Chandigarh

DF-II

CC/18/2015

M/s Chandigarh Medical Corporation - Complainant(s)

Versus

M/s Apex Motors - Opp.Party(s)

Sh. Shubhjot Singh Chadha Adv.

23 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	18 of 2015
Date  of  Institution	:	09.01.2015
Date   of   Decision	:	30.04.2015

 

 

 

 

 

M/s Chandigarh Medical Corporation, S.C.O. No.345-346, Sector 35-B, Chandigarh through its proprietor Sh.Daljit Singh Kohli.

             …..Complainant

 

Versus

 

1]  M/s Apex Motors, 45, Industrial Area, Phase-II, Chandigarh through Sh.S.S.Sarkaria.

 

2]  Sh.S.S.Sarkaria, M/s Apex Motors, 45, Industrial Area, Phase-II, Chandigarh.

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         MRS.PRITI MALHOTRA             MEMBER

 

Argued By:  Sh.S.S.Chadha, Counsel for the complainant.

Sh.Devinder Kumar, Counsel for the OPs.

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case of the complainant firm, it owned a Mercedes-Benz Car bearing Regd.No.CH-01-AT-6437 Model S350.  It is averred that Opposite Party No.1 is engaged in the business of repairing automobiles and Opposite Party No.2 is managing Opposite Party NO.1.  It is also averred that since the said vehicle started giving white smoke in Dec., 2013, it was taken to Joshi Auto Zone, who repaired its engine and cylinder head were removed. Thereafter, the complainant took the worn out block of the vehicle to the service centre of Opposite Party No.2 and instructed them to assemble the engine and return the vehicle.  Accordingly, after assembling the engine, the vehicle was delivered to the complainant on 10.2.2014 on making payment of Rs.70,087/- (Ann.C-1).  On 24.2.2014 the vehicle in question suddenly developed some noise in the engine and as such Opposite Party No.2 was called and the vehicle was towed & unloaded at the premises of Opposite Party No.1 (Ann.C-2).  It is submitted that since neither new nor used block of engine for the model of the complainant’s vehicle was available because of which the complainant’s vehicle could not be repaired, therefore, the complainant in consultation with Opposite Party No.2 started process of finding out compatible engine. The complainant also ordered the supply of Short Block with the manufacturing company Mercedes-Benz Engines at USA, which was received through Blue Dart Courier and then it was delivered to the OPs on 7.6.2014 (Ann.C-5 & C-6).         It is pleaded that while taking the vehicle in question for replacement of Short Block, the OPs told the complainant that it is a job of 4-5 days only, but the OPs neither prepared any job card nor had signature of the complainant.  Since, the work was not completed in the stipulated period, as such the complainant started following up very vigorously and exchange the communication.  It is also pleaded that from the bare perusal of the conversation (Ann.C-7 & C-8), it is clear that the OPs were neither properly equipped nor had any technical expertise capable of carrying out the job of such highly sophisticated machine i.e. car in question. On 15.7.2014, the OPs delivered the vehicle in question against payment of Rs.22,472/- (Ann.C-9).  It is alleged that at the time of delivery, the vehicle was not in working condition and it was transported through flat-bed truck.  Moreover, the vehicle was also badly damaged.  The said vehicle was unloaded at Punjab Motors, Mohali, who gave estimate cost of repair as Rs.79,257.31.  The complainant also gave Rs.32,002/- for gear oil changing job (Ann.C-13) to the Punjab Motors, Mohali.  That after carrying initial repairs, on further diagnoses with STAR scanner, it was found that main electronic distribution component and automatic transmission system has stopped working due to wrong fixation of electric cables/mishandling of vehicle by untrained workers. The Punjab Motors, Mohali further informed the complainant that replacement of said component is necessary and gave estimate of Rs.9,53,731/-. The complainant alleged that all has happened due to mishandling of all parts of the vehicle by the OPs.  It is pleaded that due to the above deficient act of the OPs, the complainant had to hire the vehicle and ultimately, purchased new Hyundai Verna Car under compelling circumstances.  It is also pleaded that the complainant has been subjected to great harassment and has undergone mental agony due to the conduct of the OPs.  Hence, this complaint has been filed with following prayer:-

“It is, therefore, respectfully prayed that the present complaint may kindly be accepted and the respondents/opposite parties be directed to pay the amount of Rs.19,40,000.00 to the complainant, on accounts mentioned in the preceding paragraphs, along with the future interest at the rate of 18% per annum till the actual realization of the said amount.”

