Date of Filing:25/05/2019

Date of Order:11/02/2020

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 11^th DAY OF FEBRUARY 2020

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI. D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.849/2019

Vs

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT.

1.     This Complaint is filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party  (herein referred in short as O.P) alleging the deficiency in service in not paying the requisite amount of Rs.4,675/- collected towards extended warranty up to four years from the date of sale of the car by the complainant, to the manufacturer for refund of the same along with interest at 18% per month, Rs.1,09,500/- as penalty for not extending the warranty, Rs.15,000/- towards the litigation expenses and for such other reliefs as this Hon’ble Forum deems fit. 

2.      The brief facts of the complaint are that: the Complainant purchased KWID –RXT(O) model new car from OP by paying Rs.4,73,786/- with included the cost of the vehicle insurance, add on insurance, road tax, delivery charges, standard accessories and Rs.4,670/- towards the extended warranty. He paid the said amount on different dates which has been acknowledged by the OP. Since he paid the amount for extended warranty at the time of purchase of the vehicle, he believed that the vehicle is covered with extended warranty. As his vehicle got broke down during travelling on 24.11.2018, he requested the customer care for on road service and also informed that the vehicle is under the extended warranty period. The customer executive informed him that the vehicle has not been covered and provided with the extended warranty. He made a complaint over email and through post. The Renault Company, the manufacturer of the car, provides two years standard warranty for all the new vehicle and further option of further 2 years extended warranty if the customer pays the amount at the time of purchase of the vehicle itself on the condition that once standard warranty given by the company expires, extended warranty cannot be provided.

3.     He came to know that OP is not in the habit of refunding the excess amount collected from its customers.  Due to the said negligent act on the part of Op in not remitting the amount towards the extended warranty, the vehicle was not under the extended warranty when it broke down on journey and in case the engine had ceased, the cost of repair would have been Rs.1,02,970/-. The excess amount collected from the customer is being utilized by the OP instead of refunding the same to the customer. In view of not paying the amount to the company to provide extended warranty though the said amount was collected from him on 29.05.2016, and not refunding the same and using the same for its business purposes, amount to deficiency in service , unfair trade practice and the same is liable to be refunded along with interest at 18% p. a from the said date and also a penalty of Rs.100/- per day from the said date and complainant has also sought  Rs.15,000/- from OP towards the cost of litigation and incidental expenses.   Hence the complaint.

4.     Notice was delivered as per the postal track record to OP, OP did not appear before the forum and hence placed exparte.  Afterwards OP appeared before the forum through its advocate, filed application u/O 9 Rule 7 CPC and got the exparte order set aside. Inspite of it, OP did not participate in the further proceedings  and did not file the version and did not adduce evidence.

5.      In order to substantiate his case, complainant filed his  affidavit evidence which is repetition of the contents of the complaint and also filed and got marked the documents. Perused the same. Heard the arguments.  The points  arise for our consideration are:-

                   (1)   Whether the complainant has proved

                        deficiency in service on the part of the O.P?

(2)  Whether the complainant is entitled to

      the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT 1  :            In the Affirmative.

POINT 2 :             Partly in the Affirmative.

                                For the following:

REASONS

POINT No.(1) & (2):-

7.     We have perused the complaint, affidavit evidence of the complainant and the documents filed by him. Complainant purchased KWID –RXT(O) model new car from OP by paying Rs.4,73,786/- with included the cost of the vehicle, insurance, add on insurance, road tax, delivery charges, standard accessories and Rs.4,670/- towards the extended warranty. He paid the said amount on different dates which has been acknowledged by the OP. since he paid the amount for extended warranty at the time of purchase of the vehicle he believed that the vehicle is covered with extended warranty.

8.     The price list (ExP3) of the vehicle purchased by the complainant is produced wherein it is clearly mentioned that  the Ex-Showroom price of KWID RXT(o) MET is Rs.3,87,780/- insurance Rs.15,715/- add on insurance Rs.1,687/- road tax Rs.55,957/- , delivery charges Rs.5,000/- , Standard accessories Rs.2,977/- and extended warranty for 4 years Rs.4,670 grand total Rs.4,73,786/-. This is w.e.f 01.05.2016, the tax invoice produced by the complainant Ex.P1 shows that  OP has received Rs.3,87,780/-  being the value of the Ex-showroom price of the vehicle including the tax at 14.50 %. Ex P2 is the debit note wherein the OP has mentioned that Rs.55,959/- towards road tax reimbursement Rs.17,402/- towards reimbursement to Cholamandalam M.S Rs.4,500/- towards reimbursement of delivery charges, Rs.437/- cost of number plate, Rs.63/- towards output VAT totaling to Rs.78,361/-. Ex P5 are the receipts for the amount received by the complainant issued by OP and Ex. P6 is the statement of the credit card issued by HDFC to show that a sum of Rs.28,420/- and Rs.14,916/- has been paid through his credit card.

