KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOS.661/05 & 799/05
COMMON JUDGMENT DATED:21-06-2011
PRESENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K. ABDULLA SONA : MEMBER
APPEAL NO.661/05
1. Managing Director,
Indus Motor Co. Pvt. Ltd.,
Indus House, P.B.No.923,
Chokorathkulam, Cannanore Road,
Calicut-5.
: APPELLANTS
2. Manager,
Indus Motor Company Pvt. Ltd.,
Indus House, Hosdurg.P.O,
Kanhangad-671 315.
(By Adv:Shri.S.Reghukumar)
Vs.
1. Ahamed C.K, S/o Moideen Kunhi,
Shareef Manzil, Paravanandukkam,
Kalanad, Kasaragod.
(By Adv:Sri.Prakash P.George)
: RESPONDENTS
2. Managing Director,
Maruti Udyog Ltd., 11th floor,
Jeevan Prakash 25,
Kasturba Gandhi Road,
New Delhi – 110 001.
APPEAL NO.779/05
M/s Maruti Udyog Limited,
11th Floor, Jeevan Park Building, : APPELLANT
25, Kasturba Gandhi Marg,
New Delhi-110 001.
(By Adv:Shri.K.L.Narasimhan)
Vs.
1. SH. AHAMMAD.C.K,
S/O SH. MOIDEEN KUNHI,
R/O SHAREEF MANJIL,
Paravanadukkam, Kalnad,
Kasaragod.
(By Adv:Sri.Prakash.P.George)
2. MANAGING DIRECTOR,
M/S INDUS MOTOR CO. PVT. LTD.,
Indus House, Post Box No.923, : RESPONDENTS
Chakkorathkulam, Cannanore Road,
Calicut-673 005.
3. Manager,
M/s Indus Motor Co. Pvt. Ltd.,
Indus House, Hosdurg,
Post Office, Kanhangad-671 315.
(By Adv:Sri.Biju.M.John)
COMMON JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above appeals are preferred from the order dated 9th March 2005 passed by CDRF, Kasaragod in OP.235/04. The complaint therein was filed alleging deficiency of service on the part of opposite parties 1 to 3 in causing damage to the vehicle which was purchased by the complainant from the opposite parties. The complainant has also alleged deficiency of service on the part of opposite parties in their failure to compensate the complainant for the damage caused to his vehicle and also in not compensating the complainant for the mental agony and inconvenience suffered by the complainant. Thus, the complainant claimed replacement of the vehicle which was damaged or to pay compensation of Rs.90,000/- with cost of Rs.2000/-.
2. The 1st opposite party/Maruthi Udyog Limited, the manufacturer of the said vehicle was served with notice in the said complaint; but the opposite party remained absent and thereby the 1st opposite party was declared exparte.
3. The opposite parties 2 and 3, the authorized dealer and service centre of the manufacturer entered appearance and filed joined written version denying the alleged deficiency of service. They also denied the case of the complainant that damage to the vehicle was caused while the vehicle was in the custody of the dealer for effecting 3rd free service. The opposite parties 2 and 3 admitted acceptance of the insurance claim from the insurer of the vehicle with respect to the repairing charge of Rs.20,579/- received from the National Insurance Company by way of the insurance claim. It was contended that the damage to the vehicle was repaired to the satisfaction of the complainant and so the present complaint in OP.235/04 is liable to be dismissed.
4. Before the Forum below, the complainant was examined as PW1 and the 3rd opposite party/the Manager, Indus Motor Company Private Limited was examined as DW1. Ext.A1 to A5 and B1 documents were produced and marked from the side of the complainant and the opposite parties 2 and 3 respectively. The 3rd party document produced by National Insurance Company Limited was marked as Ext.X1. On an appreciation of the evidence on record, the Forum below passed the impugned order directing the opposite parties 1 to 3 to pay a sum of Rs.40,000/- to the complainant with cost of Rs.1000/-. It is further directed that the decreed amount is to be paid within two months from the date of receipt of copy of the impugned order failing which the opposite parties are made liable to pay interest at the rate of 12% per annum from 8/6/2004, the date of the notice till realization. The opposite parties are made jointly and severally liable to pay the decree debt. Aggrieved by the said order, the Appeal- 661/05 is filed by opposite parties 2 and 3 and Appeal 799/05 is filed by the 1st opposite party therein.
