Order No.6

dt.1-3-2016

            This complaint is filed by one Sri Chandan Ghorai against Mohan Motor Business Pvt. Ltd. OP No.1 and Sri Pradip Bajaj OP No.2, both of Arupota E M Bye Pass, opposite Science City, P.S. Tiljala, Kolkata – 700 105.

            The facts stated in complaint are that Complainant is a peace loving and law abiding citizen, residing at the address mentioned in the Cause Title.

            OP No.1 is authorized workshop of Mahindra Company and OP No.2 is directed by OP No.1.

            Complainant is a consumer as per the Consumer Protection Act, 1986 and is the owner of a car Mahindra Logan being Registration No. WB 30C 9288.

            Complainant found some trouble in driving the above mentioned car and send the car to the OP No.1 for necessary repairs on which OP issued the job card. After much persuasion mechanic of the OP examined the car and Complainant paid Rs.15,000/- on 17.6.2014 and again Rs.20,000/- on 22.7.2014. OP assured to return the car in good condition. After the stipulated period, when OP failed to return the car despite the request, Complainant issued a demand notice reminder on 3.1.2015 which was duly served upon the OP.

            Even today the car of the Complainant is under the custody of the OPs and OPs have not taken action for repairing the car which tantamounts to unfair trade practice. Opposite parties are liable to return the car and pay Rs.5,00,000/- as compensation for suffering mental pain, agony and harassment and also Rs.50,0000/- as litigation cost.

            Against above OPs have filed written version and denied all the allegation made in the complaint. Further, it is alleged that Complainant used to send his vehicle for running repairs in usual course and OP used to do the repairs. On 23.12.2013 the vehicle was sent to OP No.1 in a completely immobilized  condition and it required thorough repair. Complainant did not deposit any money for that purpose. OP No.1 raised a service quotation dt.24.3.2014 for Rs.2,51,051.84p. Complainant did not make any advance payment for that work. As a result the car remains lying in the workshop. Finally, after much persuasion on 17.6.2014 and on 22.7.2014 Complainant paid Rs.15,000/- and Rs.20,000/- respectively against quotation dt.24.3.2014 and was intimated by OP to pay a minimum Rs.1.26 lakhs.

            Thereafter, OP No.1 was approached by Complainant for purchasing the said vehicle after a lapse of one year. The condition of the vehicle got deteriorated. Thereafter, on 4.12.2014 an agreement for sale was entered into between OP No.1 and Complainant.

            Further, OP has alleged that due to unusual parking of the vehicle at the workshop OP suffered a loss of Rs.1,32,250/- for the period from 23-12-2013 to 6-5-2015. OP No.1 offered the Complainant to take the delivery of the vehicle so that he can sell the vehicle. Complainant is bound to pay the parking charges of Rs.1,32,250/-.            In this written version OP No.1 has filed a separate statement denying allegation of the Complainant and has submitted that the claim of the Complainant is not bona fide and should be rejected with cost.

Decision with reasons

            On the basis of the following facts mentioned in complaint and written version the following points for determination are framed.

1. Whether Complainant is entitled to get return of his vehicle in good running condition.

2. Whether Complainant is entitled to get Rs.5,00,000/- for suffering mental pain, agony and harassment from the OP.

3. Whether Complainant is entitled the litigation cost of Rs.50,000/-.

   In order to substantiate the allegation Complainant as well as the OPs have filed statements on oath. In addition to this documents have been filed on behalf of the Complainant as well as the OPs.

    Xerox Copies of receipts of payment of Rs.20,000/- and Rs.15,000/- have been filed on behalf of the Complainant. A letter to Mohon Motor has been filed which is also Xerox Copy.

   On the contrary, on behalf of OPs four documents have been filed. There is one letter of authority to Sandeep Biswas for prosecuting this case. The other document is service quotation which is Xerox Copy. It reveals that the service quotation was of Rs.2,51,051.84p and this quotation was issued on 24.3.2014.

   Further, there is Xerox Copy of agreement for sale between Chandan Ghorai and Pradip Bajaj. This Xerox Copy of agreement for sale is illegible. So, we cannot make any opinion for arriving on any finding on the basis of this document.

   In affidavit-in-chief Complainant has asserted the facts which has been mentioned in the complaint petition. On the contrary, OPs have also asserted the facts mentioned in the written version.

   Now, coming to the point where the Complainant is entitled to get the return of the vehicle in good running condition, it appears that the service quotation issued on 24.3.2014 of which Complainant paid only Rs.35,000/- that too in the month of June and July, 2014 respectively. Admittedly unless and until the 50% of the quotation amount is paid the question of repairing does not arise it is because any organisation or service provider will have to purchase the required appliances for repairing the car.

   Second question as to why OPs did not return the vehicle and return the money which they received when they did not make repair.

   OPs have made a claim of Rs.1,32,000/- as parking charges of the vehicle because the vehicle remained at the workshop for about two years and is still lying there.

   In our view such charges cannot arise if the person in charge of workshop works in a bona fide manner and will not return the money which is received from Complainant.

   So, it appears that both Complainant and OPs are at fault in their respective act and conducts and they do not appear to be entitled for what they have claimed. Further, it appears that there is an agreement for sale since neither of the parties have filed original of it, this cannot be taken into account and basing this no order can be passed.

   Accordingly, equity suggests that Rs.35,000/- be returned to the Complainant when the repair was not made. However, the claim of OPs as parking charges cannot be granted. Complainant is directed to take vehicle back in the condition it is there. If Complainant does not take the vehicle within  one month of this order, Complainant shall be losing his right to take back the money which he has paid.

    

   Hence,

   ORDERED

               Complaint and the same is allowed in part on contest. Complainant is directed to take back the vehicle lying at the workshop within one month of this order. After which the OPs shall pay Rs.35,000/- within fifteen days of taking back the vehicle by the Complainant.

               Since, both parties do not appear to be in clean hand the question of awarding compensation and litigation cost do not arise and the same is rejected. OP shall make payment of Rs.35,000/- to the Complainant within fifteen days of taking of vehicle by the Complainant and on production of original receipts of which Xerox are filed here and the original receipts OP shall file in this Forum.