BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 24/10/2011

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 586/2011

Between

And

O R D E R

A. Rajesh, President.

1. The complainant entrusted her Maruti-800 car bearing Registration No. KL 8H-8100 with the 1^st opposite party for engine servicing. She paid a sum of Rs. 6,000/- to the 1^st opposite party by way of advance. The complainant suggested the mechanic to replace the engine with a new one, but the old engine was re-serviced stating that which is efficient than a new one. The 1^st opposite party collected a further amount of Rs. 22,500/- from the complainant. On the way to her home, the complainant noticed the intermittent excess emission of smoke. Time and again, the complainant had to approach the 1^st opposite party along with other complaints, but they could not cure the same. At the instance of the 1^st opposite party again the complainant entrusted the vehicle with the 1^st opposite party on 05-01-2011 some more repairs were done and a sum of Rs. 700/- was collected from the complainant. At the time of work, Mr. Praveen who conducted the previous work opened the odometer and fraudulently re-adjusted the meter recording from 31000 to 106981. At the time of engine servicing, the meter reading was 26824. After 10 days, the vehicle had a break down while running and the vehicle was taken to the 2^nd opposite party. They revealed that the engine was in damaged condition. On 03-05-2011, she caused to issue a lawyer notice to the opposite parties highlighting her grievances. Though the opposite parties accepted notice, there was no response. The complainant is entitled to get refund of Rs. 28,500/- with 12% interest p.a. together with compensation and costs of the proceedings. This complaint hence.

2. The version of the opposite parties is as follows :-

The complainant approached the 1^st opposite party on 05-10-2009 to overhaul the engine of her car and the same was done to the satisfaction of the complainant and delivered the vehicle on 27-10-2009. The next visit of the complainant was on 05-06-2010 and reported abnormal noise. After overhauling of the engine the complainant had not brought the vehicle for periodical check up as advised by the 1^st opposite party at the time of delivery of the vehicle after overhauling. On 05-01-2011, the complainant had brought the vehicle with complaint of engine knocking the vehicle was delivered to the complainant on 07-01-2011 after necessary repairs. The vehicle was excessively used by the complainant as per the meter reading shown in the meter. After overhauling the engine of the vehicle has to be used with due care, otherwise serious damage would be caused to the engine. There is no deficiency in service or unfair trade practice or any negligence on the part of the opposite parties. The complaint is devoid of any merit and is liable to be dismissed.

3. The power of attorney of the complainant was examined as PW1 and Exts. A1 to A10 were marked on her side. The witness of the opposite parties was examined as DW1 and Exts. B1 and B2 were marked. Heard both sides.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get refund of Rs. 28,500/- being the amount expended for repairs of the vehicle?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- Admittedly on 05-01-2009, the complainant entrusted her vehicle bearing Registration No. KL 8H-8100 with the 1^st opposite party for its engine repairs and she paid Rs. 6,000/- on 07-01-2009 evident from Ext. A4 receipt. It is not in dispute that the complainant took delivery of the vehicle after its repairs on 27-01-2009 and paid Rs. 22,499/- in addition to the advance amount evidenced by Ext. A1 invoice.

6. According to the complainant, she instructed the 1^st opposite party to replace the engine, but instead of that the 1^st opposite party re-serviced the engine. She stated that repeatedly, she had to approach the 1^st opposite party to get the defects of the vehicle repaired, but to no avail. Further, she stated that the mechanic of the 1^st opposite party manipulated the odometer reading, so as to give an impression that the complainant had excessively driven the vehicle and so became defunct. On the contrary, the 1^st opposite party maintains that at the outset, the complainant approached the 1^st opposite party for overhauling of the engine and accordingly the 1^st opposite party did the work to the satisfaction of the complainant. According to them, the subsequent defects had been caused only due to the rash and negligent driving that too without any proper service. The opposite parties are of the view that there is neither deficiency in service nor unfair trade practice on their part.

7. It is pertinent to note that nothing is before us to show that the complainant had entrusted the car with the 1^st opposite party for replacement of the engine and not for overhauling. The 1^st opposite party overhauled the engine of the vehicle and delivered the same to the complainant on 27-10-2009. The complainant vehemently and vigorously contended that she had to approach the 1^st opposite party to repair the vehicle in furtherance of the engine servicing. The said contention too vanished into thin air for want of evidence. Further, the complainant contended that the employee of the 1^st opposite party manipulated the odometer from 26824 Kms. to 106856 so as to give an impression that the damages have been caused due to excess usage of the vehicle. This Forum is constrained to say that the complainant is beating about the bush by avoiding her responsibility to prove the allegations. During evidence at the threshold, the complainant filed I.A. No. 357/2012 to appoint an expert commissioner to prove her contention in this Forum which was allowed on 31-06-2012, but later she requested to withdraw the prayer for her own reasons not stated or explained. At present, we are at a loss to analyze the present condition of the vehicle. The learned counsel for the complainant contended that expert opinion is not mandatory to prove the defects of a vehicle. The counsel relied on the decision of the Hon'ble State Commission in Union Territory, Chandigarh in Tata Engineering & Locomotive Company Ltd. Vs. Chunilal Gulati and Anr. 2010 (1) CPR 419. In the above case, though expert opinion is not availed ample evidence was on record to substantiate the contention of the complainant, which is admittedly absent in the case at hand. So, we are not to rely on the same. The learned counsel also relied on the following decisions of the Hon'ble National Consumer Disputes Redressal Commission :

1. Vidya Devi Ware House Vs. Mahendra Singh Yadav 2011 (2) CPR 335.

2. Bhavana Kumar Vs. General Manager, Varun Welores Ltd. & Anr. 2008 (4) CPR 82 (NC).

The above citations have no relevance, hence they are unacceptable in the case at hand. With the above observations, this Forum is only to close the proceedings as dismissed. Held so.

Pronounced in the open Forum on this the 21^st day of December 2013.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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