BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.

F.A.No.481/2012 against C.C.No.358/2010 District Forum-II, Visakhapatnam.

Between

Sri Sadaram Jnanesh S/o.Sri S.Visweswara
Rao, aged 27 years, Hindu, male,
R/o.D.No.38-40-78, Marripalem
Visakhapatnam. Appellant/
Complainant

And

Orange Auto Pvt. Ltd.,
Rep. by its Manager,
A-4 Unit, Industrial Estate,
Visakhapatnam-8 Respondent/
Opposite party
Counsel for the Appellant : Smt.N(P) Anjana Devi

Counsel for the Respondent: M/s Indus Law Firm

QUORUM: SMT.M.SHREESHA, HON’BLE Incharge President
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.

TUESDAY, THE TWENTIETH DAY OF AUGUST
TWO THOUSAND THIRTEEN
Order (Per Smt.M.Shreesha, Hon’ble Incharge President)
***

Aggrieved by the order of C.C.No.358/2010 on the file of District Forum-II, Visakhapatnam , the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant purchased an OPEL CORSA Petrol car having LPG facility worth Rs.50,000/- and in total paid Rs.2,50,000/- and Rs.50,000/- for the LPG facility. The complainant had given his car for repairs to the opposite party workshop on 13-1-2010 as there was a fire in his car. But opposite party did not rectify the problem till 31-3-2010 and charged Rs.1315 towards repairing charges. Again the same problem occurred but the mechanics and service engineers of OP workshop did not rectify the problem but stated that if the silencer is replaced, the problem would not arise. On 28-4-2010, the complainant paid Rs.9685/- for replacing the car silencer but still the problem persisted so the complainant issued a legal notice on 24-6-2010 and the opposite party managed to evade the notice till 02-7-2010 and the complainant submits that the opposite party’s demand notice was delivered on 24-6-2010 itself as the workshop is 1 KM away from the complainant’s residence but the opposite party’s intention is to show that his demand notice is prior to the complainant’s legal notice. The complainant submits that he is a civil contractor and engaged a private car and incurred an expenditure of Rs.1,60,000/- and also paid car finance charge of Rs.7,300/- to his financier and totally paid Rs.36,500/- for five months when the complainant’s car was in the workshop of the opposite party. The complainant approached the Forum seeking direction to the OP to deliver his card or refund the cost of the car with interest, compensation and costs.
Opposite party filed counter stating that the complainant brought his car on 8-1-2010 at 8.15 p.m. and then turned up on 11-1-2010 and signed the job card and the vehicle was delivered to him on 12-1-2010 after carrying out repairs to the satisfaction of the complainant. Once again, on 12-1-2010 at 8.00 p.m. after closing the workshop, the complainant approached them stating that his silencer is getting over heated and did not turn up till 02-3-2010. The job card was not opened because of the non-availability of the complainant. The opposite party submits that a non-standard silencer and a gas kit were fitted in the car which is not recommended for OPEL Corsa car and some electrical repair work was also conducted by unauthorised mechanics which led to the electrical failure. A minimum charge of Rs.1,315/- was demanded and the OP closed the job card on 31-3-2010. The complainant never bothered to take delivery of his vehicle till 28-4-2010. The opposite party addressed a letter on 05-4-2010 requesting the complainant to take back his vehicle after duly clearing the parking charges. Then the complainant came on 28-4-2010 and paid Rs.10,000/- towards advance and gave his consent to change the silencer but not to replace the ignition coil and therefore the opposite party cannot be held responsibility if the ignition coil is not working. The opposite party has completed its job card on 19-5-2010 itself and again a new job card was opened on 30-4-2010 and closed on the same day due to non-availability of the repair order. The total bill was Rs.25,567/- after adjusting the advance sum of Rs.8685/- a balance amount is Rs.13882 is still due from the complainant apart from the demurrage charges. The complainant informed that he would take delivery on 14-6-2010 but did not turn up and the opposite party addressed a letter on 21-6-2010 by RPAD but the same was returned unserved. Thereafter the opposite party received a legal notice from the complainant on 02-7-2010 and the opposite party reiterates that the complainant’s car was ready for delivery since 19-5-2010 and the complainant can take delivery of his car after clearing the due outstanding balance and submits that there is no deficiency in service on its behalf.
