PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This appeal is preferred against the order dated 22/10/2008 passed in consumer complaint No. 56/2008 by District Consumer Forum, Akola by which the complaint has been partly allowed.
2. The case of the complainant as set out in the complaint in brief is that he purchased a new car from opposite party (for short O.P.) No.1. It was registered with Regional Transport Office on 17/10/2006. It was having warranty of one year. The complainant took the car to O.P. No.2, which is service repairing center of O.P. No.1, for servicing of the car from time to time. The complainant used that car properly. However, on 01/10/2007 when the complainant was driving that car, its engine stopped working all of sudden near Chikali town. He therefore phoned to O.P. No.2, which sent its mechanic and took that car to its service center at Akola by towing the same with another car. The O.P. No.2 after full inspection of that car said that the car will have to be sent to O.P. No.1 as the warranty period was not over and the defective parts of that car will have to be replaced by new parts or get repaired. However, the O.P. No.2 did nothing till 12/10/2007. Therefore, on 12/10/2007 complainant wrote a letter to O.P. No.2. The O.P. No.2 received it on 15/10/2007. But it did not give its reply and it also did not repair the car. Lastly complainant served legal notice dated 19/10/2007 to the O.P. Nos.1&2. On 02/11/2007 the O.P. No.2 demanded Rs.1685/- from complainant towards expenses incurred by it for taking damaged car by towing with another vehicle from Chikhali to Akola for inspection of that car and sending report to O.P. No.1 about it. Complainant paid it to O.P. No.2 and got the car repaired from Garage namely Vankatesh Motors of Akola by expending Rs.29,949/-. The complainant therefore claimed from the O.P. No.1&2 total amount of Rs.60,000/-, including aforesaid amount of Rs.1685/- obtained from him by O.P. No.2,interest over the said amount and loss sustained by him. He also claimed Rs.3,000/- towards litigation expenses.
3. The O.P. Nos.1 and 2 filed their written version and resisted the complaint. It is there case in brief that the engine of the vehicle stopped working as there was leakage of coolant from the house pipe and the driver of the vehicle did not pay attention to the rising temperature of the engine recorded in the meter and drove the vehicle without coolant. Therefore, the engine was damaged. Earlier to that, free servicing of the vehicle was done as per owners manual. However, after free servicing, the thermostat volve was damaged due to running of the vehicle without coolant. The car was not repaired free of charges as said damage was not covered under warranty. The complainant was asked to pay Rs.10,000/- for repairing at that time but he did not pay it. The vehicle was not brought for servicing till it ran up to the distance of 45000 K.M. Thus it is submitted by O.P. Nos.1&2 that the complaint may be dismissed.
4. The Forum below after hearing Advocates of both parties and considering evidence brought on record came to the conclusion that there is no expert opinion and it can not be conclusively determined that the complainant is entitled for repairing of the vehicle. But at the same time it found that the O.P. No.2 did not inform the complainant for 30 days about its inability to repair it and retained the vehicle without any reason. Therefore the Forum below granted compensation of Rs.30,000/- to the complainant for loss sustained by him due to said retention of vehicle and Rs.1000/- towards cost of proceeding. It directed the O.P Nos. 1&2 to pay the said amount to the complainant on or before 15/12/2008 and in case of default the said amount will carry interest at the rate of 12% p.a. from 16/12/2008 till its realization
5. Feeling aggrieved by that order, the original O.P. Nos. 1&2 have preferred this appeal. Advocate of the appellants filed written notes of argument. The original complaint /respondent herein in person filed his written notes of argument. We have also heard Advocate of the appellant and respondent in person today. We have also perused the papers placed before us in this appeal.
