IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 16th day of July 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri. M.Praveen Kumar,Bsc, LL.B ,Member
CC.No.158/16
Rajan : Complainant
S/o Narayanan
Subhananda matam, Jawahar Junction
J.N.R House No.139, Pattathanam Cherry
Vadakkevila Village, Kollam
[By Adv.N.Haridas]
V/s
Sudarsana Babu@ Babu : Opposite Party
Patch worker, Near Old Beverages Corporation
Prathibha Junction, Kadappakkada P.O
Kollam
[By Adv.N.Nalinakshan]
ORDER
E.M.MUHAMMED IBRAHIM , President
This is a consumer complaint filed Under Section 12 of the Consumer Protection Act against the opposite party seeking compensation to the tune of Rs.1,18,758/- to make amend the loss caused to the complainant due to the improper repair and maintenance works of the two autorickshaws carried out by the opposite party.
(2) The averments in the complaint in short are as follows.
On 16.11.2014 the complainant entrusted his autorickshaw bearing No.KL 24 B 579 for carrying out the patch work of the said autorickshaw for an agreed amount of Rs.2000/- by agreeing to repair and patch work of the autorickshaw. The opposite party issued a receipt by agreeing to carry out the work within 3 days. But the opposite party without repairing autorickshaw kept the same in the premises of his workshop in open air for about one month till
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11.12.14. However the opposite party carried out the patch work and the complainant taken the vehicle from his work shop in an unsatisfactory condition
and produced the autorickshaw before the vehicle inspector to obtain fitness certificate. But the vehicle inspector has refused to issue fitness certificate by stating that repair and maintenance work done in autorickshaw are not satisfactory. The body of the autorickshaw was not at all in the same level, rust affected on the front glass rubber beading. Immediately he intimated the fact to the opposite party and asked him to remove the rust and clear the remaining works. But the opposite party evaded from the request and directed the complainant to wash the vehicle by using surf soap powder and there by ridiculed the complainant. Thereafter the complainant taken the autorickshaw to another work shop functioning at Manichithodu, Kollam and got repaired the vehicle and removed the rubber beading. As the complainant has kept the vehicle in open air exposing to sun and air the autorickshaw damaged and the complainant was forced to remove front glass rubber beading and got repaired the vehicle again so as to obtain fitness certificate. As the vehicle was not repaired in time he could not obtain fitness certificate of the vehicle in proper time and hence he has to pay fine Rs.200/- at the Regional Transport Office. As he could not ply his autorickshaw for 1 month he sustained loss of Rs.200/- per day for 30 days.
(3) In the mean while on 20.11.14 the complainant entrusted another autorickshaw bearing No. KL.2Y 1651 to the opposite party to carry out the complete patch work and fitting for an amount of Rs.5100/- and also paid Rs.2050/- as advance. By receiving the amount the opposite party has issued a bill. At the time of entrustment of the vehicle the opposite party has agreed to repair the vehicle within 3 days. But even after 10 month the complainant has not carried out ¼ the of the agreed work and has also kept the autorickshaw inadvertently in the compound in open air. The opposite party has dismantled
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the headlight of the autorickshaw and there by caused an un lawful loss of Rs.285/- to the complainant. Apart from that the opposite party has not fitted the materials such as accelerated cable set worth Rs. 973/-, speedometer cable set, front break drum made up of aluminium alloy. As the opposite party insisted to purchase and supply the required materials to complete the repair work of the autorickshaw he purchased and supplied the required materials. But opposite party has not returned the above autorickshaw till date. Though he requested to return the autorickshaw directly and through mediators the opposite party evaded from returning the vehicle by alleging lame excuses and also used to behave in an indecent manner to the complainant. Now the autorickshaw requires more repair work than on the date when he entrusted the same to the opposite party. As the complainant could not use the vehicle for last 1 ½ years due to the non delivery of the same after repairing the same as agreed the complainant has sustained un lawful loss of Rs.1,08000/-. According to the complainant the above act of the opposite party amounts to deficiency in service and unfair trade practice and therefore the complainant is entitled to get Rs.1,18,758/- as compensation. But he has been limiting the compensation to Rs.90,000/- for the sake of the case. The complainant further pray to issue direction to the opposite party to return the autorickshaw bearing No.KL2Y 1561 to him.