5. When these appeals were taken up for final hearing, there was no representation for the 1st respondent/complainant. We heard the learned counsel for the appellants/opposite parties. They submitted their arguments based on the grounds urged in the memorandum of these present appeals.
6. Points that arise for consideration in these appeals are as follows:-
1. Whether the complainant has succeeded in establishing his case that the vehicle which he purchased from the opposite parties sustained damage while the said vehicle was in the custody of the opposite parties 2 and 3 for effecting the 3rd free service to the vehicle?
2. Whether there was deficiency of service on the part of the 1st opposite party, the manufacturer of the said vehicle and also opposite parties 2 and 3, the dealer and service centre of the 1st opposite party?
3. Whether the Forum below can be justified in making the opposite parties 1 to 3 jointly and severally liable to pay compensation to the complainant?
4. Is there any legally sustainable ground to interfere with the impugned order dated:9th March 2005 passed by CDRF, Kasaragod in OP.235/04?
7. For the sake of convenience and for avoiding further confusion, the parties to these first appeals are narrated in this judgment according to their rank and status before the Forum below in OP.235/04.
8. Point Nos:1 to 4:-
There is no dispute that the complainant, Ahammad C.K. purchased a Maruthi Alto LX car from the 2nd opposite party, Indus Motors Company Private Limited and that the complainant took delivery of the said vehicle through the 3rd opposite party, the branch of Indus Motor Company Private Limited in Kanhangad. Admittedly, the aforesaid Maruthi Alto LX car was manufactured by the 1st opposite party/Maruthi Udyog Limited. The 1st opposite party is represented by its Managing Director. It is also an admitted fact that the opposite parties 2 and 3 are the authorised dealer and service centre of the 1st opposite party/ manufacturer of the vehicle. It is to be noted that the warranty for the said vehicle was provided by the manufacturer. The warranty service includes free services to the vehicle. Admittedly, the complainant entrusted the said vehicle for the 3rd free service with the opposite parties 2 and 3, authorized dealer and service centre of the 1st opposite party. As far as the complainant/consumer who purchased the Maruthi vehicle is concerned, the authorized dealers are the agents of the manufacturer.
9. The 1st opposite party/manufacturer has got a case that their authorized dealer purchased the vehicle from the manufacturer and the relationship between the manufacturer and authorized dealer is that of principal to principal and it is based on the dealership agreement entered into between the manufacturer and the dealer. Admittedly, the complainant, the purchaser of the vehicle is not a party to the dealership agreement. There is nothing on record to show that the purchaser was made known about the dealership agreement or the terms and conditions of the said agreement entered into between the manufacturer and the dealer. Thus, it can only be inferred that the complainant/consumer is concerned, the opposite parties 2 and 3 are being the authorized dealers of the manufacturer, are the agents of the 1st opposite party/manufacturer. The 1st opposite party being the manufacturer is answerable and liable for the negligence of their authorised dealers. So, the 1st opposite party/manufacturer cannot be absolved from the liability which resulted from the negligence of the opposite parties 2 and 3, the authorized dealers of the 1st opposite party.
10. Another important aspect to be noted at this juncture is the entrustment of the vehicle by the complainant with the opposite parties 2 and 3 for effecting the 3rd free service to the vehicle. The aforesaid entrustment was made during the warranty period of the vehicle. The warranty was provided by the 1st opposite party/manufacturer of the vehicle. The warranty provided is inclusive of free services. The free services are to be carried out through the authorized dealer and service centre of the manufacturer. Thus, it was the bounden duty of the 1st opposite party to carry out the free services to the vehicle through their authorized dealer/service centre. If any damage was caused to the vehicle at the hands of the dealer while the vehicle was entrusted for carrying out the free services, the manufacturer is also equally liable and responsible for the damage caused to the vehicle due to the negligence of the dealer. Thus, in all respects, the 1st opposite party is also liable for the negligence of its dealer in performing their duty as the authorized dealer. So, the case of the 1st opposite party/manufacturer that they are not liable or answerable for the damage caused to the vehicle cannot be upheld.
