BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> PRESENT:<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI .A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> OP.No.345/2003 Filed on 25..08..2003 <br /> Dated: 30..05..2008<br /> Complainant:<br /> C.V.Eappen, 'Mangalam' VKRA-D417, Vattiyoorkavu – p.o., Trivandrum – 695 013.<br /> (By Adv. Sri. M. Habeebullah)<br /> Opposite party:<br /> Auto Safe, TC 42/917, G.K. Junction, By pass Highway, Kallummoodu, Muttathara, Vallakkadavu – P.O., Thiruvananthapuram – 08.<br /> (By Adv. Sri. Udaya Kumar.Y)<br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 06..07..2006 the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 16..04..2008, the Forum on 30..05..2008 delivered the following:<br /> <br /> ORDER<br /> <br /> SHRI. G. SIVAPRASAD,PRESIDENT :<br /> <br /> The case of the complainant is that complainant had entrusted his car bearing No.KL-01-K 3310 for painting (touch up) with the opposite party. The rate agreed for touch up was Rs.4,500/- and Rs.1,500/- was given as advance. The car was entrusted to opposite party during December, 2002 on agreement that it would be given back after painting within 2 days. On enquiry through phone on 4th & 5th December, 2002 it was known that the painting was not over. At last on 07..12..2002, the painting was over but the opposite party unilaterally increased the charge to Rs.6,000/- and a bill was given to that effect. Complainant remitted the entire amount. During March, 2003 the complainant along with his wife planned to go to Kozhikode in their car and when they were filling diesel at Ernakulam, the cap of the diesel tank broke and fell down and the tank could not be closed. On enquiry it was found that the whole assembly should be changed and it was not available in market. Since further travelling with diesel tank open is not safe, the complainant was forced to return to Thiruvananthapuram. At Thiruvananthapuram the complainant took the car to Unity Motors which is close to opposite party's workshop and changed the diesel tank assembly on 17th March 2003. The cost of the said assembly was Rs.2,600/- and repair charge was Rs. 200/- and the complainant had to spend Rs.2,800/- for the said repair. Now, at the Unity Motors the complainant came to know from the owner of Unity Motors that the opposite party had approached the Unity Motors for repairing the diesel cap which had broken while painting and it was told to them by the owner of Unity Motors that it cannot be repaired and the only solution was to replace the assembly. The cap of the diesel tank was broken due to the negligence of opposite party in handling and due to lack of expertise had some how fixed the cap with quick fix and gave the car back to the complainant and had cheated him and the above said act of the opposite party is unfair trade practice. Hence this complaint claiming Rs.2,800/- towards the cost of repair and Rs. 15,000/- towards compensation.<br /> 2. Opposite party entered appearance and filed version contending that this complaint is filed to tarnish. The image of the opposite party institution with malafide motive. The complaint is bad for non-joinder of necessary parties. The averment in para 1 of the complaint is denied. It is admitted that complainant had entrusted his car to opposite party for painting (touch up) and on 07..12..2002 the vehicle was given to the complainant after painting. As per agreement the cost of painting was Rs.8,000/-, complainant had given only Rs.6,000/-. The balance amount due to the opposite party is Rs. 2,000/-. The averment in para 2 is not correct and this opposite party has no knowledge regarding para 3 & 4 of the complaint. The averment in para 5 of the complaint is absolutely false and hence denied. There is no necessity to remove the diesel tank while painting. This complaint is filed with malafide intention not to return the balance amount to the opposite party. The averment in para 6 of the complaint is also incorrect. The opposite party has no knowledge regarding averment in para 7 and complainant has not consulted this opposite party after 07..12..2002. The averment in paras 8 & 9 of the complaint are baseless and complainant is not entitled to get any compensation from this opposite party. Hence opposite party prayed for dismissal of this complaint.<br /> 3.The points that arise for consideration are:<br /> (i)Whether there has been negligence or deficiency in service on the part of opposite party?<br /> (ii)Reliefs and Costs?<br /> 4. To support the contention in the complaint, complainant has filed affidavit of himself as PW1 and examined witness as PW2 and Exts.P1 to P5 were marked. No evidence adduced on the part of opposite party.