KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No.56/2017
JUDGEMENT DATED: 25.10.2024
(Against the Order in C.C.No.305/2010 of CDRC, Thrissur)
PRESENT:
HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR | : | PRESIDENT |
SRI. AJITH KUMAR D. | : | JUDICIAL MEMBER |
SRI. K.R. RADHAKRISHNAN | : | MEMBER |
APPELLANT:
| K.S. Prakash, S/o Sankarankutty, Kalappurakkal House, Vietnam Nagar, Mulakunnathukavu P.O., Thrissur |
(by Adv. P. Raj Mohan)
Vs.
RESPONDENT:
| Sudheer K.M., S/o Mani, Karyattukara House, Adat P.O., Thrissur |
JUDGEMENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
The complainant in C.C.No.305/2010 on the files of the District Consumer Disputes Redressal Commission, Thrissur (the District Commission for short) is the appellant.
2. The District Commission had dismissed the complaint. Being aggrieved by the aforesaid order, this appeal has been filed.
3. The case of the complainant in brief is that the complainant had entrusted his ambassador car bearing Registration No. KL H 8778 with the opposite party for doing patch works on an assurance that the work will be completed within two weeks. The complainant had paid Rs.7,000/-(Rupees Seven Thousand only) to the opposite party towards the charges required for the work. But the opposite party did not complete the work even after elapsing one month. When the complainant made enquiries with the opposite party, he abused the complainant and hence the complainant had taken back his vehicle from the workshop of the opposite party. The request of the complainant is to direct the opposite party to refund Rs.7,000/-(Rupees Seven Thousand only) being the amount paid to the opposite party and Rs.900/-(Rupees Nine Hundred only) as the taxi charges incurred for hiring a taxi for taking his mother to the hospital.
3. The opposite party had entered appearance and filed a written version with the following contentions: -
According to the opposite party the repair work of the complainant’s car was carried out at the adjacent room of the shop of the opposite party, one “Sajeev Motor Works”. The entrustment of the vehicle with the opposite party by the complainant was disputed. The opposite party would deny having given assurance that the work will be completed within a period of one week. The payment of Rs.7,000/-(Rupees Seven Thousand only) to the opposite party was also disputed. So also, there was no occasion for the opposite party to abuse the complainant as alleged. The complainant had entrusted his motor car with Sajeev Motor Works for effecting mechanical repair.
4. While the mechanical work was in progress, the complainant had requested the opposite party to effect the patch work at the front left portion. The patch work of the said portion was completed with the materials purchased by the complainant. The complainant had paid the amount pertaining to the work already carried out. The gear box of the car was taken out by the mechanic. Only at that point of time, rusting at the engine room had come to the notice of the complainant. So the complainant had asked the opposite party to do the patch work of the engine room. For conducting the patch work of the engine room, electrical wiring has to be shifted. Though the complainant had agreed to bring an auto-electrician, he had declined to do so. So the opposite party had engaged an auto-electrician at his expense and conducted the necessary work inside the engine room.
5. Though the complainant had agreed to pay the requisite charges to the electrician, he had refused to do so. Ultimately, the respondent had paid Rs.350/-(Rupees Three Hundred and Fifty only) to the electrician. Subsequently, the complainant had asked the opposite party to fix readymade dip platform as the original dip platform was in a damaged position. The complainant had purchased a readymade dip platform which was also fixed by the opposite party. After this work, the complainant had again requested the opposite party to effect further patch work with respect to the rubber show frame on the doors. The above work was also carried out and the requisite charges were paid by the complainant.
6. It was also requested by the complainant to complete the patch work before the completion of the repair work of the gear box by the mechanic. But the opposite party had certain personal problems as his mother was suffering with mental disorders and he was constrained to keep away from the workshop for one day. In the meantime, the complainant came to the workshop and gave instruction to the mechanic that the opposite party need not continue the work of the doors. He took away the materials purchased for effecting the patch work of the door.
7. According to the opposite party, he had received money with respect to the work already carried out and an additional amount of Rs.2,000/-(Rupees Two Thousand only) has to be paid by the complainant towards the patch work done .
8. The complainant as well as the opposite party were examined as PW1 and RW1.Exhibits P1 to P5 were marked on the side of the complainant. The report of the commissioner was marked as Exhibit C1. Commissioner was examined as CW1.