(4) The opposite party resisted the case by filing a detailed version raising the following contentions.
The complaint is not maintainable either in law or on facts. However the opposite party would admit that the two autorickshaws bearing No.KL 24 B 579 and KL2Y 1651 were entrusted to the opposite party for getting the patch work of those vehicle done. According to the opposite party the above two autorickshaw were acquired by the complainant in auction sale conducted by the police or excise officials. As those two autorickshaw’s in the custody of
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Police/Excise officials for a very long time the same were in a dilapidated condition and absolutely not fit for use when those autorickshaw’s were brought to carry out the patch work. The opposite party would further content that the patch work of the 1st autorickshaw was completed within the prescribed time and the complainant took delivery of the same on 19.11.14. Since the complainant was highly satisfied with the patch work done by the opposite party he brought the 2nd autorickshaw bearing Register No.KL2Y 1651 to the opposite party on 20.11.14. He would further content that removal of rust, painting fitting of glass etc. are not part of the patch work. If at all the complainant has sustained any loss it was due to his own fault and the opposite party is not liable for the same. The patch work of the 2nd autorickshaw was also completed in time. But the complainant never turned up with the balance amount of Rs.3050/- to take delivery of the autorickshaw. In spite of his repeated reminders the complainant remained without responding. Eventually the opposite party filed a complaint before the East Police Station against the complainant to remove the autorickshaw after paying the balance amount for the patch work carried out by him. But the complainant informed the police that would approach the court and he would take delivery of the autorickshaw. The complainant deliberately evaded from taking delivery of the autorickshaw because he required enormous sum to pay painting, repair work payment of tax dues, insurance, permit, etc. so he abandoned the autorickshaw at the work shop of the opposite party and subsequently filed the present complaint raising false and frivolous allegations. The opposite party has no legal liability to pay the amount sought for by the complaint nor the complainant is entitled to get the same. The opposite party further prays to dismiss the complaint with his costs and compensatory costs.
(5)In view of the above pleadings the points that arise for consideration are:-
- .
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
- Whether the complainant is entitled to get an order directing the opposite party to return the autorickshaw bearing No.KL 24 1651 as prayed for?
- Whether the complainant is entitled to get compensation from the opposite party as sought for in the complaint?
- Reliefs and costs.
(6) Evidence on the side of the complainant consists of oral evidence of PW1 and Ext.P1 to P8 documents. Opposite party has not adduced any evidence either oral or documentary.
(7) Heard both sides and perused the records.
Point No.1 to 3
(8) For avoiding repetition of discussion of materials these three points are considered together. The following are the admitted facts in this case. The opposite party is the owner of the work shop where in the autorickshaw’s were getting repaired. The two autorickshaw’s bearing No.KL 24 B 579 and KL2 Y 1651 were entrusted to the opposite party on different dates for getting the patch works of those vehicles done. According to the complainant he entrusted the 1st autorickshaw bearing No.KL 24 B 579 for getting the repair work done at the work shop of the opposite party on 16.11.14 and the opposite party has agreed to carry out the patch work and return the same within 3 days. However the opposite party has not carried out any repairing work and kept the same in open air for about one month till 11/12/14 and thereafter returned the same to the complainant without fully carrying out the patch works. The patch work carried out by the opposite party was not in a satisfactory condition and when the autorickshaw was produced before the MVI for obtaining fitness certificate it was found that the repair and
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maintenance work carried out by the opposite party was not satisfactory and therefore the RTO has not issued the fitness certificate. Immediately he intimated the fact to the opposite party and asked him to undo the defects in the patch work. But the opposite party evaded from carrying out the remaining work and directed the complainant to wash off the vehicle by using surf powder and thereby ridiculed the complainant.
