Kerala

Idukki

CC/100/2018

George Mathew - Complainant(s)

Versus

Manager Popular Vehicles - Opp.Party(s)

Adv.K M Sanu

09 Dec 2021

ORDER

 

DATE OF FILING :23.5.2018

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the 9^th day of December, 2021

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

SRI. AMPADY K.S. MEMBER

CC NO.100/2018

Between

Complainant : George Mathew,

Malepparambil House,

Mattathippara, Karimkunnam P.O.,

Thodupuzha – 685 586.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. The Manager,

Popular Vehicles & Services Pvt. Ltd.,

Muvattupuzha Road,

Thodupuzha P.O.

2. The Manager,

Popular Vehicles & Services Pvt. Ltd.,

12^th Mile, Ponkunnam Road, Pala,

Pala P.O. – 686 575.

(By Adv:Shiji Joseph)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. Petition filed under section 12 of the Consumer Protection Act 1986. Case of the complainant is briefly discussed hereunder :

2. Complainant is owner of a Maruthi Swift car bearing registration No.KL-38B-2344. Opposite party No.1 is Manager of Popular Vehicles and Services Pvt. Ltd., Thodupuzha and opposite party No.2 is Manager of the same company having its service (cont......2)

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centre in Pala. Complainant used to entrust his vehicle for periodical services with opposite parties. While so, in October 2017, he had entrusted the vehicle to 1^st opposite party to rectify two specific complaints, namely, sound emanating from the bottom end of steering rod and low functioning of air conditioner unit. As directed by 1^st opposite party, vehicle was entrusted for rectification of these complaints with 2^nd opposite party. Instead of rectifying the complaints pointed out by the complainant, 2^nd opposite party had overhauled the engine entirely. He had changed clutch plates and repaired time belt of vehicle. The car had run only 60000 kms while these extensive engine repair work was carried out. It was unnecessary to do all these works considering low kilometres which vehicle had run during this period. Further complainant had not requested or authorised the opposite parties to carry out engine overhauling work and incidental repairs. Vehicle was running perfectly except for the minor complaints mentioned by complainant with regard to sound from steering box and low functioning of AC unit. There was no necessity to repair time belt or to change clutch plates. Vehicle was entrusted on 20.10.2017. It was returned after completion of engine work on 25.11.2017. Complainant was made to pay Rs.39,580/- towards such unauthorised and unnecessary work carried out by opposite parties. even after this, complaints mentioned by complainant regarding the vehicle were not looked into and rectified by opposite parties. Complainant used to change engine oil on prescribed timely intervals. Opposite parties, upon protest by complainant, have justified their stand by stating that engine oil of the vehicle was not periodically changed and due to this, engine parts had undergone wear and tear which were more than normal. Complainant submits that this is not correct. These are only false excuses made out by opposite parties to justify their stand. Complainant further alleges that he had sent a complaint to the Company with regard to unauthorised service works carried out by opposite parties and non-attending of the complaints addressed by him regarding the vehicle. Yet nothing has been done by company. Complainant, therefore, prays for mandatory injection against opposite parties directing them to rectify complaint of sound coming from bottom of steering box and to repair AC unit without any costs. He prays for return of amount collected by opposite parties towards unauthorised repairs carried out by them after opening the engine. He further contends that opening of engine at a time when the vehicle had run only 60000 kms has reduced its resale value. Hence complainant seeks a compensation of Rs.1 lakh (cont...3)

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from opposite parties on this court. He also seeks Rs.50,000/- as compensation for deficiency in service and unfair trade practice adopted by opposite parties.

