DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No: 148 of 2010] Date of Institution : 11.03.2010 Date of Decision : 18.05.2012 ----------------------------------------- Shri Yash Pal Thakur son of Shri Shiv Singh, resident of Village Kotla, P.O. Sultanpur, Tehsil and District Solan, H.P. ---Complainant. VERSUSHind Motors (India) Ltd., 9 & 15, Industrial Area, Phase-I, Chandigarh, through its General Manager. ---Opposite PartyBEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: None for the parties. PER JASWINDER SINGH SIDHU, MEMBER 1. The case was fixed for arguments, as none appeared on behalf of either of the Parties, hence, the present complaint was proceeded to be disposed off on merits under Rule 4(8) of the Chandigarh Consumer Protection rules, 1987 read with Section 13[2] of the Consumer Protection Act, 1986 (as amended up to date). 2. Complainant has filed the present complaint against the Opposite Party on the grounds that the Complainant is the owner of TATA Safari vehicle bearing Regn. No. HP-14B-0086, being a contractor by profession has been using the vehicle in question for personally visiting various sites of his work as a mode of conveyance. The Complainant visited the workshop of Opposite Party for periodic service and other repair work on 15.12.2009. One Sh. Mukesh, Service Adviser, who inspected the vehicle, was made aware about the job work to be carried out of the said vehicle i.e. to repair power window problem, to change interiors of the door and roof and other minor repairs, Sh. Mukesh Kumar, the Service Adviser, issued a job slip with an estimated cost of Rs.27,000/- and promising the date and time of delivery as 20.12.2009 at 5.00 O’clock. The kilometer reading of the vehicle noted at that point of time was 1,71,697 Kms. and the fuel available in the tank has been shown as 1/4th of the total capacity. The job slip is annexed at Annexure C-1. 3. The Complainant on inquiring the status of repair of the vehicle in question on 20.12.2009 was further advised to come after another five days as some spare parts are not available with them and had been ordered to the manufacturer. The Complainant reached the Opposite Party on 25.12.2009 and on having inspected his vehicle was surprised that the vehicle was not starting and the interior work as specifically demanded by him was not carried out. The Complainant claims that he was shocked to have received a computer generated proforma invoice amounting to Rs.37,278.18P against the service and repair of the vehicle. The Complainant has alleged that the repair work which was demanded by him and was specifically explained to the Service Adviser had not been carried out whereas the vehicle was not even in a roadworthy condition and the spares sourced from the manufacturer still remain to be fixed. The Opposite Party promised to deliver the vehicle after doing the needful but failed to respond to the several calls of the Complainant, inquiring about the status of the vehicle. The proforma invoice dated 25.12.2009 raised by Opposite Party is annexed as Annexure C-2. 4. The Complainant during this period of repair had hired a taxi by paying Rs.1,000/- per day as he did not have any other mode of conveyance. The Complainant has alleged that the Opposite Party has indulged in unfair trade practice and has also caused physical & mental harassment by rendering deficient services. The Complainant has also alleged that such an attitude of not doing the right job as promised by them amounts to deficiency in service and at the same time claiming to have done the job which was not asked for, and demanding money for the same is an unfair trade practice and such an act, also goes against the reputation of the company in the eyes of general public. The Complainant having repeatedly requested the Opposite Party to do the needful, but the Opposite Party flatly refused to repair the vehicle and deliver it in roadworthy condition. Thereafter, the Complainant served a legal notice dated 13.1.2010 through his counsel, which is annexed as Annexure C-3, claiming damages on account of unfair trade practice and deficient services. 5. The Complainant has prayed for damages against the Opposite Party to the tune of Rs.2,21,000/- along with interest @12% p.a. as well as a prayer for the orders of this forum, seeking delivery of the vehicle in question in roadworthy condition is also mentioned. 6. Opposite Party has contested the claim of the complainant by filing its reply, taking preliminary objections to the effect that the Complainant is not a consumer of the Opposite Party as no consideration amount has been paid till date towards the repairs done to the vehicle in question. Furthermore, it is also mentioned that the vehicle was purchased in the year 2002 on 7.10.2002 and the same is not covered under warranty. The Complainant was supposed to make the payments against the repairs meted out to the vehicle before coming to this forum. The Opposite Party has also categorically mentioned in para 2 of their reply that the Complainant is knowingly and intentionally not lifting his vehicle from the premises of the Opposite Party and thus it entitles the Opposite Party to charge Rs.200/- per day as garage charges from 1.1.2010 till the vehicle in lifted from its premises. The Opposite Party prays that the present complaint is not maintainable in its present form and the same deserves to be dismissed for being false, vexatious, frivolous and baseless. It is also submitted the Opposite Party that the Complainant has filed the present complaint with ulterior motive and malafide intentions to cause harassment and prejudice against the Opposite Party. 7. On merits, the Opposite Party has contested the claim of the Complainant repeating the submissions mentioned in the preliminary objections and claiming that the Complainant is not qualified as a consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1986. At the same time, he himself having admitted to have used the vehicle in his business engagements. Thus, terming it to be a commercial activity, which also disentitles the Complainant to file the present complaint under the Consumer Protection Act, 1986. The Opposite Party has cited the case of Laxmi Engineering Works Vs. PSG Industrial Institute (1995 II CPJ 1 SC) for this purpose. 8. In reply to para 2 of the complaint, the contents are admitted to be the part of record. Whereas while replying to para 3 and 4 the same are cited to be wrong and denied. The Opposite Party while having admitted to the issuance of Annexure C-1 Proforma Invoice worth Rs.37,278.18P and has claimed that this bill was raised against the job slip of the Opposite Party and the Complainant was informed accordingly through their letter dated 4.1.2010, asking him to take the delivery of the vehicle. The Opposite Party also have claimed to have mentioned that if the vehicle in question is not taken delivery of, by 6.1.2010, the same would entitle them to charge Rs.200/- per day as garage charges till the vehicle in question is lifted from their premises. The Opposite Party has denied any knowledge about the Complainant having hired the services of a Taxi @ Rs.1000/- per day for his personal use and have claimed that the Complainant is not entitled for any such relief. 9. The Opposite Party in reply to para 4 has categorically stated that Opposite Party has replied to the legal notice dated 13.1.2010, served upon it by the Complainant, as the same was replied through their communication (Annexure OP-2 & OP-3). The Opposite Party thus claiming that the present complaint does not entitle the Complainant for any compensation nor any relief for damages can be claimed against the Opposite Party. According to Opposite Party, there is no deficiency in service or unfair trade practice on their part and the complaint deserves dismissal. 10. Parties led their respective evidences. 11. Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and the written arguments of the opposite party, we have come to the following conclusions. 12. It is noticed that during the pendency of the present complaint, an application dated 24.5.2010 was moved by the Complainant for effecting the delivery of the vehicle (HP-14B-0086), lying at the premises of the Opposite Party, to him, without making any payments. The Opposite Party did not file reply to this application. However counsel for the opposite party made a statement that the reply to the main complaint be read as its reply to the said application. While disposing off this application, vide its orders dated 11.6.2010, this forum had allowed the release of the vehicle in question in roadworthy condition to the Complainant, after receiving 50% of the disputed bill, by the opposite party. At the same time, the issue of opposite party’s entitlement of full payment against the bill of Rs. 37,278 -/ was left to be decided at the time of final arguments. 13. Subsequently, one more aspect deserves to be mentioned is that this forum vide its order dated 23 July, 2010, had directed the Opposite Party to explain from the job card and the bills placed on record as to what work was done and whether the said work is in consonance with the complaint made by the Complainant or not. The Opposite Party has not filed any document in compliance of the order dated 23 July, 2010, and this issue has remained unaddressed, till the final date when the present complaint was reserved for orders. The failure on the part of the opposite party in not complying with these orders and not helping this forum in properly comprehending the details of the job slip as desired by it vide its order dated 23 July, 2010, is to be construed against it. Thus it establishes that the opposite party has not done the necessary repairs even as per its own job card; leave aside the job that was demanded by the complainant. 14. The opposite party in its submissions in Para -10 of their reply while quoting the Hon’ble Apex Court in case titled Bharti Knitting Company Vs DHL Worldwide Express Courier (1996) 4 SCC 704 has stated that the complainant having signed the contract document, is bound by its terms and conditions, and the onus would be on him to prove the same. However, there is no reference of the document which is being discussed. Even for the sake of example if the opposite party is pointing towards the JOB CARD which is found signed by the complainant. Then the opposite party has itself failed to address the item No 10 (marked with red pencil ) on Annexure C-1 which is “REAR BUMPER” and its repair is not reflected in the invoice Annexure C-2. Thus the stand taken by the opposite party on the basis of the above titled judgment also goes against them. The ratio of the judgment quoted by the opposite party squarely goes against it, as the opposite party too is a signatory to this document. 15. After having gone through the entire reply of the Opposite Party but we find that the Opposite Party has failed in addressing the allegations of the Complainant with regard to the specific job work that was assigned to it by the complainant to repair power window problem, to change interiors of the door and roof and other minor repairs, as there is no reply with regard to these allegations from the side of the Opposite Party; whereas, their reply to the legal notice clearly mentions that after 15.12.2009, the Complainant had verbally increased the instructions and left the vehicle to be taken after completion of such job work, proves that the requirements of the Complainant were not met and the Opposite Party has also failed to explain as to why the same does not finds mention in the job slip purported to have been written by Sh. Mukesh Kumar, Service Adviser to the Opposite Party. There is also no specific reply with regard to the roadworthy condition of the vehicle in question that remained at the premises of the Opposite Party for necessary repairs, till it was released, on the orders dated 11.06.2010 of this forum. Hence in the absence of a clear cut rebuttal of these allegations of the complainant the opposite party has conceded to them, thus the opposite party is found to be deficient in rendering proper services. 16. The Opposite Party in its reply has only contested the qualifications of the Complainant as per the definition of a consumer as per section 2(1)(d) of the Consumer Protection Act, 1986, and also the Complainant being engaged in a business activity, thus being estopped to file the present complaint, as the same falls under the commercial activity. The Opposite Party has also cited a judgment titled Laxmi Engineering Works Vs. PSG Industrial Institute (1995 II CPJ 1 SC), but we feel that the defence taken by the Opposite Party on these grounds is totally out of context and carries no weight. 17. Another interesting aspect that has come to light about the manner in which the Opposite Party functions is borne out of its reply to the legal notice dated 13.1.2010, served upon them by the Complainant. The Opposite Party in its reply dated 11.2.2010 (Annexure OP-2) has claimed in para 4 that the Opposite Party had done all the needful repairs as per his instructions dated 15.12.2009 but subsequently the Complainant had increased the instructions and left the vehicle with the Opposite Party, so that the needful could be done. At the same time, in para 6 of this reply, the Opposite Party has claimed that the Complainant had ultimately collected the vehicle and the vehicle was delivered to the Complainant to his entire satisfaction and that there was no question of any element of surprise as has been alleged in the legal notice dated 13.1.2010. As is evident from the contents of the complaint, and also from the fact that the vehicle in question was delivered to the Complainant on the orders of this forum dated 11.6.2010, hence, this reply dated 11.2.2010 claiming that the vehicle was already stood delivered to the Complainant to his entire satisfaction, is nothing but a grave contradiction to the facts and circumstances of the present complaint. Such kind of replies only aggravate the harassment and agony of an unsuspecting customer. 18. In the present context, the silence of the Opposite Party with regard to the allegation of, not having done their job as per the job slip which was raised on the demand of the Complainant and the same has been established beyond all reasonable doubts, amounts to deficiency in service on the part of the Opposite Party. As the Opposite Party has failed to explain its entitlement to the amount of Rs.37,830/- raised vide its Performa Invoice (Annexure C-2). In the absence of any such claim with regard to its entitlement to the entire amount of Rs.37,830/-, we feel that the 50% of this amount already paid by the Complainant at the time of taking the delivery of the vehicle, vide order dated 11 June, 2010, of this forum, is probably enough for it for the job that they had undertaken to service the vehicle. 