The case of the complainant, in brief, is that he is the registered owner of one Mahindra XUV 500(Taxi) vehicle bearing registration number WB 76-A-4080, Saloon, Chasis No. MA1YL2HJUC6A70366, Engine No. HJB4M75175 and OP is an authorized dealer of Mahindra and Mahindra Limited.  The complainant time and again have done the routine servicing and running repairs of his said vehicle with the OP for last few years after the purchase of the vehicle detailed above in the year 2012.  On 13.05.2016 the complainant had taken his said vehicle to the workshop of the OP with a problem of sound in engine ­­­and that was repaired, complainant paid for that and thereafter complainant ran the vehicle well for almost nine and half months. It is thereafter contended in the petition of complaint that on the next occasion after the lapse of that nine and half months period complainant on 15.03.2017 came done to Bagdogra and while

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returning back to Darjeeling said vehicle stopped at Sonada near 8^th mile Khola and he tried to start the vehicle with self starter option but could not start and on the next date i.e. on 16.03.2017 complainant took the vehicle to the OP-vehicle workshop (garage) with the help of one towing vehicle of one Sarkar garage by paying Rs.8,500/-.  Then on the next date i.e. on 17.03.2017 complainant went to the OP but on the said date due to non availability of technicians and fitters the vehicle was not checked and on the next date of that date on 18.03.2017 the complainant received a call from the OP when a mechanic told that there had problem with the vehicle with two injectors and the cost of repair would be Rs.30,000 - 35,000 to which he agreed but OP without any prior permission and giving intimation to the complainant proceeded with the engine works and then again on 20.03.2017 complainant received a call from the office of the OP and they intimated the complainant about some problems with Rocker Head and Valve as the Valve was broken in collision with the Piston and thus one estimated bill amounting Rs.67,753.07/- was sent and OP opened the engine of the vehicle without any information and intimation to the complainant and thereafter again on 27.03.2017 complainant visited the OP-motor workshop and he was shocked to see that the engine of his vehicle was already opened and he found scratches in the Piston and Valves were damaged and it is the allegation of the complainant that without his knowledge the engine of the vehicle was opened and secondly the scratches over the Piston and damages on the Valve were not possible in the ordinary course of vehicle running for about 60KMs on 15.03.2017 when complainant drove the said vehicle from Bagdogra to Sonada where his vehicle was stopped and wherefrom the vehicle was taken to the OP-motor workshop at Matigara, Siliguri by taking the help of one towing vehicle.  It is further mentioned in the complaint that since 1977 the complainant has been in profession of driving of all types vehicles and it is his apprehension that the engine of his said vehicle was mis-handled and damaged by the OP due to the utter negligence of the repairing authority of OP, Khokon Motors works Pvt. Ldt.  Complainant requested the OP several times for immediate repair of his vehicle but OP did not pay heed to such request.  Hence, this case has been filed by the complainant seeking following reliefs along with a direction upon the OP to pay a sum of Rs.3,00,000/- as compensation

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for loss incurred by the complainant due to gross negligence in the service of the OP and also for payment of 50,000/- as litigation cost to the complainant and for handing over the vehicle of the complainant with sealed pack engine on cost of the OP as well as to repair the injector which has been damaged at the cost of the complainant.

The OP has contested the case by filing written version where almost all the averments of the petition of complaint have been denied and it is stated that complainant has suppressed all the facts at the time of filing of this case.  The OP stated that there was no negligence in service from the part of the OP rather it was the choice of the complainant not to get the vehicle repaired and on the contrary OP has been harassed by the complainant as the vehicle has been occupying a valuable space in their workshop.  It is the further contention of the OP that the allegation of the complainant is absurd as the vehicle was brought to the OP when it was not taking even start and as such it was not possible at that state at all to ascertain any defect without at least opening the engine lid/head and what has been done that was done with the permission of the complainant.  It is also averred in the written version that the case itself is not maintainable as complainant is not a consumer as per C.P. Act. 1986.  The complainant in this case has filed documents which include a single photo copy of the vehicle parts and some documents in Xerox copies such as registration certificate, Sarkar garage bill of Rs. 8.500/-, Service quotation amounting to Rs. 67,753.07/- and three other estimated bills of the same dated 20.05.2016 as were supplied by OP.  Complainant himself has submitted his evidence along with an affidavit and on the other hand evidence of the OP along with an affidavit has been produced in the name of one Sanjit Kumar Paul on behalf of Khokon Motors Works Pvt. Ltd. and ultimately both the parties deposited before this Forum the Written Notes of Arguments and accordingly advanced their arguments through their Ld. advocates on record.  It is pertinent to note here that no case has been referred from the side of the complainant during argument but Ld. advocate for the OP during argument referred some cases’ decisions and the photo copies of those reported cases have been submitted. 

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On the basis of the pleadings of both the parties the following issues are framed:-

1. Is the complainant a consumer as per definition of section 2(1)(d) of the C.P. Act. 1986?
2. Is the case maintainable in its present form?
3. Has the Opposite Party committed unfair trade practice or is there any deficiency in service in this case from the part of the OP upon the complainant?
4. Is the complainant entitled to get the relief as prayed for?

DECISION WITH REASONS

 All the Issues are taken up together as those are interlinked and moreover it is required for the sake of convenience of discussion.

