DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 23rd day of December 2022
Filed on: 18/01/2022
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 48/2022
COMPLAINANT
Anoop Thankachhan,13E; Magic Lilly, Acqua City; Aluva PIN-683511
(Rep. by Adv. Sebin Thomas, Lawyers Factory, 2nd Floor, Vattoly Complex, Kombara Junction, Ernakulam – 18)
VS
OPPOSITE PARTY
Mr.Stigil Jose Managing Partner, Garge 47, SH19 Thottakkattukara, Aluva Pin 683108
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 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant herein is the sole owner of a four-wheeler vehicle bearing Register Number GA-03-H-7534. The complainant had purchased the said vehicle from Mr. Rommel Gilbert Desouza having permanent residence at Panaji, North Goa. The Goan State transport department (Panaji RTO) has issued a No Objection Certificate to the complainant. The vehicle owned by the complainant had met with an accident on 26.11.2020 in which the vehicle was severely damaged. The complainant entrusted the vehicle to the opposite party under the oral promise that he will complete the repair works within the period of two months on 27.11.2020. The complainant had availed insurance for the said vehicle, and the preliminary inspection by the insurance company was completed on 07.12.2020. Even though more than ten months have elapsed after entrusting the vehicle to the opposite party, the vehicle was neither handed over nor repaired. At the time of the accident, the vehicle had valid insurance and the validity of the insurance was expiring on 20.09.2021. The same was communicated to the opposite party at the time of entrusting him with the vehicle. The same was repeatedly reminded to the complainant through phone calls and in-person as completing the repair work within the expiry date of the insurance was essential to get the claim amount. The complainant visited the automobile workshop of the opposite party many times and informed the agents of the opposite party about the same. Since the opposite party never responded to any of the requests of the complainant, he sent a legal notice on 14.09.2021, demanding that if the opposite party didn't complete the repair works and hand over the same along with the bill of expenses and original documents entrusted to the opposite party within 19.09.2021. The insurance company may reject the insurance claim of the complainant and a huge financial loss may occur to the complainant. But the opposite party never responded to any of the requests. The insurance of the complainant’s vehicle expired on 19.09.2021 and the complainant is constrained to bear all the expenses that may occur for the repair works of the vehicle due to the inefficiency of the opposite party’s service. The inefficient and poor service of the opposite party resulted in putting the complainant in such a situation where the complainant is not in a position to claim his insurance amount anymore. The complainant’s vehicle is kept in the premises of the opposite party's workshop for more than ten months where the vehicle is exposed to rain and sunlight. Due to the negligence of the opposite party, the vehicle is completely in destroyed condition. The negligence on the part of the opposite party is the only reason for the complainant’s vehicle to become unusable. The same has caused the complainant a loss of Rs.10,000,00/- all together with the insurance amount and the opposite party is liable to compensate Rs.1,00,000/- to the complainant. The vehicle was under the custody of the opposite party the complainant was constrained to avail a rented car for his day-to-day needs. The complainant is a businessman and he ought to travel a lot for his business purposes so availing a rented car was the only option left for the complainant. The complainant is still using the above-mentioned rented car by paying a huge amount of monthly rent. The monthly rent of this car caused an additional expense of Rs.3,00,000/- to the complainant. This huge monetary loss was caused to the complainant as the opposite party unreasonably delayed the repair and delivery of the vehicle. The opposite party is liable to compensate the complainant the total amount of Rs.3,00,000/- which is paid by the complainant as the rent amount of his vehicle.
The complainant had approached the Commission seeking an order directing the opposite party to compensate the insurance amount of Rs.7,50,000/- together with compensation for the damages caused after entrusting the vehicle to the opposite party i.e., Rs.2,50,000/-. Total Rs.10,00,000/-, Rs,3,00,000/- as the cost of rent of the vehicle which the complainant was forced to use due to the delay and inefficient service on the part of the opposite party, to pay a sum of Rs.50,0000/- for the mental agony and pain suffered by the complainant and Rs.20,000/- as the cost of the litigation.
