DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. NO-779/2016
Date of Filing: Date of Admission Date of Disposal:
28.12.2016 17.01.2017 31.12.2018
Complainant :- Ms. Arundhati Nandy Choubey,
W/oArun Kumar Choubey,
Permanently Residing at-Kalyani,
B-12/6(S), Central Park,
Nadia, West Bengal, 741235. Presently Staying at-
House no-25A/1, 12, Main Street, Ramnagar South,
Madipakkam, Chennai-600091.
By Constituted Power of Attorney Holder by virtue of
General Power of Attorney being Notaral Certificate
SL no-82 dated 04.10.2016 Mr. Amrit Singh,
S/o Late Ashok Kumar Singh, Street no-12,
Holding no-25, Gowalpara Road, P.O.-Kankinanra,
P.S.-Jagatdal, District-North 24 Parganas, Pin-743126.
=Vs=
Opposite Parties:- 1. Shree Honda Workshop,
Plot No-AA-IID/9, Action Area-2, Akankha More,
Rajarhat, New Town, Kolkata-700 017.
2. Pinnacle Honda,Chandrani Towers,
739, Anandapur, E.M. Byepass, Kolkata-700 107.
3. Honda Cars India Limited,
Ambuja Eco Space,
Business Park, Plot no-11/F/11,
Block-4A, 6th Floor, New Town, Rajarhat,
Kolkata-700107.
P R E S E N T
:- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. SilpiMajumder ……………………………………Member.
:- Smt. Monisha Shaw …………………………………….Member.
Judgment
Thiscomplaint filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step for redressal of her grievance till filing of this complaint.
The brief fact of the case of the Complainant is that Due to necessity she purchased one car namely Honda City for her daily use. The questioned car being the costliest having top-end model of the segment with fully automatic features. All on a sudden due to appointment on 22.03.2016 with the doctor in Kolkata it became urgent for her to be present at her native place from Chennai, where she was staying for her professional purpose, as to train tickets along with reservation was not available at the material point of time. Being compelled the Complainant decided to come in Kolkata by the said car driving the same by herself from Chennai to Kolkata. Accordingly she started on 19.03.2016 and reached in Kolkata on 21.03.2016 safely. All the toll tax receipts from Chennai to Kolkata are lying in the custody of the Constituted Attorney. After reaching the Complainant became very busy to attend the doctor for her treatment and her cousin and the Complainant used to go by car from her native place to the doctor’s chamber on regular basis. Unfortunately on 27.03.2016 the said car did not start and at the relevant time the Complainant had need to go to the hospital for clinical treatment and considering the urgency one local mechanic was called for. After seeing the car the said mechanic admitted that as the car has got all hi-end mechanism having automatic gear box with full automatic functioning system, he will not be able to do the job and advised the Constituted Attorney of the Complainant to consult with the Honda Authorized service station. Having no alternative on 28.03.2016 the OP-2 was called for and on 03.03.2016 Mr. Mohanty came to checkup the vehicle and after examination of the car he stated that all the spare parts i.e. battery, fuel etc. are all right but he was not able to detect the exact fault. It was stated by him that on the next date he will come along with a senior mechanic along with some basic spare parts for starting the car. Mr. Mohanty demanded a sum of Rs.5,000/- towards his fees and for the cost of the spare parts further sum of Rs.2,000/- in cash. On the subsequent date Mr. Mohanty along with Mr. Yadav came and saw the car, but they have failed to start the car and as per their advice the said car was brought at their service station on 31.03.2016, for which the Complainant had to incur a sum of Rs.4,500/-.On 01.04.2016 on behalf of the Complainant the Constituted Attorney visited the service station of the OP-2, but the official of the said OP-2 could not tell anything what happened in the said car and for this reason he could not provide any estimate. After few days the OP-2 gave an estimate of Rs.65,000/- and also an e-mail in this regard to the Complainant, but ultimately on negotiation the amount was reduced at Rs.56,000/- from Rs.65,000/-. Consent was given on behalf of the Complainant to complete the repairing work in the said car through e-mail dated 09.04.2016. Thereafter on several dates on the part of the Complainant enquiry was made through e-mail about the present position