V.Sankar,

S/o. Venkatachalam,,

Periya Vanavasi Post,

Mettur Taluk,

Salem District. Complainant.
-vs-

1. Power Grid Corporation of India Ltd,

(A Govt.Of India Enterprise)

rep by its Chief Manager/Manager – Salem-SS

400 K.V.Sub Station, K.R.Thoppur,

Salem.

2. K.Ravichandran,

Senior Engineer / C & M,

Power Grid Corporation of India Ltd,

400 K.V.Sub Station, K.R.Thoppur,

Salem. Opposite parties.



This complaint is coming on 24.11.2009 for arguments before us in the presence of Mr.R.Arunkumar, Counsel for the complainant and Mr.N.Shanmuga Sundaram, Counsel for the opposite parties and after hearing the arguments of both parties and having perused documents having stood for consideration till this date this forum passed the following:



ORDER

1. The brief averments of the complaint filed by the complainant is as follows :

The complainant is a consumer as defined under the Consumer Protection Act. Based on the principal of contract, since the complainant’s transactions with the opposite parties are for the purpose of earning for the livelihood by means of self employment of the complainant. The complainant has got business transaction for providing service of vehicle on hire basis for past 4 years with the first opposite party. The complainant made a quotation dated 16.6.2006 and got appointed as a contractor of the first opposite party on 19.7.2006. The contract is for the period from August 2006 to July 2008 as per the Agreement dated 10.8.2006. As such from the month of August 2006 onwards the complainant has provided a TATA Sumo Spacio Jeep bearing Registration No. TN 30 S 1953 to the first opposite party. As per the terms of

agreement the first opposite party has agreed to pay a monthly hire charges of Rs.15,250/- to the complainant. In the above said Rs.15,250/-, the first opposite party has deducted 2.4% as TDS which comes to Rs.366/- and thereafter 10% as Security deposit which comes to Rs.1488/-. This security deposit will be returned at the end of the contract.

2. While so, the complainant received a letter from the opposite party about the rude behaviour of the driver which is false. It is significant to note that those letters did not contain the specific details or events of misconduct of the driver and there is no such untoward incident till date.

3. The first opposite party has sent numerous letters regarding the discrepancy in the odometer. The alleged discrepancy of odometer is in no way relevant to the hire charges since the opposite parties are paying a flat monthly rate at Rs.15,250/- without reference to the Odometer reading. The complainant has corrected the odometer complaint at the very first intimation dated 8.2.2008.

4. The alleged excess reading would have come, whenever the school trip extended for regular local purchase and other purposes by their officials. Further the alleged school trips were at most of the times unofficially extended to the officials of the opposite parties personal usage , but they were treated as official purposes in the records of the opposite parties. Though the complainant has got knowledge about all those irregularities of the opposite parties and their officials, he kept quite as the odometer reading is an internal affair of opposite parties and it is not at all relevant to hire charges to the complainant. The log book entries is also managed by the opposite parties. The odometer reading cannot be altered/controlled by the complainant. It is highly illegal that there were excess payments because of odometer discrepancy. Moreover, there is no such continuous discrepancy to his knowledge and those allegations are the foul play of the opposite parties to achieve their illegal demand of Rs.10,000/- in releasing the arrears of Rs.90,623/- to the complainant as on May 2008. The hire charges details by the opposite parties are worked out to Rs.1,05,506/- as on June 2008.

5. The attitude on the part of the opposite parties amounts to unfair trade practice and deficiency of service. After receipt of the notice from the complainant dated 26.5.2008, the opposite parties gave a reply notice dated 9.6.2008 conceding their liability but refusing to release hire charges and

security deposits by breaching the contract. Hence, it is prayed to direct the opposite parties to return the withheld hire charges and security deposit of Rs.1,05,506/- as on June 2008 with interest at 24% p.a. till date of realization and (2) to pay a sum of Rs.3,80,000/- towards compensation for their deficiency in service, breach of contract, unfair trade practice etc and mental agony and (3) to pay a sum of Rs.10,000/- towards costs.

