IN THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 09.02.2016

Date of Order : 04.12.2019

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Ramachandran, Member

CC.No.84/2016

Between

O R D E R

V.Ramachandran, Member

1. A brief statement of facts of this complaint is as stated below:

The complainant bought a Ford car to Kerala from Chennai for business travel. It broke down at a place 40 kms away from Kochi. The spare part for repair was not available for sale with spare part shops and was available only with the Ford dealer, the 1^st opposite party. The 1^st opposite party refused to sell the spare parts insisting that the spare parts will be sold only if the order for repair woks is entrusted to the 1^st opposite party. The complainant’s car was at a distance of 40 kms away from the 1^st opposite party’s workshop and towing the car all the way was unfeasible due to logistic reasons. Due to the denial of the spare parts by the 1^st opposite party the car could not be used for 5 days causing huge financial loss, and mental agony finally forcing the complainant to use a substitute part to tide over the situation. The complainant alleges that monopolizing the sale of spare parts is an offence. Here the 1^st opposite party has restricted the sale of spare parts. This amounts to willfully endangering the consumers and other road users for gain. In a later instance the 1^st opposite party sold the same spare parts which confirms that they were exploiting the naivety of the complainant earlier. Insisting to tow a break down car for 40 kms instead of sending spare part to it is highly preposterous defying all logic and law. The car is sold with a fitness validity of 15 years, some polymer component like the headlights have deteriorated in less than 10 years. Evidently, those parts were ‘not supported by adequate tests to ensure the efficacy of their length of life’, which amounts to unfair trade practice. The complainant sought for compensation from the opposite party for the loss, but the compensation offered by the opposite party is very meager and therefore filed the complaint before the Forum.

2) Notices were sent to the opposite parties from this Forum and they have filed their version.

3) Version filed by the 1^st opposite party

The 1^st opposite party stated in their version that the complaint is not maintainable as per Section 2 (1) (c) of the Consumer Protection Act, 1986. Further the complainant has not revealed that the services rendered by the opposite party is deficient in nature. The complainant has neither entrusted the vehicle to the opposite party and the opposite party has not delivered any services to the complainant. The relationship between the 1^st and 2^nd opposite party are strictly on a principal to principal basis and each party is responsible for its own action. Hence the 1^st opposite party cannot be held responsible for non-performance of any promise by the 2^nd opposite party in its own individual capacity. Further the 1^st opposite party has denied the contents in the complaint of para I and admitted to the extend of matter of record on para 2.1 of the complaint. Para 2.2 of the complaint was denied for want of knowledge. Further para 2.3 and 2.5 were denied stating that it is concocted. It is contented that the para 2.9 and 2.14 of the complaint were false and denied. Therefore the 1^st opposite party sought for the dismissal of the complaint on the above circumstances.

4) Version of the 2^nd opposite party

The 2^nd opposite party pleaded that the complainant is not a ‘consumer’ and the car under dispute is purchased by a Company named FFE Minerals India Pvt. Ltd. for running its business under commercial purposes. The complainant has travelled for business/property matters and the said trip was also a business trip of the complainant. The complainant has not filed the board resolution and Authority letter of the company authorizing the complainant to file the complaint before the Forum. There is no privity of contract between the complainant and the opposite party. The complainant has never made any complaint regarding the manufacturing defect though the complainant is using the car since 2006. The 2^nd opposite party has its registered office at Chennai and no cause of action has arisen under the territorial jurisdiction of the Forum at Ernakulam and the complaint is to be dismissed on the ground of territorial jurisdiction. As regards to the allegation of the complainant regarding the deterioration of the headlight etc, no expert’s report has been fixed by the complainant in support of the allegation. The promise to refund the cost of spare parts as alleged by the complainant in his car for with a fitness validity of 15 years have also been made without any documentary support. The allegation of the complainant regarding the monopoly of sale of spare parts shall not come under the ambit of Forum and also the decision of the competition commission is under challenge of the High Court of Gujarath. The spare parts used in the cars manufactured by the 2^nd opposite party are sold by all dealers and can be availed by any customer at any point of time, hence the allegation of creating monopoly over the sale of the spare parts falls flat as its face. The complainant has failed to prove the allegation that he was asked to tow his car for 40 kms with any substantial proof and hence denied. For a good will gesture to enhance the confidence of the customer the 2^nd opposite party offered waiver of labour charges for 2 periodic maintenance. The complainant took the good will gesture in a wrong way and has used it against the opposite party. Hence prayed for dismissal of the complaint.

