DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. 266/2018

Date of Filing:                                                               Date of Disposal:

  26.06.2018                                                                                 10.05.2021

P R E S E N T   :-         Smt. Sukla Sengupta………..…..President.

                          :- Smt.  Monisha Shaw….………..   Member.

       :-          Sri.  Susmit Hrishikesh Bhattacharya…Member.

Judgment

The instant petition of complaint has been filed by the complainant U/s 12 of the Consumer Protection Act, 1986 alleging inter-alia that the complainant had purchased the Hyundai Model i10 Magna (private car) having Registration No. WB 24K 4007, Engine No. G4LA9M136363, Chasis No. MALAM51CR9M324.

It is further stated that the Opposite Party No. 1 is the dealer and authorized service centre of Hyundai Motor Company. The said car was insured with the O.P. No. 2, the Oriental Insurance Company Ltd., having Policy No. 313301/31/2017/1126 valid from 25/05/2016 to 24/05/2017.

It is further stated that on 14/08/2016 at about 9:45 p.m. the aforesaid car of the complainant made an accident at Jaguli, Kanchrapara Express Way near Hatikunda situated within the District Nadia during the approval of the complainant along with his family.

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After accident, the complainant and his family members were admitted at hospital by the local people and the car was badly damaged and lost its mobility. Then, the said car was taken to the O.P. No. 1 on 18/08/2016 by the relatives of the complainant namely Sri Govinda Kar and Sri Abhijit Gon for repairing of the same. The car was handed over to the O.P. No. 1 in presence of service advisor Sri Chhabilal Adhikary in cashless term.

Accordingly, the O.P. No. 1 issued a repair order sheet in respect of the said car with a written assurance to deliver the same to the complainant in proper liable condition within 60 days after completing all necessary repairing works.

It is further stated that on 23/08/2016 the O.P. No. 1 gave an estimate for the repairing works amounting to Rs. 1,36,796/- and in addition to that Rs. 13,250/- was for outfit Rs. 3,200/- for denting and Rs. 21,825/- for painting. On receipt of the same the complainant denied to pay the amount of Rs. 33,515/- which was under serial No. 39 as Block Assy-cylinder in the estimation sheet dated 23/08/2016 because the complainant was in view that it was not necessary for his car thus the total estimated cost of repair of the damaged was of Rs. 1,41,556/- in total.

Thereafter, on 03/09/2016, 21/09/2016 and 29/09/2016 the said car of the complainant was surveyor Mr. Rathindranath Pattanayak and the complainant provided and the required documents to him on 27/12/2016. The surveyor estimated the amount for painting, denting was of Rs. 11,300/- and painting of Rs. 13,500/- instead of Rs. 16,450/- as estimated by the O.P. No. 1 for painting, denting and Rs. 21,825/- for painting. As per complainant the estimation of repairing coast made by the O.P. 1 is much higher than the surveyor.

It is further alleged that the O.P. No. 1 failed to deliver the impugned car within 60 days on and from 18/08/2016 has assured to the complainant even after getting the several remainders through e-mail from the end of the complainant and ultimately after several request the O.P. No. 1 sent voice of the final bill of the repairing work amounting to Rs. 2,21,875/- on 12/12/2016 which was much higher than the estimated cost has given by the O.P. No. 1 to the complainant previously. It is alleged by the complainant that the O.P. No. 1 raised the bill of such huge amount without any prior consent of the complainant.

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Thus the complainant served a legal notice through his conducting Advocate to the O.P. No. 1 on 30/12/2016 denying the amount of the final bill and requesting the O.P. 1 to relief the matter at the earliest.