6. The averments of the written version of the first opposite party and adopted by the second opposite party is as follows :

It is false to say that the complainant is a consumer as defined under this Act. The complainant is only rendered professional service and so it is only a commercial purpose. It is also correct to say that as per the terms of agreement the first opposite party has agreed to pay hire charges of Rs.15,250/- to the complainant for providing a new jeep with T board registration with driver and the first opposite party has to deduct 2.04% as TDS which comes to Rs.317/- and thereafter 10% as security deposit which comes to Rs.1488/- and this security deposit will be returned at the end of the contract. It is false to say that the letter from the opposite parties contains false allegations for illegal termination of the contract. It is incorrect to say that the allegation about the rude behaviour of the driver is false. It is incorrect to say that the alleged discrepancy of odometer is no way relevant to the hire charges. The odometer reading is very relevant and important factor for providing fuel by the opposite parties to the vehicle. The allegations of illegal demand of Rs.10,000/- in releasing the arrears of Rs.90,623/- to the complainant as on May 2008 is nothing bur false. The calculation given by the complainant is misleading.

7. The entire transactions between the complainant and opposite parties are only on contractual basis and therefore if any amount is due from the opposite party, the complainant remedy is only to file a civil suit for the recovery of amount. As per the special terms and conditions of the opposite parties of the contract, powergrid shall provide diesel of one litre for every 10 km and engine oil of one litre for every 1000 km run by the vehicle, in addition to the monthly hire charges of Rs.15,250/-. A report in a vernacular daily shows the character of the driver engaged by the complainant. As per the news paper report the driver was arrested by the police for some illegal activities. As stated earlier the diesel and engine oil are provided by powergrid at 1 litre/10 km and 1 litre/1000 km respectively, which is calculated based on the odometer

readings. By adjusting, manipulating of the odometer reading, the kilometer run by the vehicle shows more than the actual distance covered due to which extra diesel and engine oil are to be provided to the contractor. So, the opposite party loosing heavily on account of excess diesel and oil drawn because of tampering with odometer readings.

8. The opposite parties also engaged two more vehicles bearing Registration No.TN 30 AZ 7072 and TN 30 AZ 7093 for their use. All these three vehicles are utilized for school trips in rotation for both morning and evening hours. Some times, evening trips are clubbed with local purchase. But, morning trips are exclusively for school . For morning trips the distance covered by the vehicle provided by complainant would show the reading of around 58 km whereas the other two vehicle would show the reading of 38 to 42 km for the same trip in the same route, which clearly shows tampering of the odometer of the complainant’s vehicle. When the odometer discrepancy came to the knowledge, the vehicle logbook was verified and found irregularities in kilometer reading from the beginning of the contract.

9. On 13.3.2008 when the Senior Engineer of the first opposite party company was sent to Trichy for official work, in the complainant’s vehicle he has noted down the kilometer reading without the knowledge of the driver. After reaching Trichy, the vehicle was parked in the first opposite party substation premises and at the time of returning, there was a jump of 69 km in the odometer reading eventhough the vehicle was not moved .

10. The terms of contract were withheld to recover the loss incurred by the first opposite party due to excess drawing of fuel on account of odometer tampering. The total recovery amount from the beginning of the contract upto 22.3.2008 is Rs.99,325/- . From 23.3.2008 to till termination of the contract ie upto 9.6.2008 the odometer reading was found to be in order . There is no illegal termination of contract. The contract was terminated as per clause 16 of the special terms and condition of the contract. As per the calculation of the opposite parties, the complainant is entitled only to Rs.12,381/-. So it is prayed to dismiss the complaint with costs.

11. Basing on the proof affidavit of the complainant Ex.A1 to A15 were marked. Ex.A1 is the Copy of Tender Enquiry quotation for providing a jeep on hire basis along with driver. Ex.A2 is the Agreement between the complainant and the first opposite party. Ex.A3 to A5 are the copy of letter

from the first opposite party’s manager. Ex.A6 is the letter given by the complainant dated 13.2.2008. Ex.A7 & A8 are the letter from the first opposite party. Exp.A9 is the notice of termination of contract sent by the 2nd opposite party. Ex.A10 is the legal notice issued by the complainant to the opposite parties. Exp.A11 is the acknowledgement receipt of the first opposite party. Ex.A12 is the acknowledgement card of the 2nd opposite party. Exp.A13 is the letter from the 2nd opposite party to the complainant. Exp.A14 is the Log book relating to the other vehicle. Ex.A15 is the Log book relating to the complainant’s vehicle.