The main allegation of the complainant here in this case is that OP during repair at the very beginning damaged the engine of the vehicle, caused scratches over the Piston and damaged the Valves of the vehicle.  It is admitted as reveals from complainant’s version that the vehicle was stopped from getting start even after operation of ‘self starter option’ and complainant failed to start the vehicle as a driver while he has been in this profession since 1977, so it was taken to OP-Khokon Motor works Pvt. Ltd. at Matigara, Siliguri, from the hilly area of Sonada where the vehicle was so stopped with the help of a towing vehicle.  The complainant has stated that nine months prior to that date of sudden stop the vehicle at Sonada on 15.03.2017 the said vehicle got repaired at OP-workshop but we are of the considered view that such repair has no bearing upon this problem of vehicle on 15.03.2017.

It is the case of the complainant that he is a driver by profession and by driving his own vehicle in question he has been earning his livelihood by way of self employment and from the materials on record there exists nothing to disbelieve the same.  So, under the facts & circumstances of this case it can safely be said that complainant is a consumer as per section 2(1)(d) explanation clause of the C.P. Act. 1986 and the case is maintainable accordingly.  Thus issue nos. 1 & 2 are decided in favour of the complainant.

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The issue no.3 is very much important now as the complainant has been held to be a ‘consumer’ as per provision of C.P. Act. 1986.  On the date i.e. on 15.03.2017 the vehicle stopped after run of 60KMs and it is admitted that nine month’s back from that date it got repaired at OP’s workshop, where the vehicle was again taken on 16.03.2017.  It appears that from the date of manufacture/purchase of the vehicle by the complainant then five(5) years elapsed and it was not the matter that vehicle only ran for 60KMs, moreover it had been in running condition till stopped as because it is said by complainant that he used to earn Rs.3000 – Rs.4000 daily for his livelihood by driving the said vehicle as owner.  Whenever the vehicle was taken before the OP, then the condition of the vehicle was not at all in order, it was stopped and for getting repair of the same, it was natural to open the engine primarily for the assessment of damage and it was also needed for checking of the related parts of the vehicle. 

It is to be borne in mind that repairs of a vehicle is required when the same got damaged and that factor of damage in case of a vehicle does not come in natural running of the vehicle, it may occur on account of excessive running of the vehicle, road conditions and manner of driving of the vehicle.  Moreover the factor of wear and tear of the parts of the vehicle in question is there which comes in course of time.  In this case it appears that the vehicle in question got repaired from the same OP-workshop nine months back.  The gravity of damage cannot be assessed without checking and verification of the vehicle by the automobile engineer/mechanic.  Here in this case the vehicle was towed and brought to OP-workshop for its repair on 16.03.2017 at Matigara, Siliguri.  The complainant in this case never intended or made any prayer before this Forum seeking appointment of any mechanical expert or any automobile engineer for the purpose of assessment of damage at its primary stage nor at any subsequent stage to show the quantum of damage as allegedly has been done by the OP during the course of repairs of the vehicle in question.  The report of mechanical expert was very much needed in this case.  On this point we have scrutinized the materials on case record minutely and kept in mind the arguments advanced before us.  In a case in between Sanjay Singh Versus Dabloo Bhagat over defective engine of a Tractor as reported in 2018(3) CPR 38(NC) Hon’ble National

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ConsumerDisputes Rederessal Commission, New Delhi has been pleased to hold in the said judgement that complainant failed to place on record any technical/expert report to support his allegation that Tractor in question was defective and this case is also similar to that case to a great extent as the defect of engine of the vehicle in question has also been raised here by the complainant during course of repairs allegedly done by the OP, so we are accordingly guided in this context by the same principle of law as laid down therein.

In this case also in support of averment of complainant which mainly orients damage of the engine of the vehicle and that has been allegedly done by the OP’s men for doing repairs, the complainant to establish that failed to place on record any technical/expert report to support this allegation that OP negligently damaged the vehicle or its engine damaged during course of repairs.  Not even a single document has been placed on record in support of contention of the complainant that damage has been caused at all to the engine of vehicle due to defective repair process adopted by the OP of this case.

 OP side has given evidence challenging the case of the complainant by submitting examination-in-chief along with an affidavit through one Sanjit Kumar Paul who has been working at OP, Khokon Motors Pvt. Ltd. but the complainant side did not cross examine that witness of the OP.  No prayer for cross-examination was made.   The OP in this case has stated that opening of engine was must from their part as the vehicle was completely stopped and that least opening was done where no question of damage of the engine as alleged arises.  It has been categorically stated by the OP side that engine lid/head was only opened and not the entire engine and that was done only to ascertain the problem by which opening the engine was not dismantled at all.  In this case we are of the considered view that complainant has been failed to prove the point of deficiency in service on the part of the OP regarding the repairs of the vehicle of the complainant.  The question of unfair trade practice in this respect on the part of the OP is also not proved by the complainant.  So the issue no. 3 is decided against the complainant.  As a logical corollary the issue no.4 is also against the complainant.  Accordingly, the

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complainant’s case, fails.  All the issues are thus disposed of.

Proper fees paid. Hence, it is,

O r d e r e d,

that the instant Consumer Case No. 49/S/2017 is dismissed on contest against the OP without any order as to cost and accordingly disposed of.

Let a copy of this order be given to the parties free of cost.