11. It is the definite case of the complainant that he entrusted the vehicle with opposite parties 2 and 3 on 20/4/2004 for carrying out the 3rd free service to the vehicle. It is also the case of the complainant that the vehicle sustained severe damage while the vehicle was under the custody of opposite parties 2 and 3. The material allegation of the complainant is that his vehicle sustained serious damage to the rear side of the vehicle due to the negligence of the mechanic employed by opposite parties 2 and 3. But opposite parties 2 and 3 denied the said allegation regarding damage caused to the said vehicle while the vehicle was entrusted for effecting the 3rd free service. The opposite parties 2 and 3 in their written version denied the aforesaid case of the complainant. The 3rd opposite party in his chief affidavit has also denied the aforesaid case of the complainant. The aforesaid averment in the affidavit filed by the 3rd opposite party is as follows:-
“I say the further allegation that the vehicle was seriously damaged due to the negligence of one of my worker etc is palpable lies. I say the vehicle had no complaint except the exaggeration in the complaint. I say the complainant approached me with the specific complaint of side tracking. I say the story of negligent in handling the vehicle by me is patent lies”.
But when the complainant/3rd opposite party was examined as DW1, he categorically admitted the accident and damage to the vehicle occurred due to the negligence of the worker of the carriage. It is also admitted that the vehicle was entrusted by the complainant for doing free service and the free service is being done for the better performance of the vehicle. The aforesaid admission made by DW1 is as follows:-
“It is true that the complainant entrusted the vehicle with us for the 3rd free service. It is true that in the claim form it is stated that the accident of the vehicle No.KL-14 D 5986 occurred due to the negligence of the worker of the carriage. Free service is done for the better performance of the vehicle. It is true that it is our duty to see that the vehicle is protected from any damage while it is in our custody.”
12. The aforesaid admission by the 3rd opposite party as DW1 is sufficient enough to hold that the case of the complainant regarding the damage caused to his vehicle while the vehicle was in the custody of the opposite parties 2 and 3 for effecting the 3rd free service as true and correct. This circumstance would make it clear that the opposite parties 2 and 3 have no reluctancy or hesitation in pleading utter falsehood before an authority constituted under a statute. This circumstance would also speak volumes about the attitude and approach of opposite parties 2 and 3. So, the Forum below is perfectly justified in finding the opposite parties 2 and 3 negligent and that the damage to the vehicle caused due to the negligence of the opposite parties 2 and 3. The 1st opposite party being the manufacturer of the vehicle is also liable and responsible for the negligence of their authorized dealers viz. the opposite parties 2 and 3. So, the aforesaid finding of the Forum below is to be upheld.
13. The opposite parties 1 to 3 were duty bound to carry out the repair works in order to make the vehicle defect free because of the fact that the damage to the vehicle was caused due to the negligence of the opposite parties. They were bound to repair the damage to the vehicle free of cost. They are not expected to collect any charge from the complainant or from the insurer of the vehicle. It is to be noted that the complainant paid the premium for the comprehensive insurance taken for his vehicle. The opposite parties 2 and 3 admitted the fact that the complainant incurred a total of Rs.30,000/- towards the insurance charge and registration charge. It is a well known fact that the insured is entitled to get no claim bonus if no insurance claim is preferred during that year of the insurance policy. In this case the opposite parties 2 and 3 moved the insurer of the vehicle to get the repair charge from the insurance company viz, National Insurance Company Ltd, the insurer of the vehicle. It is admitted fact that the opposite parties 2 and 3 received Rs.20,579/- from the insurer of the vehicle. Ext.X1 document produced from the insurance company viz, National Insurance Company Ltd would show that the said claim was settled for Rs.20,579/- and the opposite parties 2 and 3 received the said amount from the insurance company.
14. The materials on record would show that the opposite parties 2 and 3 are not entitled to get the said amount of Rs.20,579/- for effecting repairs to the vehicle because the damage to the vehicle was caused by opposite parties 2 and 3. So, the aforesaid insurance amount of Rs.20,579/- was due to the complainant/insured towards the damage caused to his vehicle.
15. The case of DW1 that the complainant has not approached the 3rd opposite party for getting the insurance amount of Rs.20,579/- cannot be believed for a moment. Ext.A2 is the lawyer notice issued at the instance of the complainant. As per A2 lawyer notice, the complainant demanded compensation of Rs.1.lakh for the damage caused to the vehicle. Even on getting A2 lawyer notice, opposite parties 2 and 3 never offered the insurance amount of Rs.20,579/- received by them from the insurance company. It is further to be noted that the opposite parties 2 and 3 did not issue any reply to A2 lawyer notice. No reasonable explanation is given by DW1 for not issuing reply to A2 lawyer notice. It is admitted that they received A2 lawyer notice and no reply was sent to the said lawyer notice. Thus, in all respects, it can be concluded that there was deficiency of service on the part of the opposite parties 1 to 3 in their failure to compensate the complainant. The deficiency would loom large in collecting the insurance amount from the insurer towards the repairing charge. The aforesaid method adopted by the opposite parties would amount to deficiency of service and unfair trade practice. So, the findings of the Forum below that there was deficiency of service and unfair trade practice on the part of the opposite parties are to be upheld. Hence we do so.
