IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 16th Day of July 2019
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
CC No.286/15
Balakrishana Pillai : Complainant
S/o Gopala Pillai
Residing at Jyothish,
Kottathala P.O
Kizhakke Muri, Mailam Village
Kottarakkara Taluk, Kollam.
[By Adv.Krishnaveni.V]
V/s
Mohan Kumar : Opposite party
Proprietor
Boss Automobiles
Near 66 KV Sub Station Road
Kottarakkara-691506
Kollam.
[By Adv.Poul Antony]
FAIR ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
1.This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act.
2. The averments in the complaint in short are as follows:-
The complainant is the owner of Skoda Laura Car bearing No.KL-24/C-2047. The said vehicle was having a mechanical defect in the radiator. When the rubber pipe below the radiator was leaking, the complainant approached the opposite party on 09.09.2015 to cure the defect. As directed by the opposite party two of his employees rushed to the complainant’s house and taken the above vehicle to the opposite parties work shop and also assured the complainant that the defect of the vehicle will be cured within 1 week. Within a few days the complainant and his driver visited the workshop of the opposite
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party to take back the vehicle. At that time the opposite party had issued a bill dated 15.09.15 for an amount of Rs.17,450/-. The opposite party had further demanded an amount of Rs.12,550/- in addition to the said bill. Since the complainant was not amenable for the same he had not paid the bill nor taken the vehicle from the workshop. Thereafter the complainant’s son by name Jayesh approached the Circle Inspector of Police, Kottarakkara. The police officer directed the complainant to pay an amount of Rs.30,000/- to the opposite party as final settlement. Accordingly the complainant was forced to pay the said amount and the opposite party made an endorsement to that effect in the bill dated 15.09.2015, taken the vehicle from the workshop and thereafter the complainant was about to use the vehicle it was found that there was major mechanical defects purposely done by the opposite party when the vehicle was kept in the opposite party’s workshop for curing the mechanical defects stated above. The complainant approached the Marikar Engineers Pvt.Ltd. Skoda Division, Chackai Bye-pass, Thiruvananthapuram. The mechanical engineers of the said firm visited the complainant’s house and after an overall check up they found that the valuable parts of the vehicle had been replaced and an amount of Rs.1,01,490.45/- is required for maintaining the vehicle in a good running condition. They had issued an estimate bill for the said amount on 17.09.2015. The said vehicle had been purchased on 31.08.2010 and it had covered only 73,592 Kilometre. The complainant was keeping the vehicle in a good manner. The whole defects of the complainant’s vehicle had been happened when the vehicle had been handed over to the opposite party’s workshop for a minor repair. The opposite party is solely liable for the total defects found in the vehicle. Hence the complainant was forced to send lawyer’s notice to the opposite party on 01.10.2015 claiming the additional amount of Rs.12,550/- paid to the opposite party as directed by the Circle Inspector of Police, Kottarakkara in addition to the bill amount dated
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15.09.2015, an amount of Rs.1,01,490.45/- as assessed by the Marikar Engineers Pvt.Ltd. for repairing the vehicle and Rs.50,000/- as compensation for mental agony and hardship sustained by the complainant along with legal notice charge. Even though the opposite party received the legal notice on 03.10.2015 he had not even cared to give a reply till date. Hence the complaint.
3. The opposite party filed written version disputing the material allegations in the complaint. However the opposite party would admit that there was a mechanical imperfection in KL-24/C-2047 vehicle belongs to the complainant and the complainant approached the opposite party for getting the defect cured. Accordingly the opposite party deputed two of his employees to shift the vehicle to workshop belongs to him. It is further contented that as directed by the opposite party, he carried out the maintenance work on the vehicle and charged Rs.17450/-. The vehicle was not in a running condition and that is why the complainant informed the opposite party to attend the defect. The mechanics under the opposite party’s organisation attended the vehicle and intimated the defect that the radiator hose of the vehicle had been damaged and the same has to be changed. In order to replace the said defective part the vehicle has to be shifted to the opposite party’s workshop by towing using break down van. The complainant supplied the radiator hose of the said vehicle and the same was fitted in the vehicle and engine oil was changed at the opposite party’s workshop. Meanwhile the complainant had requested the opposite party to do some painting works upon the vehicle. Accordingly the opposite party had done the painting work directed by the complainant.