(9)The opposite party would deny the above allegations and would content that when the 1st autorickshaw was brought for patch work it was in a dilapidated condition and absolutely unfit for use. However he completed the patch work on the autorickshaw within the stipulated time and delivered the same on 19.11.14 itself and the condition of the vehicle after carrying out the patch work was highly satisfactory to the complainant and therefore the complainant brought the 2nd autorickshaw for his work shop for carrying out the patch work. However he would content that removal of rust, painting, fitting of glass etc. are not part of the patch work.
(10) The complainant himself has been examined as PW1. He has re-iterated the averments in the complainant in chief examination. According to PW1 he entrusted the 1st autorickshaw bearing No.KL 2-4B-579 to the opposite party on 16.11.14 and the opposite party has kept the vehicle till 15.12.14 in open air compound and returned the same without properly doing the patch work. However on 15.12.14 he took the said autorickshaw and produced before the vehicle inspector for getting the fitness certificate. But as the patch work done by the opposite party was not satisfactory , the vehicle inspector refused to issue fitness certificate. PW1 has sworn in page No.2 middle of the proof affidavit that “ Sn hml\w fitness certificate \p thn Vehicle inspector sS ap¼n lmP-cm-¡n-b-t¸mÄ patch work sNbvX-Xnsâ A]m-I-X-bm body bv¡v Ippw Ipgnbpw levelling aäpw icn-bm-¡m¯-Xn-\mepw front glass beeding sâ `mKw Xpcp¼p ]nSn-¨n-cp-¶-Xn-\mepw BbXp icn-bm-¡n-s¡m-p-h-cmsX fitness certificate
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Xcp-hm³ \nÀÆm-l-an-söv vehicle inspector Adn-bn-¨n-«p-Å-Xm-Ip-¶p.”. Though PW1 was subjected to severe cross examination the above version deposed by PW1 remains unchallenged. The above version of PW1 is neither disputed nor denied. Hence the same remains proved.
(11)It is brought out during cross examination that the above autorickshaw was with the opposite party only till 11.12.14 and even as per the suggestion of the opposite party’s counsel to PW1is accepted it is clear that the vehicle was with the opposite party for about 26 days. In view of the above materials on record it is clear that the autorickshaw bearing No.KL 2B 579 was entrusted at the opposite party work shop on undertaking that it will be repaired and returned within 3 days and the opposite party has also received Rs.2000/- towards the repairing charge. It is also clear that the opposite party has received the repairing charge well in advance on 16.11.14 itself which is evident from Ext.P1 receipt. Even if the opposite parties case in this regard is accepted he has kept the vehicle for more than 3 weeks in his work shop in open air without getting it repaired. Though the opposite party has received the amount and returned the vehicle after about one month that to by doing the patch work in a highly unsatisfactory condition which is clear from the evidence of PW1 that Motor Vehicle Inspector has refused to issue fitness certificate due to the defects in the patch work carried out by the opposite party and he subsequently brought the vehicle in another work shop and paid Rs.350/- and carried out the remaining patch work and maintenance work and then only the MVI has issued fitness certificate. In the circumstance it is clear that there is deficiency in service on the part of the opposite party regarding the patch work done by the opposite party in the autorickshaw bearing No.KL-2B-579 as alleged by the complainant.
(12) There is also delay of more than 3 weeks in carrying out the repair and patch work and therefore the complainant has sustained heavy loss on this
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count. Therefore the complainant is also entitled to get compensation on account of the delay caused by the opposite party for carrying out the patch work of the above vehicle and also not carrying out the patch work improperly. According to PW1 as he fail to obtain fitness certificate within time he has to pay fine of Rs.200/- and the same was solely due to the reason that the opposite party has denied in carrying out the patch work and that the patch work done was not proper. However the opposite party has not produced documentary evidence to prove that he paid fine at the RT office for not obtaining fitness certificate within time. If any fine has been remitted at the RT office definitely there must be receipt to prove that aspect as contented by the counsel for the opposite side. But the complainant has not produced any such receipt to prove that he paid the fine. In view of Section 114(g) of the Indian Evidence Act adverse inference has to be drawn against the complainant and if he paid any fine there must be documentary evidence which he could be and not produced would if produced be unfavourable to the person who withholds it. In the circumstance the complainant is not entitled to get the fine he claimed to have paid.
