Punjab

Ludhiana

CC/22/255

Himanshu Kwatra - Complainant(s)

Versus

Ms Bhardwaj Auto Mobile & Services - Opp.Party(s)

Prakash Chopra

15 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:255 dated 20.06.2022.                                                        Date of decision: 15.03.2023.

 

Himanshu Kwatra son of Sh. Ramesh Kumar, Proprietor M/s. Gau Vedant Seva Kendra, R/o. House No.B-I-1446/9/C/1-B, Plot No.48, Street No.1, Kapil Park, Haibowal Khurd, Ludhiana, Punjab. Mobile-98156-10532                                                                                                           ..…Complainant

                                                Versus

1. Akhil Bhardwaj, Proprietor M/s. Bhardwaj Auto Mobile and Services, Near Petrol Pump, Mandali, Chirgaon, District Shimla, Himachal Pradesh.
2. M/s. Bhardwaj Auto Mobile and Services, Near Petrol Pump, Mandali, Chirgaon, District Shimla, Himachal Pradesh through its Proprietor Akhil Bhardwaj.                                                                                                                                                                …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Prakash Chopra, Advocate.

For OPs                         :         Exparte.

 

ORDER

PER JASWINDER SINGH, MEMBER

1.                In brief, the facts of the case are that the complainant purchased a care bearing registration No.PB-10-EH-8313 in the name of his proprietorship firm. In the last week of October 2020, he went to Shimla for his personal visit on the said car. On 31.10.2020, the said car started giving problem and the complainant took the car to opposite party for its repair who gave an estimate of Rs.65,000/- for the repair of the vehicle and assured that the vehicle will be delivered to the complainant within one month after its repair. On assurance of opposite party, the complainant dropped the vehicle for its repair and paid Rs.45,000/- on different dates through RTGS/NEFT from his bank account No.189802000000152 of India Overseas Bank, Rishi Nagar branch, Ludhiana towards repair charges. The complainant averred that as per assurance of the opposite party, he visited Shimla in the last week of November 2020 to take delivery of his car and checked the vehicle by driving it came to his notice that the vehicle is not repaired properly and was causing problem and he did not take the delivery of the vehicle. The opposite party assured that he will rectify the problem and deliver the vehicle to the complainant in a short period. The complainant had to stay in a hotel at Shimla for 3 days to get his vehicle repaired but the vehicle was not completely repaired and the complainant had to return Ludhiana empty handed. The complainant made several telephonic calls to opposite party to enquire about status of the vehicle but the opposite party postponed the mater on one pretext or the other. Ultimately, he received a call from opposite party in January 2021 that the problems in the vehicle has been completely rectified and asked the complainant to take delivery of the vehicle at Panchkula by making balance payment of Rs.20,000/-. On 27.01.2021, the complainant paid a sum of Rs.18,000/- to opposite party out of which a sum of Rs.5000/- was paid through RTGS from his bank account and Rs.13,000/- was paid in cash with request to bring the bill/invoice for repair charges along with tax receipts and E-way bill. The complainant further submitted that on 27.01.2021, he reached at the designated place in Panchkula where opposite party No.1 gave delivery of the vehicle to him and also gave bill No.102 dated 27.01.2021 for a sum of Rs.65,000/- having GST No.02CZQPAA280H1ZA. On the said bill, opposite party also gave a certificate/undertaking giving guarantee/liability of the repaired work regarding the said car up to 6 months or 10,000 KM whichever is earlier and on the backside of the bill, a receipt was also written under signature of opposite party No.1 wherein he handed over the car to the complainant in working condition. It was also written on the backside of the bill that opposite party has not brought the tax receipt/E-way bill. As such, the complainant hold the balance payment and it was mentioned that the complainant will be liable to pay the balance payment to him within 24 hours after receipt of tax receipt/E-way bill to the complainant. The complainant further alleged that within a few days after the delivery of the vehicle, it again started creating troubles and complainant took the vehicle to workshop of CARS 11 MOTORS Workshop at Ludhiana who gave an estimate bill of Rs.76,460/- for the repair of the vehicle No.PB-10-EH-8313 and from the said fact, it shows that the opposite party has not completely rectified the problems existing in the car due to which it again started creating trouble and the said vehicle was handed over to Cars 11 Motors Workshop for repair. The complainant has to pay a sum of Rs.76,460/- to the said workshop for repair of the vehicle. The complainant sent a legal notice upon the opposite parties through registered post on 18.02.2021 to which the opposite parties sent a false and frivolous reply. Thus, the complainant has suffered mental pain, agony, harassment and financial loss due to deficiency in service and unfair trade practice on behalf of the opposite parties. In the end, the complainant has prayed for issuing directions to the opposite parties to pay the amount of Rs.3,09,460/- on account of amount charges for repair of the vehicle and for harassment, loss, damages etc. 

