DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 3rd of April 2023
Filed on: 07.05.2015
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 271/2015
COMPLAINANT
Mr.Philip Chacko, S/o C.V. Philip, Puthen Parambil, Konni Vakayar, Pathanamthitta District,
(By Adv.Aneesh K.M., Adv.Biju Varghese Abraham)
Vs.
OPPOSITE PARTY
1. M/s Marikar Engineers Pvt. Ltd. IV/389, Eloor Road, North Kalamassery, Cochin-683104, Represented by its Manager,
2. M/s SKODA Auto India Private Limited, A-1/1, M.I.D.C., Five Star Industrial Area, Shendra, Auranabad PIN 431 201, Represented by its General Manager.
(ops 1 and 2 rep. by Adv.Jayasree Manoj, Adv.Jithin Paul Varghese, Adv.P.Fazil)
F I N A L O R D E R
D.B.Binu, President.
1) A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant on 14/7/2014 has handed over his SKODA Superb car bearing Registration No. K L 26A 1111 to the workshop of the opposite parties for repairing on notifying leakage of oil from the Gear Box. The 1st opposite party is the authorized dealer of the 2nd opposite party. At that time, the experts of the opposite parties have verified the vehicle and confirmed that there is no other problem to the vehicle especially to the gearbox and the leakage can be rectified by replacing the oil pump, convertor, gasket etc and the opposite party has raised an estimate of Rs.1,21,519/- towards the same. The estimate raised by the opposite parties; the complainant had transferred an amount of Rs. 1 lakh to the account of the opposite parties account No.30389508949 at State Bank of India, Kalamassery Branch on 30-7-2014 itself and informed the same to the opposite parties .The opposite parties thereafter agreed that the vehicle will be repaired immediately and inform the complainant on completion of the repairing. The commitment made by the opposite parties to repair the car immediately, they had not taken any steps to repair the vehicle for several days and they had delayed the repair work citing one reason or other. The complainant had visited the service centre of the opposite parties several times and enquired about the progress of the work. The complainant had several times requested the opposite parties to complete the repair work at the earliest and to hand over the same. However, the opposite party had not cared to do anything and finally the complainant had constrained to issue an email communication to M/s SKODA India Private Limited narrating all the above facts. Thereafter, after more than six months of handing over of the car for repair work, the opposite parties had issued a communication on 14-1-2015 stating that the gear shifting of the car is not proper and that the entire gear box needs to be replaced. The opposite parties are incorrect and they have made these allegations only to escape from the liability to explain the delay in executing the work. Till 14-01-2015, the opposite parties have not stated anything about the problem of the gear box. They have always informed the complainant that the leakage from the gear box can be rectified by replacing the oil pump, convertor and gasket. The opposite party is sure that the present statement made by the opposite parties are made only extort money from the complainant and to escape from the implication caused due to the delay on their part to complete the repair work within the reasonable time. This is more perspicuous because, the opposite party has taken more than six months to identify such an alleged complaint to the car. The action of the opposite party’s amount to gross deficiency in service and to establish deliberate intention to beguile and cheat the complainant of by making incorrect, unsubstantiated and untenable assertions. The complainant apprehends that the vehicle was never repaired by the opposite party at any stage; instead, they have raised false invoices without any replacement / repair being done on the vehicle. The said illegal acts committed by the opposite parties amounts to unfair trade practice and deficiency of service, which a service provider is supposed to do to a consumer. The opposite party failed to repair the vehicle of the complainant, even after repeated requests as per the estimate issued by them. However, the opposite party did not turn down to give any explanation as required and the vehicle is keeping idle with them from the period of 14-07- 2014. The illegal acts of the Opposite Party in the above matter is clearly proves the deficiency of service committed by the Opposite Parties against the Complainant as a service provider and the illegal acts taken and against the Complainant as a consumer of the Opposite Parties. There by the Opposite Parties have committed unfair trade practice and also deficiency in service in this case. The complainant had approached the Commission seeking an order directing the opposite party to complete the repair work of the car and to give back the same in good drivable condition as per the estimate already given by the opposite parties, to pay Rs. 1,50,000/- as compensation for the financial loss and mental agony caused to the Complainant and the cost of the proceedings.
2). Notice
Notices were issued from the Commission to the opposite parties. The first opposite party filed version. The second opposite party received the notice but did not file their version.