16. The complainant claimed Rs.1.lakh by way of compensation in his A2 lawyer notice. But in the complaint in OP.235/04, the complainant sought the relief for replacement of the car which was damaged at the hands of the opposite parties 2 and 3. In the alternative, he claimed a compensation of Rs.90,000/- with cost of Rs.2000/-. Ext.A4 invoice dated:12/11/2003 would show that the complainant purchased the subject vehicle on a total price of Rs.2,69,802/-. Admittedly, the said vehicle bearing registration No.KL 14D 5986 entrusted with the opposite parties 2 and 3 for carrying out the 3rd free service on 20/4/2004. The said vehicle sustained severe damage while the vehicle was under the custody of the opposite parties 2 and 3 for effecting the 3rd free service. Thus, it can be seen that the vehicle was a new vehicle which was purchased in the month of November 2003. There can be no doubt about the fact that the value of a damaged vehicle will be lesser than a vehicle which was not damaged. By the damage caused to the vehicle, the value of the subject vehicle has been considerably decreased.
17. Ext.A3 invoice dated:29-05-2004 issued by the opposite party/dealer would give an idea about the damage caused to the subject vehicle and the parts replaced for repairing the said damage to the vehicle. The total repair cost including the cost of the parts would come to Rs.22,862/-. This would give an indication that the subject vehicle sustained severe damage in the said accident which occurred due to the negligence of opposite parties 2 and 3. So, the case of the complainant that the market value of his vehicle has been reduced by the damage caused to his vehicle is to be accepted. The Forum below has also considered the aforesaid true aspect of the case, while awarding compensation to the complainant.
18. The appellants/opposite parties would contend that there was no expert evidence available on record to substantiate the claim preferred by the complainant by way of compensation. They have also got a case that the Forum below has gone wrong in inspecting the vehicle and entering on a finding that the damage to the vehicle has reduced its market value. It is to be noted that the materials available on record are sufficient enough to award compensation to the complainant for the financial loss and the inconvenience suffered by him. The mere fact that the Forum below had the occasion to inspect the vehicle in order to ascertain the fact whether any damage is caused to the vehicle is to be appreciated in the facts and circumstances of the case. By the said inspection, the Forum below has not taken the role of an expert in the field. Even in the absence of such an inspection, the materials available on record and the facts admitted by the parties are sufficient enough to hold that the market value of the subject vehicle has been reduced on account of the damage caused to the vehicle. It is true that if the vehicle was repaired to the satisfaction of the complainant. Then also the market value will be reduced or decreased by the fact that the vehicle sustained damage in an accident and it is a redeemed vehicle. The case of DW1 in his cross-examination that there cannot be any depreciation in the market value of the vehicle because of the damage caused to the vehicle cannot be believed for a moment. The aforesaid answer given by DW1 can be treated as a big lie ignoring the true fact that the market value will get reduced by involving the vehicle in a major accident causing severe damage. It is further to be noted that the insurance claim received from the insurer of the vehicle itself would show that the subject vehicle sustained severe damage and the said damage was repaired. It is also come out in evidence that more than 30 days time was taken for repairing the vehicle. During the said period the complainant had to suffer inconveniences because of the non availability of vehicle for his use. Thus, in all respects the Forum below is justified in awarding compensation of Rs.40,000/- to the complainant and making the opposite parties 1 to 3 jointly ad severally liable to pay the said compensation with cost of Rs.1000/-. In fact the Forum below has taken a lenient view in awarding compensation. It is also to be noted that the opposite parties 2 and 3 received Rs.20,579/- from the insurer of the vehicle. So, the balance alone needs to be paid by the opposite parties from their pocket. The impugned order does not warrant interference at the hands of this commission. We have no hesitation to confirm the impugned order passed by the Forum below. These points are answered accordingly.
In the result the above appeals are dismissed. The impugned order dated:9th March 2005 passed by CDRF, Kasaragod in OP.235/04 is confirmed. As far as these appeals are concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
