KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.712/2006 & 776/2006
JUDGMENT DATED:20-04-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K. ABDULLA SONA : MEMBER
APPEAL NO.712/2006
Libu, Proprietor,
Perfect Motors,
Opp. True Value Shop, : APPELLANT
Elamkulam, Kochi-20.
(By Adv.Sri.Anil Thomas)
Vs.
Jayaprakash, S/o K.N.Nair,
Kalampallil, Cheryakam.P.O, : RESPONDENT
Thakazhy, Alappuzha.
(By Adv.M/s Espee Associates)
APPEAL NO.776/2006
Jayaprakash, S/o K.N.Nair,
Kalampallil, Cheryakam.P.O, : APPELLANT
Thakazhy, Alappuzha.
(By Adv.M/s Espee Associates)
Vs.
Libu, Proprietor,
Perfect Motors,
Opp. True Value Shop, : RESPONDENT
Elamkulam, Kochi-20.
(By Adv.Sri.Anil Thomas)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above appeals are preferred from the order dated:7th July 2006 passed by CDRF, Ernakulam in CC.571/05. The complaint therein was filed alleging deficiency of service on the part of the opposite party. It was alleged that the opposite party caused much damage to the vehicle which was entrusted with him by the complainant for effecting repairs. It was further alleged that the
opposite party removed the parts of the vehicle including battery, audio stereo, gas cylinder etc and thereby caused financial loss to the complainant. It is also alleged that due to the damage caused to the vehicle, the value of the vehicle had been reduced from Rs.80,000/- to Rs.30,000/-. Therefore, the complainant claimed a compensation of Rs.5.lakhs from the opposite party.
2. Notice in the said CC.571/05 was served on the opposite party and he entered appearance. He filed written version denying the alleged deficiency of service. He contended that the complainant entrusted the vehicle for effecting repairs including painting and patchwork and that the complainant neglected to purchase the spare parts and to pay the repair charges; that the complainant came to the workshop of the opposite party only after 1 ½ years of the entrustment; that the opposite party has not caused any damage to the vehicle; that the opposite party did not remove any of the parts of the vehicle; that the battery and the stereo set were removed by the complainant himself. Thus, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1 and a witness on the side of the complainant was examined as PW2. Exts.A1 to A3 documents were also marked on the side of the complainant. The opposite party has been examined as DW1. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:7/7/2006 directing the opposite party to pay Rs.9,310/- to the complainant with cost of Rs.1000/-. Aggrieved by the said order passed by the Forum below, the opposite party preferred the Appeal-712/06. The complainant was not satisfied with the compensation awarded by the Forum below. Dissatisfied with the quantum of compensation awarded by the Forum below, the complainant preferred the appeal No.776/06.
4. We heard both sides. The learned counsel for the appellant/opposite party in A-712/06 submitted his arguments based on the grounds urged in the memorandum of the appeal. He argued for the position that there is nothing on record to prove the case of the complainant regarding deficiency of service and that there is no evidence available on record to prove the case of the complainant that the opposite party caused damage to the vehicle which was entrusted by the complainant for effecting repairs. It is pointed out that there is no evidence to show that A1 document was issued by the opposite party. It is further submitted that A3 is only a fabricated document to claim compensation from the opposite party. Thus, the appellant/opposite party prayed for setting aside the impugned order passed by the Forum below and for dismissal of the complaint in CC.571/05.
5. The learned counsel for the appellant/complainant in A.776/06 submitted his arguments based on the grounds urged in the memorandum of the appeal. He argued for the position that the Forum below has gone wrong in not awarding compensation for the deficiency of service on the part of the opposite party. It is submitted that once it is found that there was deficiency of service on the part of the opposite party it was just and proper to award compensation to the complainant. He also relied on the testimony of the complainant as PW1 and prayed for allowing the complaint in CC.571/06 in its entirety by awarding compensation of Rs.5.lakhs.
6. For the sake of convenience and to avoid confusion the parties to these appeals will be referred to according to their rank and status before the Forum below in CC.571/05.
7. There is no dispute that the complainant Sri.P. Jayaprakash entrusted his car with the opposite party Sri.Libu, Proprietor, Perfect Motors, Elamkulam, Kochi. Admittedly, opposite party has been running an Automobile Workshop by name Perfect Motors at Elamkulam in Kochi. The complainant Jayaprakash was a native of Thakazhi, Alappuzha District. It is the case of the complainant that he entrusted the vehicle with the opposite party to repair the damage to the left headlight and front bumper of the said vehicle which was owned by the complainant. On the other hand, the case of the opposite party is that the vehicle was having so many other damage including patch work and painting. It is also the case of the opposite party that the vehicle was brought to the workshop of the opposite party by towing. On the other hand, the complainant would say that the vehicle was in a good running condition and the same was entrusted for effecting the minor repairs of replacement of the damaged left side headlight and front bumper of the vehicle. But, there is no acceptable evidence to show the nature and condition of the vehicle at the time of the entrustment of the same with the opposite party. It is to be noted that the complainant is a native of Thakazhi in Alappuzha Dist and that the workshop of the opposite party is in Kochi. The distance between these two places would show that these to places were having a distance of more than 50 Kms. In this circumstance, it is highly improbable to believe that the complainant brought the vehicle to the workshop of the opposite party for doing minor repairs like replacement of the damaged left side headlight and front bumper. This circumstance would support the case of the opposite party that the vehicle owned by the complainant was brought to the workshop of the opposite party with various defects and the vehicle was brought to the workshop of the opposite party for effecting those repairs. Thus, the case of the complainant that the vehicle was in a good running condition and it had only minor repairs to be done cannot be believed or accepted.
