D.O.F. 28.10.2011

                                          D.O.O. 17.05.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                    :        Member

Dated this the 17^th day of May, 2012.

C.C.No.326/2011

Suresh V.K.

S/o. M.K. Sukumaran,

Kakkadan House,                                       :         Complainant

Kadirur P.O.,

Thalassery

Suresh Babu

Proprietor

Friends Auto Garage                                   :         Opposite Party

South Panoor, Panoor

(Rep. by Adv. Nishanth K.J.)

O R D E R

Smt. M.D. Jessy, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for getting a compensation of ` 40,000 to the complainant on account of the defective service rendered by opposite party for his vehicle.

          The brief facts of the complainant’s case is as follows.   The complainant is the R.C. owner of a Mahindra jeep bearing Reg. No.KL/10 F 1626.  Opposite party is conducting vehicle painting shop at Panoor in the name and style ‘Friends Auto Garage”.  On 24.05.2010 the complainant entrusted his jeep to the opposite party for doing the painting work and opposite party agreed to do the work within two weeks.  Thereafter opposite party informed to the complainant that before starting the painting work the vehicle needs body work and mechanical repair and the vehicle has to be handed over to workshop for curing the mechanical defects. Opposite party took initiative to hand over the vehicle to mechanical repair in a workshop run by one Manoj of Palathai.  On 17.06.10 the opposite party called the complainant over telephone and informed that the body work of the jeep is almost completed and demanded ` 5,000 towards repairing charge.  The complainant paid the amount to the opposite party.  Again on 30.06.2010 the opposite party demanded the complainant to pay the balance amount to the tune of ` 5,000.   The complainant paid that amount also to the opposite party.  Thereafter the complainant contacted the opposite party for taking delivery of his vehicle after completing the painting work, there was no response from the opposite party.  Hence complainant contacted the above said Manoj on 17.07.2010 and it was found that the vehicle is kept in the premises of his workshop by exposed to rain and sunlight.  The vehicle was completely damaged due to exposure to the sunlight and rain.  On enquiry it was revealed that the vehicle was not repaired due to the non-payment of money by the opposite party.  The complainant alleges that he had given 10,000 to the opposite party for curing the mechanical defects of his vehicle.  But without paying amount to the repairer the opposite party cheated the complainant.  Thereafter the complainant spent huge amount for repairing his vehicle.  Alleging that the damage sustained to the vehicle is due to the failure on the part of opposite party, the complainant issued lawyer notice on 04.03.2011 calling upon him to pay the amount spent by the complainant for curing the defects of his vehicle.  But opposite party sent a reply on 17.03.2011, raising some false contention.   The opposite party is liable to make good all the loss sustained to the complainant’s vehicle after handing over to the opposite party.  The complainant estimates his loss to the tune of ` 40,000 and he demands that the opposite party is liable to reimburse the said amount to the complainant as compensation for the defective service.

          After receiving the complaint Forum sent notice to opposite party.  Opposite party appeared and filed their version denying the material allegation leveled against him in the complaint.  Opposite party admits that he is running on autogarage under the name and style ‘Friends Auto Garage’.   The opposite party is only a fitter by profession and is doing the mechanical work of the vehicle from his garage.  It is not correct to say that opposite party is doing body painting work of his vehicle.  Opposite party denied the averments that the complainant approached the opposite party on 24.05.2010 for body painting of his Maheendra jeep bearing Reg.No.KL 10 F 1626.  It is also equally false to say that the opposite party informed the complainant that before starting the painting work the vehicle need body and engine repairs and the vehicle has to be handed over to a mechanical workshop.  The opposite party never took initiative to hand over the vehicle of the complainant to the workshop run by Sri. Manoj for mechanical repairs. The contention of the complainant that on 17.06.2010 the opposite party called the complainant over telephone and demanded ` 5000 for the repairing charge of his vehicle and the complainant paid the said amount to the opposite party is utter falsehood.  The further allegation of the complainant that on 30.06.2010 the opposite party again called the complainant over telephone and demanded ` 5000 towards the balance repair charge and the complainant paid that amount also to the opposite party is also false and hence denied.  Opposite party admitted that in the month of May, 2010 the complainant approached the opposite party for carrying out some repair work for his vehicle.  But due to the insufficiency of workers and also opposite party was not doing well he advised the complainant to do the repair work from some other workshop.   The opposite party is not aware of the entrustment of the vehicle to any body for repair.  Since the complainant has not entrusted his vehicle to the opposite party for repair and paid any amount as service charge the complainant, is not a consumer of the opposite party. The intention of the complainant is only to tarnish the image of the opposite party among the public and destroy the reputation of the opposite party.   The opposite party is not liable to pay any amount as compensation to the complainant. Hence opposite party prays for the dismissal of the complaint with compensatory cost.

