K. Krishnan, Kasthuri, K.P 8-472, Peroorkada, Thiruvananthapuram.






Opposite parties:




1.

The Managing Director, Maruti Udyog Ltd., 11th Floor, Jeevan Prakash-25, Kasturba Gandhi Marg, New Delhi – 110 001.


2.

The General Manager, Indus Motors Co. Ltd., M.G. Road, Thevara, Kochi- 682 015.


3.

The Manager, Indus Motors Co. Ltd., Pattom, Thiruvananthapuram.















ORDER




The facts of the case are as follows: As per the proforma invoice given to the complainant, the cost of the Zen VXI Model car is shown as Rs. 3,99,314/-. The cost of insurance comes to Rs. 13,126/-, the road tax & registration fee and extended warranty comes to Rs. 18,850/- and 1,450/- respectively. Thus the total cost of the vehicle as per proforma invoice dated 24.07.2004 is Rs. 4,32,740/-. The case of the complainant is that on 23.08.2004, as per newspaper reports, the price of the vehicle has been slashed down by Rs. 9,000/-.


The complainant took delivery of the vehicle on 25.08.2004. The complainant paid total amount of Rs. 4,21,500/- for taking delivery of the vehicle. On a perusal of the invoice dated 24.08.2004 the complainant noticed that though a total amount of Rs. 4,21,500/- was collected from the complainant, an amount of Rs. 3,99,314/- alone is accounted towards the price of the vehicle and Rs. 22,186/- is seen accounted towards road tax and extended warranty. From the invoice it is also explicit that the price collected at Rs. 3,99,314/- covers the price of accessories supplied and sale tax.


On further enquiry the complainant understood that there was a decrease in price at Rs. 12,462/- for the model Zen VXI model. In other words the ruling price of the model purchased was only Rs. 3,86,852/-. The complainant requested the opposite parties to refund the excess amount collected from the complainant on several times. In spite of an earnest effort made to get it refund, the opposite parties did not honour the commitment of the company so far. Hence this complaint.





The 1st opposite party, the Managing Director, Maruti Udyog Ltd. filed their version contending the case. The 1st opposite party states that there was no contract for sale of vehicle between the complainant and 1st opposite party. The complainant neither paid any amount to the 1st opposite party for purchase of vehicle nor the complainant had any transaction relating to the sale of the vehicle in question with the 1st opposite party.


The 1st opposite party sells the vehicles to its dealers on a price prevailing at the date of invoicing. It is the prerogative of the 1st opposite party to decide the price of its products. In so far as sale of vehicle to the individual customer is concerned, it is the dealer and that individual customer has to settle the terms and conditions of sale including the price of vehicle, date of delivery etc. The sale of vehicle, therefore, depend upon specific conditions of agreement for sale as entered into between the complainant and selling dealer. The 1st opposite party states that the company was not bound to honour any alleged commitment with the complainant.




The 2nd and 3rd opposite parties' main contentions in the version are that these opposite parties had not collected excess amount from the complainant. They admitted that the price of the vehicle and the insurance amount till 2nd August 2004 had been changed and the new scheme was introduced from 23rd August to 31st August 2004. The opposite parties stated the details as below:







Old price upto 22nd August New price from 23rd August to 31 August

Vehicle Cost - 399314 386852

Insurance - 13126 12738

-------------- ------------

4,12,440 3,99,590/-

======= =======




Old Scheme till 22nd August New price from 23rd August to 31 August




Free Insurance - 13126 Price difference - 12462

Accessories given - 13239/- Insu 50% of 12738 - 6369

----------- ------------

Total 26,365/- 18,831/-

======= =======




As per the opposite parties the complainant has enjoyed the benefit of Rs. 7,534/-. If the complainant had purchased the vehicle after the price decrease he would have got only the above mentioned 50% insurance and price difference as offered and he would have lost the gain Rs. 7,534/-. And therefore these opposite parties had given the best deal, which is beneficial to the complainant with a view to keep good customer relationship. The opposite parties deny the allegation that the opposite parties have collected excess amount of Rs. 12,412/- from the complainant. There is no unfair trade practice or deficiency in service from the part of the opposite parties. Hence they prayed for the dismissal of the complaint.

In this case complainant has filed proof affidavit in lieu of chief examination and he has been examined as PW1. From his side 5 documents were marked as Exts. P1 to P5. 1st opposite party has also filed affidavit along with a document. 2nd and 3rd opposite parties have submitted that they have no evidence.

Points that would arise for consideration are:-

1.

Whether there is deficiency in service or unfair trade practice from the side of opposite parties?
2.

Reliefs and costs.

Points (i) & (ii):- In this case the complainant has been examined as PW1 and the opposite parties cross examined him. From the complainant's side 5 documents were marked as Exts. P1 to P5. Ext. P1 is the proforma invoice dated 24.07.2004. The on road price quoted in Ext. P1 by the 3rd opposite party is Rs. 4,32,740/-. As per this document Ex Showroom price is Rs. 3,99,314, insurance amount is 13,126/-, road tax and registration fee is 18,850/- and extended warranty is 1,450/-. In the proforma invoice three conditions are stated. First and second conditions are (1) price quoted above is current and subject to change without notice (2) price prevailing at the time of invoicing shall only be applicable.


The opposite parties have no objection on these points. Ext. P2 is the copies of paper cuttings of Malayala Manorama and Hindu in which the news published that the price of the vehicle Zen have been slashed down by around Rs. 9,000/-. Ext. P3 is the invoice No. 5965 dated 24.08.2004. As per this document the complainant had to remit Rs. 4,21,500/- to the 3rd opposite party. Ext. P4 is the copy of the delivery receipt dated 25.08.2004. Ext. P5 is the copy of tele fax dated 16.09.2004 issued by the 3rd opposite party to the complainant. The copy of this document has been produced by the 1st opposite party also along with their version.

We have carefully examined all the pleadings, documents and evidence of both sides. The opposite parties agreed that the price prevailing at the time of invoicing shall only be applicable (Ext. P1) In this case we have also taken that view for deciding the case. The date of invoice is 24.08.2004(Ext. P3). As per Ext. P5 the price of the vehicle on that date was Rs. 3,99,590/- including insurance. The opposite parties have argued that at that time they offered 50% insurance off. Accordingly the complainant would have to pay Rs. 3,99590-Rs. 6,369/- = Rs. 3,92,221/-. But the opposite parties charged Rs. 3,99,314/- from the complainant.


Hence the complainant is entitled to get refund of Rs. 3,99,314 – Rs. 3,99,221= Rs. 7,093/- from the 2nd and 3rd opposite parties, the excess amount collected by them from the complainant. In this case opposite parties argued that they have given accessories for Rs. 13,239/- as free. But they have no evidence to prove that contention and moreover the complainant never demanded free accessories from the opposite parties. In this case the opposite parties have failed to prove that they have given the accessories free of cost. From the above mentioned discussions we are of the view that there is unfair trade practice from the side of 2nd and 3rd opposite parties, that they have not given the vehicle at the price prevailing at the time of invoicing. Hence the complaint is partly allowed.

In the result, the opposite parties 2 & 3 are directed to refund Rs. 7,093/- with 12% annual interest from 24.08.2004 till the date of realization and shall pay Rs. 3,000/- as compensation and Rs. 2,000/- as costs to the complainant. Time for compliance one month from the date of receipt of this order. Thereafter 12% annual interest shall also be paid to the entire amount till the date of realization. 1st opposite party is exempted from any liability.

Complainant:




K. Krishnan, Kasthuri, K.P 8-472, Peroorkada, Thiruvananthapuram.





Opposite parties:




1.

The Managing Director, Maruti Udyog Ltd., 11th Floor, Jeevan Prakash-25, Kasturba Gandhi Marg, New Delhi – 110 001.


2.

The General Manager, Indus Motors Co. Ltd., M.G. Road, Thevara, Kochi- 682 015.


3.

The Manager, Indus Motors Co. Ltd., Pattom, Thiruvananthapuram.







ORDER



The facts of the case are as follows: As per the proforma invoice given to the complainant, the cost of the Zen VXI Model car is shown as Rs. 3,99,314/-. The cost of insurance comes to Rs. 13,126/-, the road tax & registration fee and extended warranty comes to Rs. 18,850/- and 1,450/- respectively. Thus the total cost of the vehicle as per proforma invoice dated 24.07.2004 is Rs. 4,32,740/-.


The case of the complainant is that on 23.08.2004, as per newspaper reports, the price of the vehicle has been slashed down by Rs. 9,000/-. The complainant took delivery of the vehicle on 25.08.2004. The complainant paid total amount of Rs. 4,21,500/- for taking delivery of the vehicle. On a perusal of the invoice dated 24.08.2004 the complainant noticed that though a total amount of Rs. 4,21,500/- was collected from the complainant, an amount of Rs. 3,99,314/- alone is accounted towards the price of the vehicle and Rs. 22,186/- is seen accounted towards road tax and extended warranty.


From the invoice it is also explicit that the price collected at Rs. 3,99,314/- covers the price of accessories supplied and sale tax. On further enquiry the complainant understood that there was a decrease in price at Rs. 12,462/- for the model Zen VXI model. In other words the ruling price of the model purchased was only Rs. 3,86,852/-. The complainant requested the opposite parties to refund the excess amount collected from the complainant on several times. In spite of an earnest effort made to get it refund, the opposite parties did not honour the commitment of the company so far. Hence this complaint.





The 1st opposite party, the Managing Director, Maruti Udyog Ltd. filed their version contending the case. The 1st opposite party states that there was no contract for sale of vehicle between the complainant and 1st opposite party. The complainant neither paid any amount to the 1st opposite party for purchase of vehicle nor the complainant had any transaction relating to the sale of the vehicle in question with the 1st opposite party.


The 1st opposite party sells the vehicles to its dealers on a price prevailing at the date of invoicing. It is the prerogative of the 1st opposite party to decide the price of its products. In so far as sale of vehicle to the individual customer is concerned, it is the dealer and that individual customer has to settle the terms and conditions of sale including the price of vehicle, date of delivery etc. The sale of vehicle, therefore, depend upon specific conditions of agreement for sale as entered into between the complainant and selling dealer. The 1st opposite party states that the company was not bound to honour any alleged commitment with the complainant.




The 2nd and 3rd opposite parties' main contentions in the version are that these opposite parties had not collected excess amount from the complainant. They admitted that the price of the vehicle and the insurance amount till 2nd August 2004 had been changed and the new scheme was introduced from 23rd August to 31st August 2004. The opposite parties stated the details as below:







Old price upto 22nd August New price from 23rd August to 31 August

Vehicle Cost - 399314 386852

Insurance - 13126 12738

-------------- ------------

4,12,440 3,99,590/-

======= =======




Old Scheme till 22nd August New price from 23rd August to 31 August




Free Insurance - 13126 Price difference - 12462

Accessories given - 13239/- Insu 50% of 12738 - 6369

----------- ------------

Total 26,365/- 18,831/-

======= =======




As per the opposite parties the complainant has enjoyed the benefit of Rs. 7,534/-. If the complainant had purchased the vehicle after the price decrease he would have got only the above mentioned 50% insurance and price difference as offered and he would have lost the gain Rs. 7,534/-. And therefore these opposite parties had given the best deal, which is beneficial to the complainant with a view to keep good customer relationship. The opposite parties deny the allegation that the opposite parties have collected excess amount of Rs. 12,412/- from the complainant. There is no unfair trade practice or deficiency in service from the part of the opposite parties. Hence they prayed for the dismissal of the complaint.

In this case complainant has filed proof affidavit in lieu of chief examination and he has been examined as PW1. From his side 5 documents were marked as Exts. P1 to P5. 1st opposite party has also filed affidavit along with a document. 2nd and 3rd opposite parties have submitted that they have no evidence.

Points that would arise for consideration are:-

1.

Whether there is deficiency in service or unfair trade practice from the side of opposite parties?
2.

Reliefs and costs.

Points (i) & (ii):- In this case the complainant has been examined as PW1 and the opposite parties cross examined him. From the complainant's side 5 documents were marked as Exts. P1 to P5. Ext. P1 is the proforma invoice dated 24.07.2004. The on road price quoted in Ext. P1 by the 3rd opposite party is Rs. 4,32,740/-. As per this document Ex Showroom price is Rs. 3,99,314, insurance amount is 13,126/-, road tax and registration fee is 18,850/- and extended warranty is 1,450/-.


In the proforma invoice three conditions are stated. First and second conditions are (1) price quoted above is current and subject to change without notice (2) price prevailing at the time of invoicing shall only be applicable. The opposite parties have no objection on these points. Ext. P2 is the copies of paper cuttings of Malayala Manorama and Hindu in which the news published that the price of the vehicle Zen have been slashed down by around Rs. 9,000/-. Ext. P3 is the invoice No. 5965 dated 24.08.2004.


As per this document the complainant had to remit Rs. 4,21,500/- to the 3rd opposite party. Ext. P4 is the copy of the delivery receipt dated 25.08.2004. Ext. P5 is the copy of tele fax dated 16.09.2004 issued by the 3rd opposite party to the complainant. The copy of this document has been produced by the 1st opposite party also along with their version.

We have carefully examined all the pleadings, documents and evidence of both sides. The opposite parties agreed that the price prevailing at the time of invoicing shall only be applicable (Ext. P1) In this case we have also taken that view for deciding the case. The date of invoice is 24.08.2004(Ext. P3). As per Ext. P5 the price of the vehicle on that date was Rs. 3,99,590/- including insurance.


The opposite parties have argued that at that time they offered 50% insurance off. Accordingly the complainant would have to pay Rs. 3,99590-Rs. 6,369/- = Rs. 3,92,221/-. But the opposite parties charged Rs. 3,99,314/- from the complainant. Hence the complainant is entitled to get refund of Rs. 3,99,314 – Rs. 3,99,221= Rs. 7,093/- from the 2nd and 3rd opposite parties, the excess amount collected by them from the complainant. In this case opposite parties argued that they have given accessories for Rs. 13,239/- as free. But they have no evidence to prove that contention and moreover the complainant never demanded free accessories from the opposite parties.