4.The opposite party had intimated the complainant regarding the approximate cost of painting work and other charges to the complainant as and when he undertook the work. The complainant had agreed and directed to complete the works. After completion of the work, the opposite party had intimated the complainant to take delivery of the vehicle from the opposite
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party’s workshop. Accordingly on 10.09.2015 at around 8.30 pm, the complainant along with two other persons reached at the opposite party’s workshop for receiving back the vehicle. The complainant was satisfied with the painting work done on the vehicle and also conducted trial run by driving the vehicle in presence of the opposite party by sharing a seat with him in the vehicle about 10 KM in an around Kottarakkara. Thereafter the opposite party had asked to pay Rs.17,450/- as the charges for the maintenance and painting. But the complainant was not willing to clear the amount and instead, he had tried to take away the vehicle forcefully. When the opposite party resisted the illegal act of the complainant, one of the young men namely Jayesh who is the son of the complainant sprayed chilli powder on the face of the opposite party as instructed by the complainant and they fled away with the vehicle. Immediately the opposite party had been hospitalized and undergone treatment. The opposite party had also lodged a complaint at the Kottarakkara police station. The police seized the said vehicle and brought the complainant and his son to the police station. The police personals compelled the opposite party to settle the matter since, if the opposite party is sticking on to register a crime that will adversely affect the opportunity of the complainants son in going abroad. Further at the police station the complainant and his son begged pardon to the opposite party to excuse the inhuman and deplorable activity committed upon the opposite party. Then on humanitarian ground the opposite party had excused to the complainant and his son to the callous act committed by them and requested the police to drop the petition lodged by the opposite party. The complainant had also cleared the bill amount of Rs.17,450/- owed to the opposite party.
5. However soon after reaching the complainant’s son at abroad, the complainant caused to send notice through his lawyer under the despicable feelings of ego by hiding the real facts. The opposite party had received only
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the bill amount for the work and service rendered to the complainant from them. The opposite party never had demanded any amount other than the bill amount. Also while paying the bill amount the complainant as well as his son were present. In fact the complainant had forcefully taken away the said vehicle from the opposite party’s workshop by committing the illegal act of spraying the chilli powder on 10.09.2015 itself.
6. The opposite party has no knowledge of any complaint against him before the police by the complainant or his son. The complainant had taken away the vehicle in good running condition from the premises of the opposite party. Moreover the opposite party had done only the radiators hose replacement as mechanical work. The allegation of mechanical defects purposely done by the opposite party is only to escape from the illegal act committed by the complainant. The complainant had taken away the vehicle in good running condition after satisfying the same by conducting trial run. Furthermore if he had seen any problem he had every opportunity to bring the same to the attention of the police since the vehicle had brought to the police under the callous act committed by the complainant and his men.
7. The opposite party had received lawyer’s notice sent by the complaint and reply notice had been sent by the opposite party through his counsel. The complainant is not at all entitled to any compensation as claimed. The opposite party had done his work with commitment. There is no deficiency in service on the side of the opposite party or on the part of his employees. Further there is no loss or damage happened to the complainant due to any act of the opposite party. Instead opposite party had sustained huge physical and mental agony besides financial loss. The opposite party has approached the appropriate forum for the redressal of his grievance.
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8. In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
- Whether the complainant is entitled to get back Rs.12,550/- being the amount claimed to have been received by the opposite party in addition to the bill amount?
- Whether the complainant is entitled to get Rs.1,01,490.45/- being the amount assessed by Marikar Engineers Pvt.Ltd. for maintaining the vehicle in a good running condition?
- Whether the complainant has sustained any mental agony and hardship due to the act of the opposite party? If so what would be the quantum of compensation to be awarded to the complainant?
- Reliefs and costs.
9. Evidence on the side of the complainantconsistsof the oral evidence of PW1 to PW4, Ext.P1 to P7 and Ext.C1 report of Expert Commission.Evidence on the side of the opposite party consists of the oral evidence of DW1&2 and Ext.D1 to D11 documents.
10. Both sides have filed notes of arguments.Heard both sides.
Point No.1 and 2
11.For avoiding repetition of discussion of materials these 2 points are considered together. Following are the undisputed rather admitted or proved facts in this case. The complainant approached the opposite party on 09/09/2015 and stated that the Skoda Laura Car bearing No.KL-24/C-2047 belongs to his son Jayesh and being used by the complainant was having some minor defect that the rubber hose below the radiator was leaking and the complainant asked the opposite party who is the proprietor of the workshop by name Bose Automobiles to cure the said defect. The men deputed by the opposite party taken the vehicle from the residence of the complainant to the
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opposite party workshop to cure the defect. The complainant has also purchased the required hose and entrusted the same to the opposite party for changing the defective hose. The opposite party assured the complainant that the defect of the vehicle will be cured within 1 week. That after a few days the complainant along with his driver appeared at the workshop of the opposite party on 10.09.2015 for taking delivery of the vehicle after the repair work. Thereupon the opposite party had threatened the complainant by demanding Rs.12,550/- in addition to the bill amount. Since the complainant was not amenable for paying the additional amount apart from the bill amount he neither paid the bill amount nor taken delivery of the vehicle from the workshop of the opposite party. At the time of taking the vehicle from the residence of the complainant his son by name Jayesh was working abroad. Later the said Jayesh came over at his residence and made Ext.P2 complaint before the Circle Inspector of Police, Kottarakkara regarding the unlawful demand of the opposite party. However the Circle Inspector directed the said Jayesh to pay Rs.30,000/- to the opposite party as full and final settlement. Accordingly the complainant was compelled to pay Rs.30,000/- to the opposite party on 15.09.15 and after receiving the amount the opposite party endorsed having received Rs.30,000/- in P2 bill itself. After paying the said amount he C.I of Police deputed one police man from his office and taken delivery of the vehicle from the workshop of the opposite party. When the complainant was about to use the vehicle he felt that the vehicle was suffering from mechanical defects. He informed the matter to the Marikar Engineers Pvt.Ltd. Skoda Division situated near Chakka bypass, Thiruvananthapuram that the engineers attached to that division rushed the residence of the complainant verified the same and found that there are certain material defects in the vehicle. They brought the vehicle to the workshop and verified the vehicle and found that valuable original parts of the vehicle has been found missing from the vehicle.