3) THE VERSION OF THE FIRST OPPOSITE PARTY
The subject matter car was purchased by the complainant on 19.9.2008. The car was covered by warranty of two years and the warranty is already over. It is true that the Skoda Superb car of the complainant was towed by him to the service Centre of this opposite party on 14.7.2014 for a breakdown repair. On preliminary examination of the vehicle, it was noticed that the engine of the vehicle was arrested due to leakage and hence as an immediate step, the torque and oil pump of the vehicle were replaced. The allegation of the complainant that the vehicle was entrusted with this opposite party for repairing on notifying leakage of oil from the gearbox is not fully correct. Had it been a simple case of oil leakage, it was not necessary to tow the vehicle to the workshop. It was not technically possible for the technicians of this opposite party to give assurance that there is no other problem to the vehicle especially to the gearbox, on preliminary examination. In fact, after rectifying the oil leakage, it was detected that the gear shifting is not proper. Therefore, there was no occasion for the technicians of the opposite parties, at the first instance, to confirm that there is no other problem to the vehicle, especially to the gearbox and that the leakage can be rectified by replacing the oil pump, converter gasket etc. as alleged. The estimate of Rs. 1,21,519/- prepared was only an interim estimate (preliminary estimate) on preliminary examination. It is submitted that the said estimate was not a final estimate for repair of the vehicle. Based on the preliminary estimate, the complainant had paid an amount of Rs. 1 lakh to this opposite party on 30.7.2014. However, the opposite parties have not agreed that the vehicle will be repaired on payment of Rs. 1 lakh and on the other hand, the complainant was informed that he will be given the final estimate during the course of repair. The opposite parties have immediately started repair of the car and it was detected by the technicians that the gear shifting of the vehicle was not proper and the gearbox needs to be replaced to rectify the complaint fully. The final estimate arrived by this opposite party was Rs. 4,34,000/-. They have not approved the additional estimate for works including replacement of the gearbox and on the other hand, demanded to complete the entire work on the initial estimate itself. Since the opposite parties could not complete the work for want of confirmation of the final estimate from the complainant, the opposite parties had finally sent a detailed email to the complainant on 15.1.2015. Apart from explaining the circumstances in detail, the opposite parties have also sought approval of the complainant to proceed with the work. The complainant had not approved the final estimate prepared by the opposite parties so far. The wild allegation that there was no defect to the gearbox at the time of handing over of the same for repair and if there is any such problem. The opposite parties were always ready and willing to complete the works and the delay occurred, as already stated, was only because of the non- approval of the final estimate by the complainant. The allegation that the opposite party in their letter dated 14.1.2015 had raised a new issue that the entire gearbox has to be replaced instead of replacing the oil pump, converter and gasket and they have raised an estimate of Rs. 1,21,519/- is incorrect and misleading hence denied.
3). Evidence
The complainant had filed a proof affidavit and 4 documents that were marked as Exhibits-A-1- to A-4.
Exhibit A-1 True copy of the Workshop order / Job Card dated 14-07-2014.
Exhibit A-2. True copy of the E-mail from Marikkar Engineers dated 15/01/2015.
Exhibit A-3. True copy of the Legal Notice dated 02-02-2015
Exhibit A-4. True copy of the Acknowledgement card.
The first opposite party had filed a proof affidavit and 4 document that was marked as Exhibits-B1. The first opposite party examined as DW-1.
Exhibit B-1 True copy of the reply to the Legal Notice dated 11-05-2015
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
The above complaint has been filed by the complainant stating that this opposite parties have committed deficiency in service in not servicing the vehicle of the complainant in an appropriate manner and the complainant has sought for a direction from this commission to direct the opposite parties to repair the car and also a compensation.
The learned counsel for the complainant submitted that the illegal acts of the Opposite Party in the above matter is clearly proves the deficiency of service committed by the Opposite Parties against the Complainant as a service provider and the illegal acts taken and against the Complainant as a consumer of the Opposite Parties. there was no problem to the gear box of the complainant's car at the time of handing over the same for repair and if there is any such problem at present, the same had been caused due to the mismanagement on the part of the opposite parties and they are responsible for the same. The complainant has issued a legal notice to the opposite parties requiring them to handover the car in good drivable condition at the earliest and also demanding an amount of Rs. One Lakh as compensation for the financial loss and another sum of Rs.50,000/- for mental agony caused to them. However, the opposite parties have chosen not to response to the same till date. The Complaint could not play the vehicle from the said date causing acute mental agony and hardships to the complaint and the family members. The complaint was forced to use the taxi and found out other alternative vehicle under rent for personal usage of the complainant. The opposite party in its letter dated 14-01-2015 raised a new issue that the entire gear box has to be replaced instead of replacing oil pump, convertor, gasket etc and they have raised an estimate of Rs.1,21,519/- towards the same.
The learned counsel for the opposite party submitted that none of the actions of the opposite parties have caused any mental agony to the complainant or his family members and therefore the opposite parties are not liable to pay as alleged and claimed. The opposite parties are not responsible for the alleged delay occurred in repairing the car and therefore the opposite parties are not liable to pay any such amounts to the complainant as alleged and claimed. The complainant alone is responsible for not getting his car repaired at therefore the opposite parties are not liable for the alleged convenience or mental agony or hardship caused to the complainant or family members. Had the complainant approved the final estimate mediately on intimation, the opposite parties could have repaired the car much earlier. The allegation that the complainant was forced to use the taxi and found out other alternative vehicle under the rent for personal usage of the complainant and which cost the complainant to suffer huge loss and she is entitled to claim compensation of Rs. 1 Lakh etc. are raised the only for the purpose of this litigation and such allegations are totally incorrect and hence denied. The complainant ought to have proved that the vehicle could have been repaired as per that estimate with the help of expert opinion. The complainant has not taken out expert commission to prove the same. The complainant did not file any petition for appointing expert commissioner at the time of filing complaint or at any time prior to the listed date. Therefore, the petition to appoint expert commissioner, which was filed at a belated stage was dismissed by this commission. In the absence of an expert report which would substantiate the claim of the complainant, he cannot simply ask the opposite party to repair the vehicle as per the initial estimate. The subject matter car was 19.9.2008. The car was covered by warranty of two years and the warranty is already over. The opposite party is ready and willing to complete the work, immediately on approval of the final estimate by the complainant, within a reasonable time, as may be fixed by this commission. The complainant has failed to make out a prima facie case against this opposite party.
The complainant has only documentary evidence and has not adduced oral evidence. The burden of proof is on the complainant under the Consumer Protection Act. The onus of proof of deficiency in service is on the complainant in complaints under Consumer Protection Act. It is the complainant who had approached Commission and without any proof of deficiency, opposite party cannot be held responsible for deficiency in service.
Since the opposite parties could not complete the work for want of confirmation of the final estimate from the complainant, the opposite parties had finally sent a detailed email to the complainant on 15.1.2015 which is marked as Exhibit A-2. It in evident from Exhibit. A-2 that the issue of gear shifting was communicated to the complainant prior to the email communication sent by this opposite party. Apart from explaining the circumstances in detail, the opposite parties have also sought approval of the complainant to proceed with the work.
Exhibit A-2 produced by the complainant is quoted here:
“Your car KL 26 A 1111- Superb was reported at our workshop with a complaint of oil leak from Gear box. While receiving the vehicle, it was not in a drivable condition. It was towed to the workshop as a break down car. The complaint of oil leak was fully rectified. After completing the mentioned complaint, we have noticed that the gear shifting is not proper. The gear box needs to be replaced in the car to rectify the complaint. This was informed to you over phone & your son had visited the workshop. The issue was physically seen by him. You may do needful to give an approval for replacing the same.”
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“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 a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court 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. 5, 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 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 catena of decisions, it has been held that it is for the complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegations of negligence will be of no help to the complainant. As stated above, there is absence of expert opinion in support of the allegation made by the complainant against opposite parties Nos. 1 and 2. Therefore, the complainant has not been able to prove any deficiency in service or negligence on the part of opposite parties Nos. 1 and 2 within the meaning of Section 2(1)(g) of the Act, 1986.
We find the issue Nos. 1 to 4 against the complainant and we do not find any merit in the contentions raised by the complainant. Hence the following orders are issued.
ORDER
Under the circumstances stated above the Commission does not find merit in the contentions raised by the complainant and therefore the complaint is dismissed. No cost.
Dictated to the Confidential Assistant Ambily transcribed and typed by her corrected by me and pronounced in the Open Commission this the 3rd day of April 2023 .
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exhibit A-1 True copy of the Workshop order / Job Card dated 14-07-2014.
Exhibit A-2. True copy of the E-mail from Marikkar Engineers dated 15/01/2015.
Exhibit A-3. True copy of the Legal Notice dated 02-02-2015
Exhibit A-4. True copy of the Acknowledgement card.
Opposite party ‘s Evidence
Exhibit B-1 True copy of the reply to the Legal Notice dated 11-05-2015
Depositions
DW1: Sajith Latif