of the said car, but the OP-2 refrained to make any comment thereon. Actually the OP-2 had neither checked the car nor started the repairing work. While the Complainant was eagerly waiting for the said car, but the same was remained dumped at the service station of the OP-2 without taking any step. During this period the Complainant was under medical treatment and on several times she had to get admission at the hospital. On 10.04.2016 the father-in-law of the Complainant suddenly expired. On the said date upon receipt of the said death news the Complainant had to move from Kalyani to her law’s house by train as there was no cab service at Kalyani. As the Complainant was under medical treatment then there was every possibility for an infection while she had to travel in public transport inspite of having a personal car. Then the OP-2 was further requested to complete the repairing work of the said car, but the Constituted Attorney was told by the official of the OP-2 for shifting the said car from the OP-2 to OP-1. The OP-2 has opined that after taking money from the Complainant the said official had made negative remarks about his employer. Accordingly the said official was removed from the OP-2. In the meantime the date of marriage of the Constituted Attorney was fixed on 22.04.2016 for which the presence of the said car was very much required. Feeling urgency then the car was shifted from the OP-2 to the OP-1 for necessary repairing on 14.05.2016. Be it mentioned that the car was kept at the service station of the OP-2unnecessarily for long 13 days. Accordingly one of the officials of the OP-1 asked orally for making payment of Rs.25,000/- as an advance and it was further told that if the amount is paid then only they will check the car and provide an estimate. However no job card and no list was given by the OP-1.in this effect. The Complainant was told by the OP-1 that if the complainant will not be agreed with the estimate then they will refund the entire amount after deduction of the parking charge. Through an e-mail dated 16.05.2016 the OP-1 intimated that the Speedometer is missing from the said car. Upon hearing the same a sum of Rs.5,000/- was paid to the OP-1 in cash on 20.05.2016 and after checking the OP-1 confirmed that the Speedometer is in the car. On 09.06.2016 the OP-1 intimated the Complainant that repairing cost of the car will be Rs.80,000/- to Rs.90,000/- as the ECM, Ignition plug, speedometer, gear are not working, wiring problem, fuel pump and clutch are missing. It is surprising to the Complainant that how the Complainant plied the car on road for coming from Chennai to Kolkata either without the spare parts or non-functioning of the said spare parts of the car. Further on 13.06.2016 the Complainant got a shocking news from the OP-1when it was told that the repairing cost will be Rs.2,00,000/- without providing any estimation. Thereafter on 22.06.2016 the Complainant lodged a complaint against the OP-1 before the OP-3-Proforma OP alleging in which capacity the OP-1 can direct the Complainant to pay a sum of Rs.25,000/- without issuing any estimate and how the authorized service station can claim the parking charge. The Complainant had some good experience about the service centre of the Honda in Mumbai as well as in Chennai, but in Kolkata after getting such experience she became very much shocked. Ultimately on 27.09.2016 the Complainant received an e-mail from the OP-1 along with an estimate of Rs.1,36,613/-. According to the Complainant that after knowing that the owner of the car is residing in another State i.e. Chennai, the OP-1 started to creat false pressure upon her with a view to harass and to grab some money through an illegal manner. Till filing of this complaint the car is with the OP-1, it has not been delivered to her after necessary repairing. Finding no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OP-2 to deliver the said car after completion of repairing work as well as smooth working condition to he within 15 days from the date of passing the judgment, to direct the OPs for making payment of Rs.2,50,000/- as compensation, further compensation of Rs.3,00,000/- for long detention, harassment and another compensation of Rs.6,00,000/- due to mental agony, harassment, tension cause due to deficiency in service and negligence on behalf of the OPs and also litigation cost to her.