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On 17.09.15 they prepared Ext.P3 estimate for Rs.101490.45/- required for the maintenance of the vehicle in a good running condition.
12.According to PW1 the opposite party has replaced the defective radiator hose by the new one purchased and entrusted to him as directed by him. But the opposite party has also changed the oil and painted some parts of the vehicle where scratches were found without obtaining his prior consent. However he was ready to pay Rs.17,450/- as shown in Ext.P1 bill. But the opposite party demanded excess amount of Rs.12550/- in addition to the said bill complainant was not amenable for paying the said amount over and above the bill amount and hence there occurred a dispute.
13.It is also brought out in evidence through PW1 and Ext.P4 to P6 documents that the complainant caused to issue Ext.P4 lawyer notice on 01.10.15 alleging unfair trade practice and deficiency in service on the part of the opposite party and claiming refund of Rs.12550/- received from the complainant by the opposite party over and above Ext.P1 bill and also demanding to pay Rs.101495.45/- being the amount shown in Ext.P3 estimate prepared by the engineers at Marikar Engineers Pvt.Ltd. to undo the defects caused in the vehicle at the opposite party workshop and Rs.50,000/- being compensation for the mental agony and hardship caused to the complainant in this regard. The opposite party has received the notice on 03.10.15 which is evident from Ext.P5 and P6 postal receipt and postal acknowledgement card. Later the opposite party caused to send a belated reply notice which was sent after filing the present complaint and just before the first posting date(08.12.15) of the complaint.
14. It is also an admitted facts that as per order in IA07/2016 an expert commissioner was deputed to ascertain the allegation that the opposite party and his employees have removed valuable parts of the vehicle while the vehicle was under repair work and also to ascertain the approximate amount required
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for maintaining the vehicle in a running condition. The expert commissioner after giving notice to both sides has verified the vehicle initially at the premises of the residence of the residence of the complainant on 12.06.16 and subsequently at the service centre of M/s. Marikar Engineers Pvt.Ltd. Thiruvananthapuram on 26.03.16 and verified with Ext.P3 estimate prepared by the engineers of Marikar Motors. But the opposite party has neither participated in the inspection nor given any statement before the expert commission.
15. It is clear from Ext.C1 report that the expert commissioner has verified Ext.P3 estimate received from M/s Marikar Engineers Pvt.Ltd. which was for an amount of Rs. 101495.45/-. But on verification of the estimate item No.3 to 8 stated in the repair estimate are not required for repair for the vehicle. The cost of the above 6 items amounts to Rs.25261/-. The expert commissioner has further reported that on physical verification he has noted the following defects in the vehicle.
1. The electrical fuse box with cover/rely plate was missing.
2. Engine protection guard of the bottom was found missing.
3. Rear right power window winding motor was in a removed
Condition.
4. Hood/ bonnet road was missing.
5. Interior ceiling light was missing.
6. Many of the lights including right headlight was not working.
7. Wiring harness found tampered. The expert commissioner has further stated in Ext.C1 report that the painting work done on the vehicle was not good quality, bubbling of paint was noticed on many places. Some other red colour paint was seen painted with brush on the right side of ceiling. Surface preparation seems to be poor, masking was not done properly and the clear coat/ finishing coat was also not applied properly. It is further seen from
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Ext.C1 report that the off- bord diagnostic done with the help of computer assistance scan tool showed errors related to electrical problems only. The tampering of wiring harness removal of the battery, removal of the fuse box etc. has caused recording of DTC on the vehicle ECM. But no other serious troubles were noticed on the vehicle.
16. It is true that the opposite party has filed objection against Ext.C1 report filed by the expert commissioner. But the learned counsel for the opposite party has not objected in marking the document through PW1 complainant without examining the expert commissioner. The opposite party has also not taken any steps to summon and examine the expert commissioner as a witness and to prove that the content of C1 report is not correct. The expert commissioner Sri.Sabu.V.R is an Associate Professor (Automobile Engineering)SCT College of Engineering Trivandrum. He is an experienced and responsible official. We find nothing to disbelieve his report which is mainly based on his inspection of the vehicle and also based on Ext.P3 estimate, which remains undisputed.
