Jammu and Kashmir

Jammu

CC/27/2017

Ashwani Kumar - Complainant(s)

Versus

Global Tech - Opp.Party(s)

Pawan khajuria

08 Sep 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No                  318/DFJ         

 Date of  Institution   :    30-10-2013

 Date of Decision      :      31-08-2018

 

Ashwani Kumar,

S/O Sh.Banarsi Dass,

R/O Deoli Bishnah,Jammu.

                                                                                                                                Complainant

                          V/S

1.Managing Director,Lahori Motors Pvt.Ltd.

 National Highway Bye Pass,Jammu.

2.Manager Workshop Lahori Motors Pvt.Ltd.

Workshop Phase No.2 Near Power Batteries,

Gangyal,Jammu.

3.General Manager Workshop Phase No.2

Near Power Batteries,

Gangyal,Jammu.

4.M/S Lahori Motors Pvt.Ltd.National Highway

Byepass Jammu.

                                                                                                                                                                Opposite parties

CORAM

                  Khalil Choudhary            (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 Mr.Mohd.Amir Awan,Advocate for complainant, present.

Mr.Zulfkar Nain Sheikh,Advocate for OP1&4,present.

Mr.   ,Advocate for OP2,present.

 

                                                   ORDER

                                     Facts relevant for the disposal of complaint on hand are that the complainant is the owner of vehicle (Xylo E4)bearing registration No.JK02AV-4904 and he is plying the said vehicle as tourist motor CAB/Taxi(copy of registration certificate is annexed as Annexure-A).According to complainant, the vehicle met with an accident at Kali Bari,Kathua,on,11-06-2013 at about 4.30 p.m.FIR came be registered with regard to said accident at Police Station Kathua,he got the vehicle released from police custody and got the same towed to the workshop of OP’s i.e.Lahori Motors Pvt.Ltd.for necessary repair. Complainant further submitted that Lahori Motors Pvt.Ltd.is owned by OP1 and the work in  the said workshop was supervised and taken care by OP2 & 3 jointly, as such, all of them are jointly and severally liable for all the work done at the workshop and also for taking care of the vehicle which was left in the said workshop for repair. That the vehicle was given for repair on,13-06-2013 and the same was claimed to be repaired by the OPs on,05-07-2013 as the complainant was informed by OP No.2&3 telephonically for taking delivery of the vehicle and the complainant after receiving intimation immediately went to take delivery of the vehicle,however,to the utter surprise and shock, the vehicle did not even start and thus no delivery on the said date was made to him and he was assured by OPs that the vehicle will be re-checked and when ready for delivery, necessary information shall be given to him about the same. According to complainant, once again on,11-07-2013,a telephonic call was received by him from OPs that the defect of non-starting of the vehicle requires replacement of parts known as ECU and ICU costing Rs.70,000/-and the OPs sought telephonic approval from him for the replacement of said parts, however, complainant told them to wait as he will personally visit to the workshop for the same.That the complainant was very sure that the parts as claimed by OPs for repair of vehicle could not have been damaged in the accident and thus to clear his suspicion he went to Suhul Automobile Pvt.Ltd.Narwal Bye Pass,Jammu,wherefrom he purchased the said vehicle. The complainant gave them the ICU and ECU No.MAIYA2BVNA2F45006 ICU VIN Number as provided by  OPs,he was not only shocked but felt badly cheated in as much as, the ECU and ICU number provided by OPs belongs to vehicle bearing registration No.JK-19 0055 owned by one Sh.Ram Pal of Batote,it manifestly got cleared that the original ECU and ICU parts of his vehicle were changed in the workshop of OPs.That the mater was taken up with the management of workshop of OPs,however,they refused to show any indulgence, complainant was left with no other option but to approach police authorities for necessary investigation and recovery of ICU and ECU parts of vehicle and the news regarding theft of spare parts of vehicle is also published in newspaper,(Copy of news papers are annexed as Annexure-B)and it is important to submit that on the same date an estimated bill of repairs (Pre-invoice)was also sought by the complainant from OP which shows an amount of Rs.1,14,696.81/wherein there was no mentioning of ECU and ICU parts(copy of pre-invoice is annexed as Annexure-C).When OPs refused to recover the parts of the vehicle, complainant lodged FIR on,24-07-2013 (Annexure-D)That ultimately police was successful in recovering the stolen parts of the vehicle of complainant and same were released by the Hon’ble Court in favour of complainant, who in turn deposited the same with the OPs and complainant was told to visit the workshop on,05-08-2013 for taking delivery of the vehicl(copy of police report is annexed as Annexure-E)That as assured by Ops,complainant received a call from OPs for taking delivery of the vehicle, accordingly, complainant went to the workshop of OPs alongwith his brother and two friends,however,before the delivery a routine check ride was provided to complainant alongwith his brother and friends by the mechanic of OPs and after a drive of 1 or 2 kms.when the vehicle was returning back to the workshop, it to the utter dismay of complainant broke down near the workshop itself, despite asking no reason could be provided to him for the breakdown,however,he was told to sit in the waiting lounge and permit the mechanic of OPs to once again inspect the vehicle for the defect. That the complainant was not only surprised, but shocked to hear from OPs that the engine of the vehicle got seized due to which the breakdown at the time of delivery ride had occurred. That on,12-09-2013 a fresh invoice was issued to the complainant for estimated cost of repair which surprisingly showed an amount of Rs.2,80,263.58,there was a difference of rupees one lakh and sixty six thousand approximately as compared to the earlier pre-invoice dated 11-07-2013.That the complainant objected to the said pre invoice he was assured by Ops that it is only a pre invoice and not the final bill and at the time of delivery, he shall not be charged for the breakdown of the vehicle which has occurred at the time of delivery of vehicle. That despite promise and assurance given by OPs,at the time of delivery, complainant was asked to pay Rs.2,14,351/-vide final bill dated 18-09-2013,complainant tried his level best to make OPs understand that he is not liable to be charged for the defect which has occurred due to gross-negligence of OPs for which he was given assurance by the OPs that he will not be charged for the same. The complainant being taxi driver was earning livelihood from running the aforesaid vehicle and the same vehicle was lying with the Ops for more than three months, complainant was left with no other option, but to make  arrangement for the bill amount and accordingly payment was made to the Ops for release of vehicle under protest which is written in the final bill by the complainant copy of final bill is annexed as Annexure-F  Allegation of complainant is that he has suffered not only financially, but mentally, as well, firstly because of theft of spare parts of vehicle from the workshop of OPs ,secondly for dilly delaying to initiate for recovery of said stolen parts or rectifying the defect caused due to said theft and thirdly for seizure of engine because of gross negligence and this act of OPs constitutes deficiency in service and un fair trade practice. Hence the present complaint. In the final analysis, complainant prays for refund of Rs.2,14,351/on account of loss suffered because of fault of OPs and in addition also prays for compensation of Rs.2.66  lacs including litigation charges.