2.                Initially, Sh. Akhil Bhardwaj, Proprietor of opposite parties appeared in person but later on, he absented himself from the proceedings and was proceeded against exparte vide order dated 04.11.2022.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of registration certificate No.PB-10-EH-8313, Ex. C2 is the copy of account statement, Ex. C3 is the invoice dated 27.01.2021 of the opposite parties, Ex. C4 is the copy of handwritten certificate/undertaking, Ex. C5 and Ex. C6 are the copies of handwritten endorsement of the parties, Ex. C7 is the copy of Aadhar card of opposite party No.1, Ex. C8 is the copy of handwritten receipt dated 28.01.2021, Ex. C9 is the legal notice dated 17.02.2021, Ex. C10 is the copy of postal receipts, Ex. C11 is the copy of reply to notice dated 22.03.2021, Ex. C12 is the estimate of Cars 11 Motors Workshop dated 11.02.2021 and closed the evidence.

4.                We have heard the arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents and produced on record by the complainant.       

5.                The complainant being proprietor of M/s. Gau Vedant Seva Kendra, Ludhiana has invoked the jurisdiction of this Commission by filing the present complaint stating therein that on 31.10.2020, the car bearing No.PB-10-EH-8313 developed snag and the vehicle was repaired by the opposite parties and the complainant paid a total amount of Rs.45,000/- out of estimated amount of Rs.65,000/-. The vehicle was redelivered to the complainant on 27.01.2021 at Panchkula and the opposite parties gave undertaking/guarantee of 6 months or up to the coverage of 10000 KM if within this period something goes wrong with repaired machinery. However, according to the complainant that after few days of its repair, the vehicle went out of working again and the complainant has to shell out the amount of Rs.76,460/- for getting the vehicle repaired.

6.                Perusal of the invoice dated 11.02.2021 Ex. C12 shows that it is an estimate and the complainant has not adduced any evidence to show that the vehicle was actually repaired and the payment was made to Cars 11 Motors Workshop. There is no evidence of any expert  which shows that after the repair, the vehicle actually developed some defect. Even the complainant did not approach the opposite parties or towed his vehicle for repairs to the workshop of the opposite parties claiming malfunctioning to be within period of guarantee. However, the complainant served legal notice Ex. C9 upon the opposite parties to which the opposite parties replied on 22.03.2021 Ex. C11 through their counsel. Perusal of reply Ex. C11 reveals another story which has not been reflected in the complaint itself. Contents of the reply to legal notice Ex. C11 shows that the vehicle in question was made in workable condition on 04.11.2020  and thereafter, the vehicle was driven and it got overheated and again brought back to the workshop of the opposite parties and there it was detected that the main crank shaft of the engine was badly damaged. The opposite parties claimed to have spent an amount of Rs.80,750/-  on repair of the vehicle and according to the opposite parties, a sum of Rs.32,750/- is still recoverable from the complainant. At this juncture, a dispute arose between the parties regarding the repair charges and the matter was reported at P.S. Rohru by the complainant against the opposite party. However, the same got resolved through the intervention of respectables. The vehicle was delivered to the complainant at Panchkula. The facts revealed in the notice were a material for the adjudication of the case but the same were not mentioned in the complaint. R.C. Ex. C1 shows the registered owner to be M/s. Gau Vedant Seva Kendra and instead of arraying the said firm as the complainant, the complainant has chosen to file the complaint himself. The complainant has not adduced any documentary proof showing the payment from the account of the firm or any other account. So even in the absence of the opposite parties, the complainant was required to discharge the initial burden to substantiate his claim. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

7.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:15.03.2023.

Gobind Ram.

 

 

Himanshu Kwatra Vs Akhil Bhardwaj                          CC/22/255

Present:       Sh. Prakash Chopra, Advocate for complainant.

                   OPs exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:15.03.2023.

Gobind Ram.