In Ext. P5 document the opposite parties stated that they have given accessories for Rs. 13,239/-, but the opposite parties charged Rs. 407.88 for accessories as per Ext. P3. In this case the opposite parties have failed to prove that they have given the accessories free of cost. From the above mentioned discussions we are of the view that there is unfair trade practice from the side of 2nd and 3rd opposite parties, that they have not given the vehicle at the price prevailing at the time of invoicing. Hence the complaint is partly allowed.

In the result, the opposite parties 2 & 3 are directed to refund Rs. 7,093/- with 12% annual interest from 24.08.2004 till the date of realization and shall pay Rs. 3,000/- as compensation and Rs. 2,000/- as costs to the complainant. Time for compliance one month from the date of receipt of this order. Thereafter 12% annual interest shall also be paid to the entire amount till the date of realization. 1st opposite party is exempted from any liability.

Vipan Goyal son of Shri Sardari Lal Goyal, resident of House no.340/2, Dr. Sham Singh Road, Opposite City Nursing Home, Civil Lines, Ludhiana.

(Complainant)

Vs.



1. Maruti Udyog Ltd. Palam Gurgaon Road, Gurgaon, through its Director.



2. Sh. Pankaj Narula, Chief General Manager (Service), Maruti Udyog Ltd. Palam Gurgaon Road, Gurgaon.



3. Gulzar Motors Ltd. Opp. Military Camp, G.T. Road, Dholewal, Ludhiana through its Director/Managing Director.

(Opposite parties)



COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

-----------------------------------------------------------

O R D E R

T.N. VAIDYA, PRESIDENT:

1. Grouse of the complainant in this complaint under section 12 of the Consumer Protection Act, 1986 is that he got fascinated and attracted by advertisements, representations of opposite parties that vehicle Wagon-R DUO BX-III will give average of 20-22Kms. per litre, purchased one from opposite party no.3 dealer of opposite party no.1 manufacturer of the car. The car was purchased on 29.8.2007. But representations of the opposite parties proved to be false. As car in question was giving mileage of 10 Km. per litre, so, opposite party no.1 & 3 was contacted number of times with this complaint. Vehicle was got checked from other dealers as well, but they pointed that less mileage was on account of manufacturing defect in the vehicle, which they can not remove. Even at the time of free services obtained from opposite party no.3, it was promised that performance and average of the vehicle would increase day by day . But average of the car never increased and it happened due to manufacturing defect therein. When opposite parties failed to remove the defect in the vehicle, served legal notice dated 10.7.2008 and thereafter received a telephonic call from the Customer Care Manager namely, Ms. Tina, requiring complainant to bring his car to M/s Gulzar Motors on 1.8.2008. The vehicle was taken to M/s Gulzar Motors and he remained present there upto 5 P.M., but none came to check and solve the problem. This also caused mental agony to the complainant. Complainant avers in his complaint that the vehicle is having manufacturing defect required to be replaced with new one or entitled for refund of the amount paid with interest @24% per annum and also entitled for compensation of Rs.50,000/- for resorting to unfair trade practice.

2. Opposite parties no.1 & 2 in reply claimed that complaint is false, vexatious. There is no deficiency in service, nor they resorted to unfair trade practice. Complainant has no cause of action against them as he has filed the complaint on baseless allegations. The vehicle was purchased by the complainant of his own free will. They denied any manufacturing defect in the vehicle. No absolute assertion qua mileage of the vehicle was made. Fuel average depends on various factors like driving condition/habits, traffic and road conditions, fuel quality/purity and proper quantity. Fuel average is under specified test conditions at the time of homologation of new model before launch. There is no defect in the vehicle. Opposite party no.3 in response to complaint lodged by the complainant, conducted home visits on 16.1.2008, 21.1.2008. Service centre of opposite party no.3 observed that complainant was using domestic LPG in his vehicle which was prohibited to use by law in the automobiles. Auto LPG has different characteristics to domestic LPG. Domestic LPG can cause serious engine damage, declining performance. Complainant was advised to use commercial LPG. After filling automobile LPG, average test was conducted and gas performance of the vehicle was found 16 Km/kg. Complainant has no cause of action.

3. Opposite party no.3 by separate written statement has also claimed that complaint is frivolous, vexatious, and false to the knowledge of the complainant. Complaint against them is not maintainable and he has no cause of action. They have admitted selling vehicle to the complainant but disputed rest of his allegations. Also taken plea that mileage of the vehicle depends upon various factors like driving conditions/habits, traffic and road conditions, fuel quality/purity and proper quantity. They averred that on complaint of the complainant, their engineer visited house of the complainant on 16.1.2008 and 21.1.2008 and observed that complainant was using domestic LPG which was prohibited under the law. Whereas should have not used domestic LPG and he was instructed to use commercial LPG. Due to use of domestic LPG, there was risk of damage to the engine affecting its performance.

4. In order to prove their assertions, both the parties led their evidence by way of affidavits and documents.

5. We have heard the arguments addressed by ld. counsel for the parties, gone through file, scanned the documents and other material on record.

6. The complainant has come with the complaint that he purchased the vehicle on representation that it would give mileage of 20-22 Km. per liter. He has also filed his own affidavit in support therein. But the documents so relied in support of such allegations belie his case. Along with invoice Ex.C.1, complainant has filed Ex.C.2, copy of the advertisement of the opposite party, in which mileage of 17Km. per litre is mentioned for vehicle Wagon-R. It means advertisement was that the vehicle Wagon-R would give average of 17Km. per litre. From where the complainant mentioned that it had promised giving average of 20-22Kms., there is no material on record. Hence, he stands falsified on the score.

7. It is claimed by the complainant that had not been using domestic LPG but only commercial LPG by buying the same from fuel stations as evidenced by invoices Ex.C.19 to C81. No doubt, under these invoices of different dates had filled LPG in his car from different fuel stations. But it simply would not mean that always used LPG got filled in the car from the petrol pumps and never used domestic LPG cylinder to run his vehicle. As it is convassed by opposite party that complainant was fully satisfied with performance of the vehicle and as such never pointed any defect in the vehicle when he took the same for services to service station of opposite party no.3. Ex.R.1 is the satisfaction note dated 6.12.2007, Ex.R.2 dated 16.1.2008 executed by the complainant in favour of opposite party no.3. He during visits never complained of bad performance of the vehicle. Rather was satisfied with its performance.

8. Similarly, Ex.R.3 to Ex. R.5 are the home visits check sheets dated 6.12.2007, 16.1.2008 and 21.1.2008 of the vehicle of the complainant. It is mentioned in these home visit check sheet reports that the vehicle was being run with domestic LPG and the complainant was advised against it. Home visits were necessitated on complaint of the complainant.

9. So, made out that complainant had also been purchasing LPG from fuel stations and was also found during home visits by engineers of the opposite parties using domestic LPG. So, if on account of such use of domestic LPG, performance of the vehicle was affected, causing lesser average per litre, it would not amount to some manufacturing defect in the vehicle. Also not brought any evidence on record by the complainant to prove that the vehicle had any manufacturing defect.

10. If average of the vehicle was affected, it had nothing to do with manufacturing defect in the vehicle nor would amount to making false representation by the dealer/manufacturer in order to sell the car. Because the average of the vehicle depends upon various factors not connected with any defect in the vehicle.