19. At the same time, raising a bill, against the Complainant, for the job that he has not agreed to nor was he informed about the requirement of any such job that they had undertaken, amounts to an unfair trade practice. The act of the Opposite Party in claiming a consideration against the work that has not been consented to by the Complainant and doing the same unilaterally on its own without satisfying the Complainant for the need for such a job is totally uncalled for. The Opposite Party was given an opportunity by this forum through its orders dated 23.7.2010 so as to dispel any doubt and also to ascertain that nothing was left unexplained. But the silence on the part of the Opposite Party has only confirmed the allegations of the Complainant against them. 20. Thus, finding a definite deficiency in service on the part of the Opposite Party, in not doing the work promised by them, and making the vehicle in roadworthy condition. We direct the Opposite Party to pay Rs.20,000/- to the Complainant for the harassment and mental agony suffered by him in having to arrange an alternate conveyance for his needs, on account of deficiency in service on the part of the Opposite Party. 21. At the same time as the act of the opposite party, in not having done the promised job work as mentioned at Sr. No. 10 of the Job Card Annexure C-1 (marked with red pencil) and having raised the invoiced dated 25.12.2009 for the repairs that were not agreed upon by the complainant nor there was any intimation to him about it, is an act of an unfair trade practice on the part of the opposite party as enshrined in section 2 (1) r of the Consumer Protection Act, reproduced below:-. 2(1)(r) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice………..” Thus the opposite party is held liable to be punished under this section. Furthermore, as the Opposite Party may have caused loss to innumerable unidentifiable consumers by such practice hence while proceeding under section 14 (1) (hb) of the Consumer Protection Act, reproduced below: - 14. Findings of the District Forum. – (1) If, after the proceedings conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the Opposite Party directing him to [do] one or more of the following things, namely:- xxxxx xxxxx xxxxx xxxxx xxxxx (hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number o consumers who are not identifiable conveniently; xxxxx xxxxx xxxxx xxxxx xxxxx the Opposite Party is saddled with a penalty of Rs.1,00,000-/ to be paid in the account of State Legal Services Authority, UT. Chandigarh. A receipt to this effect is required to be deposited in the office of this Forum by the Opposite Party. 22. The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, Opposite Parties shall be liable for an interest @18% per annum on the awarded amount of Rs 20,000/-, from the institution of the complaint, till it is paid. 23. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 18th May, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Yash Pal Thakur vs. Hind Motors (India) Ltd. (Complaint No. 148 of 2010) Date of Order: 23.05.2012 DISSENTING ORDER PER MADHU MUTNEJA, MEMBER I have read the orders, written by Sh. Jaswinder Singh Sidhu, Member in the instant Complaint and duly signed in agreement by Hon’ble President, Sh. Lakshman Sharma. I cannot bring myself to agree with the observations, as well as the grounds on which the complaint has been allowed. My views on the said matter are as under: - 1] Factually speaking, the Complainant had approached the Opposite Party for execution of repair work of his car on 15.12.2009. Whatever be the averments in the complaint, the job card at Annexure C-1 gives clear details of the work, which was to be executed. As per the same annexure, an estimate of `27,000/- was given to the Complainant. The expected date of delivery was 20.12.2009. It is thus obvious that the Complainant was prepared for a bill of approximately `27,000/-. When the Complainant contacted the Opposite Party on 20.12.2009 to take delivery of car, he was told that the vehicle was not ready as some spare parts were not available and the same had been ordered from the Manufacturer. This included besides other things, the interior work on the car. Since the car was an old model of 2002, the interior parts were not available with the Dealer. When the car was finally repaired, the Complainant was handed over the proforma invoice of `37,278.18/- (Annexure C-2). As certain spare parts were still not available, the Complainant was assured that they would be put into the vehicle when available. The Opposite Party gave him a proforma invoice on 25.12.2009 (Annexure C-2) and wrote to him to collect the vehicle vide letter dated 04.01.2010, the Complainant failed to take delivery of the vehicle from the Opposite Party. After much tussle between the parties, the Complainant filed the present complaint alleging that the acts of the Opposite Party had caused him immense financial loss. The Complainant had not taken delivery of the car, till the date of filing of the complaint on 10.03.2010, even though the Opposite Party was ready to hand him the vehicle after receipt of payment. The Complainant in his complaint has stated that the delay in handing over the vehicle and the excessive bill raised by the Opposite Party is an act of unfair trade practice. But there is no reference by the Complainant to Section 2(r) of the Consumer Protection Act, 1986. 