3. Complaint was admitted and upon notice, opposite parties have entered appearance. However, written version has been filed only by 2^nd opposite party. According to 2^nd opposite party, complaint is not maintainable in law or upon facts. Vehicle had earlier met with an accident in August 2015 and had sustained extensive damages. It is incorrect to say that complainant had attended to periodical services of the vehicle regularly. Service history of the vehicle with 2^nd opposite party shows that after 3^rd service, vehicle was not brought for regular service. After completion of service on 13.8.2015, when the vehicle had run 33,360 kms, it was noticed that engine oil of the vehicle was not changed till then. After repair works were carried out pursuant to damages sustained in the accident, no oil change was done. On 26.10.2017, complainant had brought the vehicle to the service centre of the 2^nd opposite party with request to rectify complaints of sound emanating from steering box. Upon inspection of vehicle, it was noticed that engine oil was not changed for about 30000 kms. Oil in the engine bay was below the required level. Low oil warning lamp in the speedometer was live showing that the vehicle was running on low oil. It was also seen that oil remaining in the engine was clogged. 2^nd opposite party was unable to loosen oil drain nut. Hence complainant was informed about this, as it was necessary to open the engine for ascertaining its condition. Complainant had agreed for the same and requested the 2^nd opposite party to sent photographs of the engine interior to the whatsapp number of his wife. Photographs were taken and sent to complainant. It was found that oil had ‘solidified’. Upon receiving photographs, complainant had come to service centre along with his son. 2^nd opposite party had shows the interior of engine and after inspecting the same, complainant was convinced that there was no proper circulation of engine oil owing to which oil pump was blocked. Oil pump cannot be repaired, it has to be replaced. Engine bearing and engine head were also damaged due to lack of proper lubrication. These were also be to changed. Hence complainant had, then, requested 2^nd opposite party to do the necessary repair works for engine. As per his instructions, engine was repaired. Steering box of the vehicle is contained in a sealed unit. It is not repairable. Complainant was not willing to replace the steering box. AC vents were also blocked due to lack of proper service. Since engine was overhauled, AC gas was refilled. (cont.....4)

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Complainant was given a hefty discount upon total bill amount as he was a very good customer. A few months after taking delivery of the vehicle, complainant had lodged a complaint regarding non repairing of steering box with the Company. As a goodwill gesture, opposite party No.2 had agreed to replace steering box and rectify the complaint of AC unit free of cost at any of the service centre of opposite parties. Unfortunately, complainant had not availed this offer. Subsequently, repair work was done at AVG Motors, Anthinadu, Pala, free of cost upon intervention by company.

4. After availing all these benefits, complainant has unnecessarily filed this complaint only for harassing opposite parties. He is not entitled for the reliefs prayed for. Complainant has abused due process of court and hence complaint is liable to be dismissed with compensatory costs of opposite parties.

5. During the pendency of these proceedings, upon application by complainant, an expert commissioner was appointed to ascertain the condition of the vehicle in question. The expert, namely, Assistant Motor Vehicle Inspector, SRTO, Devikulam, had carried out inspection of the vehicle on 8.3.2019 and had submitted Ext.C1 report before this Commission on 28.11.2019. Thereafter case was posted for evidence after giving sufficient opportunity to both sides to take steps.

6. On the side of complainant, he himself has examined as PW1 and Exts.P1 to P4 were marked on his side. Commissioner was examined as PW2 and his report was admitted as Ext.C1. Ext.P4 is a copy of Ext.C1 After examination of PW2, complainant’s evidence was closed. On the side of opposite parties, 2^nd opposite party was examined as RW1. Exts.R1 to R3 were marked on their side. Thereafter evidence was closed and both sides were heard. Now the Points which arise for consideration are :

1. Whether there is any deficiency in service on the part of opposite parties ?

2. Whether they had indulged in any unfair trade practice as against complainant?

3. Whether complainant is entitled for the reliefs claimed for ?

4. Reliefs and costs.

(cont...5)

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7. Point Nos.1 & 2 are considered together

It was contended on the side of complainant that repair works done to the engine were without consent of the complainant and neither were these works necessary. Evidence tendered by PW2, Expert Commissioner along with Ext.C1 would prove these aspects. Opposite parties have admitted that the car was entrusted only for correcting complaints to the steering box and AC unit. Admittedly, both these works have not been carried out. Hence complainant is entitled to get these works done at the expense of opposite parties. Besides, charges collected for unauthorised works should be reimbursed to him. It is also evident that engine work was done at a time when the car had run only 60000 kms. Opening of engine in such a short span would certainly cause its resale value to drop. Hence complainant is entitled for compensation for reduction in resale value also. Evidence, in toto, proves that opposite parties were negligent in handling the work and had also resorted to unfair trade practice by collecting excess amounts for repair works done to the engine, unauthorisedly.

8. Learned counsel for opposite parties would submit in reply that engine work was necessary and this fact was communicated to the complainant also. At his request, photographs taken of the interior of engine were sent to his wife’s phone number by whatsapp media. After seeing the pictures, complainant had came to the service centre, personally checked the engine and after being fully convinced that the engine required overhauling, given his consent for doing engine work. PW1 had admitted during cross examination that he had seen pictures of car engine and also of having gone to the service centre for examining the car. Entire work was carried out with the consent of complainant. Hence he cannot wriggle out of the liability to pay for the work done. As far as correction of steering box noise and repair of AC unit is concerned, company has made an offer to correct / rectify both complaints free of cost. Unfortunately, complainant had not availed the said offer by bringing the vehicle to the service centre of opposite party. In fact, only work relating to the steering box remains to be done. Gas was filled up in the AC unit. Complainant has not mentioned the fact that the vehicle was involved in a major accident in August 2015. At that time, the vehicle was repaired by the opposite parties. Thereafter the vehicle has not been brought for periodical service. Earlier also, complainant was not regular in servicing the vehicle at regular/prescribed (cont....6)

