STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

Sh.Gurcharan Singh, Proprietor Gurcharan Autos, 96, New Motor Market, Near Vishwakarama Mandir, Manimajra, UT, Chandigarh.

                                                                ---Appellant

                                Vs.

Sh.Lalit Ahuja son of Sh.Ram Chander Ahuja, resident of House No.310, Green Valley near State Bank of Patiala, Village Sarangpur, UT, Chandigarh.

Presently residing at H.No.52, C/o B.S.Dhiman Backside Dhanna Studio, Village Sarangpur, UT.

                                                ---Respondent

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT

                MRS. NEENA SANDHU, MEMBER

Argued By:  Sh.Ashok Asuri, Advocate for the appellant.

                   Respondent in person.

                                ----

MRS. NEENA SANDHU, MEMBER

1.                    This appeal is directed against the order dated 12.12.2011 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant (now respondent) as under:

        “In the light of the above observations, the present complaint succeeds and we direct the OP to refund the amount of Rs.6,000/- along with interest @9% p.a. w.e.f. 20.12.2009, till it is actually paid, along with Rs.5,000/- as costs of litigation.

        The above said order shall be complied within 30 days of its receipt; thereafter, OP shall be liable for an interest @18% per annum on the sum of Rs.6,000/- except the costs of litigation”.  

2.                    The facts, in brief, are that the complainant being a physically handicapped person having lost his right leg, in a road accident wanted to buy a car, for himself, which could be driven by a person with his type of physical disability. Though he visited various Auto Dealers, yet he  could not get any vehicle manufactured, by any Company, as per his personal requirements. It was stated that, at the same time, he explored the possibility of an alternative, so that he could be able to drive the normal vehicle, by controlling the accelerator, as well as the brake, with his hands instead of his right foot.       The complainant came to know that the Opposite Party could make such provision, in a normal car. It was further stated that the Opposite Party, assured the complainant that he could provide such facility, as he had fitted the same, in so many cars, and the same were running to the satisfaction of their owners. Thereafter, the complainant purchased a brand new Alto Car bearing Regd. No.CH01-AA-2417 in the name of his wife. It was further stated that on 20.12.2009 at about 11 P.M., the Opposite Party fitted the alleged device, in the car of the complainant. It was further stated that the complainant had a trial of the vehicle, and found that he could very comfortably drive the same with the help of the device, without using his right leg and foot. The Opposite Party charged a sum of Rs.6,000/- from the complainant. However, no bill or receipt for the same was issued by him. It was further stated that the device fitted by the Opposite Party, worked smoothly, for about five months, and, thereafter, it started giving trouble. It was further stated that the main defect, with the device, was that the control wire connected with it, started breaking time and again. It was further stated that the Opposite Party had since replaced the same for as many as six times, and charged Rs.100/- each time, from the complainant, but still the functioning was not satisfactory. It was further stated that on two different occasions, the complainant visited Anandpur Sahib and Sangrur with his family, and due to the untimely breakage of wire, had to suffer and could only drive the vehicle with great difficulty. It was further stated that the complainant served the Opposite Party, with a legal notice dated 7.4.2011 to rectify the defect, in the device but to no effect. It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In their written reply, the Opposite Party,  took up the preliminary objection that the car, in question, in which the complainant had got the device allegedly installed was in the name of his wife and hence, in the present case, the complainant did not fall under the definition of consumer. It was further stated that the device, in question, was got allegedly installed by the complainant himself, which was not permitted by any authorized manufacturer of the vehicles and the same was wrongful act and conduct on his part. On merits, it was stated that as the complainant himself was not able to locate a manufacturer, which could provide a device for accelerator control system, and brake operation with hands, and having got installed the alleged device on his own which was not permitted by any authorized vehicle manufacturer, had faulted with the mechanism. It was further stated that the Opposite Party is running an auto shop for repair works of motor vehicles, and had no work and equipments for installing such kind of devices. It was denied that the complainant ever visited him, for the installation of the alleged device, because the same would have required welding work for which the Opposite Party  had no facility.  It was admitted that on 1.4.2011, the complainant had visited his premises for the replacement of accelerator wire connected with the alleged device, and the device in question already existed in the car. It was further stated that the Opposite Party advised the complainant not to use the said arrangement, as the accelerator wire, was not meant to be used for such purpose.  It was further stated that, the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