The District Forum based on the evidence adduced i.e. Exs.A1 to A10 and B1 to B15 and the pleadings put forward, dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal.
The brief point that falls for consideration is whether there is any deficiency in service on behalf of the OP and if the complainant is entitled to the relief prayed for in the complaint?
The facts not in dispute are that the complainant purchased an OPEL Corsa car and got an LPG fixed to his car by spending an amount of Rs.50,000/- and there was a problem of ‘misfire’ and he has taken his car to OP workshop and Ex.A2 evidences that the vehicle was with the OP till 31-3-2010. Ex.A2 is the invoice raised by OP for Rs.1315/-. It is the complainant’s case that inspite of repeated visits to the OP, the problem was not rectified and he was informed that the silencer should be replaced and Ex.A3 is the advance amount paid by the complainant for replacing the silencer for Rs.9,685/- on 28-4-2010. The OP gave a demand notice to the complainant on 21-6-2010 to take delivery of the car evidenced under Ex.B11 after duly paying the outstanding balance plus demurrage charges at Rs.250/- per day. It is the opposite party’s case that they addressed a letter on 05-4-2010 evidenced under Ex.B6 requesting the complainant to take back the car but he turned up only on 28-4-2010 and paid Rs.10,000/- towards advance and gave consent only to replace the silencer but not the ignition coil which needs to be replaced. After debiting Rs.1315/- a balance of Rs.8685/- was kept as advance from the complainant, a new silencer was fitted but the complainant did not turn up till 19-5-2010 and Ex.B9 job card which was opened on 03-5-2010 was closed. A bill for Rs.25,567/- evidenced under Ex.B10 dated 19-5-2010 was raised by the opposite party and after adjusting the balance of Rs.8685/-, the complainant is still due Rs.13,882/- from the complainant which the opposite party seeks from the complainant apart from demurrage charges.
We observe from the record that the said car is almost six years old as it was purchased in the year 2003 and it was fitted with LPG facility which the OP submits is not recommended for this car model. The complainant has also not disputed that the electrical works were conducted by some unauthorized persons and has not given any reasons as to why he has not collected his car despite the demand notice by the OP instead the complainant submits that Ex.B6 was only created and the OP issued Ex.B11 only after knowing the contents of his legal notice. Even otherwise, it is in the knowledge of the complainant that his car is with the workshop and it is the duty of the complainant to ascertain whether the silencer has been replaced and the burden of proof is on the complainant to establish his allegation that the OP did not fix a new silencer and on the other hand the opposite party filed Ex.B11 which is the retail invoice of all the parts which have been replaced. There is contributory negligence on behalf of the complainant in fixing the car with LPG and also not ascertaining with respect to fixing of the new silencer and leaving the car with the opposite party. Keeping in view the facts and circumstances and the principles of natural justice, we are of the considered view that the complainant shall pay the balance amount of Rs.13,882/- without demurrage charges and take delivery of his car and the OP shall deliver the car to the complainant within four weeks from the date of receipt of this order.
In the result this appeal is disposed of directing the complainant to pay the balance amount of Rs.13,882/- without demurrage charges and take delivery of his car and the OP shall deliver the car to the complainant within four weeks from the date of receipt of this order. If the complainant does not pay the amount within four weeks after receipt of this order and take back the car which is with the opposite party as of today, he is liable to pay the demurrage charges from the date of filing of the complaint. There shall be no order as to costs.

Sd/-INCHARGE PRESIDENT.

Sd/-MEMBER.
JM Dt.20-8-2013.