<br /> 5. Points (i) & (ii) : Admittedly, complainant had entrusted his car bearing No.KL-01-K 3310 for painting (touch up) with the opposite party. According to complainant, the rate agreed for touch up was Rs.4,500/-, and Rs.1,500/- was given as advance. While according to opposite party the rate agreed for touch up was Rs.8,000/- out of which Rs.1,500/- was given as advance. Ext.P3 is the photocopy of the bill dated 07..12..2002 issued by the opposite party. A perusal of Ext.P3 would disclose that the painting cost is Rs.6,000/- and advance received by the opposite party is Rs.1,500/-. If the rate agreed was for Rs.8,000/- as averred in the version by the opposite party definitely opposite party would have taken step to recover the said amount from the complainant. Submission by the complainant is that the rate agreed was for Rs.4,500/-, but at the time of billing opposite party charged Rs.6,000/- as seen in Ext.P3. The date of Ext.P3 is 07..1.2..2002. No written agreement was made between the parties. Opposite party did not file affidavit, nor adduced evidence of any nature. Hence we find that what is stated in Ext.P3 is genuine. As stated above, the said vehicle was entrusted with opposite party for painting. PW1 admitted that after painting, the said vehicle was returned to the complainant on 07..12..2002. Submission by the complainant is that on 11..03..2003 while the complainant with family was going to Kozhikode in their car it was required to fill diesel at Ernakulam. While filling diesel at Ernakulam, the cap of the diesel tank broke and fell down and diesel tank could not be closed. On enquiry it was found that the whole assembly should be changed and it was not available in market. Since further travelling was not safe, complainant with family was forced to return to Thiruvananthapuram. It is submitted by the complainant that at Thiruvananthapuram the said vehicle was taken to Unity Motors, which is close to opposite party's workshop and changed the diesel tank assembly on 17th March, 2003. The cost of the said assembly was Rs.2,600/- and repair charge was Rs.200/- and thus complainant had spent Rs. 2,800/-. The bill issued by Unity Motors is marked as Ext.P2. Now at the Unity Motors, complainant came to know from PW2, the owner of Unity Motors that the opposite party had approached the Unity Motors for repairing the diesel cap which had broken while painting and it was told to them by PW2 that it cannot be repaired and the only solution was to replace the assembly. It is submitted by the complainant that the said oil tank cap was broken due to the negligence and deficiency in service on the part of opposite party. PW1 and PW2 were vehemently cross examined by the opposite party. In version opposite party has taken a stand that opposite party is not the owner of Auto safe workshop. Ext P5 is the visiting card issued by the opposite party. In Ext.P5 two names are printed – George Varghese and Santhosh. S. Version is filed by Santhosh. Ext.P1 is a copy of the letter issued by the complainant to Mr. Santhosh/Mr.Gopan, Auto safe the said letter is seen received by Santhosh, who filed version on behalf of Auto safe. Ext.P4 is the copy of acknowledgment card signed by Mr. Santhosh. S. It is pertinent to note that the complaint is filed against Auto safe, on behalf of which Mr. Santhosh filed version. In cross examination, PW1 deposed that he had entrusted the car with opposite party and transaction was with Mr. Santhosh and PW1 further deposed that he did not see Mr. Santhosh in uniform doing the painting. In Ext.P5 also his name is printed, from which it is evident that Mr. Santhosh is not an employee but a partner or owner of Auto safe. No evidence was adduced by opposite party to prove otherwise. In this context, the evidence of PW2 is very significant. PW2 is an independent witness, who deposed that opposite party had approached PW2 for repairing the diesel cap which had broken while painting the complainant's car and it was told to opposite party that it cannot be repaired and the only solution was to replace the assembly, opposite party did not disclose this incident to the complainant while giving the said car after painting. In cross examination of PW2, nothing was brought out from PW2 to show that PW2 had any enimity with the opposite party. No material on record to disbelieve the deposition of PW2. In view of the foregoing discussion we came to the conclusion that there was negligence and deficiency in service on the part of opposite party while painting the car given by the complainant. Opposite party is liable to pay the complainant the amount spent by PW1 in replacing the diesel tank cap assembly as seen in Ext.P2 to the tune of Rs.2,800/- and a compensation of Rs.1,000/- and Rs. 500/- as cost.<br /> In the result, complaint is allowed. Opposite party shall pay the complainant a sum of Rs.2,800/- towards the cost of repairs, Rs. 1,000/- towards compensation and Rs. 500/- towards cost of the complaint. The said amount shall carry interest at 9% if not paid within 2 months of this order.<br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 30th day of May, 2008.<br /> G.SIVAPRASAD, PRESIDENT.<br /> BEENA KUMARI. A : MEMBER<br /> <br /> S.K. SREELA : MEMBER<br /> <br /> ad.<br /> O.P.345/2003 <br /> APPENDIX<br /> <br /> I.Complainant's witness:<br /> <br /> PW1 : Eappen<br /> PW2 : Ramachandran Nair<br /> II.Complainant's documents:<br /> <br /> 1.Ext.P1 : True copy of letter dated 14/08/2003 addressed to opposite party from the complainant<br /> 2.Ext.P2 : True copy of cash bill No. 149 dated 17..03..2003 from Unity Motors<br /> <br /> 3.Ext.P3 : True copy of bill dated 07/12/2002 <br /> <br /> 4.Ext.P4 : True copy of acknowledgment card dated 22.08..2003 <br /> <br /> 5.Ext.P5 : Visiting card of Autosafe<br /> <br /> <br /> III.Respondents' witness: N I L <br /> <br /> <br /> IV.Respondents' documents:<br /> <br /> D1 : True copy of visting card of Autosafe <br /> <br /> <br /> PRESIDENT.<br /> <br /> <br /> <br /> <br /> <br /> <br />