IN THECONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 12th DAYOF JANUARY 2021
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LLM. President
Sri.Stanly Harold, B.A.LLB, Member
CC.No.51/2016
Thomas Antony,62 years,
S/o Antony Thomas,
Pullamkalam, Bhavana Nagar-118.,
Kadappakkada, Kollam.: Complainant
(By Adv.Vinod Mathew Wilson)
V/S
The Proprietor,
Skill Tech Car Care,
KadappakkadaP.O.,Kollam 691 008. : Opposite party
(By Adv.T.R.Vinod)
ORDER
Sri.Stanly Harold, B.A.LLB, Member
This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows:-
On 23.12.2015 at about 10 a.m the complainant entrusted his Hyundai I 10 car bearing No.HR 26AS 9761 to the opposite party workshop Skill Tech Car Care. It was for a normal checkup prior to his proposed long journey with his family. Opposite party after taking a trial Run informed the complainant that no substantial defect or disorder was detected and no need for any repair or maintenance or replacement of any spare parts is required and that the complainant can take back the vehicle by evening. According the complainant reported himself at 2 p.m for taking back the vehicle. There upon the opposite party informed the complainant that between Rs.9000/- to 14,000/- will be charged for the repair and maintenance work done by replacing the spare parts. The complainant entertained doubt as no such repair and replacement or maintenance work was stated to him by the opposite party after trial run. Hence the complainant expressed doubt and demanded the opposite party to return the replaced parts when the vehicle is returned. The complainant reached at the opposite party’s workshop at about 5 p.m on that day to take back the vehicle and there upon the opposite party told him that a bill for Rs.13,675/- has been raised as charges for the repair work. The complaint was doubtful and asked the opposite party to return the replaced spare parts to convince him that those repair andreplacement on his vehicle. But the opposite party told the complainant that there is no provision to return the old and replaced spare parts complainant was convincedthat no such repair or replacement was carried out by the opposite party. The complainant who reasonably suspected fraud on the part of opposite party took the vehicle to Kollam Popular Hyundai workshop on 05.01.2016 for an overall inspection to ascertain whether the alleged replacement of spare parts and maintenance stated in the bill were done by the opposite party. After verification the said Popular Hyundai issued a memo stating that no such parts were replaced and the only item replaced was air filter which was not even a genuine one.
Opposite party filed version by resisting the averments in the complaint. According to the opposite party the entire repair and replacement work was done after getting consent from the complainant and that too after convincing him. It is further contented that since the work was done on the eve of X-mas numerous other works were pending so the opposite party was not able to show the replaced spare parts to the complainant. This agitated the mind of the complainant despite the opposite party tried to pacify the complainant by requesting the complainant to come on the very next day so that the spare parts replaced can be showed to the complainant. But the complainant was not agreeable and he threatened the opposite party with serious consequences. The present complaint has been filed on an experimental basis only to harass the opposite party. The opposite party is running the business for the last several years and there was not even a single instance which caused any concern to the customers. The opposite party further contend that the complainant has produced a receipt alleged to have been issued by Popular Hyundai, Trivandrum which is dated 05.01.2016. As per the opposite party it is a fabricateddocument and on verification by the opposite party at Popular Hyundai, Trivandrum
it is learnt that they have not issued such a receipt. Moreover it is a handwritten one and same does not resemble the actual receipt used to be issued by the Popular Hyundai. Opposite party further contends that the document was a cooked up one. Normally when a vehicle is entrusted with the workshop like Popular Hyundai theywould issue entry pass, job card etc. Moreover they would not commend anything about the previous work unless it is being duly authorized to do so by the appropriate
authority. So the complaint itself is based on vendetta and does not have any merit. So these being the actual fact the allegations in para 1 to 5 are false and denied by the opposite party and prays to dismiss the complaint with costs of the opposite party.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service on the part of opposite party in carrying out the repair and maintenance work done on the vehicle belongs to the complainant
- Whether the complainant is entitled to get the compensation as prayed for?
- Relief and costs?
Evidence on the side of the complainant consists of the oral evidence of PW1, to PW3. Ext.P1 and P2documents.Evidence on the side of the opposite party consists of the oral evidence of DW1 and DW2 and Ext.B1.
Both Advocates have filed notes of argument.Heard both sides.
Point No. 1
PW1 is the complainant in this case who filed affidavit in lieu of chief examination by reiterating the averments in the complaint. Ext.P1 is the estimate issued from the Skilltech car care Kadappakkada P.O., Kollam. Ext.P2 is the estimate issued from Popular Hyundai vehicles, Kollam which has been originallymarked subject to proof. PW2 is an employee of Kollam Popular Hyundai . PW3 is the Service Manager of Kollam Popular Hyundai who issued P2 document in favour of the complainant. Both PW2 and 3 proves Ext.P2 absolutely.
The oral evidence of the PW1 would establish that on 23.12.2015 at about 10 a.m the complainant has entrusted his Hyundai I 10 car to the opposite party’s workshop “Skill Tech Car Care”. It was for a normal checkup prior to PW1’s proposed long journey along with his family.The opposite party after taking a trial run informed the complainant that no substantial defect or disorder is detected and that the complainant can take back the vehicle by evening. According PW1 reportedhimself at the opposite party’s workshop at 2 p.m for taking back the vehicle. Thereupon the opposite party informed him that an amount between Rs.9000/- to 14,000/- will be required as charges for replacement of spare parts and maintenance work. According to PW1 he used to carry out service of his vehicle at Popular Hyundai showroom. But this time for the purpose of a urgent journey he had entrusted his vehicle in the service centre near byto his house as he intends to go for a long journey he wants to check and evaluate the air, oil etc. of the vehicle that after trial run and examination opposite party informed him that no repair, replacement or maintenance work is required for the vehicle. Hence he entertained doubt regarding the alleged replacement of spare parts of the Hyundai car entrusted by him and demanded to hand over the replaced parts and convince regarding the repair, replacement and maintenance work done on the vehicle. PW1 has categorically deposed that at the time of entrusting the work the opposite party has not told that the vehicle requires any repair or maintenance work. Hence the expressed his protest to the opposite party regarding the alleged work done on his vehicle without his consent and permission. However the opposite party was not willing or amenable to return the old spare parts of his car.This made the suspicion about the claim of the opposite party whether any such service or any replacement of spare parts has done on the car. Hencehe took his vehicle to Popular Hyundai showroom at Kollam were they have verified the vehicle and given an Ext.P2 opinion about the work done by the opposite party.
According to DW1 who is none other than the proprietor of the opposite party workshop the complainant has entrusted that vehicle with a direction to make a thorough check up of the vehicle and also to replace necessary spare parts and the engine oil. On the basis of the above direction he made a thorough check up and informed the complainant that an amount of Rs.15,000/- required as expense for the repair and maintenance work of the vehicle. On the basis of that oral agreement theopposite party has completed the repair work and he levied Rs.13675/- being the value of spare parts and labour charge that the complainant was fully satisfied withthe repair and maintenance work carried out by the opposite party. As that day was the eve of X mas day that there was heavy work and hence he assured that he would hand over the replaced spare parts on the next day. But the complainant was not amenable for the same. He used abusive language against the opposite party and his labours and also threatened by stating that he would bring the opposite party and his workmen to the court. DW1 has further sworn in the proof affidavit that he has not recovered any excess amount accept the value of spare parts which were actually replaced and service charges. According to DW1 there is no deficiency in service or any unfair trade practice on the part of the opposite party.
Now the question to be consideredis whether the opposite party informed the complainant after trial run that the vehicle was suffering from any defect and he requested the opposite party to replace the any spare parts and also agreed for the quantum of service charges to be paid for carrying out the repair and maintenance work of the vehicle. DW1 would admit during cross examination that when any customer brings a vehicle staff attached to his workshop used to make a trial run and find out the defects and also used to note the defects in the job card and hand over the same to the customer and also obtain consent of the owner to undo the defects. However in this case admittedly DW1 or nobody on behalf of the workshop preparedany job card and handed over any copy of the same to the complainant indicating the nature of defects and approximate amount required to care the defects. The opposite party has no such case in the version also. Though DW1 has deposed that he has prepared an estimate and kept the same at his workshop he (DW1) has on case that a copy of the said estimate was hand over to the complainant. It is true that the opposite party has produced and got marked Ext.B1at a highly belated stage through DW2 service supervisor of the opposite party institution. Though PW1 is having a definite case that the opposite party has not prepared of job card nor he intimated the nature of work to be carried out and quantum of amount required for carrying out the amount the opposite party has not produced the job card/estimate along with the version. The non-production of Ext.B1 document along with version or when PW1 was in the witness box casts series doubt in the mind of the commission regarding the claim of DW2 that he has already prepared job card indicating the defect and noting the amount required to cure the defects. Even according to DW1 he has not prepare a job card and hand over a copy of the same to the complainant but he has only prepared an estimate.
However PW1 would admit during cross examination that the opposite party has made a preliminarycheck upand told him that an amount of Rs.9,000/- to 14,000/- is required for repair and maintenance of the vehicle. PW1 would also admit that the repairing work of the vehicle was carried out by the opposite party withhis consent and connivance. PW1 would further admit that “Ft¶mSvtNmZn-¡m-sX-bmWvhml\w ]Wn-X-sX¶vkX-y-hm-Mvaq-e-¯n ]d-ªn-cn-¡p-¶Xv If-h-tÃ(Q) F¶v ]d-ªn-«p-s-¦nÂAXv If-hm-Wv(A)”. In view of the above admissionof the complainant coupled with Ext.B1 document it is clear that the opposite party has made aware of the defects of the vehicle to the complainant on the same day when the vehicle was entrusted to the opposite party service station and also preparedestimate indicating the nature of defects of the vehicle. In view of the above admission of PW1, it is seen that he has no consistent case regarding this aspect. In the circumstances we find no merit in the allegation of the complaint in para No.1 and 2 of the complaint that the alleged repair and maintenance work of the vehicle was carried out by the opposite party without his consent and connivance.
The complainant would further allege that though the opposite party claims to have replaced certain defective parts of the vehicle, the defective and replaced parts were not shown to the complainant nor handed it over to him inspite of his repeated requests. Therefore complainant would alleged that the opposite party has not replaced any spare parts of the vehicle and if he actually replaced the same he could have very well shown and hand over the same to the complainant since it belongs to the complainant. The specific contention of the opposite party in this regard is that the repair work was carried out on 23.12.2015 which was the eve of X mas of the year and hence there was heavy workload at his workshop and that the vehicle was handed over to the complainant during night and therefore he could not collect and show the replaced spare parts. In view of the facts and circumstances we find little force in the above contention. Even if the work was carried out on the eve of X mas of that year and there were heavy work load repair and maintenance of a vehicle is done by senior mechanic with assistance of one or two of his juniors. After completing the work and removing the vehicle from the place where it was kept for carrying out the work only the other vehicle is brought to spot. In the meanwhile the junior mechanics used to collect the replaced old spare parts and keep the same in the dickey of the vehicle repaired even without demanding the same by the customer. The owner can see and verify the replaced spare parts when he open the dickey but in this case the replaced spare parts were neither collected nor shown to the complainant inspite of repeated request which created doubt in the mind of the complainant. According to the complainant the vehicle required no such work when he entrusted the same to the opposite party service centre and the opposite party has not carried out any such work and that is the main reason for the raising the above doubt whether the opposite party has replaced any such spare parts or not. Furthermore the opposite party has not shown any bill for the purchase of new spare parts from any spare parts dealer which aggravated his doubt. The opposite party has not offered satisfactory explanation for the above two grounds of doubt. According to DW1 some of the replaced spare parts were missing when he has gone to purchase the new spare parts shop. But the said aspect is not stated in the version nor in the proof affidavit. Though DW1 would state during cross examination that he has purchased spare parts from the shop by name of V4 in the name of the workshop he denied having shown the same to the complainant. However that bill has not been produced along with the version or when PW1 was in the witness box. Hence it is doubtful whether the opposite party has purchased any such spare parts for the vehicle as claimed by him. If the spare parts was purchased by DW1 in the name of the workshop he could have very well produced the bill and got it marked in evidence so as to clarify the doubt of the complainant and also to convince the commission that he purchased and replaced the spare parts on the vehicle of the complainant. Inspite of the definite contention of the complainant that the opposite party has neither purchased any new spare parts except filter nor replaced the same the opposite party has not produced at least the available old spare parts and the bill claimed to have been obtained by him while purchasing the new spare parts. In the circumstances commission is entitled to draw adverse inference by virtue of section 114(g) of the Indian Evidence Act that the opposite party could have produced the old spare parts and bill if he actually purchased and replaced the defective spare parts. In view of the material discussed above we find force in the claim of the complainant that the opposite party has not purchased any spare parts except filter and replaced as claimed by the complainant.
