Assam

Dibrugarh

CC/32/2017

SRI RANTU SAIKIA - Complainant(s)

Versus

PASHUPATI TRADERS - Opp.Party(s)

SRI AMARJYOTI SAIKIA

14 Aug 2024

ORDER

Date of Argument – 06.02.2023 (Complainant)  

                                                                                          02.08.2023 (O.P.)

                                                            Date of Judgment –  14.08.2024

 

            This complaint was filed by the complainant Shri Rantu Saikia against the O.P. Pashupati Traders under section 12 of Consumer Protection Act, 1986 claiming to direct the O.P. to pay ₹ 2,00,000/- as compensation and ₹ 15,000/- as cost of the proceeding to the complainant.

Judgement

             The case of the complainant is that he purchased a Chevrolet Beat Car from the O.P. Registration No. of the vehicle was AS-06-S/0103, engine No.21160816G47G0086, VIN No.MA6BFBCNGOT00308. On 28.02.2017 at 5.10 A.M. the complainant handed over the said vehicle to the opposite party for servicing and repairing and the O.P. issued a delivery receipt of the car to the complainant and promised to deliver the vehicle in fit condition to the complainant on 31.03.2016 at 6 P.M. But the O.P. failed to deliver the vehicle as promised and requested the complainant to allow two months more time for delivery of the vehicle in fit condition.

            After the expiry of two months time when the complainant approached the O.P. to take delivery of the vehicle the O.P. failed to deliver the vehicle. The complainant enquired about the delivery of the vehicle, the O.P. failed to give any satisfactory answer to the complainant. Due to such negligent act of the O.P. the complainant had suffered loss and injury due to deprivation, harassment, mental agony and loss of professional practice for which he is entitled to compensation. The vehicle had a warranty for a period of one year. The opposite party is liable for breach of contract as it has not complied with the terms of delivery of the vehicle in fit condition to the complainant within the stipulated period and they acted extremely negligent in attending to complainant’s request for servicing and repairing the vehicle and the O.P. is therefore liable to compensate the complainant for an amount of ₹2,00,000/- (Rupees two lakh )only for the loss and injury caused to the complainant.

            The complainant therefore has prayed to direct the O.P. to pay ₹ 2,00,000/- (Rupees two lakh)only as compensation and ₹15,000/- (Rupees fifteen thousand)only as cost to the complainant and further to pass any order(s) as the Forum deems fit and proper.

            Registering the case notice was issued to the O.P. and the O.P. contested the case by filing their W/S.

            Filing their W/S the O.P. has claimed that all the contentions of the complaint petition are based on fake, fictitious, baseless, frivolous, misconceived, concocted and vexatious allegations and the complaint petition is not maintainable in law as well as on facts and liable to be dismissed in limine. Admitting the fact that the complainant purchased a Chevrolet Beat Car bearing Registration No.AS-06-S/0103, engine No.21160816G47G0086, VIN No.MA6BFBCNGOT00308 have been denied and the complainant is to prove the same in due legal manner.

            In their W/S O.P. has stated that the complainant handed over the vehicle to this O.P. on 28.02.2017 not only for regular servicing but for carrying out repairs arising out of major accidental damage. After receiving the vehicle the opposite party informed the complainant that first the proceeding for insurance claim for the damages caused to the vehicle arising out of major accidental damage has to be started and for that purpose the O.P. requires the copy of the police report and MVI report and after receiving these reports only the O.P. will be able to start the proceeding of the insurance claim and will also be able to prepare the estimate of cost for repairing the vehicle and also to submit the same to the surveyor/assessor for insurance claim and after the surveyor/assessor inspect the vehicle the O.P. can start repairing the vehicle and the O.P. also informed the complainant that the repairing of the vehicle will take substantial time. As such the O.P. informed the complainant at that point of time the O.P. cannot promise the date and time along with the expenses required for carrying out the repairs of the vehicle arising out of a major accident and the complainant was agreed thereto. The complainant promised to the O.P. that he will provide the copy of the required reports within one week from 28.02.2017 and as per the promise of the complainant, the O.P. raised a manual job card dated 28.02.2017 and as such an estimated promise date and time was mentioned therein which was accepted by the complainant signing the job card. But the complainant did not provide the reports as promised to the O.P. and the complainant on the evening of 28.03.2017 submitted the copies of the police report and MVI report to the opposite party and as such the O.P. was not able to start the proceeding of insurance claim and was not also able to prepare the estimate of expenses of required for repairing the vehicle and could not also start the repairing on or before 28.03.2017 only due to negligent, carelessness and fault of the complainant.

