Date of Filing: 04/11/2011
Date of Order: 28/12/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 28th DAY OF DECEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
C.C. NO.2031 OF 2011
S.N. Vijayasimha,
S/o. Late C. Narasimhaiah,
Aged About 34 years,
R/at: Aralepet, Magadi Town, Magadi.
(Rep. by Sri.N.Kumar, Advocate) …. Complainant.
V/s
I.G. Workshop,
(A Group of India Garage)
Plot No.2E4, II Phase,
Behind V.S.T. Tillers & Tractors,
Whitefield Road, Mahadevapura Post,
Bangalore-560 048.
Rep. by its Manager.
(Rep. by Sri.Aiyappa & Cariappa, Advocate) …. Opposite Party.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.3,00,00/- and to rectify all problems pertaining to the car in question and to pay a sum of Rs.1500/- per day from 17.08.2011 till the date of delivery of the car, are necessary:-
The complainant purchased Mahindra Logan Car bearing No. KA-33-M-7786 and submitted the record to the RTO for transfer of the RC in to his name and it is pending before the RTO. After the purchase the complainant left the said vehicle with the opposite party for minor repair. On 17.08.2011, after ride by the mechanic of the opposite party mechanic prepared the job card which is duly signed by the complainant. After repair the opposite party raised a bill for Rs.45,629/- which was paid to the opposite party and the complainant took delivery of the vehicle on 22.08.2011. After taking delivery of the vehicle the complainant found that there was water boiling and gasket problem, immediately he went to the opposite party and explained the same. Sri. Prashanth of the opposite party took the vehicle and stated that there was minor fault on their part and assured that they will rectify the defect at their cost and redeliver the vehicle in two days. The complainant after two days went to the opposite party and called them also over phone but they did not answer. The opposite party later stated that Prashanth who was in their service left the job and stated that there is problem in the engine and showed the dismantled engine, without intimation and permission from the complainant to dismantle it. Then the complainant opposed the illegal act of the opposite party stated that they will rectify the mistake free of cost and sought some more time for rectifying the problem. When the complainant approached the opposite party again and again he saw that the car in the same condition, when questioned the Manager of the opposite party told the complainant that to repair the car they need about Rs.90,000/- and the complainant has to pay 50% of the same then only they will repair the same, this was opposed by the complainant. The opposite party had not informed the complainant about the problem in the engine when he first left the vehicle on 17.08.2011. The opposite party would have taken permission from the complainant before dismantling the engine. Hence under these circumstances the complainant issued notice to the opposite party on 20.10.2011 as it was not complied with, this complaint is filed.
2. In brief the version of the opposite party are:-
At the time of entrusting the vehicle to the opposite party on 17.08.2011 the odometer reading was 66707 Kms, it was purchased by Mr.Madhusudan K.L. on 07.11.2007 and R.C. continued in his name, hence the opposite party issued the job card, bills and invoices in the name of the RC owner. The opposite party has carried out all the repairs and replacements and services and it was delivered back to the complainant on 22.08.2011 on receiving Rs.45,629/-. On 02.09.2011 the complainant again entrusted the said vehicle with certain complaints regarding engine rough noise. At that time the odometer reading was 66,950 Kms. On 06.09.2011 when the opposite party inspected the vehicle and removed the sump to diagnose the problem and checked the connecting the main shaft bearings, it was found that the said bearings was seized. The opposite party contacted the complainant over phone and informed him about the dismantling of the engine for a complete check-up. To point out the root cause for the damage the complainant agreed for dismantling and also instructed them to repair. The opposite party dismantled the engine and found that the oil Jet four Nos. have been damaged since the engine overhauling of the said vehicle was done in a local garage who inducted cylinder sleeves with old piston and rings which is not recommended by the manufacturers of the said vehicle. This required the engine overhaul and as such the opposite party prepared the estimation for the same. The complainant visited opposite party twice, discussed the matter and the complainant was requested to make 50% of the estimation. The complainant sated to the opposite party to repair the vehicle and he will pay the amount later. The opposite party did not agree for the said suggestion. Hence the opposite party was threatened by the complainant and issued notice on 20.10.2011. All the allegations to the contrary are denied.