17.The contention of the opposite party in this regard is that he has carried out the maintenance work of the vehicle as directed by the complainant and charged Rs.17,450/- by issuing Ext.D1 bill and the case of the complainant that he has demanded Rs.12,550/- as alleged in the complaint is incorrect. It is true that DW1 has deposed to that effect. It is to be pointed out that the opposite party denied having issued Ext.P1 bill and also denied the endorsement to the effect that “received Rs.30,000/-” written by using pen at the end of Ext.P1. It is pertinent to note that Ext.D1 is a photo copy of Ext.P1 bill. DW1 himself would admit that he has taken print of the bill from his computer. But in Ext.P1 there is hand written portion stating received Rs.30,000/-. If that portion is omitted Ext.D1 is the true photo copy of Ext.P1. The name of the recipient, date, amount, nature of work etc. stated in Ext.P1 and D1 are one
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and the same. Therefore it is clear that Ext.P1 is the original of Ext.D1. It is crystal clear from the oral evidence of PW1 and 3 and Ext.P2 document that the endorsement in Ext.P1 to the effect that “received Rs.30,000/-“ is subsequently written by opposite party as directed by the Circle Inspector of Police, Kottarakkara as alleged by the complainant. It is true that the opposite party denied having received Rs.30,000/- and made such an endorsement. But in the light of the oral evidence of PW1 &3 and Ext.P2 document we are inclined to believe that the above endorsement is made by the opposite party after receiving Rs.30,000/- at the office of the C.I, Kottarakkara, especially when the opposite party failed to disprove the same by causing to examine his handwriting through F.S.L.
18.The contention of the opposite party that the complainant and his son and 2 strangers trespassed into his workshop at about 8.30 pm on 10.09.15 assaulted him sprayed chilly powder on his face and forcefully taken away the vehicle from his workshop appears to be incorrect in the light of oral evidence of PW1 and PW3 and Ext.P2 petition and other improbabilities brought out in evidence. According to PW3 he has prepared Ext.P2 petition in his own handwritings as instructed by the son of the complainant. The oral evidence of PW2 and PW3 would prove that there are several complaints made by the customers of the opposite party and his workshop and most of the complaint are being settled at the police station. It is also brought out in evidence that the workshop of the opposite party is very near to Kottarakkara Police Station and C.I office and the opposite party used to influence the police and caused to settle similar cases filed by his customers against him. It is also clear from the oral evidence of PW3 that while settling the case between the complainant and opposite party herein he(PW3) was also available at the police station and after settling the matter one police man by name Soman Pillai deputed by the C.I Kottarakkara went to the work shop of the opposite party and taken delivery of
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the vehicle. During cross examination PW3 asserted that the grievance stated in Ext.P2 petition was settled at the C.I office and one Shalu Thomas was the CI at that time that the opposite party demanded Rs.12550/- as compensation apart from the amount shown in Ext.P1 bill and the said amount was also given as instructed by the CI and after receiving the above two amount the opposite party has endorsed in his own handwriting in Ext.P1 bill to the effect “received Rs.30,000/-“. It is also brought out in evidence that PW3 is an advocate clerk and the court centre and C.I office are functioning at adjacent buildings. There is nothing on record to disbelieve the above version of PW2 and PW3.
19.In view of the oral evidence of PW1 and PW3 coupled with Ext.P1 bill, Ext.P2 petition it is crystal clear that the complainant has filed grievance petition before the CI of Police on 15.09.15 and on the basis of Ext.P2 petition the matter was settled and after paying Rs.30,000/- as written in Ext.P1 bill to the opposite party the matter was finally settled and C.I deputed one police man from his office and taken delivery of the vehicle from the workshop of the opposite party and entrusted the same to the complainant. In the circumstance the allegation of the opposite party that the complainant his son and 2 strangers together taken away the vehicle without paying the bill amount and also manhandled him at the workshop at about 8.30 pm on 10.09.2015 is not believable and acceptable.
20.It is true that the opposite party has filed one CMP and got registered Crime No.1515/2016 of Kottarakkara Police station and finally laid Ext.D5 charge sheet before the JFCM I, Kottarakkara. But on perusal of Ext.D5 it is crystal clear that the FIR was registered on the basis of a highly belated complaint filed on 04.07.2016 which is after one and odd years of the alleged incident and also after about 8 and odd months from the date of filing the present complaint before this forum and after 6 months from getting notice
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issued from this forum and just before filing version in this case. It is argued on behalf of the complainant that Ext.D5 case and Ext.D8 reply Lawyer notice are only counter blast of the present complaint filed before this forum. In view of the facts and circumstances including the inordinate delay in filing the CMP
at the police station we find force in the above argument.
21.The specific contention of the opposite party is that on 10.09.15 the complainant and his son reached at the workshop at about 8.30 pm attempted to take forceful delivery of the vehicle without paying the bill amount. They have also manhandled the opposite party before forcefully taking delivery of the vehicle by spraying chilli powder on his face. Hence he filed a complaint at the police station Kottarakkara and on the same day the police men deputed from the police station seized the vehicle from the residence of the complainant and brought to the police station and also taken custody of the complainant and his son. However as the complainant and son sought pardon as the son of the complainant has to return foreign country and also paid bill amount, the opposite party has not pressed the complaint filed before the police. The above version of the opposite party has been totally denied by the complainant and hence the entire burden is upon the opposite party to substantiate the above contention. But the opposite party has not adduced any reliable materials except the oral evidence of DW1, Ext.D4 to D6 medical records to substantiate the same. The opposite party has not even produced a copy of the petition alleged to have been filed before the police station alleging the incidents taken place on 10.09.2015 nor called for the petition register to prove that such a petition was received and settled amicably at the police station .