               On the other hand,Ops filed written version and resisted the complaint on the ground that complainant is not a consumer as defined under Section 2(d) of the Consumer Protection Act. That the complaint is bad for non joinder of necessary parties M/S Lahori Motors Pvt.Ltd.is a necessary party for the just decision of the complaint. The complainant has not arrayed M/S Lahori Motors Pvt.Ltd.as a party OP in the complaint. That the company M/S Lahori Motors Pvt.Ltd.cannot be made vicariously liable for the criminal acts of employees/agents and therefore, present complaint is beyond the scope and purview of Consumer Protection Act, the same as such is not maintainable and is liable to be dismissed. It is submitted that the complainant had all through been in the workshop of M/S Lahori Motors Pvt.Ltd.watching about the progress of the repair of vehicle. In this connection, complainant also visited the workshop in the Ist week of July,2007 to enquire about his vehicle ,.the vehicle at that time was in dismantled condition and therefore, there was no question of the starting the vehicle. It is submitted that on,11-07-2013 when the engineers of the Company started the vehicle, it was found that the said vehicle could not be started due to the reason that ECU and ICU fitted in the vehicle was observed defective and which require replacement. It is further submitted that while checking the ECU and ICU of the vehicle, it was found that the said ECU and ICU fitted in the vehicle did not belong to the said vehicle, but pertained to some other vehicle, The technical manager of the company by the use of software came to know that ECU and ICU fitted in the vehicle did not belong to said vehicle. It is denied that OPs have given estimate of Rs.1,14,696.81 np as the estimated cost of repair of the vehicle in question. In fact the OP had furnished estimate to the tune of Rs.4,17,070/-.The amount of Rs.1,14,696.81 np is the pre invoice bill of the car which was in respect of cost of the parts replaced during the course of repair of vehicle till 11-07-2013.This pre-invoice did not include the cost of labour etc.Similarly,another pre invoice bill Rs.2,36.451.07 np was again furnished to complainant when the vehicle was almost ready.However,final bill after the vehicle was completely repaired of Rs.2,14,351/-was prepared and given to the complainant.Therefore,it is denied that complainant had furnished the estimate of Rs..1,14,696.81 np as the final estimate of the total cost of the repair of the vehicle in question. It is further submitted that since the OPs had not replaced the ECU and ICU parts and therefore, there was no question of charging the price of the same either in the estimate or in the final bill.Rest of contents of complaint are denied by OPs.