9.     Complainant has also produced the ledger account wherein the complainant has received Rs.4,75,683/- and closing balance shows that a sum of Rs.4,675/- is in debit. Presumably this amount is the amount which OP collected from the complainant but failed to pay the same to the company for providing extended warranty. Letter correspondences and emails particularly the one dated 28.11.2018 sent at 6.09 pm by one Sheriff of OP to the complainant reads as:-

“1- At the outset we thank you very much for chosing Trident for purchase of KWID from us.

2 - Inadvertently the additional warranty for 2 years was not raised at the time of purchase. However please note that the said 2 years additional warranty raised subsequently with retrospective effect.

3 - In view of the above explanation we hope we have clarify the position. Further it is to be noted that this response is without prejudice to our rights and hence this cannot be construed as an admission of any negligence on our part.”

10.   When this letter is taken into consideration, it is clearly an act of negligence on the part of OP in not remitting the amount though collected from the complainant to the manufacturer to extend the warranty in respect of the said vehicle for a further period of two years.

11.   The complainant has not produced any documents to show as to what is the expenses he has incurred in respect of bringing back the broke down vehicle and also the amount paid by him to towing and for its repair in order to claim the amount if at all collected under the extended warranty period.  The complainant has sought the refund of the amount paid by him to OP along with interest at 18% per annum. Further he has sought damages of Rs.1,09,500/- from the OP at the rate of 100/- per day as penalty. The same has not been substantiated as the loss he incurred and how the penalty can be levied.

12.   If major accident had taken place and major repair was to b attended in respect of the said vehicle in the absence of the extended warranty due to the negligent of OP, complainant ought to have borne the said amount.  As stated above complainant has not placed any materials as to how much amount he has spent towards repair work. 

13.   As pointed out above, the OP retained amount with it and has utilized the same for its business purpose. It was its bounden duty to return the amount to the complainant as soon as it failed to pay the amount towards the extended warranty. There is unfair trade practice by the OP in this regard and also negligence in not paying the amount to provide extended warranty. Hence the complainant was put to lot of inconvenience and under mental stress and physical strain which also made him to approach this forum when the OP did not respond properly to refund the amount.   Though in the email OP has informed that it is agreeable to extend the warranty retrospectively to which complainant also agreed, no document worth believing is produced by the OP to show that the warranty has been extended with retrospective effect. Hence we are of the opinion that a sum of Rs.20,000/- towards damages for causing inconvenience to the complainant and Rs.10,000/- towards litigation expenses making the complainant to approach this forum by spending his time, money and energy if ordered to be paid to the complainant by OP. Besides order to repay Rs.4,675/- the amount collected as extended warranty charges along with  interest @ 12% per annum would meet the ends of justice. Hence we answer POINT NO.1 IN THE AFFIRMATIVE and POINT NO.2 PARTLY IN THE AFFIRMATIVE and proceed to pass the following:

ORDER

1. The complaint is allowed in part with cost.
2. OP i.e. M/S TRIDENT AUTO ENTERPRISES (P) LTD., represented by its Director/Authorized Signatory is hereby directed to pay a sum of Rs.4,675/- to the complainant along with interest at 12% per annum from the date of receipt of the said amount i.e. 05.05.2016 till realization.
3.  Further Op is hereby directed to pay a sum of Rs.20,000/- towards damages and Rs.10,000/- towards litigation expenses to the complainant.

4. O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by her corrected and then pronounced by us in the Open Forum on this 11^th DAY OF FEBRUARY 2020)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Original tax Invoice.

Ex P2:Debit note.

Ex P3:Price list

Ex P4:Statement of accounts.

Ex P5:Receipts.

Ex P6: Credit card statement.

Ex P7: Email correspondences.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: -Nil

Copies of Documents produced on behalf of Opposite Party/s

-Nil-

MEMBER                            PRESIDENT

A*