Date of Filing      : 16.08.2022
                                                                                                                 Date of Disposal: 30.05.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                  .…. PRESIDENT
                 THIRU.P.VINODH KUMAR, B.Sc., B.L.,                                                      .....MEMBER -I
                 THIRU.P.MURUGAN,.MCom., ICWA(Inter)., B.L.,                                    ....MEMBER-II
 
CC. No.181/2022
THIS TUESDAY, THE 30th DAY OF MAY 2023

Mr.Y.Jayapaul Raj, S/o.Yasan,
No.3, Subramaniya Siva Street,
Rajaji Puram, Thiruvallur. 302 001.                                             .........Complainant.
                                                                          //Vs//
The Managing Director,
M/s.G.K.Car Zone,
No.6, C.V.Naidu Salai,
Near Meera Cinema Theater,
Thiruvallur 602 001.                                                                           ...Opposite party.
 
Counsel for the complainant                                       :  M/s.M.Staleen, Advocate.
Counsel for the opposite party                                   : Mr..L.Thanigaival. Advocate.
                        
This complaint is coming before us on various dates and finally on 11.05.2023 in the presence of M/s.M.Staleen counsel for complainant and Mr.L.Thanigaival, counsel for opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service with regard to the service of the complainant’s car along with a prayer to direct the opposite party to refund a sum of Rs.1,05,000/- to the complainant and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-