 

2]       The OPs have filed reply stating therein that the complaint is not maintainable nor the complainant is a consumer, hence it deserves to be dismissed.  It is submitted that Opposite Party No.1 is one of the authorised service station of Tata Motors Limited and Opposite Party NO.2 is its proprietor. The complainant has intentionally not produced the job card dated 26.12.2013 and the alleged scanning report before this Forum.  It is submitted that as per own version of the complainant, the vehicle was initially taken to M/s Joshi Auto Zones Pvt. Ltd. and the Opposite Parties have not relation with the said company, so there was no occasion for Opposite Party No.2 to give any of the advise to the complainant.  It is also submitted that the vehicle was neither brought to the workshop of OPs on 10.2.2014 nor the OPs have received any alleged amount of Rs.70,087/- from the complainant nor they assured/agreed to assemble the engine.  Instead the vehicle was taken to M/s Joshi Auto Zone Pvt. Ltd. after coverage of 124787 kms. and it also replaced the engine block and pistons.  The Opposite Party No.2 has not agreed to provide any service to the complainant for the alleged problems. 

         It is further averred that the receipt alleged to be issued by M/s Rana Recovery Service (Ann.C-2) is a false, forged and fabricated documents and the complainant is knowingly mis-utilizing the same with ulterior motives, which is clear from confirmation given by Mr.Sharif (Ann.R-1/1) owner of Rana Recovery Service, Manimajra.   It is asserted that after inspection of the vehicle by the engineer of Opposite Party No.1, the vehicle was immediately returned to the complainant as the same was requiring replacement of at least half engine assembly.  The complainant agreed to procure the said half engine at his own from the manufacturer and then to bring the same to the workshop of Opposite Party No.1 for the replacement of the half of the engine assembly.  It is correct that parts of the vehicle were not available with Opposite Party No.1 so the complainant had taken back the vehicle.  The Opposite Party No.2 is neither authorised dealer of the manufacturer of the vehicle in question nor was consulted by the complainant for arranging the engine.  It is also asserted that the vehicle was not in driving condition and the Opposite Party’s employee has not driven the same.  For preparing job card, the complainant was required to approach the workshop and sign the same.  However, the complainant has not approached to the workshop for preparing the job card and had telephonically instructed to start the job. The time was not essence of the contract and the job of the replacement of half engine assembly was completed as per the instruction of the complainant. It is denied for want of knowledge that the complainant had taken the vehicle to Punjab Motors and receipt Ann.C-10 is again a fake & fabricated receipt. A number of reminders were given to the complainant to take the old half engine assembly, but it has not come forward and ultimately, a legal notice dated 11.12.2014 was sent to it. The OPs have also filed a civil suit against the complainant, which is pending before the competent court of law at Chandigarh and notice has been issued to the complainant.  It is submitted that the vehicle in question has been purchased by the complainant in an auction at throw away price. The vehicle was extensively utilized and required replacement of the various parts. The engine was in starting condition and the vehicle was delivered to the complainant in the proper condition. The complainant has collected the vehicle after due inspection. Receipt Ann.C-10 is a fake and fabricated document and the OPs had enquired the matter from M/s Sehgal Sons and moreover, the complainant has not proved it nor placed its original.  It is pleaded that the complainant has concocted a false story about the hiring of the vehicle, damaging of the vehicle, negligence/deficient services, mental agony, repair of the vehicle etc.  Rest of the allegations have been denied with a prayer to dismiss the complaint.

 

3]       Parties led evidence in support of their contentions.

 

4]       We have heard the ld.Counsel for the parties and have also perused the record as well as written arguments.

 

5]       It is submitted on behalf of the complainant that Car bearing Regd. No.CH-01-AT-6437 make Mercedes-Benz, Model S350 is duly owned by the registered proprietorship firm i.e. complainant. Submitted further that in the month of Dec., 2013 the said car started giving trouble i.e. it started emitting white smoke. It is evident that the same was taken to Joshi Auto Zone Pvt. Ltd. where it was diagnosed that the engine of the car needs to be overhauled.  It is further submitted that the complainant took the removed parts of the car to M/s Guru Nanak Engineering Works, Manimajra for the job of boring where the complainant was introduced to OPs, who assured to do the job. It is the argument of the complainant that Opposite Party No.1 is not an authorised service station of Mercedes Benz and they have not properly trained technicians having knowledge and expertise to repair such sophisticated machine.  Above all they do not even have proper equipments & tools meant for such vehicle like one in question.  Despite that the OPs have undertaken the repair of the vehicle in question and rendered the vehicle useless.  The OPs are guilty of unfair trade practice, negligence and deficiency in providing service to the complainant.