It is further stated in the written complaint that on several occasions the complainant personally visited the office of the O.P.  No. 1 and held conversation with one Mr. Chhabilal Adhikary, and enquired about such exclusion in the impugned bill but in vein. Thereafter, 18/01/2017 the complainant received an email from Mr. Kaushik Sarkar, Body shop manager of the O.P. 1 with a request to take delivery of the said car with 5% discount on parts, labour charges amounting to Rs. 10,300/- approximately and it was claimed by the said Mr. Kaushik Sarkar in the above mentioned mail that the repairing works was done in the damaged car as per advice of the complainant which is fully denied by the complainant. In response to the email dated 18/01/2017. The complainant wrote a letter to the O.P. No. 1 dated 15/02/2017 enclosed a Demand Draft of Rs. 2,21,875/- bearing No. 685097 dated 14/02/2017 drawn on United Bank of India, Kolkata, from overdraft A/c of the complainant towards total payment of the repairing charges without any discount which was received by the O.P. No. 1 on 16/02/2017. The O.P. No. 1 after receiving the Demand Draft had issued a receipt dated 14/02/2017. It is further stated that the O.P. neither informed nor demanded any amount as garage charges question of payment of garage charge by the complainant to the O.P.  does not arise. It is further alleged by the complainant in his written complaint that on 16/02/2017 after receiving the said car he found that the said car was not properly running and otherwise there were several problems in the said car which caused harassment to the complainant. Thus the instant written complaint has been prayed by the complainant before the Consumer Affairs Department but no fruitful result has been yield from the tripartite meeting in the Consumer Affairs Cell (CE), which compelled the complainant to file the written complaint before the D.C.D.R.C., Barasat as per pecuniary jurisdiction.

          It is further stated that the complainant had submitted a motor claimed form with the opposite party No. 2, Insurance company and the opposite party No. 2 as per assessment made before repair amount of Rs. 1,12,000/- to the account of the complainant on 03/03/2017.

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It is alleged by the complainant that the O.P. No. 1 has made excessive arbitrary fact exorbitant bill beyond the above assessment of the repair of the Insurance company. Thus the complainant had to pay excess amount of Rs. 80,319 only.

          It is further stated by the complainant that the office of the O.P. No. 1 situated under Barasat Police station within the District of 24 Parganas, North and the Registration of this D.C.D.R.C. and cause of action arose on 14/08/2016 when the said car of the complainant made an accident thereafter on 23/08/2016 when the estimate of repairing charges has been given by the O.P. No. 1 further on 12/12/2016 when the O.P. No. 1 submitted the exorbitant bill as repair charge of the said car from the complainant and finally on 16/02/2017 when the complainant took delivery of the said car but found the car has not been repaired properly.

          It is stated by the complainant in the written complaint that this entire misconduct and misdeeds of the O.P. members caused mental agony and harassment to the complainant. Hence, the instant application is filed by him with a prayer for given direction by the O.P. No. 1 to pay of Rs. 80,319/- only has excessive amount illegally charged by the O.P. No. 1 from the complainant along with further direction upon the O.P. no. 1 to pay Rs. 1,50,000/- only for harassment and mental agony and further Rs. 50,000/- only with litigation cost.

          It is further prayed by the complainant to give direction upon the O.P. no. 1 to pay interest @ 18% p.a. on the amount of Rs. 80,319/- from 14/02/2017 till realization along with other consequential relief.

          O.P. No. 2 has contested the claim application by filing a written version denying all the materials allegations labeled against it. It is denied by the O.P. No. 2 that there is / was any negligence and deficiency of service on the part of the O.P. No. 2 as such the present written complaint is not maintainable and liable to be dismissed.

          It is also stated by the O.P. No. 2 that the written complaint is suffering from guilty and misrepresentation and suppression of material fact. O.P. No. 2 further stated in his written versions that the written complaint is misconceived, vexatious, untenable and devoid of any materials.

          Thus, the same is liable to be dismissed.

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On the close scrutiny of the W/V filed by the O.P. No. 2, it appears that except paragraph-wise denial of the written complaint no specific defense case has been framed in the W/V. However, except the prayer to dismiss the written complainant filed by the complainant and prayer of cost in favour of the O.P. No. 2 no other prayer is there.