12. Basing on the proof affidavit of the first opposite party Ex.B1 to B5 were marked. Ex.B1 is the letter of award issued by the powergrid to the complainant. Ex.B2 is the Intimation given to the complainant by the Powergrid regarding recovery, withheld amount net payable. Ex.B3 is the Report submitted by the Powergrid Senior Engineer regarding tampering of odometer which observed during his official visit to Tricy. Ex.B4 is the Copies of vehicle’s log book of complainant ‘s vehicle. Exp.B5 is the Copies of log book of other vehicles for comparison of odometer reading.

13. The points for consideration is :

1. Whether the complainant is a consumer or not ?

2. Whether there is any deficiency of service on the part of the opposite

Parties as alleged by the complainant ?

3. If so, to what relief the complainant is entitled to ?

14. POINT NO.1 : The learned counsel for the complainant argued that as per the letter of agreement between the complainant and the first opposite party, the complainant has provided one TATA Sumo Spacio Jeep bearing registration No. TN 30 S 1953 with a driver with required specifications of the first opposite party on a monthly hire charges of Rs.15,250/-. The first opposite party was permitted to deduct TDS at 2.4% and security deposit at 10%. It is also agreed that the security deposit will be returned at the end of the contract. The learned counsel further argued that the opposite parties sent some letters to the complainant with false allegations regarding the conduct of the driver and the discripancy of the Odometer reading and the fabrication of Odometer reading by the driver and so terminated the contract and also withheld the hire charges of Rs.80,370/- upto June 2008 and also not returned the security deposit of Rs.25,136/-. The learned counsel further argued that though the complainant

issued notice to the opposite parties for the payment of the above sum they were ready to pay only paltry sum and so, the complainant has preferred this complaint and prayed to allow this complaint as prayed for.

15. The learned counsel for the opposite parties argued that the letter of agreement entered into between the complainant and the first opposite party is not denied but the complainant has not acted as per the agreement and violated the agreement by allowing his driver to tamper the Odometer reading and caused unnecessary loss to the ex-chequer of the first opposite party and so after giving notice to the complainant , the letter of agreement was terminated and the loss incurred by the opposite parties were calculated from the initial stage of the agreement till the date of termination and that amount was deducted from the amount due to the complainant and the opposite parties are ready to pay the balance amount, if the complainant issued the proper receipt for the same. The learned counsel further argued that the letter of agreement entered into between the complainant and the first opposite party is a commercial transaction and so, the complainant is not coming under the definition of consumer. He has further argued that as per the clause – 9 of Ex-A2 agreement, if there is any dispute between the parties it have to be referred to an arbitrator, but without resorting that provisions, the complainant has knocked at the doors of this forum with false allegation and so this complaint may be dismissed with cost.

16. The learned counsel for the complainant further argued that the complainant is a consumer as per the definition enshrined under section 2 (d) of the Consumer Protection Act 1986. The learned counsel very much relied on the decision of our Hon’ble Supreme Court of India reported in “ KISHORI LAL –APPELLANT –VS- E.S.I. CORPORATION – RESPONDENT” reported in II (2007) CPJ 25 (SC) in which it was held that as per the section 2 (1) (o), the Definition of service split into three parts: main part, inclusionary part and exclusionary part . The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance,transport, processing, supply of electrical and other energy etc, etc. The learned counsel further argued that as per the above decision of our Hon’ble Supreme Court of India



the transport is also coming under the purview of definition of service and so, this complainant is also a consumer.

17. In the above decision our Apex Court has held that the distingion between the “contract of service” and “contract for service”, Under contract for service one partly undertakes to render service to another, example professional or technical service to another. Whereas under contract of service there is only a relationship of master and servant which involves obligation to obey orders in work to be performed and manner of performance.. In the case on hand, the complainant entered into an agreement with the first opposite party for providing service of vehicle along with driver on hire basis for the period of 24 months. Regarding the return of security deposit by the opposite parties to the complainant, the learned counsel for the complainant, relies on the decision of Karnataka State Consumer Disputes Redressal Commission at Bangalore “Monto Motors Limited –Appellant-vs- Sri Sai Motors & ANT – Respondent” reported in I (2007) CPJ 83 and the same have to be accepted. So, it is clear that the complainant is a consumer as for as return of security deposit which was deducted from the hire charges and this point is answered accordingly.