3. To substantiate their respective cases the parties have filed their respective affidavits and documents. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that that KA-33-M-7786 a Mahindra Logan Car belonged to one Madhusudan.K.L, was purchased by the complainant and submitted the records to RTO for changing the RC in to his name and immediately on 17.08.2007 at the Odo Meter reading of 66707 Kms he took the vehicle for minor repair and handed it over to the opposite party. The mechanic of the opposite party took a test drive prepared the job-card to which the mechanic and the complainant signed on that day. The job-card reads thus:-
Accordingly the opposite party repaired the vehicle prepared a bill for Rs.45,629/- which was paid by the complainant on 22.08.2011 and he took delivery of the vehicle. Though the complainant had delivered the vehicle to the opposite party on 17.08.2011 the opposite party prepared the bill in the name of the previous owner Sri.K.L.Mahusudan for the reason that the RC was not transferred in the name of the complainant, according to the opposite party. This is nothing but an untenable contention. When the complainant had delivered the vehicle, complainant had paid the money, it was incumbent on the part of the opposite party to prepare the bill and receipts in the name of the complainant. It is seen that tax cash memo that was prepared on 22.008.2011 is signed by the complainant himself. This has not been challenged or denied by any of the opposite parties. This has been admitted by both the parties.
7. Further the complainant has stated that immediately after taking delivery of the vehicle he found that the water boiling and gasket problem and he took it to the opposite party wherein Prashanth of the opposite party took delivery of the vehicle and stated that there was some minor mistake in their part they will rectify it free of costs and told the complainant to come after two days; when he went after two days the Prashanth was not there, he was enquiring over phone 10 days later when he fed up, he visited the opposite party and found that the vehicle has been dismantled, he was informed that the Prashanth had left the service, there was problem in the engine they showed the dismantled engine when, he opposed for it, the opposite party assured that they will rectify the matter at free of cost and took some time and later when he went there, the manager demanded about Rs.90,000/- and wanted 50% advance for repair, but he refused it and he issued notice to the opposite party on 22.10.2011. Per contra the opposite parties contends that on 02.09.2011 at Odo meter reading of 66950 kilometers the vehicle was entrusted to him for engine rough noise, on 06.09.2011 they inspected the vehicle removed the sump and found the bearing has been seized they contacted the complainant and informed over phone of permission to dismantle the engine and accordingly they dismantled the engine and found that the oil jet four Nos. have been damaged since the engine overhauling of the said vehicle was done in the local garage who inducted cylinder sleeves with old piston and rings which is not recommended by the manufacturer, hence they have prepared the estimation and asked the complainant 50% of the repair charges as advance. Now we have to see which version is true. It is admitted that the opposite parties had dismantled the engine. The engine had serious problem. Whether this is related to the old repair done by the opposite party or this is a fresh repair that came in to existence?
8. The complainant at Para-4 of the complainant has stated thus:-
“Believing the version of the opposite party, the complainant has left the above said vehicle for repair in the said garage on 17.08.2011 wherein after trial ride the Mechanic of the opposite party prepared job card, which is duly signed by the complainant and also assured the complainant that they will rectified all the problem and on 22.08.2011, the OP delivered the vehicle and also raised a bill of Rs.45,629/-. The complainant has paid the entire amount without any deduction and got the delivery of the vehicle, believing that all the problems in respect of the said car is rectified.”
This has been sworn to by the complainant. The opposite party at para-3(iii) has stated thus:-
“Regarding Paragraph No.4: The averments made in the above paragraph is substantially true and the opposite party attended to all the complaints notified by the complainant at that point of time and delivered the vehicle in a good condition to the best satisfaction of the complainant.”
That means the opposite parties admits these allegations. That is to say when the complainant had left the vehicle for repair on 17.08.2011 the mechanic of the opposite parties took test drive of the vehicle and after noting the defects the mechanic prepared the job-card. The job-card is stated supra. That means these were the only defects that were there in the vehicle that was found and these are the only repair that should have been done. Complainant was charged for this repair Rs.45,629/- and without murmur the complainant paid that amount and took delivery of the vehicle on 22.08.2011. This job-card is signed by the complainant this vehicle delivery receipt bill payment was also signed by the complainant.
