Chandigarh

StateCommission

A/290/2019

M/s Kamal Motors - Complainant(s)

Versus

Baldev Singh - Opp.Party(s)

Gunjan Rish, T.S Khaira, Piyush Aggarwal & MS Saini Adv.

22 Jul 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	290 of 2019
Date of Institution	:	29.11.2019
Date of Decision	:	22.07.2022

 

 

 

 

 

 

1]      M/s Kamal Motors, Shop No.215, Sector 48-C, Chandigarh.

2]      Kamal Kumar, Proprietor of M/s Kamal Motors, Shop No.215, Sector 48-C, Chandigarh.

……Appellants/Opposite Parties.

Versus

Sh. Baldev Singh S/o S. Sardool Singh R/o Focal Point, Plot No.100, Near Bus Stand Tarn Taran.

…..Respondent/Complainant.

 

BEFORE:    MRS. PADMA PANDEY, PRESIDING MEMBER

                  MR. RAJESH K. ARYA, MEMBER

 

ARGUED BY:-  

Sh. Gunjan Rishi, Advocate for the appellants.

Sh. Akhilesh Vyas, Advocate for the respondent along-with respondent in person.

 

PER  RAJESH K. ARYA, MEMBER

                    This appeal has been filed by the opposite parties, namely, M/s Kamal Motors & its Proprietor Sh. Kamal Kumar (appellants herein) against order dated 10.09.2019 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-I, U.T., Chandigarh) [in short ‘District Commission’], whereby consumer complaint bearing No.150 of 2018 filed by the complainant, namely, Sh. Baldev Singh (respondent herein) has been partly allowed by the District Commission in the following manner:-

“9.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed.  OPs are directed as under :-

1. To refund the amount of Rs.35,000/-to the complainant alongwith interest @ 9% per annum from the date of making the payments till realization. The OPs shall also return the vehicle to the complainant.
2. to pay an amount of Rs.15,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

10.        This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

2.                The case of the respondent/complainant before the Ld. District Commission was that on 2.6.2017, he had purchased vehicle bearing registration No.PB-09-G-2700 in a public auction held in the office of State Transport Commissioner, Punjab against consideration of Rs.1,60,000/-. It has further been stated that the said vehicle was given to the appellants for service and repair, as engine of the said car was not working properly. It has further been stated that the the appellants quoted the total amount of Rs.35,000/- for service and repair, out of which, Rs.25,000/- was given on 3.6.2017 by swiping the debit card and the amount was transferred in the name of the appellants. It has further been stated that it was assured by the appellants that the work order would be completed within 5-6 days.  Again on 17.7.2017, the remaining amount of Rs.10,000/ was demanded by the appellants, which was paid in the presence of Sh. Nitish Kalyan. It has further been stated that even after receipt of the entire amount, the vehicle was not repaired by the appellants. Hence, a complaint was filed before the Ld. District Commission.

3.                On the other hand, the opposite parties contested the consumer complaint and claimed that the amount received was for the purchase of the spare parts as the opposite parties do not run a service centre and rather sells spare parts. Other averments were also denied.  On these lines, the cause was sought to be defended.

4.                The order passed by Ld. District Commission has been assailed on the ground that the entire basis on which the Ld. District Commission has based its findings, is erroneous and presumption. It has further been stated that the Ld. District Commission also failed to appreciate the fact that while adjudicating the consumer complaint, findings have to be based on facts and not on inferences. It has further been stated that the appellants had clearly put on record the bill wherein money was charged only for the spare part as sold to the respondent. It has further been stated that the appellants employ no mechanic and it was the respondent who got his work done from mechanic of his choice and the appellants only provided the spare parts for the said repair. It has further been stated that the Ld. District Commission has heavily relied upon the affidavits as submitted by the respondent with his consumer complaint and the appellants have failed to understand as to how the affidavits of interested individuals can even be considered by the Ld. District Commission. Lastly prayer for setting aside of the impugned order has been made.

5.                On the other hand, on behalf of the respondent/complainant, it has been stated that the respondent had given the car to the appellants for repair and service as the appellants are doing the business of sale of goods and spare parts. It has further been stated that at the time of the deal between the respondent and the appellants, the appellants assured the respondent that they would provide good service to the respondent as such the appellants are at default for not delivering the said car to the respondent. It has further been stated that the conduct of the appellants has also caused mental and physical harassment to the respondent. It has further been stated that the respondent approached the office the appellants many times and requested to deliver the possession of the car but the appellants lingered on the matter without any sufficient reason and cause. It has further been stated that the Ld. District Commission rightly allowed the complaint after due appreciation of evidence on record. Lastly, prayer for dismissal of the appeal has been made.

6.                First of all, we would like to dispose of two applications bearing No.1043 of 2019 & 1047 of 2019, filed by the appellants, first one, for condonation of delay of 38 days in filing the appeal and second one for placing on record affidavit of Sh. Pankaj Arora S/o Kewal Krishan Arora R/o H.No.1312/7, Phase-II, Mohali, Punjab, Annexure A-1, by way of additional evidence. The respondent did not file any reply to these application and did not contest the same. As such, for the reasons given in the applications, both the applications bearing No.1043 of 2019 & 1047 of 2019 are allowed. The delay of 38 days in filing the appeal stands condoned. Further, the affidavit of Sh. Pankaj Arora S/o Kewal Krishan Arora R/o H.No.1312/7, Phase-II, Mohali, Punjab, Annexure A-1 is taken on record subject to just exceptions of the case. 

7.                After giving our thoughtful consideration to the contentions raised by the Counsel for the parties and going through the record, impugned order and the written arguments carefully, we are of the considered view that the appeal is liable to be dismissed for the reasons to be recorded hereinafter. The sole version of the appellants is that they had raised the bill only for the spare part as sold to the respondent and it was the respondent who got his work done from mechanic of his choice. We are not convinced by this contention of the appellants. It is not in dispute that the respondent visited the shop of the appellants on 2.6.2017 and paid an amount of Rs.25,000/- followed by another payment of Rs.10,000/- in cash.  Perusal of Annexure OP-1/1 clearly transpires that the value of the parts was mentioned as Rs.25,000/-, however, the parts sold to the complainant are not legible to say what kind of parts were sold. We endorse the observation given by the Ld. District Commission that people engaged in the business of sale of spare parts, especially in Motor Market Complex like the one in Sector 48-C, Chandigarh, do have their own set of mechanics to perform the labour work also.  As such, as rightly held by the Ld. District Commission, the probability of the amount having been paid to the appellants for the repair and fitting of the parts in the vehicle could not be ruled out.

8.                Not only this, the Ld. District Commission also went on to play the CD i.e. audio video of the shop of the appellants (produced on record by the respondent before it), which showed that there has been a board on the shop of the appellants (Kamal Motors), where the car in question was parked outside it.  The Ld. District Commission also made out from the said CD that in front of the shop of the appellants, some vehicles were parked, wherefrom an inference was drawn qua the appellants indulged into the practice of repairing the vehicles. The appellants failed to bring on record of Ld. District Commission any documentary evidence to prove their case. Now the affidavit of Sh. Pankaj Arora S/o Kewal Krishan Arora R/o H.No.1312/7, Phase-II, Mohali, Punjab, Annexure A-1 placed on record of appeal by way of additional affidavit seems to be an afterthought just to fill the lacuna in the case. The said Pankaj Arora, who has filed his affidavit, has stated that he works as an independent mechanic in Sector 48 Motor Market and he is not the employee of M/s Kamal Motors. He has further stated in his affidavit that the vehicle in question was given to Baldev Singh for repairs to him and he purchased the spare parts from M/s Kamal Motors. He has further stated that despite best efforts the vehicle could not be repaired and the same was beyond repair, which was told to the complainant in advance, who still insisted him to give it a try. He has further stated that Sh. Baldev Singh despite repeated reminders never came to pick his car which was ultimately taken way by the Estate Office, Chandigarh.  The deposition now given by Sh. Pankaj Arora, the alleged mechanic, cannot be accepted at this stage.  Neither he was the party to the case nor did he ever file any deposition before the Ld. District Commission in favour of the appellants. Now, at this appellate stage, he has emerged from nowhere to support the case of the appellants. On the other hand, the respondent in support of his case filed affidavit of one nominated witness Sh. Nitish Kumar who in his affidavit had corroborated the claim of the complainant in totality. Further, one Kanwar Gurpartap Singh, son of the respondent, who had allegedly accompanied the complainant to the shop of the appellants filed his affidavit in support of the averments made in the complaint. Thus, the Ld. District Commission rightly observed that the solitary affidavit of the opposite parties would not cut any ice to dispel the credibility of the three affidavits filed by the complainant, his son and another nominated referred witness in the consumer complaint who had accompanied the complainant on the material dates. Therefore, in our considered view, the Ld. District Commission rightly allowed the complaint vide the order impugned, which does not suffer from any infirmity or material irregularity and is based upon true appreciation of facts and settled law on the subject.

9.                For the reasons recorded above, the appeal being devoid of any merit is dismissed with no orders as to costs.

10.              Certified copies of this order be sent to the parties free of charge.

11.              File be consigned to Record Room after completion.

Pronounced

22.07.2022.

 (PADMA PANDEY)

          PRESIDING MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

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