Date of filing: 4.1.2013. Date of disposal:17.5.2013. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II: VIJAYAWADA, KRISHNA DISTRICT Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER. SRI S.SREERAM, B.COM., B.A., B.L., MEMBER FRIDAY, THE 17TH DAY OF MAY, 2013 C.C.No.15 of 2013 Between: Nelli Venkateswara Rao, S/o Lakshmana Swamy, Hindu, Business, R/o Door No.56-10-33A, P & T Colony – 3, Ganapathi Sachidananda Temple Road, Patamata, Vijayawada. . … Complainant. AND 1. Authorized Signatory, Kusalava Motors Pvt.,Ltd., D.No.40-1-10, M.G.Road, Labbipet, Vijayawada – 10. 2. Parts Business Development Manager, Hyundai MOBIS, C/o Hyundai Motor India Ltd., Renuka Enclave, Near KFC, Somajiguda, Raj Bhavan Road, Hyderabad – 500 082. 3. The Managing Director, Hyundai Motors India Ltd., Regd., Office & Factory, Irrugattukollai, NH No.4, Sriperumbudur Taluk, Kanchipuram District, Tamil Nadu – 602 105. .… Opposite Parties. This complaint coming on before the Forum for final hearing on 2.5.2013 in the presence of Sri G.Krishna Prasad, Counsel for the complainant and of Sri S.Hanumath Prasad, Counsel for opposite party No.1 and opposite party No.2 remained absent and Sri N.Srinivasu, Counsel for opposite party No.3 and upon perusing the material available on record, this Forum delivers the following: O R D E R (Delivered by Hon’ble President SRI A. M. L. Narasimha Rao) 1. This complaint is filed under Section 12 of the Consumer Protection Act, for a direction to the opposite parties 1 to 3 to repair AP 16 BF 1989 or to replace the vehicle with new vehicle after deducting depreciation; to pay Rs.3,00,000/- towards compensation and to pay costs. 2. The averments of the complaint, in brief, are as follows: The complainant had purchased a Verna CRDI VGT BS III Motor Car and it was assigned Regd., No.AP 16 BF 1989. The complainant had insured the said vehicle with National Insurance Company Limited, for the period from 9.2.2012 to 8.2.2013. The vehicle met with accident on 18.5.2012 in Rayadurgam, Cyberabad Commissionarate. The accident was informed to the 1st opposite party, the authorized dealer of the Hyundai Motors India Ltd. The insurance company sent officials for spot survey. After spot survey, the complainant had shifted the vehicle to the 1st opposite party show room for repairs. The officials of the 1st opposite party prepared estimate on 22.5.2012 for Rs.11,87,640.52 ps. The 1st opposite party handed over the estimate to the insurance officials. After several visits of the complainant, the 1st opposite party advised the complainant on 6.7.2012 to pay Rs.1,00,000/- as advance for repairs. The complainant paid Rs.1,00,000/-. The 1st opposite party kept the vehicle in open place. The vehicle interior and seats were damaged completely due to negligence of the 1st opposite party. When the complainant visited the 1st opposite party, they promised to repair the vehicle immediately. But till the date of the complaint, the vehicle is not repaired. The complainant had hired another vehicle from Divya Car Travels, Patamata, Vijayawada and paid nearly Rs.38,000/- per month. The 1st opposite party sent a letter along with an E-mail copy from the 2nd opposite party to the effect that the body shell of the vehicle is no more serviceable from Hyundai Motors India Ltd. Due to defective services of the 1st opposite party the complainant had suffered mental agony and sustained loss. The complainant got issued a legal notice dt.4.12.2012. The 1st opposite party received it and sent a false reply. The vehicle is not repaired or replaced. So this complaint is filed. 3. The 1st opposite party filed his version denying the allegations made in the complaint and further stating as follows: One P.Sridhar Purchased Verna CRDI VGT BS III bearing registration No.AP 16 BF 1989 from the 1st opposite party on 30.1.2008. the complainant purchased it from P.Sridhar. That vehicle met with an accident on 18.5.2012. The vehicle was shifted to show room body shop for repairs. It submitted the estimation on 22.5.2012 for Rs.11,87,646.52 ps. The 1st opposite party had informed the complainant either to pay advance amount of Rs.5,00,000/- or to get the confirmation from the insurance company. The complainant paid Rs.5,00,000/- only and promised to pay the balance of Rs.4,00,000/-, but he failed to pay the amount. Meanwhile the 1st opposite party received communication from the manufacturer that the body shell for the accident vehicle is no longer serviceable from the manufacturer and advised to have a second hand body-shell. It was intimated to the complainant. If the complainant paid the balance amount of Rs.4,00,000/-, the 1st opposite party is ready to carryout repairs. There is no negligence or deficiency in service on the part of the 1st opposite party. It has no liability to pay compensation. 