                     Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of Madan Lal.Complainant has placed on record copy of certificate of registration, copies of cuttings of newspapers, Jammu Kesari and Amar Ujala dated 26-07-2013,copies of pre-invoice, copy of FIR, copy of application for release of stolen parts recovered by P/S Gangyal Jammu of Vehicle No.JK02AV-4904 and copy of tax invoice.

                            On the other hand,OPs adduced evidence by way of duly sworn evidence affidavit of Pawan Kumar Managing Director Lahori Motors Pvt.Ltd.

                We have perused case file and heard L/Cs for the parties at length.

                    Briefly stated  case of complainant is that he is the owner of vehicle (Xylo E4)bearing registration No.JK02AV-4904 and he is plying the said vehicle as tourist motor CAB/Taxi.According to complainant, the vehicle met with an accident at Kali Bari,Kathua,on,11-06-2013 at about 4.30 p.m.FIR came be registered with regard to said accident at Police Station Kathua,he got the vehicle released from police custody and got the same towed to the workshop of OP’s i.e.Lahori Motors Pvt.Ltd.for necessary repair. Complainant further submitted that Lahori Motors Pvt.Ltd.is owned by OP1 and the work in the said workshop was supervised and taken care by OP2 & 3 jointly, as such, all of them are jointly and severally liable for all the work done at the workshop and also for taking care of the vehicle which was left in the said workshop for repair. That the vehicle was given for repair on,13-06-2013 and the same was claimed to be repaired by the OPs on,05-07-2013 as the complainant was informed by OP No.2&3 telephonically for taking delivery of the vehicle and the complainant after receiving intimation immediately went to take delivery of the vehicle,however,to the utter surprise and shock, the vehicle did not even start and thus no delivery on the said date was made to him and he was assured by OPs that the vehicle will be re-checked and when ready for delivery, necessary information shall be given to him about the same. According to complainant, once again on,11-07-2013,a telephonic call was received by him from OPs that the defect of non-starting of the vehicle requires replacement of parts known as ECU and ICU costing Rs.70,000/-and the OPs sought telephonic approval from him for the replacement of said parts, however, complainant told them to wait as he will personally visit to the workshop for the same. That the complainant was very sure that the parts as claimed by OPs for repair of vehicle could not have been damaged in the accident and thus to clear his suspicion he went to Suhul Automobile Pvt.Ltd.Narwal Bye Pass,Jammu,wherefrom he purchased the said vehicle. The complainant gave them the ICU and ECU No.MAIYA2BVNA2F45006 ICU VIN Number as provided by  OPs,he was not only shocked but felt badly cheated in as much as, the ECU and ICU number provided by OPs belongs to vehicle bearing registration No.JK-19 0055 owned by one Sh.Ram Pal of Batote,it manifestly got cleared that the original ECU and ICU parts of his vehicle were changed in the workshop of OPs.That the mater was taken up with the management of workshop of OPs,however,they refused to show any indulgence, complainant was left with no other option but to approach police authorities for necessary investigation and recovery of ICU and ECU parts of vehicle and the news regarding theft of spare parts of vehicle is also published in newspaper and it is important to submit that on the same date an estimated bill of repairs (Pre-invoice)was also sought by the complainant from OP which shows an amount of Rs.1,14,696.81/,wherein there was no mentioning of ECU and ICU parts,but when OPs refused to recover the parts of the vehicle, complainant lodged FIR on,24-07-2013.That ultimately police was successful in recovering the stolen parts of the vehicle of complainant and same were released by the Hon’ble Court in favour of complainant, who in turn deposited the same with the OPs and complainant was told to visit the workshop on,05-08-2013 for taking delivery of the vehicle.That as assured by Ops,complainant received a call from OPs for taking delivery of the vehicle, accordingly, complainant went to the workshop of OPs alongwith his brother and two friends,however,before the delivery a routine check ride was provided to complainant alongwith his brother and friends by the mechanic of OPs and after a drive of 1 or 2 kms.when the vehicle was returning back to the workshop, it to the utter dismay of complainant broke down near the workshop itself, despite asking no reason could be provided to him for the breakdown,however,he was told to sit in the waiting lounge and permit the mechanic of OPs to once again inspect the vehicle for the defect. That the complainant was not only surprised, but shocked to hear from OPs that the engine of the vehicle got seized due to which the breakdown at the time of delivery ride had occurred. That on,12-09-2013 a fresh invoice was issued to the complainant for estimated cost of repair which surprisingly showed an amount of Rs.2,80,263.58,there was a difference of rupees one lakh and sixty six thousand approximately as compared to the earlier pre-invoice dated 11-07-2013.That the complainant objected to the said pre invoice he was assured by Ops that it is only a pre invoice and not the final bill and at the time of delivery, he shall not be charged for the breakdown of the vehicle which has occurred at the time of delivery of vehicle. That despite promise and assurance given by OPs,at the time of delivery, complainant was asked to pay Rs.2,14,351/-vide final bill dated 18-09-2013,complainant tried his level best to make OPs understand that he is not liable to be charged for the defect which has occurred due to gross-negligence of OPs for which he was given assurance by the OPs that he will not be charged for the same. The complainant being taxi driver was earning livelihood from running the aforesaid vehicle and the same vehicle was lying with the Ops for more than three months, complainant was left with no other option, but to make  arrangement for the bill amount and accordingly payment was made to the Ops for release of vehicle under protest which is written in the final bill by the complainant.  Allegation of complainant is that he has suffered not only financially, but mentally, as well, firstly because of theft of spare parts of vehicle from the workshop of OPs ,secondly for dilly delaying to initiate for recovery of said stolen parts or rectifying the defect caused due to said theft and thirdly for seizure of engine because of gross negligence and this act of OPs constitutes deficiency in service and un fair trade practice.

