Andhra Pradesh

Nellore

CC/47/2014

Kaku Vijayakumari Wife of Seshachalapathi Hindu aged about 53 years - Complainant(s)

Versus

Kun Hyundai Kun auto co Pvt.Ltd Rep by it Manager Director - Opp.Party(s)

R.N.Suneetha

30 Sep 2015

ORDER

                                                           Date of filing :   29-05-2014

                                                          Date of disposal: 30-09-2015  

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Wednesday, this the 30th day of SEPTEMBER, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.47/2014

Kaku Vijaya Kumari, 

W/o.Seshachalapathi,

Hindu, aged about 53 years,

D.No.1/23A, Lingabalija Street,

Nawabpet, Nellore.                                                …         Complainant

 

                      Vs.

                                                                            

1.Kun Hyundai,

   Kun auto Co.Pvt.Ltd.,

   Rep. by its Manager,

   Plot No.:209, Phase II, Auto Nagar,

   Petrol Bunk Back side,

   Nellore – 524 001.

 

2. Kun Hyundai,

    Kun Auto Co.Pvt.Ltd.,

    Rep. by its Managing Director,

    5^th and 6^th floor Corporation One,

    (Baani Buildings), Plot No.5,

    Commercial Centre,

    Jasola, New Delhi – 110 076.                         …            Opposite parties

 

This matter coming on  21-09-2015  before us for final hearing in the presence of Kum.R.N.Suneetha, Advocate for the complainant and  Sri  S.V.Uday Kumar,                     

Advocate for the  1^st opposite party and the complaint against 2^nd opposite party was dismissed on 26-11-2014 having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

        This consumer case is filed by the complainant against the opposite parties 1 and 2 to direct them to pay the difference in bills is, being excess taxation nearly an amount of Rs.2,500/-, to pay punitive damages of Rs.25,000/- to the complainant as the opposite parties     1 and 2 had deliberately imposed double taxes to her car’s repair bills and also to pay cots of Rs.5,000/- towards the complaint and pass such other relief or reliefs as the Hon’ble Consumer Forum may deem it fit under the circumstances of the case in the interests of justice.

 

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I  (a) It is the case of the complainant that she had purchased a car which bearing no.AP26 AJ 3507 in the year 2012 from the 1^st opposite party, who is the dealer of 2^nd opposite party.  The photocopy of ‘C’ book stands in her name.  The said vehicle of her, is insured with the Bajaj Allianz General Insurance.  While so, she was proceeding towards Ongole on 16-03-2014 along with her family members, when the said car was reached near old toll Sunnambatti, a vehicle-lorry which came in a rash and negligent manner dashed her vehicle(car) and front door of the said car  at the driver seat was damaged and immediately she had shifted the said car to the show-room of 1^st opposite party.

    (b) It is also further submitted by the complainant in para-5 of her complaint that it took nearly a week days time to set right the said car as she got the said car repaired after making insurance claim.  The opposite parties 1 and 2 people were paid an amount of Rs.14,188/- after deducting depreciation of Rs.5,260-61Ps. to the 1^st opposite party as part of settlement of claim made by the complainant.  The insurance claim was paid by the opposite parties people includes part of the said car + labour charges including taxes.  She had paid the remaining balance amount of Rs.9,248/- to the 1^st opposite party, is being the balance payable by her after deducting the insurance amount.  The complainant was served with bill which issued by 1^st opposite party along with insurance bill.

( c )   It is also further submitted by the complainant in para-6 of her complaint that while so, she had noticed some difference in the said bills which were issued by 1^st opposite party as well as Insurance Company.  She had submitted further that except education cess, wcf and Ed. H & S remaining taxes were being added in insurance bill, the opposite parties had settled the eligible amount and she had paid the said remaining amount.  The insurance claim was only after adding net tax payable on the said car parts and labour and the complainant had already settled the remaining amount to the 1^st opposite party.  She had contacted the opposite parties at Chennai to get clarification about double taxation in the said bills which were issued by insurance company and opposite parties.  But, the opposite parties did not give proper reply or clarification for double taxation in the said bills of opposite parties.

(d) It is also further submitted by the complainant in para-7 of her complaint that as there was no reply from the opposite parties and thereby the complainant got issued a legal notice on 24-04-2014 calling upon the opposite parties either to give clarification or to return the excess taxation in the said bills.  But, the 1^st opposite party was refused to receive notice and the 2^nd opposite party was replied and without giving proper clarification.  The opposite parties  are being service providers and that they are imposed wrong billing for the services provided by them and it is clearly amounts to deficiency in service.  Hence, the complaint.

 

II.  DEFENCE:

      The 1^st opposite party was resisted the complaint by filing a written version/counter dt.07-10-2014 of 1^st opposite party denying the allegations of the complainant.  Those allegations are false and the complaint is not maintainable either in law on facts. 