After receipt of the reports, the O.P. has started the proceeding for insurance claim and thereafter on 01.04.2017 the estimate for ₹1,76,227.27 (Rupees one lakh, seventy six thousand two hundred twenty seven and paise 27)only was prepared for the expenses required for the repairing of the vehicle and to submit the same to the surveyor/assessor for insurance claim as the vehicle was duly insured with New India Assurance Company Ltd. vide certificate-cum-policy No.3104003116015004805 dated 20/06/2016 through the opposite party. The O.P. then vide e-mail dated 04.04.2017 intimated the insurance company for appointment of a surveyor for the said vehicle and vide e-mail dated 04.04.2017 the insurance company informed this opposite party regarding appointment of a surveyor for the said vehicle. As the estimate for repairing was on the higher side, the opposite party appraised the complainant of the estimated expense required for repairing the vehicle and the O.P. asked the complainant to pay 25% advance of the estimated expense to the O.P. to start repairing of the vehicle and to place order for necessary parts required and that amount will be refunded to the complainant as and when the said expenses are reimbursed by the insurance company. But the complainant despite repeated requests and reminders did not pay the 25% advance to the O.P. and on 03.05.2017 paid ₹10,000/- only to the O.P. as advance of the estimated expenses and the O.P. only for the satisfaction of its valued customer placed order of all the necessary parts required and due to carry out the repairs of the vehicle. The O.P. continued repairs of the vehicle as and when necessary parts etc. were received and available with them and the vehicle was completely repaired and ready for delivery on 31.07.2017 and the job was closed on that day and tax invoice No.001JTI/17001192 dated 31.07.2017 for the amount of ₹1,56,099/-(Rupees one lakh fifty six thousand and ninety nine)only was raised and the opposite party informed and requested the complainant over phone that the vehicle was completely repaired and was also informed about the scheduled servicing of the vehicle and requested to come and pay the expenses incurred for repairing the vehicle and to take delivery of the same. The complainant told the opposite party that he will come after ten to fifteen days. On 24.08.2017 the complainant requested the O.P. over phone to carry out some of the works required and to cancel the rest of the works and the O.P. once again, only for the satisfaction of their valued customer accepted the request of the complainant, a manual job card dated 25.08.2017 was raised and the O.P. started to carry out the necessary works of the vehicle as requested by the complainant and the said necessary works were completed and the job was closed on 31.08.2017 and tax invoice No.001JTI/17001464 dated 31.08.2017 for an amount of ₹11,0311/- was raised. The O.P. regularly requested the complainant over phone to come and to pay the expenses incurred in carrying out the requested works along with the previous amount payable by the complainant. The complainant informed the O.P. that after Durga Puja festival and subject to availability of money, he will come and pay all the outstanding amount payable to the O.P. But the complainant, as promised, did not come to take delivery of the vehicle.

            On 21.10.2017 the complainant came to O.P. and took a test drive of his vehicle and was fully satisfied with the repairing and servicing of the vehicle after taking the test drive of the vehicle. The complainant requested the carry out the necessary works of the vehicle which he previously cancelled and he will come after few days to take delivery of the vehicle and will pay all expenses payable.

But he failed to keep his own promise for which the O.P. had to close the job and tax invoice No.001JTI/17002184 dated 28.11.2017 for an amount of ₹19,903 only was raised.

            The O.P. denied the fact that the vehicle of the complainant had a warranty for a period of one year. The vehicle was covered under warranty for a period of three years or one lakh kilometers whichever occurs earlier and that too arising out of manufacturing defects only and not arising out of an accident. Damages done on a vehicle arising out of accident, insurance company is liable if the vehicle is insured to the extent of the terms and conditions of the policy. The vehicle of the complainant was duly insured with New India Assurance Company Ltd. vide policy certificate-cum-policy No.31040031160150004805 dated 20.06.2016 through the opposite party. The O.P. took all necessary steps for getting the insurance claim for the damaged vehicle and the complainant also signed the loss/damage intimation letter. The O.P. also submitted their estimate dated 01.04.2017 for ₹1,76,227.27 only to the surveyor/assessor, i.e. Shri Dipankar Sharma along with all the necessary documents. The surveyor/assessor had also prepared his report dated 24.08.2017. The O.P. vide letter dated 08.09.2017 addressed to the Administrative Officer, New India Assurance Company Ltd. Divisional Office, Dibrugarh had submitted the aforesaid surveyor/assessor’s report dated 24.08.2017 along with all necessary documents for settlement of the claim. But the O.P. had nor received any amount from the insurance company and the complainant had paid only ₹ 10,000/- to the O.P.