The petition of complaint has been contested by the OP-1 by filing written version deny the entire allegations as levelled against this OP. This OP has mentioned that it was found that the questioned vehicle was repaired by local mechanic and apart from that it is also admitted by the Complainant that she made some repairing work by local mechanic. Therefore other than the mechanic of this OP another mechanic examined and repaired the vehicle. Being a reputed organization this OP never demanded any money orally from the Complainant, rather every correspondences were made in writing. This OP had never told that the cost of repairing will be Rs.80,000/- to Rs.90,000/- and/or Rs.2,00,000/- or more. The averment of the Complainant is out and out false, fabricated story having no basis at all. With a view to avoiding payment of the estimated charges with mal-intention this complaint is filed by the Complainant by taking one after another false plea. The Complainant did not claim before this OP for returning of the vehicle after its necessary repairing, actually after its respiring the vehicle is still lying at the service station of the OP-1 and the Complainant did not take any step fordelivery of the car by making payment of the repairing cost as per the estimation. This OP is always ready to return the vehicle to the Complainant subject to make payment of the repairing cost. According to the OP-1 as there is no deficiency in service on behalf of this OP, the Complainant is not entitled to get any relief as sought for. Prayer is made by the OP-1 for dismissal of the complaint with cost.
The petition of complaint has been contested by the OP-2 by filing written version contending that the Complainant brought the vehicle at the service station of this OP, accordingly the OP issued estimate towards the repairing cost of the said car. But as no direction was given on the part of the Complainant to start the repairing works of the said vehicle, this OP could not take any step for repairing of the said car. Upon receipt of the estimation the Complainant remained silent over the matter for long 13 days and during this period the car was standing at the service station. Thereafter the Complainant decided to shift the car from the OP-2 to the OP-1 and accordingly the car was shifted. This OP did not get any scope to start repairing works. For this reason no allegation has been made within the four corners of the complaint regarding any defect of the repairing work. Inspite of this by filing this complaint the Complainant has prayed for direction upon this OP to make payment of compensation to her. But no reason has been assigned in respect of such prayer and claim. According to the OP-2 as there is no deficiency in service on the part of this OP, the Complainant is not entitled to get any relief from this OP as prayed for. Prayer is made by the OP-2 for dismissal of the complaint with exemplary cost.
The Pro-forma OP-3 has also contested the complaint by filing written version stating that as no relief has been sought for against this OP, the Complainant has made this OP as a party unnecessarily with a view to harass this OP. According this OP the name should be expunged and the complaint is liable to be dismissed against this OP.
The Complainant and all OPs have adduced their respect evidence on affidavit. The contesting parties have submitted some documents in support of their respective contentions. The OPs have filed their respective brief notes of argument.
We have perused the record; documents as available and heard argument at length advanced by the Ld. Counsel for the parties. At the very outset we are to adjudicate as to whether this complaint is maintainable from the point of its pecuniary jurisdiction or not as the ld. Counsel for the OP-1 has raised this point at the time of advancing argument, though not mentioned in the written version expressly. The Ld. Counsel for the OP-1 has argued that the Complainant has sought for compensation to the tune of Rs.11,50,000/- from the OP-1 and 2 on several counts and along with this compensation amount if the cost of questioned car is added, then it will obviously go beyond the pecuniary jurisdiction of this Ld. Forum. By filing document regarding the price of the questioned car from internet the OP-1 has submitted that two different prices are showing i.e. Rs.8,00,000/- onwards and Rs.14,00,000/- onwards. If this Ld. Forum will opt the lesser price i.e. Rs.8,00,000/- and odd then this complaint will not be maintainable before this Ld. Forum as it will cross the total amount of Rs.20,00,000/-. In that case this Ld. Forum cannot adjudicate this complaint being barred by pecuniary jurisdiction. Upon considering the argument we are to say that the Complainant did not purchase the car from the OP-1 and 2, rather the Complainant availed of the service of the OP-1 and 2 being the authorized service stations for necessary repairing of the said car. Therefore the cost of the service in this respect means the estimate as the OP-1 and 2 issued to the Complainant for repairing of the said car. It is seen by us that the OP-2 issued estimate to the tune of Rs.56,000/-, as per the Complainant the OP-1 gave estimate to the tune of Rs.80,000 to Rs.90,000/- or Rs.2,00,000/-. The Complainant has also mentioned that on 27.09.2016 the OP-1 issued the estimated cost of Rs.1,36,613/-. Therefore whatever the estimated repairing cost as mentioned above, if we add the same with the amount of compensation as prayed for, then also the total value of this complaint does not exceed Rs.20,00,000/- and hence as it is not crossed the pecuniary limit of this Ld. Forum, this Ld. Forum is very much empowered to try with the same. Therefore the complaint cannot be termed as barred by pecuniary jurisdiction of this Ld. Forum.
