JUDGMENT

Shri A.K.Patra,President:

1. This Complaint is filed by the complainant named above inter alia alleging deficiency in service and unfair trade practice on the part of the Ops while repairing of the vehicle/ motor cycle of the complainant. 
2. The complainant prays for a direction to refund the price paid to the Ops and for  an award of compensation of Rs.1,77,600 with interest  which includes cost of the litigation.
3. The brief facts as emerged from the complaint petition and documents filed herewith giving rise to the present complainant are that, the complainant is the owner of one motor cycle Hero Pleasure Scooter bearing Regd.No. OD26-A-1564. Due to sudden brake down of the said vehicle during November-December 2022.Thecomplainant took the vehicle to the OP 2 for necessary repairing service. The Op 2 offered Engine Service for the vehicle against which Complainant paid Rs.5500/- to him but no money receipt was issued. Just after few days, during a transit form Khariar to Boarda, the vehicle again stopped midway and complainant had to drag it manually up to 3-4 Kms and his 9 years old son also have to walk for the distance. Complainant left the vehicle at a Petrol Pump near Chandotara village and on being asked the OP2 towed the vehicle form there and later on he did some servicing of the vehicle but again within a  few days same problem occurred with the vehicle. It   was taken to the OP NO.2 once again where upon OP2 again did some repairing    and handed over the vehicle to the complainant claimed for another Rs.1000/ saying that some extra spare parts used there with the subject vehicle. But having previous experience the complainant at first wanted to test vehicle for some days before paying any extra amount. The vehicle again showed same problems after few days and being frustrated due to the unsuccessful repairing service of Op 2 the complainant took his vehicle to OP1 where upon the OP1 examined the vehicle and offered repetition of some Engine work of the vehicle for cost around Rs.4000/- .The Op 1 further offered the change of a Tyre and some minor outside work for a cost around Rs.2000/- and assured that, after the expenditure of around Rs.6000/-, the vehicle will be all Ok and there will be no problem up to 3-4 years. Trusting upon the words of OP1 the complainant took the service of the OP1 but after completing the work, OP1 produced a bill Rs.7654/- which was far more then that he told earlier after general bargaining Op1 agreed to a round figure of Rs.7000/- which was paid by the complainant via UPI on 18.02.2023.After bringing the vehicle home, complainant noticed that, some engine oil was leaking. Accordingly, complainant visited to the garage of OP1 with the subject vehicle again, where the leakage problem was shorted out but after few days, again stoppage problem started to occur with the subject vehicle for which the complainant again took the vehicle to op1 for necessary repairing. After some minor service, Vehicle was handed over to the complainant with the assurance that, problem will not occur again .But, vehicle is still not in smooth functioning and many times it was stopping suddenly while on road. On being reported the op1 asked the complainant to bring the vehicle and did some minor service vehicle was being released to the complainant. Between 18.02.2023 to Octbor-2023, complainant has taken his vehicle many times to the op1 for repairing .On 24.10.2023 (Dasahara Day) while the complainant returning from Khariar to Borda with family, the vehicle was completely stopped midway. Both kick & self stopped working complainant had to takes help form an unknown gentleman to lift his family and he dragged the vehicle manually up to 2-3 kms. There after an Auto was hired to tow the vehicle up to Complainants residence. But unfortunately in the process of towing the vehicle, scooter was got slept and complaint faced an accident also. After some recovery from the accidental illness, the complainant informed the op1 who asked to bring the vehicle to his garage but it was not possible as the Vehicle was not in a condition of stating. Being advised by the OP1 complainant took the help of a local mechanic who managed to start the vehicle and again  brought to the op1 on 09.11.2023.On 20.11.2023 complainant visited to op1 and received the vehicle after a payment of Rs.950/- . Here also op1 assured that, no stoppage problem will take place further but just after a run of 7-8 kms , the vehicle was stopped again with heavy sound form Engine .The break down happened near Smart Park, Bhawanipatna, Complainant called the op 1 upon which the op1  sent his staff and towed the vehicle to the his Garage, On the next day i.e. 21.11.2023, op1 informed the complainant that, vehicle is in need of  Engine works again and it will cost another Rs.6500/- . This created heavy disappointment and agony to the complainant. The complainant has already spent around Rs.18,000/- on the vehicle and op1  again asked for another Rs.6500/- . Complainant felt it unacceptable and hence, decided to take legal action against defective service & unfair trade practice form the side of the Ops .Before moving to this commission, the complainant served a legal notice to the ops asking either to rectify his services and release the vehicle with assurance of no further problems or refund the amount spent at his garage. But it was not respond. It is further alleged that, on being asked the op 2 did not provide any bill saying that, he has no bill book. The Op 1 furnished a bill of Rs.7654/- but the same was not of his establishment rather of another shop namely Anand Auto Care. The bill includes the purchase of some spare parts amounting to Rs.6014/- and service charges of op1 is written roughly on the back side of the bill is unfair & illegal. Op1 also admitted that he has no Bill book. Said Bill furnished by the op 1 is also doubtful and not looks authenticated. Ops also did not provide any bill when complainant changed a battery at their shop on 22.05.2023 for Rs.1450/-, neither issue a bill against a payment of Rs.950/- on 20.12.2023. It is alleged that, the services provided by both the Ops are not satisfactory for which complaint not only have faced financial losses but also have gone through heavy physical & mental harassment. Hence, this complaint.
