VINOD @ BIKRAM vs J.P.SINGH

THIS is an appeal filed against order dated 12.9.2002 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum-II] in Complaint Case No. 1166 of 1998 vide which the District Forum-II has directed the O.P./appellant to pay a sum of Rs. 13,000/- as the price of the car and a sum of Rs. 6,000/- as compensation besides paying a sum of Rs. 1,000/- as costs of litigation.

THE respondent/complainant, as per the averments made in the complaint, purchased a car bearing registration No. CHK 8775 and gave it to the O.P./appellant for repairs on 20.11.1997. Earlier, the same day he had discussed about the repair of the car with the appellant namely, Shri Vinod @ Bikram who estimated the costs of repairs at Rs. 15,000/-. Later on the complainant went to the shop of the O.P./appellant for entrusting the car for repairs when he found that the appellant was not present at the shop and instead his mechanic named, Sh. Kalu was present. THE car was entrusted to the aforesaid Kalu who gave a receipt (copy Annexure C-6) on the letterhead of M/s. Jawala Motors. THE original of Annexure C-6 has also been placed on the record of the complaint case as Ex. C.X. It has been further contended that for some time, the car was seen at the shop of the appellant undergoing repairs but after some time it was not seen there and on an inquiry, it was learnt that the said car had been sent to some other garage for repairs. THE car was, however, not returned to the complainant/respondent who eventually served a legal notice and thereafter filed the complaint case. The appellant/O.P. appeared before the District Forum-II and filed his reply in which he categorically denied that he was carrying on the business of car repairs. He also categorically denied that he had any mechanic named Kalu working at his shop for doing the repair of the cars. The case of the O.P. is that the O.P. deals in the spare parts of the car/jeep, etc. and is, in fact, Kabari by profession. It has been contended that at his shop, old cars are purchased for dismantling the same and their parts which are in order, are kept as spare parts.

The complainant as well as the O.P. both led evidence in the shape of affidavits. The O.P./appellant filed affidavits of Shri Vijay Rana, Sh. Vinod Kumar, Sh. Shiv Narain, Sh. Mohan Lal Bansal and Sh. Suresh Goyal who deposed, inter alia that the O.P. was dealing with in the Kabari business and in spare parts of the motor vehicles and did not carry on job of repair of motor vehicles. The complainant as well as the O.P. both were summoned for their cross-examination with reference to their affidavits. The District Forum-II believed the version of the complainant and allowed the complaint vide order under appeal.

THE O.P. felt aggrieved by the order of the District Forum-II and filed this appeal. THE respondent/complainant appeared through Mr. Vishwas Ahuja, Advocate and contested the appeal. Mr. C.L. Chaudhary, Advocate appeared for the appellant/O.P. THE record of the complaint case was summoned. We have heard the learned Counsel for the appellant and the learned Counsel for the respondent. We have also carefully gone through the record of the complaint and the order impugned under appeal.

THE learned Counsel for the appellant contended before us that in this case the facts are highly in dispute and these disputed facts cannot be adequately settled in exercise of summary jurisdiction which the Consumer Disputes Redressal Agencies have under the provisions of the Consumer Protection Act, 1986. THE learned Counsel for the appellant contended that as a matter of fact, the proper Court which could settle the controversy in this case is the Civil Court where the complainant ought to have approached by filing an appropriate civil suit. Besides it, he submitted that the District Forum-II did not properly appreciate the evidence on record and particularly the cross-examination of the complainant as well as the O.P. and the District Forum-II without any cogent reasons believed the document (Annexure C-6) whereby Kalu acknowledged the receipt of car of the complainant for repairs. He referred to the statement of the O.P. and his cross-examination to the effect that he had absolutely no concern with Kalu mechanic and Kalu mechanic never worked at his shop. In fact, the case of the appellant/O.P. is very categorical that he never carried out the business of repair of motor vehicles. Mr. Vishwas Ahuja, Advocate appearing for the respondent, on the other hand, tried to contend that the receipt (Annexure C-6) has been properly and validly considered by the District Forum-II and Kalu worked for and on behalf of the appellant but he also could not point out to any other reliable evidence to the effect that Kalu was in fact worked a mechanic at the shop of O.P./appellant. As a matter of fact, the complainant could not show by any reliable evidence that he had hired or availed the services of the O.P./appellant for consideration for repair of his car. The estimate regarding the repairs of the car of the complainant has also not been placed on record and there is no document on record to show that the complainant had entrusted the car to the O.P./appellant for repairs. In our considered opinion, the complainant has failed to show that he had hired and availed the services of the O.P./appellant for the repairs of his car for consideration. Consequently the complainant is not a consumer qua the O.P. Faced with such a situation, the learned Counsel for the respondent/complainant Mr. Vishwas Ahuja, Advocate contended that the complainant/respondent be relegated to his remedy of approaching a Civil Court of competent jurisdiction for deciding this dispute.

WE have gone through the findings of the District Forum-II and we find that the District Forum-II has not appropriately considered the material on record and has come to a conclusion only on the basis of a document (Annexure C-6) allegedly signed by Kalu to hold that the car was entrusted by the complainant to him for repairs. The District Forum-II has depended more on drawing inferences and presumptions than on material evidence on record.

IN view of the request made by the learned Counsel for the respondent/complainant and also in view of the fact that the complainant is not a consumer qua the O.P./appellant and the facts in the instant case are highly disputed and as a matter of fact, these facts involved declaration of a fact as to whether the O.P./appellant carry on the business of repair of cars and had engaged a mechanic named Kalu for repair of the cars and further in view of the fact that the Civil Court of competent jurisdiction will go into these disputed facts by holding a full dressed trial and adjudicate the same, the appeal is allowed partly to the extent that the judgment of the District Forum-II, U.T., Chandigarh is set aside and the complainant/respondent is relegated to his remedy of approach a Civil Court of competent jurisdiction by filing an appropriate civil suit seeking redressal of his grievances. The appeal is disposed of accordingly. The costs of appeal shall, however, be borne by the parties themselves. Copies of this order be sent to the parties free of charge. Appeal disposed of.