Complaint filed on: 19-08-2011

                                                      Disposed on: 09-03-2012

BEFORE THE BANGALORE IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.1498/2011

DATED THIS THE 9^TH MARCH 2012

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.GANGANARASAIAH, MEMBER

SMT.ANITA SHIVAKUMAR.K., MEMBER

Complainant: -             

                                                Mr.Oliver Kumar

S/o. Y.N.S.Chelladorai,

Aged bout 53 years,

Residing at No.529, 9^th cross,

7^th block, Jayanagar,

Bangalore-82

V/s

Opposite parties: -                                             

1.     Honda Siel Cars India Pvt. Ltd,

Reptd by its Managing Director,

Having its registered office

At sector 40/41, Plot no.A1,

Sarjapur Kasna Road,

Greater Nodia Industrial

Development area,

Gautam Budh Nagar,

Noida, Uttar Pradesh

2.     Dakshin Honda  (DH)

Elite Automobiles Pvt. Ltd,

Khata No.2/97, Sy.No.97/1A,

Singasandra village,

Hosur Road, Bangalore-68

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs no.1 and 2 under section 12 of the Consumer Protection Act’ 1986, praying to pass an order, directing the OP no.1 to pay a sum of Rs.54,790=00 towards difference in the value of the vehicle, and a sum of Rs.18,000=00 towards refund of amount paid to the service provider, and a sum of Rs.5,00,000=00 towards compensation for loss, mental agony and hardship, and a sum of Rs.39,199=00 towards pre-closure of car loan availed from the HDFC alongwith interest and cost.

2. The brief facts of the complaint can be stated as under.

The complainant is a retired army officer and is currently employed in a private organization. The complainant purchased a light motor vehicle manufactured by the 1^st OP bearing model Honda City ZX/GX/MT, manufactured in Sept. 2007, bearing chassis no.MAKGD852J7N40416, engine no.L15A30127691. The said vehicle was purchased from the dealer of the 1^st OP at Bangalore who being the 2^nd OP i.e. Dakshin Honda. Consequent upon the purchase, the vehicle was registered with the transport department, Govt. of Karnataka at the office of the Regional transport office, Jayanagar, Bangalore on 12-10-2007 and the vehicle was allotted registration no.KA-05-ME-9175. The complainant purchased the vehicle by availing loan from HDFC with the intention of using the same for use by himself and his family members. The purchase of the vehicle was a lifetime buy for the family of the complainant. The cost of the vehicle was also very huge and to the tune of Rs.8,39,211=00. On 14-8-2009 at 9.30 a.m. the complainant delivered the vehicle for general check up and servicing to the authorized service agent of the OP no.1 namely OP no.2, the service check sheet dated 14-8-2009 is issued by the service provider. On 17-8-2009, the complainant was shocked when the service provider informed him that the vehicle which was parked at the basement of the workshop got submerged due to sudden flooding because of heavy rain between late night of 16-8-2009 and early morning of 17-8-2009, and due to such submerging the vehicle got heavily damaged and the extent of damage was so severe that the vehicle was no longer capable of use and ceased to be worthy for driving. The complainant was totally shattered due to the sever damage caused to the vehicle as he purchased the vehicle with lots of hardship and intended to have the quiet and uninterrupted enjoyment of the same. The damage to the vehicle caused a lot of mental agony to the complainant besides causing grave financial loss to the complainant. This suffering was compounded by the fact that the complainant had no alternative car and hence his transport and conveyance needs were impeded. At the time the damage was caused, the vehicle was insured with insurer namely the reliance general insurance company limited vide insurance policy no.1405782311003092 dated 8-10-2008 and the insurance was valid for a period of one year from 8-10-2008 to the midnight of 7-10-2009. The complainant approached the insurer on 17-8-2009 with a request to compensate him for the los caused. The insurer