This case is filed by the complainant against opposite party G.D. Motors & Dealer of Mahindra & Mahindra Ltd. U/S 12 of Consumer Protection Act, 1986 for deficiency of service. The case of complainant in brief is that the complainant had purchased a Maxximo Load Carrier a Mini Truck bearing R.C.No.As 02/9554, Dated 19/09/2012 on hire purchase agreement with Central Bank of India, Nagaon Branch for total loan of Rs.2,00,000/- payable total Rs.36 EMIs of Rs.8000/-. That the vehicle was earlier repaired for Engine damage caused by a motor vehicle accident. The gear box of engine was repaired at the workshop of O.P.No.1 on 28/09/2013, the engine ceased completely and fume emerged from engine. The vehicle was handed over to O.P.No.1for repairing and the complainant was informed that bill would be amount of Rs.35,000/- in total. That on the repairing order dated 11th October, 2013, the price of the repairing vehicle including labour charges and taxes was fixed Rs.40,000/- by O.P.No.1. Further O.P.No.1 demanded 50% of total bill in advance which is the complainant refused to pay. As such O.P.No.1 neglected to provide any service to complainant vehicle and raised cost of maintenance of the vehicle including monthly EMI’s payable to bank which finance of the vehicle. This service provider in a negligent manner provided repairing bill after three months of repairing order which led to raise in price of maintenance of vehicle and no such income from the vehicle was forthcoming as such the complainant three months EMI’s of the bank/financer accrued together besides other charges of vehicle like insurance premium. The O.P.No.1 adopted restrictive trade price as define U/S 2 (nnn) unfair trade practice 2(r)(5) of Consumer Protection Act, 1986. In addition to this O.P.No.1 made undue delay in providing service and not giving any repairing bill on 04/01/2014. Complainant went to the workshop of O.P.No.1 with two media electronic journalist on News Times and News Lives. The work shop of Manager of O.P.No.1, gave complainant a formal letter dated 04/01/2014 to the effect that his vehicle will be ready for delivery by 11/01/2014 and they will provide home delivery of the vehicle. On 17/01/2014 O.P.No.1 sent a message from Mobile No.9706020622 and Telephone to complainant to deposit Rs.80,216/- to bank mentioned in the message letter on 20/01/2014 O.P.No.1, sent E-mail delivered to E-mail address of complainant with inflated bill Rs.80,215/-. It is alleged by the complainant that some old motor vehicle parts have not replaced and false bill have been prepared to extract undue price of repairing and the motor parts mentioned in the bill dated 17/01/2014. Then complainant sent a legal notice to O.P.No.1, dated 20/01/2014 and 4/04/2014 through his advocate but O.P.No.1 failed to provide any information in this connection. The complainant under the above circumstances was compelled to file this case against opposite party praying for compensation and for necessary action unfair trade practice along with cost of proceeding.
O.P.No.1, 2, 3 contested the case by filing written version. O.P.No.1 in the written statement has categorically denied the averments of the petition. The main contention of opposite party is that opposite party never stated the cost of repairing of Rs.40,000/-. After dismantling the engine components, proper estimates of the vehicle came up to Rs.77,000/- but complainant failed to come to O.P. on the appointed day. Complainant since 28/09/2013 to 04/01/2014 failed to come up even after several contracts were made through phone and requested him to come and to sign work order and to pay some amount to start the repairing work. Only 04/01/2014 along with two electronic media journalist i.e. News Time and News Live, complainant came to disturb the work of opposite party. Accordingly, work started on 06/01/2014 and ready on 11/01/2014. The vehicle was made ready to deliver and bill was sent to complainant through E-mail but complainant did not come to accept the delivery of vehicle. Thereafter, complainant sent notices through his Lawyer. Opposite party further stated that they are not acting on negligence way and complainant is not entitled any relief as per prayer for which case is liable to dismiss with a compensatory cost repairing charged and parking charges of the vehicle.
O.P.No.2 & 3 stated that there is no cause of action in the case and complainant is also not a consumer under Consumer Protection Act. In their written statement these opposite parties contended that O.P.No.1 is authorized dealer of their company and they are not principal and agent. They are not involved in day to day working of O.P.No.1. Further, it is stated that the vehicle met with a accident and after receiving vehicle at the workshop of O.P.No.1, the necessary repair and replacement work of carried out by O.P.No.1. After repairing the subject vehicle was handed back to the complainant by opposite party No.1. However, it is pertinent to mention that no engine work was done during the accidental repair of the subject vehicle as indicated, in the repair order No.RO14A000615. However, work in the gear box was done and propeller shaft was changed but no engine part was repaired during the accidental repair. The allegation of Rs.30,000/- to 35,000/- which was given also false as no repair estimate was provided on the day when the subject vehicle reported to opposite party No.1 and was informed that the correct repair estimate can be provided only after full estimation of the vehicle. The engine of the vehicle ceased due to complainant’s negligence in unkeep of the subject vehicle. Further, these opposite party have stated that this complaint is not maintainable against these opposite party as because no relief is claimed by complainant and they have no liabilities to do anything for which this case is liable to be dismissed against them. In this case complainant side examined three witnesses. Opposite party also examined one witness. Complainant side has submitted written argument. We have heard argument from both sides of learned counsel and perused the case record.
Learned counsel of opposite party has submitted that complainant is not consumer under opposite party No.1 because under section 2(1)(d) Consumer Protection Act, 1986, a consumer is a person who buys any goods or heirs or avails any services for consideration. On the other hand learned counsel of complainant has referred (2009)9 Supreme Court Case 79 and submitted that complainant has purchased the Truck to earn his livelihood by means of self employment for which he comes under consumer. It appears that complainant is consumer under Consumer Protection Act.
