By Sri. MOHANDASAN.K, PRESIDENT
1. Complaint in short is as follows: -
The complainant is the registered owner of the Yamaha R15-LTD 2012 model bike bearing registration No. KL-65-A-6263. The market value of the vehicle is Rs. 70,000/-. The opposite party is authorised service centre of Yamaha motor cycle. On 24/07/2019 the complainant along with his son Muhammed Mubashir approached the opposite party’s showroom and entrusted the vehicle for service and complainant was asked to come on next day itself. On the next day the complainant contacted the opposite party to know whether the work was completed or not, then the opposite party said that the work was not completed and on completion of the work the complainant will be duly informed. Thereafter the complainant waited for 3 or 4 days for the opposite party’s call, but the complainant did not get information from the opposite party. Then the complainant availed leave from his job and went to opposite party along with his son and then the opposite party said to the complainant that the concerned person who serviced the bike was on leave and so the complainant directed to come on the next day. On 16/08/2019 the complainant again approached the opposite party and then the opposite party requested the complainant to wait for some time but after elapse of one hour, the complainant being confused, asked the opposite party’s manager about the bike. That time the opposite party said to the complainant that the bike stands missed. The complainant was shocked on hearing that. The act of the opposite party is unjustifiable. The manager of the opposite party said to the complainant that they had preferred a complaint before the police.
2. Thereafter discussions between the complainant and the opposite party, the opposite party said to the complainant that they are ready to give the market price of the said bike or same model bike after receiving the police enquiry report which is expected to get within three months. The opposite party also issued a letter dated 16/08/2019 to the complainant’s son stating the same. Thereafter the complainant contacted opposite party several times but the opposite party prolonged the promise with lame excuses and at last, when the complainant contacted the opposite party, the opposite party misbehaved to the complainant and challenged the complainant to do what complainant can.
3. The act of the opposite party amounts deficiency in service and unfair trade practice. Due to the irresponsible act of the opposite party the complainant suffered a lot of hardship, mental agony and financial loss. The complainant prays compensation of Rs. 50,000/-. The complainant also prays for the market value of Rs. 70,000/-of the vehicles with interest at the rate of 12% pa from 24/07/2019 to till date of payment. The complainant also prays cost of Rs. 5,000/-.
4. On admission of complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance and filed version denying the entire averments and allegations in the complaint. The complaint is devoid of merits, without any bonafidies and not maintainable as per law.
5. The opposite party partly admitted that the complainant brought motorcycle bearing registration No. KL-65-A 6263- R15 LTD 2012 model for repair work. The Motor cycle was brought to the work shop by pulling two persons. The vehicle was not sold from the opposite party shop. The opposite party establishment situate nearly 25 kilometres away from the residential area of the complainant. The complainant has got authorised service centre of the motor cycle near to his residential area.
6. The opposite party submitted the fact that the vehicle of the complainant was
alone stolen from the parking area of the opposite party wherein 7 other motor cycles also were parked. The opposite party could realise the fact from the CCTV footage. Actually, on that day 7 other motor cycles were available in the parking area in a running condition. The sole motorcycle which was not in a running condition was actually belongs to the complainant himself. The opposite party, due to mysterious appearance of theft of the vehicle, properly reported before the medical college police station and the police registered a crime as 623/2019. After 6 months of investigation the vehicle was found out from Thenhipalam Police station jurisdiction and the complainant was informed the fact and demanded to take back the vehicle. The information was given from Medical College Police station as well as from the opposite party. So, the attempt of the complainant is to mislead and the complainant approached the Commission hiding the true facts to grab huge money from the opposite party without any bonafidies.
7. The opposite party contented that the complainant instead of approaching the police station for the release of the vehicle wilfully harassing the opposite party and so the submission of the opposite party is that the complainant is not entitled for any sort of relief as claimed. The claim shown in the complaint is exorbitant and without any basis. The prayer of the opposite party is to dismiss the complaint with cost.
8. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A3. The documents on the side of opposite party marked as Ext. B1. Ext. A1 is copy of RC. Ext. A2 is letter issued by opposite party to the complainant. Ext. A3 is copy of lawyer notice issued on behalf of complainant to the opposite party dated 03/12/2020. Ext. B1 is copy of FIR No. 623 of 2019, medical college police station which is dated 02/08/2019.
9. Heard both sides, perused affidavit and documents. The following points arise
for consideration: -
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost?
10. Point No.1 and 2: -
The opposite party admitted that they are the service centre of the vehicle owned by the complainant and the vehicle was taken to the opposite party for repair work. But later the vehicle was stolen from the parking ground of the opposite party and accordingly the opposite party registered a complaint before the Medical college police and they registered crime as 623/2019. The opposite party further submitted that after thorough investigation by the police the vehicle was traced from the jurisdictional limits of Thenhipalam police and the fact was duly informed to the complainant. The complainant did not turn up to get released the vehicle from the police custody despite intimation from the Police station as well as from the side of opposite party.
