DOF.5.8.2004 DOO.31.8.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 31st day of August 2010 CC.175/2004 P.V.Shajahan, Proprietor, Shaneena Theatre, Poozhithala, Mahe. Complainant (Rep. by Adv.A.P.Ashokan)) M/s.Calicut Engineering, Jubilee Road, Thalassery 670 109 (Rep. by Adv. M.P.Roopesh) Opposite parties O R D E R Sri.K.Gopalan, President This is a complaint filed under section12 of consumer protection Act for an order directing the opposite parties to pay a sum of Rs.24, 950/- with 12% interest from the date of complaint till realization together with cost of these proceedings. The nutshell facts of the complainant’s case is that he who is running a theater, given his Ruston Diesel Generator used in his theatre for repair on 11.12.2003. Complainant paid Rs.1210/- towards repair charges. On 12.12.2003 complainant noticed crack on head of the Generator. Due to urgency he repaired it from Calicut. The technician therein told him that the crack happened during the time of pressing the guide and it is the latches of opposite party. The M/s.Electro Diesels near Sreekandeswar Temple, Calicut inspected the Generator. The report submitted by them on 21.4.04 stated that the probable cause of the crack maybe during the time of inheriting the valve guide. They have observed the crack the cause of crack maybe during the time of inserting the value guide. Due to the damage of the generator, the complainant constrained to avail another generator on hire for two days and paid a sum of Rs.1200/- per day. Rs.1150/- has also been spent for transportation of the generator. Opposite party was informed of the damages over phone on the same day when it was noticed but his attitude was negative. Complainant claims a sum of Rs.20, 000/- towards compensation. The complainant sent lawyer notice to opposite party on 18.12.03, opposite party sent a reply stating that no complaints had been lodged before them after the repair. The real fact was that without disclosing anything the opposite party sent the set to the complainant and the complainant noticed the damage only on the next day. They contended in the reply notice that there is no negligence on their part. It is false.It is also false to say that the crack on the set happened due to mishandling of the set by men of complainant. Opposite party is liable to compensate the loss sustained by the complainant. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version in the form of counter statement. Brief facts of the case of opposite party is that M/s.Calicut Engineering is a reputed establishment which undertakes repairing and reconditioning of machines the allegations raised against the opposite party are baseless. Complainant had approached this opposite party for repair works of a diesel generator of Ruston make on 11.12.2003 and not on 10.12.2003. It is only the parts which needed repair were taken to the respondent’s workshop. It is true that the work involved crank shaft grinding, connected road bearing setting etc. specifically mentioned in the quotation dated 11.12.03. The repair charge was Rs.1310/- but complainant paid only Rs.1100/- promising to pay the balance next day. The repair was done to the satisfaction of the complainant and the repaired parts were taken by him and fixed by some other mechanics. At the time of taking the repaired parts there was no crack on the head. After repairing no complaint was lodged before the opposite party. The technician in Calicut cold Welding or another industrial establishment have no reason to say that the crack on the head happened on account of any negligence or latches on the part of the opposite party. Those averments are made falsely for the purpose of this case. There was absolutely no crack on the head at the time when it was taken form the opposite party’s workshop. The said machine was very old and had undergone several repairs and weldings many times. There are several reasons to develop the alleged crack. If bolts are tightened too much at the time when it was fixed on cylinder block it may cause crack on the head. The welding crack on the head can easily repaired by welding. It is only a matter of 100 or200 rupees. If any defect was noted by the complainant in the work carried out by the opposite party he could have intimated then and there. The averment that it was informed on the very day of noticing the damage is a blatant lie. Opposite party was informed first by notice dated 18.12.2003. Complainant did not suffer any damages on account of any of the act of opposite party. The complaint is ill motivated and complainant is not entitled to get any compensation from this opposite party. Hence it is prayed