Tamil Nadu

South Chennai

257/2012

Mr.R.Sandeep - Complainant(s)

Versus

M/s.KLN Motor Agencies P Ltd - Opp.Party(s)

N.Subramani, M/s.Pramila Iyer & C.K.Lavanyavathi

12 Jan 2017

ORDER

                                                                        Date of Filing :   15.10.2012

                                                                        Date of Order :   12.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II          

C.C.NO.257/2012

THURSDAY THIS  12^th DAY OF JANUARY 2017

 

Mr. R. Sandeep,

S/o. Rickab Chand,

D170, IInd Main Road,

Hindu Colony,

Nanganallur, Chennai 600 061                        .. Complainant.

 

                        ..Vs..

KLN Motor Agencies (P) Ltd.,

Rep. by its Service Engineer,

Cuindy Industrial Estate,

Ekkattu Thangal,

Chennai 600 097.                                       ..Opposite party.

 

Counsel for the Complainant           : M/s. PMR Associates.  

Counsel for the opposite party         : M/s. V.Shankar & Lavana Shankar  

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to replay a new vehicle or to pay Rs.5 lakhs towards the cost of the vehicle and also to pay a sum of Rs.50,000/- towards compensation for mental agony due to deficiency of service and to pay cost of the complaint.

 

1. The averment of the complaint are brief as follows:

         From the day of marriage  the complainant was using the vehicle TN22 Ax 7220 and had been maintaining the car and leave the car for services to the opposite party. Hence the complainant was well accustomed with his car and on such regular service the complainant had left his vehicle on 9.5.2012 to the opposite party  towards regular service and specifically instructed to intimate the cost for the service before doing the actual service.

2.     That on 9.5.2012, he had given the T.N.22AX 7220 Cheverlot for service to the opposite party service centre, as the complainant had specifically asked for the total amount of expenditure for the expense the service centre gave a estimation that the cost for the entire servicing would be Rs.12,000/-  only.  Thus the complainant on accepted for the said total service charge and left the car for service on 9.5.2002.

3.     On 10.5.2012, the complainant received call from the service centre stating that the car is ready for delivery towards payment for service.  When the complainant had visited the centre, to his shock and dismay the complainant found that bill was exorbitant and whopping sum of rs.32,000/- was given.   When enquired the service centre manager to spoke rudely to the complainant if he is interested he shall pay and take the car or else leave the car and do whatever you want.    Hence the complainant was offended by such a callous attitude and rude behaviour.   The complainant state that when the opposite party had an obligation to get the confirmation from the complainant.  Hence the claim on the service and not returning the car explicitly amounts to deficiency in service and unfair trade practice.   

4.     Then the complainant had issued a legal notice dated 2.8.2012 upon the opposite party elaborating the opposite party’s negligence and deficient service and the mental agony and stress caused to them.   But the opposite parties had failed to respond or necessary steps to return the vehicle.  Thereafter, the complainant approached Lok Adalat on 17.9.2012 but the opposite party adamantly refused to settle and failed to return the vehicle instead started harassing and demanding double the amount.  Hence the complaint.

5. Written Version of  opposite party is  in brief as follows:

          The opposite party, time and again has been impressing upon the owner of the vehicle impugned to take delivery of the vehicle after paying necessary charges, which for reasons best known was conveniently ignored.   It is further stated that during the deluge that created havoc in Chennai during last November the vehicle impugned got damaged extensively / beyond redemption.  Hence the best remedy available for the complainant is to approach his insurance company with whom he should file a claim form to make good the loss and it is an open secret that the Government of India as a special gesture did direct the Insurance companies to settle the claim of respective vehicle owners who suffered loss during the calamity.   It would be useful to note that the opposite party has specifically elicited in the repair order that they cannot be fastened with any liability arising out of fire, flood etc.   Hence customers like that of the complainant are counseled to have appropriate insurance cover.

6.     The above complaint is also liable to be rejected on the ground of “Agreement against Public policy” i.e. his spouse’s grandfather has gifted the vehicle impugned to the complainant during marriage.  Hence the present complaint is squarely hit by Sec. 23 of Indian Contract Act 1872.       In view of what has been stated in the preamble of this version, it goes without saying that by no stretch of imagination, the complainant can be neither construed as owner of the vehicle impugned nor using the same to avail benefit under the Act. 

7.     The opposite party commenced and completed the work / repair only after obtaining consent and now it is too harsh on the part of the complainant to rake up the same at this distant point of time.   Time and again the vehicle owner has been called upon to take back delivery of the vehicle after remitting charges due there under which for reasons best known, he chose not to exercise instead trying to take advantage of his own wrong which has to be deprecated in the strongest possible terms.  

8.     It is sternly denied that the opposite party demanded exorbitant charges to return the vehicle and it is further denied that the opposite party harassed the complainant.   The complainant being a defaulter can least deliver sermon as to how this opposite party should conduct themselves.  This forum is invited to take note of the irrefutable fact the complainant being a debtor cannot be allowed / permitted to come forward with scandalous allegations.  The opposite party deny neither causing inconvenience nor deficiency to the complainant therefore no liability could be fastened whatsoever pretext.

