IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 16th day of June, 2018
Filed on 19.10.2016
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.326/2016
Between
Complainant:- Opposite party:-
Sri.Anzil Basheer Sri.Binu
S/o Basheer, Proprietor,
Ishaal House, B.M. Motor Works,
Thondankulangara, Opposite Matha Central School,
Alappuzha. Thumpoly, Alappuzha.
(By Adv.K.T.Anishmon) (By Adv.T.D.Rajendrakumar)
ORDER
SRI.E.M. MUHAMMED IBRAHIM.B.A.LLM (PRESIDENT)
This case based on the complainant filed by one Mr. Anzil Basheer against the opposite party return Rs.8950/-being face value of the spare parts and compensation Rs.25000/- and cost of the proceedings.
2. The averments in the complaint in short are as follows:-
The complainant purchased one Skoda Activa Car bearing No.KL-01-AP 6996 for his personal use and on 17-09-2016 the car was entrusted at the opposite party’s work shop for carrying out the repair and maintenance work. The opposite party agreed to carry out the repair and maintenance work within 3 days. But he has not carried out the repair work within the stipulated time. Though the complainant and his friends visited the opposite party and his work shop and requested to return the car carrying the work but evaded the request by stating one reason or other. On 08-10-2016 intimated by the opposite party one Mr.Khaiss. This friend of the complainant went to the shop of the opposite party after repair work and he wanted to conduct test drive there upon the opposite party insisted to set the bill and thereafter to conduct test drive and also issued a cash bill for Rs.11050/- including estimate of materials worth Rs.8950/-. However the said Khaiss made a test drive there upon it was found that the earlier defect for the Axil remains that the left mirror was not fitted and that roof of the car was not stitched. In the circumstances the complainant’s friend Khaiss told that the opposite party is entitled to get the expense relating to maintenance of the A/C only and he is not entitled to get the other expense. On hearing the above the opposite party refused to receive the amount and also used abusive language against him and also threatened him by stating that take back the vehicle and he knows how to realise the amount. Thereafter by influencing the police foisted a false complaint and complainant went to the North Police Station and the police without hearing the complainant caused him and to pay Rs.11050/- and due to the above incidents the complainant has sustained mental pain and agony apart from monitory loss. The opposite party without carrying out the repair work has unlawfully obtained Rs.11050/- from the complainant and therefore there is deficiency in service on the part of the opposite party. Hence the complaint.
3. The opposite party resisted the complaint by filing detailed version raising the following contentions.
The complaint is not maintainable either in law or facts. The complainant has been filed without any bonafides. There is no consumer relationship between the complainant and opposite party. The complainant is a person who used to purchase second hand vehicle on a low price and used to sell the same on a high price. Thereafter he is not a consumer. No paint or upholstery work has been done at the workshop of the opposite party. The complainant’s friend Khaiss has caused to purchase left side mirror and the same is kept without fitting the same. As no upholstery work has doing at his workshop to do and he has not agreed to do any upholstery work of the roof of the car nor he obtained any amount for that purpose. The complainant has not requested to replace the A/C completely. He has also not requested to replace only the CV joint of the front right Axil. There was only a direction to reduce noise starting from the running Axil and he has carried out that work. Neither the complainant nor his friend Khaiss was ready to bear the cost of the spare parts for removing the noise from the Axil of the car. During the night of 08-10-2016 when the opposite party was not available at his workshop, Khaiss forcefully taken away the car from the workshop. The other allegations are incorrect that he has not conducted any test drive and observed that there was no reduction in the noise starting from the Axil and therefore he was not ready to pay the bill amount etc. are incorrect. However the complainant has paid the bill amount at the Police Station as the car was taken away from the workshop without settling the bill. The complainant has not sustained any mental agony. He filed complaint before police due to the fact that the complainant has caused to take away the car without settling the bill. Due to the above conduct of the complainant there is no chance of causing any mental agony or loss. The opposite party has obtained the amount for service rendered by him and not obtained any excess amount. The complainant is not entitled to get any relief.
4. In view of the above pleadings the points that arise for consideration are:-
(i) Whether there is any deficiency in service or unfair trade practice on the
part of the opposite party.
(ii) Whether the complainant is entitle to realise bill amount and compensation
from the opposite party.
(iii) Reliefs and costs.
5. Evidence on the side of the complainant consists of the oral evidence of PW1& PW2 and Ext.A1 to A3 and Ext.C1 documents. Evidence on the side of respondent consists of oral evidence of RW1 & RW2 and Ext.B1 & B2 series documents. Expert commission report has been marked as Ext.C1. Though sufficient opportunities was granted to file notes of arguments and advance oral arguments learned council appearing for both sides have neither filed any notes of arguments nor advanced any oral arguments. Hence the case has been taken up for order.
6. Point No.1&2 :-
For avoiding repetition and discussion of materials these 2 points are considered together. The 4 fold main allegations of the complainant against the opposite party are :-
(1) The complainant on 17-09-2016 has entrusted his vehicle Skoda Activa car bearing No. KL-01-AP 6996 which was in personal use for carrying out repair and maintenance work. The complainant entrusted the vehicle to the opposite party to carry out the following works,
(a) Left mirror has to be fitted.
(b) Upholstery work has been done.
(c) Unusual sound from the Axil has to be reduced.
(d) The complaint of A/C has been rectified.
According to the complainant the opposite party has not carried out the repair and maintenance work to his satisfaction and at the time of taking delivery it was found that the first 3 defects were not carried out but the defect of the A/C alone was rectified.
Ext.B2 is the customer complaint in respect of the vehicle Skoda Activa bearing number KL-01-AP 6996. The date shown in Ext.B2 is 26-9-2016. However the promised date of delivery of the car is not shown against respective columns. It is also not seen signed. It is to be point out that as per B2 the complainant has made 3 major complaints.
(i) A/C complaint
(ii) Axil right complaint
(iii) Side mirror left.
As indicated in Ext.B2 the vehicle has been entrusted to the opposite party at his workshop to cure the above 3 major defects. In view of the oral evidence to be PW1 & PW2 and the expert report filed by the motor vehicle Inspector attached to RTO Alappuzha it is clear that interior roof was not fixed. The frond left side mirror was in detached condition and only mounting bracket attached to the vehicle. The remaining part of the mirror and the new mirror supplied was kept inside of the vehicle. The opposite party replaced blower motor resister in connection with climate (A/C repair). The expert has further reported there is big popping noise from the left side of the vehicle while it turning to both sides. The noise is originated from front left side axil CV joint. The front right side CV joint and dust boot found fitted with wire tag instead of metal clips. The opposite party had repaired the front left side outer CV joint to eliminate noise but he could not complete it properly. In view of the above expert report (Ext.C1) it is clear that the opposite party has not fully carried out the work entrusted to him and therefore there is deficiency in service on the side of the opposite party.
7. The second allegation is that the complainant has entrusted the car for repairing work. The opposite party agreed to carry out the work within 3 days but he has miserably failed to carry out within the stipulated time. Inspite of repeated request to return the car after completing the repair and maintenance work the opposite party failed to comply with the request. However on 8-10-2016 which is after 21 days the opposite party intimated the complainant to take delivery of the vehicle. Accordingly one Khaiss who is the friend of the complainant went to the workshop of the opposite party and wanted to have a test drive after the repair work but the opposite party insisted to pay the bill and then only he will allow to conduct test drive and also issued a cash bill for Rs.11,050/- including estimate of Rs.8,950/. However the said Khaiss made a test drive and there upon he found that the earlier defect of the Axil was not cured. The left mirror was not fitted and the upholstery work was not carried out but the maintenance work of the A/C was seen carried out. The opposite party has not carried out the repair and maintenance work within the stipulated time but carried out only a part of the work that to by taking about 3 weeks instead of the agreed 3 days and therefore according to the complainant he sustained mental agony and financial loss. According to PW1 inspite of repeated request the opposite party was not ready to carried out the repair work and deliver the repaired car but ultimately he hand over the car after carrying out part of the repair works and at a highly belated stage that is on 8-10-2016. The opposite party has also not disputed the above allegation of the complainant that he agreed to return the car after carrying out the repair work within 3 days. The opposite party has also no dispute that the PW2 Khaiss who is the friend of the complainant has taken delivery of the vehicle on 8-10-2016. But the opposite party has not explained the delay in getting the vehicle repaired as he agreed. However at the evidence stage opposite party has developed a case that his workshop was not functioning from 13-09-2016 till 18-09-2016. The opposite party has also denied having entrusted the above car for repair work at his workshop on 17-09-2016 as claimed by the PW1in his complainant. Even if the contention of the opposite party that his workshop was closed for 5 days it opened on 18-09-2016 which is not a justification for the inordinate delay of carrying out the repair work. The delayed delivery the vehicle without assigning any valid reason whatsoever would definitely amount to deficiency in service on the part of the opposite party.
8. The 3rd main allegation of the complainant is that though the opposite party claims that he sold certain spare parts for the purpose of repairing cars to the complainant without issuing any proper bill. The above allegation has been admitted by the opposite party when he was in the witness box. During cross examination RW1 would admitted that he has sold certain spare parts from his own spare parts shop but he has not issued any bill but he has given only A3 document to the complainant which is admitted to be not a cash bill or credit bill but only an estimate. RW1 would therefore admit that being the proprietor of the spare parts shop, is bound to issue cash bill indicating the price of each item, even if the consumer has not demanded the bill. In the light of the oral evidence of the PW1 and admission of RW1 coupled with Ext.A3 document it is clear that there is unfair trade practice on the part of the opposite party, as he has not issued any cash or credit bill in respective of the spare parts claimed to be sold to the complainant to carry out the repair work of his Skoda Activa car.
Now regarding the 4th allegation that the opposite party has charged excess bill. As the complainant has not issued any proper cash bill the claim of the complainant he has charged excess price for the spare parts cannot be brushed aside. The opposite party has issued Ext.A3 estimate. The claim of the complainant is that the spare parts used by the opposite party to carry out the repair work of the vehicle were charged with excess price. There is nothing on record to show that the opposite party has issued any cash or credit bill indicating the MRP or the price charged by him for each spare part. Hence it is clear that there is unfair trade practice on the part of the opposite party. It is also clear from the available materials that though the opposite party has charged heavy repairing charge he has not stitched the upholstery work it no such works are carried out at his workshop then he would not have untied the upholstery of the car. In view of the materials discussed above we have no hesitation to hold that there are clear unfair trade practice and deficiency in service on the part of the opposite party.
Admittedly the opposite party after carrying out the repair work has not delivered the vehicle in proper time and there is ordinate delay in getting the vehicle repaired and hence the complainant has sustained much mental agony and financial loss. Apart from that the opposite party has not allowed PW2 who has been deputed by the complainant to take delivery of the vehicle after getting it repaired and when PW2 requested to the opposite party to allow him to make a test drive to verify the satisfactory condition of the vehicle before taking delivery of the vehicle. The opposite party has not allowed by demanding to pay the bill for which PW2 was not amenable. Hence PW2 has forcefully taken the vehicle from the opposite party. It is also clear that PW2 has conducted a test drive and found out that the repair and maintenance work was not satisfactory and therefore he has not paid the bill. It is also clear from materials available on record that the bill amount was highly disproportionate to the work carried out by him. It is also brought out the evidence that the opposite party has filed Ext.B1 complaint before the C.I. of Police concerned who in turn without hearing the complaint has directed him to pay off the bill amount. Accordingly PW1 paid the bill amount under protest as directed by the Police authority. According to the complainant the above conduct of the opposite party and Police officials has caused much mental harassment and therefore he is entitled to get compensation from the opposite party.
Though the opposite party has seriously contested the matter by examining RW1 & RW2 and marking Ext.B1 & Ext.B2 series documents, we find no reason why compensation shall not be allowed for the loss caused to complainant on account of the delayed delivery of vehicle from the workshop of the opposite party, for the incomplete maintenance and repair work and non rectification of the defects for which the vehicle was entrusted for repair work and for the mental agony and harassment due to the Police and its consequences. In view of the facts and circumstance of the case we are of the view that Rs.25,000/- will be sufficient compensation to be awarded. The points answered accordingly.
However it is brought out the evidence as per Ext.A3 estimate the opposite party has supplied materials worth Rs.8950/- it is clear from Ext.C1 expert record the opposite party has carried out certain work and the mirror was purchased and kept at the car without fitting the same. In the circumstances the complainant is not justified in claiming the refund of the entire value of spare parts. It is true that the complainant has realised heavy price for the spare parts but the quantum of excess price cannot be ascertained without sufficient materials on record. Therefore we are not in a position to allow ‘A’ relief sought for in the complaint.
Point 3:-
In the result complaint stands allowed directing the opposite party to pay Rs.25000/- (Rupees twenty five thousand only) as compensation to the complainant within 45 days from today.
The opposite party is also directed to pay Rs.5000/- as cost of the proceedings to the complainant.
If the opposite party fails to comply with direction Rs.25,000/- awarded as compensation will carry interest at the rate of 12% per annum from the date of complaint (19-10-2016) till realisation from the opposite party and his assets.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 16th day of June, 2018.
Sd/-Sri.E.M.MuhammedIbrahim (President):
Sd/-Sri. Antony Xavier (Member) :
Sd/-Smt. Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Ansil Basheer (Witness)
PW2 - Khaiss Yoonus (Witness)
Ext.A1 - Vehicle sale agreement
Ext.A2 - Cash bill, dated 8/10/2016
Ext.A3 - Estimate, dated 8/10/2016
Evidence of the opposite parties:-
RW1 - Binu V.P (Witness)
RW1 - Raveendran (Witness)
Ext.B1 - Copy of the complaint filed before North Police Station, Alappuzha
Ext.B2 - Job Card, dated 26/9/2016
Ext.B3 Series - Job Card (3 Nos.), dated 7/9/2015, 28/10/2015 and 2/5/2016
Ext.C1 - Expert Commission report
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Sa/-
Compared by:-