to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of PW1, DW1, DW2 and documentary evidence Exts.A1 to A7 and C1. Issue Nos.1 to 3 Admittedly complainant approached opposite party for repair work of the diesel generator of Ruston make. Complainant’s main allegation is that on the next day of repair i.e. on12.12.03 he noticed crack on the head of the generator. He repaired it from Calciut. The technician from there told him that the crack might have been caused during the time of pressing the guide and that is the latches happened on the part of opposite party. Opposite party on the other hand contended that the repair was done to the satisfaction of the complainant and the repaired parts were taken away by him. If there was any crack he should have pointed out then and there. Opposite party contended that there was absolutely no crack on the head at the time when the repaired parts were taken away by him. It was informed that crack was found only through the notice. He further contended that the averment of the complainant that he had informed same on the very same day of noticing the crack is a blatant lie. There is dispute with respect to the payment of repair charge also. Opposite party contended that complainant paid only Rs.1100/- instead of Rs.1310/- and promised to pay the balance next day. Ext.A1 obtained on 11.12.03 claimed to be the quotation receipt is produced to prove that the repairing charge is Rs.1210/-. Since the repairing charge is not seen detailed in Ext.A1 the amount cannot be ascertained. Other available documents are also not giving details of payment, though opposite party stated in his chief that the amount of charge Rs.1310/-. Complainant’s case is that he has paid the entire bill amount. It can be seen from the facts of the case that it is the Engine head that was brought to opposite party for repair. PW1 deposed in cross examination that” Generator head Aä-Ip-ä-]-Wn¡v H.-]n.sb tF¸n¨p F¶p ]d-ªXv icn-bmWv “. Admittedly opposite party repaired the engine head. Opposite party has the case that he has done the repair work to the satisfaction of the complainant. He has also contended that the parts were taken by him and fixed by some other mechanic entrusted by the complainant. It is further contended that after the repair no complaint was lodged before the opposite party in respect of the repair work. In the cross examination PW1 complainant deposed that “_m¡n-Xp-I¡v tNmZn-¨-Xp-sIm-mWv C§s\ If-hmbn ]cm-Xn-sIm-Sp-¯Xp F¶p ]d-ªm icn-b-Ã. F³Pn³ slUv \¶m¡n hm§n-bXv Rm\m-Wv. hm§p¶ ka-b¯v {Im¡v Fsâ-{i-²-bn s]Sp-I-bp-m-bn-«n-Ã.- F³Pn³ slUv hm§n sImp-t]mbn skän ]nSn-¸n¨p ÌmÀ«v sN¿p-hm³ t]mIp-T-t]m-gmWv {Im¡v BZ-y-ambn IXv F¶p-]-d-ªm icn-b-Ã. P\-td-äÀ ÌmÀ«v sN¿m³ t]mIp-T-t]m-gmWv {Im¡v IXv F¶Xp Ext.A4 notice ]d-ªn-cpt¶m Ft¶mÀ½-bn-Ã. Engine Head Engine Cylinder \pap-I-fn ]nSn-¸n-¡ptam F¶-dn-bn-Ã. Technician BWv]n-Sn-¸n-¨-Xv. iio F¶-B-fm-bn-cp¶p Technician ”. It can be seen that complainant who receive the Engine Head after the repair. It is pertinent to note that the alleged crack is on the face of the Engine Head, which can be visible at the first sight itself. But complainant did not notice any such crack at the time immediately. As per his evidence this repaired Engine head was fixed on Engine cylinder by a technician named one Mr.Sashi. As an expert Mr.Sasi is the first technician who handled the Engine head. Admittedly it is a part fixing after repair work. As an expert he is expected to verify the machine repair part before handling it for fixing the same on Engine cylinder. Mr.Sashi, the technician who first handled the repaired machine part did not notice any such crack on the Head of the generator. Since it is not noticed by the technician it can be assumed in the usual course that at the time when he handled the machine the crack were not developed on the head of the generator. Even otherwise it can be assumed that if any such defects/crack on the head of the generator was found a technician would not have fixed it on Engine cylinder. Hence there is nothing wrong if it is presumed that there were no such defects at the time of fixing the same since the work was done by a technician. Thus there arose two more questions ie. When does the crack developed and what is the cause of developing such crack? Ext.A4 is the lawyer notice send by complainant wherein raised the allegation that on12.12.03 he found crack on the head of the set. It was also stated due to urgency he approached Calicut Industrial. Vadakara for repairing the same and there from referred to Calicut. Thus the repair work was done from Calicut Cold Welding for which he has spent Rs.950/-. The case of the complainant as per Ext.A4 dt.18.12.2003 is that