advised the complainant to explore possibility of obtaining compensation from the service provider under the insurance policy obtained. Thereafter, the complainant requested the service provider to compensate him for the loss caused, the service provider agreed to do whatever they were legally bound to do and agreed to keep the complainant informed about the status. After repeated follow up including a personal meeting with the officials of the service provider at their office on 28-8-2009, the service provider agreed to deliver an older model of a vehicle in exchange for the damaged vehicle of the complainant. The service provider agreed to deliver the older vehicle on 2-9-2009 after carrying out the agreed upon rectifications observed by the complainant and the complainant agreed to pay the service provider a sum of Rs.18,000=00 after taking delivery of the older model. However the service provider did not deliver the older model on 2-9-2009 as agreed. After further follow up the service provider agreed to hand over papers of the older model by 14-9-2009 duly transferred to the complainant and the service provider finally handed over to the complainant, possession of the older model bearing vehicle registration no.KA02MA8771 on 16-9-2009, though the service provider agreed to hand over papers of the replaced car by 14-9-2009 duly transferred to the complainant. In the meanwhile, on 5-10-2009 the complainant met the official of the OP no1. During the meeting the complainant voiced his various grievances and requested the official to take immediate steps to ensure that the complainant is compensated for the loss suffered, in their mail dated 5-10-2009. The OP no.1 informed the complainant that they had advised the service provider to get in touch with the complainant and address his concerns. As the registration certificate for the older model was not yet transferred to the complainant, he also issued a mail on 5-10-2009 requesting the OP no.1 to intervene in the matter and ensure that the registration certificate in respect of the older model is transferred to the complainant without any delay and the amount of Rs.18,000=00 paid to the service provider is refunded besides. The service provider informed the complainant, vide their mail of the 4-11-2009 that the insurance formalities would be completed within 10 days and as soon as they get clearance from the insurer, he will transfer the older vehicle to the complainant. In spite of the above efforts and endeavours on the part of the complainant, the 1^st OP took no action to address the grievances of the complainant. Though it was lawfully bound to remedy the same, the complainant had to devote valuable time and face avoidable hardship, mental torture. The complainant paid an amount of Rs.2,25,000=00to the service provider which was towards payment for the older model Pursuant thereto the service provider transferred the registration certificate in respect of the older model in favour of the complainant and as on date the OP has failed to address the question of compensation for loss, mental agony and other distress caused to the complainant. The service provider is an agent of the OP no.1 and it is incumbent upon the OP no.1 holding a brand name of repute and esteem to properly regulate the appointment of its service provider. The 1^st OP has failed in ensuring and implementing the necessary safeguards and it is primarily responsible to the loss caused to the complainant. The complainant has received the delivery of an old vehicle in lieu of the new vehicle which was totally damaged due to no fault of the complainant. To obtain this old vehicle the complainant had to suffer grave hardship and spend valuable time and efforts. Besides the complainant is entitled to additional compensation for loss and mental agony, hence, the present complaint is filed praying to pass an order, directing OPs to pay Rs.53,790=00, Rs.18,000=00 towards refund of amount paid to the service provider, and Rs.5,00,000=00 towards compensation and Rs.39,199=00 towards pre-closure of car loan alongwith interest and cost.  