4.                    The Parties led evidence, in support of their case.

5.                    After hearing the Counsel for the parties, and on going through the evidence and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

6.                    Feeling aggrieved, the instant appeal, has been filed by the Appellant/Opposite Party.

7.                    We have heard the Counsel for the appellant, the respondent in person, and, have gone through the evidence and record of the case, carefully. 

8.                    Admittedly, the car, in question, was purchased in the name of the wife of the respondent/complainant, which was not meant to be driven by a handicapped person.  As per the averment of the respondent/complainant, he being a physically handicapped person, took the above said car, to the appellant/Opposite Party, for installing a device, so that, he could be able to drive the same and paid Rs.6,000/- as installation charges.  On the other hand, the Counsel for the appellant/Opposite Party categorically denied this fact, on the ground, that the device, in question, was not installed by appellant/Opposite Party as it was not permitted by any authorized manufacturer of the vehicle and legally he (appellant/Opposite Party) was not competent to install such device as alleged by the respondent/complainant.   He further submitted that since the appellant/Opposite Party had not installed the device, the question of receiving Rs.6000/- as installation charges by him did not not arise at all.  Moreover, the onus to prove the factum of payment of Rs.6000/- was solely upon the respondent/complainant, whereas, he failed to adduce any documentary evidence, in the shape of invoice/bill.  Considering the fact that the respondent/complainant had failed to place, on record, any credible evidence, in the shape of bill/invoice regarding the payment of Rs.6000/-, it could not be concluded that he had paid the said amount as installation charges of the device to the appellant/Opposite Party. Therefore, in the absence of tangible evidence, it is difficult to presume that the device, in question, was installed, in the car, by the appellant/Opposite Party.  Moreover, no reliance could be placed, on the affidavits filed by Smt.Jagriti (wife of the respondent/complainant) and Sh.Rahul Singh, neighbour of the respondent/complainant regarding the payment of Rs.6000/-, because the same were their self serving statements, which were not corroborated by any authentic document.   In our considered view, the District Forum failed to take into consideration, the aforesaid aspects of case while allowing the complaint. Had the District Forum, appreciated the facts, circumstances and evidence, on record, in its proper perspective, it would not have fallen into an error, in holding that there was deficiency in rendering service, or indulgence into unfair trade practice, on the part of the appellant/Opposite Party. The order of the District Forum, thus, being perverse and illegal, is liable to be set aside.

9.                    For the reasons recorded above, the appeal is accepted, with no order as to costs, and the order of the District Forum is set aside.

10.                 Certified Copies of this order be sent to the parties, free of charge.

11.                 The file be consigned to Record Room, after completion.

Pronounced.                                                                          Sd/-

26.03.2012                                        [JUSTICE SHAM SUNDER]

                                                                                 PRESIDENT                                                                          

Sd/-                

                                                     [NEENA SANDHU]

                                                                                                MEMBER

APPEAL No.8   OF    2012

Argued By:      Sh.Ashok Asuri, Advocate for the appellant.

                           Respondent in person.

                                                -.-

                        After the case was reserved, the respondent moved an application submitting, therein, that he had changed his address and any kind of correspondence may be done at his changed address.

                        In view of the circumstances, explained in the application, the same is allowed. The Reader of this Commission is directed to make entries regarding the change of address of the respondent, wherever needed.

                        Vide our detailed order of the even date recorded separately, the appeal is accepted, with no order as to costs, and the order of the District Forum is set side.

26 .03.2012                           (MEMBER)               (PRESIDENT)