The complainant has also a case that as he entertain doubt regarding replacement of the spare parts and the repair and maintenance work claimed to have been done on his vehicle he brought the said vehicle to the Popular Hyundai, Kollam workshop and got tested the car by PW3 Ayyappadas who was the Service Manager of that institution and also issued P2 document. The opposite party has resisted the acceptance of Ext.P2 document with tooth and nail when the complainant attempted to get it marked through PW1and hence the same was marked through PW1 subject to proof. But the complainant got it marked absolutely through PW3 who prepared and signed the same. The oral evidence of PW3 would indicate that on 05.01.2016 he was the service manager of Popular Hyundai were the complainant has brought
his I 10 car HR 26AS 9761 and has issued Ext.P2 bill. Describing the nature of verification done by him. He would further admit that Ext.P2 contain the seal of Trivandrum branch. Since the Kollan branch has been working under Trivandrum branch. According to PW3, 8 items of spare parts described in P2 bill has not been replaced in the vehicle by the opposite party. It is further certified in P2 that“ we checked partstheseare not replaced Air filter replaced but not genuine”. As per the oral evidence of PW3 and Ext.P2 document the only spare parts replaced is the air filter which is also not genuine spare parts. As per Ext.P2 estimate 10 spare parts were replaced. But the oral evidence of PW3 coupled with P2 document would indicate that the no such spare parts except air filter were replaced and the air filter replaced is not genuine one also. In the light of the oral evidence of PW1 to PW3 we are inclined accept P2 document the marking of the same has been made absolute through PW3. In the light of the oral evidence of PW1 and PW3 coupled with Ext.P1 and P2 document it is crystal clear that the opposite party has not replaced the spare parts claimed to have been replaced in the vehicle except replacing a sub standard Air filter. In the circumstances it is clear that there is deficiency in service and unfair trade practice on the part of the opposite party. The point answered accordingly.
Point No.2
In view of the finding under point 1 is clear that the opposite party has levied charges for spare parts which were not replaced or done and the same was convinced by the complainant when it was checked up by PW3. In the circumstances the complainant has sustained financial loss. It is also brought out in evidence that due to the realization of amount shown in Ext.P1 bill and not handing over of the replaced spare parts inspite of repeated requests the complainant has sustained mental agony apart from financial loss. Therefore the complainant is entitled to recover Rs.13,675/- less value of air filter Rs.540/- its replacement charge Rs.500/- totalling Rs.1040/- at and also entitledto get compensation to the tune of Rs.10,000/- as claimed in the complainant. Point answered accordingly.
Point No.3
In the result complaint stands allowed in the following terms:-
- The opposite party is directed to pay Rs.12635/- Towards the value of spare parts and replacement charges which were not done by the opposite party in the vehicle of the complainant with interest @ 6% per annum from the date of complaint till realization.
- The opposite party is also directed to pay Rs.10,000/- as compensation along with interest @ 6% per annum from the date of complaint till realization.
- The opposite party is further directed to pay Rs.5,000/- as costs of the proceedings.
- The opposite party is directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover Rs.22,635/- with interest @ 9% per annum along with costs Rs.5,000/-.
Dictated to the Confidential Assistant Smt. Minimol.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 12 thday of January 2021.
E.M.MuhammedIbrabim:Sd/-
(President)
StanlyHarold:Sd/-
(Member)
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Thomas Antony, S/o Antony Thomas
PW2 : Sumith, S/o Sumarai K.
PW3 : Ayyappadas , S/o K.K.Viswanathan
Documents marked for the complainant
Ext.P1 : Estimate issued from the Skill tech car care Kadappakkada P.O.,
Kollam.
Ext.P2 : Estimate issued from Popular Hyundai vehicles, Kollam
Witnesses Examined for the opposite party:-
DW1 : Sujith, S/o Nadarajan
DW2 : Anu R., S/o Raju
Documents marked for opposite party:-
Ext.B1 : Job card
E.M.MuhammedIbrabim:Sd/-
(President)
StanlyHarold:Sd/-
(Member)
Forwarded/by Order
Senior Superintendent