 

6]       On the contrary, the Opposite Parties vide their arguments have submitted that they were instructed only to change the engine with the one provided by the complainant and to return the same and not for the alleged overhauling of the vehicle.  Claimed that the entrusted job was completed within the stipulated time and the engine has been started and is in perfect order. It is submitted that the vehicle was brought to the service station of the OPs on flat bed truck only by towing and it was not in a drive mode at any point of time, as alleged by the complainant.  Further, the vehicle was delivered to the OPs only for the replacement of the parts provided by the complainant and admitted to the extent that the vehicle in question was returned back to the complainant on payment of Rs.22,472/- on 15.7.2014. The OPs totally denied the allegations made, being frivolous, baseless and misconceived for which the complaint is liable to be rejected.  Further, it is added by the OPs that the complainant does not fall within the definition of ‘consumer’ under Consumer Protection Act and relied upon the judgment of Laxmi Engineering Works Vs. PSG Industries Institute (1995 II CPJ I (SC).  With further addition, it is stated that the alleged problems in the vehicle have not been corroborated with any expert opinion/documentary proof in the form of evidence to prove that the subject vehicle suffers from the defect as allegedly arising due to the negligence during repair of the vehicle by Opposite Party No.1.

 

7]       We are of the opinion that in order to reach any conclusion, the basic issue to decide is whether the vehicle in question was in drive mode at any point of time, as claimed by the complainant and denied by the OPs.  The evidence led in this regard is controversial with the allegations of the OPs it being forged & false evidence. 

 

8]       The complainant in order to prove its version that the car was in drive mode at the time of delivering the same for repairs to the OPs, produced receipts of Rana Recovery Service as Ann.C-2, dated 24.2.2014 and Ann.C-5, dated 10.3.2014. Both the above receipts claimed to have been issued by the Rana Recovery Service Centre, reveals that the said vehicle was shifted on flat bet truck in driving mode while towing it to the service station of the OPs from the residence of the complainant and vise-versa.

 

9]       On the contrary, the OPs have also placed on record the same receipts as Ann.R-1/1, dated 24.2.2014 and Ann.R-1/2, dated 10.3.2014 with endorsement of the owner of the said Recovery Centre stating that though the note pad used for the receipts pertains to them, but the same had not been issued by them at any point of time.

 

10]      Both the parties have failed to place on record the affidavit of the author of the concerned receipts in question. In such scenario, it is hard to decide the matter in question it being requiring thorough probe and examination of witnesses of both the parties and their cross-examination. 

 

11]      Further, the record is silent qua the fact that the vehicle was handed over to the OPs for overhauling of the vehicle with assurance to make it functional. On the contrary, the OPs claimed that the said vehicle was handed over to them only for the replacement of the half-engine assembly, which was provided by the owner of the car i.e. complainant after managing the same from the manufacturer  of the car in question.  In our opinion, the verification of this fact too needs thorough probe and evidence of witnesses of both the parties and their cross-examination. 

 

12]      Further, it is claimed by the complainant that the OPs are not well equipped to deal the matter in question. This fact too is controverted by the OPs claiming being well equipped in dealing such matters. To the dismay, none of the parties have placed on record any evidence to prove their respective claims.

 

13]      Moreover perusal of document Ann.C-1 i.e. Job Card of Joshi Auto Zone Pvt. Limited (Dealer for Mercedes-Benz Passenger Vehicles) with following Remarks:-

 

“ENGINE NEEDS TO BE OVERHAUL AND CUSTOMER REFUSED FOR THE SAME. NO RESPONSIBILITY OF JOSHI AUTO ZONE TOWARDS JOBS CARRIED OUT ON CAR AS PER CUSTOMER INSTRUCTION.”  

 

create suspicion that why the vehicle in question was moved from the authorized centre to unauthorized centre of OPs for repair purposes.  In such scenario, it is hard to decide that at what end the vehicle was badly damaged as alleged by the complainant.   

 

14]      Discussion above ends up stating that the matter in question needs thorough probe i.e. elaborate evidence to prove the same, which includes examination & cross-examination of witnesses of both the parties and being summary nature of proceedings before this Forum, we relegate to decide the same. Accordingly, the same is hereby dismissed with no order as to costs.  However, the complainant shall be at liberty to resort to any other remedy, available to him, under law.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned to the record room.

Announced

30^th April, 2015

                            

                                                                             Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

                                                                                                                      

 

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.18 OF 2015

PRESENT:   None   Dated the 30th day of  April, 2015

O R D E R                        Vide our detailed order of even date, recorded separately, the complaint has been dismissed against Opposite Parties.                    After compliance, file be consigned to record room.

 

 

( Priti Malhotra )	(Rajan Dewan)
Member	President