(13) PW1 has further deposed that due to the inordinate delay in getting the work carried out by the opposite parry he has sustained a loss of Rs. 6000/- for 1 month @ Rs.200/- per day for 30 days. There is no chance of having any evidence including documentary evidence to prove the above fact which is a negative fact. However it is clear from the available materials that there was inordinate delay in getting the autorickshaw repaired by the opposite party. Hence he could not obtain fitness certificate in time. Without fitness certificate one could not ply the autorickshaw. Therfore there is every chance of not receiving any amount as the autorickshaw has not plied. The complainant would calculate Rs.6000/- as loss. Though the opposite party has denied the same. There is nothing on record to indicate that the complainant shall not
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received Rs.200/- per day. But there is no chance of plying the vehicle on all 30 days as claimed. Even according to the complainant he entrusted the vehicle to repair on the opposite party on 16.11.14 and got back only on 15.12.14. It is true that there are 30 days in getting the vehicle repaired. But even according to the complainant the opposite party promised to get it repaired within 3 days. If getting it repaired minimum 2 days time is required to get the fitness certificate. Therefore the above 5 days has to be deducted from the total 30 days. Hence the loss of income will be 200X25=5000/-. Therefore the loss on this count will be Rs.5000/- and the complainant is entitled to get the loss from the opposite party, proprietor of the work shop who caused deliberate delay in getting the patch work of the vehicle done.
(14) PW1 has further sworn in his proof affidavit that on 20.11.14 (after 4 days of entrusted the 1st vehicle) he entrusted the 2nd autorickshaw bearing No.KL2Y1651 to carry out the patch work of the same. The opposite party agreed to get the 2nd vehicle also repaired within 3 days and issued Ext.A2 receipt evidence in the receipt of Rs.2050/- as advance towards the agreed repairing charge of Rs.5100/-. However till the date of filing the complaint the opposite party has not completed the work and returned the vehicle. Though 10 and odd months have been elapsed from the date of entrusting the vehicle for repairing he has not carried the repair work but carried out only ¼ of the agreed work and he kept the autorickshaw at the open air compound. He has entrusted the vehicle for carrying out complete patch work and fitting for Rs.5100/- including price of materials. But he has only removed the plate at a distance of 1 ½ feet for which the cost would be Rs.600/- as per Government rate. It is also brought out in evidence through PW1 that the opposite party has caused to broken the head light of the autorickshaw and there by caused a loss of Rs.285/- to the complainant that he has not fitted accelerated cable set Rs.973/-, speedometer cable set and front break drum etc. According to PW1 the opposite
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party insisted to purchase and supply the materials necessary for carrying out the patch work and as he has to taken delivery of the vehicle without delay he purchase the materials and entrusted the materials necessary for carrying out the patch work to the opposite party. But till date the patch work and other repair work of the vehicle has been carried out by the opposite party and returned the same. Now the condition of the vehicle at present is worse than the condition of the same when it was entrusted for repair. PW1 has further sworn that as the opposite party has failed to return the vehicle in time after carrying out the necessary repair and maintenance work he could not ply the vehicle for about 1½ years and he has sustained a loss of Rs.200/- per day on this count. He has to purchase materials worth Rs.4500/- for getting it repaired at the present condition and as the vehicle has been kept at the open air compound it has become rusted and now huge amount is required to repair the vehicle so as to ply the same through public road.
