D.O.F. 08.04.2010
D.O.O.29.11.2011
THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Dated this the 29th day of November 2011.
C.C.No.103/2010
K.Sinija,
Keloth House,
Kanhira.P.O.,
Thottada 670 007 Complainant
(Rep. by Adv.Saju Balkrishnan)
1. Managing Director,
M/s.Popular Vehicles & Service Ltd.,
Mundayad Road,
Near Elayavoor Village Office,
Chovva.P.O. 670 006.
2. Managing Director,
M/s.Popular Used cars,
Mele Chovva, P.O.Chovva,
Kannur 6.
(Rep. by Adv.M.Govindan kutty for Ops 1 & 2)
O R D E R
Smt. K.P. Preethakumari, Member.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `52,000 with 6% interest from the date of complaint till the date of recover.
The case of the complainant in brief is that she had purchased a used car having registration No.KL.13,G.6467 Maruthi Zen from 2nd opposite party on 30.4.07 and the 2nd opposite party offered one year free service guarantee for any mechanical repair and is come under the scheme of Maruthi true value. But on29.12.07 the car has shown some trouble for starting and put the same to 1st opposite party for repair who is a sister concern of 2nd opposite party. At the time of entrusting the 1st opposite party’s service engineer checked and informed the complainant that the camshaft pully was brocken and hence handed over the vehicle to 1st opposite party and issued job card having No.11259 dt.29.12.07 which bears the complaint and the total cost of the repair. The 1st opposite party told to the complainant that the spares of camshaft pully was not available in 1st opposite party’s store and is to be collected from Maruthy Company and hence the 1st opposite party seek one month time for repair and the vehicle was entrusted to 1st opposite party for repair. Even though the complainant contacted 1st opposite party several time 1st opposite party has not respond positively and on 28.1.08 the staff of 1st opposite party informed the complainant that camshaft pully received from Maruthi company and was replaced with old one. But the same complaint happened again. Then the service engineer of 1st opposite party told to the complainant that there was some defects to the engine and is to be cleared and if not, the vehicle cannot be in running condition. The complainant constrained to agree with the opposite party. Eventhough the complainant contacted the 1st opposite party in every week, he is not at all ready to deliver the vehicle after repair. But on 10.4.08 the staff of 1st opposite party informed the complainant that the vehicle was ready and demanded `23,000 as repair charges and additional `3500 for purchase of new battery and informed the complainant that the old battery is damaged. But according to the complainant the battery was in good working condition at the time of entrustment. The battery was kept without recharging for more than three months and hence its power get lost. It is the duty of 1st opposite party to assure the safety of the vehicle and its accessories and it is a clear default on the part of 1st opposite party and hence the complainant is not liable to pay the battery charges.
According to the complainant opposite party had not done the engine repair. If the camshaft has any defect the entire engine need not be rebuilt and it is a false story. The 1st opposite party is an authorized dealer of Maruthi vehicles and can arrange spares easily. The 1st opposite party informed the complaint about that engine rebuilding when the complainant approach to take delivery. The complainant purchased the vehicle under true value scheme of Maruthi and not liable to pay the repair charges up to one year from the date of purchase and the opposite party told that such scheme is not available to the complainant and 1st opposite party told that it is false promise made by 2nd opposite party at the time of purchase of the vehicle. Without any sufficient reason the 1st opposite party kept the vehicle for months in their custody and hence complainant cannot use the vehicle and incurred huge losses. So the complainant issued a lawyer notice to opposite parties 1 and 2 but opposite parties denied and demanded `200 per day for the rent for the vehicle kept in their shed for repair and the complainant has constrained to take delivery of the vehicle with protest. There is deficiency of service on the part of opposite party and unfair trade practice on the part of 2nd opposite party. So the complainant has suffered huge loss and the opposite parties are liable to refund money collected from the complainant. Hence this complaint.
In response to the notice issued by the Forum both opposite parties appeared and filed their version admitting that the complainant had purchased a used car bearing Reg.No.KL/13G.6467 from 2nd opposite party on 30.4.07.There is no post of Managing Director for both the opposite parties. The 2nd opposite party denies the allegation that at the time of purchase, the 2nd opposite party made representation that he is dealing with Maruthi True Value vehicle and offered one year free service guarantee etc. The 2nd opposite party is not issuing either any warranty or any written promise for used cars at the time of purchase and it was told by the 2nd opposite party.
The 1st opposite party admits that the complainant brought the vehicle for repair due to serious damages on camshaft engine and with weak battery. Since there is no warranty to the vehicle, supervisor under 1st opposite party detailed the value of the required spare parts of camshaft, parts of engine, battery and labour charges. There after the complainant verified the same with the service engineer and told him that she needs perfection and gave consent to him and carried about repairing work. Camshaft and battery were replaced and engine was reconditioned and the repairing was done with utmost perfection. Thereafter the complainant neither contacted the opposite party nor took delivery of the vehicle after paying the repairing charge and value of the spare parts replaced. The opposite parties deny that they have requested one months time for repair since the spare parts are not available. It is also not correct to say that opposite parties have not responded for complainant’s enquiry. The allegation that Camshaft of the vehicle again was defective after repair and hence opposite party represented that the engine has to be reconditioned etc. are not correct. It is also not correct to say that opposite parties staff informed the complaint that vehicle was ready for delivery and demanded `23,000 as repair charge and additional `3500 for battery and opposite party informed that the existing battery was damaged etc. The 1st opposite party denies the allegation that the battery was in good condition at the time of entrustment and the battery damaged because the battery was kept without recharging for 3 months and also denies the averment that it is the duty of the 1st opposite party to assure safety of vehicle etc. The 1st opposite party further denies the allegation that the repair was not carried out and then the camshaft pully become defective again, the engine cannot be rebuild and demanded `23,000 as repair charge and 1st opposite party can easily arranged spare parts etc. According to opposite party even after repeated callings the complainant did not take delivery of the vehicle from the premises of the opposite party. Without approaching him directly, complainant issued a lawyer notice calling upon him to deliver the vehicle with free service charge and also the pay `4000 towards the value of new battery and `15,000 as compensation and the 1st opposite party issued a reply on 25.4.08. The 1st opposite party in his reply stated that the vehicle is in full working condition and complainant can take delivery of the vehicle after paying repairing charge, value of camshaft and new battery and `200 per day as rent for keeping the vehicle in his premises. Then the complainant approached opposite party for the first time and after repair and took delivery after paying required charges and value of replaced parts and delivery was taken with full satisfaction and hence promised that she will not raise any claim in future and hence opposite party relinquished the claim of collecting floor rent from the complainant. The complainant fully paid charges and took the vehicle and hence she is barred from raising any further claim in future. So there is no deficiency of service or unfair trade practice on the part of opposite parties and hence the complaint is liable to be dismissed.
Upon the above contentions the following issues have been
raised for consideration.
1. Whether there is any deficiency of service on the part of
opposite parties?
2. Whether the complainant is entitled to any relief as
prayed?
3. Relief and cost.
The evidence in the above case consists of oral testimony of
PW1, DW1 and Exts. A1 to A7 and B1.
Issue Nos.1 to 3
The complainant’s case is that she had purchased a used car from 2nd opposite party and at the time of purchase they offered one year service guarantee and its camshaft pully was broken within 8 months of its purchase and issued job card showing this and later on the opposite parties informed that the engine has to be rebuilt and the batteries also to be replaced and received `26,500 from the complainant. In order to prove her case she has produced documents such as cash receipts for `21,403 and `1639, job card dt.29.12.07, copy of RC, copy of lawyer notice and a bill for `3000 and PW1 was examined. In order to disprove the case the DW1 was examined and produced the copy of lawyer notice etc. Admittedly the complainant purchased a used car from 2nd opposite party and 1st opposite party is their service centre. The 1st opposite party admits that the complainant had entrusted the car before them and at the time of entrustment the problem was detected as camshaft pully was broken and issued job card Ext.A3. The complainant’s specific case is that the opposite parties told her that even though the opposite parties replaced the broken camshaft pully it was again broken and this was happened due to the engine trouble and hence the engine had rebuild and the battery was also changed since it become defective. So the opposite parties had done this work with the consent of the complainant and received `23,000 as repair charge and `3500 as price of the new battery. But according to the complaint the opposite parties had not carried out the engine work and received exorbitant amount from her and kept the vehicle for a long time in the service centre of 1st opposite party and hence the battery become inactive. Admittedly 1st opposite party has received `23,000 as repair charge and `3500 as price of battery. But the reason for the allegation that the engine work was not done by 1st opposite party is that a mechanic by name Shinoj was informed after examining the vehicle that the 1st opposite party has not carried out any of such work. But the complainant has not taken any steps to examine that mechanic in order to prove her case. Moreover the complainant has not taken any steps to appoint an expert and to call for report in order to convince the Forum that the 1st opposite party has not carried out any such engine work. So there is no convincing and reliable evidence before the forum to come to the conclusion that the work was not carried out by 1st opposite party. The complainant is mainly depending upon the Ext.A3 job card dt.29.12.07 which was issued by the 1st opposite party at the time of entrusting the vehicle before the 1st opposite party. Admittedly the engine trouble was detected later on after replacing the camshaft pully so Ext.A3 is not sufficient in order to came to the conclusion that the 1st opposite party has not carried out the engine work. The complainant contended that the person who had carried out the repair work was still working with 1st opposite party and an inference can be drawn infavour of her due to non examination of him. But the burden of proof lies with the complainant to prove that the engine work was not carried out by the Opposite party. Above all the complainant has not produced any documents to show that the 2nd opposite party has promised one year free service guarantee for the vehicle at the time of purchase. From the above discussion it is seen that the complaint has miserably failed to convince the Forum that the 1st opposite party has not carried out the engine work and hence not proved the deficiency of service and unfair trade practice of the opposite parties. So the complaint is liable to be dismissed and order passed accordingly.
In the result, complaint is dismissed. No cost.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the Complainant
A1 & A2.Cash receipts dt.22.5.08 issued by OP.
A3.Copy of the job order issued by OP
A4.Copy of the RC of the vehicle KL.13.G.6467
A5. Copy of the Reply notice issued by OP
A6. Bill No.36 dt.22.5.08issued from Sree Chaithanya Enteprises,
chovva
A7.Tax invoice bill dt.31.12.07 issued by OP
Exhibits for the opposite Parties:
B1. Copy of the reply notice dt.25.4.08 sent to complainant
Witness examined for the Complainant
PW1.Hemanth.M
Witness examined for the opposite Parties:
DW1.Krishna Prasad.A
/forwarded by order/
Senior Superintendent
