Punjab

Ludhiana

CC/14/351

Sandeep Singh - Complainant(s)

Versus

Karan - Opp.Party(s)

19 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 351 of 08.05.2014

Date of Decision            :   19.12.2016 

Sandeep Singh Kalsia @ Sandy son of Shri Kuldip Singh Rai, resident of Box 270 Alert Bay BC, Voniao, 81 FIR ST Canada at present residing at House No.216, Ward No.8, Street No.4, Krishna Colony, Dasuya, District Hoshiarpur through his Special power of attorney holder his real brother Amritpreet Singh son of Shri Kuldip Rai, resident of House No.216, Ward No.8, Street No.4, Krishna Colony, Dasuya, District Hoshiarpur.

….. Complainant

                                                         Versus

Karan, Owner of Genuine Car Accessories, Shop No.56, Model Town Extension Market, Ludhiana.

…Opposite party

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT                                     

SH.PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :          Sh.Kapil Sharma, Advocate

For Op                           :          Sh.Kartikeya Swaroop Mehta, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, a resident of Canada, filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) by claiming that he purchased one car of BMW XI make bearing registration No.DL-3C-BV-1856 from All India Car Dealers Association, Delhi on 24.03.2014. Complainant visited India and thereafter, on 14.4.2014, he came to Ludhiana for shopping. In the evening of that date, complainant found that lights of the said vehicle need minor focusing of the beam, so complainant approached OP, a nearby shop. Op disclosed that instead of making adjustment, it is better for the complainant to get the lights changed. Op disclosed that he has brighter lights available with him. Believing the words of OP, complainant agreed for change of the lights. Complainant confirmed from OP, if he can deal with the vehicle of complainant, on which, he(OP) claimed that he is dealing in luxury cars like Audi, Mercedes, BMW, Scoda etc in routine. OP assured that he will issue bill for the lights and will also give guarantee for the same. On this, complainant agreed for getting the work done from OP. At the time of start of the work, OP disclosed that it will take half an hour, but when after half an hour, the complainant enquired from OP about the work, then OP disclosed that it will take some more time. The complainant disclosed OP that in case, he has any kind of problem, then he should leave the work and complainant will get the work done from the authorized dealer of BMW i.e.Krishna Automobiles, Ludhiana. However, OP assured to perform the work accurately by not giving any chance of complaint to the complainant. After completion of the work, when OP turned on the lights of the car, then the same were malfunctioning. OP messed with the fuse box and ultimately OP disclosed the complainant to go to BMW company for getting the software reset. As the lights were not functioning and as such, complainant had to remain stayed at Ludhiana for the rest of the night, due to which, he has suffered lot of inconvenience and harassment. OP charged Rs.22,400/- from the complainant vide bill dated 14.4.2014 without resolving the problem. Complainant was reluctant to pay the said price because problem was not resolved and software even stopped functioning. Op assured that in case, BMW company will not fix the software, then OP will get the work done at his own costs for making the lights functional. On 15.4.2014, complainant      visited the company with the car, where the officials disclosed that OP did the wrong wiring in the car while replacing the lights of the car on 14.4.2014. It was further disclosed that owing to wrong wiring, the whole electrical unit of the car of the complainant was malfunctioning and as such, same requires replacement. Officials of company gave written quotation of expenses of tune of Rs.1,13,048/-, besides labour charges of tune of Rs.30,000/-. By pleading deficiency in service on the part of OP, due to refusal to rectify the faults, prayer made for directing OP to refund the amount of Rs.22,400/- with interest and even pay Rs.1,43,048/- i.e, the expenses incurred by the complainant for getting the problem resolved. Compensation for mental harassment of Rs.2 lac and litigation expenses of Rs.20,000/- more claimed along with counsel fee of Rs.22,000/. Legal notice dated 18.4.2014 through post was served upon OP on 19.4.2014 before filing of complaint.

2.                In written statement filed by Op, it is pleaded interalia as if complaint is not maintainable because same is not signed by the complainant. It is also claimed that the complainant has not approached this Forum with clean hands because he has suppressed the material facts. There was no deficiency in service on the part of OP and as such, complainant has no cause of action. Complaint alleged to be misconceived, being filed with ulterior motive of abusing the process of law. Besides, it is claimed that Amritpreet Singh, through whom, the complaint is filed is not lawfully appointed attorney and as such, he cannot pursue this complaint. Admittedly, OP running the shop under the name and style of Genuine Car Accessories, Shop No.56, Model Town, Ludhiana. Rather, it is claimed that the said shop deals with sale and purchase of car accessories and is not undertaking any mechanical work. Shop of OP is of size of 8’ x 16’ and there is no workshop attached with the same. Op only sold   two sets of HID 55W lights to the complainant and advised him to get the lights affixed from the authorized service station. Complainant already tinkled with settings of the car by getting sub standards woofer, sound system amplifier etc., installed from a novice. There was no defect or shortcoming in the lights sold by Op to the complainant. Only quotation has been produced without proving of actual loss or damage. Receipt of legal notice from the complainant not denied and even jurisdiction of this Forum not disputed. Each and every other averment of the complaint denied specifically one by one.

3.                Complainant to prove his case tendered in evidence affidavit Ex.CA of Sh.Amritpreet Singh, attorney holder of the complainant along with documents Ex.C1 to Ex.C12 and thereafter, attorney along with counsel closed the evidence.