2] It is thus, clear from the facts given above that as the Complainant was given a bill of `37,278.18/- against an estimate of `27,000/- (it needs to be mentioned here that it was an old car and more defects could have surfaced at the time of actual repair/ service) but he refused to take delivery of the vehicle, due to the excess demand and instead filed the instant complaint, which has been allowed. In such a situation, should not the Complainant also have been penalized for utilizing the space of the Opposite Party for three months, without paying any parking charges? The Opposite Party has had to take care of his vehicle while it stood in its premises. It was not such a big issue. It could easily have been compromised between the parties. 3] During the course of proceedings, an interim order dated 11 June, 2010, was passed by this Forum, whereby directions were given to the Opposite Party to hand over the repaired vehicle to the Complainant, and the Complainant was directed to make payment of 50% of the bill amount. The Complainant received his vehicle after making the said payment. 4] In the light of the provisions of the Consumer Protection Act, 1986, this Forum has to consider that:- (a) The Complainant is a master of his case. At the same time he has to prove his allegations against the Opposite Party. The Complainant has not proved or brought any material on record to show that the bill raised by the Opposite Party was for the work done beyond requirements as per the job card. (b) There are no specific allegations of unfair trade practice or deficiency in service, except that the bill is more than the estimate and there is a delay of 05 days in handing over the vehicle. The Complainant has forgotten that he has used the space of the Opposite Party for about 3 months, and thereafter even during the pendency of the complaint, till the date the car was handed over to him in accordance with the orders of this Forum. 5] Incidentally, the bill is in excess by about `10,000/- only and the delay in handing over the vehicle is 5 days. Section 2(r) of the Consumer Protection Act, 1986, which relates to unfair trade practice, reads as under:- (r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;— (1) the practice of making any statement, whether orally or in writing or by visible representation which,— (i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model; (ii) falsely represents that the services are of a particular standard, quality or grade; (iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods; (iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have; (v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have; (vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services; (vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof; Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence; (viii) makes to the public a representation in a form that purports to be— (i) a warranty or guarantee of a product or of any goods or services; or (ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out; (ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made; (x) gives false or misleading facts disparaging the goods, services or trade of another person. Explanation.—For the purposes of clause (1), a statement that is— (a) expressed on an article offered or displayed for sale, or on its wrapper or container; or (b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or (c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained; (2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement. Explanation .—For the purpose of clause (2), "bargaining price" means— (a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or (b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold; (3) permits— (a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole; (b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest; (3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme. Explanation.—For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time, published, prominently in the same newspapers in which the scheme was originally advertised; (4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods; (5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services. (6) manufacture of spurious goods or offering such goods for sale or adopts deceptive practices in the provision of services. (2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.” The ingredients of Section 2(r), referred to above, which are part and parcel of the concept of the unfair trade practice have to be alleged and must be proved and established, which to my opinion, the Complainant has not done. In the absence of any such material, I do not agree with the opinion of the Ld. Member in holding that there was unfair trade practice on the part of the Opposite Party. The Ld. Member has allowed the complaint against the Opposite Party by holding it liable under Section 14(1)(hb) of the Consumer Protection Act, 1986, which reads as under: - 14. Finding of the District Forum.