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2006 DIGILAW 624 (UTT)

U. P. AUTOMOBILES v. AMIT KUMAR CHAUHAN

2006-11-08

IRSHAD HUSSAIN, LUXMI SINGH, SURENDRA KUMAR

body2006
ORDER (Per : Mr. Justice Irshad Hussain, President) 1. This is an appeal against the order dated 25.05.2003 passed by the District Forum, Haridwar, allowing the consumer complaint No. 62 of 2003; Sh. Amit Kumar Chauhan Vs. U.P. Automobiles and directing the O.P. - appellant to pay sum of Rs. 2,566/- to the complainant on account of cost of the parts and repair charges of old motorcycle and also to pay sum of Rs. 15,000/- as compensation and Rs. 2,000/- as cost. 2. Complainant’s old motorcycle registration No. UP10E-623 required engine repairing and for this purpose, complainant took his motorcycle to the workshop of the appellant in the month of November 2002 for getting the defects removed. The motorcycle was examined by the appellant and complainant was told that the appellant do not undertake work of cylinder bore and crank repairing and whereas the remaining repair work of the engine could be unertaken by the appellant. Complainant agreed to the suggestion and repair work was undertaken. The appellant was paid sum of Rs. 1,820/- towards cost of the parts and some repair work undertaken by the appellant and whereas sum of Rs. 500/- was paid by the appellant for the work got done from outside the appellant’s workshop. Appellant issued cash memos (Paper Nos. 11/1 & 11/2 of the original record) on 10.11.2002 for total sum of Rs. 1,820/- to the complainant and the motorcycle was taken away by the complainant. These facts are not in dispute. 3. Complainant alleged that the repair work undertaken by the appellant failed to rectify the defects and leakage of oil engine with noise was noticed. The complainant claimed to have taken his motorcycle to the appellant again on 15.11.2002 and on that day, some repair work was undertaken by the appellant and Rs. 49/- wer charged for the same. Again on 19.11.2002, the complainant noticed some defects and took his motorcycle to the appellant, when sum of Rs. 5/- was charged for change of oil ring so that there may not be oil leakage from the engine. The defect continued to exist and the complainant alleged to have again went to the appellant on 06.12.2002 and on that day, oil seal and oil ring were changed on payment of Rs. 22/- for change of these items. 5/- was charged for change of oil ring so that there may not be oil leakage from the engine. The defect continued to exist and the complainant alleged to have again went to the appellant on 06.12.2002 and on that day, oil seal and oil ring were changed on payment of Rs. 22/- for change of these items. According to the complainant, the defect continued to persist whereupon he took the motorcycle to the appellant on 15.12.2002 and 17.12.2002 and on last date, some engine oil was added by charging sum of Rs. 170/- from him. The complainant had to again take his motorcycle to the appellant on 24.12.2002 to make up the deficiency in the engine oil and when the defect continued to exist, the complainant was told by the appellant on 27.02.2003 that complete rectification of the defect, engine repair is required which may cost sum of Rs. 4,500/- which had to be borne by the complainant. The complainant on account of harassment claimed to have served a notice on the appellant and finding no reply, got his motorcycle repaired to his satisfaction on 03.04.2003 from Amit Automobiles, Bahadarabad by paying Rs. 836/- as repair charges. On account of deficiency in service, complainant claimed refund of Rs. 2,566/- together with compensation and cost. 4. The complaint was resisted by the appellant mainly on the ground that the defects in the motorcycle were fully rectified on 10.11.2002 and although the complainant took the motorcycle again to the appellant on 17.12.2002, the complaint regarding leakage of the engine oil had been rectified without payment of any additional repair charge and that in between these dates, the complainant had not come to the appellant complaining any defect in the motorcycle. The appellant claimed to have given reply to the notice on 14.03.2003 and letter on 30.03.2003 and 07.04.2003 but the complainant did not report to him in regard to any defect in the motorcycle and that the complaint had been filed with false allegations and that no deficiency in service was made by the appellant. 5. The District Forum on an appreciation of the material on record accepted the claim of the complainant that despite payment of total sum of Rs. 5. The District Forum on an appreciation of the material on record accepted the claim of the complainant that despite payment of total sum of Rs. 2,566/- on above occasions, the defects in the motorcycle were not rectified by the appellant and holding that the deficiency in service was made, allowed the complaint with the directions as aforesaid. 