 

III. The complainant had filed an affidavit on 23-1-2015 as PW1 before this Forum and the documents are marked on her behalf as Exs.A1 to A8, whereas the 1^st opposite party had not filed any documents but the 1^st opposite party filed an affidavit on 07-10-2014 as RW1.  The complainant is also filed written statement/Written arguments in support of her case.

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

 

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

 

V.  POINTS 1 AND 2 :

 

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint, affidavit, written arguments of the case and documents filed herein. It is nothing but repetition of them once again in her complaint.

 

   Oral Submissions by the learned counsel for the complainant:

         Kum.R.N.Suneetha, the learned counsel for the complainant has vehemently argued that the complaint, affidavit, the documents Exs.A1 to A8 and written statement/written arguments of complainant may be read as part and parcel of her oral arguments.  She has also further argued that Ex.A3 is the bill issued by insurance company, which is for repairing and replacing the parts of the said car and labour which includes the taxation for the said car parts which is again got a place in the bill issued by the 1^st opposite party (Ex.A4). It is the contention of the complainant further that it is a clear case that the bills issued by the both insurance company and opposite parties itself proves for her case.  The said learned counsel for the complainant has argued that during the course of her arguments that the basic facts of the case are not disputed and only the point involved for decision of the case, is that whether double taxation of the bills occurred or not.  She has further contended that the difference in the said bills (Exs.A3 and A4) the excess taxation nearly about an amount of Rs.2,500/-  and there is a deficiency in service on the part of the opposite parties towards complainant. Finally, the said learned counsel has argued that complainant has sustained loss and suffered with mental agony which is infinitive and she must be given adequate compensation in the circumstances of the case in the interests of the justice and so the Hon’ble Consumer Forum may please to allow the complaint as prayed for.    

 

Oral Submissions by the learned counsel for the 1^st opposite party:

 

              On the other hand, the learned counsel of the 1^st opposite party

M/s.S.V.Udaya Kumar, has also vehemently argued that the written version and affidavit of one Mr.P.Vijayakumar, who is working as Manager of Accounts of 2^nd opposite party, Chennai may be read as part and parcel of his oral arguments.  He has also further argued that the contents are Ex.A7 i.e., a reply legal notice dt.3-05-2014 of opposite party may be also read as part and parcel of his oral arguments.  It is the contentions of  the learned counsel for the 1^st opposite party that actually the said bill amount was Rs.23,436/-for vide invoice No.B201401570 dt.27-03-2014 and the amount of Rs.9,248/-  was paid by the complainant towards difference amount and the balance sum of Rs.14,188/- had been duly settled by M/s.Bajaj Allianz through NEFT account transfer which clearly proves that there is no flaw that had occurred in the said transaction and the complainant had for reasons best known to her miserably failed to include the insurance company for detailed clarifications and as every transaction had been done transparently there is no iota of truth that double taxation had occurred in the end of our management.  It is also further contentions of the said learned counsel for the 1^st opposite party that detailed reply legal notice dt.3-05-2014(Ex.A7) was issued to the complainant and the complainant had preferred the complaint with ulterior motives and there is no deficiency in service and negligence on the part of the 1^st opposite party.   The complainant has filed her complaint that with a malafide intention to get wrongful gain.  Finally, the said learned counsel for the 1^st opposite party had prayed that the Hon’ble Consumer Forum may please to dismiss the complaint with costs.

                         Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits.  The complainant has alone filed her written arguments in support of the case.  One who seeks equity must come to the court with clean hands. The cardinal Principle of Law is that one who alleges a fact must be proved.

    The core point is involved in this Consumer case is that whether the said bills(Exs.A3 and A4) and its contents  are appears to be that, is there any double taxation charged and occurred in the preparation of the said bills?   

Reasons for the order:

      The document Ex.A3 describes the costs of repairs incurred towards the said car of the complainant and the total amount payable (parts and labour) Rs.15,687/-, salvage amount Rs.500/- compulsory excess Rs.1,000/- (one time) and depreciation amount Rs.5,260-21ps. and net amount payable parts + labour Rs.14,188/-, whereas, Ex.A4 also contains the details as mentioned below:

Sl.No.	Part number	Part Description	Qty.	Rate (Rs.)	1st Sale Amount (Rs.)	2nd Sale Amount (Rs.)	Labour (Rs.)
1.		CONSUMABLES ( )	1.00				Rs.300.00
2.		Only washing and cleaning ( )	1.00				Rs.285.00
3.		Body & Paint Repair Charges (Insurance)   Sub Total : VAT @ 14.5% ON 12630.41 Service Tax @ 12% on 585.00 Education Cess Tax @ 3% on 70.20     WCT @ 14.50% of 70% on 7000.00 ST @ 12% of 70% on 7000.00 Ed, H & S Cess Tax @ 3% on 588.00       T O T A L :         GRAND TOTAL:	1.00		12630.41   1831.41                                   14461.82 (Rounded)	0.00                                     0.00	Rs.7000.00       Rs.7000.00          70.20                         2.11             710.50      588.00       18.20      8974.01   23436.00

