DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: BHADRAK
Dated the 4th day of September, 2020
C.D Case No. 65 of 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Rasmi Ranjan Mohanty
S/o Late Banamali Mohanty
At: Balimeda,
Po: Nayakanidihi,
Dist: Bhadrak, Odisha
At Present:
At: Mathasahi, Po/Ps: Bhadrak (T), Dist: Bhadrak, Pin- 756100
……………………. Complainant
(Versus)
1. The Concerned Authority, EMRP Automobiles, (Eastern Metal & Rubber Products Pvt. Ltd.)
At: Motel Chhak,
Po/Ps: Bhadrak (T),
Dist: Bhadrak, Pin- 756100
2. The Concerned Authority, EMRP Automobiles, (Eastern Metal & Rubber Products Pvt. Ltd.)
D1/1, 2 & D2/7, Industrial Estate, Balasore,
Po/Ps/Dist: Balasore, Odisha, Pin- 756001
……………………..Opp. Parties
Counsel For Complainant: Sri S. Tripathy, Adv & Others
Counsel For the OP No. 1: Ex-Parte
Counsel For the OP No. 2: Sri Ashokananda Devgoswami
Date of hearing: 19.03.2019
Date of order: 04.09.2020
RAGHUNATH KAR, PRESIDENT
This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps.
The facts of the case as narrated in the complaint are to the effect that the complainant negotiated with the OP No. 1 for servicing his Indigo ECS Lx model car on dt. 27.03.2018 the OP No. 1 assured the complainant to provide him proper service so the complainant handed over the car to the OP No. 1 on the same day. The O.Ps promised to complete the servicing work of the complainant. After examining the car of the complainant, the O.Ps charged Rs 35,000/- (Rupees Thirty Five Thousand) in total for servicing & minor repairing the car of the complainant. Believing the O.Ps, as per their suggestion the complainant handed over his car bearing Regd. No. OR-01T 9579 to the OP No. 1 for servicing & minor repairing on dt. 31.03.2018. As per the O.Ps commitment to do this servicing & minor repairing work definitely, they charged the complainant to pay Rs 35,000 and accordingly after being assured and having confidence on O.Ps, the complainant paid total amount of Rs 35,000/- to the O.Ps in two installments towards servicing & minor repairing charges etc. The O.Ps promised to deliver the car to the complainant on 12.06.2018. When the complainant went to the OP No. 1 for his car on dt. 12.06.2018, the O.Ps again demanded Rs 90,000/- to the complainant for other charges. Later on the complainant came to know that his car was shifted to the OP No. 2. For that the complainant has suffered a lot towards mental as well as physical agony. The O.Ps thereby committed deficiency in service towards the complainant. The complainant in several times approached the O.Ps to return back his car but they did not listen anything which proves clear deficiency of service. The O.Ps finally refused to delivered the car to the complainant on 25.09.2018.
The service rendered by the O.Ps is imperfect, immoral and unfair trade practice in order to grab the hard earned money of innocent customer like this complainant for which legal actions are needed to be taken against the O.Ps. The OP No. 2 is taking evasive plea in various times to avoid the claim of the complainant and the OP No. 1 threatened the complainant not to provide the said car for which the complainant is remaining both mental and financial agony. As such the O.Ps should be compensated for their unfair trade practice, cheating, negligence in providing service to the complainant. The complainant found no other alternative except filing this complaint. The cause of action of this dispute arose on 25.09.2018 when the O.Ps willfully avoided to settle the claim of the complainant. This dispute being valued at Rs 1,00,000/- and I.P.O worth of Rs 100/- is paid there on for the purpose of pecuniary jurisdiction of this Forum.
The complainant has sought for the following reliefs.
1. The O.Ps be directed to deliver the car bearing Regd. No. OR-01T-9579 to the complainant.
2. The compensation vide amount Rs 50,000/- be awarded towards deficiency in service, cheating and physical and mental torture and towards the cost of the litigation.
3. The complainant be awarded any other relief what he is entitled to.
The complainant has filed following documents (Xerox copies).