6. We have heard the Learned Counsel for the parties and have carefully perused the record of the original consumer complaint in the light of the facts and legal aspects of the case. One of the grounds taken in the appeal was that the arguments in the case were heard by the President as well as by the two Members but the impugned order was passed by the two Members and the President neither passed separate order, nor joined the two Members in passing the impugned order. On veryifying the original record, we noticed that the President did not participate in the proceedings at the stage of final arguments and, therefore, there is no legal defect in the impugned order being passed by the two Members. 7. Learned Counsel for the appellant submitted that in regard to the repairs of the motorcycle of the complainant, sum of Rs. 1,820/- had been charged on 10.11.2002 and whereas sum of Rs. 500/- was paid by the complainant in respect of the work undertaken outside the workshop of the appellant and to bring home his point of view, learned counsel drew attention to the two receipts/cash memos dated 10.11.2002 of the appellant’s concern submitted by the complainant. According to the learned counsel, no repair charges were thereafter received from the complainant and the three receipts/cash memos dated 15.11.2002, 19.11.2002 & 06.12.2002 submitted by the complainant do not pertain to repair of the motorcycle but these appear to relate to parts purchased by the mechanics from the appellant. On the basis of these two receipts/cash memos, learned counsel also argued that after 10.11.2002, the complainant came to the appellant only twice, once on 17.12.2002 when the required defect was rectified without any charge and whereas on 23.02.2003 when the oil ring was changed at a cost of Rs. 5/- only. The perusal of the two receipts/cash memos dated 10.11.2002 indicate that these were issued in favour of the complainant named as Amit and his motorcycle No. UP10E-623 had been mentioned on the top of the receipts. 5/- only. The perusal of the two receipts/cash memos dated 10.11.2002 indicate that these were issued in favour of the complainant named as Amit and his motorcycle No. UP10E-623 had been mentioned on the top of the receipts. In other three receipts / cash memos of 15.11.2002, 19.11.2002 and 06.12.2002 (Paper Nos. 1183 to 11/5), neither the name of the complainant, nor the registration number of the motorcycle had been mentioned as is the case in regard to the other two receipts/cash memos. Therefore, we see merit in the submission of the learned counsel for the appellant that only two receipts/cash memos of Rs. 1,820/- clearly appear to have been issued in regard to the parts and repair charges of the complainant’s motorcycle whereas this is not the case with regard to the other three receipts / cash memos. In view of this piece of the documentary evidence, we see no substance in the argument of the learned counsel for the complainant that the other three receipts/ cash memos also pertain to the cost of the repairs etc. of the complainant’s motorcycle and in the totality of the circumstances of the case, we are inclined to find favour with the stand of the appellant that he had been paid only Rs. 1,820/- for parts and repair charges on 10.11.2002 and Rs. 5/- on 23.02.2003 as price of oil ring besides Rs. 500/- paid by the complainant for repairs done outside the appellant’s workshop. Consequently, we are convinced that the District Forum was not justified to come to the conclusion that in all sum of Rs. 2,566/- had been paid by the complainant to the appellant in connection with the repairs of the motorcycle. 8. Learned Counsel for the appellant then submitted that at the most, the complainant could have been held to have incurred additional sum of Rs. 836/- to rectify the existing defect in the motorcycle when the same was got repaired on 03.04.2003 at Amit Automobiles, Bahadarabad and that the District Forum was not justified in making direction for refund of Rs. 2,566/- together with heavy amount of compensation and cost. Considering the facts and circumstances of the case, we see merit in the argument because Sh. 2,566/- together with heavy amount of compensation and cost. Considering the facts and circumstances of the case, we see merit in the argument because Sh. Rajkumar, the proprietor of Amit Automobiles in his affidavit dated 30.05.2003 (Paper No. 15/1) had not averred that the parts earlier changed in the motorcycle went defective and it caused trouble in the motorcycle. In fact this mechanic did not speak of imperfection in the repairs carried out by the appellant earlier and in the totality of the circumstances of the case, it had to be taken that the complainant was burdened with additional cost of Rs. 836/- towards repairs of the motorcycle. In our view, only a direction for payment of Rs. 836/- could have been given in this case besides some reasonable amount of compensation and cost, which in our view should not have been in excess of Rs. 1,000/-. The order of the District Forum, therefore, need to be modified accordingly. 9. In view of above, appeal succeed partly and the order of the District Forum is modified to the extent that the appellant shall pay a sum of Rs. 836/- to the complainant on account of cost of additional repairs and Rs. 1,000/- as compensation for harassment and cost. Cost of the appeal made easy.