11. In these circumstances, we find no merit in the complaint and as a result dismiss the same.

F.A.NO.477/2006
(Against order in O.PNo.65/2003 on the file of the DCDRF, Tirunelveli)

DATED THIS THE 27th DAY OF NOVEMBER 2009

1. The Director (Marketing)

Maruti Udyog Ltd.,

Palem – Gurgaon Road

Gurgaon – 122 015

Haryana State


2. Regional Service Representative South-I

Maruti Udyog Limited

7th Floor, Capital Tower

180, Kodambakkam High Road

Nungambakkam

Chennai – 600 034 Appellants / Opposite party



Vs.

S. George D.Netto

5/70-D, Madurai Road

K.R.Colony

Elathur – 627 803

Tenkasi Taluk Respondent/ Complainant

The Respondent as complainant filed a complaint before the District Forum against the Appellant / opposite party for various reliefs. The District Forum allowed the complaint. Against the said impugned order, this appeal is preferred praying to set aside the order of the District Forum dt.20.12.2005 in O.P.No.65/2003.



This petition coming before us for hearing finally on 05.11.2009. Upon hearing the arguments of the counsel for the appellant, this commission made the following order:



Counsel for Appellant/ Opposite party: Mr.O.R.Santhanakrishnan, Advocate

Counsel for Respondent/ Complainant: Mr.S. Girish, Advocate

M. THANIKACHALAM J.



1. The opposite parties in OP.No.65/2003, on the file of District Forum, Tirunelveli, having suffered an adverse order, have come to this Commission, to erase the same, as appellant.



2. The complainant/ respondent has filed a case before the District Forum, seeking certain reliefs, interalia contending that he had applied to the 2nd respondent, expressing his willingness to establish Maruthi Authorised Service Station (MASS), by depositing a sum of Rs.1500/-, that as instructed in LOI, he had remitted the sum of Rs.10000/-, that he having fulfilled all the necessary requirements for MASS, the opposite parties have failed to issue necessary orders, thereby they have committed breach of agreement, which should be construed as deficiency in service, that by the negligent act of the opposite parties, he had incurred loss, suffered mental agony, etc., and that therefore they should be directed to refund the application fee of Rs.1500/-, that they should be further directed to return the security deposit of Rs.10000/-, and a further sum of Rs.40000/-, spent for the improvement made, and that a sum of Rs.1 lakh being compensation.



3. The appellant/ opposite parties, by filing their written version, opposed the complaint, as if the same is not maintainable, because the complainant is not a consumer, and that the Forum has no jurisdiction, that the complainant has failed to perform his duties as agreed under the agreement, despite reminders, which should follow, there is no breach of agreement or any negligent act on their part, thereby prayed for the dismissal of the complaint.



4. The District Forum, though the opposite parties have not appeared before the District Forum to contest the case, took the complaint of the complainant to decide on merit. In this effort, the District Forum has exhibited Ex.A1 to A16, as well as Ex.B1 to B7. The evaluation of the above materials, including the pleadings, brought to surface that the complainant has made out a case, that the opposite parties have committed deficiency in service by their negligent act, and having done so, they are not entitled to retain the application fee and security deposit. Thus concluding, a direction came to be passed on 20.12.2005, which is under challenge before this Commission.



5. Heard the learned counsel appearing for the appellant, perused the documents, written submissions as well as the order of the District Forum.



6. The learned counsel for appellant contended, at the first instance that since no sufficient opportunities were given to the opposite parties to put forth their case, they should be given an opportunity by remanding the matter after setting aside the order of the District Forum. It is the further submission that since there are materials even to decide the case on merit, this Commission, even without remitting back the case, it can even be decided on merit.



7. In order to support the second contention of the arguments, our attentions were drawn to various documents. In order to make out a case, how the complainant has committed breach of contract, how the complainant is not a consumer, and how the consumer forum has no jurisdiction to decide the case, which are not challenged by the respondent, either by filing written arguments or by arguing the case on merit, despite number of opportunities were given. Having heard the submissions of the learned counsel for appellant, by going through the documents available on record, as well as the nature or the dispute between the parties, we were of the view that the case can be very well decided by this Commission itself on merit, without remanding the same, and therefore elaborate submissions were made by the learned counsel for appellant to set aside the order of the District Forum.



8. It is the submission of the learned counsel for appellant that the respondent is not a consumer as defined under the Act, even as per the pleadings, which were raised in the written version, not properly considered by the District Forum. By going through the definition, as well as the nature of business, for which an agreement has been entered into between the parties, we are inclined to accept the submissions of the learned counsel for appellant. In order to maintain a consumer dispute before the consumer Forum, the complainant must be a consumer, and he should come either within the meaning of consumer as defined under Sec.2(1)(d), further making out a case of deficiency in service, or establishing unfair trade practice etc.



9. Admittedly, the complainant has not purchased any goods for consideration, and therefore there is no possibility of himself coming under Sec.2(1)(d)(i). Sec.2(1)(d)(ii) relates to hire of service. As disclosed by the documents, which we are going to discuss infra, the complainant has not hired the services of the opposite parties, either for consideration paid, or promised to pay. Therefore, he also will not come within Sec.2(1)(d)(ii) of the Act. Even assuming that there was some service element involved between the parties, in this case, the complainant should be excluded under later portion Sec.2(1)(d)(ii) of the Act, which says “but does not include a person who avails of such service for any commercial purpose”. For commercial purpose, explanation is also appended under Sec.2(1)(d) of the Act, which says, if the service hired is used exclusively for the purpose of earning livelihood, by means of self-employment be will be a consumer. By going through the complaint, we are unable to find any such pleadings, such as he attempted to establish MASS, by entering into an agreement with the opposite parties, only for the purpose earning his livelihood, by means of self-employment. In the absence of such pleadings, considering the commercial nature, it should be held that the establishment of MASS was intended only for the commercial purpose, and in this view, even assuming that there was some element of service for consideration, the complainant will not come within the meaning of consumer. Unfortunately, the District Forum, though these points were elaborately raised in the written version, has failed to discuss the same, and give finding, whereas reiterating the documents once again, as if averments available therein are fully acceptable, established the case of the complainant erred in coming to the conclusion that the complaint is maintainable, or the complainant is a consumer. So far as the territorial jurisdiction is concerned, we feel because of the part of cause of action had arisen, where the complainant has residence, and the for a has jurisdiction and in this view, we are unable to find any fault, in deciding the case by the District Forum, and in fact on this point no acceptable argument was also advanced. Assuming the complaint could be entertained, let us see whether any case has been made out to say that there was deficiency in service.



9. The complainant being a motor mechanic having auto Garrage, and on seeing an advertisement in Dhinamalar Daily, on 19.3.2001, under the original of Ex.A1, applied to the opposite parties, to consider his claim to chose his Garrage for authorization, giving biodata also under Ex.A2. At that time, he had also deposited a sum of Rs.1500/-, not in dispute. Upon consideration, the opposite parties have issued letter of intent for Maruthi Authorised Service Station on 18.6.2001 (Ex.A3), imposing certain conditions, and one of the conditions, as pointed out by the learned counsel for appellant, which is said to have been breached by the complainant reads “Your workship should be ready in all respects for activation within three months from the date of issuance of this letter of intent , otherwise this letter will be treated as cancelled without any reference to you. You will provide us a report fortnightly giving details of the progress made till activation in the prescribed format. General guidelines alongwith relevant information is given in the booklet enclosed”. It is the submission of the learned counsel for appellant that the above said conditions were not at all complied with, inspite of repeated reminders, and to buttress the above submissions, our attention was drawn to Ex.A7. Under Ex.A7, a requisition was made to make ready the workshop, failing to comply the conditions, the amount deposited also shall not be refunded, which reads “Further please note that in case you are not in a position to make your workshop ready for activation within 15 days from the date of this letter, we will take necessary action to cancel LOI and he amount of Rs.10000/- submitted to us also will not be refunded as per clause No.19 of our Letter of Intent duly signed by you. This is for your information please” . As submitted by the learned counsel for the appellant, though orientation programme was conducted for MASS applicants, for three days, the complainant has not fulfilled the above quoted conditions, and therefore they were unable to comply the demands of the complainant. As seen from Ex.A10 on 26.3.2002, a communication was sent by the opposite parties, directing him to send fortnight format, sent to him, alongwith LOI, in order to assess he status of the work in progress, for the proposed service station. When it was reported, the service station is ready, as seen from Ex.A11, they have informed the complainant, that after necessary inspection by one Mr.Venkataramani, further action will be taken. It seems, the complainant has not kept the service station ready, which can be seen from Ex.B7 - letter addressed by the Regional Office of the Maruthi Udyog Ltd., based upon the inspection report of Mr.R. Venkataramani. They have given five reasons for canceling the Letter of Intent, and according to them the complainant has not modified the existing workshop, and the present workshop looks like roadside Garrage, and therefore recommended for cancellation, and accordingly cancelled as seen from Ex.A12. Therefore, the contention of the complainant in the complaint, that without assigning any reason LOI was cancelled is baseless, and it is specifically stated in the letter dt.18.09.2002, that the complainant has failed to comply with the terms and conditions of LOI and no progress towards activation of MASS, within the stipulated period has been made. As per clause 19 of the LOI, the amount stands forfeited, if the applicant fails to complete all the activities towards activation within the stipulated period, as prescribed thereunder. Thus it is seen from the documents available on record, which were received by the complainant himself, that he had not acted as per letter of intent for Maruthi Authorised Service Station and in fact he had committed breach of contract. A person, having committed breach of contract, is not entitled to accuse the other party, viz. opposite parties, as if they have committed deficiency in service, and therefore they should be directed to refund the amount, as well they should pay compensation also.



10. The District Forum, without considering the clauses available in the LOI, as well as the correspondence, which informed about the non-compliance, in our considered opinion, has committed a grave error, as if the opposite parties have no authority to forfeit the amount or, they have committed deficiency in service. Further conclusion of the District Forum, that the opposite parties have not explained under what authority they have cancelled the LOI or forfeited the amount, would go to show that the District Forum has not properly studied or analysed Ex.A3. A person, who had committed breach of contract, is not entitled to approach the Consumer forum, as if the complainant did everything, whereas alleging that the opposite parties have committed deficiency in service, seeking compensation. The District Forum probably taking into account the opposite parties have not come to the Forum in person and contested the case, having failed in its duty to appreciate the documents available on record, landed in an error, thereby illegally issued a direction also, which are liable to be set aside.



11. In the result, the appeal is allowed, setting aside the order of the District Forum in OP.No.65/2003 dt.20.12.2005, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost throughout.

Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.

Consumer Complaint No: 160/2008

Date of presentation: 26/09/2008

Date of decision: 06/11/2009

Sh. Jai Pal Sood, S/o Sh. Hari Chand Sood,

R/o Chowk Bazar solan, Tehsil & District Solan, H.P.
… Complainant Versus

1. Goyal Motors Pvt. Ltd. Deonghat, P.O. Saproon, Tehsil & District Solan H.P. through its Managing Director and General Manager.

2. Maruti Udyog Limited gurgaon, Haryana through its Managing Director/ Director and General Manager.

3. M/s Maruti Udyog Limited, A company incorporated under the Companies Act, 1986 and having its Registered Office at 11th Floor, Jeevan Prakash, 25 Kasturba Gandhi Marg, New Delhi 110001 through its Managing Director/ Director and General Manager.

…Opposite Parties.

For the complainant: Mr. Pankaj Kashyap, Advocate.

For the Opposite Party No. 1: Mr. Jagdish Chand, Advocate.

For the Opposite Party No.2 & 3: Mr. Anirudh Sharma, Advocate.


O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers, that, the OPs No. 2 & 3, are the manufacturer and seller of maruti vehicles, whereas, OP No.1 is, its dealer. It is averred that he purchased a Maruti Esteem Car from the OP No.1, who had launched a scheme at the relevant time, and as per the scheme, a scratch coupon with every car will be given and prizes were like Maruti Alto Car etc. or Rs.2100/- was to be returned in the form of Shogun cheque. He further averred that the coupon was scratched by him, in which his name was written as ‘Jaipal Sood’, but the OPs failed to give him information since last many months. It is averred that when he visited the showroom of the OP No.1, he was surprised to see that on the same day a gift pack was handed over by the employee of the OP No.3 to him purchased from U.S. Dollar 99 Store Solan worth Rs.99/-, whereas the gift was supposed to be supplied by OP No.2 & 3 with genuine packing and logo of Maruti Udyog Limited within stipulated time. The complainant further proceeded to aver that the gift tired to be handed over to him, was fake and too late. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs, in its written version, to the complaint, raised preliminary objections vis-à-vis concealment of material facts, estoppel, maintainability of the complaint and lack of cause of action. On merits, the OP No.1 has admitted the purchase of Maruti Esteem Car by the complainant, but it is denied that when the complainant purchased the vehicle, the OPs No.2 & 3 had launched a scheme of scratch coupon, rather it was launched by the dealer. The OP No.1 had launched ‘Pre Navratra Scratch Win Offer’, which was applicable w.e.f. 09.09.2007 to 30.09.2007. It is further contended that the complainant got cup and saucer in the gift which he refused to take and the OP No.1 never offered to pay Rs.2100/- as Shagun Cheque. Later on, the gift which was left in the Maruti Agency by the complainant, was got delivered to him at his shop on, 04.07.2008 through one Shri Laiq Ram. It is further contended that the git pack is not required to bear the logo of Maruti Udyog Ltd. The OPs No.2 & 3 in their joint reply contended that a scratch card scheme was launched by the dealer of HP, commenced on, 09.09.2007 & closed on, 30.09.2007. They further contend that, as the complainant bought the car on, 12.09.2007, he was entitled to participate under the ‘scratch card’ scheme, as such, he exercised his option under the said scheme and won ‘cup saucer set’, which was delivered to him, as per settled terms and conditions. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The complainant, is, aggrieved by the act of the OPs, in not giving him, the genuine gift with mark/logo of ‘Maruti Udyog Limited, to which he was entitled on purchase of a Maruti Esteem Car, from the OPs. The OPs, have seriously contested the claim of the complainant, as asserted in the complaint, inasmuch, as, since, the scratch card scheme was launched by the dealers of H.P., commenced on, 09.09.2007 and closed on, 30.09.2007, as such, the complainant was entitled to participate in the ‘scratch card’ scheme, in which, he, duly participated, hence, under the said scheme, he won,a ‘Cup-Saucer set’ and on seeing the cup-saucer set, had left the said gift in the show room of the OP No.1, which was, later on, delivered to him at, his shop, on, 04.07.2008.