In the pleading and evidence complainant has stated that he purchased a Maxximo Load Carrier a Mini Truck bearing R.C.No.AS-02/9554, Dated 19/09/2012. On Hire purchase agreement with Central Bank of India, Nagaon Branch for total loan of Rs.2,00,000/- payable total Rs.36 EMI’s of Rs.8000/- per month. The motor vehicle earlier was repaired for Engine damage caused by a motor vehicle accident. The gear box of engine was repaired at the workshop of O.P.No.1 on 28/09/2013, the engine ceased completely and fume emerged from engine. The vehicle was handed over to O.P.No.1 for repairing and the complainant was informed that bill would be amount of Rs.35,000/- in total. That on the repairing order dated 11th October, 2013, the price of the repairing vehicle including labour charged and taxes was fixed Rs.40,000/- by O.P.No.1. Further O.P.No.1 demanded 50% of total bill in advance which is the complainant refused to pay the advance demanded by the opposite party No.1. It is admitted by opposite party No.1 that on 28/09/2013 the Mini Truck was handed over to them for repairing the engine of the seized vehicle. Opposite party No.1 raised the plea that complainant did not sign the work order for which the repairing work could not be started immediately. In this connection opposite party failed to produce the work order to prove that no consent was given by complainant to start repairing order of the vehicle. Further, the allegation of complainant is that at the time of handing over the vehicle for repairing on 11th October, 2013 O.P.No.1 told that the price of repairing the vehicle including labour charges was fixed Rs.40,000/- between O.P.No.1 and complainant. But opposite party has denied this allegation of complainant. In the workshop of opposite party there are sufficient staff and expert who can easily assess the amount of expenditure required for repairing of the vehicle. Under such circumstances, it cannot be disbelieved about assuring price of expenditure including taxes amount of Rs.40,000/- for repairing of the vehicle. After repairing of the vehicle it is quite possible to vary the amount of money on either side but the same cannot be doubled to believe. O.P.No.1 in his cross examination stated that his manager gave a letter dated 04/01/2014 and he could not recognized the signature. Exhibit 3 is the said document which states that complainant vehicle will be ready for delivery on 11/01/2014. It is further admitted by O.P.No.1 in cross examination that he sent his final bill by E-mail to the address of complainant. O.P.No.1 submitted a copy of E-mail and the bill in list of documents. This shows that the vehicle was delivered on 28/09/2013 and finally ready for delivery on 20/01/2014 i.e. three months after the date of delivery. On the other hand the vehicle of complainant is used for his own business and livelihood. Complainant is to pay the instalment for the loan taking by him to running his business. Admittedly complainant has not paid any advance as per demand of opposite party. In this connection, after delivery of the vehicle no notice was issued by opposite party to complainant asking the advance. The opposite party No.1 failed to give prompt delivery after repairing of the vehicle i.e. within a one week after handing over of the vehicle. As a result complainant had defaulted payment of three EMI payable to finance bank, insurance premium and cost of maintenance of driver which led to prove that there have been deficiency of service on the part of O.P.No.1. Learned Counsel of complainant referring Supreme Court Case Law Madam Kr. Singh vs. District Magistrate (2009)p SCC 79 has submitted that restrictive trade practice means a trade practice which tends to being about manipulation of price or its condition of delivery. It is also pointed out delay beyond the period agreed to by a trader in supply of goods or providing services which has led or is likely to rise in price as per provision under sec.2(r) of Consumer Protection Act. In addition of this complainant has got examined the vehicle through Motor Vehicle Inspector in Nagaon. Complainant also examined MVI as O.P. witness No.3. Exhibit-8 is MVI report which discloses that the dealer produced about 28 replaced worn-out parts whereas bill No.RBC 14A003224, dated 07/01/2014 replaced parts of the vehicle shown as many as 38 parts. This shows that the bill submitted by opposite party is not free from doubt. By submitting such type of bill to complainant O.P.No.1 wants to mislead complainant to pay huge sum of money. Ordinarily no persons like to come to the Court for litigation without any sufficient ground. Whenever, a customer visits to the premises of the dealer, it is duty of the owner to treat them like customer and in case of any dispute arises out of any transaction it is duty of the party to settle it between them. But in this case it has not happened and complainant has to take the help of law to establish his right.
After receiving the vehicle had O.P.No.1 repaired immediately and sent the bill to opposite party immediately, in such a case the matter would be different. Instead of doing this O.P.No.1 kept the mechanically propelled vehicle more than three months without repairing for which complainant has suffered heavy loss. It is settled law that submitted of inflated bill to customer is also and act of unfair trade practice. Further, O.P.No.2 & 3 are not principal and agent in relationship and they are not involved day to day working of O.P.No.1, O.P.No.2 & 3 are not liable in the affairs of O.P.No.1. As such we find and hold that there is deficiency of service on the part of O.P.No.1. Hence prayer for complainant is partly allowed.
ORDER
It is ordered that opposite party is to return the vehicle in running and tip top condition to complainant on receiving payment amount of Rs.50,000/- (Fifty thousand) from complainant as cost of expenditure of repairing vehicle and replacing parts which is fixed by this Court for interest of justice. Further, O.P.No.1 is to pay compensation of Rs.30,000/- (Thirty thousand) for his suffering lost of business, mental agony and harassment. In addition to this cost of proceeding Rs.10,000/- (Ten thousand) is allowed. O.P.No.1 is directed to comply the order. In case of failing to comply with the order the matter will be dealt with as per provision of Consumer Protection Act. This case is disposed accordingly.
