Kerala

Idukki

CC/187/2019

babu K M - Complainant(s)

Versus

Crystal Motors - Opp.Party(s)

28 Oct 2022

ORDER

DATE OF FILING :5.11.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  28^th  day of  October,  2022

Present :

                    SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.187/2019

     Between

Complainant                                        :   Babu K.M.,

                                                                 Kallammackal House,

                                                                 Vazhithala P.O.,

                                                                 Iruttuthodu, Thodupuzha.

(By Adv: Shiji Joseph)

        And

Opposite Party                                     :   Crystal Motors,

                                                                 Chungam, Pala Road, 

                                                                 Thodupuzha.

                                                                 Represented by its Managing Partner

                                                                 Bineesh.

(By Adv: C.K. Babu)

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1.  This is a complaint filed under Section 12 of Consumer Protection Act, 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant’s son is the registered owner of a Renault Logan car having Reg. No.KL-32-C-4028.  Complainant is a lorry driver and he is using this vehicle.  Therefore he had filed this complaint for and on behalf of his son also.  Opposite party is the proprietor of a car workshop, in the name and style Crystal Motors, Thodupuzha.  Due to oil leak from the part of crank oil seal and timing belt area foreman who had inspected the vehicle informed the complainant that crank oil seal area had become oval in shape and therefore it could not be sealed properly.  Spare parts of the vehicle were very rare in market, since company had stopped manufacture of the said model.  Therefore, opposite party had advised complainant to purchase an old engine and to replace it with the existing one.  Accordingly, complainant had purchased an old engine and entrusted it with opposite party.  On 30.9.2019, when complainant had taken the                                                                                                            (cont……2)

• 2  -

vehicle from opposite party’s workshop, he had realized that opposite party had dismantled gear box, instead of changing crank oil seal.  When questioned about this, opposite party had informed him that they cannot change oil seal of crank without dismantling gear box first.  Opposite party had charged Rs.11,600/- for the repair.  Therefore, on 4.10.2019, when complainant’s son took the vehicle for going to Vazhithala, there was oil leak again from  engine.  Upon being contacted, opposite party had requested complainant to bring the vehicle to his workshop.  After one week, upon being informed by opposite party, that there were no complaints, complainant had taken back the vehicle on 12.10.2019.  To the dismay of complainant, on the same day itself, during evening time, fan belt of the vehicle had broken while the vehicle was plying through Thodupuzha town.  Again, when complainant contacted opposite party, he was asked to tow the vehicle to the workshop of opposite party.  Opposite party had changed the fan belt, without ascertaining condition of timing chain, started the engine again.  Complainant submits that in cases where fan belt is broken condition of timing chain has to be ascertained before starting engine.  Or else, engine damage will be occasioned.  Since opposite party had, without ascertaining whether any broken pieces of fan belt had entered into timing chain, cranked the engine and due to this, engine of the car has sustained excessive damages.  This act of opposite party amounts to deficiency in service and therefore, complainant is entitled to get the engine repaired at the expenses of opposite party.  Due to deficiency in service, complainant was unable to use the vehicle for one month.  Complainant was put to much inconvenience as unfortunately, during this time, his leg was fractured and he was in more need of vehicle during that time.  Complainant therefore prays for a direction against opposite party to pay repair costs of the vehicle as estimated by the Commissioner to be appointed in the case for reconditioning the engine and also to repay Rs.11,600/- earlier charged by opposite party.  He further seeks damages of Rs.1 lakh for inconvenience and mental agony suffered due to insufficiency in service and Rs.10,000/- towards litigation costs.

 

          2.  Upon notice, opposite party had entered appearance and filed written version contending as hereunder :

 

          According to opposite party, complaint is not maintainable in law or upon facts.  Complainant had approached opposite party with a complaint of old leak from rear oil seal of the crank.  This was rectified.  When complainant had come to take delivery of the vehicle on 30.9.2019, he had sought time for paying repair charges which came to Rs.11,600/-.  As there was no payment, complainant has given only an estimate of the repairs.  Complainant had then taken delivery of the vehicle on 30.9.2019 itself.  It is incorrect to say that there was another instance of oil leak on 4.10.2019 and complainant had entrusted the car again for rectifying the defects.  It is further incorrect to say that the vehicle after effecting repairs was taken back by complainant on 12.10.2019.                                                                                                                 (cont…..3)