22.There is yet another reason for not accepting the version of opposite party regarding the untoward incident that is alleged to have taken place at the workshop between 8.30 and 8.45 pm on 10.09.15. The specific case of the opposite party in Ext.D8 reply notice which is the earliest version of the
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incident. It is stated in Ext.D8 that after completion of the repair work of the car the opposite party intimated the complainant to take delivery of the vehicle from his workshop. Accordingly on 10.09.15 at about 8.30 pm the complainant along with 2 other persons arrived at the opposite parties workshop for receiving the vehicle. After physical verification of the vehicle the complainant satisfied with the painting work done and also after conducting trial run by driving the vehicle in the presence of the opposite party by sharing seat with him in the vehicle about 10 KM in and around Kottarakkara. Thereafter the opposite party informed the complainant to pay Rs.17,450/- as the charges for the maintenance and painting work. But the complainant was not amenable to pay the bill amount instead he tried to take away the vehicle forcefully and when the opposite party resisted the illegal act of the complainant Jayesh the son of the complainant sprayed chilli powder on the face of the opposite party and that act was under the instruction of the complainant and thereafter they fleed away with the vehicle. Immediately the opposite party was hospitalised and undergone treatment and also lodged a complaint before Kottarakkara police. The police has seized the vehicle and brought the complainant and others to the police station and compelled the opposite to settle the case. The above contention of the opposite party in Ext.D8 reply notice is improbable in the light of the other materials available on record. Ext.D4 is the copy of accident cum wound certificate. Date and hour of examination is 8.45 pm on 10.09.15. As per the written version filed by the opposite party and Ext.D8 reply notice at about 8.30 pm on 10.09.15 the complainant along with 2 persons arrived at the workshop of the opposite party for receiving the vehicle after repair work. As per the averments in Ext.P2 complaint filed before police, the complainant and his son went to the opposite party workshop only on 11.09.2015 and not on 10.09.2015 as alleged by the opposite party. It is to be pointed out that inorder to conduct physical verification of the vehicle and for
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conducting trial run of 10 KM in and around Kottarakkara city as contented by the opposite party requires at least half an hour. If that be so the chance of returning to the workshop after conducting trial run will be 9 pm. Only after conducting trial run the opposite party talked about the bill for the repair and maintenance work and the complainant without paying the bill went away with the vehicle after spraying chilli powder by the son of the complainant on the face of the opposite party. Thereafter the opposite party was brought to the hospital. Naturally half an hour is also required to take place the above episode of the alleged dispute and chilli powder spraying and also to bring the opposite party to the Taluk Hospital, Kottarakka. In the circumstances there is no chance of the doctor seeing the opposite party at about 8.45 pm which is within 15 minutes after the complainant and his son reached at the workshop of the opposite party.
23. The details of the alleged incident stated in Ext.D4 Im-e-dn-bm-hp¶ 4 t]À IS-bn Ibdn apfIv apJ¯pw tZl¯pw spray sNbvXXv which is at 8.15 pm on 10.09.15 at Boss Automobiles, Kottarakkara. The alleged time of occurrence is 15 minutes prior to the arrival of the complainant and his men at the workshop. It is further stated in Ext.D4 that the patient was referred to Medical College Hospital, Thiruvananthapuram. No IP number or OP number has been stated in the column specified in Ext.D4. There is no serious injury noted in the face or body of the opposite party. Even then the victim was referred to Medical College Hospital, Thiruvananthapuram without admitting at that hospital. The time of the alleged incident is shown as 8.15 pm. No O.P or I.P number is noted in D4. In the circumstances the reference made to Medical College Hospital without sustaining any visible or serious injury creates doubt in the mind of the Forum regarding the entries in Ext.D4 accident cum wound certificate. The chance of fabricating such a document for the purpose of foisting a false criminal case cannot be ruled out especially when there is no
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mention of O.P or I.P number in Ext.D4. It is further to be pointed out that though the name and address of the complainant is known to the opposite party he has not stated the name of the complainant or his son to the doctor and what is stated in Ext.D4 is Im-e-dn-bm-hp¶ 4 t]À which also would falsify the case of the opposite party.
24.It is further to be pointed out that though the opposite party has rushed to the police station and lodged a complaint the police has not seen taken any action in the matter. As I have pointed out above no copy of the complaint/petition filed before the police has been produced nor called for from the police station. If actually the opposite party had filed such a complaint the police would have registered a case or at least entered the substance of the allegations and the manner in which it was settled etc. would have been noted in the petition register. But the opposite party has not taken any steps to call for any such petition or petition register. In view of the materials discussed above we are of the view that the alleged episode that has taken place at about 8.30 pm on 10.09.15 is not believable and acceptable at all, especially in the light of oral evidence of PW1&3 coupled with Ext.P1 cash bill and Ext.P2 petition filed by the son of the complainant regarding non delivery of the vehicle and alleged attempt of assault on the opposite party and also regarding the final settlement of the case by paying Rs.30,000/- in the presence of the C.I of Police, Kottarakkara.