—(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:— xxxxx xxxxx xxxxx (hb) to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently: xxxxx xxxxx xxxxx 6] I cannot comprehend what evidence has led the Ld. Member to deduce that a bill of `10,000/- in excess of an estimate issued at the time of repair of car be a determining factor for loss or injury suffered by a large number of consumers, who are not identifiable conveniently. At this stage, I would like to refer to a few rulings of the Hon’ble Supreme Court of India in cases relating to unfair trade practice. The Hon’ble Supreme Court of India in case RAJESH PATEL V. MONOPOLIES AND RESTRICTIVE TRADE PRACTICE COMMISSION AND OTHERS, reported as (2004) 6 Supreme court Cases 492, has held as under: - “…………Held, Commission must apply its mind to the complaint at hand and before making any order under S.36-D, must record a finding as to (i) what the impugned practice is, that is, whether it is in respect of the sale, use or supply of goods or for the provisions of services, and (ii) whether the said practice is an unfair trade practice which is forbidden – On facts, since there was no finding by the commission on either of these aspects, its order under S.36-D (1)(a) based merely on a concession by the Appellant was nebulous and vague.” Again, the Hon’ble Supreme Court of India in case KLM ROYAL DUTCH AIRLINES V DIRECTOR GENERAL OF INVESTIGATION AND REGISTRATION, reported as (2009) 1 Supreme court Cases 230, has held as under: - “……….Held, in order to make out a case of unfair trade practice there has to be unfair method or deceptive practice indulging in false and misleading statement and representation of the kind mentioned in various clauses of S.36-A – Such ingredients which are part and parcel of the concept of the unfair trade practice have to be alleged and must be proved and established – In the present case, there was neither such allegation of any such false and misleading representation nor was there any proof provided by way of evidence – Therefore, held, there could be no finding by the MRTP Commission that Appellant was guilty of unfair trade practice – Hence, order of Commission cannot be upheld and is set-aside.” On the same surmise, in my opinion, it would be imperative for this Forum to apply its mind to the complaint at hand and to the allegations under Section 2(r) of the Act, before passing orders under Section 14(1)(hb) of the Act. In case PUNJAB TRACTORS LTD. VS. GIAN SINGH AND ANR., reported as (2005) 13 Supreme court Cases 736, the Hon’ble Supreme Court of India has held as under: - “……………Issue of unfair trade practice specifically defined in S.2(r) having not been raised by the Complainant himself at any stage of the proceedings, held, National Commission erred in holding that there was unfair trade practice in the absence of proper basis having been laid – Hence its finding that the warranty clause amounted to unfair trade practice set-aside.” In GODFREY PHILLIPS INDIA LTD. V. AJAY KUMAR, reported as (2008) 4 Supreme court Cases 504, the Hon’ble Apex Court has held as under: - “B. Consumer Protection Act, 1986 – Ss. 14(1)(f), 18, 22(1) and 2(1)(r) – Directions – Validity of – Direction to discontinue the impugned unfair trade practice – Condition precedent for its sustainability – Held, it must be based on material and evidence and not on surmise – A direction issued otherwise, held unsustainable – More so when there was no specific pleading in the complaint in that regard.” “………..In the absence of allegation or material on record to show negligence, grant of compensation, held, improper – More so when there was no allegation or finding of loss or injury caused to the Complainant.” 7] The Complainant has received his vehicle after paying 50% of the bill amount. He has not had to pay for the parking charges for the period the Opposite Party has looked after his vehicle, while it stood at their premises. The Complainant has not placed on record any specific pointer to the effect that the Opposite Party has gone beyond the job card, which he has signed himself. There is also no allegation of the Opposite Party having spoiled or reduced the value of his car. The Complainant was obviously prepared to pay `27,000/-, otherwise he would not have handed over his car to the Opposite Party. Also the alleged consequential losses suffered by him for the delay in delivery of serviced vehicle, are not supported by any documentary evidence. If he was so upset with the delay in delivery of possession of the vehicle, why he did not lodge a written protest with the Opposite Party with his allegations? I feel that the Complainant should pay the Opposite Party for the work done by them on his car. Unfortunately, even the Opposite Party has not brought any evidence to prove that the work done is only in accordance with the job card. Therefore, it is best to surmise that neither party be made liable to pay anything to the other. 8] In view of above discussion, as well as in the light of the observations of the Hon’ble Supreme Court of India, I differ from the views given by the majority in allowing the complaint and pass orders for disposal of the complaint, with no costs/ payments to be made by either party to the other. 9] Certified copies of this order be communicated to the parties, free of cost. After compliance file be consigned to record room. Announced 23.05.2012 Sd/- (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
