DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of December 2023.
Filed on: 16/08/2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 315/2019
COMPLAINANT
K.P. Jeevan, Kaali Mandhiram, Jolsana Nivas, 151, South Chittoor, Pin-682 027
OPPOSITE PARTY
Bipin Punnackal,Customer Care Manager,. Popular Vehicles and Services Ltd,
Pin-682 026
(Adv. George Cherian Karipparambil, Karipparambil Associates, H.B. 48, Panampilly Nagar, Kochi 682 036)
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 complainant entrusted their car for accident repair on 07.06.2019. The car was returned, but it had steering vibration issues and water entered the cabin damaging the stereo. Due to these issues, the complainant had to cancel a trip, incurring a loss of Rs.25,000/-. The complainant seeks compensation of Rs.25,000 for the loss of the trip and Rs.25,000/- for mental agony.
2). Notice
The Commission issued notice to the opposite party. The opposite party received the notice and submitted their version.
3) THE VERSION OF THE FIRST OPPOSITE PARTY
The consumer complaint against the customer care manager is not maintainable as the manager is only an employee and has no personal liability. The vehicle already had 176,053 Kms on it when brought for repair, and the repair was done on a claim basis through insurance. A surveyor inspected the vehicle before and after repair, and the repair work was approved. Invoices totalling Rs. 83,553 were raised for labour and parts charges. The complainant's vehicle had pre-existing service requirements due to long-term usage.
The complainant alleges defects in their car after accident repair, seeking compensation. The opposite party stated that the complaint is not maintainable, and the alleged defects were pre-existing or unrelated to the accident. They request the complaint's dismissal with costs.
4) Evidence
A proof affidavit was not filed by the complainant; however, they submitted 3 documents which were marked as Exhibits A-1 to A-3.
Exbt A1. Tax Invoice
Exbt A2. Tax Invoice
Exbt A3. Tax Invoice
The Opposite party filed proof affidavit and the service history of the vehicle was marked as Exhibit B1.
The Complainant did not cross examined the opposite party.
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 parties to the complainant.
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
In the complainant's case, they had entrusted their car for accident repair on 07.06.2019, but upon receiving it back, they discovered issues like steering vibration and water entering the cabin, damaging the stereo. As a result, the complainant had to cancel a trip, incurring a loss of Rs. 25,000. The complainant sought compensation of Rs. 25,000 for the trip cancellation and an additional Rs. 25,000 for mental distress.
We have heard Adv.George Cherian Karippaparambil, the learned counsel representing the opposite party, who raised several key points in response.
- the opposite party argued that the complaint against the customer care manager was not legally maintainable, as the manager was merely an employee and not personally liable. No consideration was received by the manager for their services to the complainant.
- The vehicle, when brought in for accident repair on 10.06.2019, already had 176,053 kilometers on it and was covered by comprehensive insurance with M/s Oriental Insurance Co. Ltd. The repair work was carried out on a claim basis after a preliminary estimate and inspection by the insurer's surveyor.
- Invoices for labor and parts charges totalling Rs. 83,553 were issued for the repair work, with Rs.83,053/- being received from the insurance company after deducting the compulsory excess of Rs.500.
- The opposite party asserted that certain pre-existing service requirements, resulting from wear and tear due to long-term usage, were present in the complainant's vehicle at the time of accident repair. These requirements were unrelated to the accident damage.
- The allegations of defects in the vehicle post-accident repair were vehemently denied by the opposite party, who argued that the complainant's vehicle covered an additional 22,047 kilometers within four months of the repair.
- The opposite party contended that the claim for compensation of Rs. 25,000 and further expenses was unsustainable both in law and based on the case's facts.
The complainant did not provide oral evidence in the case but submitted three documents marked as Exhibits A1 to A3. In contrast, the opposite party filed a proof affidavit and presented the vehicle's service history as Exhibit B1. The complainant did not cross-examine the opposite party.
Regarding issue (i), it was argued that employees of a company are not personally liable, citing the Honourable Supreme Court decision. The established legal principle holds that employees of a company cannot be held personally liable. This reliance is based on a precedent set by the Hon'ble Supreme Court of India in the case of Yogesh Aggarwal Vs. Aneja Consultancy (A part of Aneja Group) and others, reported in IV (2021) CPJ 9 (SC).
Issues 2, 3, and 4 were considered together. The complainant's failure to file a proof affidavit. It was argued that the alleged defects were pre-existing and unrelated to the accident.
Based on these arguments, it was suggested that issues (ii), (iii) and (iv) should be decided in favour of the opposite party.
Ultimately, given the findings on these issues, it was recommended that the complaint be dismissed, with costs awarded to the opposite party.
The complainant failed to submit a proof affidavit despite multiple opportunities and did not participate in subsequent case hearings, including failing to cross-examine the opposite party. Due to their intermittent absence and lack of evidence, the Commission must proceed with the disposal of the complaint based on available evidence. The complainant's case consisted of submitting three documents marked as Exhibits A1 to A3, while the opposite party filed a proof affidavit and presented the vehicle's service history as Exhibit B1. It's noteworthy that the complainant did not cross-examine the opposite party.
Top of Form
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.
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. “
The Commission carefully considered the evidence, legal arguments, and relevant case laws presented in this case.
The Commission proceeded to analyze these issues in detail:
Issues 2, 3, and 4: Deficiency in Service and Compensation the opposite party provided several key arguments to rebut the complainant's claims. The vehicle had 176,053 kilometers on it when brought for repair and was covered by comprehensive insurance. The repair work was carried out on a claim basis, following a preliminary estimate and inspection by the insurer's surveyor. Invoices for labor and parts charges totaling Rs. 83,553 were issued, with Rs. 83,053 received from the insurance company. The opposite party contended that certain pre-existing service requirements, resulting from wear and tear due to long-term usage, were present in the complainant's vehicle at the time of accident repair and were unrelated to the accident. The allegations of defects in the vehicle post-accident repair were vehemently denied by the opposite party.
The Commission takes note of the evidence presented, including the proof affidavit and service history of the vehicle filed by the opposite party. However, the complainant failed to file a proof affidavit despite multiple opportunities and did not participate in subsequent case hearings, including failing to cross-examine the opposite party.
In a series of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the Commission. Mere allegations of negligence are insufficient to support the complainant's case. As stated in the case of SGS India Ltd Vs. Dolphin International Ltd (2021 AIR SC 4849), "the onus of proof of deficiency in service is on the complainant in complaints under the Consumer Protection Act." It is the complainant who approached the Commission, and without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
In conclusion, the Commission finds that the complainant failed to provide sufficient evidence to substantiate their claims of deficiency in service or negligence by the opposite parties. Therefore, the complaint is dismissed, and no relief is granted to the complainant.
After careful consideration, the case presented by the complainant is considered to be without merit. As a result, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. These issues are unfavourable to the complainant. Consequently, the complaint is dismissed. No cost.
Pronounced in the Open Commission on this the 30th day of December 2023.S
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
- Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Exbt A1. Tax Invoice
Exbt A2. Tax Invoice
Exbt A3. Tax Invoice
The Opposite party filed proof affidavit and the service history of the vehicle was marked as Exhibit B1.
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