KUNDAN KUMAR KUMAI
This is an appeal preferred, against the order dated 30/01/2019, passed by the Ld. DCDRF, Siliguri in Case No. 49/S/2017.
Brief facts of the appellants case are that, the appellant / complainant, being the owner of one Mahindra XUV 500(Taxi), bearing registration No. WB 76-A-4080, Saloon, had on 16/03/2017, taken the said vehicle to the workshop of the respondent, after the vehicle had failed to start at Sonada, while returning from Bagdogra, Siliguri, on 15/03/2017. The vehicle had then been towed at the expense of Rs. 8,500/- (Eight thousand five hundred) only, to the workshop of the respondent/ OP on 16/03/2017. On 17/03/2017, the appellant had then gone to the workshop respondent/OP, but the vehicle could not be checked due to non-availability of the technician and fitters. On 18/03/2017, the appellant/ owner received a call from the garage of the respondent/OP, that there was problem with the two injectors and the repairing expense would be around Rs. 30,000/- to 35,000/-, to which he agreed. But the respondent/OP without prior permission and intimation to the appellant/complainant had proceeded with the repair of the engine and on 20/03/2017, received a call from the respondent/OP and intimated the appellant/owner, about some problems with the Rocker Head and Valve, as the Valve had been broken due to collision with the Piston and one estimated bill amounting to Rs. 67,753.07 (Sixty-seven thousand seven hundred fifty-three and seven paisa) only, had been sent. On 27/03/2017, when the appellant/owner had visited the respondent /OP garage, he found that the engine of the vehicle had already been opened and there were scratches on the Piston and Valves had been damaged. The engine had been opened without the consent of the appellant/owner and the scratches on the piston and damage of the valve, could not have been possible in the ordinary course of vehicle travelling for 60km., on 15/03/2017. The appellant/owner being a driver by profession since 1977, having driven different kind of vehicles, had been definite, that the engine of said vehicles had been mishandled and damaged, due to utter negligence by the respondent/OP. The appellant/owner had repeatedly requested the respondent/OP to make good the damage, but the respondent/OP did not pay any heed. The appellant/owner, therefore, filed this instant case. Hence this case.
The respondent/OP contested case before the Ld. Lower Forum by filing written version wherein they not only challenged the veracity of the appellant/ owner’s case, but also stated that the case was not maintainable, as the provision of Consumer Protection Act 1986, was not attracted, as the appellant/owner was not a consumer. As regards the factual aspects, the same has been denied.
Both the appellant/ owner and the respondent/OP had examined one witness each on affidavit and had also filed certain documents.
After hearing the Ld. Advocates of both the sides and on perusal of the written notes of arguments and other materials on record, Ld. D.C.D.R.F. Siliguri, had passed the impugned order, dismissing the case.
Decision with reason
Ld. Advocate for the appellant /owner, at the time of final hearing had submitted, that the appellant/owner was a consumer, as he was a driver by profession, since 1977 and earned his living, by driving vehicles, for himself and his family. He has further stated that the appellant/owner used to regularly get his vehicle repaired at the respondent/OP garage and lastly on 13/05/2016 had got his vehicle repaired. On 16/03/2017 he had brought his vehicle, after towing the same from Sonada, to the respondent/OP garage and on 18/03/2017, he had received a call, that there was defect of two injectors and the cost of repair would be Rs. 30,000/- to 35,000/-, to which he had agreed and on 20/03/2017 the appellant/owner, had again received a call intimating, that there were some problems with the Rocker Head and Valves, as the valves had been broken due to collision, with the piston and one estimated bill amounting Rs. 67,753.07 (Sixty-seven thousand seven hundred fifty-three and seven paisa) only, had been sent. The respondent/OP had opened the engine of the vehicle without any information and intimation to the appellant/owner and job card had not been issued. Therefore, the respondent/OP committed unfair trade practice. He has further submitted, that the case be remanded to the Ld. Forum below, as the Ld. Forum had also opined that expert opinion was necessary and had dismissed, the case due to lack of such expert opinion, which was mainly due to the inexperience of the Ld. Advocate, conducting the case below the Ld. Forum. Ld. Advocate has relied on the following judgements:
List of Judgments: -
- National Seeds Corporation Ltd. Vs M. Madhusudan Reddy passed by the Hon’ble Supreme Court of India, in Civil Appeal no. 7543 of 2004.
