DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Tuesday the 29th of November 2022
C.C. 219/2018
Complainant
Nithin. P. M,
Nithin House, 33/399-B,
Keezhalancery Paramba,
Malaparamba. P. O
Kozhikode – 673009.
Opposite Party
- The Manager (Sales Head),
Blue Mountain Autos,
KP 18/507Q, NH212,
Kunnamangalam, Kozhikode – 673571,
Opposite Service Co-operative Bank,
Karanthur.
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant, in brief, is as follows:
On 08/06/2018 the complainant purchased a Thunder Bird X350 motor cycle from the opposite party. The opposite party enquired him whether any additional accessories were to be attached to his vehicle. The complainant selected a crash guard and fitted on the vehicle. However, the information that the crash guard would cause damage to the mudguard was not disclosed by the opposite party. When damage happened after a few days, the vehicle was taken to the opposite party and then he was informed that crash guard fitted would cause damage to the mudguard. The crash guard was removed by the opposite party. However, they stated that the expenses for repairing the damage caused to the mudguard would have to be borne by him. He took up the matter with the sales manager of the opposite party. However, he promised to do the repair works in the second free service free of cost. But that was not done and they offered some discount. Hence the complaint to direct the opposite party to pay an amount of Rs. 3,000/- towards cost to be incurred for fixing the damages of the mudguard and the scratch on the silencer along with compensation of Rs. 10,000/- and cost of the proceedings.
3. The opposite party resisted the complaint by filing written version. According to the opposite party they are doing the business of sales and service of Royal Enfield motor cycles. The complainant took delivery of the motor cycle on 08/06/2018. He enquired about the crash guard for a different look and selected one of his own choice. There was no instigation on the part of the opposite party. The opposite party had disclosed the fact that the guard was not an accessory of the motor cycle and would cause damage to the mudguard. The averment that the opposite party disclosed the same only at a later stage is not correct. It was only after getting verbal confirmation from the complainant that the opposite party fixed the crash guard. There was no promise from the part of the opposite party to repair the vehicle free of cost. No discount was offered. The extra work was done at the complainant’s own risk and confirmation. On 22/06/2018 the opposite party removed the crash guard on the request of the complainant and refunded the price. There is no bonafides in the complaint. None of the reliefs is allowable. The complaint is, therefore, only to be dismissed.
4. The points that arise for determination in this complaint are;
(1). Whether there was any deficiency of service on the part of the opposite party?
(2). Reliefs and costs.
5. Both parties filed affidavit. Exts A1 to A5 and B1 to B3 were marked.
6. This matter was heard by our learned predecessors-in–office and was later reopened for further hearing. Thereafter the parties did not appear. Even after issuance of notice both sides remained absent and no further arguments were advanced.
7. Point No. 1: The complainant has approached this Commission seeking repair charges and also compensation alleging deficiency of service on the part of the opposite party. The case of the complainant is that he had purchased a Royal Enfield motor cycle from the opposite party and as suggested by them he purchased and fixed a crash guard on the motor cycle and later he came to know from the opposite party and others that the crash guard would cause damage to the mudguard and accordingly it was removed. The grievance of the complainant is that the fact that the crash guard would cause damage to the mudguard was concealed from him and that the opposite party did not do the repairs to the mudguard and scratch on the silencer free of cost.
8. The case advanced by the opposite party is that the crash guard was selected by the complainant himself for a different look to the vehicle and there was no instigation on their part and they had informed the fact that crash guard is not an accessory and would cause damage to the mudguard. It is also their case that subsequently the mud guard was removed and the price was refunded to the complainant. However, they denied having agreed to do the repair work free of cost or on discount.
9. On a careful consideration and scrutiny of the evidence in hand, it is seen that there is absolutely no evidence to show that there was any instigation on the part of the opposite party to fix the crash guard for the motor cycle. The complainant has no case that the crash guard was fitted on the motor cycle without his consent. Equally, there is nothing to indicate that the opposite party had suppressed the fact that crash guard would cause damage to the mudguard. Even according to the complainant, this fact was subsequently informed to him by the opposite party. If the opposite party had any reason to suppress this fact and cheat the complainant, they would not have subsequently revealed the same to the complainant. Moreover, it is an admitted fact that on 22/06/2018 the crash guard was removed from the vehicle by the opposite party at the request of the complainant and the price of the same was refunded to him. This is admitted by the complainant and is further evidenced by Ext B3 receipt dated 22/06/2018. The further allegation of the complainant is that the opposite party had promised to repair the damage caused to the crash guard and the scratches on the silencer free of cost at the time of second free service. But this is stoutly denied by the opposite parties. There is absolutely nothing in evidence to show that there was any such offer by the opposite party.
10. In a consumer case, the onus to prove deficiency of service is on the complainant. Without proof of deficiency, the opposite party cannot be held liable. In the instant case, the complainant failed to plead and prove any deficiency of service on the part of the opposite party and consequently the complaint must fail.
11. Point No.2: In view of the finding on the above point, the complainant is not eligible to claim and get any relief as prayed for.
In the result, the complaint is dismissed. However, no order as to costs.
Pronounced in open Commission on this, the 29th day of November, 2022.
Date of Filing: 08/08/2018.
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PRESIDENT
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APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of the cash receipt voucher dated 12th March 2018.
Ext. A2 - Copy of the cash receipt voucher dated 4th June 2018.
Ext. A3 – Copy of the Bank receipt voucher dated 4th June 2018.
Ext. A4 – Copy of the account statement
Ext. A5 – Email letter dated 28th July 2018.
Exhibits for the Opposite Party
Ext. B1 – Tax invoice dated – 08/06/2018.
Ext. B2 - Revised invoice dated 22/06/2018.
Ext. B3 – Cash voucher dated 22/06/2018.
Witnesses for the Complainant
Nil.
Witnesses for the opposite parties
Nil.
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PRESIDENT
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MEMBER
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MEMBER
Forwarded/By Order
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Assistant Registrar
