PRESENT :
SRI ASISH DEB, PRESIDENT.
SMT. CHANDRIMA CHAKRABORTY, MEMBER
SRI SAURAV CHANDRA,MEMBER
JUDGEMENT
DATE OF DELIVERY: The th day of January, 2021.
By : SMT. CHANDRIMA CHAKRABORTY, MEMBER
This complaint case has a background which requires to be stated for the sake of clear decision. This case was ordered finally ex parte by Smt. Bandana Roy Ld. Ex. President of this forum by which the complaint case was decreed in favour of the complainant. The Op preferred Appeal against the said judgment and order before the Hon’ble State Commission vide FA No. A/499/201 wherein the impugned order of this Ld. Forum had been set aside and the Hon’ble State Commission was pleased to remand back the complaint petition with a direction to present the complaint before this Ld. Forum after changing the cause title of the same as it was the ground of Appeal that due notice was not served upon the OP in proper address and the Opdid not get notice before adjudication of the Complaint case before this Forum. The complainant filed amended complaint and copy of the same was served upon the OP. The OP appeared to contest the case but subsequently the OP again withdrew himself from this case and the case was heard ex parte and taken up for final order ex parte.
Facts of the complaint case in a nutshell is that the complainant is the registered owner of a vehicle being No. WB 30N-5889 having its chassis No. MAIYG2HUXD2C38058 and Engine No. HUD6C16141. The vehicle was in a breakdown condition and on 23.03.2017 it was given to the Opposite party Garage for required repair works. The OP sent a mobile massage to the complainant that the said car would be delivered on 29.03.2017 after repair and the estimated cost was Rs. 12,500/-.On the fixed date i.e on 29.03.2017 the complainant came to the garage of the Op for taking delivery of the car after its repair works. But astonishingly he found that the car was not repaired and it was lying in the garage in most careless condition. On that date the Op promised that the car would be delivered within 2/3 days. On 04.04.2017 the complainant had been to the garage of the OP to take delivery but found that it was not repaired, rather lying in the OP garage carelessly but the car was not repaired.
In the above premises the complainant has prayed before this Commission for a direction upon the OP to deliver the car after its required repair works and compensation of Rs. 50,000/- for mental agony as well as for accommodative loss in absence of the said car for such long time as well Rs. 10,000/- as litigation cost.
Points for Determination :-
- Is the Complaint case maintainable in its present form?
- Is the Complainant entitled get the reliefs as prayed for, If so to what extent.?
DECISION WITH REASONS
Both the points being inter related to each other are taken up together for discussion for sake brevity and to avoid repetition.
We have given thoughtful consideration to the facts and circumstances of the case reflected in the complainant on affidavit and the examination in chief filed by the complaint. It appears that complainant is a consumer and the OP promised to act as a service provider. So the case is maintainable in its present form.
Now the question is whether the complainant is entitled to get the award as has been prayed for.
In order to prove his case the complainant has filed the certificate of registration of the car in question vide No. WB 30 N 5889, the complainant also files the copy of text massage sent by the OP - Star India Agency Ltd. to the complainant wherefrom it appears that the OP stated the estimated cost of Rs. 12,500/-and the date of delivery on 29th March, 2017 in reference to Repair Order No. R017E003748 dated 24th March. The registration certificate shows that tax had been paid up to 20th May, 2018.
The case of the complainant is that the car has not been repaired nor delivered to the complainant as per the said text massage and it is lying in a most careless condition in the garage of the OP for long time. The complainant has filed affidavit in chief wherefrom too the complainant has elaborately stated his agony at the behavior of the OP.
During argument Ld. Advocate for the complainant has cited and referred a ruling reported in 2016 (2) CPR 253 (NC) (Ram kumar Dewangan Vs. Manager Pal Body Works), decided on 15.03.2016. In said judgment it was held that motor garage cannot retain vehicle for one year in the name of repair. The Ld. Advocate for the complainant also argued that during this long period for about 4 years, the complainant had to hire a car for his movement and domestic purpose. The OP may be directed to compensate on that score also.
In this instant complaint case the said cited judgment is fit to come to a decision.
The vehicle of the complainant is undoubtedly lying in the garage of the OP from 29.03.2017. The complainant is debarred from using his own car for his purpose or so so
This Forum further held that it was the responsibility of the OP to deliver the car to the complainant within the stipulated time when admittedly it was left there for repair works. So the Op was deficient in service on the part of the OP.
In the above circumstances, this Forum finds it a fit case to direct the Op Garage to deliver the car in running condition after its thorough repair works and compensate the complainant for his mental agony and inconvenience in absence of the car.
Both the points are answered accordingly.
Hence, it is
O R D E R E D
The complaint case No 425 of 2017 be and the same is decreed ex parte against the OP Star India Agency. The proprietor of the said Garage is directed to deliver the car in question to the complainant within a fortnightin running condition after its required repairworks and issue fit certificate.
The Op is further directed to pay a sum of Rs. 50,000/- to the complainant towards mental agony, charge for hiring a rental car for his use during this long period and Rs. 5000/- as litigation cost.
The complainant will be at liberty to put this order into execution if the OP fails to comply this order within the stipulated time and in that event the OP shall pay a sum of Rs. 100/- per diem to the complainant till final satisfaction of the order.