18. POINT NO.2 : The complainant has stated in the complaint that after entering into agreement in Exp.A2 with the first opposite party, he has received various letters from 19.11.2007 to 15.4.2008 with false allegations regarding the rude behaviour of the driver and regarding the discrepancy in the odometer. It is also stated that the alleged discrepancy of odometer is in no way relevant to the hire charges since the opposite parties paying a flat monthly rate at Rs.15,250/- without reference to the odometer reading. It is also mentioned that as there were discrepancy in the odometer reading and the opposite parties are not satisfied with the performance of the driver, the opposite parties terminated the Ex.A2 agreement for the reasons best known to them and withheld the amount of Rs.80,370/- towards the hire charges till June 2008 and security deposit of Rs.25,136/- which is not correct. The learned counsel for the complainant prayed that these amounts have to be paid to the complainant by the opposite parties with interest.

19. In the written version the opposite parties it isstated that as per the Ex.A2 agreement the diesel and engine oil are provided by the first opposite party to the complainant’s vehicle at the rate of 1 litre diesel per 10 kms and 1 litre oil for 1000 kms at free of cost and so, the odometer reading is



important to show that the mileage covered by the vehicle for its consumption of diesel and oil. It is also stated if the odometer reading is tampered the consumption of diesel and oil would also go up and the opposite parties will be loosing the amount and they have also stated that the first opposite party has engaged two more vehicle bearing registration No.TN 30 AZ 7072 and TN 30 AZ 7093 for their use for the same purpose. It is also stated that on the verification of log books of these two vehicles and the log book of the complainant’s vehicle it is clear that the odometer reading of the complainant’s vehicle is tampered one. It is also stated that one day the complainant’s vehicle was taken by the 2nd opposite party to Trichy office and was stationed there and on verification the odometer reading was tampered by the driver and so, the opposite parties have come to the conclusion that 30% of the amount paid to the complainant’s vehicle is to be recovered towards excess consumption of diesel and oil by the complainant’s vehicle and they have calculated and recovered that amount from the arrears of hire charges to be paid to the complainant and the complainant is entitled to a sum of Rs.12,381/- only.

20. So, it is clear from the above allegations that the non payment of hire charges, tampering of odometer reading are commercial transactions and also a complex nature which can be proved by letting in evidence and cross examination. So, the complainant is advised to file a suit in proper forum for recovery of money of hire charges from the opposite parties.

21. But as per the decision of Karnataka State Consumer Disputes Redressal Commission, at Bangalore in the case of “MONTO MOTORS LIMITED –APPELLANT –VS- SRI SAI MOTORS AND ANOTHER – RESPONDENTS” reported in 1 (2007) CPJ 83 in which it was held that non refund of security deposit after withdrawing the dealership agreement is amounts to deficiency of service. So, the action of the opposite parties in non payment of security deposit of Rs. 25,136/- deducted from the hire charges of the complainant is amounts to deficiency of service. So, the complainant as a consumer is entitled to claim this amount from the first opposite party and this point is answered accordingly.

22. POINT No.3 : The complainant has stated in the complaint that a sum of Rs.25,136/- was deducted towards the security deposit from the hire charges of the complainant by the opposite parties for the period from September 2006 to June 2008 and the same have to be returned to him with

interest. In the proof affidavit of the opposite parties it is stated that in the case of irregularities, the security deposit will be forfeited and the contract will be short closed. On perusal of Ex.B1 and Ex.A2 it is seen that no such provision is incorporated. So, the non payment of security deposit is deficiency of serve and the opposite parties are liable to pay the amount to the complainant as prayed for.

23. In the result, the complaint is partly allowed and the opposite parties are directed to pay a sum of Rs.25,136/- towards the security deposit to the complainant with interest at the rate of 9% p.a from the date of filing of this complaint till the date of realization and (2) to pay a sum of Rs.10,000/- towards the mental agony, distress undergone by the complainant and (3) to pay a sum of Rs.5000/- towards costs. These awards shall be paid within a period of two months from the date of this order, failing which the complainant is at liberty to proceed under Section 25 and 27 of Consumer Protection Act.

24. Regarding the arrears of hire purchase the complainant is advised to file a suit before proper forum for recovery of money from the opposite parti