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intervals. Ext.R2 would clearly show that oil inside the engine had congealed. Sufficient lubrication was not there and hence there was abnormal were and tear. Under such conditions, engine work will be necessary even if the vehicle had run only lesser kilometres. This was also deposed by PW2. Able counsel also pointed out that PW2 had taken much pains in finding fault with the work done by opposite parties. Expert commissioner was not in a position to speak about the condition of the vehicle before the engine was opened. Admittedly, steering box work and repair of AC unit have not been charged in Ext.P2 bill series. Therefore complainant is not entitled for getting these work done free of cost. There is no deficiency in service. No unfair trade practices were resorted to by opposite parties either. Complaint is a frivolous one and is to be dismissed with compensatory cost.

9. We have gone through the evidence tendered in this case carefully. As far as documentary evidence is concerned, Exts.P1 to P4 were admitted on the side of complainant. Ext.P1 is a copy of RC Book. Ext.P2 series, 9 in numbers are copies of bill relating to the repair works carried out by opposite parties. Ext.P3 is copy of an e-mail message sent by the complainant regarding unauthorised works done by opposite party. Ext.P4 is a copy of Ext.C1 commissioner’s report. Ext.R1 is authorization filed on behalf of 2^nd opposite party. Ext.R2 is photo print of an engine and Ext.R3 is copy of reply sent by 2^nd opposite party to complainant.

10. Ext.C1 is the Expert Commissioner’s report relating to his inspection of the vehicle on 8.3.2019. At the time of inspection, odometer reading was 77290 kms. Model of the car and its registration number conforms to that of the vehicle in this case as could be seen from copy of Ext.P1. PW2 has reported that the complaints mentioned by the registered owner are still existing in the vehicle. However, the expert has not stated what were the complaints mentioned by the registered owner at the time of inspection. Presumably these complaints related to noise emanating from the steering box and low efficiency of AC unit. It is also reported by PW2 that engine oil of the vehicle was not replenished or changed at regular intervals, despite the fact that the vehicle was taken to the workshop, namely, Chinjilu Workshop, Adimali, repeatedly; periodical service was not attended to. According to commissioner, customer had not mentioned complaints like unusual engine noise, high emissions and low pulling power of vehicle. Therefore (cont....7)

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the commissioner had concluded that there was no need for engine overhauling work as odometer reading was only 74566 kms, at the time, when engine work was done. However, commissioner would justify change of clutch plates on the premises that the plates may have worn out faster owing to the earlier accident. Steering box was damaged in the accident and this was the reason for abnormal noise emanating from front side. Moreover, this complaint was not rectified. Since AC filter was clogged, there was no proper air flow. Gas was not sufficient in AC unit. Recirculating flap of the AC unit was also not properly functioning. Though commissioner has also reported that condenser was in a muddy condition, he does not say whether the condenser required to be repaired or changed. In the end commissioner has concluded by opining that a thorough check and repair is needed for the vehicle. During his cross examination, PW2 has admitted that there is possibility of oil solidifying, if it is not periodically changed, he would also admit after examining Ext.R2 picture that it was of interior of an engine showing oil in a solidified state. He has further admitted the suggestions made by counsel for opposite parties that in such an eventuality, engine could be made workable by cleaning the same and refilling it with fresh oil. But he would stick to his report to the effect that there was no necessity for doing engine work when the vehicle has run only 65000 kms. But he admitted that if periodical / normal service is attended to, no defect to the engine will be caused. During later stages of cross examination, PW2 has further admitted that wear and tear of clutch plates could be owing to the earlier accident and that it may be also so due to unusual driving habits of the driver.