6. The complainant has not been able to demonstrate by adduction of cogent and convincing evidence, that the scheme was launched by OPs No.1 & 2, hence, the gift was to contain mark of ‘Maruti Udyog Limited’. The OPs, have placed on record the affidavits of Shri Pankaj Goyal, Proprietor M/S Goyal Motors Pvt. Ltd. And Surender Kumar, Senior Manager (Law), in the shape of evidence to demonstrate that since the scheme was launched by the dealers of HP, hence, the complainant selected one scratch card, which disclosed his winning a cup and saucer, which, gift he refused to collect and was later on delivered to him at his shop. The complainant has not been able to repulse or rebut the aforesaid affidavits, by adduction of best and reliable evidence on record. Hence, for lack of rebuttal evidence on record, by the complainant, it cannot be construed by any stretch of imagination, that the OPs have indulged in an unfair trade practice by not giving him genuine gift with the mark/logo of ‘Maruti Udyog Limited’. Since, the complainant has been delivered the gift, for which he was entitled, hence, we find no substance in the complaint of the complainant, which, is, liable to be dismissed. It is ordered accordingly. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

Complaint No.95/22.2.2008. Date of order: 11.11.2009.

Dr. Mandeep Kaur wife of Dr. H.S. Bajwa, Bajwa Nursing Home, G.T. Road, Khanna, Distt. Ludhiana.

(Complainant)
Vs.

1. Maruti Udyog Ltd. Palam-Gurgaon Road, Gurgaon (Haryana) through its Chairman-cum-Managing Director.



2. Swani Motors Private Limited, 12, Feroze Gandhi Market, Ferozepur Road, Ludhiana through its Managing Director.

(Opposite parties)
COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:
Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.

Present:
Sh. Parveen Talwar Advocate for complainant.

Sh. S.L. Ghai Advocate for OP No.1.

Sh. Parveen Kumar Garg Adv. for OPNo.2.

O R D E R

T.N. VAIDYA, PRESIDENT:

1. Matter involved for determination by us in this complaint under section 12 of the Consumer Protection Act, 1986 is as under:

“Whether Maruti car Model SX-4 ZXI manufactured by OP No.1 and sold by its dealer-OP No.2 to the complainant for a sum of Rs.7,3`1,103.01p representing its seats of leather upholstery, in fact was not of leather but of rexine (PVC).”

2. This matter has arisen on averments of the complainant that SX-4 ZXI car manufactured by OP No.1 having fabric material for upholstery valued Rs. 6,96,258/-. But she preferred to purchase a car with leather upholstery for Rs.7,31,103.01p, which was purchased vide invoice dated 28.9.2007 of opposite party no.2. Complainant believed representation of the opposite party that upholstery of the car was made of leather material, but to her dismay found subsequently front and rear seats of the car having upholstery of raxine instead of leather, as was represented to her. She was defrauded by the opposite party and consequently for such deficiency in service claimed compensation of Rs.1,00,000/- and Rs.11,000/- as litigation cost with direction to opposite parties to refund Rs. 58,000/- charged extra for leather upholstery of the car, which in fact was of raxine.

3. Opposite party no.1 admitted itself to be manufacturer of the car and that car manufactured by them was sold by opposite party no.2 to the complainant. They averred that opposite party no.2 is authorised dealer of their vehicles on principal-to-principal basis governed by Dealership Agreement. Sale of the car by opposite party no.2 to the complainant has nothing to do with opposite party no.1. They never made any representation or commitment to the complainant nor they have any knowledge what transpired between opposite party no.2 and the complainant. They pleaded that Maruti SX4 VXI (Bharat Stage III) comes with leather upholstery carrying price of Rs.7,37,064/-. The leather for seats is of finest quality of imported Italian leather, tailored for perfect fitting. They never adopted unfair trade practice and neither material used is of inferior kind or quality. Further pleaded that the complainant has no case against them.

4. Opposite party no.2 separately claimed in their reply that complaint is not maintainable and complainant has suppressed the material facts from the Fora. However, sale of the vehicle to the complainant is not denied by them. They pleaded that model of the car and accessories are the prerogative of manufacturer and they have sold the car as received from opposite party no.1. No change is made in model as well as accessories by them. They being authorised dealer sold the car, as per brochure supplied to them by the manufacturer. Material used in the car is as per brochure, which was supplied by opposite party no.1 to them. But complainant, before purchase, inspected the vehicle, satisfied herself and compared features of the car with brochure supplied to her. She also had test drive of the car before purchasing it. After full satisfaction, the car was purchased by the complainant. They denied that complainant got surprised when found upholstery of the car of raxine instead of leather. This allegation claimed to be false, nor they have adopted unfair trade practice. Hence, have prayed for dismissal of the complaint.

5. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

6. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

7. As referred at the outset, dispute is whether upholstery of the car was of leather or of raxine. It is not in dispute that car having upholstery of raxine was having lesser price as compared to the car having leather upholstery. As per own affidavit Ex.CW1/A of the complainant, she got shocked subsequently, when discovered that upholstery of the car instead of leather was of raxine. So, representation made by opposite parties was false and they resorted to unfair trade practice. Consequently, Sh. Praveen Talwar Advocate, Ld. counsel for the complainant vehemently argued that his client stood cheated through such mal practice resorted by the opposite party by representing upholstery of the car to be made of leather, which in fact was of raxine.

8. Whereas, on behalf of opposite parties, both the ld. counsels, contested averments of the complainant to be wrong. They argued that upholstery of the vehicle was made of fine leather and it comprised of seats as well as front portion of the back rest of the seats. Therefore, opposite parties never resorted to unfair trade practice.

9. In order to bring home her allegations, complainant had put reliance on affidavit Ex.CW1/B of Sh. Kewal Ram Badhan a technocrat in the field of Leather/Footwear. As per affidavit, is holding diploma in Footwear Technology and Advanced Footwear Technology (AFT) and Advanced Diploma in Footwear Technology (ADFT) and retired as Deputy Director from M.S.M.E. (Micro, Small & Medium Enterprises Development Institute) formerly known as SISI (Small Industries Service Institute), Government of India, Ministry of Industry and is having experience of 40 years in the field of leather/footwear. Complainant showed upholstery of the car to said Sh. Kewal Ram Badhan. He in para 4 of his affidavit sworn as under:

“That I have examined the material used on the seats of car, Maruti Suzuki, SX4 ZXI Leather bearing Registration no. PB26D 5885, Engine No.1277028 and Chassis no.113009,Colour clear Beige, belonging to Dr. Mandeep Kaur w/o Dr. Harjeshwar Singh Bajwa, resident of Bajwa Nursing Home, G.T. Road, Khanna.



10. Further in para 5 of his affidavit he opined as under:



“That on physical examination of the covering material of upholstery of the said car whenever it is exposed on both sides of both front and rear seats, I have come to the conclusion that it is not leather but some synthetic material.”



11. In para 5 of affidavit Ex. CW1/B of Sh. Kewal Ram Badhan he has given his opinion qua both sides (emphasis laid) that wherever it is exposed on both front and rear seats and then concluded that it is not leather but some synthetic material. He does not say that seats as well as back rest of the seats was of synthetic material and not of the leather. Simply he refers to both sides of front and rear seats having synthetic material. It means, except both sides of the seats, rest of the seats was made of leather upholstery, if we believe his narration.