• 3  -

Opposite party submits that he had not heard from the complainant after he had taken back his car on 30/09/2019 until  12.10.2019, when complainant had telephoned him that the vehicle had suddenly broken down while it was running.  He had asked complainant to tow the vehicle to his workshop.  When the car was so brought to the workshop, upon external examination, it was found that fan belt was broken.  So it was to be presumed that timing belt will have to be changed as there was every likelihood of some damage to engine also.  Damages and repairing charges could be assessed only after dismantling the engine.  Complainant was advised accordingly.  Opposite party had sought payment of early bill of Rs.11,600/- and also  advance payment for repairing, if the complainant were to choose opposite party for doing necessary repairs. After informing opposite party that he will come with money, complainant had left the workshop leaving the car there.  There was no contact from the side of complainant thereafter.  Opposite party had then received a notice from this Forum in connection with this complaint.  Vehicle is laying idle in the workshop of opposite party from 12.10.2019 onwards.  Complainant is bound to pay demurrage for leaving the vehicle there.  Opposite party has not done anything to rectify the defects caused due to fan belt issue.  Leakage from oil seal of crank was from the rear side of engine and fan belt is on its front side.  Both are independent repair issues.  These are  due to wear and tear of engine.  The car was 10 years old and worn out when initially brought to the workshop of opposite party.  It had run more than 1,00,052 kms.  Intention of complainant is to get the vehicle free of cost from opposite party and also to extract money from him.  Complaint is experimental in nature and is to be dismissed with cost.

 

          3.  During the pendency of these proceedings, upon application by complainant, an expert commissioner was appointed for inspection of the vehicle in question.  Accordingly, Motor Vehicle Inspector of Sub RTO at Thodupuzha, who was appointed as expert by this Commission had inspected the vehicle on 11.12.2019  after notice to both sides and filed Ext.C1 report.  Since no further steps were taken, case was posted for evidence.

 

          4.  From the side of complainant, he himself was examined as PW1.  Exts.P1 and P2 were marked.  Expert Commissioner was examined as CW1 and his report was admitted as Ext.C1.  On the side of opposite party, he himself was examined as RW1.  No documents were admitted on his side.  Complainant had thereafter again sought for an opportunity for reopen evidence.  It is seen from the proceedings that though a witness schedule was filed initially, one being the nephew of the complainant and other, the Commissioner, only the Commissioner had appeared on summons.  As mentioned earlier, after examination of RW1, there was representative from the side of complainant of an application being filed to reopen evidence, purportedly, to examine his nephew as a witness.  No application was filed.  Proceedings reveal that on the last date of evidence                                                                                                       (cont….4)

-  4  -

as such complainant was not present either.  Nor was his nephew.  Evidence was closed.  No arguments were advanced from the side of complainant.  We have heard counsel appearing for opposite party.  Now the points which arise for consideration are:

1)  Whether there was any deficiency in service ?

2)  Whether complaint is entitled for the reliefs prayed for in the complaint ?

3)  Final order and costs ?

 

5.  Point Nos.1 and 2 are considered :

 

          We have gone through the complaint, documents produced and Ext.C1 report filed by CW1.  Ext.P2, it is seen from the proceedings, that the document was marked subject to decision regarding admissibility.  As per the Act, rules of evidence are not strictly applicable to the proceedings before the Forum.  What learned counsel for opposite party had meant was that the document should be scrutinized carefully and its reliability should be decided on the basis of evidence by the person who is competent to prove the same.  Ext.P2 is an estimate of repair charges purportedly issued by opposite party. In the written version filed, it admitted that such an estimate was given and therefore contentions raised about its reliability are not sound.  In the complaint, complainant has mentioned or rather attributed two acts which amounts to deficiency in service from the side of opposite party.  1^st one is dismantling of gear box instead of changing crank oil seal.  During his cross examination, complainant has admitted that he had not gone to the workshop of opposite party on 30.9.2019, 4.10.2019 or on 12.10.2019, the three occasions when as per complainant, he had gone to the workshop of opposite party in connection with repair of the car.  30.9.2019 is the first instance.  This was for the purpose of rectifying leakage of oil from crank oil seal and timing belt area.  As mentioned earlier, he had admittedly not gone to the workshop or had supervised the work carried out on that date.  Specific case is that there was oil leakage from crank oil seal area and timing belt area.  During his cross examination, he would correct this and said that mentioning of oil leak from crank oil seal area in the complaint is not correct.  He would further state that he does not know the location of crank oil seal in the engine.  His evidence would reveal that he has no   specific case with regard to areas from where oil leak was found to be occurring outside the engine.  Ext.C1 also does not throw much light here.  CW1 has opined in Ext.C1 that for changing rear oil seal, gear box is to be removed from the engine.  Complainant has not made out a specific case that dismantling of gear box was not necessary for rectifying the problem of oil leakage from the crank side or timing belt region. Apart from all these, pleadings are addressed to the effect that a comparatively new engine which had done less kilometres was brought as replacement for the old one as advised by opposite party. Complainant has no case that replacement as above was not done. If the engine itself is replaced with a newer one, there was no necessity to repair the old engine.                                                                                                                                 (cont….5)

• 5  -

          Second and more graver accusation is that fan belt was changed and engine cranked by opposite party without checking condition of timing belt.  Here again, complainant has no case that he had seen opposite party starting the engine without ascertaining the condition of timing belt after changing the fan belt.  It is admitted by both sides that the vehicle was towed to the workshop of opposite party on 12.10.2019 from the spot where it was broken down.  Admittedly, the engine had broken down in the midst of running when its fan belt had broken.  Probabilities of engine damage due to sudden breaking of fan belt cannot be ruled out entirely.  Case of complainant that opposite party had cranked engine after changing fan belt without ascertaining the condition of timing belt has not proved satisfactorily by him.  His son who had taken the vehicle to workshop on 12.10.2019 has not been examined.  The said son on whose behalf the complaint had been filed by complainant, had not come on any occasion before this Commission.  Even his name is not mentioned in the complaint.  Though he is the registered owner of the vehicle, he has not been arrayed even as 2^nd complainant, in the complaint.  Not is an authorization filed by complainant to file the complaint on behalf of his son who is in fact the registered owner of the car.

 

          It is also pertinent to note that in complaint, there is no mention of either the nephew of complainant or son of the complainant, going to the workshop of opposite party seeking repair of the car.  In paragraph 4 and 6, averments are to the effect that complainant had gone to workshop and changing of fan belt took place in his presence.   It is mentioned in paragraph 5 that the vehicle had broken down when the son of complainant was at its wheels.  We also notice that name of the nephew, who had taken the car to workshop or that of the son who had taken it, as deposed by complainant, is not mentioned anywhere in the complaint.

 

          Both instances of deficiency in service, which are alleged by complainant, falls short of requisite degree of proof.  We also notice that the vehicle was 10 years old and had run 1,00,052 kms.  Braking down of such a vehicle due to normal wear and tear is a possibility which could not be ruled out.  Admittedly, production of vehicle has stopped and availability of its spares is also quite rare. When viewed under this perspective, probabilities are that complainant doesn’t want to invest much in repairing the car and had chosen to abondon it and to make some money in the process by putting the blame upon opposite party.  Complainant is not entitled to get the vehicle repaired at the expenses of opposite party or to get repair charges as to be determined by the Commissioner.  There is no reliable evidence to show that service rendered for repairs initiated on 30/09/2019 was defective. Admittedly vehicle was taken back in running condition.  Complainant  is not entitled for the reimbursement of repair charges either.  Since deficiency in service is not proved, complainant is not entitled for any compensation or costs.  Point Nos.1 and 2 are answered accordingly. 

                                                                                                              (cont…..6)

-  6  -

6.  Point No.3 :

 

          In the result, this complaint is dismissed without costs.  Parties shall take back all copies submitted.

 

                    Pronounced by this Commission on this the    28^th   day of October, 2022

 

                                                                                          Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

                                                                                                            Sd/-

 SMT. ASAMOL P., MEMBER

                                                                                                            Sd/-

SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Babu K.M.

CW1        -  Benny Jacob

On the side of the Opposite Party :

DW1        -  Bineesh K.G.

Exhibits :

On the side of the Complainant :

Ext.P1      -   Copy of RC Book.

Ext.P2      -   copy of estimate.

Ext.C1      -  Commission report dated 19.12.2019.

On the side of the Opposite Party :

Nil.

 

 

  Forwarded by Order,

 

 

        ASSISTANT REGISTRAR