11. The case of complainant is that he has taken his vehicle to the opposite party for the repair work on 24/07/2019. Thereafter he contacted the opposite party several times and only on 16/08/2019 the opposite party told to the complainant the vehicle stands stolen. Ext. B1 document shows that the missing of vehicle was reported on 02/08/2019. So, what can be inferred is the fact of missing of the vehicle was suppressed by the opposite party from the complainant. The complainant filed this complaint before the Commission on 10/02/2021 that is after 18 months of lodging FIR before the Police station. The opposite party contented that the missed vehicle was traced by the police after 6 months of lodging the complaint and the fact was duly informed to the complainant. But the perusal of the complaint does not reveal regarding the tracing of vehicle and the communications between opposite party and the police. It is not believable that the complainant was not communicated the tracing of the vehicle by the police officials or opposite party. If the complainant was vigilant on tracing his missed vehicle, naturally he might have received the communication. It is also particular to note that the opposite party contented in the version regarding the fact of tracing the motorcycle within 6 months of lodging complaint before the police and also regarding the communication about the tracing of motor cycle. But the perusal of complainant’s affidavit, the complainant is totally silent on the averment. In fact, the complainant conceding certain facts which are contented by the opposite party. Hence the perusal of the documents and affidavit, what can be inferred is missing of motorbike entrusted with the opposite party. There is no document to show the vehicle was traced and the same was duly intimated to the complainant. But the complainant also not fare enough to takes steps to gather information from the police or from the opposite party about the vehicle. So, the claim of the complainant to refund the cost of the vehicle on the basis of Ext. A2 is not bonafide one. Ext. A2 shows that the opposite party had undertaken to refund the market value of the vehicle or make available a 2012 model vehicle to the complainant. Hence, the opposite party is liable to act in accordance with the undertaking given as per Ext. A2. The opposite party has not denied the averment of the Ext. A2. As per Ext. A2, the opposite party is liable to pay the market value of the vehicle. But there is no document to assess the market value of the vehicle. Even on production of insurance certificate, the IDV of the vehicle could have proved. But no document has been produced by the complainant to establish the market value of the vehicle except the claim of Rs. 70000/-. So, what is possible to the complainant is to approach the concerned authority to get release the vehicle with due documents. The complainant is the registered owner of the vehicle and vehicle is with the custody of the Police as per the contention of the opposite party. If that is taken in to account the complainant is entitled to approached the authority with due documents for the release of the vehicle. If the complainant approaches the authority for the release of the vehicle and the contention of the opposite party stands proved as otherwise, the opposite party is liable to pay the market value of the vehicle as agreed by Ext. A2 document. The complainant contented that the market value as Rs. 70,000/- in the complaint as well in the affidavit. The opposite party has not challenged the contention of the complainant regarding the market value. So, the opposite party is liable to pay Rs. 70,000/- to the complainant on account of loss of vehicle. The complainant is entitled to approach the authority to release the vehicle initially, and on failure to get release the vehicle the opposite party becomes liable to pay the market value of Rs. 70,000/- to the complainant. It is admitted fact that the complainant entrusted vehicle with the opposite party for the repair work and the vehicle was missed from the custody of the opposite party. So, there is deficiency in service and lack of care on the side of opposite party and so the opposite party is liable to pay compensation to the complainant. The Commission finds Rs. 50,000/-as reasonable amount of compensation. The opposite party is also liable to pay Rs. 10,000/- as cost of the proceedings to the complainant.
12. From the light of above facts and circumstances, we allow the complaint as
follows: -
- The opposite party is directed to pay Rs. 50,000/- (Rupees Fifty thousand only) as compensation to the complainant on account of deficiency in service and thereby caused inconvenience and hardship.
- The complainant is at liberty to approach the appropriate authority to get release the vehicle on the basis of contention taken by the opposite party in the affidavit and if the complainant is not getting release the vehicle duly, the opposite party is directed to pay Rs. 70,000/-(Rupees Seventy thousand only) to the complainant as the market value of the vehicle.
- The complainant is directed to take steps to release the vehicle duly approaching the authority within one month after receipt of copy of this order.
- The opposite party is directed to pay Rs. 10,000/- (Rupees Ten thousand only) as cost of the proceedings to the complainant.
The parties are directed to comply this order within one month from the date
of receipt of copy of this order, failing which the opposite party is liable to pay interest at the rate of 9 % per annum for the compensation and cost of Rs. 60,000 /- from the date of order till the date of payment.
Dated this 16thday of December, 2022.
MOHANDASANK., PRESIDENT
PREETHI SIVARAMANC., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A3
Ext. A1 : Copy of RC.
Ext. A2 : Letter issued by opposite party to the complainant.
Ext. A3 : Copy of lawyer notice issued on behalf of complainant to the opposite
party dated 3/12/2020.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1
Ext. B1: Copy of FIR No. 623 of 2019 Medical college police station which is dated
02/08/2019.
MOHANDASANK., PRESIDENT
PREETHI SIVARAMANC., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
CPR