1. Certificate issued by office of the R.T.O, Bhadrak bearing Regd. No. OR-01T-9579- 1 sheet.
2. Registration certificate- 1 sheet.
3. Money receipt issued by Swapna Motors, Bhubanesware- 10, 674-6621140/41 (sales) on 01.11.2014 vide receipt No. 9975- 1 sheet.
4. EMRP AUTOMOBILES INDUSTRI ESTATE BALASORE vide No. OD01T9579- 1 sheet.
5. CERTIFICATE OF INSURANCE-CUM-POLICY SCHEDULE- 1 sheet.
Despite receipt of notice from the Commission, OP No. 1 neither appeared nor submitted any written version till the date of final hearing of this case as a result of which the said OP is set ex-parte. On the other hand the OP No. 2 has appeared through his concerned advocate and submitted his written version, the concerned authority EMRP Automobiles, (Eastren Metal and Ruber Products Pvt. Ltd.) D1, D2/D7 Industrial Estate, Balasore. The above OP No. 2 has submitted his written version as follows. That he has challenged the maintainability, cause of action, jurisdiction. He has also challenged the mis-joinder of necessary party.
That he has denied all the allegations made against him by the complainant. He has also stated that the complaint itself contents vague, false, illegal, unlawful, irrelevant, unspecific and abinitio averments made by the complainant against him. Hence he has prayed for dismissal of this complaint.
The following documents filed on behalf of the OP No. 2 as follows.
1. Vehicle diagnosis report- 4 sheets.
2. Money receipt dt. 13.02.2018- 1 sheet.
3. Money receipt dt. 06.03.2018- 1 sheet.
4. Tax invoice bill- 2 sheets.
5. Performa invoice- 5 sheets.
On the other hand the OP No. 2 has appeared through his concerned advocate and submitted his written version, the concerned authority EMRP Automobiles, (Eastren Metal and Ruber Products Pvt. Ltd.) D1, D2/D7 Industrial Estate, Balasore. The above OP No. 2 has submitted his written version as follows. That he has challenged the maintainability, cause of action, jurisdiction. He has also challenged the mis-joinder of necessary party.
That he has denied all the allegations made against him by the complainant. He has also stated that the complaint itself contents vague, false, illegal, unlawful, irrelevant, unspecific and abinitio averments made by the complainant against him.
The fact is that neither the OP No. 1 was/is a part of the OP No. 2 nor OP No. 2 was/is the owner of the OP No. 1. Admittedly the OP No. 2 carries on business of car servicing and repairing center having their workshop at D1, D2/ D7, Industrial Estate, Balasore and carries no business or branch office anywhere except Balasore. Further on query it is learnt that there was/is no business establishment ever exist in the name of EMRP Automobile At: At: Motel Chhak,
Po/Ps: Bhadrak (T), Dist: Bhadrak, Pin- 756100 at any point of time. The complainant is a shrewd and litigant person and as such he intentionally, deliberately and with malafied intention has made OP No. 1 as party in this case which is totally a fake one. In order to attract the pecuniary jurisdiction of this learned Forum the complainant cunningly and mischievously has impleded OP No. 1, as party in this case without having any documentary evidence.
The OP No. 2 has further stated in his petition filed by him U/s 11 of the CP Act that the complainant had delivered his aforesaid vehicle by tow with a dismantle engine kept in a plastic garbage bag to OP No. 2 at Balasore for necessary repair on dt. 08.02.2018. But after necessary repair he has been avoiding to take delivery of his said vehicle by making payment of the billing amount of Rs 1,20,520/- after deducting the advance payment of Rs 35,000/- despite repeated request made by the OP No. 2. Hence the OP No. 2 has prayed for the dismissal of this complaint.