(15)According to PW1 he has taken delivery of the vehicle by the Kilikollur Police Station as per order No.47/97 V 444/14 dated 29.10.14 he has taken delivery of the vehicle from the Kadappakkada police and as on those days the vehicle was in a running condition and there was no mechanical defect. He has driven the vehicle from the police station and brought the same to the work shop of the opposite party and entrusted the same for carrying out the patch work who failed to carry out the patch work and other repair work within the agreed period and return the same and therefore the complainant has sustained heavy loss. It is also brought out in evidence that though the complainant has caused to sent a lawyer notice dated 05.06.15 the opposite party refused to received the same and returned. Immediately after knowing the fact that the complainant has sent a lawyer notice he approached Kollam East Police station and threatened the complainant and also attempted to obtain the amount from the complainant without carrying out the work for which he filed a
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petition. Though the SI of police directed the opposite party to cause the vehicle tested by mechanic to ascertain the truthfulness of the contentions of both parties, at the police station the opposite party has failed to carry out the direction and withdrew from the police complaint. Therefore the police has closed the petition filed by the opposite party without taking any action. Pw1 has also sworn his proof affidavit that as he was originally in need of the vehicle he filed application on 1/12/14 before the RTO to transfer the vehicle in his name, change the ownership in the RC and also to obtain fitness certificate and paid necessary if at the RTO. However he has not produced any documentary evidence to prove that he paid any such fee. As the opposite party has not completed the patch work and other repair work he could not produce the vehicle before the RTO and could not proceed with the above application. In the circumstance according to PW1 there is deficiency in service on the part of the opposite party. Though PW1 was subjected the severe cross examination. Nothing materials has been brought out in evidence to discredit the above version of PW1 in the proof affidavit. The opposite party has also not adduce any evidence either documentary in the substantiate contentions. It is an admitted case that the complainant has purchased two autorickshaws from suction sale from the excise department by paying less than Rs.10000/-. It is true that he has calculated the loss of Rs.1,18,875/- and limited his claim to the compensation to the tune of Rs.90000/- for the sake of complaint. Of course the complainant has not carried out the patch work and repairing work from the above 2 vehicles after receiving the advance amount. The delay in returning 2 vehicles in inordinate and cannot be justified in any circumstance. In view of the facts and circumstance including loss alleged have been sustained by the complainant we are of the view that an amount of Rs.25000/- will be reasonable compensation ordered to be paid to the complainant by the opposite party and also a direction to return the autorickshaw after carrying out the patch work and
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repairing work agreed by the opposite party in a running condition to the complainant within 30 days from the date of receipt of copy of this order. The points answered accordingly.
Point No.4
In the result the complaint stands allowed in the following terms.
- Opposite party is directed to pay compensation to the tune of Rs.25000/- to the complainant for deficiency in service on the part of the opposite party in not carrying the patch work and other repair work of the 2 autorickshaws entrusted by the complainant.
- The opposite party is also directed to carry out the patch work and other
repair work of the autorickshaw bearing No.KL2Y 1561 and return the same to the complainant within 30 days from the date of receipt of copy of this order failing which the complainant shall pay Rs.200/- as loss likely to be caused to the complainant in not plying the autorickshaw till it is returned to the complainant.
- The opposite party is also directed to pay costs of the proceeding Rs.5000/- to the complainant.
The opposite party is directed to comply with direction (a) to (c) failing which the complainant is allowed to realise the amount as directed in the 1st and 2nd relief with interest @ 9% per annum till realisation along with costs from the opposite party and his assets.
Dictated to the Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 16th day of July 2018.
E.M.Muhammed Ibrahim:Sd/-
President
M.Praveen Kumar:Sd/-
Member
Forwarded/by Order
SENIOR SUPERINTENDENT
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INDEX
Witness Examined for the Complainant: Rajan
Documents marked for the complainant
Ext.P1 : Receipt dated16.11.14
Ext.P2 : Receipt dated 20.11.14
Ext.P3 : Sale bill dated 20.11.15
Ext.P4 : Photographs
Ext.P5 : Auction record
Ext.P6 : Tax receipt
Ext.P7 : Letter of RTO
Ext.P8 : Advocate Notice
Witnesses examined for the opposite parties: Nil
Documents marked for the opposite parties: Nil
E.M.Muhammed Ibrahim:Sd/-
President
M.Praveen Kumar:Sd/-
Member
Forwarded/by Order
SENIOR SUPERINTENDENT