          3. After service of the notice, the 1^st OP has appeared through his counsel and filed objection. The 2^nd OP did not appear before this forum, and he has been placed exparte

          The 1^st OP has filed his objection contending that the complainant did not have any dealings with the 1^st OP except that the car being manufactured by the 1^st OP and the same was purchased by the complainant through its dealer herein and the ancillary services such as warranty and servicing the car was provided by the 2^nd OP. It would have only in the case of any manufacturing defect that the 1^st OP was required to meet its obligations as per the terms of the warranty. Since the present complaint does not pertain to any manufacturing defect that the OP no.1 cannot be fastened with any liability for the acts of commission and omission of the other OPs. So the present complaint deserves to be dismissed. The present complaint has been filed with ulterior motives, and the present case fall under force majeure and that literally means greater force. This clause excuses a party from liability if some unforeseen event beyond the control of that party prevents it from performing its obligations under the contract. Typically, force majeure clauses cover natural disasters or other Acts of god. The present complaint is not maintainable under the provisions of CP Act for the reason that the car has been purchased in the name of Oliver Kumar for commercial purposes to accelerate the growth and expansion of the complainant’s already existing profession. The car is an asset to the same has direct nexus with the profit and loss of the profession of the complainant. The complainant be directed to file the accounts for the year and the same will reflect the veracity of the facts. Section 2 (1) (d) of the Act excludes from its ambit if any goods purchased for commercial purposes and a purchase of goods utilizing goods for commercial purposes. Therefore, in the light of the aforesaid definition and it is apparent that the complainant does not fall within the ambit of the term Consumer. The present complaint is bad in law since the bank being the owner of the vehicle has not been impleaded. So the complaint is liable to be dismissed for non-joinder of the parties. The complainant failed to disclose any defect or deficiency in service or unfair trade practice under section 2 (1) (f) (g) and (r) of the said Act. Since no cause of action has arisen, so on this ground alone the present complaint deserves to be dismissed. The complaint involves several disputed questions of fact and law, so the complaint cannot be adjudicated in summary proceedings and only ordinary civil courts have jurisdiction to decide the present complaint, so the complaint is totally misconceived and the same deserves to be dismissed under section 26 of the CP Act. It is not denied that the vehicle which was parked in the basement was submerged due to sudden flooding because of heavy rain between late night of 16-8-2009 and 17-8-2009 early morning, and due to submerging the vehicle got some damages. It is denied that the vehicle was no longer capable of use and ceased to be worthy for driving. It is denied that the damage to the vehicle caused a lot of mental agony to the complainant, the vehicle was insured with the Reliance General Insurance Company Ltd till midnight of 7-10-2009.It is denied that the insurer advised the complainant to explore possibility of obtaining compensation from the service herein OP-2 under the insurance policy obtained, and the complainant requested the service provider to compensate him for the loss suffered as alleged. All the terms agreed between the parties were not known to the OP no.1, so the OP no.1 should be deleted from the array of parties in the present complaint. OP no.2 is an independent entity and have principal to principal relationship with the OP no.1, so the OP no.1 cannot be blamed for any hardship and mental torture. It is denied that the service provider is an agent of the OP no.1. It is denied that the complainant is entitled to additional compensation and the 1^st OP has committed any deficiency in service. It is pertinent to mention that the complainant agreed to trade in his vehicle with another old vehicle from OP no.2 and OP no.1 is not a party to the transactions therefore impleading the OP no.1 in the present case was totally uncalled for. Therefore there is no cause of action to file this complaint against the OP no.1. Hence, it is prayed to dismiss the complaint with exemplary cost.

4. So from the averments of the complaint of the complainant and objections of the OPs, the following points arise for our consideration.

1.                           Whether the complainant proves that, the 1^st OP has failed in ensuring and implementing necessary safeguard and he is primarily responsible to the loss caused to him and there is deficiency in service?

2.                           If point no.1 is answered in favour of the complainant, how much damages the complainant is entitled to and from whom he can recover?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Affirmative

          Point no.2:  The complainant is entitled to recover a

                             sum of Rs.53,790=00, Rs.18,000=00,

                             Rs.13,199=00, and Rs.10,000=00 with 

Interest at the rate of 10% per annum

alongwith cost of Rs.2,000=00 from 

OPs no.1 and 2.     

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence dated 10-10-2011 and produced 14 documents with list dated __8-2011, and 4 documents with list dated 11-8-2011, he has filed his further affidavit also. On the other hand, one Amit Sinha, Legal Manager working in the 1^st OP has filed his affidavit on behalf of the 1^st OP and produced no documents. We have heard the arguments of both sides.