9. The complainant has stated and sworn to that immediately after taking the delivery of the vehicle i.e., on 22.08.2011 he found water boiling and gasket problem, he took it to the opposite party, Prashanth received it and stated that it is their mistake and they will rectify the mistake at their costs. If this were to be false the opposite party would have filed the affidavit of Mr. Prashanth who was their employee. Merely the Prashanth might have left the service of the opposite party, that Prashanth has not vanished in to thin air. The opposite party has not got the affidavit of the mechanic who took test drive of the vehicle and prepared the job-card on 17.08.2011. This clearly goes to show while repairing the vehicle it is the opposite party who had damaged the engine and nothing else and because of that they are feeling shy in the matter.
10. The opposite party has stated that the complainant had delivered the vehicle to them on 02.09.2011 and they have prepared the job-card. If that were to be so the job-card as stated supra as prepared earlier on 17.08.2011 similar Job card should have been prepared by the opposite parities on 02.09.2011 and it would have contended the signature of the representative of the opposite party and the complainant. To the said job-card no signature of complainant is there nor it contains the signature of the representative of the opposite party nor the signature of the complainant. This clearly goes to show that this job-card and the story of the opposite party that the complainant delivered the vehicle on 02.09.2011 is a story of documents are created for the purpose of this case as rightly contended. The person who received the vehicle allegedly on 02.09.2011 has not filed any affidavit before this Forum nor his signature is there. The alleged job-card states name of one Ramu. Who is that Ramu? Why he has not signed? is not at all stated. This clearly goes to show that the opposite party has not come to this forum with clean hands.
11. Further if the vehicle is left on 02.09.2011 why the opposite party has not attended to the vehicle till 06.09.2011? Why they have not told the complainant on 02.09.2011 itself that the engine has to be repaired or engine work has to be done. Why no detailed job-card or estimation was prepared on 02.09.2011? There is no answer.
12. The opposite party has stated that on 06.09.2011 they had dismantled the engine with the consent of the complainant over phone, that has been denied by the complainant. If the complainant had been contacted over phone either or on 06.09.2011 or subsequently and the complainant had given consent, naturally the opposite party would have produced the telephone bills and telephone call list from the concerned telephone department and would have shown that in fact they had telephoned to the complainant and obtained consent, that has not been done. The complainant’s number is given as which is a mobile number, it is easy to get the incoming call and outgoing call list of that, but that has not been done. The opposite party never stated from which telephone it had telephoned to the complainant and obtained permission for dismantling the engine and on what date. This clearly goes to show that it is an after thought this document has been created and this story has been created by the opposite party as rightly contended. That means it is the opposite party who while repairing between 17.08.2011 and 22.08.2011 had damaged the engine removed certain parts put up certain other parts and as a result the complainant has been put to loss. This is nothing but unfair trade practice.
13. Within 250 kilometers plying the vehicle cannot come for engine problem or reboreing. The contention of the opposite party that the engine has been serviced in a private guarrage. Which is that garage? When it has been serviced? Who has serviced? is not at all stated. The opposite party who raised the bill in favour of K.L.Madhusudan, would have contacted K.L.Madhusudhan and learnt stated about changing parts of the engine that has not been done. This clearly goes to show it is the opposite party who did damage the engine between 17.08.2011 and 22.08.2011. Hence under these circumstances this is nothing but deficiency in service and unfair trade practice.
14. Under these circumstances if we direct the opposite party to repair the vehicle at their cost and deliver it to the complainant within a particular date and if not done to pay certain amount till the date of repair and delivering it we think that will meet the ends of justice.
15. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party is directed to repair the vehicle bearing No.KA-33-M-7786 completely and deliver the defect less vehicle to the complainant at their cost within 30 days from the date of this order. If for any reason the opposite party fails to repair the said vehicle within 30 days then the opposite party shall pay Rs.500/- per day to the complainant from 31st day till the vehicle is repaired and delivered to the complainant.
3. The opposite party is also directed to pay Rs.2,000/- towards costs of this litigation.
4. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
5. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 28th Day of December 2011)
MEMBER PRESIDENT