          In order to prove his case the complainant has filed the evidence on affidavit and also annexed documents in support of the written complaint namely i) the photocopy of the papers of registration of the private car Model i10 Magna has been annexed as annexure ‘A’, ii) the photocopy of the Insurance Policy of the said car has been annexed as annexure ‘B’, iii) the photocopy of the repair order dated 18/08/2016 of the said private car in question has been annexed as annexure ‘C’, iv) the total estimated cost of repair as given by the O.P. No. 1 to the complainant has been annexed as annexure ‘D’, v) the photocopy of the letter dated 27/12/2016 given by the surveyor and the concerned assessment sheet has been annexed as annexure ‘E’, vi) the photocopy of the email dated 02/12/2016 and the final bill dated 12/12/2016 given by the opposite party No. 1 has been annexed as annexure ‘F’, vii) the photocopy of the legal notice dated 30/12/2016 given by the complainant to the O.P. No. 1 has been annexed as annexure ‘G’, viii) the printout of the email dated 18/01/2017 sent by Mr. Koushik Sarkar being the body shop manager of the O.P. No. 1 has been annexed as annexure ‘H’, ix) the photocopy of the letter dated 15/02/2017 sent by O.P. No. 1 and the Demand Draft dated 14/02/2017 sent by the complainant have been annexed as annexure ‘I’ collectively, x) the photocopy of the of the letter dated 25/01/2017 sent by the complainant to the Hon’ble Minister-in-Charge of the Consumer Affairs Department has been annexed as annexure ‘J’, xi) the photocopy of the disposal note dated 20/09/2017 of the Consumer Affairs Department has been annexed as annexure ‘K’, xii) the photocopies of the of the motor claim form and statement of accounts submitted by the complainant to the O.P. No. 2 Insurance company have been annexed as annexure ‘L’ collectively.

          On the contrary, O.P. No. 2 also filed as evidence-in-chief with a prayer to treat the W/V as evidence on the part of O.P. No. 2.

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In view of the facts and circumstances as stated above in the written complaint and written version filed by the parties to this case, it has to be decided whether the complainant is a consumer or not or otherwise the complainant is entitled to get the relief as prayed for.

Decisions with reasons:-

From annexure ‘A’ and annexure ‘B’ that is the photocopy of the papers of registration and the photocopy of the Insurance Policy, it is proved that the complainant had purchased the private car of Hyundai Model i10, Manager having the registration No. WB 24K 4007, Engine No. G4LA9M136363, Chasis No. MALAM51CR9M324  and it was insured with the opposite party No. 2 the Oriental Insurance Company Ltd. having policy No. 313301/31/2017/1126 valid from 25/05/2016 to 24/05/2017.

Admittedly the said car of the complainant made an accident on 14/08/2016 at about 9:45 p.m. near Hatikunda, Jaguli, Kanchrapara expressway within the district Nadia during travelling with his family members and the said damaged car was taken to O.P. No. 1 for repairing purpose and the said damaged car was handed over to the O.P. No. 1 in presence of service advisor Sri Chhabilal Adhikary on no cashless term. From annexure ‘C’ it is evident that on receipt of the said car the O.P. No. 1 Mohon Motor Hyundai issued a surveyor order sheet in respect of the said car with written assurance to deliver the same to the complainant in proper liable condition within 60 days after completing all necessary repairing works.

From Annexure ‘D’ it is evident that the O.P. No. 1 gave an estimation of the repairing works of a sum of Rs. 1,41,556/- only in total.

It is the further case of the complainant that 13/09/2016, 21/09/2016 and 29/09/2016 the said damaged car of the complainant was serviced by the surveyor Mr. Rathindranath Pattanayak and an assessment of repairing works was given by said Mr. Rathindranath Pattanayak was of Rs. 11,300/- for opening, denting Rs. 13,500/- for painting which was much lower than the estimated given by the O.P. No. 1 and the letter dated 27/12/2016 of Mr. Mr. Rathindranath Pattanayak has been brought into evidence as Annexure ‘E’.

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From Annexure ‘F’ it is found that the O.P. No. 1 failed to deliver aforesaid car within the stipulated period of 60 days to the complainant and 12/12/2016, the O.P. No. 1 sent invoice of the final bill of repairing work of the said car amounting to Rs. 2,21,875/ which is much higher than the previous estimated cost of Rs. 1,41,556/-.

From the evidence as well as document on record it is revealed that the O.P. No. 1 never intimated the complainant in respect of the enhancement of the repairing cost which bound the complainant to issue a legal notice upon the O.P. No. 1 on 30/12/2016 (Annexure ‘G’).

Thereafter, the O.P. No. 1 sent an email dated 18/01/2017 to the complainant which has been brought into evidence as Annexure ‘H’ and by the said email the O.P. No. 1 stated that about 5% of the total cost of repair can be discounted which is amounting to Rs. 10,300/-. The complainant has refused the same and sent Demand Draft of Rs. 2,21,875/- as claimed by the O.P. No. 1 bearing No. 685097 dated 14/02/2017 the letter dated 15/12/2017 and Demand Draft dated 14/02/2017 have been brought into evidence as Annexure ‘I’ positively.

Ultimately the said car was handed over to the complainant and the complainant again lodged in his evidence that the car was not repaired properly and it caused inconvenience to the complainant when it was flying in the road. Furthermore, it is also evident from the materials as well as evidence on record that the complainant had submitted motor claim form with the O.P. No. 2, Insurance Company Ltd., and the O.P. No. 2 as per assessment made by their surveyor / accessor has credited an amount of Rs. 1,12,000/- only to the account of the complainant on 03/03/2017 for which the complainant caused financial loss of Rs. 80,319/- only because the O.P. No. 1 sent the final bill of repairing cost of the aforesaid car amounting to Rs. 2,21,875/- and the O.P. No. 2 Insurance Company only paid a sum of Rs. 1,41,556/- to the complainant. Then the complainant bound to pay a sum of Rs. 80,319/- extra to the O.P. No. 1 due to the unfair trade practice by the O.P. No. 1. The gross deficiency in service on the part of the O.P. No. 1 which caused a loss to the complainant to the tune of Rs. 80,319/- only as excessive amount illegally charged by the O.P. No. 1 towards repairing cost and in addition to that the complainant further suffered loss of Rs. 1,50,000/- only for harassment, mental pain and agony.

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The complainant also claimed for Rs. 50,000/- only for litigation cost and expenses.

In view of the discussion made above we are opinion that the complainant is a consumer within the ambit of law and he suffered of gross deficiency  in service on the part of the Opposite party No. 1 because the O.P. No. 1 have agreed to repair the damaged car and to hand over the same within the stipulated time failed to keep its promise and also admitted a huge amount of money as repairing cost which caused suffering to the complainant to an amount of Rs. 80,319/- only as excessive amount of repairing cost illegally charged by the O.P. No. 1 and the complainant is thus entitled to keep the excess amount of Rs. 80,319/- from the O.P. No. 1 which the O.P. No. 1 illegally charged from him as repairing cost of the damaged car.

From the materials as well as evidence record, it is revealed that the O.P. No. 1 failed to keep its promise on the bound of handing over the repaired car to the complainant within the stipulated period of 60 days and the complainant have harassed for months together which caused his harassment, mental pain and agony for which the complainant is entitled to get Rs. 1,50,000/- only for harassment, mental pain and agony as prayed for.

As the complainant is succeeds to prove the case beyond reasonable doubt and also prove the deficiency in service on the part of the O.P. No. 1 and 2 by adducing document and evidence so he is entitled to get compensation due to unnecessary harassment, mental agony and pain as the O.P. No. 1 and 2 did not appear to take steps for redressal of his grievances before coming to the Court of law and admittedly the complainant is compelled to file this written complainant before this Commission to get relief which caused some expenses to him and in  our estimation for that reason the complainant is also entitled to get litigation cost from the O.P. No. 1 and 2.

Hence, it is ordered, that the petition of complaint is allowed on contest against O.P. No. 1 and 2 with cost.

O.P. No. 1 and 2 shall refund the amount of Rs. 80,319/- only to the complainant either jointly or severally. The O.P.  No. 1 and 2 has also directed to put a sum of Rs. 3,000/- only as compensation to the complainant for harassment and mental agony in addition to that the O.P. No. 1 and 2 also directed to pay a sum

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of Rs. 3,000/- towards litigation cost to the complainant within 45 days from this date of order i.d. the complainant is entitled to get an interest @ 6% p.a. on the amount of Rs. 80,319/- from the date of this Judgment till realization of entire amount i.d. the complainant will be at liberty to put the decree in execution as per provision of law.

Dictated and Corrected by me

President

Member                                            Member                                  President