5) The evidence in this case consisted of oral evidence adduced by the complainant examined as PW1 and the documentary evidence furnished by the complainant were marked as Exbt.A1 to A16. The opposite parties adduced oral evidence and marked as DW1. No documentary evidence adduced by the opposite parties.

6) The issues to be considered in this case are as follows:

(i) Whether the complaint is maintainable for reasons stated by the opposite parties in this Forum?

(ii) Whether in the facts of the case there is any deficiency in service or unfair trade practice or restrictive trade practice occurred on the part of the opposite parties?

(iii) If so, whether the complainant is entitled to get any compensation from the opposite parties?

(iv) Reliefs and costs?

7) Issue No. (i)

As regards to issue No.(i) the allegation that the complaint is not maintainable before this Forum as per Section 2 (1) (e) of Consumer Protection Act, 1986, the act reads “an unfair trade practice or a restrictive trade practice has been adopted by (any trader or service provider) as per 2 (1) e (i) of the Act, which is proved in the instant case and hence the allegation of the opposite party do not deserve any merit. Further as regards to the question of jurisdiction for maintenance of the complaint before the Forum, it can be seen that the Act further reads in Section 11 (a) (b) and (e), since the opposite party is carrying on business at the territorial jurisdiction and also since the cause of action as per 11 (e) wholly or in part arisen within the territorial jurisdiction of the Forum, the dispute regarding the maintainability of jurisdiction alleged by the opposite parties is not maintainable.

As regards to the ownership of the vehicle, the allegation raised by the opposite party is defeated as is evidenced by Exb.A2 wherein the ownership of the vehicle is transferred into the name of the complainant on 29.06.2009 by the competent authorities and therefore the allegation of the opposite party that it is a commercial vehicle deserves no merit.

8) Issue No. (ii)

Regarding issue No. (ii), it can be seen from the evidences produced by the complainant and marked as Exbt.A3, A4, and A5 reveals that the complainant have approached the opposite parties requesting for spare parts and had not been given and in compensation to that and to enhance the confidence the opposite party offered a waiver on the labour charges on the next two periodic maintenances. Further Exbt. A10 and Exbt. A11 produced by the complainant further proves that the allegations in the complaint regarding the non-issue of spare parts by the opposite party is true. It was further substantiated that when the depositions of the complainant was recorded and when the depositions were made in the cross examination of the complainant by the opposite parties, it can be seen that the 2^nd opposite party proactively took steps to redress the grievance of the complainant and requested the 1^st opposite party to sell the required spare parts to the complainant. In the cross examination the 1^st opposite party in box given the deposition that the opposite party is responsible for service of their vehicle irrespective of the place from where it is purchased. It is also admitted that the opposite party 1 has seen the e-mail communication sent in the company e-mail by the complaint.

It was informed by the 2^nd opposite party to the 1^st opposite party to provide next two services free of labour charges as compensation. The 1^st opposite party also stated that they keep only essential consumable spare parts with them.

Examination of all records, evidences and depositions reveals that the opposite party has committed restrictive trade practice by not delivering the spare parts to the complainant and thereby imposed on the consumer the burden to avail the services on condition precedent to buying, hiring or availing of other goods or services and hence the restrictive trade practice on part of the 1^st opposite party is proved undoubtedly. The non issue of the spare parts to the consumer and also the non availability of spare parts if any as stated by the 1^st opposite party in the case of car sold to the complainant by the opposite party is nothing less than unfair trade practice especially the spares of the car sold by the opposite parties are not available any other spare part dealers.

9) Issue No. (iii)

Under the circumstances described above, the complainant is entitled to get compensation and cost of the proceedings from the opposite parties due to the unfair and restrictive trade practice suffered by the complainant.

10) In the result, we allow the complaint and direct as follows:

(1) The opposite parties shall pay an amount of Rs.50,000/- towards compensation to the complainant towards commission of the unfair trade practice and deficiency in service committed by the opposite parties.

(2) The opposite parties 1 and 2 shall also pay an amount of Rs.10,000/- towards cost of the proceedings to the complainant.

The above orders shall be complied with, within 30 days from the date of receipt of copy of this order, failing which the compensation of amount shall carry 12% interest from the 31^st day of the receipt of this order and the liability of the opposite parties 1 and 2 found to be joint and several.

Pronounced in the open Forum on the 4^th day of December 2019.

Sd/-

V.Ramachandran, Member

Sd/-

Cherian K. Kuriakose, President

Forwarded by Order

Senior Superintendent

APPENDIX

Complainant’s Exhibits :

Opposite party's Exhibits:

Depositions :

PW1 :: Kurian Thomas

DW1 :: Vivek Raveendran

Date of Despatch

By Hand :

By Post :

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