11. Upon going thorough deposition of PW2 and Ext.C1, we are of the view that Point Nos. 2 to 4 reported by the Commissioner were probably upon enquiry with the complainant and opposite parties or their representatives. Ext.C1 does not refer to any service records brought for inspection by opposite parties before commissioner. So also observations given in point No.7 are also based probably upon information elicited from the complainant. It is also pertinent to note that commissioner had inspected the vehicle after a gap of nearly two years after the unauthorised works were allegedly carried out. Coming to the evidence tendered by PW1, he has not deviated from his contentions that engine repair work was done without his authorisation or consent as such. It is true that he has admitted of having perused pictures of the engine taken after removing it’s top portion which were sent to his wife’s whatsapp number and also of having visited the (cont....8)

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service centre after seeing the photos. However he has deposed that he has not authorised opposite parties or their service personnel to carry out engine overhauling work. During his cross examination, RW1, who is Assistant Manager of opposite party No.2, has admitted that when a vehicle is brought for servicing, a report will be prepared about its condition after test driving the same. That a job card will be opened for the vehicle and defects revealed will be noted in the job card. He further admits that job card is prepared manually. That job card and pre-service inspection report were not produced before this Commission. Both the job card and report of the service engineer prepared after pre-service inspection would contain vital information regarding the condition of vehicle when it was brought for service. It would also contain the work authorised/consented to by the complainant. It is clear from evidence of RW1 that complainant had mentioned only 2 defects / complaints regarding the vehicle. One was regarding noise coming from the end of steering box and the other was relating to low efficiency of AC unit. RW1 admitted that complaint with regard to the steering box was not attended to or rectified. Though he would say that complaint regarding AC unit was attended to, Ext.P2 series of bills would only reveal refilling of gas and nothing else. There is no evidence to show that the AC unit was opened and examined. No reason for low efficiency of AC unit is seen to be ascertained by PW2 or his workers. It is pertinent to note that job card which would contain all the details of work authorised by the vehicle owner and also pre service inspection report which are admittedly in the possession of opposite parties have not been produced before this Commission. Both were vital piece of evidence which would have been decisive in this case. Both these documents have been withheld by the opposite parties for reasons best known to them. In fact these records have been suppressed and it appears to us that, if produced those may have gone against the case of opposite parties. There is no evidence to show that repairing of engine was necessary or that the work was authorised by the complainant except the ipsi dixit of PW2 that the complainant had personally given consent for doing the said work. When there is a regular procedure to obtain written consent from the owner for doing any other work than what he has requested, necessarily his expressed written consent should be taken before carrying out such works. Hence we conclude that there is no reliable evidence to prove that engine work was necessary or authorised. Complainant’s case that work was not necessary and (cont....9)

 

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that he had not given consent for the same is made out.P2 reveals that a total amount of Rs.39580/- was charged.

12. Contentions addressed that engine oil was congealed and that the vehicle could not be run without doing engine work, etc. are not at all sustainable. Firstly, complainant has not admitted that Ext.R2 is of opened engine of his vehicle. He has only stated that picture containing the registration number of the vehicle relates to his car’s engine. That being so, Ext.R2 cannot be connected with the engine of the car in question without other corroborating materials. It is also admitted by DW1 that the vehicle was driven to the service centre by the complainant. DW1 has no case that they had detected anything unusual in the manner the vehicle was being driven when it was brought there.

13. What really matter is the authorisation, if any, for the extra work done by the opposite parties. At this juncture, it is pertinent to note that complainant has no case that extra work relating to engine overhauling has not been done. He also does not have a complaint that the said engine overhauling work was not properly done. His case is only that the work was not authorised by him and that it was not necessary either.

14. It is true that there is evidence to show that the vehicle had met with a major accident in 2015, which was about 2 years prior to the disputed works carried out by opposite parties. However, this by itself will not be sufficient to prove that there was abnormal wear and tear of engine parts. The vehicle was used by the complainant for 2 years after the accident. If there were to be any defect in the engine, the vehicle could not be smoothly driven and used. The only complaint that the complainant had was regarding the noise emanating from the end of steering box and low efficiency of AC unit. Admittedly first complaint was not attended to by opposite parties. Mere filling up of gas will not amount remedying of the complaint relating to AC unit either. Apparently, gas was filled up along with replacement of all consumables connected with engine overhauling. There is no evidence to show that specific complaint with regard to defect of AC unit was attended to by the opposite parties. It is also evident that the vehicle was kept for more than a month in the service centre of opposite party No.2.Despite this complaints addressed by owner/customer were not answered or rectified by opposite parties. What they have done was to carry out extensive engine (cont.....10)

