F.A.No.1751/2005   against  C.D.No.386/2001 ,  DISTRICT CONSUMER FORUM,Nellore.

Between:

Vasudeva Reddy,

LIC Development officer,

Kavali , Nellore.                                                                                 .... Appellant/

                                                                                                                Complainant

          And

The Managing Director, ]

M/s.M.G.Brothers Automobiles Ltd.,

Dargamitta, Nellore.                                                                          ... Respondent/

                                                                                                                  Opp.party

Counsel for the appellant               :        M/s K.Manik Prabhu

Counsel for the respondent             :        M/s.K.V.Simhadri                                       

  CORAM: SMT.M.SHREESHA, HON’BLE   MEMBER

                                                                   AND

                           SRI G.BHOOPATHI REDDY, HON’BLE MEMBER.

                     WEDNESDAY, THE NINETEENTH  DAY  OF MARCH,

          TWO THOUSAND EIGHT.

Oral Order:(Per Sri G.Bhoopathi Reddy, Hon’ble Member)

                                                *****

        This is an appeal filed by the appellant/complainant  under Section 15 of the Consumer Protection Act,1986 to set aside the  dismissal order passed by the District Forum, Nellore  in C.D.No.386/2001 dt.2.9.2005.

        The appellant  herein  is the complainant  before  District Forum .  He filed a complaint  to direct the opp.party  to effect the repairs of the vehicle as was done in warranty and to return the vehicle, to pay Rs.1000/-  per day towards the car rent from 22.9.2000 till the delivery of the vehicle, Rs.50,000/-  towards compensation for causing mental agony and to pay costs.

      The case of the complainant is as  follows:

 The complainant is the owner of the Tata Estate bearing No.T.N.07E 7677  and the said vehicle was given for executing repairs to MG.Brothers at Chittoor branch on 6.8.1999.  The service job card no.2957 dt.6.8.1999 clearly shows that the complainant gave his consent  for engine O/H except cylinder  head.    But without consent of the complainant MG.Brothers, Chittoor branch effected repairs for the cylinder also.   The complainant paid a sum of Rs.30,746/- towards repair charges   and as  the said repair work was not satisfactory  the same was brought to  the notice of M.G.Brothers, Chittoor as well as M.G.Brothers , Nellore.  The   engine was consuming engine oil and was getting accelerated.  In the month of April 2000 the TATA Company engineer came from Hyderabad and checked the said vehicle and gave suitable directions to the mechanics of the opp.party at Nellore.  Again they have effected the repairs but no useful purpose was served.   Having no other go the complainant met the Managing Director of  the opposite party company and informed the facts and also brought to  his notice that  the  warranty will expire by June,2000.    The opp.party requested the complainant  to run the vehicle for another 3000 kms.   and they will set right  the vehicle after the warranty period also.    On 22.9.2000  the complainant handed over the vehicle to the opp.party saying that  it  is not alright  The  opposite party addressed a   letter dt.3.11.2000 asking the  consent for replacement of liners, piston rings, gasket kit , lubricants and miscellaneous items  The cost of all the items may come around Rs.6,000/-, but    the complainant has not chosen to give the consent as the Managing Director assured to effect repairs at  the time of taking delivery of the vehicle for repairs. Again the opp.party issued a bill for Rs.24,996/- towards repair costs.  The complainant issued a legal notice on 18.1.2001 to return the vehicle and the opp.party received the notice and sent a  reply  with all false and frivolous allegations. The complainant approached the District Forum to direct the opp.party  to effect the repairs of the vehicle as was done in warranty and to return the vehicle, to pay Rs.1000/-  per day towards the car rent from 22.9.2000 till the delivery of the vehicle, Rs.50,000/-  towards compensation for causing mental agony and to pay costs.

     The opp.party filed counter   contending that the  complaint is not                             maintainable and it is filed by suppressing the facts that    the civil suit in O.S.No.703/2001 is pending before the Principal Junior Civil Judge’s Court, Nellore with regard to the same subject matter.   When the same subject matter is pending before the Civil Court, this Forum has no jurisdiction to entertain the case as it related to the same cause of action and facts.   The complainant is the absolute owner of the motor vehicle Tata Estate bearing no.TN. 07 E 7677.   The complainant handed over the said vehicle to this opposite party to carry out the repairs of the engine on 22.9.2000, but not under warrantee as  it is a old vehicle.   The opp.party sent a  letter dt.3.11.2000 to the complainant that the work entrusted by the complainant is not under the warrantee and requested the complainant to give consent letter for carrying out the repairs on paid basis. After giving  consent by the complainant the opp.party has carried out the repairs.  After carrying out the repairs and after making the vehicle roadworthy the complainant has not chosen to take delivery of the vehicle.   The opp.party informed the complainant to take delivery of the vehicle  after remitting the payment of Rs.24,996/-  The opp.party got issued registered letter dt.10.1.2001 to the complainant requesting to pay the amount due and take back the vehicle.    The complainant instead of making payment got issued registered notice  on 18.1.2001   to the opp.party for  which reply was given mentioning all the facts.   The complainants ‘s vehicle is very old vehi cle which does not covers under warranty .The opp.party filed a suit in O.S.No.703/2001 on the file of Principal Junior Civil Jude’s Court, Nellore for recovery of the said amount of Rs.24,996/-.  The opp.party also filed a petition in I.A.No. 950/2001 in O.S.No.703/2001  for attachment of the said vehicle  and the order for attachment of the said vehicle was also passed by the  Hon’ble Junior Civil Judge , Nellore  and the same is pending before the said court.  .  After filing of the  above suit in O.S.No.703/2001 , the complainant filed the above C.D. with all false allegations suppressing  the true facts.   He prayed for dismissal of the complaint.

