By Sri.Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The Complainant’s case in brief is as follows:-
The Complainant is the registered owner of KL 72/7080 Yamaha motor bike. He has purchased it from the Opposite Party. Opposite Party had arranged finance and insurance to the vehicle. Opposite Party assured that they will do all repairing works cashless and claim insurance amount directly from New India Assurance Company. Subsequently, vehicle met with an accident and it became useless due to damages caused in the accident. The brother of the Complainant was also died in this accident. Thereafter the said vehicle was taken to Opposite Party for repair and Opposite Party on 24.06.2015 informed that they will do all things to get insurance as total loss. Since, there was no further information, the Complainant approached the Opposite Party in November 2015 and it was informed that total claim will not be available for the bike and they will do all repairing works cashless. Then, the Opposite Party dragged the work without any reason. While so, the Complainant again approached the Opposite Party in the month of February 2016 when he received insurance renewal notice and found that the repairing work was not completed. Therefore, the father of the Complainant sent a lawyer notice to the Opposite Party on 30.03.2016 calling upon the Opposite Party to return the bike in running condition. They sent a reply in which they stated that all repairing works was over. Believing their words, Complainant approached the Opposite Party on several occasions. But, he was informed that repairing work was not over. It is learnt that the Opposite Party has not taken any steps to get insurance claim. The act of Opposite Party is deficiency in service and also unfair trade practice. Hence, this complaint to get back the bike in running condition after completing all repair works or to get Rs.90,000/- as the value of the bike, to get Rs.1 Lakh as compensation for the deficiency in service and unfair trade practice and to get the cost of litigation.
3. The Opposite Party appeared and filed version which in short is as follows:-
They admitted that the Complainant is the RC owner of the vehicle bearing No.KL 72/7080. They also admitted that the Complainant purchased the said vehicle from the Opposite Party. But, they denied that at the time of purchasing the vehicle, the finance and insurance were arranged by them with an undertaking that they will do all repairing works cashless and claim insurance amount directly from the insurance company. They admitted that Complainant brought the vehicle to their garage after the accident for repair. But, they denied that they assured to get insurance claim as total loss of the bike and subsequently informed that total loss claim will not be admissible for a bike and that they are able to do the work cashless. The vehicle was brought to their garage on 24.06.2015 by two neighbours. Thereafter, the father of the RC owner phoned them and informed about the death of his son. He agreed to give the repair charge. At that time, the Opposite Party misunderstood that the RC owner of the bike was died. They admitted the receipt of notice sent by the father of the Complainant and their reply notice. The Opposite party done the surrey of the repair work on 27.06.2015 and completed the work on 29.03.2016 for Rs.63,814/. Though it was informed to the Complainant, he has not come to get back the bike by paying the repair charge. Instead of getting back the bike, the father of the Complainant came to their garage and unnecessarily quarrelled with them. The Opposite Party has no objection in giving back the vehicle after getting the repair charge. Hence this complaint is to be dismissed.
4. On the above pleadings, the points to be considered here are
- Whether there is any deficiency of service on the part of Opposite Party?
- Whether there is any unfair trade practice on the part of opposite party?
- Reliefs and costs.
5. The evidence in this case consists of oral testimonies of PW1, Ext.A1, A2 and Ext.C1. There is no evidence from the Opposite Party. Heard both sides.
6. Point No.1& 2:- For convenience, these points are answered together. Admittedly, the Complainant is the RC owner of KL 72/7080 bike and he had purchased it from the Opposite Party. The specific case of Complainant is that at the time of purchase of the bike, the Opposite Party arranged insurance to the vehicle and they undertook that they will do all repairing works cashless. It is an admitted fact that the vehicle met with an accident and it was brought to the Opposite Party for repairing work. The case of the Complainant is that when there was no response from the Opposite Party, he contacted the Opposite Party and realised that the Opposite Party has not done any repairing work. According to him, Opposite Party informed that total loss claim will not be available for bike and they will do the repair work cashless. Further, according to the Complainant, even then Opposite Party dragged the work and failed to repair the vehicle. On the other hand, according to the Opposite Party, they done the repair work for Rs.63,814/- and since the Complainant has not given the said amount, they are unable to return the bike to him. According to them, if the Complainant pays the amount, they are ready to give back the bike.
7. PW1 is the Complainant. He deposed his case as narrated in the complaint. Ext.A1 is the copy of the notice sent by the father of the Complainant calling upon the Opposite Party to give back the bike in running condition. Ext.A2 is the reply notice of the Opposite Party. Ext.C1 is the report of the Expert Commissioner. He has inspected the vehicle on 25.11.2019 and he specifically reported that the bike was seen repaired. He has narrated in Ext.C1 report all the works done by the Opposite Party. As we already stated, the specific case of Complainant is that even after sending Ext.A1 notice, the Opposite Party has not repaired the bike. Ext.A1 has been sent on 30.03.2016. The Opposite Party has sent Ext.A2 Reply on 08.04.2016. Even though the Complainant has sent Ext.A1 notice to the Opposite Party on 30.03.2016, this complaint has been filed only on 07.12.2017. So also, even though, the Complainant has filed this complaint on 07.12.2017, he took steps to appoint an Expert Commissioner only on 22.10.2019. Though the case of the Complainant is that even after sending Ext.A1 notice, the Opposite Party has not repaired the vehicle, here absolutely there is no materials to show that the Opposite Party has not done the repair work at that time. In Ext.A2 reply notice, the Opposite Party specifically took a stand that they completed the repair work on 29.03.2016 for Rs.63,814/- and they are unable to give back the bike for the reasons that the Complainant has not paid the repairing charge. They denied that they assured to do cashless repairing work. Let us assume that the Opposite Party offered a cashless repair. Even then, the Complainant is bound to give claim form to the insurance company. The Complainant has no case that he has given claim form to the insurance company. It is evident that at time of inspection of Expert Commissioner, the repairing work was over. PW1 also admitted that at time of inspection by the Expert Commissioner, the repairing work of the bike was over. He has also admitted that he has not given any single paisa towards the repairing charge. He has not denied the amount of repairing charge. He admitted that he has not spent any amount for the purchase of spare parts. But, he adamantly deposed that he is not ready to pay the repairing charge. When this Commission asked a question to PW1 that why he is not ready to give the repairing charge, he replied that the Opposite Party has not informed him when they started the repairing work. Therefore, the case of the Complainant in the complaint as well as evidence given by him is contrary. Anyhow, it is evident that Opposite Party done all repairing works and the Complainant has not ready to give the repairing charge. Therefore, there is no materials here to show that the Opposite Party wilfully not done the repairing work as stated by the Complainant. There is no evidence here to prove that there was assurance from the Opposite Party for cashless repair work. Therefore, it is to be held that there is no deficiency in service on the part of Opposite Party and there is no unfair trade practice by them. So the points are answered against the Complainant.
8. Point No.3: Since Point No.1& 2 are found against the Complainant, he is not entitled to get any relief as prayed for.
In the result, the complaint is dismissed, but without costs
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 23rd day of August 2022.
Date of Filing:-07.12.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Muhammed Aslam. E. Marketing.
Witness for the Opposite Party:-
Nil.
Exhibits for the complainant:
A1. Copy of Lawyer Notice. Dt:30.03.2016.
A2. Copy of Reply Notice. Dt:08.04.2016.
C1. Expert Commission Report. Dt:30.11.2019.
Exhibits for the Opposite Party:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