8. The complainant failed to mention the date of entrustment of the vehicle with the opposite party. It is true that there is no dispute regarding the entrustment of the vehicle with the opposite party. The case of the complainant that he entrusted the vehicle for testing the same by the opposite party cannot be believed. If there was no other defect other than minor damage to the left side headlight and bumpe, there was no necessity for entrusting the vehicle with the opposite party for taking test driving. The further case of the complainant is that, he left the workshop by leaving the vehicle with the opposite party and when he came after 15 minutes he found his vehicle in a dismantled condition. The aforesaid case of the complainant cannot be believed for a moment. When the complainant was examined before the Forum below as PW1, it was deposed that he came to the workshop of the opposite party after 3 weeks of the entrustment of the vehicle and that even after 3 weeks the opposite party had not done any repair works. But the complainant had not taken any steps to take back the vehicle from the workshop of the opposite party. The aforesaid circumstance would also give an indication that the complainant was not interested in taking back the vehicle from the workshop of the opposite party. It would in turn give the inference that the complainant permitted the vehicle to lie in the workshop of the opposite party. It is pertinent to note at this juncture that the vehicle was kept in the workshop of the opposite party for about 1 ½ years. It is further to be noted that during this period of 1 ½ years the complainant did not take any effective and earnest attempt to take back the vehicle from the workshop of the opposite party. So, the opposite party can be justified in demanding rent for keeping the vehicle for about 1 ½ years. It is the case of the complainant that the opposite party demanded Rs.3,500/- and he paid Rs.1,500/-. The opposite party as DW1 has also admitted the fact that he demanded rent for keeping the vehicle in his workshop and at last the complainant paid Rs.1,500/- and took back the vehicle from the workshop. So, there cannot be any deficiency of service on the part of the opposite party in demanding and realizing rent from the complainant for keeping the vehicle in his workshop.
9. The Forum below found fault with the opposite party in keeping the vehicle in his workshop unattended and for causing damage to the vehicle by keeping the same idle for a period of about 1 ½ years. It is to be noted that the complainant was having the knowledge about the facilities available in the workshop of the opposite party. The opposite party has also admitted the fact that the vehicle was kept in the workshop in open space without any roof. So, naturally the vehicle will get damage by keeping the vehicle idle for a period of 1 ½ years. It was the bounden duty of the complainant to pay the necessary charges for effecting repairs to the vehicle. It was also the duty of the complainant to supply necessary spare parts for effecting repairs to the vehicle or to pay cost of the spare parts in advance. It is to be noted that no agreement is entered into between the complainant and the opposite party regarding the terms and conditions of the agreement for effecting repairs to the vehicle. In the absence of the any such agreement, it was the duty of the complainant to take necessary steps to get his vehicle repaired. It is come out in evidence that the complainant left the workshop by leaving his vehicle in the workshop of the opposite party and he permitted the vehicle to lie idle in the workshop for a period of 1 ½ years. This circumstance would show that the complainant is to be found fault with for causing damage to his vehicle by keeping the vehicle idle for a period of about 1 ½ years. The Forum below cannot be justified in finding fault with the opposite party for keeping the vehicle idle for 1 ½ years.
10. The complainant much relied on A1 document, A1 is the list of spare parts said to have been given by the opposite party to the complainant. But, the opposite party has categorically denied issuance of A1 document. It is to be noted that no signature is affixed on A1 document. There is no acceptable evidence to show that A1 list of spare parts was issued by the opposite party to the complainant. The opposite party as DW1 has denied the genuineness and correctness of A1 document. In effect, A1 document would not support the case of the complainant. On the other hand, A1 document is sufficient to belie the case of the complainant. The case of the complainant is that his vehicle was not having any serious damage; that the vehicle required replacement of the left hand headlight and front bumper. But, A1 document would show that in August 2004 the complainant’s vehicle was having other defects and it necessitated replacement of spare parts like steering rack pinean, rack bush, ball joint, ball joint boot, ball joint lock, running board repairs, replacement of head light and park light, front bumper upper. This document would only negative the case of the complainant regarding the repairs required for his vehicle on the date of its entrustment with the opposite party.