         In support  of the complainant’s claim  he has  filed  documents  Exs. A1 to A11. The opp.party also filed documents Exs.B1 to   B19.  The District Forum   based on the evidence adduced and pleadings,    dismissed the complaint without costs.

       Aggrieved by the said  order the complainant  preferred this appeal  contending that the  District Forum    has not properly appreciated the documentary evidence   filed  i.e. Exs.A1 to A11  and in the absence of original documents  Ex.A11  or B3  and Ex.A1  it cannot be concluded that the complainant had given consent  for carrying  repairs . The appellant further submit that if  through  Ex.A11 or  Ex.B3 consent given by  him  there was no necessity to issue  another letter dated 3.11.2000 Ex.A5.   by the opp.party    .        He prayed  to set aside the order of the District Forum and  allow the appeal.

      There is no dispute with regard to the appellant/complainant is the owner of the vehicle Tata Estate  and the vehicle was  having warranty  and within the warranty period only the defects were pointed out  by the complainant and  during the warranty period only the  complainant  has taken the vehicle to the     Chittoor branch of opp.party  for repairs.  Ex.A1 is the service  job card dt.6.8.99. As per the said service card the complainant has given  it only for engine O/H (except cylinder head).  Without the consent of the complainant  the opp.party has  carried the repairs for the cylinder also . The   said repair works are not satisfactory and he brought to the notice of the opp.party.  The complainant has again delivered the vehicle on 2.12.99 to the opp.party and  the opp.party verified and found that there was defect in the repairs,  effected the repairs  and raised the bill.  In the month of April   Tata Company engineers came and checked the  said vehicle and gave suitable directions  to the mechanics of the opp.party at Nellore.  Again the repairs were carried out  but  as there was no  change   the complainant has brought to the notice of the Managing Director of the opp.party company .    The appellant contended that  in  Ex.A11 or Ex.B3 documents  signatures said to have been made by  him  are forged  signatures and he has not given any consent for carrying of repairs and when the complainant has given consent for carrying of repairs there is no necessity for issuing  Ex.A5 letter  by the opp.party asking to give consent for carrying out  the repairs. The respondent resisted the plea that civil suit is already decreed in their favour  and there is no deficiency in service on their part and order of the District Forum may be confirmed.  Submission made by the appellant is concerned Ex.A11 and B3 documents are perused .  When the complainant has pleaded  that the signatures ware forged and carried repairs the District Forum has not given any finding on this aspect and relied on Exs.A11 and B3 and given finding that the complainant  has given consent for repairs  When the  complainant  has given consent for repairs there is no necessity for issuance of another registered letter   Ex.A5 dt.3.11.2000 by the opp.party  wherein  the complainant was asked for consent for carrying out repairs  for  engine   and it was also mentioned that  the engine needs  replacement of liners, piston rings, gasket , kit , lubricants  and miscellaneous items.   It is also mentioned that  since this   job is not  under the purview of warranty they need   consent for carrying out repairs on paid basis and   if they do  not  hear consent from him before 8.11.2000  the vehicle will be  lying with them purely at complainant’s  risk,   responsibility  for any damages or thefts, , incurring parking charges.   The District Forum has not properly appreciated the ExA5 document and given finding . There is no necessity  for the opp.party to ask the complainant to give consent for carrying repairs  in letter dt. 3.11.2000  if in   Exs.A11 or Ex.B3 documents dt. 22.9.2000 the complainant has given consent .   We have gone though Exs.A1  The details of  defects were mentioned  in it by the opp.party.  As per the  Ex.A2 job card the  complainant  was asked   to pay an amount of Rs.30,746/- for carrying of repairs.  Ex.A8 is legal notice issued by the complainant prior to filing of the complaint alleging deficiency in service  in not carrying out the repairs nor returning  the vehicle which was lying in the work shop of the opp.party. Ex.B1 is the copy of the service  job  card dt.31.12.98    Ex.B2 is copy of the work order.  . Ex.B3 is the copy of another work order .  As per the said documentary evidence goes to show that  for the defects pointed out by the complainant   repairs were not rectified  and the said vehicle was kept in the work shop, and the complainant is working in the LIC office  and  as  the  repairs were   not carried out the complainant has suffered   lot  and he has to incur expenditure for  hiring the vehicle. The  opp.party  has  carried the repairs without consent of the complainant and has claimed the bill amount of Rs.24,996/- towards the repair cost.  The  complainant  has refused to pay the said   repair charges.  The  opp.party  has filed suit and obtained  decree.  The District Forum has relied on the civil   suit decreed and dismissed the complaint without discussing the merits of the case.    There is no dispute with regard to the  complainant has filed   C.C.NO.7290/2004  before the Additional Judicial First Class Magistrate , Nellore  against the opp.party  with regard to the forging the signatures on the document Ex.B3  The said case is still pending. The District Forum has not properly conducted denovo enquiry  and earlier  the State Commission has remanded the matter to the District Forum  . The complainant  has taken a specific plea in the complaint and evidence affidavit  that there is deficiency in service in not carrying the  repairs  and  keeping the  vehicle  in their custody without any reasonable ground ;.  The documentary evidence filed by the complainant  discloses that there is  deficiency in service on the part of the opp.party .  Order passed by the District Forum is not sustainable. 

     In the result appeal  is  allowed  The respondent/opp.party is directed to return the vehicle to the complainant and also to pay compensation of Rs.30,000/- .   Order shall be complied within  6 weeks from the date of the order.

                                                LADY MEMBER             MALE MEMBER

Pm*                                                           Dt.19.3.2008

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