               On the other hand,stand of Ops is that complainant is not a consumer as defined under Section 2(d) of the Consumer Protection Act and the complaint is bad for non joinder of necessary parties M/S Lahori Motors Pvt.Ltd.is a necessary party for the just decision of the complaint. That the company M/S Lahori Motors Pvt.Ltd.cannot be made vicariously liable for the criminal acts of employees/agents and therefore, present complaint is beyond the scope and purview of Consumer Protection Act, the same as such is not maintainable and is liable to be dismissed. It is submitted that the complainant had all through been in the workshop of M/S Lahori Motors Pvt.Ltd.watching about the progress of the repair of vehicle. In this connection, complainant also visited the workshop in the Ist week of July,2007 to enquire about his vehicle, the vehicle at that time was in dismantled condition and therefore, there was no question of the starting the vehicle. It is submitted that on,11-07-2013 when the engineers of the Company started the vehicle, it was found that the said vehicle could not be started due to the reason that ECU and ICU fitted in the vehicle was observed defective and which require replacement. It is further submitted that while checking the ECU and ICU of the vehicle, it was found that the said ECU and ICU fitted in the vehicle did not belong to the said vehicle, but pertained to some other vehicle, The technical manager of the company by the use of software came to know that ECU and ICU fitted in the vehicle did not belong to said vehicle.

                         Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

                 Be that as it may, it is the duty of OPs to provide after sale service, including, to repair the vehicle in question with utmost promptitude and in accordance with terms and conditions of warranty/sale.

                      In so far as plea raised by Ops that the said ECU and ICU fitted in the vehicle did not belong to the said vehicle, but pertained to some other vehicle is concerned, complainant relied upon clippings of newspapers published in “Jammu Kesari and Amar Ujala dated 26^th July 2013 wherein it is categorically mentioned that the parts of vehicle bearing No JK02AB/4904 amounting to Rs.1.50 lacs  were stolen(Annexure-B).It is to be noted that case of complainant further strengthened by the order passed by Honble Judicial Magistrate Ist Class Sub Registrar Jammu and a direction is passed by Honble Magistrate Ist Class Sub Registrar Jammu to Police Station,Gangyal to release the parts of vehicle in favour of applicant on superdnama ,the genuineness whereof is not denied by Ops.Further the case of the complainant is also strengthened by the Tax Invoice dated 17-06-2013 issued by Lahori Motors Pvt.Ltd.wherein it is clearly mentioned that net bill amount of Rs.2,15,351/-has been received by OPs from the complainant under protest. At the same time,Ops failed to lead evidence in rebuttal to the documentary and other evidence lead by complainant,therefore,point of ECU and ICU fitted in the vehicle did not belong to said vehicle being bereft of legal sanctity is turned down.

                            After going through the whole case with the evidence on record what reveals here is the case of complainant is genuinely filed with speaking reasons and merit as being Consumer as per the purport of Section 2(d) of Consumer Protection Act and Ops are the service providers having failed in their statutory duty to provide adequate and effective services. The purport of legislation is well defined and statutorily takes care of consumer rights and cannot legally afford to a situation like the one confronted herewith in a manner where they are deprived of their rights as of consumer. The consumers have to come forth and seek for redressal of their grievance. The case of the complainant is also genuinely filed for seeking determination of his right by this Forum.

                                      Therefore, in view of aforesaid discussion complaint is allowed and Ops are directed refund Rs.2,14,351/on account of loss suffered by the complainant.The Ops are also directed to pay Rs.5,000/-as compensation for causing unnecessary harassment and mental agony and litigation charges of Rs.5000/-.The Ops shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                    Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

Announced                                                                    President

31-08-2018                                                           District Consumer Forum

                                                                                                        Jammu.

Agreed by                                                               

 

Ms.Vijay Angral                                              

 Member    

 

  Mr.Ghulam Sarwar Chauhan

Member