12. Ex.R1/3 is photocopy of seat cover of the car specifying that imported Italian leather is tailored in perfect fitting and finishing. Only sides of the seats were found by the said expert having synthetic material. Sides of the seats is of few inches only. This report, as such does not specify or prove to the hilt that upholstery of the seats was not of leather but was of some other synthetic material. Consequently, we can not take that some false representation was made by opposite party no.2 while selling the vehicle in question to the complainant. Complainant before taking delivery of the vehicle had a test drive and also minutely examined the vehicle, as per evidence in the shape of affidavit of Sh. Gagandeep Singh Swani Managing Director of opposite party no.2. Though complainant has also brought on record papers Ex.C.9 taken from Google Search dealing with subject of upholstery. In these papers upholstery is defined as under:

“There are essentially two zones: “contact areas” i.e. seats, arm rests, vertical seat backs and rolls, and” on-contact areas” e.g. outside arms and back. Furniture should only be described as “leather” if both the “contact” and “non-contact” areas are leather.

Where only the “contact areas” are leather then the furniture should not be described as “leather” unless the description “leather chair with non leather areas” is used.



13. Bare look of the definition of upholstery reflects that it had two zones “contact areas”, which means seats, arm rests, vertical seat backs and rolls. Whereas “non-contact areas” is specified as outside arms and back. Further recorded that furniture should be described as leather if both contact and non contact areas are of leather

14. Consequently, if upholstery of the car was not entirely of leather as represented, having seats and back of the leather, but only sides of some synthetic material, we feel that no misrepresentation was made by opposite party nor they duped the complainant. Hence, finding no merit, the complaint is dismissed. Parties to bear their own costs. Copy of the order be made available to the parties free of costs. File be completed and consigned to record.

Subject: Fraud certificates shown during purchase of four wheeler from Maruti
True Value
Sir,
I had purchased an Alto LX-2003,Reg. No-WB-02R-5759 from Maruti True Value
,Bhandari Automobiles Pvt.; Ltd, Howrah,NH-6,Nibra,Salap-2,West Bengal. Value of the
car was Rs. 150000.00 including all RTO formalities. I was given insurance and other
copies for driving onroad during purchase and told that soon they will complete RTO
Formalities and get the papers registered by my name. Accordingly I believed .But
till date I didn’t get the papers in my name. The car is under my custody but
registration is under different name.Now they are saying that the car dosen’t have
NO OBJECTION CERTIFICATE as first owner of the car (Who sold it to Maruti True
Value) is defaulter to the financer of the car. Hence they are not able to produce
all documents to the RTO for registration. Everytime whenever contacted they are
lying me.
Under this circumstance I am forced to consult consumer court and drag Maruti True
value to consumer court.
Please help me.


PULAK KUMAR BERA
Senior Geophysicist(Surface),
MARINE GEOPHYSICAL OFFICE,
5th Floor,'PRIYADARSHINI Building',
ONGC LTD.,
Eastern Express Highway,
Sion(E),Mumbai-400022.
Mob:+91-9051165301/9674109041(Kolkata)
+91-9969224599(Mumbai)
Res:033-65116758

Hi

On 27th Nov 2009 I purchased Maruti Suzuki Ritz VXi from RNS Motors,
Yesvantpur, Bangalore (Reg No. KA 04 MG 6794). Its only 3 days and the car
has developed door noise and brake noise. On contacting Mr. Sudhakar in RNS
Motors Yesvantpur, he initially failed to acknowledge the problem. Later on
works manager's direction he tried to fix up the problem but could not solve
the it.

On 30th Nov 2009 I took the vehicle to RNS Motors again on General Manager's
direction for inspection. The pre-delivery manager tried to solve the
problem but all in vain. Still now all the problems are existing and RNS
motors technicians are unable to rectify the problem.

Not only this, I gave the car for sunfilm coating pre-delivery. The work
done is horrible with full of air bubbles.
It seems the sales person and the service person are not bothered to help me
in this case. Its not possible for me to take the car to service station
everyday leaving my office work.
Please let me know how to escalate the problem and get it resolved.

Regards
Chiradip Ray

Present: Sri Manoranjan Hazra,President.

Rajalaxmi Das,Member.

C.C.No.126/2009

Rajalaxmi Mishra,

Plot No.3-C/281,Sector-9.

C.D.A,PO:Bidanasi,PS:Markat Nagar,

Dist:Cuttack. … Complainant.

Vrs.

1. The Chief General Manager(Service),

Maruti Udyog Ltd.,Palam Gurgaon Road,

Gurgaon.

2. Auhorised Signatory & Dealer,Sri S.Rath,

Jyote Motors Pvt. Ltd.,

462,Gautam Nagar,Cauttack-Puri Road,

Bhubaneswar.

3. Jyote Motors Pvt. Ltd.,

A/62,Nayapalli,Near C.R.P. Square,

Bhubaneswar.

4. M/s.Durga Service Centre,

Near Palamandap,PO:Arunodaya Market,

Badambadi,Cuttack-12. … Opposite Parties.

JUDGMENT DT.28.1.2010

Sri Manoranjan Hazra,President

Alleging deficiency in service against the Opposite Parties., the present complaint is filed.

1. The brief facts of the case of the complainant are that her husband purchased one Maruti Car bearing Regd. No.OR-05-Y-0101 from Opposite Party No.2 on 29.7.06 on exchange offer basis and the warranty period was for 24 months or 40,000 K.Ms whichever is earlier. After such purchase, the said vehicle covered only 17,845 K.Ms when the warranty period was to be lapsed on 29.7.2000. While the matter stood thus, during July,08 the left side front shaft broke. So on 8.7.08 he informed the mater to Opposite Party No.2 who assured to repair the same 3 to 4 days thereafter but the same was not done. Again on 12.7.08 the complainant went to Opposite Party No.2 but the same was also deferred and lastly on 18.7.08 the complainant went to the Opposite Party No.2 but to no effect. So ultimately the complainant got the vehicle repaired by Opposite Party No.4 on 23.7.08 i.e. 6 days prior to the date of expiry of the warranty period and the complainant paid the bill amount as per Annex-2. After making such payment to Opposite Party No.4, the husband of the complainant on 7.1.09 issued a legal notice under Annex-3 to Opposite Party No.2 claiming a sum of Rs.50,000/- including the cost of repairing. As no payment was made by the Opposite Party No.2 inspite of receipt of the said notice, the complainant filed this complaint claiming Rs.40,000/- towards mental torture ,Rs.2000/- towards advocate’s fee and Rs.5450/- towards repairing cost etc making a total sum of Rs.50,000/- as because the Opposite Parties.1,2 & 3 committed deficiency in service by not repairing the shaft of the vehicle during the validity of the warranty period.

2. Opposite Party No.1 filed its version stating that the case is not maintainable against it because it is only the manufacture and whatever has happened with the vehicle, it is no way concerned, as such prayed for dismissal of the complaint.