          7. We have gone through the oral evidence of both parties and documentary evidence of the complainant. One Oliver Kumar who being the complainant has stated in his affidavit, that he purchased Model Honda city from the dealer of OP no.1 who being the OP no.2 vide invoice no. 1935 dated 12-10-2007 for Rs.8,39,211=00 and that vehicle was registered at the office of the RTO, Jayanagar, Bangalore on 12-10-2007and that vehicle was allotted registration no.KA-05-ME-9175 and he purchased the vehicle by availing loan from HDFC for his use and his family members. On 14-8-2009 he delivered the said vehicle for general check up and servicing to the OP no.2 who being an authorized service agent of the 1^st OP. On 17-8-2009 he was shocked when the 2^nd OP informed him that the vehicle which was parked at the basement of the workshop got submerged due to sudden flooding because of heavy rain between late night of 16-8-2009 and early morning of 17-8-2009. Due to such submerging the vehicle was heavily damaged and the extent of damage was, so severe that the vehicle was no longer capable of use and ceased to be worthy for driving, and he was totally shattered due to the severe damage caused to the vehicle, and damage to the vehicle caused a lot of mental agony besides causing grave financial loss to him, due to that his transport and conveyance needs were impeded. At the time when the damage was caused the vehicle was insured with the Reliance General Insurance Company Limited, the insurance was valid for a period from 8-10-2008 to the midnight 7-10-2009, and he approached the insurer on 17-8-2009 with a request to compensate for the loss caused and insurer advised him to explore possibility of obtaining compensation from the service provider under the insurance policy obtained, and there after he requested the service provider to compensate him for the loss suffered and the service provider has agreed to do whatever they were legally bound to do and agreed to keep him informed about the status. The service provider agreed to deliver an older model of the vehicle in exchange for the damaged vehicle, on 2-9-2009 after carrying out the agreed upon rectifications observed by him and he agreed to pay a sum of Rs.18,000=00 to service provider after taking delivery of the older model and he paid Rs.18,000=00 to the service provider and the service provider agreed to hand over papers of the older model by 14-9-2009 duly transferred and the service provider finally handed over possession of the older model bearing registration no.KA02MA8771 on 16-9-2009. On 5-10-2009 he met the official of the OP no.1 and requested to take steps to ensure that he is compensated for the loss. On 5-10-2009 the 1^st OP told him that they had advised the service provider to get in touch with him and address his concerns, and he requested the OP no.1 to intervene in the matter and ensure that the registration certificate in respect of the older model is transferred in his name without any delay and the amount of Rs.18,000=00 which was paid to the 2^nd OP be refunded. But the 1^st OP did not take any action, he has also paid Rs.2,25,000=00 to the service provider towards payment for the older model and pursuant thereto the service provider transferred the registration certificate in respect of the older model on 31-5-2010. The service provider is an agent of the 1^st OP, it is the responsibility of the 1^st OP to ensure that their authorized agent having place appropriate and commensurate infrastructure which is free from risks and hazards including the hazard of submerging of vehicle. If these safeguard would have been effectively ensured and implemented by the 1^st OP before appointment of the service provider, it would have averted the disaster caused to his vehicle. So, the 1^st OP has failed in ensuring and implementing the necessary safeguards and is primarily responsible to the loss caused to him. So order be passed directing the 1^st OP to pay Rs.53,790=00 towards difference in the value of his vehicle, and the value of the older model as per the valuation document, and to pay Rs.18,000=00 towards refund of amount paid to the service provider, to pay Rs.5,00,000=00 towards compensation for loss and mental agony, and the closure liability incurred to the tune of Rs.39,199=00 towards pre-closure of car loan availed from HDFC Bank and cost of the complaint be awarded in the interest of justice.

