Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party is a dealer of M/s. Honda Motors. The Complainant purchased a Honda City car and the warranty started on 12/12/2003 for a period of 24 months. The Complainant’s vehicle was parked by the side of the Complainant’s house and due to heavy floods on account of unprecedented rains on 26/7/2005 at Mumbai, the Complainant’s car was fully submerged in the water. The Complainant informed the Opposite Party to lift the car for repairs, it being during the period of warranty. However, there was no response from the Opposite Party. On persuasion, the Opposite Party picked up the car from the Complainant on 24/10/2005 and towed it to the service centre. Thereafter, the Complainant was expecting delivery of the car on repairs. However, again there was a delay in conducting the repairs to the car and giving delivery of the same. In the meantime, the Opposite Party informed the Complainant that it’s principal – the manufacturing company; has decided to give discount @ Rs.1,000/- per day from 10/10/2005 towards non-use of the car. There had been correspondence between the Complainant, on one hand and the Opposite Party, on the other. On 25/4/2006, the Opposite Party informed the Complainant that the car was ready for delivery, but on taking trial of the car, it was found that there was slight humming noise from the engine of the car. Again it was repaired and it resulted into delay in delivery of the car. [2] It is the case of the Complainant that the Opposite Party was negligent throughout the process of repairs of the car and initially the car was not lifted promptly for conducting the necessary repairs and even after picking up the car for repairs to the service centre, there had been an enormous delay in conducting the repairs and giving delivery of the car to the Complainant. The Complainant then, filed present complaint before this Forum on 1/7/2006, making allegations of deficiency in service on the part of the Opposite Party and sought direction as against the Opposite Party for giving delivery of the car in a duly repaired condition and to pay compensation in sum of Rs.3,00,000/-. Alternatively, the Complainant has sought direction as against the Opposite Party to give him delivery of a brand new car of the same make & model. [3] Pursuant to the notice of appearance issued by this Forum, the Opposite Party appeared and contested the complaint by filing its written version of defence and admitted that there had been some delay in picking up the car for repairs and taking it to the service centre and further admitted that there had been further delay in conducting repairs of the car and giving delivery of the same to the Complainant. Further, in its written version of defence supported by copies of correspondence exchanged between the parties, the Opposite Party has tried to justify delay in picking up the car from the Complainant and conducting repairs and giving delivery of the same to the Complainant. The Opposite Party has also taken stand that it has given discount of an amount in sum of Rs.1,33,000/-, as also, has waived an amount in sum of Rs.22,430/- against the total amount of repairs in sum of Rs.6,07,690/- and the balance amount has been received by the Complainant from the insurance company and thus, the Complainant has not sustained any financial loss. Thus, according to the Opposite Party, it is not guilty of deficiency in service. In the course of judgment, we will refer to various pieces of correspondence & communications exchanged between the parties to the complaint proceeding. [4] The Complainant has filed his rejoinder to the written version of defence, as filed by the Opposite Party. The Complainant has filed his affidavit of evidence, whereas the Opposite Party has produced on the record an affidavit sworn by its Assistant General Manager, by name – Mr. Amit Choudhary. Parties have also filed their respective written notes of arguments. [5] We have heard the learned advocates representing the parties to the complaint proceeding. [6] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [7] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party is guilty of deficiency in service on account of delay in conducting repairs to the Complainant’s car and giving delivery of the same? | NO | 2. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [8] There is no dispute between the parties to the complaint proceeding as regards the fact that the Complainant’s car was submerged in the flood waters on account of torrential rains on 26/7/2005, which affected the entire life of residents of Mumbai City. There is also no dispute about the fact that the Complainant had given an intimation to the Opposite Party on 30/7/2005 and a complaint bearing No.141 was registered at the end of the Opposite Party and there had been some delay in picking up the car as well as there had been some delay on the part of the Opposite Party in conducting repairs to the car. Now, the crucial question is as to whether the Opposite Party, by producing material, has justified the delay on its part in picking-up the car for repairs and conducting repairs of the same. [9] In paragraph (03) of the written version of defence as filed, the Opposite Party has stated that due to unprecedented and devastating rains on 26/7/2005, entire city of Mumbai was paralyzed and homes, business, establishments and motor-vehicles of thousands of ‘Mumbaites’ were submerged in the water, resulting into destruction and huge financial losses as well as causing great hardship to many people. It is further stated in paragraph (3-c) of the affidavit of written version of defence that in the first week of the month of Aug-2005, electricity and telephone facilities were restored to the service station of the Opposite Party. This shows that the entire functioning of the service station of the Opposite Party was paralyzed. In paragraph (04) of the written version of defence, it is further stated that about 1000 Honda vehicles were damaged due to the floods and the appointments for picking up the vehicles for repairs had to be rescheduled for want of manpower. These averments in paragraphs (03) & (04) of the written version of defence get support from a copy of a letter dtd.12/9/2005, which at Exhibit-A; and a copy of a letter dtd.14/9/2005, which is at Exhibit-B. In both these letters, it was explained by the Opposite Party that their establishment had virtually become non-functional due to lack of availability of the staff as well as electricity and telephone facilities. It was also informed to the Complainant that most of the spare-parts were not available and those spare-parts were sought on priority basis. Both these letters were issued by the Opposite Party to the Complainant in the month of Sept-2005 i.e. long prior to filing of present complaint. These letters justify the contention of the Opposite Party in the written version of defence that since the entire system had became paralyzed there was a delay on the part of the Opposite Party in picking up the car for repairs. The Complainant’s complaint was registered at Sr. No.141 and vide a letter dtd.5/9/2005, it was informed to the Complainant that the complaint had been received. [10] Then, in paragraph (07) of the written version of defence, the Opposite Party has explained that there was a delay in procuring spare-parts like ECM & EPS and the Honda vehicles do not require such parts to be replaced, but due to heavy floods and vehicles being submerged in the water, demand for such parts had increased to 2000 units. According to the Opposite Party, it had taken steps to increase number of shifts, mobilization of additional manpower and spare-parts were flown to the service centre from India as well as overseas. In the meantime, as a gesture of goodwill, the Opposite Party’s principal, by name – ‘Honda Motors’, had offered to its customers ‘Inconvenience Allowance’ in sum of Rs.1,000/- per day with effect from 10/10/2005 till such time their dealers complete the repairs of the vehicles. This version of the Opposite Party gets support from copy of the letter dtd.13/10/2005, sent by the Opposite Party to the Complainant, a copy of which has been produced on the record by the Complainant himself at Exhibit-I, page (43) of the compilation of the complaint. [11] The Opposite Party has admitted that the Complainant’s car was ultimately brought to the service station for repairs on 28/10/2005 i.e. after a period of three months of damage due to the rains. However, the above-referred events, which have been highlighted in the copies of the correspondence, referred to above, justify the delay on the part of the Opposite Party in picking-up the car of the Complainant to its service station for repairs. [12] On starting the exercise of conducting the repairs to the Complainant’s car, it was found by the Opposite Party that extensive repairs were required and it was estimated that the Complainant’s car would be repaired and fit for delivery to the Complainant on or about 15/1/2006. According to the Opposite Party, they had foreseen change in the schedule depending upon availability of spare-parts. These averments in the written version of defence get support from copy of a letter dtd.30/12/2005, which is produced on the record by the Opposite Party alongwith its compilation of written version at Exhibit-C, page (39). The Opposite Party had sought co-operation from the Complainant in view of magnitude of the disaster. By this letter, it was explained to the Complainant that the proposed date of delivery i.e. 15/1/2006 could be achieved depending upon availability of the spare-parts. [13] It is the case of the Opposite Party that after the car was repaired, it was informed to the Complainant over telephone on 20/2/2006 to come and take a test drive. It is further case of the Opposite Party, as articulated through averments in paragraph (10) of the written version of defence that before actual delivery of the car, the Opposite Party noticed some humming noise coming from the engine compartment and further check-up was carried out, which revealed that humming noise problem was related to engine bearing. That further delayed delivery of the car to the Complainant. Ultimately, on completing the repairs, the Opposite Party informed to the Complainant vide its letter dtd.11/3/2006 to take delivery of the car. A copy of the letter dtd.11/3/2006, at Exhibit-D, supports this version of the Opposite Party in its written version of defence. By the same letter, it was mentioned that the Complainant would get discount around an amount in sum of Rs.1,33,000/-. It appears that thereafter copies of the invoice and documents were sent to the insurance company to prepare a cheque towards reimbursement of cost of repairs. In the meantime, there had been an offer from the Opposite Party given to the Complainant to sell the car and valuation of the Complainant’s car as on 3/4/2006 was found an amount in sum of Rs.5,00,000/-. However, the Complainant refused to accept the said offer. It appears that this development also delayed the delivery of the car to the Complainant. [14] In the meantime, the Complainant filed present with the allegations of deficiency in service on the part of the Opposite Party on account delay in delivery of the car. [15] It appears that in the meantime, there had been some problem about the claim to be settled by the insurance company and this could be seen from the Complainant’s letter dtd.11/10/2006, sent to the Opposite Party, a copy of which is annexed at Exhibit-F, page (43) of the compilation of the written version. By that letter, the Complainant had informed the Opposite Party that he had received intimation from the insurance company that cheque for an amount in sum of Rs.4,52,350/- would be received. In fact, satisfaction note dtd.2/11/2006, a copy of which is annexed at Exhibit-G, page (45) of the compilation of the written version of defence, shows that the Opposite Party’s principal had given discount of an amount in sum of Rs.1,33,000/- and the Opposite Party had waived an amount in sum of Rs.22,340/- from the total bill for an amount in sum of Rs.6,07,690/-. Contents of the satisfaction note further reveals that balance amount in sum of Rs.4,52,350/- was received by the Opposite Party from the insurance company. These figures which appear in the satisfaction note show that the Complainant was not required to pay any amount to the Opposite Party towards repairs of his car. By the satisfaction note, the Complainant had recorded that the Opposite Party had carried out the repairs to his car to his satisfaction. Not only the Complainant recorded satisfaction note, but the Complainant earned discount in sum of Rs.1,33,000/- offered by the Opposite Party’s principal, as also, earned cash discount in sum of Rs.22,430/- offered by the Opposite Party. The Complainant is not an illiterate person. It is not his case that under coercion or duress, he had signed this satisfaction note. On the contrary, in the Complainant’s affidavit of rejoinder, we do not find any reference to this satisfaction note dtd.2/11/2006. Thus, it has not been explained by the Complainant. Admittedly, it was signed & delivered by the Complainant to the Opposite Party during pendency of the complaint. [16] Now, coming back to the grievance of the Complainant about delay in conducting repairs to his car by the Opposite Party and further delay in giving delivery of the same, we find that from time to time, the Opposite Party had explained to the Complainant that due to unprecedented situation and enormity of the calamity, there was breakdown of entire civil life of Mumbai and initially most of the activities were paralyzed. It is common knowledge that during that period, there was not only shortage of spare-parts, but there was shortage of manpower so also insurance surveyors were not promptly available. Despite that the Opposite Party managed to conduct the repairs, but there had been humming noise from the engine, which defect was to be rectified and that further resulted into delay in giving delivery of the car to the Complainant on repairs. [17] Having considered all these facts, we find that the Opposite Party has satisfactorily explained and justified delay on its part in picking up the Complainant’s car for repairs and conducting repairs to the car and giving delivery thereof to the Complainant on repairs. On making overall assessment of the material, we find that the Opposite Party cannot be blamed for the delay in giving delivery of the car to the Complainant. As a corollary of this, we further hold that the Complainant has failed to establish that the Opposite Party is guilty of deficiency in service. With this, we proceed to pass the order as below:- ORDER The complaint stands dismissed. No order as to costs. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