          On the above pleadings the following issues were taken for consideration.

1.     Whether the complainant is a consumer of the opposite party as defined under the Consumer Protection Act?

2.     Whether there is deficiency of service on the part of opposite party?

3.     If so, the quantum of damage sustained to the complaint?

4.     Relief and cost.

          The evidence consists of oral evidence of PW1 and PW2 and Ext.A1to A4 marked on the side of the opposite party.  Except Ext.B1 to B5 were marked, no oral evidence adduced by opposite party.

Issue No.1 :

          Complainant adduced oral evidence in tune with the complaint.  The material allegation raised in the complaint as well as in the oral evidence is that the complainant entrusted his vehicle to the opposite party’s workshop for doing its body painting work.  But no amount was paid by the complainant to the opposite party for doing the painting work.  Eventhough it is alleged in the complaint as well as in the chief affidavit that the opposite party is conducting a workshop for doing body painting work of vehicles, during cross examination complainant changed his version and admitted that “Opposite Party \S-¯p¶ Øm]\w auto garage BWv.  km[m-cW sNdnb h­n-I-fp-sSbpw temdn-I-fp-sSbpw repair \S-¯m-dp-­v.  Painting work \S-¯m-dn-Ã.  lc-Pn-bn body painting \S-¯p¶ workshop BsW¶v ]d-ªXv icn-b-Ã.”  If that be so there is no question of entrusting the complainant’s vehicle to the opposite party’s workshop for doing its body painting work.  But complainant further alleged that as directed by the opposite party the vehicle was entrusted to the garage of one Manoj of Palathai for performing body and engine repairs.  From this version it is clear that the opposite party had not undertaken to perform any painting work or mechanical work of the complainant’s vehicle from his workshop.  Opposite party only acted as an agent of the complainant.  Manoj was examined a PW2 and he deposed that “hÀ¡vtjm-¸n h¶-t¸mÄ 40,000 cq]-bpsS work BWv I­n-cp-¶-Xv.” But the complainant is keeping total ignorance about the nature of repair work needed to his vehicle.  He contacted the repairer only on 17.05.2010.  Complainant says that he paid 10,000 to opposite party towards the entire repair charge and painting works.  But no document is produced by the complainant to prove the same.  Mere oral evidence is not sufficient to prove such a contention.  Even if any amount was paid by the complainant to opposite party it was not paid as remuneration for the service done by opposite party.  Complainant paid the money to opposite party only for handing it over to PW2.  If the opposite party misappropriated the said amount it will amounts only a criminal offence.   Here there is no evidence to hold that the complainant is a consumer under opposite party.  We cannot believe that the complainant being a bank employee paid ` 10,000 to opposite party without getting a receipt and also without verifying the nature of repair work done to his vehicle.  The evidence of PW2 is also not supporting the complainant to prove that opposite party had manage to the repair work of the complainant’s vehicle and complainant paid any amount as remuneration for the same.  Hence we hold that complainant will not come under the purview of a consumer as defined under Consumer Protection Act and the issue is answered accordingly.

Issue No.2 :

          Since issue No.1 is found against the complainant issue No.2 is not deserves consideration.

Issue No.3 :

          From the version in the complaint and affidavit, the first allegation that complainant’s vehicle was handed over to opposite party’s workshop for doing the painting work is found false and the other allegations also deserves careful scrutiny. The averment that complainant paid ` 10,000 is not supported by any evidence and it can see that  it is a vague allegation raised only for preferring this complaint against opposite party.  From the evidence of PW2 it is clear that ` 10,000 is not at all sufficient for effecting the repair work of the jeep.  Being the owner of the vehicle complainant was having the prime duty to give necessary direction to the repairer and to pay charges. The deliberate laches on the part of complainant cannot be laden liability upon the opposite party.  Since the allegation leveled against the opposite party was false and baseless the complaint is only liable to be dismissed.

          In the result complaint is dismissed.

          Sd/-                           Sd/-

     President                    Member              

APPENDIX

Exhibits for the Complainant

A1.  Copy of lawyer notice dated  

A2.  Reply notice.

A3.  Bills (9 in numbers).

A4.  Copy of RC.

Exhibits for the opposite party

B1.   Bills

B2.   Discharge summary.

B3.   Discharge bill.

B4.   Prescription dated 03.07.10.

B5.   Lab reports.

Witness examined for the complainant

PW1.  Complainant

PW2.  Manoj K.

Witness examined for opposite party

Nil

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT