BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 19th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.200/2013
(Admitted on 23.7.2013)
Chidananda Nayak,
S/o Hariyanna Nayak,
Aged about 54 years,
R/at Kumbakodu House,
Aletty Village,
Sullia Taluk, D.K.
….. COMPLAINANT
(Advocate for the Complainant: Sri. SD)
VERSUS
Service manager,
EXCELSIOR NISSAN,
Show Room, Derebail,
Konchady, Mangalore.
…....OPPOSITE PARTY
(Advocate for the Opposite Party: Sri. SKU)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to refund Rs.1,12,100/ with 12% interest from 14.2.2013 till payment to the complainant, to pay Rs.20,000/ compensation, to pay Rs.10,000/ as expenses and such other reliefs.
2. In support of the above complaint the complainant Mr. Chidananda Nayak, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C11 as detailed in the annexure here below. K. Govinda Nayak, (CW2) also filed affidavit evidence answered the interrogatories served on him. On behalf of the opposite party Mr. Rajaram, (RW1) Service Manager, also filed affidavit evidence answered the interrogatories served on him.
The brief facts of the case are as under:
On perusal of the complaint and the version of the parties, we understood the dispute as, the complainant have given his vehicle to attend the repair work of an accident to the vehicle. The complainant alleges that his vehicle met with an accident and he left the vehicle for repair with the opposite party and the opposite party promised the delivery after repair within 15 days i.e. on 26.12.2012 but failed to deliver on the date promised. The complainant incurred additional expenses for hiring the vehicle for his trips hence deficiency in service. The opposite party contended that the delay in repair and delivery of the vehicle due to non-availability of the spares and to arrange for insurance formalities as the complainant informed he is claiming the expenses from the insurance company. Also as per terms & conditions of the repair service for delay in repair the complainant cannot hold liable the opposite party and hence the opposite party is not liable for deficiency in service. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION
On considering the evidence on record and the documents before us, the admitted facts are, the complainant left his vehicle for repair with the opposite party and there is delay in delivery of the vehicle after repair. The opposite party denies the amount spent by the complainant on alternative conveyance for his business trips and opposite party liability in paying it and opposite party also denies the deficiency in service from their part. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether the complainant is the consumer under the consumer protection Act 1986?
- Whether opposite party proves there is no deficiency in service on their part?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have examined the evidence on record and the documents produced by the complainant. The opposite party not produced any documents. We have considered the notes of arguments filed by the complainant and heard the counsels’ submissions and answered the above points as under.
- In the affirmative.
- In the negative.
- In the affirmative in part.
- As per delivered order.
REASON
POINT NO 1: The complainant produced the job card No 935 dated 11.12.2012 for having given his vehicle for repair with the opposite party. The opposite party not denied the vehicle given for repair with them. Hence opposite party is the provider of service and the complainant is the hirer of service hence we answered the point no 1 in the affirmative.
POINT NO 2: The complainant specific case is there is delay in delivery of the vehicle as per promise and the complainant incurred additional expenses for his traveling. The opposite party contends the delay is due to non availability of the spare parts and to follow the insurance formalities. There is also agreed condition in the job card to immune the opposite party from the liability if the delay is caused in delivery of the vehicle. Now in our opinion it is the liability of the opposite party to prove they are not liable for deficiency in service hence the point no 2 taken for consideration.
2. The complainant has given his car for repair as per EX C 1 on 11.02.2012 and the delivery date & time specifically (not probable) given on 28.12.2012 with clear terms. The vehicle was delivered to the complainant on 16.02.2013 which is not in dispute. There is delay of 49 days from the promised date. The contention raised by the opposite party for the delay is, the spare parts has to come from Chennai which was delayed, and due to delay in insurance formalities. The opposite party stated the complainant knew the non availability of spare parts, and the complainant himself requested for the complying of the insurance formalities. Without insurance clearance the repair cannot be proceeded with hence, there is delay in delivery of the vehicle. The opposite party also advocates the terms & conditions of the job card that the opposite party is not liable for the delay.