OBSERVATION
We have gone through the facts of the complaint & written version filed by both complainant & OP No. 2. The OP No. 1 has neither appeared nor filed his written version. The complainant and the OP No. 2 both have filed their complaint and written version respectively. The complainant has filed a bunch of documents in support of his complain and the OP No. 2 has also filed some relevant documents in support of his stands to support of his written version. It is the first and foremost duty of this Forum to peruse the evidences filed by both the parties. Then we can reached at the conclusion. The registration certificates and a sheet of paper containing the suggestion and remarks, certificate if insurance come policy schedule prove that obviously the vehicle is belonging to the complainant. The complainant had failed to describe the date of cause of action of this case in his complaint. Still then in view of the documents filed by the complainant and the averments made in the complaint by the complainant we hold that the cause of action arose in the year of 2018. So this complaint is not barred by limitation.
A document filed by the complainant which is the money receipt issued by SWAPNA MOTORS Pvt. Ltd. which is a money receipt amounting to Rs 24,500/- which has been paid by the complainant to SWAPNA MOTORS Pvt. Ltd. on dt. 01.11.2014 vide money receipt No. 9975. According to our observation this money receipt which is a piece of evidence is not related with this case. This money receipt has been deposited by the complainant in any other case because this complaint is a case of the year 2018. The OP No. 2 has filed a bunch of documents such as vehicle diagnosis report- 3 sheets Annexure- A, money receipt dt. 13.02.2018- Annexure- B, money receipt- Annexure- C issued on 06.03.2018- 1 sheets, tax invoice in details- Annexure- D 2 sheets and Performa invoice- Annexure- E 5 sheets. All the money receipts show that one Mr. Rashmi Ranjan Mohanty the complainant has paid Rs 15,000/- on 13.02.2018 in respect of Annexure- B, he has also paid Rs 20,000/- on 06.03.2018 towards the vehicle Annexure- C totally he has paid Rs 35,000/- in favour of the OP No. 2. The OP No. 2 has described and admitted in the petition filed U/s 11 of CP Act on 01.12.2018 that the complainant has paid Rs 35,000/- towards the repairing of the vehicle. But the total billing amount is Rs 1,20,520/- and despite repeated request made by the OP No. 2 the complainant did not turn up. The complainant has filed this case before this Forum in order to avoid the payment of the huge billing amount and parking charges. So the OP No. 2 did not returned back the vehicle to the complainant.
In the present situation the OP No. 2 has kept the said vehicle in his custody. The complainant has failed to file a single money receipt accept one which in the year of 2014. The OP No. 2 has admitted that he has received Rs 35,000/- as the total amount from the complainant towards advance. After the reparation and servicing of the vehicle it is the duty of both the parties to calculate the residual amount deducting Rs 35,000/- from the total amount of servicing cost Rs 1,20,520/- mutually and settle the matter between them. As the complainant has filed no money receipt accept the fake money receipt of the year 2014 and the OP No. 2 has admitted in his petition filed U/s 1 of CP Act the OP No. 2 is claiming Rs 1,20,520/- which is balance of the complainant. Neither the complainant nor the OP No. 2 has clarified after servicing and minor repairing of the said vehicle what is the total amount the complainant is liable to pay to the OP No. 2. According to our perception it is held that the complainant has to pay some amount to the OP No. 2. As a result of which the vehicle in question shall be released from the custody of the OP No. 2.
In view of the above analysis and on perusal of materials on record, this Commission is of opinion that the complainant is liable to pay Rs 25,000/- over and above the earlier payment of Rs 35,000/-.
ORDER
In the result, the complaint be and the same is allowed in part against the OP No. 1 & 2 without cost and compensation. Complainant is directed to pay and additional amount of Rs 25,000/- to the O.Ps towards the cost of repairing of the vehicle in discussion. O.Ps are directed to release the vehicle under their disposal to the complainant on receipt of the additional amount of Rs 25,000/-. It must be ensured by the O.Ps to deliver the vehicle in good and running condition at Bhadrak and all the transactions will be made at Bhadrak without deviation of this order. This order must be complied by both the parties within a period of 30 days without fail.
This order is pronounced in the open Forum on this day of 4th September, 2020 under my hand and seal of the Forum.