6. The learned Advocate of the appellants invited our attention to the manual of the car and the photographs of cylinders of car produced on record and the affidavit of the expert in support of his submission that the said documents proved that as the vehicle was driven without coolant, its engine got hot and complainant used water in place of coolant which damaged engine. He further submitted that the vehicle was not taken back by the respondent herein from appellant No.1 as he was insisting that appellant No.2 should repair the vehicle free of charges as warranty period was not over. He further submitted that complainant took away the vehicle on 02/11/2007 after payment of towing charges. Thus, according to him the appellants are not entitled to pay compensation of Rs.30,000/-for not repairing of the vehicle for the period of 30 days and for not giving intimation to the complainant for taking back the same. He relied upon the observations made in the following cases.
i. S.G. Malhotra Vs. E.M. Pee Motors and Scooters Pvt. Ltd. and Anr., IV (2003) CPJ 186
ii. Rajiv Dhiman Vs. Maruti Udogh Ltd. & Anr., I (2007) CPJ 101
iii. Ajitha Chit Funds Pvt. Ltd. Vs. Tata Engineering and Locomotive Company Ltd. and Anr., I (2007) CPJ 204 (NC).
iv. Central Automobile and Anr. Vs. Simplex Engineering and Foundry Works Ltd., I(2004) CPJ 374.
7. On the other hand, the respondent herein /original complaint submitted that his written notes of argument may be treated as his oral argument. He reiterated his case in his written notes of argument as reproduced in brief above. The sum substance of his submission is that it was the responsibility of the appellants to repair the car free of charges as the warranty period was still not over. But they did not repair it and that therefore he served legal notice dated 29/10/2007 to the appellants and that on 30/10/2007 also the appellant No.1 did not give delivery of car to him and therefore he lodged report with Police on 31/03/2007 and then only the car was returned to him. Thus he claimed that the compensation of Rs.30,000/- is properly granted by the Forum. He denied that the car was used without coolant. He therefore submitted that appeal may be dismissed.
8. It is pertinent to note that the Forum below also did not grant any compensation claimed by the complainant for not repairing free of charges, the vehicle during period of warranty. The Forum found that in the absence of expert opinion it cannot be conclusively determined that the complainant is entitled for repairing of the vehicle during the period of warranty without payment of repairing charges. We also find that there is no evidence to prove that some parts of the engine were having manufacturing defect and therefore, the engine stopped the working all of sudden, on the road. On the contrary, the documents and affidavit produced on the record by the appellants proved that the complainant drove his vehicle when there was no coolant in the engine and therefore the engine got hot and damaged. Thus the Forum below has rightly not granted compensation claimed by the complaint on account of not repairing of the vehicle or not replacing its parts by the appellant, during period of warranty.
9. The Forum below granted compensation of Rs.30,000/- to original complainant/ respondent herein towards loss sustained by him due to not returning of vehicle for 30 days by the appellants without any reason and without giving any intimation in writing to the complainant for cause of retention. However, we find that the retention of the vehicle by the appellants at the repairing centre for 30 days cannot be said to be without any reason. The complaint itself shows that the vehicle was brought to appellant No.2 on 01/10/2007 by the mechanic of the appellants by towing it with another vehicle. The compliant also shows the appellant No.2 demanded Rs.1685/- for taking the vehicle from Chikali to Show Room of Akola and for its inspection. The complaint also shows that respondent paid 1685/- to the appellant No.2 on 02/11/2007 and then only he was allowed to take that car for repairing to Venkatesh Motors of Akola. The retention of the vehicle by appellant No. 2 from 01/10/2007 to 02/11/2007 therefore cannot be said to be not justified.
10. In our view the appellant No.2 was entitled to claim Rs.1685/- from the respondent herein as it had brought the vehicle from Chikali to Akola by towing it with another vehicle and it had also duly inspected it and found that the damage was not covered under the warranty, as the said damage to engine of that car was caused due to own fault of respondent herein as discussed above. Hence, retention from of that car for recovery of that amount from the respondent herein for 30 days, does not amount to unfair trade practice on the part the appellant. The order for grant of compensation of Rs.30,000/- to the respondent herein due to retention of the vehicle for 30 days by the appellants, therefore cannot be sustained under law.
11. Hence, we find that the impugned order is not legal, correct and proper & it needs to be set aside.
ORDER
1. The appeal is allowed.
2. The impugned order dated 22/10/2008 passed in Consumer Complaint No. 56/2008 by District Consumer Forum, Akola is hereby set aside.
3. The complaint is dismissed.
4. No order as to cost in appeal.
Dated:- 14/02/2014. | 