          8. By reading the complaint and evidence of the complainant as mentioned supra, it is emerged that the complainant has given evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant one by one. The document no.1 of the complainant list being annexure-A is the copy of Tax Invoice of LMV vehicle purchased by the complainant from the dealer of the 1^st OP who being the 2^nd OP on 12-10-2007 for Rs.8,39,211=00. Annexure-B of the complainant list being the document no.2 is the copy of registration certificate given by the RTO, Jayanagar, Bangalore wherein it is stated that the LMV was purchased by the complainant and RC number given by RTO is KA-05-ME-9175. The document no.3 is the copy of service check sheet dated 14-8-2008 issued by the 2^nd OP for having taken delivery of the vehicle for general check up and servicing from the complainant, copies of photos of the vehicle showing the condition of damaged vehicle on account of submerging of the water. Annexure-E is the copy of insurance policy in respect of the said vehicle in the name of the complainant issued by the Reliance General Insurance for a period from 8-10-2008 to 7-10-2009. Annexure-F is the copy of e-mail letter dated 2-9-2009 sent by the complainant to the 2^nd OP and from that e-mail it is clear that the 2^nd OP has agreed to replace the Honda City vehicle with the older model available, and the complainant agreed for the same and that the older model must cover under comprehensive insurance and all its documents must be clear. The complainant is ready for making payment of Rs.18,000=00, after taking deliver of the car and the complainant requested the 2^nd OP to keep all the papers ready in respect of his Honda city car.  Annexure-G is the copy of acknowledgement from the 2^nd OP for having received Rs.18,000=00 from the complainant. Annexure-H is the copy of mails exchanged between the 1^st OP and the complainant dated 5-10-2009 and 3-11-2009, and these mails produced by the complainant made it clear that, the 1^st OP has also agreed to replace the older model and instructed the 1^st OP to keep in touch with the complainant. Annexure-K is the copies of proof of payments of Rs.2,25,000=00 made to the 2^nd OP by the complainant. Annexure-L is the copy of letter addressed to the 1^st OP dated 11-1-2011. Annexure-M is the copy of letter given by the 1^st OP to the complainant dated 25-1-2011 advising his dealer to get in touch with the complainant. Annexure-N are the copies of exchange letter between the complainant and the OPs no.1 and 2. Annexure-P is the copy of letter dated 25-3-2011 given by the complainant to the 2^nd OP stating that the handing over of the older model after making payment of Rs.2,25,000=00 and Rs.18,000=00. So he is entitled to receive the said amount and compensation as demanded in his letter dated 11-1-2011, and the 1^st OP has failed to consider his claim so he is constrained to proceed further in the matter. The document of the complainant’s second list dated 4-1-2012 is the copy of insurance policy motor vehicle for total value of Rs.5,78,680=00 for period from 4-9-2009 and 3-9-2010 and this policy was issued on 10-10-2009. The second documents of the complainant’s are the photos of inside portion of the car. The third document is the copy of letter for pre-closure of loan with the HDFC Bank. The fourth document is the copy of receipt of final payment of loan amount made by the complainant. As against these documents of the complainant as mentioned above, the 1^st OP has not produced any rebutal documents. So in the absence of producing any documentary evidence, the oral testimony of the 1^st OP denying the claim of the complainant cannot be considered. Having considered the totality of oral and documentary evidence of the complainant, it is no doubt true that the complainant had purchased LMV vehicle bearing registration no.KA-05-ME-9175 from the 2^nd OP who being an agent of the 1^st OP in the month of Oct.2007 for his own use and also use of his family members. When the said vehicle was given to the possession of the 2^nd OP for checkup and servicing the said vehicle was damaged extensively due to submerging of the water, and the 2^nd OP has come forward with a proposal of replacing with the older model and to that the complainant agreed for the same. But the 2^nd OP has collected Rs.2,25,000=00 and Rs.18,000=00 for replacement of the older model and accessories, but did not give service in time and made the complainant to suffer. The complainant has proved his case by producing clear and cogent documentary evidence that the OPs did not give service in time and there is deficiency in service on the part of the OPs no.1 and 2. The 1^st OP is the manufacturer of the vehicle, the 2^nd OP is an agent or representative of the 1^st OP, and the OPs no.1 and 2 have agreed to give timely service to the complainant by replacing with the older model duly insured, but they failed to do so in time. The 2^nd OP has collected the amount from the complainant for replacement and also towards accessories and there is deficiency of service on the part of both OPs no.1 and 2, as the OPs no.1 and 2 have failed to take steps towards safety of the vehicle of the complainant on the fateful day. So the complainant is justified in asking the damages from both OPs no.1 and 2. If we make calculation of difference in the value of the vehicle of the complainant and the vehicle of the older model, it will be of Rs.53,790=00 as calculated by the complainant. The complainant is entitled to recover of Rs.53,790=00 from the OPs towards difference in the value of his vehicle and the value of the older model. The complainant has paid Rs.18,000=00 to the 2^nd OP towards accessories. In fact, the 2^nd OP ought not have collected the said amount from the complainant towards accessories of the older model. So the OPs are liable to repay Rs,18,000=00 to the complainant, the complainant has paid Rs.39,199=00 towards pre-closure of the car loan availed from the HDFC bank and the OPs are liable to indemnify the amount of Rs.39,199=00. The complainant has asked Rs.5,00,000=00 towards mental agony and hardship etc. The said amount asked towards mental agony by the complainant appears to be excessive and exorbitant. So we would like to award nominal sum of Rs.10,000=00 to the complainant towards mental agony and hardship. The complainant is entitled the nominal cost of Rs.2,000=00. The OPs no.1 and 2 are jointly and severally liable to pay the said amount to the complainant with 10% interest per annum from 17-8-2009 till the date of realization and accordingly, we answer this point in a affirmative. In the result, for the forgoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is partly allowed. The complainant is entitled to recover a sum of Rs.53,790=00 towards difference in the value of vehicle, Rs.18,000=00 paid to the 2^nd OP towards accessories, Rs.10,000=00 towards loss and mental agony, and Rs.39,199=00 towards pre-closure of the car loan account. The OPs no.1 and 2 are jointly and severally liable to pay the said amount to the complainant with 10% interest per annum on the said amount from 17-8-2009 till the date of realization.

          The complainant is entitled to cost of Rs.2,000=00.   

          Supply free copy of this order to both parties.  

          Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 9^th day of March 2012.

MEMBER                 MEMBER                 PRESIDENT