            The O.P. further submits that as per the service and warranty terms and conditions contained in the owner’s manual, warranty covers for any accident, damage, loss or destruction due to negligent, careless use of the vehicle.

            The O.P. has claimed that the complainant is liable to pay ₹1,87,033.00 only after deducting ₹10,000/- only paid by the complainant as advance on 03.05.2017 along with bank interest accrued thereon till its payment to the O.P. The complainant is also liable to pay ₹50/- per day towards parking charges of the vehicle from 31.07.2017 till taking delivery of the vehicle by the complainant. The case instituted by the complainant and the reliefs claimed therein is absolutely false, unfair, speculative and as such liable to be dismissed.

            In this case the complainant, Shri Rantu Saikia submitted his evidence in affidavit on 11.10.2021.

            In his evidence the complainant has deposed that he purchased a Chevrolet Beat Car being Regd. No.AS06-0103 from Pasupati Traders, P.N. Road, Chiring Chapori, P.O., P.S. and District Dibrugarh. On 28.02.2017 at 5.10 A.M. the complainant handed over the said vehicle to the opposite party for servicing and repairing and the O.P. issued a delivery receipt of the car to the complainant and promised to deliver the vehicle in fit condition to the complainant on 31.03.2017 at 6 P.M. Exhibit-1 is the original receipt issued by the O.P. But the O.P. failed to deliver the vehicle as promised and requested the complainant to allow two months more time for delivery of the vehicle in fit condition.

            After the expiry of two months time when the complainant approached the O.P. to take delivery of the vehicle the O.P. failed to deliver the vehicle. The complainant enquired about the delivery of the vehicle, the O.P. failed to give any satisfactory answer to the complainant. Due to such negligent act of the O.P. the complainant had suffered loss and injury due to deprivation, harassment, mental agony and loss of professional practice for which he is entitled to compensation. The vehicle had a warranty for a period of one year. The opposite party is liable for breach of contract as it has not complied with the terms of delivery of the vehicle in fit condition to the complainant within the stipulated period and they acted extremely negligent in attending to complainant’s request for servicing and repairing the vehicle and the O.P. is therefore liable to compensate the complainant for an amount of ₹2,00,000/- (Rupees two lakh )only for the loss and injury caused to the complainant.

            The cause of action as claimed by the complainant arose on 28.02.2017 when the complainant handed over the vehicle to the opposite party for servicing and repairing of damages of the vehicle and on 31.03.2017 when the O.P. failed to deliver the vehicle in fit condition to the complainant and is still continuing.

            The O.P. in the instant case has submitted three evidences in affidavit as O.P.’s witness No.1, witness No.2 and witness No.3.

            Witness No.1 Shanta Prasad Chakravarty in his evidence in affidavit deposed that he is the proprietor Pasupati Traders, i.e. the opposite party. Admitting the fact that the complainant purchased a vehicle “Chevrolet Beat Car) bearing Regd. No. AS06-0103 from the O.P. has claimed that the Engine Number and VIN as stated by the complainant in para-1 of his complaint petition are erroneous.

            It is also submitted that the complainant had handed over the vehicle to the O.P. not only for regular servicing but also for carrying out repairs arising out of major accidental damages. After receiving the vehicle the O.P. informed the complainant that first the proceeding for insurance claim for the damages caused to the vehicle arising out of major accidental damage to be started and for that purpose the O.P. requires the copy of police report and MVI report and after receiving these reports only the O.P. will be able to start the proceeding of the insurance claim and will also be able to prepare the estimate of cost for repairing the vehicle and also to submit the same to the surveyor/assessor for insurance claim and after the surveyor/assessor inspect the vehicle the O.P. can start repairing the vehicle and the O.P. also informed the complainant that the repairing of the vehicle will take substantial time. As such the O.P. informed the complainant at that point of time the O.P. cannot promise the date and time along with the expenses required for carrying out the repairs of the vehicle arising out of a major accident and the complainant was agreed thereto. The complainant promised to the O.P. that he will provide the copy of the required reports within one week from 28.02.2017 and as per the promise of the complainant, the O.P. raised a manual job card dated 28.02.2017 and as such an estimated promise date and time was mentioned therein which was accepted by the complainant signing the job card. But the complainant did not provide the reports as promised to the O.P. and the complainant on the evening of 28.03.2017 submitted the copies of the police report and MVI report to the opposite party and as such the O.P. was not able to start the proceeding of insurance claim and was not also able to prepare the estimate of expenses of required for repairing the vehicle and could not also start the repairing on or before 28.03.2017 only due to negligent, carelessness and fault of the complainant. After receipt of the reports, the O.P. has started the proceeding for insurance claim and thereafter on 01.04.2017 the estimate for ₹1,76,227.27 (Rupees one lakh, seventy six thousand two hundred twenty seven and paise 27)only was prepared for the expenses required for the repairing of the vehicle and to submit the same to the surveyor/assessor for insurance claim as the vehicle was duly insured with New India Assurance Company Ltd. vide certificate-cum-policy No.3104003116015004805 dated 20/06/2016 through the opposite party. The O.P. then vide e-mail dated 04.04.2017 intimated the insurance company for appointment of a surveyor for the said vehicle and vide e-mail dated 04.04.2017 the insurance company informed this opposite party regarding appointment of a surveyor for the said vehicle. As the estimate for repairing was on the higher side, the opposite party appraised the complainant of the estimated expense required for repairing the vehicle and the O.P. asked the complainant to pay 25% advance of the estimated expense to the O.P. to start repairing of the vehicle and to place order for necessary parts required and that amount will be refunded to the complainant as and when the said expenses are reimbursed by the insurance company. But the complainant despite repeated requests and reminders did not pay the 25% advance to the O.P. and on 03.05.2017 paid ₹10,000/- only to the O.P. as advance of the estimated expenses and the O.P. issued a money receipt No.24473 dated 03.05.2017 for the amount of ₹10,000/- and the said original receipt is with the complainant. Then only for the satisfaction of its valued customer placed order of all the necessary parts required and carry out the repairs of the vehicle. Exhibit –C is the computer generated print out of estimate dated 01.04.2017 contained in 3 pages and Exhibit-D is the computer generated print out contained both the e-mails dated 04.04.2017 contained 2 pages.

            This witness has further deposed that the complainant on 03.05.2017 paid ₹10,000/- as advance to the O.P. and the complainant deliberately with wrongful intention did not pay 25% advance against the estimated expense to the O.P. The O.P. continued repairs of the vehicle as and when necessary parts etc. were received and available with them and the vehicle was completely repaired and ready for delivery on 31.07.2017 and the job was closed on that day and tax invoice No.001JTI/17001192 dated 31.07.2017 for the amount of ₹1,56,099/-(Rupees one lakh fifty six thousand and ninety nine)only was raised and the opposite party informed and requested the complainant over phone that the vehicle was completely repaired and was also informed about the scheduled servicing of the vehicle and requested to come and pay the expenses incurred for repairing the vehicle and to take delivery of the same. The complainant told the opposite party that he will come after ten to fifteen days. On 24.08.2017 the complainant requested the O.P. over phone to carry out some of the works required and to cancel the rest of the works and the O.P. once again, only for the satisfaction of their valued customer accepted the request of the complainant, a manual job card dated 25.08.2017 was raised and the O.P. started to carry out the necessary works of the vehicle as requested by the complainant and the said necessary works were completed and the job was closed on 31.08.2017 and tax invoice No.001JTI/17001464 dated 31.08.2017 for an amount of ₹11,0311/- was raised. The O.P. regularly requested the complainant over phone to come and to pay the expenses incurred in carrying out the requested works along with the previous amount payable by the complainant. The complainant informed the O.P. that after Durga Puja festival and subject to availability of money, he will come and pay all the outstanding amount payable to the O.P. But the complainant, as promised, did not come to take delivery of the vehicle.

On 21.10.2017 the complainant came to O.P. and took a test drive of his vehicle and was fully satisfied with the repairing and servicing of the vehicle after taking the test drive of the vehicle. The complainant requested the carry out the necessary works of the vehicle which he previously cancelled and he will come after few days to take delivery of the vehicle and will pay all expenses payable. But he failed to keep his own promise for which the O.P. had to close the job and tax invoice No.001JTI/17002184 dated 28.11.2017 for an amount of ₹19,903 only was raised.

            Exhibit –E is the tax invoice No.001JTI/17001192 dated 31.07.2017.

            Exhibit – F is Manual Job Card dated 25.08.2017.

            Exhibit – G is the tax invoice No.001JTI/17001464 dated 31.08.2017.

            Exhibit – H is the Manual Job Card dated 21.10.2017.

            Exhibit – I is the tax invoice No.001JTI/17002184 dated 28.11.2017 for an amount of ₹19,903/-

            This witness further submitted that the vehicle of the complainant was covered under warranty for a period of three years or one lakh kilometers whichever occurs earlier and that too arising out of manufacturing defects only and not arising out of an accident.  For damages caused on a vehicle arising out of accident, insurance company is liable if the vehicle is insured to the extent of the terms and conditions of the policy of the Insurance Company and Rules and Laws as applicable. The vehicle of the complainant was duly insured with New India Assurance Company Ltd. through the opposite party. The O.P. took all necessary steps for getting the insurance claim for the damaged vehicle and the complainant also signed the loss/damage intimation letter. The O.P. also submitted their estimate dated 01.04.2017 for ₹1,76,227.27 only to the surveyor/assessor, i.e. Shri Dipankar Sharma along with all the necessary documents. The surveyor/assessor had also prepared his report dated 24.08.2017. The O.P. vide letter dated 08.09.2017 addressed to the Administrative Officer, New India Assurance Company Ltd. Divisional Office, Dibrugarh had submitted the aforesaid surveyor/assessor’s report dated 24.08.2017 along with all necessary documents for settlement of the claim. But the O.P. had nor received any amount from the insurance company and the complainant had paid only ₹ 10,000/- to the O.P.

            This witness further stated that the service and warranty terms and conditions contained in the owner’s manual it is clearly mentioned, amongst others, that the  warranty is not covered for accident, damage, loss or destruction due to negligent, careless use of the vehicle.

            Exhibit –J is the copy of Loss/Damage Intimation Letter of the O.P.

            Exhibit – K is the report of the Surveyor/Assessor and

            Exhibit –L is the office copy of the letter dated 08.09.2017 addressed to the Administrative Officer, New India Assurance Co. Ltd., Divisional office, Dibrugarh

            This witness has further confirmed in his evidence that New India Assurance Co. Ltd. has paid ₹ 1,27,880/- only to the O.P. towards settlement of the insurance claim of the complainant. After receiving the aforesaid amount of ₹1,27,880/- from the insurance company the complainant is liable to pay only ₹59,153/- to the O.P. after deducting ₹10,000/- paid by the complainant to the O.P. as advance on 03.05.2017 and the complainant is also liable to pay to the O.P. bank interest accrued thereon till its payment to the O.P. as per aforesaid tax invoice for the repairing of the vehicle.

            The vehicle of the complainant was ready for delivery on 31.07.2017 but the complainant deliberately with wrongful and malafide intention to harass the O.P. did not take delivery of his vehicle from the O.P. and due to such deliberate, unwanted, wrongful, malafide intention o the complainant the said vehicle of the complainant is lying idle from 31.07.2017 at the premises of this witness. The complainant is also liable to pay ₹50/- per day towards parking charges of the vehicle from 31.07.2017 till taking delivery of the vehicle by the complainant.

This witness has specifically denied any negligence and deficiency in the service of the O.P. The case instituted by the complainant is based entirely on false, fake, baseless, unfounding, speculative, frivolous, concocted, vexatious and highly reprehensible contentions only to support his case and as such the case is liable to be dismissed with cost.

The O.P. in this case has adduced evidence in affidavit of Shri Biswa Kumar Das as O.P.’s witness No.2. In his evidence this witness has stated that he is the Service Manager of Pasupati Traders and he is well conversant with the facts and circumstances of the case.

The evidence given by this witness is nothing but a mere re-iteration of the whole evidence given by witness No.1, the proprietor of Pasupati Traders. Hence to avoid multiplicity of the same statement, we find it not necessary to write down the version of this witness in toto.

The O.P. in this case has also adduced evidence in affidavit of Shri Nabin Mazumdar as D.W-3. In his evidence this DW has stated that he is the Manager of Pasupati Traders, i.e. the Opposite Party and he is also well conversant with facts and circumstances of the case.

The complainant in this case submitted written argument on 06.02.2023.

In his argument the complainant has argued that he purchased one vehicle bearing Regd. No.AS06S-0103 from the O.P. and the complainant handed over the said vehicle to the O.P. for servicing and repairing all the damages of the vehicle on 28.02.2017. The O.P. issued a receipt against the same promising to deliver the vehicle in fit condition to the complainant within 31.03.2017, but the O.P. failed to deliver the vehicle on that day and requested the complainant to allow two months more time for delivery of the vehicle. After expiry of these months when the complainant approached the O.P. to take delivery of his vehicle, the O.P. again failed to deliver the vehicle to the complainant and due to such acts of the O.P. the complainant had suffered loss and injury due to mental harassment and agony and loss of professional practice for which the complainant is entitled to compensation.

The vehicle had warranty of one year at the time of handing over it to the O.P. He claims that the O.P. is also liable for breach of contract as the O.P. has not complied with the terms of delivery of the vehicle in fit condition to the complainant within stipulated period and had acted extremely negligent in fulfilling the request of the complainant for servicing and repairing the vehicle for which the O.P. is liable to compensate the complainant for an amount of ₹ 2,00,000/- only for the loss and injury caused to the complainant and an amount of ₹15,000/- as cost to the complainant and other relief as the Forum may think fit.

The complainant has further argued that the opposite party had failed to deliver the vehicle on 31.03.2017 and even on 31.07.2017. The O.P. has also adduced the job card in this case and in the said job card as exhibited by the opposite party it is evident that there was request for repairing/servicing the vehicle but the O.P. has failed to fulfill the request of the complainant. The complainant has no wrongful and malafide intention to keep the vehicle in the premises of the O.P. The complainant had to incur ₹1500/- per day for hiring a private vehicle to meet his daily engagements.

The complainant has further argued that the O.P. has admitted in their evidence in affidavit that the New India Assurance Co. Ltd. has paid ₹1,27,800/- to the O.P. towards the settlement of the insurance claim of the complainant and even then the O.P. failed to deliver the vehicle in fit condition. The O.P. refused to interact with the complainant till filing this complaint and the O.P. never contacted over phone with the complainant for delivery of the vehicle. The O.P.’s contention that they were calling the complainant is false and the O.P. has not adduced any evidence of sending of any mails/notice/call details regarding intimation of taking delivery of the vehicle to the complainant by O.P. It was the complainant who was attending the O.P. for the delivery of the vehicle in fit condition and on each and every visit the complainant had requested the O.P. for complete repairing/servicing of the vehicle in fit condition and the O.P. was preparing job cards and bills for repairing and servicing the vehicle. The deficiency in service on the part of the O.P. is large in this case. At the time of handing over the vehicle to the O.P. they never demanded any advance for repairing/servicing and the O.P. agreed to take fees/charges for the repairing/servicing at the time of delivery of the vehicle and on 03.05.2017 when the O.P. requested to pay them ₹10,000/- the complainant accordingly paid the same. There was no agreement between the complainant and the O.P. that the complainant has to pay 25% advance of the estimated expenses.

It is also argued that as per MVI report filed by the O.P. as Document No.C, the damages occurred due to accident were (i) right side headlight (ii) right side mud guard (ii) right side body with door and the O.P. failed to repair the damages to the satisfaction of the complainant and during several visits made by the complainant the O.P. failed to deliver the vehicle in fit condition. The complainant has claimed that the O.P. did not make any arrangement at the time of filing W/S / evidence in affidavit for the inspection of the vehicle by the Consumer Forum to prove that the vehicle is in fit condition.

The complainant has claimed that even after several personal visits the O.P. failed to provide him any relief rather harassed him a lot. The O.P. refused/failed to repair/service the damage of the vehicle and they have spoiled the car and diminished its market value and such act of the O.P. is absolutely wrong, illegal, unwanted and uncalled for and in violation of the rights of the complainant. As such there is complete deficiency in service, negligence and unfair trade practice on the part of the O.P. for not delivering the vehicle in fit condition to the complainant. The complainant has proved his case beyond all reasonable doubts.

In support of his claim/argument the complainant has submitted certain rulings along with his arguments.

The O.P. in this case submitted their written argument on 02.08.2023.

Describing the complaint of the complainant as false, fake fictitious, baseless, frivolous, misconceived, unfinding, concocted and vexatious, the O.P. has denied their liability. Upon receipt of notice of the Forum/Commission, the O.P. contested the case by filing W/S and during the course of evidence, filed evidence in affidavit of 3(three) witnesses as O.P.’s witness and exhibited 12 No. of documents as exhibits marking as Exhibit-A to Exhibit-L.

It is further submitted that the complainant only on 21.10.2017 came to the O.P. and took test drive of the vehicle and was fully satisfied with the repairing and servicing of the vehicle.

It is further stated that as per the Service and Warranty Terms & Conditions contained in the Owner’s Manual which is also with the complainant, that the warranty does not cover any accident, damage, loss or destruction due to negligent, careless use of the vehicle.

It is further specifically submitted that the manual Job Card dated 28.02.2017 (Exhibit 1 of the complainant) raised by the O.P. an estimated promised date and time was mentioned therein and in the said Job Card it is clearly written/mentioned “Carry out accidental repair” and which was accepted by the complainant and the complainant also signed the said Job Card.

It is argued that as alleged by the complainant in para No.4 of the complaint petition and para No.5 of this affidavit of deposition used the term as “Professional Practice” but the complainant has miserably failed to produce any document regarding his “Professional Practice” and as such the same cannot be entertained.

It is further argued that statements made in para Nos. 6 and 12 of the Written Argument submitted by the complainant regarding the amount of 1,500/-, the complainant had to incur per day for hiring the private vehicle to meet his daily engagements/transportation are not pleaded in his complaint petition or in his affidavit of deposition and the complainant has miserably failed to adduce the evidence of the hired vehicle owner or the driver of the said vehicle nor has filed and exhibited any document in his support about the payments made for the hired vehicle and as such the same cannot be entertained.

It is also specifically argued that in regard to the statements made in para No.8 of the Written Argument submitted by the complainant that the details of the damages, reason for the damages i.e. accident of the said vehicle and regarding the amount of the damages are specifically mentioned in the Surveyor/Assessor Report dated 24.08.2017 (Exhibit K).

It is further argued that the decisions submitted by the complainant i.e. (1) Tata Motors Ltd. Vs Antonio Paulo Vaz in Civil Appeal No.574/2021 of the Supreme Court and (2) M/s Honda Siel Cars India Ltd. Vs Rohit Jain & Anr. in Revision Petition No.446 of 20 of the National Consumer Disputes Redressal Commission have no relevancy with this instant case.

In view of the above arguments the O.P. has claimed that the O.P. is not liable for any sort of negligent and/or deficient services towards the complainant and the complaint is liable to be rejected with cost.

Points for decision

1. Whether the complainant is a consumer of the opposite party under Consumer Protection Act.
2. Whether the opposite party are liable for deficiency of services towards the complainant.
3. Whether the complainant is entitled to the relief prayed for in the complaint petition.

Decisions and reasons thereof

1. We have carefully gone through the averments of the complaint filed by the complainant, written statement filed by the opposite party, evidence in affidavit filed by both the parties along with annexed documents/exhibits and written arguments filed by both the parties on record and it is found that the complainant purchased his Chevrolet Beat Car from the opposite party which was registered vide No.AS06S/0103 and on 28.02.2017 he handed over that vehicle to the O.P. for repairing and servicing. Exhibit-1 of the complainant confirms it, for which it is evident that the complainant is a consumer of the opposite party under consumer protection Act.
2. Regarding deficiency of services, we have found that on 28.02.2017 at 5:10 A.M. the complainant handed over his vehicle to the opposite party for servicing and repairing. The O.P. issued a delivery receipt of the car to the complainant and promised to deliver the vehicle in fit condition to the complainant on 31.03.2017. We have minutely examined the delivery receipt issued by the O.P.(Exhibit-1 of the complainant) wherefrom we have found that the vehicle of the complainant was undoubtedly delivered to the O.P. for repairing. But delivery receipt has shown that the car was delivered to the O.P. for carrying out accidental repair and promised date of returning the vehicle was shown as 31.03.2016. We have found it quite difficult how a car handed over to the O.P. for repairing on 28.02.2017 could be delivered to the complainant on 31.03.2016. Perhaps this was a bonafide mistake/error on the part of the O.P. in putting the year as 2016 instead of 2017.

