

9. On perusal of the documents produced by the complainant at Annexure-D it clearly shows that the complainant had entered into lease agreement with the OP.  Further on perusal of the email correspondence and legal notice issued by the complainant, the complainant requested OP for termination of contract.  The OP had issued the reply notice dated 21.09.2018/Annexure-H.  In the reply notice OP had mentioned that “if your client wants to terminate the Agreement dated 27-June-2017, you are hereby requested to please issue Termination notice as per terms and conditions of the Lease Agreement”.  However the complainant in his affidavit submitted that he requested the OP on several times for termination of contract but OP has not terminated the contract.  This evidence of the complainant has not been challenged by the OP.  Moreover after issuance of the Forum notice, the OP has not appeared and contested the case.  This shows negligence and deficiency in service on the part of the OP.  Therefore OP has to be directed to terminate the contract with the complainant and help the complainant to transfer the vehicle in complainant’s name.  Further OP has to be directed to pay compensation of Rs.10,000/- together with litigation cost of Rs.10,000/- to the complainant.  Accordingly we answer the point No.1 affirmative in part.

10. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

O R D E R

Complaint filed by the complainant is allowed in part.

OP is directed to terminate the contract with the complainant and help the complainant to transfer the vehicle in complainant’s name.

OP is further directed to pay compensation of Rs.10,000/- together with litigation cost of Rs.10,000/- to the complainant.

OP shall comply the said order within 45 days from the date of receipt of this order.

Supply free copy of this order to both parties. 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Commission on this, the 25^th day of August 2020)

(RENUKADEVI DESHPANDE)                         (PRATHIBHA R.K)
             MEMBER                                             PRESIDENT

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

Mr. Debojyoti Das

Copies of Documents produced on behalf of Complainant:

Witnesses examined on behalf of the Opposite party - Nil

(RENUKADEVI DESHPANDE)                         (PRATHIBHA R.K)
             MEMBER                                             PRESIDENT

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