3. Opposite Party No.2 filed its version alleging interalia that the present complaint is not maintainable because the complainant is not a consumer as defined U/S.2(1)(d) of the Consumer Protection Act, this Forum has got no territorial jurisdiction to decide the complaint on the other hand it is stated that the complainant never approached them on 8.7.08,12,7,08 or on 18.7.08 for repairing the damaged shaft of the vehicle in question except getting the vehicle serviced on 29.8.06 and thereafter no complaint was made with them regarding defect of the shaft of the vehicle in question and lastly, the Opposite Party No.4 is neither an authorized service centre nor an authorized dealer and is also not authorized to remove the manufacturing defect as alleged. As such Opposite Parties. 2 & 3 are no way liable nor have committed any deficiency in service as such prayed for dismissal of the complaint.

4. Opposite Party No.4 filed its version admitting the fact that the vehicle was repaired by it and received the amount under Annex-2 as such no deficiency in service have been committed by it and accordingly prayed for dismissal of the complaint against it.

5. After hearing, the learned counsel for the parties, going through the respective pleadings and the documents produced on behalf of the complainant, we find that there is no dispute raised by the Opposite Parties regarding the breaking of the front side shaft of the vehicle in question in the month of Muly,08 On the other hand it is the specific case of the Opposite Parties. 2 & 3 that the vehicle was never brought to them on 8th,12th and 18th of July,08 for repair. The complainant could not produce any documentary evidence to show that on such dates, the vehicle was taken to Opposite Parties. 2 & 3 but they refused to repair the same. Admittedly the vehicle was repaired by Opposite Party No.4 and received the amount under Annex-2. It is contended on behalf of the Opposite Parties. 2 & 3 that Opposite Party No.4 is neither an authorised dealer nor an authorized repairer of Opposite Party No.1. Therefore whatever amount that have been received by Opposite Party No.4, for that Opposite Parties. 2 & 3 are not liable to pay the same to the complainant along with compensation etc. The service book issued to the complainant was produced before us during course of argument. From the said service book, we found that Opposite Party No.4 is an authorized service centre of Opposite Party No.1. According to Opposite Party No.4 it has received Rs.4,100/- as against Rs.5450.24p as per Annex-2. Payment of such amount of Rs.4,100/- by complainant to Opposite Party No.4 is also not disputed. Therefore the Opposite Party No.4 being an authorized service centre of Opposite Party No.1, having repaired the vehicle and received the amount as against the same, there is no deficiency committed by Opposite Party No.4. Therfore, we having already come to a conclusion that complainant have failed to establish that the vehicle was taken to Opposite Parties. 2 & 3 on 3 occasions, for the ends of justice while allowing the complaint petition, we direct Opposite Party No.2 to pay a sum of Rs.4,100/- to the complainant towards repairing charges though no deficiency in service has been committed by them. We further hold that the complainant is not entitled for any amount as claimed except Rs.4,100/-. Opposite Party No.2 is to pay the said amount within one month from the date of this order.



Judgment pronounced in the open Forum on this the 28th day of January,2010 under the seal and signature of this Forum.

consumer case(CC) No. CC/08/277

PJ. Joseph
...........Appellant(s)

Vs.

Sreemon, Shijo
...........Respondent(s)


BEFORE:
1. Bindhu M Thomas
2. K.N Radhakrishnan
3. Santhosh Kesava Nath P


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




ORDER


THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC. No. 277/2008
Saturday, the 30th day of January, 2010.

Petitioner : P.J. Joseph
Pazhayakalayil House,
Mannar, Poozhikol P.O
Kaduthuruthi,
Vaikom.
(By Adv. Avaneesh V.N)
Vs.
Opposite parties : 1) Jomon,
2) Shijo,
Proprietors, Mauti Land,
Maruti Service Centre,
Opp. Side of the Govt. School
Kaduthuruthi P.O
(By Adv. Jolly Joseph)
O R D E R
Sri. Santhosh Kesavanath P., President.

Case of the petitioner’s is as follows:
Petitioner entrusted his Maruthi 800 car bearing registration No. KL 2 E 6286 to the opposite party for repairing. Opposite party at the time of entrustment agreed that entire maintenance work will be completed within one month. Opposite party return back the vehicle after maintenance only after six months. Opposite party claimed an amount of Rs. 52310/- as maintenance charges . According to the petitioner, opposite party had not replaced the parts as per detailed bill issued by the opposite party to the petitioner. Further more the replaced parts were not shown to the petitioner at the time of return of the vehicle back. Petitioner had to spent some more amount for repairing the vehicle by entrusting it to another work shop. Petitioner filed a complaint to the Kaduthuruthi Police Station for the cheating committed by opposite party. According to
-2-
the petitioner the act of the opposite party is a deceptive practice. So, petitioner prays for a direction for refund of Rs. 16,000/- and also he claims cost and compensation.
Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party bills were issued legally at the time return of vehicle. They contented that due to accident vehicle was become useless. Vehicle was towed by the opposite party from the place of accident to the work shop and as such an amount of Rs. 3,000/- was charged to the petitioner as toying charges and labour charges. According to opposite party they never promised to complete maintenance work for an amount of Rs. 20,000/-. Opposite party contented that bills for Rs. 52644/- given to the petitioner for maintenance charges is legal and the petitioner is liable to pay the balance amount of Rs. 21,644/- to the opposite party. So, they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs.
Evidence in this case consists of the affidavit filed by both parties and Ext. A1
to A8 documents on the side of the petitioner and Ext. B1 and B2 documents on the side of the opposite parties.
Point No. 1
Opposite party in paragraph ‘6’ of their affidavit avered that an amount of Rs. 52624/- is due to them as maintenance charges. Opposite party produced quotation and bill Dtd: 5..9..2008, said document were marked as Ext. B1 and B2 series documents.
-3-
As per Ext. B1 & B2 the total amount will come to Rs. 72,488 Even though the opposite party has a definite case that some of the spare parts were purchased and replaced. But no such bills were produced. According to opposite party vehicle was entrusted to the petitioner after repairing on 3..6..2008. But Ext. B1 and B2 series documents are Dtd. 5..9..2008. So, inference that can be drawn is that Ext. B1 and B2 were subsequently fabricated documents. Petitioner produced a copy of the petition filed by the opposite party to the Chairman Vaikom Taluk Legal Service Committee. Said document is marked as Ext. A7. From Ext. A7 it can be seen that the opposite parties demand with regard to maintenance of the car is Rs. 43,000/-. So, from opposite party’s version, counter affidavit and evidence adduced it can be seen that opposite party has no
consistant case with regard to the cost of maintenance . So, in our view opposite party adopts unfair method and deceptive practice . So, point No. 1 is found accordingly.
Point No. 2
In view of finding in point No. 1, petition is allowed and the petitioner is entitled for relief sought for. In the result the opposite party is ordered to pay the petitioner an amount of Rs. 15,000/- for the unfair trade practice adopted by the opposite party. Petitioner is entitled for an amount of Rs. 1,000/- as cost of proceedings. Opposite party is further ordered under section 14 (6) of the Consumer Protection Act 1986 to discontinue the unfair trade practice and not to repeat the same. The order shall be complied with within 30 days of receipt of this order.
Dictated by me transcribed by the Confidential Assistant corrected by me and

i have booked swift vdi white color with berkeley automobiles ltd. plot no. C-107 industrial area ph