4. On being notice, the O.P No.1 appeared through their Ld. advocate Sri S.K.Panda so also Op 2 appeared through their Ld. advocate Sri . A.Mishra. Both the Ops failed to filed their written version within the stipulated period of time as prescribed under C.P.Act 2019 .The written version filed beyond  stipulated period of time as prescribed under C.P.Act2019  is not acceptable in view of order dt. 4.3.2020 passed by the Honorable Supreme Court of India in New India Assurance Company Ltd vrs Hilly Multi Purposes Cold Storage Lt. As such the contents of complainant petition remains unchallenged. However, the ops are allowed to take part in the hearing & argument of this case without written version.  
5. Heard. Perused the material on record. We have our thoughtful consideration over the submission of rival parties.
6. During hearing of this case the Op 1 admitted the facts that, he is a motor cycle mechanic, but denied that subject motor cycle/ scooter of the complainant ever got repaired by the op1 at any point of time and asked the complainant   strict proof with supported documents like job card, service charges receipt and submits that mere quoting the payment of Rs.7,000/- through UPI method is not sufficient to show that op1 has repaired the defective scooter of the complainant. The Op 1 further submits that,  multiple handling by many mechanical cannot be solely attributed any negligence & deficient service of OP1  and further submits that,  no mechanics can give any guarantee of its perfect condition of a very old & quite long run vehicle and certainly, condition of the vehicle depends upon its use, road condition and driving skill . Complainant admits that, many parts were replaced in the vehicle which suggests that, the vehicle is having inherent defects otherwise it would not have seen repeated troubles in spite of its repairing. In such situation, Auto Engineer who is expert can give exact cause of the trouble and not the ops like mechanic who are not trained but, acquired their skill by their profession and experiences. The Op 1 denied received of payment of Rs.7000/- under UPI towards repair charges of the subject motor cycle so also denied the complaint allegation in all its materials particular and argued to dismissed this complaint with cost as there is no cause of action arose for this complaint.
7. The op2, found absent during hearing of the case as such set ex –party.
8. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
9. The complainant, to substantiate his contention has filed the following self attested documents:- (i) bill dt.18/02/2023        for  an amount of Rs. 6014/ from Anand Auto care ,Bhawanipatna, Copy of acknowledge of UPI payment OF Rs.7,000/-to Ramasis Thakur from the complainant Deepak Kumar Dube ,copy of legal notice issued to Sri.Ramasis Thakur and copy of RP consignment vide RO107834364IN showing its delivered to the addressee on 28/11/2023.
10. The complainant has proved the contents of the complaint petition by filling additional evidence on affidavit as prescribed under C.P.Act 2019 contention of which are corroborating with the complaint averment of complain petition .No rebuttable evidence is filed by the ops though sufficient opportunities is availed. Thus the allegations against the ops remain un-rebutted.
11. It is found that, both the ops are motor mechanic is not disputed.  The complainant has proved on affidavit that, he has availed services of both the Ops for repairing of his motor cycle time & again paying service charges as demanded by the ops so also paid for spare parts used for repairing of   subject vehicle but no bill is issued with this respect to the complainant is certainly an unfair practice there on the part of the Ops.
12. It is further proved on affidavit that, the complainant suffered a lot of problems due to negligent & the deficient service of ops for repairing of the subject vehicle. It appears that, the complainant has spent a substantial amount for repairing of the subject vehicle time & again with an expectation to have the effective benefit of use of it but no avail .Subject vehicle is not worthy of running on the road in spite of repairing by both the Ops time & again clearly proved negligence & faulty repairing their on the part of the Ops which certainly caused financial loss & mental agony to the complainant cannot be denied. Accordingly,  the complainant is entitled to be compensated by the Ops . However ,this Commission is  of the opinion that, the complainant is not entitled to get return of money paid to the ops towards repairing of the vehicle as complainant has availed service from the Ops.  Mental agony & harassment suffered due to deficient service of the Ops may not be calculated in terms of money. However, an award of monetary compensation of Rs.10,000/- may heal the injuries  to some extent but the claim of the complainant is found at higher side. Hence, this complaint  is allowed in part on contest against the op1 & ex-party against the op2 with the following directions:-

ORDER

Both the Opposite Parties are hereby directed to provide proper service to the complainant while repairing of the subject vehicle and to issue proper bill towards money received from the complainant for repairing or purchasing of spare parts. The Ops are further directed to pay monetary compensation of Rs.5, 000/- each to the complainant towards mental agony & harassment suffered due to their negligence & deficient service and further directed to pay Rs.2,000/- each towards litigation cost to the complainant . It is further directed the ops to comply the aforesaid order within four weeks from the date of receipt of a copy of this order falling which the Ops will be jointly liable to prosecute under   penal provision of Section 72 of C.P.Act 2019.

            Dictated and corrected by me.

                President

                            I   agree.

                                           Member   

         Pronounced, in the open Commission today on this 18  July 2024 under the seal and signature of this Commission. The pending application if any is also stands disposed off accordingly. Judgment could not be pronounced on time in want of quorum. 

The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order received from this Commission .Ordered accordingly.