The crux of the complaint allegations was the complainant had given his Mahandra Xylo car for repair with the opposite party and had paid Rs.1,06,458/- towards repair charges.  However, the repairs were not properly done and due to faulty wheel alignment the complainant was made to purchase new tyres and also to carry out repairs with another workshop.  Also the old replaced spare parts were not given back to the complainant.  Thus the complaint was filed to direct the opposite party to refund a sum of Rs.1,05,000/- to the complainant and to pay a sum of Rs.2,00,000/- towards compensation for mental agony and hardship caused to the complainant along with cost of the proceedings to the complainant.
Crux of the defence put forth by the opposite party:-
The opposite party denies that they had assured to hand over the old alloy wheel after the change of new ones and further denied that the complainant had paid the full amount.  Through cheque dated 23.01.2018 a sum of Rs.15,000/- was paid as advance and by another cheque dated 07.03.2018 a sum of Rs.90,000/- was paid.  The opposite party specifically denies that the total Tax Invoice of Rs.1,06,540/- was not prepared in the name of Jayapaul Raj and also stated that he did not pay a single penny out of the Invoice raised. Opposite party denies that they delivered the vehicle without returning the old replaced articles i.e., old alloy wheel and other minor parts and that they failed to do wheel alignment and under chassis painting.  It was further denied that without fulfilling the job card the opposite party prepared the final bill and had collected the money from the complainant. The opposite party denies that no work has been done by the opposite party and that all the spare parts which were changed were local and duplicate ones.  The opposite party also denied the fact that the complainant had spent Rs.45,000/- for new tyres purchased at Sri Krishna Tyres on 09.03.2018. The alleged vehicle Mahindra Xylo bearing Reg.No.TN 21 AF 1555 belongs to one Mrs. Kalyani, she has not filed the present complaint. The complainant had taken delivery of the vehicle with the fullest satisfaction and the same was endorsed by him before the opposite party. The vehicle was insured with ICICI Lombard Insurance Company and the Tax Invoice was prepared in the name of Insurance Company and the Insurance Company had reimbursed the Tax Invoice amount. During and after the service, the vehicle was inspected by the Insurance authorities on several occasions and necessary photographs and reports were taken by the Insurance authorities before settling the complainant’s insurance claim.  If at all, the vehicle was not intact, the Insurance Company would not have reimbursed the claim. The vehicle was delivered during February 2018 whereas the complainant states that he had driven the vehicle for more than 2000 kilometers in a single month, which was contradictory with his own legal notice, dated 05.04.2022. It was submitted that with regard to old alloy wheels and the removed spare parts, usually the same would be kept in the vehicle itself at the time of delivery of the vehicle.  In this case, the complainant had not demanded for the return of spare parts, the same was retained in the custody of the opposite party for 15 days and afterwards disposed as hazardous waste as per the Rules of the Thiruvallur Municipality issued to all the Automobile Service Centres. The wheel alignment report was already handed over to the complainant at the time of delivery of the vehicle itself.  It was submitted that due to up gradation, new wheel alignment machinery was installed by replacing the old machine. As all the data were stored in the old machinery, it cannot be retrieved and it was informed to the complainant during the year 2021. There is no cause of action for filing the present complaint.  The quantum of damages claimed in the complaint was furnished without any proper break-ups and calculations. The opposite party is not liable to pay any compensation. The complainant had not obtained any expert opinion or report from the competent persons for claiming the damages. Thus, stating that there is no deficiency in service or negligence on their part sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex.A11 was submitted on their side.  on the side of opposite party proof affidavit was filed and documents marked as Ex.B1 to Ex.B3 was submitted on their side.
Points for consideration:-
Whether the complaint allegations with regard to the service/repairs done by the opposite party for the complainant’s Mahindra Xylo car constitutes deficiency in service and whether the same was successfully proved by the complainant by admissible evidence?
If so to what relief the complainant is entitled?
Point No.1:-
On the side of the complainant the following documents were filed in support of the complaint allegations;
Tax Invoice given by the opposite party dated 14.02.2018 was marked as Ex.A1;
Tax Invoice bill of Sri Krishna tyre dated 09.03.2018 was marked as Ex.A2;
Bill of M.L. Automobiles dated 12.11.2018  was marked as Ex.A3;
Copy of Smile Car Autos dated 14.12.2019 was marked as Ex.A4;
Letter issued by the complainant to the opposite party dated 04.02.2020 was marked as Ex.A5;
Letter issued by the complainant to opposite party dated 02.03.2021 was marked as Ex.A6;
Letter given by Thiruvallur Town Consumer Protection Association to The General Manager, Mahindra & Mahindra Limited dated 20.07.2021 was marked as Ex.A7;
Email sent by the complainant to the opposite party dated 05.04.2022 was marked as Ex.A8;
Legal notice issued by the complainant to the opposite party dated 05.04.2022 was marked as Ex.A9;
Delivery report was marked as Ex.A10;
RC Book was marked as Ex.A11;
On the side of opposite party the following documents were submitted in proof of thier defence;
Reply notice sent to the complainant dated 22.07.2021 was marked as Ex.B1;
Acknowledgement card was marked as Ex.B2;
Tax Invoice in the name of kalyani dated 06.03.2018 was marked as Ex.B3;
Heard both counsels appearing for the parties. The main allegation of the complainant is that the replaced parts were not returned to him and that the repairs (i.e.) wheel alignment was not done properly which resulted in further damage and purchase of new tyres and subsequent service in another workshop.
On the other hand, the opposite party disputed that the complaint as filed was not maintainable as it was filed beyond the period of limitation and also that the car stood in the name of complainant’s wife.  The allegations with regard to the improper service was also denied by the learned counsel.  Further for non-return of the old parts it was stated that as the complainant did not demand the same it was sold as scrap.  Thus he sought for the complaint to be dismissed.
On appreciation of the entire pleadings and materials produced by them, vide Ex.A1 we could see that the vehicle of the complainant was serviced by the opposite party for an amount of Rs.1,06,540/- as per invoice dated 14.02.2018.  The complainant had purchased tyres from Sri Krishna tyres vide invoice bill No.1468 dated 09.03.2018 within a short span of one month from the date of service done by the opposite party for the subject vehicle.  The automobile bill for further repairs was also produced by the complainant which shows that the vehicle was again serviced within a short span of the earlier service by the opposite party. 
For the defence that the complainant is not a competent person to file the complaint as the vehicle stood in the name of his wife, this commission is of the opinion that the complaint was maintainable as, as per the provisions of the Consumer Protection Act, 2019 even a beneficiary of the services availed could  file a complaint if he is aggrieved by the act of the opposite party.
For the defence that complaint was not filed in time, the complainant had already filed a delay condonation petition in CMP No.60/2022 and the same was allowed by this commission. 
The opposite party themselves had admitted that the old parts were not returned, but as it was not claimed by the complainant the same was disposed of as hazardous waste as per the Thiruvallur Municipality rules.  However, no proof was submitted by the opposite party that any intimation was given to the complainant before the same was disposed of giving a chance for the complainant to get back the same.  The version of opposite party themselves reveals that the old alloy wheels and other removed spare parts would be kept in the vehicle itself at the time of delivery of the vehicle.  However, in the present case it was not done so and hence it is to be presumed that the opposite party failed to return the old parts to the complainant. 
Further, the complainant had stated that he sought for the wheel alignment report from the opposite party several times but the same was not issued.  Though the opposite party had raised a defence that they issued the same earlier but as of now the data got erased and hence they could not provide it, no material evidence was submitted for the said defence.  It is the duty of the opposite party to provide the report when claimed by the customer.
Also in the present case when it is apparently seen that the complainant had purchased tyres immediately after the service was done by the opposite party and in the absence of proof of non-providing the wheel alignment report, this commission even in the absence of any expert opinion could arrive at a conclusion that the service done with respect to wheel alignment was not properly done by the opposite party.  If at all the tyres were in bad condition before the service done by the opposite party the same would have been replaced in the service itself.  It leads to the irresistible conclusion that only due to improper alignment the wheels got damaged leading to purchase of new tyres. 
In the facts and circumstances for improper alignment, non-providing of old replaced parts and non-providing of wheel alignment report we are of the view that the opposite party had committed deficiency in service.  Thus this point is answered accordingly holding that the opposite party had committed deficiency in service in repairing the vehicle of the complainant.
Point No.2:-
As we have held above that the opposite party had committed deficiency in service with regard to the repairs made to complainant‘s vehicle, we direct the opposite party to pay a compensation of Rs.50,000/- to the complainant for the hardship and mental agony suffered by him. However, we are not inclined to direct the opposite party to repay the entire charges paid as the same was borne out by the insurance company.  We also award cost of Rs.10,000/- towards litigation expenses to the complainant.
In the result, the complaint is partly allowed against the opposite party directing him
b)  To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant.
c)  To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
 Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 30th day of May 2023.

   Sd/-                                                           Sd/-                                                    Sd/-
MEMBER-II                                            MEMBER-I                                     PRESIDENT

List of document filed by the complainant:-

Ex.A1 14.02.2018 Tax Invoice given by the opposite party. Xerox
Ex.A2 09.03.2018 Tax Invoice bill of Sri Krishna tyre. Xerox
Ex.A3 12.11.2018 Bill of M.L. Automobiles.   Xerox
Ex.A4 14.12.2019 Copy of Smile Car Autos. Xerox
Ex.A5 04.02.2020 Letter issued by the complainant to the opposite party. Xerox
Ex.A6 02.03.2021 Letter issued by the complainant to opposite party. Xerox
Ex.A7 20.07.2021 Letter given by Thiruvallur Town Consumer Protection Association to The General Manager, Mahindra & Mahindra Limited. Xerox
Ex.A8 05.04.2022 Email sent by the complainant to the opposite party dated 05.04.2022 Xerox
Ex.A9 05.04.2022 Legal notice issued by the complainant to the opposite party. Xerox
Ex.A10 ................ Delivery Report. Xerox
Ex.A11 ............... RC. Book. Xerox

      List of documents filed by the opposite party:-

Ex.B1 22.07.2021 Reply notice sent to the complainant through Registered Post. Xerox
Ex.B2 …………… Acknowledgement card. Xerox
Ex.B3 06.03.2018 Tax Invoice in the name of Kalyani. Xerox

   Sd/-                                                              Sd/-                                              Sd/-

MEMBER-II                                               MEMBER-I                                  PRESIDENT