4.                On the other hand, Sh.Raj Karan Gandhi tendered in evidence his affidavit Ex.RA and thereafter, failed to produce any evidence, despite undertaking and as such, evidence of OP closed by order on 2.5.2016.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely.

6.                Perusal of delivery receipt Ex.C4 reveals that the complainant purchased the car in question bearing registration No.DL-3C-BV-1856 of Model 2011 on 24.3.2014 and got delivery of the same. Cash receipt Ex.C5 of date 24.3.2014 in that respect is also produced. Ex.C12 is the bill showing purchase of two sets of P8 HID 55W lights for consideration of Rs.22,400/- by the complainant from OP on 14.4.2014. On bill Ex.C12 itself, it is mentioned that OP concern is Hub of exclusive car accessories and even the name of the concern mentioned as Genuine Car Accessories. No mention made in bill Ex.C12 qua charging of any amount from the complainant for fitting of two purchased lights and as such, bill Ex.C12 at the most establishes as if the complainant purchased two sets of lights from OP dealing with the     car accessories for consideration of Rs.22,400/-. So, plea taken in the written statement and affidavit Ex.RA of Raj Karan Gandhi is correct in this respect that he only sold two lights against bill for consideration of Rs.22,400/-.

7.         It is borne from the contents of affidavit Ex.RA that OP concern has small shop of size of 8’ x 16’ without any workshop attached therewith. No rebuttal to that evidence produced and as such, keeping in view the size of the shop and the fact that no workshop attached with the shop of OP, it is obvious that case of the Op is believable qua non rendering of any services with respect to fixing of lights of the car of the complainant.

8.                Complaint has been filed through attorney Sh.Amritpreet Singh by executing special power of attorney Ex.C1 in that respect. Affidavit of that attorney Ex.CA has been tendered in evidence without disclosing that said attorney was also present at the time of fitting of the lights in the car by OP. If attorney was not present at the time of deal between the complainant and OP on 14.4.2014, then contents of affidavit Ex.CA qua fitting of the lights by OP in the car of the complainant is based on hear say evidence only. No direct evidence produced by the complainant to establish that actually malfunctioning of the wiring system emanated due to fitting of the lights purchased by the complainant from OP and  if that be the position, then certainly the complainant has failed to establish that actually OP undertook to do the fitting of the lights in the car in question.

9.                The car in question  purchased by the complainant was of 2011 model as revealed by contents Ex.C11, but the lights in question were purchased on 14.4.2014. So, it is obvious that the lights in question sought to be fitted in old car. No         expert report produced to establish as to what was the condition of wiring before and after alleged fitting of the head lights in the car in question. Only quotation bill of estimate produced on record as Ex.C11. That bill Ex.C11 shows as if the car owned by Tamanna Gandhi and as such, submissions advanced by counsel for OP has force that car still was in the name of Tamanna Gandhi at the time of obtaining service quotation Ex.C11. Mere act of obtaining service quotation Ex.C11 will not prove that actually complainant sustained loss of Rs.1,13,048/- for rectifying the alleged defects. Complainant has not examined any expert to prove the defects in the car in question and nor he has produced any expert to prove as to what was required to be done for rectifying the alleged defects. Even no expert examined to prove that wiring system was tinkled with and as such, the complainant has not adduced any evidence to establish that owing to any fault on the part of OP, the defect in the wiring system took place as claimed in the complaint or through affidavit of complainant.

10.              Consumer disputes are to be decided on yardsticks of reasonableness, probability and principles of natural justice do apply with full force for adjudicating the controversy. This in fact is the law laid down in case of Sunil Sharma vs. National Insurance Company Limited-II(2015)CPJ-46(Delhi State Consumer Disputes Redressal Commission, New Delhi). In view of above pointed facts and circumstances, it is made out that expert virtually has not been examined for proving the defects in the lighting system in the car of the complainant. Only that person will be withholding the best available evidence of expert, who may not be disclosing the truth and as such, yardsticks of reasonableness and probability leans in favour                    of OP for holding that the complainant failed to prove that actually mal-functioning of the lighting system of the car in question took place due to acts attributable to OP. Mere production of quotation Ex.C11 not establishes that amount mentioned in Ex.C11 was actually spent by the complainant for rectifying the defects.

11.              Onus of proving that seeds were of inferior quality was on the petitioner, but in case, he failed to prove the same by producing report of Agriculture Department i.e. the expert report or by examining expert, then complaint for getting compensation liable to be dismissed is the law laid down in case of Harbhajan Singh vs.Jhandu Kay Coop.Agri.Service Society Limited and others-2015(IV)CLT-72(N.C.). Keeping in view this legal position in mind and the fact that the complainant has not examined any expert to prove the alleged defect in the car, it is obvious that the complainant has failed to prove his case qua fault on the part of OP. Being so, in view of non production of direct evidence qua acts of alleged fault and commission by    OP, complaint merits dismissal.

12.              As a sequel of the above discussion, complaint dismissed by leaving the parties to bear their own costs. Copies of order be supplied to parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

                   (Param Jit Singh Bewli)                         (G.K. Dhir)

                             Member                                          President

Announced in Open Forum

Dated:19.12.2016

Gurpreet Sharma.