25.Even according to the opposite party he has not generated any cash bill in his computer system on 10.09.15. Ext.D1 is the copy of the bill generated demanding Rs.17,450/-. The said bill is dated 15.09.15 at about 4.26 pm. In the circumstance it is crystal clear that the episode that is alleged to have taken place by the opposite party on 10.09.15 appears to be unbelievable.
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26.The oral evidence of PW1 and 3 coupled with Ext.P2 complaint would well establish that the vehicle was taken delivery from the workshop of the opposite party by deputing one police men by name Soman Pillai by the CI of Police after complainant having paid Rs.30,000/- to the opposite party at the office of the CI. Ext.P2 bill is admittedly issued by the opposite party. But he denied having endorsed regarding the receipt of Rs.30,000/-. According to him that endorsement was not written in P1 bill by him in his handwriting . During cross examination he would admit that he is ready to take steps to send P2 bill to FSL to disprove that the handwriting in which it is written as “Rs.30,000/- received” is not that of himself. But he has not taken any steps to forward the disputed handwriting in Ext.P2 with his admitted handwriting to the FSL. According to the opposite party Ext.P1 is a manipulated and dubious bill as the same would not contain his name and signature. But he would admit during cross examination when he was in the witness box as DW1, that Ext.D1 is the copy of Ext.P1 bill which would indicate that P1 was generated in the very same computer operated by the opposite party in his workshop. If it contain any endorsement not written by him, it is the duty of the opposite party to prove that it is a manipulated document. The oral evidence of PW1 &3 would clearly establish that the above endorsement has been written by the opposite party in their presence and that aspect is not seriously challenged also. In view of the materials discussed above we are inclined to hold that the opposite party has received Rs.12550/- in excess of the bill amount as directed by the C.I and made endorsement in Ext.P1 bill by acknowledging the receipts of Rs.30,000/- realising more amount than the amount shown in Ext.D1 bill would definitely amounts to unfair trade practice.
27.It is further to be pointed out that the complainant has entrusted the vehicle to the opposite party only to replace the radiator hose. But he has carried out other works such as changing oil and painting works. There is
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nothing on record to indicate that the complainant has authorised the opposite party to carry out those works in his workshop. If any work in excess of the work entrusted by the owner of the vehicle is found urgently to be carried out that fact should be intimated to the person who entrusted the vehicle and obtain his written consent to carry out those work. The workshop owner is also expected to intimate approximate expenses for carrying out the additional works so as to avoid further dispute. However there is no reliable materials to show that the opposite party has issued any intimation regarding the additional work and also not intimated the approximate expenses required to carry out the additional works. He has also not issued any job card indicating the work to be carried out by him in the said vehicle. Hence there is clear deficiency in service on the part of the opposite party in this regard.
Point No.3&4
28.The specific case of the complainant is that he was about to use the vehicle after bringing the same from opposite parties workshop he felt that there are certain grave mechanical defects for the vehicle. He informed the matter to M/s Marikar Engineers Pvt.Ltd., Skoda Division, Thiruvananthapuram and the above institution sent mechanical engineers to the residence of the complainant and they inspected the vehicle and found that certain valuable parts were removed from the vehicle and they prepared Ext.P3 estimate dated 17.09.2015 for Rs. 1,01,490.45/- to cure the defects and making the vehicle in a running condition. According to the complainant he has purchased the vehicle only on 31.08.2010 and he has been maintaining the vehicle in a good condition and the vehicle was run only 73598 Kms from the date of purchase till the date of inspection. The opposite party’s counsel has argued that Ext.P3 is not acceptable as it is not proved through the maker of it and it would not show any connection with the repair work done by the opposite party. We find no merit in the above 2 fold contentions. In the light of the materials available
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on records it is true that the person who issued Ext.P3 is not examined in this case. But PW1/complainant is the recipient of the above estimate. Hence he is competent to prove the said document which relates to his vehicle. PW1 has specifically sworn that the entire defects noted in the estimate (Ext.P3) has occurred at the opposite party workshop when he entrusted the same to cure a minor defect and therefore the opposite party is solely responsible for the above defect shown in Ext.P3 estimate. Though PW1 was subjected to severe cross examination by the learned counsel appearing for the opposite party nothing material has been brought out to disbelieve the above version of PW1. The other facts and circumstances available on record including oral evidence of PW1 to 3 and Ext.C1 expert report would probabilise the above case of the complainant.
29.Ext.P3 estimate is seen prepared at the M/s Marikar Engineers Pvt.Ltd., Skoda Division, Thiruvananthapuram on 17.09.15. It is also clear from Ext.C1 report that on the basis of Ext.P3 estimate the expert commissioner has cross checked with the actual defect of the vehicle and service history of the vehicle and has noted the defects in paragraph 2.7, 2.8 and 2.9 of C1 Expert report which are already stated under paragraph 15 of this order. It is clear from the oral evidence of PW1 coupled with Ext.P3 estimate and C1 expert report that the defects noted by the expert in the above 3 paragraphs are noted within 2 days of the release of the vehicle from the workshop of the opposite party. It is an admitted fact that the complainant has brought the car to the General Electricals run by DW2 for verification of the defects on the next date of realising the vehicle from the opposite party’s workshop and verified the defects regarding the electrical system. The fact that it was brought to the above electric workshop for checking the defective electrical system of the vehicle is evident from the oral evidence of PW1,DW2 and Ext.D11 series photographs.
