Date of filing : 14-11-2008

                                                                                             Date of order : 31-05-2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                C.C. 240/2008

                         Dated this, the 31^st  day of May 2010

PRESENT

SRI.K.T.SIDHIQ                                            : PRESIDENT

SMT.P.RAMADEVI                                                : MEMBER

SMT.P.P.SHYMALADEVI                        : MEMBER

P.Kumaran,

S/o. Kunhiraman,

R/at Melothumkuzhy House,                               } Complainant

Bella.Po. Kanhangad,

Kasaragod.Dt.

(Adv. OCRajagopal & Roy Paul, Hosdurg)

M/s. Kalpaka Motors,

N.A.Enclave, Vidya Nagar,                                     } Opposite party

Kasaragod, Chengala Village,

Kasaragod Dt. Rep.by its Manager

(Adv. Shrikanta Shetty.K, Kasaragod)

                                                                        O R D E R

SRI.K.T.SIDHIQ, PRESIDENT

            The gist of the complaint is as follows:-

            The complainant purchased Alfa Passenger Autorikshaw, in April 2008 from opposite party.  It bears the Reg.No.KL-60-A-952.  It met with an accident on 24-7-08 and taken to opposite party’s workshop for accidental repair.  Opposite party after a detailed inspection told the complainant that the total repair cost will be below 50,000/- rupees and since it is a new vehicle duly insured the complainant need not spend any amount for repair out of his pocket and the insurance claim will be handled by them themselves.  It is further offered that the vehicle will be delivered after repair within 20 days.  But opposite party failed to deliver the vehicle as promised. Therefore the complainant had to pay the monthly finance charges from his pocket without getting any income by plying the autorikshaw.  Hence he caused a registered lawyer notice to opposite party demanding  immediate delivery of the vehicle after repair. This notice provoked opposite party and they threatened the complainant that they will levy all the expenses and compensation to be paid if any by them through excess billing from complainant. The opposite party on two occasions collected 23,000/- rupees and 35,000/- rupees from the complainant towards the repair charges.  Apart from the said payment a further sum of 31,000/- rupees is further demanded as the final bill. The vehicle delivered on 30-9-2008.  Moreover, after repair during rain the water flow in to the cabin of the vehicle through the gap of the front glass improperly fixed.  The service of the opposite party is not satisfactory.  Hence the complaint alleging deficiency in service on the part of opposite party.

2.            According to opposite party in the normal course, repair works will be finished within a month and hence the expected date of delivery is given as 20-8-2008.  But the time for repair works varies from vehicle to vehicle depending upon the impact of damage, availability of spare parts and workmanship committed to perfection. The autorikshaw of the complainant badly damaged and major parts such as chassis assembly, body, cabin windshield glass are all not readily available parts and those are ordered from M&M Company, Hyderabad which took time to reach.  The vehicle was fully repaired and delivered on 30-09-2008. The defective windshield glass is also replaced.  The total amount of repair replacement, labour spare parts amount is 79,690/- rupees out of that complainant paid 35,000/- rupees and the insurer paid 40,381/- rupees and the balance to be paid by the complainant is 4,310/- rupees.  The complainant did not pay the balance and the attempt of the complainant by filing this complaint is to evade the said payment.  Hence the complaint is liable to be dismissed with costs.

3.            Complainant filed proof affidavit. Exts A1 to A8 marked on his side. Complainant cross-examined by the counsel for opposite party. The surveyor Sri.Manoj kumar who surveyed  and assessed the damage caused to the complainant’s  vehicle is examined as PW2.  For opposite party Sri.Rajesh, the service-in-charge of opposite party filed affidavit and Exts B1 to B3 series marked.  Both sides heard.

4.         The points for consideration in this case are:

1)     Whether the opposite party claimed excess amount than the actual dues owed

      by the complainant towards repair charges?

2)     Is there any deficiency in service on the part of opposite party?

3)     If so what order as to relief and costs?

5.            For the sake of brevity and convenience all the points are discussed together. In order to prove the gravity of damages caused to the vehicle in the accident, the cost required for the spare parts, labour charges etc the surveyors report is an essential document.    But though surveyor is examined as PW2 his report is not called for.  PW2 deposed that the amount paid by the insurer is 40,381/- rupees.  But he deposed that he did not remember what is the amount assessed by him.  He also deposed that he will inspect and check before and after the repair works to ascertain whether all the works mentioned in the claim is done.  He also deposed that he had assessed the works and the spare parts for the valuation. He further deposed that the survey report is sent to the office of the insurer at Bangalore. 

6.         From the statement of the surveyor it is clear that he had surveyed the complainant’s vehicle and assessed the damages before and after repair. As per his report insurer paid 30,381/- rupees to the complainant.  So to prove the allegation of the complainant that the opposite party charged excess amount the verification and comparison of the surveyor’s report and the purchase bills of the spare parts attached with surveyors report are inevitable.  But the surveyor’s report is not brought before us to establish the claim. 

7.         With regard to the delay in delivery of the vehicle is concerned, the complainant produced ExtA1 report.  In that the expected completion time is noted as 20-8-08.  But the vehicle is delivered only on 30-9-2008 i.e. after 40 days from the expected date.  In this context the explanation of opposite party is that the time for repair works varies from  vehicles to vehicles depending upon the impact of damage, availability of spare parts and workmanships committed to perfection.  Further major parts such as Chassis assembly, Body, cabin, windshield glass are all not readily available parts those parts are to be brought from M& M company Hyderabd.  But this explanation is not all satisfactory.   After the inspection of the damaged vehicle itself the opposite party is well aware that what are all the repairs to be affected and what are all the spare parts readily available with them.  After considering all these they given the expected date of completion as 20-8-08.  Having been given such a date for delivery it was the liability of the opposite party to make available those spare parts and they have no case that due to any fault on the part of complainant in making the payment caused the delay.  So giving a possible date of delivery without any bonafideness on the part of opposite party amounts to deficiency in service and opposite party is liable to compensate the complainant in that account.

8.         The grievance of the complainant is that due to delay in delivery he could not make any earnings and even then he is remitted the monthly instalment to the financier. But it is the liability of the complainant to pay the dues to the financier even if the vehicle is not plied.  Hence we are unable to accept this claim.  But it is true that he lost his daily earnings by plying the vehicle during the period 20-08-08 to 30-09-08.  for which we fix  a global sum of 9,000/- rupees.  But the complainant is liable to pay a balance of 4310/- rupees to opposite party towards balance repair charges.  Hence that amount has to be deducted from the compensation.

            In the result, the complaint is partly allowed and opposite party is directed to pay a sum of 9000-4310= 4690/- rupees (rounded to 4700 rupees) to the complainant together with a cost of 2000/- rupees.  Time for compliance is limited to 30 days from the date of receipt of copy of order.    Failing which 4700/- rupees will carry interest @ 10% per annum from the date of complaint till payment.

MEMBER                                           MEMBER                                                  PRESIDENT

Exts.

A1. 25-7-08 Receipt issued by Kalpaka Motors to Mr.Kumaran

A2. 6-9-08 Copy of lawyer notice.

A3.Postal acknowledgement card

A4.22-9-08 Copy of tax invoice Kalpaka Motors

A5.20-10-08 Cash receipt issued by RTO, Kanhangad

A6.30-09-08 Receipt issued by Kalpaka Motors.

A7. Photocopy of Pass Book of P.Kumaran.

A8.Photocopy of Pass Book of P.Kumaran. Book No.II

B1. Photocopy of Tax Invoice. Kalpaka Motors

B2. Photocopy of cheque

B3 series Bills.

PW1.Kumaran

PW2. Manojkumar

DW1.Rajesh.N.K.

MEMBER                                           MEMBER                                                       PRESIDENT

Pj/