Further, we have also found it difficult to understand why throughout his complaint, evidence and arguments the complainant never mentioned anything about the accident took place with his vehicle.  The opposite party in their evidence as well as in their arguments, have claimed that the complainant on 21.10.2017 came to the O.P. and took test drive of the vehicle and was fully satisfied with the repairing and servicing of his vehicle. The complainant has not objected to this submission of the O.P. It is the O.P. who suggested the complainant about the first proceeding for insurance claim for the damages caused to the vehicle arising out of major accidental damage to be started, for which the copy of police report and MVI report are required and only after receipt of those reports, the O.P. will be able to start the proceeding for insurance claim and to prepare the estimate for the cost of repairing of the vehicle and submit the same to the Surveyor/Loss Assessor for insurance claim. The O.P. informed the complainant that the repairing of the vehicle will take substantial time and also informed that at that point of time they could not promise any date of delivery of the vehicle in fit condition to the complainant. The date mentioned by the O.P. was only an estimated promised date. The complainant has supplied the copies of police report and MVI report to the O.P. on 28.03.2017, exactly after one month from the date of handing over the vehicle to the O.P. for repairing. (Ext.-A and Ext.-B of the O.P. are the police report and MVI report respectively). After receipt of those reports the O.P. started the proceeding for insurance claim on 01.04.2017 claiming ₹1,76,227.27 only showing that amount as estimate for repairing the vehicle. Thereafter on 04.04.2017 the O.P. vide e-mail intimated the insurance company for appointment of a Surveyor for the said vehicle and vide e-mail of the same date the insurance company informed the O.P. regarding appointment of a Surveyor for the vehicle. As the estimated cost for repairing was on the higher side, the O.P. asked the complainant to pay 25% of the estimated cost in advance to the O.P. for starting the repairing of the vehicle and to place order for necessary parts required and assured that the amount will be refunded to the complainant as and when the payment will be reimbursed by the insurance company. We have seen that the complainant paid a sum of ₹ 10,000/- only as advance instead of 25% of the estimated cost which was received by the O.P. vide receipt No.24473 dated 03.05.2017. Seen and perused the exhibits exhibited by the O.P. which are computer generated print out and issue date is 01.04.2017 and computer generated print out of both the emails of date 04.04.2017. The O.P. has submitted in their evidence as well as on argument that repairing of the vehicle was completed and ready for delivery on 31.07.2017 and the job was closed on that date and tax invoice for an amount of ₹1,56,099/- only was raised and accordingly requested the complainant to come and take delivery of his vehicle. The insurance company, i.e. New India Assurance Company Ltd. paid ₹1,27,880/- only to the O.P. towards the settlement of the insurance claim of the complainant and after receiving the aforesaid amount, it was the liability of the complainant to pay a sum of ₹ 59,153/- only to the O.P. after deducting ₹ 10,000/- paid by the complainant as advance.

After going through the whole case we have noticed that the complainant even after repeated requests of the O.P. had neither paid the sum of ₹ 59,153/- only to the O.P. nor he came to take delivery of his vehicle after completion of all the repairing works for which this Commission finds it difficult to perceive any deficient and negligent services of the O.P. towards the complainant. The complainant submitted only one document, i.e. the delivery receipt dated 28.02.2017 as exhibit-1. Moreover, in his complaint petition as well as in his evidence also the complainant has not preferred any claim to direct the O.P. to deliver his vehicle which is quite astonishing. He has only prayed to direct the O.P. to pay ₹2,00,000/- as compensation and ₹15,000/- as cost of the case.

3. From the above discussions and observations this Commission unanimously comes to a conclusion that the complainant has failed to prove his case against the opposite party and we find nothing to make the opposite party liable for deficient and negligent services towards the complainant and as such the complainant is not entitled to get any relief as claimed in his complaint petition. The complaint filed by the complainant is hereby dismissed without any cost.

        The instant C.C. No.32/2017 is disposed of on contest and the opposite party is set forth at liberty from this case.

             Send copy of this judgement to both the parties for their record free of cost.