they found crack before starting the generator in other words at the time when preparation were being done to run the generator. Ext.A4 states that “My client found out the crack when he was preparing to start the generator after the repair”. No evidence is placed by complainant to show that this fault was brought to the notice of opposite party immediately after finding the damage/crack. Apart from the interested testimony of complainant there is nothing to show that the default crack was brought to the notice of opposite party before Ext.A4. There is no whisper in Ext.A4 with respect to such information to opposite party. No allegation raised in A4 that opposite party was informed of the damage/crack over phone on the same day when it was noticed and the attitude of the opposite party was negative. If it was truly informed that would have been find place in the notice Ext.A4. If such crack was found on 12.12.2003 it is quite natural one should immediately contact the repairer in usual course of dealings. Ext.A4 remains absolutely silent of any such information to opposite party before Ext.A4 dt.18.12.2003. It is only strengthening the case of opposite party that thee was no damage when it was taken from their workshop. Ext.A5 reply contains the contention that the complaint of the alleged damage was brought to the notice first time through the legal notice Ext.A4. The best way open before the complainant to prove the case of the complainant is to examine Mr.Sashi, the technician, who handled the machine to fix it with the Engine cylinder. Being the first expert on whose hand the repaired head of the generator was placed to handle for fixing it Mr.Sashi is the most competent person to speak of condition of repaired ‘Head of the Generator’.. But he was not even sited as a witness. Non examination of Mr.Sasi as witness, to our mind, hit the root of the case of the complainant. It is the case of the complainant that he approached Calicut cold Welding and repaired the same and the technician from there opinioned that the crack developed during the time of pressing the guide. But none of the technician at Calicut cold Welding were sited as witness nor examined. This is also a sign of weak link of complainant’s case. Ext.A6 is the report produced by complainant in the form of a service report to ascertain the cause of crack fall on the Engine Head. It was marked with objection. Ext.A1 is issued on the letter pad of Electro Diesels Calicut on 21.4.2004. It is not signed by any person. The name of service representative is written Rajeev on the head top and below bottom portion. Keeping signature column blank. This report does not even reveal who the responsible person issued this report. There is no authority. Even the person allegedly attends the above mentioned machine Mr. Rajeev has not been examined as a witness. Ext.A6 cannot be relied upon since it has no authority. The complainant noticed the crack on the head of the generator on12.12.03.Ext.A6 is issued on 21.4.2004. The report assumes him probable cause. It has not explained the reason or the way in which they found the probable cause. The report even failed to present a definite conclusion by which the crack developed on the fact of engine head. The absence of a genuine attempt on the part of complainant heavily damaged the main pillars of complainant’s case. The commission report is not at all sustainable. He is not examined. Commissioner has not discharged his legal obligation to make a further inspection and submit report. Complainant did not seek for alternative remedy. Hence the report remitted stands practically invalid which is not capable of utilizing to come into a proper conclusion. In the light of the above analysis on the strength of available evidence on record we are of opinion that the complainant is not able to establish his case placing cogent and convincing evidence sufficient enough to attribute negligence and thereby deficiency in service on the shoulders of opposite party. Thus issues 1 to 3 are found against complainant. In the result, the complaint is dismissed. No order as to cost. Sd/- Sd/- Sd/-- President Member Member APPENDIX Exhibits for the complainant A1.Invoice dt.11.12.03 issued by Electro Diesels A2.Cash bill issued by Calicut cold welding A3.Cash bill issued by MRS Light & Sound A4.Copy of the lawyer notice sent to OP A5.Reply notice A6.Service report dt.21.4.04 issued by Electro Diesels A7.Receipt issued by Electro Diesels Exhibits for the opposite party: Nil Exhibits for the court C1.Commission report Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.N.Ragavan DW2.C.K.Sujith /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