- Maruti Udyog Ltd. Vs Casino Dias. Passed by the Hon’ble NCDRC in Revision Petition no – 1369 & 1370 of 2004.
- Kamala Construction Pvt. Ltd. & 2 others Vs Soumen Saha passed by the Hon’ble NCDRC in Revision petition 3413 of 2016
- Karnataka Electricity Board - Vs - The Secretary Bellary Citizens Forum passed by the Karnataka State Consumers Disputes Redressal Commission, Bangalore, in Appeal No 25/1990 on 31/10/19990
- Ashish Mukherjee- Vs. Divisional Manger, Telephone in S.C. case no- 328/A/1993 on 25/11/1993
- Cargo Motors Pvt. Ltd. -Vs - Ajay Singh and Anr. Passed by the Hon’ble NCDRC in Revision Petition -1742 of 2015
- Eicher Tractor Ltd. -Vs - late Chittaranjan Prasad Singh & Ors. In Revision petition - 1841 of 2001, passed by the Hon’ble NCDRC.
Ld. Advocate for the respondent/OP on the other hand, had submitted that the appellant/owner was not a consumer, as the vehicle was a commercial vehicle and also, that the it was not a sole source of earning. He had further stated, that it would not be possible to identify the problem without opening the lid of the vehicle and the engine had not been opened, as alleged by the complainant. On the other hand, the respondent/OP had shown good gesture by offering the appellant/owner, the payment of 50% of the estimated charges, to start the repair works. That apart during the hearing before the Assistant Director Consumer Affairs and Fair Business Practice, Darjeeling had proposed the discount of 7% on the spare parts which was rare in such type of business. Even before the Ld. Forum, Siliguri a further 3% on spare parts had been offered. He had, however admitted, that without expert opinion, this kind of disputes could not be settled. He had also submitted that case had been based on apprehension and no order could be granted in such cases. He has relied in the judgment passed, in Sri. Mohan Motors Vs. R.P Sharma passed by the Haryana State Consumers Disputes Redressal Commission Chandigarh, reported in II (2006) CPJ 449, Mahindra and Mahindra Ltd. Vs. Ranu Sharma and Anr passed by the Madhya Pradesh State Consumers Disputes Redressal Commission Bhopal, reported in I (2012) CPJ 116, North East Karnataka Road Corporation Vs. Puja Travels by its Partners and Ors National Consumers Disputes Redressal Commission New Delhi, reported in IV (2009) CPJ 297 (NC), Krishna laser and Cosmetic Pvt. Ltd Vs. Lumens India Pvt. Ltd passed by the National New Delhi in II ( 2011) CPJ 133( NC), Central Auto Mobiles and Ors Vs. Simplex engineering and Foundry Works ltd. passed by the Chhattisgarh State Consumers Disputes Redressal Commission Raipur in I (2004) CPJ 374, IndusInd Bank Ltd. and another versus Mr. Milan Dutta REVISION PETITION NO. 326 OF 212, National Consumer Disputes Redressal Commission, New Delhi, Jayantilal Trikambhai Brahambhatt and another versus Abhinav Gold International Marketing Pvt. Ltd. and others, CONSUMER COMPLAINT NO. 237 OF 212, National Consumer Redressal Commission, New Delhi, Abhikram versus Hotel Himmatgarh Palace REVISION PETITION NO.166 OF 211, National Consumer Disputes Redressal Commission, New Delhi, U. P. State Industrial Development Corporation (UPSIDC) versus Smt. Shyama Rani REVISION PETITION NO. 274 OF 212, National Consumer Disputes Redressal Commission, New Delhi, The Hon'ble National Commission in the case of Kumari Namrata Singh vs. Manager, Indus (212) 3 CPR (NC) 570, Royal Enfield Motor Ltd. vs. Kulwant Singh Chauhan, (211) 4 CPR 28, the Hon'ble National Commission, Tata Engineering & Locomotive Co. Ltd. & Ors. vs. Bachchi Ram Dangwal & Anr. II (29) CPJ 9 (NC), the Hon'ble National Commission, Sukhvinder Singh vs. Classic Automobile & Anr. I (213) CPJ 47 (NC), the Hon'ble National Commission, Tata Motors Ltd. vs. Deepak Goyal & Ors. I (215) CPJ 67 (NC), the Hon'ble National Commission.