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30. It is also brought out in evidence the technicians deputed from the service centre of the M/s Marikar Engineers Pvt.Ltd., Skoda Division, Thiruvananthapuram has inspected the vehicle at the residence of the complainant on 17.09.15 and after verification they have brought the vehicle to the service centre of the Marikar Engineers Pvt.Ltd. and verified again and Ext.P3 estimate was also prepared and the expert commissioner has also inspected and cross checked the vehicle with P3 estimate and service history found that the important parts of the vehicle have been lost from the vehicle and the painting done on the vehicle at the opposite party’s workshop was poor and defective.
31. Now regarding the contentions of the learned counsel for the opposite party that Ext.P3 document has no connection with items or work done by the opposite party. It is to be pointed out that the specific case of the complainant in paragraph 7 of the complaint is that he has purchased the vehicle on 31.08.2010 and it has covered only 73599 Kms and it is a comparatively new vehicle and there is no chance of having such defects as noted in Ext.P3 especially the complainant has been keeping the vehicle in a good manner. The whole defects in the vehicle happened when he handed over the vehicle to the opposite party workshop to carry out a minor repair and the opposite party is solely liable for the total defects found in the vehicle. According to PW1 the defects noted in Ext.P3 estimate has been caused by removing certain valuable parts of the vehicle by the opposite party and his employees while the vehicle was in their custody. It is clear from the available materials that the vehicle was in the custody of the opposite party right from 09.09.2010 till 15.09.2010 on which date a police man deputed by C.I of Police, Kottarakkara has taken delivery of the vehicle from the workshop and entrusted to the complainant. It is also brought out in evidence that the vehicle
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entrusted by PW2 &4 were also damaged at the workshop of the opposite party by removing the original parts of the vehicle.
32. The oral evidence of PW2 would make it crystal clear that the 1st opposite party mismanaged the vehicle entrusted to him by PW2 and returned the vehicle in a defective manner. According to PW2 he has filed CC.106/12 before this Forum against the opposite party for the deficiency in service and unfair trade practice committed by the opposite party while repairing his Scorpio Car bearing KL 24-1282 that he entrusted the above vehicle to the opposite party due to the complaint of Turbo of the vehicle. The said vehicle was run only 115000 Km that instead of repairing the complaint of the pipe of the turbo the opposite party has removed the turbo itself. According to PW2 originally the opposite party agreed to repair the vehicle for Rs.5000/-. But on the 3rd day opposite party had demanded Rs.10,000/- for completing the work. Though he agreed to deliver the vehicle within 3 days he had taken 3 months to repair it. But not yet returned the vehicle to him. Though he has entrusted the vehicle for curing the defect in the turbo the opposite party has carried out engine repair and when he questioned the same the opposite and staff attempted to man handled him. Even now the vehicle is with the opposite party that he came to know that several customers of the opposite party has filed consumer complaint as the opposite party used to remove parts of the vehicle entrusted to him for repairing. He came to know about the case filed by the complainant also. During cross examination of PW2 it is brought out in evidence that he has not filed any complaint before police regarding the alleged attempt to assault him as the opposite party is having influence over Kottarakkara police. However the opposite party has filed a civil suit before the Munsif court as OS 196/12 and obtained an exparte judgement. The opposite party has also filed a case at the same court and one case has been disposed off in favour of the opposite party. In view of the above evidence of PW2 and
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also in view of the admission of the opposite party that 5-6 consumer complaints against him have been filed before this forum and out of which one case is even now pending would clearly indicate that the opposite party is in the habit of picking up of quarrel with the customers and also used to withhold the repaired vehicles by demanding more amount than the amount agreed for the work entrusted to him and also used to damage the vehicles by removing the valuable parts of the vehicle entrusted to him for carrying out the repair work.
33.According to PW4 he has entrusted his Maruti Wagoner car at the workshop of the opposite party on undertaking that the maintenance work of the vehicle will be completed within 1 month and will returned the vehicle. He has spent Rs.1,50,000/- for the maintenance of the vehicle. But when it was gotdelivered it was not in a running condition. He filed a complaint as CC.166/12 before the CDRF, Kollam and finally settled the case for Rs.17500/. In view of the above evidence it is crystal clear that when PW2&4 have entrusted the vehicle at the workshop of the opposite party for carrying repair and maintenance work those vehicle were damaged by removing valuable parts of the vehicle and they were constrained to abandon their vehicles. Though PW2 to 4 have been subjected to severe cross examination there is nothing on record to disbelieve their evidence.