9.     There is no cause of action for the above complaint and the same has been concocted for the purpose to institute the above complaint, which otherwise is obviously absent.   The reliefs sought for by the complainant are bewildering in nature as neither they are corroborated by pleadings nor by any means of tangible evidence.   It is held that
“Deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequancy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.   The burden of proving  the deficiency in service is upon the person who alleges it.  The opposite party has not committed any deficiency of service, hence the complainant is not entitled for any relief as prayed for rather the complaint is liable to be dismissed u/s 26 of the Act. 

10.    In order to prove the averments of the complaint, the complainant has not filed proof affidavit and no document was marked.    Proof affidavit of opposite party not filed and no documents marked on the side of the opposite party.

11   At this juncture, the point for the consideration before this

        Forum is:  

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite party as alleged in the complaint?

 

2. Whether the complainant is entitled to any relief as prayed for?

12. Point No.1

        According to the case of the complainant is that the vehicle bearing No.TN 22 X 7220 Cheverlot was purchased by the complainant wife’s Grandfather late N.Shantilal  and had gifted the car to the complainant as marriage gift  and from the day of marriage the complainant was using the vehicle and maintaining the same.   When the complainant left the car for regular service on 9.5.2012  and instructed to intimate the cost of service before doing the actual service and it was informed that the entire cost for service would be Rs.12000/- and accepted by the complainant,  but on the completion of service he was informed that the total bill amount of Rs.32,000/- which was exorbitant and when enquired the service centre Manager spoke rudely to the complainant and therefore the opposite party had committed deficiency of service.

13.    On the other hand, it was contended by the opposite party by stating that the allegation made  by the complainant are all not true and in fact it is an open secret that the Government of India as a special gesture did direct the Insurance Companies to settle the claim of respective vehicle owners who suffered loss during the calamity.   Further it is abundantly made clear that only upon consent they started and completed the repair as they are aware that disputes like the case on hand would arise and the complainant very well aware about the bill of Rs.32,000/- and for the reason best known to him to establish from the payment the complainant would come forward this complaint.   Further it is contended by the opposite party that the opposite party has not exchange of service and neither causing inconvenience nor hardship to the complainant.

14.       At this juncture, it goes without saying that the duty cast upon the complainant to prove the deficiency of service on the part of the opposite party.  On going through the prayer of the complainant, the 1^st prayer is to replace for a new vehicle or to pay Rs.5 lakhs towards cost of the vehicle.  If it is so the complainant ought to have proved that the alleged vehicle is having manufacturing defect through relevant and acceptable evidence by means of  expert opinion.  In fact, no such expert opinion regarding the manufacturing defect has been filed by the complainant before this forum along with complaint.   Moreover, the complainant has not chosen to take any steps to obtain expert opinion from the authorized competent authority through this forum.   Therefore, it is crystal clear that in this aspect the complainant has failed to prove that there is a manufacturing defect.

15.    Next point to be taken into consideration, is as to whether the complainant has proved the alleged deficiency of service on the part of the opposite party.  It is seen from the averments of the complainant that Document.1 is the vehicle service history.    Document.2 is the repair order slip.    It is learnt that the alleged vehicle TN 22 X 7220 Cheverlot was left for repair on 9.5.2002.  At this point of time, it is not disputed regarding Document.2 as well as the alleged vehicle was left for regular service with the opposite party.   It is further seen from document-2 it is true that the estimate repair cost has been mentioned as Rs.12,000/-.  It is further learnt that when the complainant visited to service centre he found the bill Rs.32,000/- was given.   But,  in fact no concrete proof to substantiate the same on the side of the complainant.   If it is so, in respect of document-3 the legal notice issued by the complainant to the opposite party, in para-2 it has mentioned  as Rs.35,000/- as labour charges which is quite contra to the averments of the complaint to the legal notice.    It is quite clear that the vehicle was taken for repair and service only with the consent of the complainant.  Furthermore the opposite party stated that only upon reading from the complaint they are aware that the averments set out there in nevertheless justify having raised a bill for Rs.32,000/- towards repairing / servicing of the vehicle impugned.   Therefore, in this aspect also the complainant has not come forward with clean hands.   Not only that the complainant failed to establish the allegation made against the complaint by means of cogent and consistent evidence.

16.    In the light of the above facts and circumstances and observations made above, it is crystal clear that complainant has failed to prove the deficiency of service on the part of the opposite party. Thus the point No.1 is answered accordingly.

17.    Point No.2:-            

As per the view concluded in point No.1, the complainant is not entitled for any relief as prayed for in the complaint.  Thus the point No.2 is answered accordingly.

         In the result, this complaint is dismissed.  No costs.

         Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  12^th  day  of  January 2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainant’s side documents:   .. Nil..

Opposite party’s side document: -   .. Nil.

 

MEMBER-I                        MEMBER-II                              PRESIDENT.