Haryana

Panchkula

CC/116/2018

RAMAN ANAND - Complainant(s)

Versus

M/S EM PEE MOTORS LTD & ANR. - Opp.Party(s)

Sanjiv Sharma,Ankita Malhotra,Gurshabad Sandhu

27 Jan 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

Raman Anand son of Late Sh. Chaman Lal Anand, aged 72 years and resident of H.No.333, Mansa Devi Complex, Sector-4, Panchkula.

                                                                           ….Complainant

Versus

1.     M/s Em Pee Motors Ltd., Pioneer Toyota, 71, Industrial Area, Phase-1, Panchkula.

2.     Toyota Kirloskar Motor Private Limited, Plot No.1, Bidadi Industrial Area Ramanagara Taluk, Banaglore Rural District, Karnataka.

….Opposite Parties

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

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

For the Parties:   Ms. Ankita Malhotra, Advocate for complainant.   

                        Sh. S.R.Bansal, Advocate for OP No.1.

Sh. Sanjeev Sharma, Advocate for OP No.2.

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that the complainant is the registered owner of the Toyota Corolla (hereinafter referred to as the ‘car’) and the car bears registration no.HR-03-M-2468. He has been using the same for his and his family’s personal use since the year 2011. On 11.12.2017, the complainant alongwith his wife was coming from Delhi to Chandigarh on the car and stopped at Walmart Zirakpur for making some purchases. After about half an hour, when he tried to start the car, it did not start. After two more tries, he stopped the cranking and dialed the Road Side Assistance service of Toyota at around 3:15p.m. The complainant’s request was registered as complaint no.X117318862IND for which he also received a message on his phone. The complainant  was asked  to make the payment of Rs.826/- as he was not having the access to internet at that time therefore,  the complainant called his son Sh. Gagan Anand  who further on behalf of the complainant facilitated  the payment through his credit card using the online payment services as directed in the message. Approximately after30mintues, the Technician/mechanic named Avtar Singh came on the spot. After inspecting the car for about an hour the technician failed to start it. He told the complainant that there was  a major fault in the car and it need to be taken to the Workshop of OP No.1. As advised the complainant again dialed Toyota Road Side Assistance and with no other option left, complainant was asked to pay Rs.2,950/- for availing towing service as he  was not having the access to internet  at that time again his son facilitated  the payment through his credit card. At around 6:30 p.m., the Crane of the OP no.1 reached the spot to tow the car and another technician named Azam Rana filled a vehicle condition report form and it signed from him. On the next day i.e. 12.12.2017, the complainant visited the workshop and he was informed that starting problem was due to un-cleaned battery terminals. He was also informed that he need to pay another sum of Rs.295/- for vehicle check-up. Being annoyed at the unprofessional approach of the OPs, the complainant on 12.12.2017 called Toyota Road Assistance Service number to register his grievance but the OPs lingered the matter on one pretext or the other. The complainant complained about the unprofessional approach of the OPs and asked for the refund of Rs.2,950/-, Rs. 826/- and Rs.295/- which he was made to pay because of the unprofessional and casual approach of the OPs and its technician but no concrete solution was suggested by them. The complainant sent e-mail on 22.12.2017 at

2.             Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no jurisdiction; the complaint is hopelessly time barred; complainant does not fall under the definition of consumer and no cause of action. On merits, OP No.1 stated that the car was out of warranty because the vehicle is 07 years old  and the car had run more than two lakh Kms as on date and the complainant is bound to pay Rs.2,950/-, for towing charges and Rs. 295/- for vehicle check-up charges were not refundable. Further, it is stated that the car was properly attended to the entire satisfaction of the complainant. There is no question of any imperfect or inadequate services.  

                Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no jurisdiction; the complaint is hopelessly time barred; and no cause of action. On merits, OP No.2 stated that the car was purchased in the year 2011 from OP No.1 and the alleged incident occurred on 11.12.2017. The car of the complainant stopped and the Road Side Assistance team was unable to rectify the same on the spot and the vehicle was towed to the workshop of the OP No.1. The defect was regarding the battery terminals of the car. It is pertinent to mention here that when the defect in the vehicle cannot be rectified on the spot, the RSA has to take the vehicle to the concerned workshop of the dealership and the payment of transportation of the vehicle is to be borne by the customer. Further, the vehicle of the complainant was not covered under Toyota RSA program and the customer availed RSA Service to toe the vehicle to the dealership and thereafter, the customer registered in RSA on the next day i.e. 12.12.2017 and the RSA program starts on 14.12.2017 therefore, on the day of occurrence i.e. 11.12.2017, the customer was to bear all the expenses for toeing and repairing of his vehicle and moreover, the vehicle was out of warranty given by the manual. Also, it is submitted that as per the Standard Operation procedure in RSR cases, technician can only provide jump start/Flat Tyre change/Fuel service and they are not authorized to check the vehicle in case vehicle does not start as it may further lead to consequential damages. The complainant has not filed any expert or cogent evidence in support of his contentions. Hence, there is no delay in service to the complainant. Thus, there is no deficiency in service on the part of the OPs No.1 & 2 and prayed for dismissal of the present complaint.

3.             Replication to the written statement of the OPs was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.             The learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP No. 2 has tendered affidavit Annexure R2/A alongwith documents Annexure R2/1 & R2/2 and closed the evidence. The evidence of the OP no.1 was closed by court order dated 23.10.2019.

5.             We have heard the learned counsel for both the parties and gone through the entire record including the written arguments filed by the learned counsel for complainant, minutely and carefully.

6.             It is evident that the Toyota Corolla car bearing no.HR-03-M-2468 did not start upon ignition on 11.12.2017 on account of certain defects in its battery. Upon lodging the complaint no.x117318862IND by the complainant with the Ops and as also making a payment of Rs.826/- through online, a technical person, namely, Sh. Avtar Singh was deputed by the OP No.1 to visit the site and rectify the defects in the aforesaid vehicle. However, upon the failure of the aforesaid technical person to rectify the defects in the vehicle and on his advice, the vehicle was taken to the premises of OP No.1 after towing it. On 12.12.2017, the vehicle was checked and its starting problem was removed by cleaning the terminal of the batteries. The grievances of the complainant are with regard to the payment of towing charges amounting to Rs. 2,950/- as well as labour charges of Rs.295/-. It is the case of the complainant that there was no major fault in the vehicle and as such, there was no necessity of taking the vehicle to the premises of the OP No.1. It is contended that the cleaning of the terminal of the batteries could have easily been done at the site itself instead of taking the vehicle to the premises of the OP No.1 and thus, the complainant could have been saved from the hardships of taking the vehicle to the work-shop of the OP No.1. It is contended that incompetent, inefficient and unqualified person was deputed by the OPs for the removal of the defects of the vehicle. It is further contended that if the technician had inspected the car diligently or the technician had just opened the bonut of the car he could have easily detect the defects and made the car functional at the site itself and thereby the physical trouble to the complainant and his wife could be avoided.

7.             The OP No.1 has resisted the claim of the complainant taking the preliminary objections that there exists no consumer dispute between the parties and that no cause of action has accrued against the OPs.

                On merits, it is contended that the vehicle was out of warranty which had already covered 2,00,000km on the date of incident. The learned counsel stated that the complainant was bound to pay Rs.2950/- for towing charges as well as Rs.295/- for repair charges.

                The OP No.2 has also taken the similar objections while resisting the claim of the complainant. The territorial jurisdiction of this forum has also been disputed. On merits, it has been contended that the vehicle of the complainant was not covered under the road side assistance programme as the said policy was availed by the complainant only on 12.12.2017 which came into force on 14.12.2017. The complainant has not submitted any expert report in support of his contentions. It is stated that the technical person had rightly advised the complainant for towing and thus, no lapse can be attributed on its part. It is stated that the road side assistance was duly provided to the complainant and it was explained to the complainant that vehicle had to be taken to the premises of the dealer to which the complainant had given his consent and thus, it is contended that no deficiency can be attributed on the part of OPs.

8.     First of all, we take up the preliminary objections for discussion:-

1. Admittedly, the complainant has paid an amount of Rs.826/- to the OPs for availing the road side assistance as evident from Annexure C-2(colly) and thus, there is no doubt about the status of the complainant as consumer. The plea with regard to the territorial jurisdiction is also rejected in view of the fact that the OP No.1 reside in territorial jurisdiction of this forum where the defects of the car were removed.

Now, coming to the merits of the case, it is an admitted factual position that no major problem in the engine of the car was found. It is also an admitted factual position that starting problem of the car occurred only because of non cleaning of the terminal of the batteries(Annexure C-5). It is not the case of the OPs that cleaning of the batteries was not feasible at the site of incident. It is also not the case of the OPs that the starting problem occurred because of any major faults in the vehicle.

9.                On the other hand, we find a specific and categorical version of the complainant as contended in para no.7 of the complaint supported with corresponding para of his affidavit(Annexure C-A) that the technical person, namely, Sh.Avtar Singh, who was deputed by the OPs to visit the site to rectify the defect in the vehicle, did not check the vehicle diligently. In this regard, the OPs have failed to rebut and controvert the specific and categorical assertions of the complainant with regard to the inefficient and casual approach of their mechanic, namely, Sh. Avtar Singh by way of adducing his evidence in the shape of affidavit on record.

10.              In our considered opinion, the technical person, namely, Sh. Avtar Singh could have easily detect the cause of starting problem of vehicle, had he checked the vehicle seriously and diligently. The plea taken by the Ops that the complainant was not entitled to the road side assistance is also not tenable because the complainant had made the payment of Rs.826/- to the OPs for availing the said facility. In our opinion, the starting problem of the car could have been rectified at the site itself by cleaning the battery terminal without sending the vehicle to the premises to the OP No.1. The technical person wrongly advised the complainant that there was some major fault in the vehicle. In view of the aforesaid discussion, we find that the complainant was justified while seeking the refund of Rs.2,950 and Rs.295/- through his e-mail and local notice but the Ops did not approach him.

11.            The Ops failed to pay his genuine grievances compelling him to invoke the jurisdiction of this Forum which further added to the mental agony and harassment to the complainant. In view of the aforesaid discussion, we conclude that there has been lapse and deficiency on the part of OP No.2 while delivering the services to the complainant; hence, the complainant is entitled to relief. The present complaint is dismissed qua OP no.1.

12.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP No.2:-

1. To pay an amount of Rs.2,950/- i.e. towing charges to the complainant along with interest @ 9% per annum from the date of filing of the complaint till its realization.
2. To pay an amount of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,000/- as cost of litigation charges.

13.            The OP No.2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OP No.2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:27.01.2020

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

Note: Each and every page of this order has been duly signed by me.

                                         Satpal,                              

President