34. It is also clear from Ext.C1 report that the entire electrical system of the motherboard of the vehicle belongs to the complainant has been damaged. The oral evidence of PW1&DW2 coupled with Ext.D11 photographs would indicate that after taking delivery of the vehicle the complainant was managed to bring the same to the electrical workshop of DW2 for verifying the electrical system of the vehicle itself would indicate that the electrical system of the vehicle was in a defective and damaged condition when the vehicle was got delivered from the workshop of the opposite party. In paragraph 4 of Ext.P4 Advocate notice the complainant has alleged that after removing the vehicle from workshop of
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the opposite party the complainant started to use the vehicle it was found that there was major mechanical defects purposely done by the opposite party in the vehicle that the complainant approached the Marikar Engineers Pvt.Ltd. and the mechanical engineers of that institution visited the complainant’s residence and made an overall check up and found that the valuable parts of the vehicle has been replaced and an amount of Rs. 1,01,490.45/- is necessary to make the vehicle in a good running condition. It is true that the opposite party has denied the above allegation of paragraph 8 of the D8 belated reply notice. It is further contented in that paragraph of Ext.D8 that as the vehicle after radiator hose replacement was with the complainant and if any defect has been found except radiator hose replacement the opposite party is not liable. According to the opposite party he is not at all liable or responsible for any damage caused to parts except for the work done by him. In view of the facts and circumstances discussed above we find little force in the above contention especially in the light of the oral evidence of PW2 &4 pointed out above and also in view of Ext.C1 expert report .
35.In the light of the oral evidence of PW1 to 4, DW2 coupled with Ext.P3 estimate P4 lawyer notice and C1 commission report we have no hesitation to hold that material parts stated to be missing from the vehicle of the complainant was removed and certain parts was damaged while the vehicle was kept at the workshop of the opposite party between 9.09.15 and 15.09.15. It is also clear from Ext.C1 expert report that the painting work done by the opposite party on the complainant’s vehicle was defective. Hence there is clear deficiency in service and unfair trade practice on the side of the opposite party and that the complainant is entitled to get back the value of the missing parts and also for the defective painting work done by the opposite party on his vehicle from the opposite party.
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36.It is true that the expert commissioner has stated under paragraph 3(2) of C1 report that the items listed from 3 to 8 on the repair estimate worth Rs.25621/- are not required for refurbishing the vehicle. Therefore it is clear that inorder to repair and make the vehicle in a running condition and undo the defects caused in the vehicle Rs.75990/- (1,01,490-26521) alone is required. Therefore the complainant is entitled to recover Rs.75990/- from the opposite party on account of the damage and loss caused to the vehicle of the complainant at the workshop of the opposite party.
37. It is also clear from the available materials that the complainant has sustained much mental agony apart from financial loss due to deficiency in service and unfair trade practice committed by the opposite party. Therefore the complainant is entitled to get compensation to the tune of Rs.50,000/- as claimed in the complaint. In view of the materials available on record we are of the view that the complainant is also entitled to get costs of the proceedings to the tune of Rs.10,000/-. The points answered accordingly.
Point No.4
In the result the complaint stands allowed in the following terms:-
- The opposite party is directed to pay Rs.12550/-, being the excess amount charged by the opposite party for carrying out the repair work.
- The opposite party is also directed to pay Rs.75,990/- being the loss and damage caused to the vehicle of the complainant at the workshop of the opposite party.
- The opposite party is further directed to pay Rs.50,000/- as compensation and Rs.10,000/- as costs of the proceedings.
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- The opposite party shall comply with the above directions within 30 days from the date of this order failing which the complainant is entitled to recover Rs.1,48540/- with interest @ 9% p.a from the date of complaint till realisation along with costs Rs.10,000/- from the opposite party and his assets.
Dictated to the Confidential Assistant Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 16th day of July 2019.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
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INDEX
Witnesses Examined for the Complainant:-
PW1 : Balakrishna Pillai
PW2 : Mohanachandran Nair
PW3 : Vijayamohan Nair
PW4 : Ramesh Kumar
Documents marked for the complainant
Ext.P1 : Cash Bill dated 15.09.2015
Ext.P2 : Copy of complaint
Ext.P3 : Estimate bill dated 17.09.15
Ext.P4 : Copy of advocate notice dated 30.09.15
Ext.P5 : Registration slip dated 01.10.2015
Ext.P6 : Acknowledgement card
Ext.P7 : Copy of order
Ext.C1 : Commission Report
Witness examined for the opposite party:-
DW1 : Mohan Kumar
DW2 : Pramod
Documents marked for the opposite party
Ext.D1 : Copy of bill dated 15.09.15
Ext.D2 : O.P Ticket
Ext.D3 : O.P Ticket Chaithanya Eye hospital and research
centre
Ext.D4 : Copy of accident register cum wound certificate
Ext.D5 : Copy of final report
Ext.D6 : Copy of Mahazar
Ext.D7 : Copy of order in Original Suit No.196/2012
Ext.D8 : Copy of reply notice
Ext.D9 : Postal receipt.
Ext.D10 : Acknowledgement card
Ext.D11 series : Copy of photographs
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
Senior Superintendent