Now we are to adjudicate as to whether the Complainant is entitled to get any relief as sought for and whether there is any deficiency in service on behalf of the OP-1 and 2. Initially we are to say that within the four corners of this complaint no relief has been sought for by the Complainant against the Proforma OP-3. No allegation has been made out against the said OP, hence in our opinion the complaint does not stand against the Proforma OP-3 and it is dismissed.
We have noticed that in the prayer portion the Complainant has prayed for direction upon the OP-2 to deliver the car after completion of necessary repairing in smooth and working condition within 15days from the date of pronouncement of this judgment. But in respect of such prayer we are to say that at present the car is not at all lying with the OP-2, rather it is lying with the OP-1 as the Complainant herself brought the said car from the OP-2 to OP-1 for necessary repairing. Admittedly primarily the car was brought to the OP-2 for its necessary repairing and accordingly the OP-2 issued the estimated cost showing Rs.56,000/- and direction was given to the Complainant for giving permission to the OP-2 to start the repairing works. But upon receipt of the estimate the Complainant kept herself silent over the matter without a giving any permission to start the repairing work. For this reason the OP-2 could not start the same. But ultimately the Complainant shifted the said car from the OP-2 to the OP-1 after keeping therein for about 13 days as per her whims for repairing the same. Therefore as the car is not under the custody of the OP-2, hence question does not arise for giving direction to the OP-2 to deliver the said car after completion of repairing work to her. In this respect it is pertinent to mention that through such action of the OP-2 we do not find any deficiency in service on its behalf, hence payment of compensation by the OP-2 does not arise as sought for by the Complainant as the Complainant did not give any opportunity to the OP-2 for repairing the car and without doing so she had shifter the car to the OP-1 as per her will.
Though the Complainant has not make any prayer for giving direction to the OP-1 to deliver the car after necessary repairing, but actually the car is under the custody of the OP-1. As we not go beyond the prayer of the petition of complaint, hence we cannot give direction to the OP-1 to deliver the car to the Complainant. Admittedly after shifting the car from the OP-2 to the OP-1, the OP-1 issued estimate towards the cost of repairing, but till filing of this complaint the Complainant did not pay any farthing towards the said estimated amount to the OP-1, in fact the complaint does not reveal that the Complainant contacted with the OP-1 for making payment of the estimated cost amount or part payment and the OP-1 had refused to accept the same. It is crystal clear to us without getting delivery of the said car after making payment of the estimated repairing cost to the OP-1, the Complainant has filed this complaint against the OP-1 and 2 by making false allegation, which does not sustained at all. Not only that by filing such false, frivolous and fabricated complaint against the OP-1 and 2 the Complainant has harassed the said OPs and also tried to lower down the reputation of the OP-1 and 2. For this reason in our opinion it is the fit case where we are take cognizance of the Section 26 of the Consumer Protection Act, 1986. The fact reveals that without discharging her liability the Complainant put false allegation on the shoulder of the OP-1 and 2. For such filing of frivolous complaint we are inclined to impose cost of Rs.3,000/- upon the Complainant payable to the OP-1 and 2 equally. As the Complainant has miserably failed to prove the complaint by adducing evidence, hence the complaint fails.
Hence it is ordered that the Consumer Complaint being no-779/2016 is hereby dismissed on contest against the OP-1 and 2 with cost and dismissed on contest without any cost against the Proforma OP-3. The Complainant is directed to pay the cost amounting to Rs.3,000/- to the OP-1 and 2 equally within 45 days from the date of passing this judgment, in default the OP-1 and 2 are at liberty to put the order in execution as per provision of law.
Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.
Member Member President
Dictated & Corrected by