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overhauling work which was not sanctioned/authorised by complainant. May be the complainant was prepared to put up with this, if the earlier complaints raised by him were rectified by opposite parties. After plying the vehicle for some time, subsequent to the extensive repair works done to the engine, he had found that both the defects have not been rectified. This must have prompted him to sent Ext.P3 complaint and subsequently to file this complaint also. Be that it may, what surfaces from evidence is unauthorised work done by opposite parties, namely, overhauling the engine. They cannot charge the owner of the vehicle for this, firstly for the reason that there is no reliable evidence to show that work was necessary or that it was authorised. Vital piece of evidence, in this regard, namely the job card has not been produced. Nor is report of the service engineer relating to pre-service inspection made available. Again no reasons were given for non-production of both these documents. Hence contentions that the vehicle was not serviced regularly or that the owner was negligent in driving, are of no consequence. Admittedly, the vehicle has run only about 60000 kms when its engine was opened. Unless and until there is reliable evidence to prove that work was necessary owing to abnormal wear and tear or for any other reasons, mere possibilities that negligence of owner in properly maintaining the vehicle, bad driving habits etc are not sufficient to throw overboard the case projected by complainant.

15. As far as non attending to the complaints raised by the complainant are concerned, going by the evidence tendered in this case, we find that no charges were collected from the complainant for doing these works. There was only an offer from the side of the Company to do these works free of cost as a gesture of goodwill. This remains as a goodwill gesture and is not an admission of liability by the Company or of opposite parties to do the work free of cost. First prayer that both the complaints should be remedied free of cost by opposite parties does not appear to be allowable. More so, as no charge/cost was collected by opposite parties under the guise of these works.

16. As far as return of amount collected for unauthorised work vide Ext.P2 series are concerned, we find that the prayer is justified.

17. Complainant has also claimed a sum of Rs.1 lakh towards compensation for decrease in resale value of the vehicle due to untimely doing of engine overhauling work. (cont....11)

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It is seen from evidence that the vehicle had met with an accident which apparently was a major one in 2015. This fact was not mentioned in the complaint. Ext.P1 would reveal that the vehicle was manufactured in 2013. At the time when the vehicle was entrusted for work, it was already more than 4 years old and has also met with an accident.

18. Therefore contentions that there was reduction in it’s resale value owing to engine repairs work done appear to be far from convincing. In fact in the backdrop of earlier accident and also the fact that vehicle was more than four years old, engine overhauling may have resulted in increasing it’s resale possibilities and value. Hence prayer for compensation on this ground is not allowable. However, we find that the vehicle was kept for more than a month in the service station of opposite parties. Even after this, complaints pointed out by the complainant with regard to steering box and AC unit were not attended by the opposite parties. Complainant was unable to use the vehicle during this time and after getting it back, found that the work which he had directed to do has not been attended to also. This would certainly amount to deficiency in service and for this complainant, upon a fair estimate, is entitled for a compensation of Rs.25,000/-. He is also entitled for litigation cost of Rs.2000/-. Point Nos.1 and 2 are answered accordingly.

19. Point No.3 In view of our findings on above Point Nos.1 and 2, we are further find that the complainant is entitled for the reliefs in part as observed by us earlier.

20. Point No.4 In the result, complaint is allowed in part upon the following terms:

1. Opposite parties are directed to return Rs.39,580/- being charges collected for unauthorised repairs, to the complainant within 30 days from today with interest at the rate of 9% per annum, from the date of payment as per Ext.P2, till the date of this Order. In case of non-payment within said 30 days period, the principal amount will be payable with interest at the rate of 12% per annum from the date of order, until payment or realisation as the case may be.

2. Opposite parties are further directed to pay a sum of Rs.25,000/- as compensation to the complainant within 30 days of this Order. In case of non-payment, amount will carry interest at the rate of 12% per annum from the date of order, till the date of payment or realisation. (cont.......12)

 

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3. Complainant is also entitled for litigation cost of Rs.2000/- from opposite parties payable within the same grace period as relief 2 above.

Pronounced by this Commission on this the 9^th day of December, 2021

Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL P., MEMBER

Sd/-

SRI. AMPADY K.S., MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - George Mathew

PW2 - Mujeeb P.S.

On the side of the Opposite Party :

DW1 - Benny Augustine

Exhibits :

On the side of the Complainant :

Ext.P1 - copy of RC Book.

Ext.P2(series) - copies of bill relating to the repair works carried out by opposite parties.

Ext.P3 - copy of an e-mail message sent by the complainant regarding

unauthorised works done by opposite party.

Ext.P4 - copy of Ext.C1 commissioner’s report.

Ext.C1 - Commissioner’s report.

On the side of the Opposite Party :

Ext.R1 - Authorisation letter.

Ext.R2 - Photograph.

Ext.R3 - Copy of Letter issued by 2^nd opposite party.

 

Forwarded by Order,

 

SENIOR SUPERINTENDENT