11. The complainant has got a case that he could not come to the workshop of the opposite party for a period of 3 weeks because of the fact that he had to take his sister to Christian Medical College and Hospital, Vellore. He produced Ext.A2 discharge summary and other treatment record issued from Christian Medical College and Hospital, Vellore. Ext.A2 document would only show that Mrs,Jayasree was admitted in Christian Medical college hospital, Vellore on 14/3/2002 and discharged on 13/8/2002. But the entrustment of the vehicle with the opposite party was in the year 2004. So, A2 document would not show that the complainant was not in station during the said period. It is further to be noted that the complainant’s sister Jayasree was given in marriage. His sister Jayasree was residing along with her husband at Mangalam, Karumadu, Karumadu post, Alappuzha. The complainant has been residing in Kalampallil Chiravakom.P.O, Thakazhi. This circumstance would give an indication that the case of the complainant that he had taken his sister for medical treatment at Christian Medical College Hospital, Vellore cannot be accepted as such. The further case of the complainant that he purchased the subject vehicle for taking his sister to hospitals cannot be accepted, in the light of the available circumstances.
12. The complainant has also relied on A3 cash/credit bill dated:5/1/2006 issued from Westend Motors, Ernakulam. As per Ext.A3 bill a sum of Rs.9310/- was incurred by the complainant for effecting the repairs to his vehicle at the Westend Motors. A3 bill has not been proved by examining the workshop mechanic or the workshop owner of Westend Motors. Moreover, the description of the repair work stated in A3 bill would suggest that no damage was caused by the opposite party to the vehicle owned by the complainant. Admittedly, the left head light and bumper of the vehicle was in need of replacement. So, the Forum below cannot be justified in directing the opposite party to pay A3 bill amount of Rs.9310/-. The nature of the work done would only suggest that the said vehicle was in dire need of such repairs and it is not just or fair in fastening liability on the opposite party for effecting such repairs.
13. The evidence of the complainant as PW1 and that of the opposite party as DW1 would suggest that the complainant’s vehicle was having the audio music system at the time of entrustment of the vehicle with the opposite party. The complainant has alleged that the opposite party removed the stereo system from his vehicle. On the other hand, the opposite party would contend that after the entrustment of the vehicle, the complainant himself removed the stereo system from the vehicle. But there is nothing on record to show that the complainant removed the stereo system after the entrustment of the vehicle with the opposite party. It is highly improbable to believe that the complainant removed the stereo system from the vehicle without the permission or consent of the opposite party. The opposite party has no case that he got any receipt from the complainant for removal of the said stereo system by the complainant. This circumstance would suggest that the opposite party removed the stereo system from the said vehicle without the consent and knowledge of the complainant. There is no document available on record to establish the value of the said second hand stereo system. Ext.A3 bill would suggest that stereo speaker worth Rs.760/- was installed in the vehicle. At the most it can be held that the said stereo system including the speaker was worth Rs.2000/-. So, the opposite party can be made liable for the stereo system worth Rs.2000/-.
14. The complainant has got a case that the subject vehicle was fitted with automobile gas kit with gas cylinder and that the opposite party removed the gas cylinder from the complainant’s vehicle. The opposite party as DW1 has also admitted the fact that the subject vehicle was fitted with gas kit. He denied the case of the complainant that gas cylinder was also available in the vehicle. It is to be noted that the opposite party has not stated in his version that the gas cylinder was not available in the vehicle. It can be concluded that the opposite party removed the gas cylinder from the subject vehicle without the knowledge and consent of the complainant. But the complainant has not adduced any evidence regarding the cost of the gas cylinder installed in his vehicle. So, for the purpose of assessing the loss, the value of the gas cylinder can be taken as Rs.1,500/-. The opposite party is bound to pay Rs.1,500/- to the complainant by way of cost of the gas cylinder.
15. The complainant has also got a case that the automobile battery fitted in the vehicle was also removed by the opposite party. On the other hand, the opposite party would contend that the battery was removed by the complainant himself from the vehicle for the purpose of installing the same in the vehicle of the complainant’s friend. The aforesaid admission made by DW1 would suggest that the vehicle was having battery in its engine room at the time when the vehicle was entrusted with the opposite party. The further case of the opposite party that the said battery was removed by the complainant himself cannot be believed without any supporting document. The available circumstance would show that the opposite party removed the old battery from the subject vehicle. The complainant has not adduced any evidence to establish the cost of the old battery installed in his vehicle. So, for the purpose of calculation, the cost of the second hand automobile battery can be taken as 1500/-. Thus, the opposite party can be made liable to pay the total of Rs.5000/- to the complainant towards the cost of the stereo system, battery and gas cylinder. Thus, the impugned order passed by the Forum below awarding compensation of Rs.9310/- is modified and thereby the opposite party is directed to pay Rs.5000/- to the complainant with cost of Rs.1000/-. Appeal-776/06 preferred by the complainant is dismissed and Appeal-712/06 preferred by the opposite party is allowed partly.
In the result appeal 712/06 is allowed partly and appeal 776/06 is dismissed. The impugned order dated:7th July 2006 passed by CDRF, Ernakulam in CC.571/05 is modified as indicated above. Thereby, the opposite party Sri.Libu is directed to pay compensation of Rs.5000/- to the complainant with cost of Rs.1000/-. The aforesaid compensation is to be paid within one month from the date of receipt of copy of this judgment, failing which the aforesaid compensation amount will carry interest at the rate of 9% per annum from the date of complaint (1/12/2005) in CC.571/05 till realization. As far as these appeals are concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