2). Notice
The Commission’s Notice sent to the opposite party was returned with the postal endorsement “unclaimed”. Hence the notice was deemed to be serviced. Consequently, the opposite party was set ex-parte.
3). Evidence
The complainant had filed a Proof affidavit and 8 documents that were marked as Exhibits-A-1- to A-8.
Exhibit A-1: The copy of the No Objection Certificate issued by the Goan State transport department (Panaji RTO).
Exhibit A-2- The copy of the original RC Book.
Exhibit A-3- The copy of the motor vehicle insurance certificate.
Exhibit A-4- The copy of the notice of transfer of ownership of a motor vehicle.
Exhibit A-5- The copy of the notice issued by the Insurance surveyor & loss assessor regarding the submission of the final invoice of the vehicle dated 28.09.2011 6.
Exhibit A-6- The copy of the legal notice issued by the advocate.
Exhibit A-7- The copy of the photographs showing that the vehicle is kept on the premises of the opposite party.
Exhibit A-8- The copy of the estimate of total expenses of repairing this damaged car given from the garage of the opposite party.
4) 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?
7) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant is he is the motor vehicle bearing registration number G.A 03 H 7534, and the same has been the owner and in possession of four-wheelers entrusted to the opposite party on 27.11.2020 for repairing works as the vehicle was damaged in an accident on 26.11.2020. The complainant has entrusted the vehicle to as per the understanding arrived between the opposite party and the complainant, the opposite party will complete the repair work and hand over the vehicle within a period of two months. The vehicle has insurance coverage at the time of the accident and the opposite party has given assurance that they shall comply with all the conditions stipulated in the insurance scheme and the opposite party shall cooperate with the insurance company. The complainant’s vehicle is kept in the premises of the opposite party's workshop for more than ten months where the vehicle is exposed to rain and sunlight. Due to the negligence of the opposite party, the vehicle is completely in destroyed condition. The negligence on the part of the opposite party is the only reason for the complainant’s vehicle to become unusable.
We have also noticed that a Notice was issued from the Commission to the opposite party but did not file their version. Hence the opposite party set ex-parte. The complainant has filed the Proof Affidavit and 8 documents which are marked as Exbt.A-1 to A-8.
In the supreme Court of India civil Appellate Jurisdiction Civil Appeal No. 5759 of 2009 SGS India Ltd. Appellant(s) Vs. Dolphin International Ltd. Respondent(s)
“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 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.”
The complainant in this case had not produce any iota of evidence to establish his authority to prefer the complaint and to establish the obligations of opposite party towards the complainant. Except for the averments, the complainant has failed to prove his case with sufficient documents to prove that deficiency of service occurred from the side of the opposite party towards the complainant. There is no merit in the case and the case of the complainant is unbelievable and is liable to be dismissed and accordingly dismissed.
Pronounced in the open Commission this the 23rd day of December 2022. 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: The copy of the No Objection Certificate issued by the Goan State transport department (Panaji RTO).
Exhibit A-2- The copy of the original RC Book.
Exhibit A-3- The copy of the motor vehicle insurance certificate.
Exhibit A-4- The copy of the notice of transfer of ownership of a motor vehicle.
Exhibit A-5- The copy of the notice issued by the Insurance surveyor & loss assessor regarding the submission of the final invoice of the vehicle dated 28.09.2011 6.
Exhibit A-6- The copy of the legal notice issued by the advocate.
Exhibit A-7- The copy of the photographs showing that the vehicle is kept on the premises of the opposite party.
Exhibit A-8- The copy of the estimate of total expenses of repairing this damaged car given from the garage of the opposite party.
Opposite parties’ evidence:
Nil
Despatch date:
By hand: By post
kp/
CC No. 48/2022
Order Date: 23/12/2022
Forwarded by Order
Assistant Registrar