9. The District Commission had dismissed the complaint stating that the complainant was unable to prove any deficiency in service as alleged against the opposite party. In the appeal memorandum the appellant would assail the order of the District Commission that the District Commission did not properly appreciate the evidence on the reason that the respondent himself has admitted that he had already carried out the repair works of the complainant’s car. The District Commission did not place any reliance upon the report filed by the expert. Hence, the appellant would seek for setting aside the order passed by the District Commission.
10. Records from the District Commission were called for and perused. Though notice was served on the respondent/opposite party he remained absent.
11. Heard counsel for the appellant. Perused the records.
12. The complainant would attribute deficiency in service on the part of the opposite party in not conducting the patch work though the complainant had paid Rs.7,000/-(Rupees Seven Thousand only) as charges in three instalments. The complainant had caused production of the copy of R.C. book, insurance policy, emission certificate, trip sheet of the taxi and photographs of the car and got it marked as Exhibits P1 to P5.
13. The specific case set up by the opposite party is that the complainant had never entrusted his vehicle with the opposite party. According to him, the vehicle was entrusted with a mechanical workshop adjacent to the shop of the opposite party. During the mechanical work, the complainant had requested the opposite party to carry out the patch work and for doing the same, raw materials were purchased by the complainant and necessary patch work was carried out by the opposite party.
14. It is the case of the opposite party that on completion of each work, the requisite charges were paid by the complainant. But ultimately, the opposite party was unable to conduct the work as he was held up in a hospital in connection with the ailment of his mother. Being annoyed on account of the absence of the opposite party at the workshop, the complainant had given instruction to the mechanic that the work need not be carried out by the opposite party.
15. According to the opposite party the complainant had to pay Rs.2,000/-(Rupees Two Thousand only) towards the work already carried out. An expert was deputed and a report has been field as Exhibit C1. The opposite party had requested the expert commissioner to report the works already carried out by the opposite party on the vehicle. But the expert commissioner has declined to note the aspects as requested by the opposite party. The expert commissioner was examined as CW1. CW1 in cross examination had given evidence that at the time of inspection, he could find that patch work was done on the vehicle. He had also conceded that the opposite party had filed a work memo to incorporate the details regarding the patch work already carried out on the vehicle. But such a request was not made by the complainant. The expert commissioner has declined to consider the work memo filed by the opposite party and he did not even mention in Exhibit C1 regarding the work memo filed by the opposite party.
16. The expert commissioner had assessed the amount required for completing the repair work of the car by incorporating mechanic work also. The evidence adduced by the complainant also show that some items of patch work were already carried out by the opposite party. It was conceded by the complainant in cross examination that the patch work pertaining to the front left half chasis was done by the opposite party and the new platform was fixed by the opposite party. It is also revealed in the cross examination that the complainant had taken back the vehicle since the opposite party could not complete the work within the stipulated time. So it is crystal clear that major portion of the patch work was already carried out by the opposite party. In such a situation, the complainant cannot seek for an order directing the opposite party to return the entire charges.
17. When deficiency in service is attributed, the complainant should narrate the real facts transpired. In the complaint there is no specific recitals regarding the items of work entrusted with the opposite party. There is also no details regarding the date of payment made by the complainant. The complainant had deliberately suppressed the fact that certain items of works were carried out by the opposite party. So the complaint is bad for suppression of material facts.
18. When deficiency in service is attributed, the primary burden is upon the complainant. Here, the complainant had suppressed material facts and sought for an order directing the opposite party to refund the entire amount paid by the complainant though admittedly the opposite party had carried out the patch work of the vehicle. So the complainant had approached the District Commission with a malafide intention by suppressing material facts. He has failed to prove that any deficiency in service had occurred in respect of the service rendered by the opposite party. Hence, the complainant is not entitled to get any relief as sought for. The order passed by the District Commission is only to be upheld.
In the result, the appeal is dismissed. Parties shall bear their respective costs.
JUSTICE B. SUDHEENDRA KUMAR | : | PRESIDENT |
AJITH KUMAR D. | : | JUDICIAL MEMBER |
K.R. RADHAKRISHNAN | : | MEMBER |
SL