Judgement HON’BLE MR. SUDIP NIYOGI, PRESIDENT FACTS The case of the complainant, in short, is that she purchased one diesel car being Diesel Bharat Stage IV Indyo ECSLS car being Registration No.WB07J3439 details of which were mentioned in the petition of complaint. It was a commercial vehicle and used by the complainant exclusively for earning her livelihood. As the condition of the said car was deteriorated, she delivered the car at the workshop of Opposite Party No. 1 in the first week of July, 2020 and on inspection of the car it was found that certain parts of it required to be replaced and Opposite Parties raised a bill of Rs.30,000/- and job sheet was also issued to the complainant. Complainant paid Rs.12,000/- and Rs.18,000/- on 10/07/2020 and 23/07/2020 respectively. Complainant’s son was authorized by her to do all these things on her behalf. It was told that the servicing of the said car would be completed in the first week of August, 2020. On 16/09/2020, said Amitava Chowdhury, the son of the complainant visited the office of the Opposite Party No. 1 and found the car was in very bad condition and at that time it was told that for servicing of the car, an amount of Rs.50,000/- would require. Complainant’s son agreed to pay the balance amount of Rs.20,000/- at the time of delivery of the car as Rs.30,000/- was already paid earlier. It is alleged on behalf of the complainant that despite several assurances Opposite Parties could not get the car ready and every time they issued false assurance. In the month of April, 2021, complainant’s son sent a letter enquiring about the delay in delivery of the said vehicle to which Opposite Party No. 1 gave same excuse of global pandemic due to Covid -19. Complainant’s son visited the office of Opposite Party No. 1 on several dates but on all occasions, he was given false assurance. On 24/09/2021, the complainant received a call from the Opposite Parties that their car was made for delivery. Accordingly, complainant’s son went there when a bill of Rs.49,409/- was raised and as he already paid Rs.30,000/-, the balance amount of Rs.19,490/- was paid by him. He also had to pay Rs.60,000/- towards garage rent. Complainant also alleged that on inspection of the car, his son found the condition of the car was even worse than the condition at which it was delivered to Opposite Party No. 1 workshop for servicing. Then the car could not be taken out in the workshop in proper running conditions. The tyres were punctured, there was not diesel, no lubricating oil, etc., battery was out of charge. He then with the help of crane took the vehicle to D.K Motors and spent there Rs.35,130/- for thorough servicing etc. It is also alleged by the complainant that during the stay of the car at the workshop of Opposite Party No.1, complainant got message from West Bengal Traffic Police Department in connection with their said vehicle and he also verbally demanded an explanation for such message from the Opposite Parties as it was in their garage at that time. So, complainant alleged deficiency in service and fraudulent act on the part of the Opposite Parties in respect of proper servicing of their vehicle. So, complainant prays for payment of Rs.1,09,490/- along with interest from the Opposite Parties compensation and cost of litigation. She also prayed for compensation of Rs.2,00,000/- and cost of litigation of Rs.1,00,000/-. So, notice was served upon the Opposite Parties but they could not file written version within the stipulated time. So, their written version could not be accepted. Then complainant adduced evidence. Brief notices of argument were also filed on his behalf. So, point for consideration is whether the complainant is entitled to the relief (s) as prayed. FINDINGS Besides filing evidence, complainant is found to have also filed several documents as ‘Annexures’. In this case, complainant claims relief in the form of a direction upon Opposite Party No. 1 for payment of Rs.1,09,490/- along with interest which seemed to be the amount paid by her to Opposite Party No. 1 in connection with the servicing of her vehicle. She also prays for compensation and cost of litigation etc. From the evidence and the documents filed on behalf of the complainant as ‘Annexures’, it is found that complainant delivered the vehicle to the workshop of the Opposite Parties for servicing and she also paid Rs.30,000/- and thereafter, another Rs.19,490/- against the final bill raised by the Opposite Party No. 1 of Rs.49,490/-. It is further found that she also paid Rs.60,000/- as garage rent. It is alleged by the complainant that Opposite Party No. 1 did not work as per agreement and at the time of taking delivery of the vehicle from Opposite Party No. 1, her son found the condition of the vehicle was even worse than the condition when it was delivered for servicing and that is why, he had to take the vehicle with the help of a crane and took it to another garage for work. In this connection, let us see what the complainant stated in both her petition of complaint and evidence of her witness (relevant paragraphs No. 22, 23 & 26). We find as per evidence of the complainant’s son, that on 24/09/2021, on receipt of the phone call from the staff of the Opposite Parties, his mother sent him to take delivery of the vehicle from Opposite Party No. 1 which was said to be ready for delivery. Accordingly, on arriving at the office of the Opposite Party No. 1, he requested their employees to inspect the vehicle but he was told that only after full payment of the remaining dues, he would be allowed to do the same though was told that the servicing of the vehicle was complete. Accordingly, he made the payment including Rs.60,000/- for garage rent. Then on payment of the amount of the bills, he was allowed to inspect the vehicle and he found it in a worse condition. All the tyres were found punctured, there was no diesel engine oil, battery was out of charge etc. All these statements of the witness though made on affidavit seemed to be preposterous and not easily believable. In a normal case what happens, a man of reasonable prudence, in such a case, would inspect the vehicle before making payment in full of the final bill as he has to check whether the assigned work was duly performed or not. Mere by making an allegation that he was not allowed to inspect the vehicle before payment is not at all believable particularly, when the workshop where the vehicle was delivered for servicing and the office of the Opposite Parties are found to be at the same place. In this connection, it may also be pointed out, regarding the traffic case in respect of the said vehicle registered by the Traffic Police Department, as alleged by the complainant that we are not in a position to hold as to how the said traffic case was registered because the same does not fall within the domain of this Commission. The document (Annexure- I) which appears to be a copy of a voucher issued by Zoya crane service showing payment of Rs.1000/- in respect of vehicle No.WB07J3494 dated 24/09/2021 does not bear the name as to the person who paid the said amount. Again, a copy of one cash memo dated 22/10/2021 (Annexure- J) which is said to have been issued by D.K Motors has been filed by the complainant. Though some particulars about the work have been mentioned therein, it actually does not reveal when and what stage the said D.K Motors received that vehicle for servicing. Complainant is found to have taken no initiative to show the actual condition of the vehicle at which he received the same from the Opposite Parties by producing a report of a mechanical expert in this field. Only a report on examination of the vehicle by an expert could have brought the real picture and the absence/lack of any such report cannot be filled up by the documents as Annexure- I & J as stated above. So, this being the position, we are compelled to hold that we are not at all convinced to allow the relief (s) as prayed for in this case. As a result, the instant complaint is liable to be dismissed. Accordingly, it is ORDERED That the instant case be and the same is dismissed on contest. No order as to costs. Dictated and corrected by me. President |