    So, it is apparent on the face of the record that it is true that there is double taxation (Ex.A3 bill and Ex.A4 bill), thus it can be said that the opposite party levied double taxation to the complainant.  There is a variation in the said bills with regard to taxes levied.  It is against the law and it is not permissible, invalid and not enforceable against the complainant.  The opposite party cannot be made the complainant liable to pay the above said taxes twice. Hence, complainant is entitled to get Rs.2,500/- as a difference amount in the taxation of the said bills.  The said learned counsel for the complainant has convinced us by way of her arguments.  The opposite party is miserably failed in its attempt to bring forth its defense, properly.  There is a lot of deficiency in service on the part of the opposite parties towards the complainant. We are of the opinion that the complainant has satisfactorily brought to our notice all the allegations against the opposite party with documentary evidence.  It is crystal clear.  Law assists those who are vigilant.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice.

Burden of proof:-

1. Complainant must prove his claim by reliable evidence – 2011 (3) CPR 449 (NC).

 

2.  One  who makes an allegation is required to prove it beyond doubt – 2011 (2) CPR 46 (NC).

 

3.  Consumer For a can award  compensation as deemed proper, reasonable   and not as per   asking of complainant – 2011 (2) CPR 282 (NC).

 

4.  Complaint is based on deficiency in service  must establish the same by leading cogent evidence  - 2011 (2) CPR 68 (NC).

 

5. In the case of consumer disputes redressal Forums, the judgments must set out the points in dispute and a decision on those points supported by some reasons – 1995 (I) CPR 832 (NC).

 

6. Repeated deficiency in service of the service provider amounts to gross deficiency in it’s service for which the consumer has to be adequately compensated by it which is reported in  2010 C.T.J. (N.C.) 1159.

 

7. A quasi – judicial authority must record reasons in support of its conclusions  - 2011 CTJ (SC) (CP) 128.

 

     In view of the facts and circumstances of the case on hand and with regard to points of fact and law, we are of the opinion that the said learned counsel for the complainant has convinced us with her oral arguments of the case.  We have considered the rival submission of the said learned counsel for the parties. These two points are held in favour of the complainant and against the opposite parties, accordingly.

POINT NO.3:  In the result, the complaint is allowed, ordering the 1^st opposite party is liable to pay Rs.2,500/- (Rupees two thousand five hundred only) towards the difference amount in the alleged bill being the excess taxation paid earlier and also to pay damages of Rs.15,000/- (Rupees fifteen thousand only) to the complainant and also to pay Rs.3,000/- (Rupees three thousand only) towards costs of this complaint, accordingly in the interest of justice. The complaint against 2^nd opposite party is dismissed without costs.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 30th day of September,      2015.    

 

              Sd/-                                                                            Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

23-01-2015

:

Kaku Vijaya Kumari, W/o.Seshachalapathi, Hindu, aged about 53 years, R/o.D.No.1/23A, Lingabalija Steet, Nawabpet, Nellore.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

07-10-2014

:

P.Vijaya Kumar S/o.Thiru C.R.Padmanaban, aged about 44 years, working as Manager Accounts, M/s.KUN HYUNDAI, KUN AUTO COMPANY PVT.LTD., having office at D-5, Ambattur Industrial Estate, Chennai – 600 058.

                   

                                                           

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	01-02-2011	:	Photostat copy of C Book stands in the name of the complainant.
Ex.A2	13-01-2014	:	Photostat copy of insurance policy.
Ex.A3	-	:	Photostat copy of parts details and labour details issued by insurance company.
Ex.A4	27-03-2014	:	Photostat copy of credit invoice (tax invoice) issued by the opposite parties.
Ex.A5     Ex.A6   Ex.A7     Ex.A8	24-04-2014     24-04-2014   03-05-2014     30-04-2014	:         :     :	Office copy of the legal notice got issued by the advocate for the complainant to the opposite parties.   Regd. Post receipts (two in numbers).   Reply notice got issued by the advocate for the 1st opposite party to the advocate for complainant.   Un-served postal cover of 2nd opposite party.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

• N I L -

         Id/-                                                                                          PRESIDENT(FAC)

 

 

 

 

Copies to:

 

1. Kum.R.N.Suneetha, Advocate, 27-2-1084, Balaji Nagar, Nellore.

 

2. M/s.S.V.Udayakumar, Advocate,

 

 

      3) Kun Hyundai, Kun Auto Co.Pvt.Ltd., Rep. by its Managing Director,

          5^th and 6^th floor Corporation One, (Baani Buildings), Plot No.5,

          Commercial Centre, Jasola, New Delhi – 110 076

           

 

Date when order copies are issued: