KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 131/2010
JUDGMENT DATED:31..01..2011.
PRESENT
SMT. VALSALA SARANGADHARAN : MEMBER
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
Jomon,
Proprietor,
Maruthi Land, Maruthi Service Centre,
Kaduthuruthy, Kottayam.
: APPELLANTS
Shijo,
Proprietor,
Maruthi Land, Maruthi Service Centre,
Kaduthuruthy, Kottayam.
(By Adv.Sri.B.A.Krishnakumar)
Vs.
P.J.Joseph,
Pazhayakalayil house,
Mannar Poonzhikol.P.O, : RESPONDENT
Kaduthuruthy, Vakkom.P.O,
Kottayam.
(By Adv.Sri.R.Praveen Kumar & Sri.Jayakrishnan.D)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The appellants were the opposite parties and the respondent was the complainant in CC.277/08 on the file of CDRF, Kottayam. The complaint therein was filed alleging deficiency of service on the part of opposite parties in effecting repairs to the Maruthi 800 Car bearing Registration No.KL-2E-6286 owned by the complainant. It was alleged that the opposite parties collected the cost of spare parts without using those spare parts and that the opposite parties have also collected excess amount of Rs.16,000/- from the complainant. Thus, the complainant prayed for awarding compensation of Rs.33,150/- against the opposite parties.
2. Notice in the matter was served on the opposite parties and they entered appearance. The opposite parties filed joint written version denying the alleged deficiency of service. They also denied the case of the complainant regarding collection of excess amount. It was contended that the opposite parties incurred Rs.52,644/- for effecting repairs to the damaged car owned by the complainant but he paid only Rs.38,000/- and that a balance of Rs.14,644/- is due to the opposite parties from the complaint and that the present complaint is filed to avoid payment of the said amount due to the opposite parties. Thus, the opposite parties claimed a total of Rs.21,644/- from the complainant including the balance amount of Rs.14,644/- with compensation of Rs.5000/- for mental agony and Rs.2000/- towards the expenses incurred by the opposite parties.
3. Before the Forum below Exts.A1 to A8, B1 and B2 documents were produced from the side of the parties to the complaint in CC.277/08. Both the parties have also filed proof affidavits in support of their respective pleadings. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:30th January 2010 allowing the complaint and directing the opposite parties to pay to the complainant a sum of Rs.15,000/- for unfair trade practice adopted by the opposite parties. They were also directed to pay cost of Rs.1000/- to the complainant. Aggrieved by the said order, the present appeal is filed by the opposite parties therein.
4. We heard the counsel for the appellants and respondent. The learned counsel for the appellants submitted his arguments on the basis of the grounds urged in the memorandum of the present appeal. It is argued for the position that the Forum below failed in appreciating the documentary evidence available on record in its correct perspective and challenged the finding of the Forum below that the opposite parties have no consistent case regarding the repair charges incurred for repairing the damaged car KL-2E-6286. He also relied on the admission made by the complainant in his written complaint regarding the payment of Rs.5000/- to the opposite parties and the agreement to pay a further sum of Rs.5000/- to the opposite parties. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He relied on A7 petition filed by the opposite parties before the Vaikom Taluk Legal Service Committee Chairman and pointed out the admission made by the opposite parties that they have only spent Rs.43,000/- for repairing the damaged car owned by the complainant. He argued for the position that the complainant did not get justice from the police station and that is why the complainant preferred the complaint in CC.277/08. Thus, the respondent prayed for dismissal of the present appeal.
5. The points that arise for consideration are:-
1. Whether the respondent/complainant has succeeded in establishing the alleged deficiency of service and unfair trade practice on the part of the appellants/opposite parties in effecting repairs to the Maruthi 800 car bearing registration No.KL 2E 6286 owned by the complainant in CC.277/08?
2. Whether the Forum below can be justified in finding unfair trade practice on the part of the opposite parties and awarding compensation of Rs.15,000/- to the complainant in CC.277/08?
3. Is there any legally sustainable ground to interfere with the impugned order dated:30/01/2010 passed by CDRF, Kottayam in CC.277/08?
6.Points 1 to 3:-
There is no dispute that the respondent/complainant entrusted the repairing of his Maruthi 800 car bearing Registration No. KL-2E-6286 with the appellants/opposite parties. It is also admitted that the aforesaid Maruthi 800 car owned by the respondent/complainant sustained damage in a road accident by falling into a canal and the said vehicle was in need of repairing including painting and patch works. It is the case of the respondent/complainant that the appellants/opposite parties agreed to effect the entire repairs to the damaged car within a period of one month at a total cost of Rs.22,000/-. But the complainant could not adduce any reliable and acceptable evidence to substantiate his case that the appellants/opposite parties agreed for effecting the entire repairs to the damaged car including cost of the spare parts at Rs.22,000/-. There is also nothing on record to show that the appellants/opposite parties agreed to carryout the repair works within a period of one month.
7. The appellants/opposite parties in their written version categorically denied the case of the complainant regarding the total repair cost of Rs.22,000/- and the readiness to hand over the vehicles after repairs within a period of one month. Both the complainant and opposite parties filed proof affidavits in support of their respective pleadings. Thus, there is oath against oath. But there is nothing on record to show that there was such an agreement regarding the repair works between the complainant and opposite parties. So, the alleged deficiency of service on the part of opposite parties in causing the alleged delay cannot be upheld.
8. The opposite parties have also took the contention that the complainant was not ready to pay the repair charges and to take delivery of the vehicle. It is to be noted that before the institution of the present complaint in CC.272/08, no notice was issued by the complainant to the opposite parties demanding handing over of the vehicle after effecting repairs. No witness has also been examined on the side of the complainant to substantiate his case that the opposite parties caused delay in effecting repairs. So, the case of the complainant that the opposite parties caused much delay of 6 months in effecting repairs to the damaged car cannot be accepted as such.
9. Ext.A6 is copy of the complaint submitted by the complainant before the Sub Inspector of police, Kaduthurithi Police Station. Admittedly the said police complaint was preferred before the institution of the complaint in CC.277/08. It is to be noted that no date is affixed on A6 police complaint. A reading of A6 police complaint would make it clear that the said police complaint was filed to prevent the opposite parties in causing disturbance or inconvenience to the complainant by demanding Rs.19,000/- by way of balance repair charges. The aforesaid recitals in A6 police complaint would show that the said complaint was filed after getting the damaged Maruthi car repaired at the hands of the opposite parties. It would also show that the complainant paid a total of Rs.33,000/- to the opposite parties towards the repair charges. It would further show that the opposite parties were demanding and insisting for payment of a further sum of Rs.19,000/- towards the balance of the repair charges. The aforesaid demand of Rs.19,000/- would make it clear that the opposite parties were insisting for payment of (33,000/- + 19,000/-) Rs.52,000/- by way of repair charges. It is true that in A6 police complaint it was also alleged that two radial tyres were replaced by opposite parties and battery of the said car is to be returned by the opposite parties. In A6 it was also pointed out some defects in effecting the repair works.
10. It is also correct to say that in A6 the complainant had a case that the opposite parties had agreed to effect the repairs at a total cot of rs.22,000/- and agreed to repair the vehicle within one month. One pertinent point to be noted at this juncture is the payment of total of Rs.33,000/- by the complainant. In A6 complaint it is specifically admitted that the complainant paid a total of Rs.33,000/- to the opposite parties towards repair charges. Had there been an agreement or understanding between the complainant and opposite parties regarding the cost of repair charges at Rs.22,000/-, there would not have been any more payment from the side of the complainant. This payment of Rs.11,000/- over and above Rs.22,000/- would give a clear indication that there was no such agreement or understanding between the complainant and opposite parties regarding cost of repair at Rs.22,000/-.
11. Exts.B1 and B2 bills would show that spare parts were required for effecting repairs to the damaged car which was fallen into a canal on the side of the public road. More over, there is nothing on record to support the case of the respondent/complainant that the spare parts mentioned in B1 and B2 documents were not used by the appellants/opposite parties. The respondent/complainant alleged defective service and unfair trade practice on the part of opposite parties in effecting repairs to the damaged car. There can be no doubt that the burden is upon the complainant/consumer to prove the alleged deficiency of service and unfair trade practice on the part of the service providers. But the complainant could not adduce any evidence to substantiate his case regarding deficiency of service or unfair trade practice. The case of the complainant that the spare parts included in B1 quotation and B2 cash/credit bills have not been used for repairing the damaged car has not been proved or established. No expert evidence has been adduced on this aspect. The repaired motor car was not subjected for examination of an expert in the filed of automobile engineering. No automobile mechanic or other expert has been examined to prove the case of the complainant regarding defective service or unfair trade practice. So, the Forum below cannot be justified in finding unfair trade practice on the part of opposite parties.
12. The Forum below committed a mistake by adding the amounts covered by B1 quotations and B2 cash/credit bills. It is to be noted that B1 is only quotation and B2 series are cash/credit bills. It is also to be noted that the spare part items included in B1 quotation are included in the cash/credit bills which are marked as Ext.B2 series. So, the finding of the Forum below that the total amount would come to Rs.72,488/- towards repairing charges cannot be a correct finding and conclusion. It is true that in A7 complaint preferred by the opposite parties before the Chairman, Vaikom Taluk Legal Service Committee, the total cost of repairing including cost of spare parts is shown as Rs.43,000/-. But in the written version, the claim is for Rs.52,644/-. It is true that there is some discrepancy regarding cost of repair charges claimed by the opposite parties. It is to be noted that the complainant/consumer has not paid the said sum of Rs.52,644/-. The mere fact that the opposite parties claimed a sum of Rs.52,644/- against the claim for Rs.43,000/- cannot be taken as a ground to hold that there was deficiency of service or unfair trade practice. It is the usual practice of service providers like the automobile workshop owners in demanding higher amount towards the repair charges and thereafter the repair charges will be settled for a lesser amount.
13. The admission made y the complainant in his written complaint itself would make it clear that there was settlement through the intervention of the Kaduthurithi police and thereby the complainant agreed to pay a sum of Rs.10,000/- more to the opposite parties and thereby the total repair cost was arrived at Rs.43,000/-. It is also admitted by the complainant that before the police complaint he had paid Rs.33,000/- to the opposite parties and by way of settlement through the intervention of police he agreed for payment of a further sum of Rs.10,000/- and from the police station itself he paid Rs.5000/- and the balance of Rs.5000/- was due to the opposite parties. It is thereafter the complainant withdrew from the aforesaid settlement or compromise and filed the complaint in CC.277/08. This circumstance would make it clear that there was no deficiency of service or unfair trade practice on the part of the opposite parties. It is pertinent to note at this juncture that A7 complaint was preferred by the opposite parties before the Chairman, Vaikom Taluk Legal Service Committee only after the settlement o the dispute through the intervention of Kaduthuruthi police. A7 was filed only after A6 complaint. That is why in A7 complaint the opposite parties reduced their claim at Rs.43,000/- towards the repair charges. But the Forum below omitted to consider this aspect of the case. So, the finding of the Forum below that the opposite parties have no consistent case with regard to the cost of repair charges cannot be upheld.
14. The above discussions and findings thereon would make it clear that the complainant in CC.277/08 miserably failed in establishing the alleged deficiency of service and unfair trade practice on the part of the opposite parties. The Forum below failed to appreciate the documentary evidence and the circumstances of the case in the correct perspective. The finding of the Forum below that the opposite parties exercised unfair trade practice in effecting repairs to the damaged car owned by the complainant is without any supporting material or evidence. Those findings are liable to be quashed. Hence we do so. The impugned order passed by the Forum below is also to be quashed. These points are answered accordingly.
In the result the appeal is allowed. The impugned order dated:30/1/2010 passed by CDRF, Kottayam in CC.277/08 is set aside and the complaint therein is dismissed. The parties are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN : MEMBER
M.K.ABDULLA SONA: MEMBER
VL.