After hearing the Ld. Advocates of both the sides and ongoing through their written notes of argument, as well as the citations relied on by them, respectively, firstly whether the appellant owner is a consumer or not, which had been challenged by the respondent on the ground, that the vehicle in question was a commercial vehicle and he had other vehicles also for using it commercially, can be answered, by stating that, by using the vehicle for commercial transportation per se, would not disqualify the appellant/owner from being a consumer, as defined under section 2(1) (d) of the Consumer Protection Act 1986. The appellant/owner in the complaint para-No. 16 had categorically stated, that the said vehicle had been used for earning his daily bread and butter, to which there is no contradicting evidence. That apart there is no evidence forthcoming from the respondent/ OP side that the appellant/owner had other vehicles to sustain his living. In the absence of any such evidence, the citation relied in this regard do not come to the support the case made out by the respondent/OP.
Secondly, the use of the word ‘apprehension ‘in the memo of appeal, cannot be attributed to the appellant/owner, as it is the drafting done by the Ld. Advocate and the appellant/owner cannot be penalized for such inadvertence. Moreover, the appellant/owner in the para no. 13 of the complaint had stated that he was sure, that the engine of the vehicle had been man handled etc., indicating that the damage had been definitely been done by the respondent/OP. Under the circumstance, this contention on the part of the respondent/OP also fails.
While dealing with the lack of evidence of the expert opinion from the part of the appellant/owner, which the Ld. Forum below, vide its impugned order reflected, that the case failed due to such lack of evidence, it can be stated, that the bottom line is, the appellant/owner being a veteran driver by profession, since 1977 and by long association with vehicles was experienced enough to know the ins and outs of vehicles and when he mentioned in the para no. 13 of complaint, that the vehicle had been man handled and damaged due to negligence on the part of the respondent/OP, with no contradicting evidence on record, the Ld. Forum below ought to have relied on his testimony. Understood that relying on such type of evidence would not have been desirable, but when the inexperience of the Ld. Conducting Advocate got the better of him when he did not pray for an expert opinion, the poor consumer should not have been penalized. Moreover, with more than 40 years’ experience in the transport sector, his testimony should have been given the weightage that was due. Hence when he stated that the valve and piston could not have suffered the damage without contribution from the mishandling from the personnel of the Ops garage meant, that it was his experience that prompted in assessing such types of damage. Furthermore, no ill intention can be attached to his opinion, as he was a regular customer of the Op garage. Lastly, as this legislation was meant mainly for the protection of the consumers and therefore, the Ld. Forum erred while passing the impugned judgment, seeking expert opinion when a more experienced opinion was at hand. It thus appears to be a case of missing the woods for the trees. As a result, the instant case needs to be remanded, to the Ld. Lower Forum, for writing a fresh judgment, on the basis of the observation made above.
The instant appeal succeeds.
It is therefore
Ordered,
That the instant appeal be and the same is allowed on contest but without costs.
The impugned order is hereby set aside.
Copy of the order be handed over to the parties free of costs.
Copy of the order be sent to the Ld. DCDRF, Siliguri, for necessary compliance.
