S. Raja Motors Through Its Partner vs Kalu Khan S/o Pathan Khan Cast Muslim

Deepa Sharma, Presiding Member

The present revision petition under section 21 (b) of the Consumer Protection Act, 1986 ( for short, the Act) has been filed against the order dated 08.01.2014 of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur ( for short, 'the State Commission') in Appeal No. 232 of 2011 whereby appeal of respondent ( hereinafter referred to as 'complainant') was allowed and order dated 22.09.2011 of the District Consumer Disputes Redressal Forum Kodhpur, Rajasthan in CC No. 832 of 2007, was modified and besides the money for which the alleged motorcycle was insured, the State Commission had directed the petitioner to pay the entire consideration amount i.e, purchase price of the subject motorcycle.

The brief facts of the case are that complainant had purchased the motorcycle through petitioner on 05.04.2006. It was giving the problem since beginning. However, on 07.07.2007, since the motorcycle was not functioning properly, the same was brought to the service station of the petitioner and gate pass was issued. The petitioner has admitted that on examination of the motorcycle, it was found that there was problem in the handle lock and fuel release as the soil particles were found present in the oil due to which, problem occurred in cylinder block and crank, which was the reason motorcycle was releasing oil. The case of the complainant was that since the motorcycle was covered under the guarantee period, the petitioner who was the authorised dealer of the manufacturer of motorcycle i.e. opposite no.2 ( before the District Forum) ought to have repaired the vehicle. The petitioner did not repair it and motorcycle kept lying in the service station of the petitioner. On 09.12.2009, there was a fire in the service station of the petitioner and his property alongwith motorcycle were destroyed. The petitioner put up his claim before the insurance company with regard to all the articles including the motorcycle which were destroyed in the fire and he received the insured amount, which amount also included the insured amount of the motorcycle. These facts are admitted facts.

On the  basis of these admitted facts the District Forum issued the following directions:

"Hence the complaint of the complainant has been accepted and the opposite party has been directed to pay the amount / claim to the complainant after receiving the same from insurance company with regard to the motorcycle of the complainant failing which the opposite party has to pay 9% interest on the amount / claim from the date of receipt of the amount from insurance company till the date of payment to the complainant. Both the parties will bear their cost to the proceedings."

Dissatisfied with these directions of the District Forum, the complainant filed an appeal. He claimed the entire value of the motorcycle since it was within the guarantee period and had not covered the distance of 30,000 kilometeres and got destroyed while lying in the service station of the petitioner. The State Commission after hearing counsel for the parties and after re-appreciating the evidence, passed the following orders:

"In our opinion the motorcycle of the complainant was lying inside the workshop of the opposite party from 07.07.2007 to 09.12.2009 i.e. approximately for two and half ears. That there is no evidence on record that the opposite party had given any directions to take away the motorcycle or regarding the reaping cost of the motorcycle to the complainant during the period of two and half years. In our view the complainant is entitled to receive the full amount Rs.30142/- of the motorcycle. The appeal of the appellant is liable to be accepted.

Hence the appeal of the appellant has been accepted and the order dated 22.09.2011 in consumer complaint no. 832 / 2007 passed by the Ld. District Consumer Forum, Jodhpur has been amended to the extent that the opposite party shall pay the appellant / complainant an amount of Rs.15997 apart from the amount of Rs.14145/- payable by the insurance company to the opposite party. In addition to the above the opposite party shall pay Rs.5000/- to the complainant / appellant as cost of the appeal and against mental harassment."

Aggrieved by the directions of the State Commission to pay the entire cost of the motorcycle, the present revision petition has been filed by the petitioner / opposite party.

It is argued that impugned order suffers with illegality and perversity and is without jurisdiction. It is submitted that petitioner had admitted to pay to the complainant amount which he had received from the insurance company with regard to the motorcycle and, therefore, he had acted bonafidely. It is submitted that he is not entitled to pay the entire cost of the motorcycle.

We have heard the arguments of the learned counsel for the parties and have perused the record. The admitted facts are that vehicle was purchased on 05.04.2006 and was brought to the service station of the petitioner on 07.07.2007 and it was within the guarantee period since it had not covered the distance of 30,000 kilometers. The petitioner neither repaired the vehicle nor ever asked the complainant to take his vehicle back and the vehicle remained lying in its service station for 2 ½ years, when it got destroyed in the fire broke out in service station. In view of these facts, the State Commission has rightly ordered refund of the entire cost of the motorcycle since the petitioner is unable to return the vehicle to the complainant.

We find no illegality, infirmity or perversity in the impugned order. The present revision petition has no merits. Same is dismissed.