3. We have carefully gone through the conditions in the job card. The opposite party claims non-liability under condition No 3. It is a request from the party left the vehicle for repair that, the opposite party has to adhere to delivery schedule and holding them not responsible for delay in delivery or repair or procurement for spare parts for reasons beyond opposite party control. The opposite party has to prove the reason is beyond their control. The knowledge of the complainant about the non-availability of spare parts at the time of leaving vehicle does not matter much. The crux is whether the time taken in repairing the vehicle from 11.12.2012 till 16.02.2013 is reasonable. It is pertinent to note that the opposite party knew about the non availability of spare parts and the insurance formalities to be observed before giving the date of delivery. It is presumed that before giving the date of delivery these facts are considered. Hence the argument in this line is not acceptable.
4. The opposite party has to prove even as per condition No 3 of the EX C 1 that the delay is due to the reasons beyond their control. In this regard the opposite party has not produced any documents pertaining to the spare parts of ordering to, or receiving from Chennai to show that the late arrival of spare parts resulted in delayed delivery. Also the opposite party not produced any documents or narrated any date of the insurance survivors visit, the giving of estimate to them and the approval for go ahead with the repair work. Unless the opposite party produced the cogent evidence to show the delay is caused due to reasons beyond their control, we cannot accept the opposite party contentions and we inclined to hold the delay of 49 days from the date of promise is not reasonable and the opposite party is liable for the delay in service. The opposite party failed in proving their case and we answered the point no 2 in the negative.
POINT NO 3: As per above discussions we hold the opposite party not proved the delay is for the reason beyond their control and is liable for the deficiency in service, the complainant is entitled for the relief. The complainant prayed for an amount of Rs. 1,12,100/ towards amount spent for alternative conveyance. The complainant produced the EX C 3 to EX C 6 four receipts claiming the amount has been paid. These are the Xerox copies of the bills. The opposite party objected for marking and later it is marked subject to producing of the originals in spite of a suggestion in the interrogatories posed by the opposite party terming the documents as concocted. The complainant not produced the originals and hence we have not considered these documents. Also as per cw 2 examination these documents signed by one Manjula P who was the cashier. But the signature of the said Manjula P in EX-C 3 is not matching with the signatures in EX C 4 to EX C 6. Add to our doubt about the genuine nature of this these receipts, does not contain with regard to from date and to date with regard to days rent and starting km reading and the ending km reading in kilometer based rent payments. Hence the receipt for claim not admitted. However there is delay in delivery and we presume the complainant had spent for alternative conveyance and we consider an amount of Rs. 10,000/ as reasonable and Rs. 10,000/ as compensation for negligent in repairing in time. The complainant also entitled for an amount of Rs. 8,000/ towards cost.
POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint allowed in part. The opposite party shall pay the complainant an amount of Rs. 20,000/ (Rupees Twenty thousand only) towards travelling expenses and compensation together and an amount of Rs. 8,000/(Rupees Eight thousand only) towards cost of the complaint within 30 days from the date of copy of this order received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly typed by Member, revised and pronounced in the open court on this the 19th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 : Mr. Chidananda Nayak
CW2: K. Govinda Nayak
Documents marked on behalf of the Complainant:
Ex.C1: 11.12.2012: Copy of job card no.935 issued by the Opposite Party.
Ex.C2: 16.2.2013: Copy of the cash receipts.
Ex.C3: 31.12.2012: Receipts issued by car enterprises.
Ex.C4: 21.1.2013: Receipts issued by car enterprises.
Ex.C5: 14.2.2013: Receipts issued by car enterprises.
Ex.C6: 3.2.2013: Receipts issued by car enterprises
Ex.C7: 28.12.2012: Gmail sent by complainant.
Ex.C8: 14.1.2013: Reply sent by Opposite Party.
Ex.C9: 2.2.2013: G-mails sent by the complainant.
Ex.C10: 22.1.2013: O/c of the regd lawyers notice.
Ex.C11: 14.2.2013: Reply of the Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1: Mr. Rajaram, Service Manager.
Documents marked on behalf of the Opposite Party:
Nil
Dated: 19.5.2017 MEMBER