4. The 3rd opposite party filed version denying the allegations made in the complaint and further stating that the car was delivered on 30.1.2008 in perfect running condition and without technical or mechanical defects; that warranty is applicable to the first purchaser only; that the complainant did not allege manufacturing defect in the vehicle; that the concerned dealer is responsible for the omission on the part of the dealer in service or repairs; the car in question was extensively damaged and it should be treated as total loss by insurance company; that the body shell for Verna for the same model is not serviced however individual parts can be provided but the car will not come to its original shape and strength and that there is no liability on the part of 3rd opposite party and that there is no deficiency in service on the part of the 3rd opposite party. 5. The complainant filed his affidavit. It is received as deposition of P.W.1. Sri M.B.Krishna Prasad, Executive Director of the 1st opposite party filed his affidavit and it is received as deposition of D.W.1 and Sri Manish Kumar, Assistant Manager, Legal and Secretarial of the 3rd opposite party filed his affidavit and it is received as deposition of D.W.2. Exs.A1 and Ex.A.14 are marked for the complainant. Exs.B1 and Ex.B.2 are marked for the opposite parties 1 and 3. The copy of notice filed by the complainant was originally marked as Ex.B.3. It is now corrected and remarked as Ex.A.14. 6. Heard arguments advanced by the learned counsel of all the parties. 7. The points for determination are: 1. Whether there is deficiency in service on the part of the opposite parties 1 to 3? 2. Whether the complainant is entitled to the reliefs prayed for? POINT No.1:- 8. The parties are not at dispute as regards the purchase of the vehicle, insurance coverage and the factum of accident in which the subject vehicle was extensively damaged. The accident took place on 18.5.2012 in Rayadurgam. It was brought to the work shop of 1st opposite party, who prepared estimate of Rs.11,87,640.52ps on 22.5.2012 for repairs. A final surveyor appointed by the insurance company had inspected the vehicle at the work shop. As per the notice of insurance company under Ex.A.14, the final surveyor had directed the workshop to undertake repairs on repair basis and directed them to dismantle the vehicle for undertaking repairs. It is common sense that the surveyor can only suggest as a surveyor but cannot give any assurance as a representative of insurance company. The surveyor and the insurance company had knowledge of the estimate at nearly 12 lakh rupees. The insured declared value (IDV) of the vehicle was Rs.7,00,000/-. So the liability of the insurance company even if assured can never exceed Rs.7,00,000/-. Then if the 1st opposite party carried out repairs fully, who would pay him the balance. The complainant paid Rs.1,00,000/- only and did not give any written undertaking to pay the amount of repairs. The 1st opposite party will not have any obligation to carry out repairs, when written assurance for payment is not given. It is not a case of normal repairs. The cost of repairs exceeds the value of even a new Verna vehicle of same type by more than 4 lakh rupees. A prudent man would not get a damaged vehicle repaired spending nearly 12 lakh rupees when he could purchase a new Verna Car for about 8 lakh rupees, unless the damaged vehicle has antique value or the owner has some sentiment. When such consideration are needed, the 1st opposite party is not expected to carry out repairs without payment of requisite advance. The 1st opposite party contends that he asked for advance of Rs.5,00,000/- to start repair works. No doubt he has not given it in writing. He has also not given in writing that he would commence repair works on receipt of Rs.1,00,000/- as advance. So receipt of Rs.1,00,000/- does not cast on un-conditional obligation to dismantle the damaged vehicle and to carry out repairs. The complainant did not address any letter to the 1st opposite party asking him to take up repairs and assuring payment. Even in the notice issued the demand was to repair the damaged vehicle and to pay Rs.3,00,000/- as compensation. The complainant cannot be allowed to gain out of own negligence in not paying advance amount as required by the 1st opposite party. The insurance company does not say that it has given written undertaking to pay for all repair works. 9. The complainant claims compensation on the ground that the 1st opposite party had kept the damaged vehicle in the open place without effecting repairs and due to heavy rains the interior and seats of the vehicle were completely damaged. He also seeks compensation on the ground that he had hired another vehicle for about Rs.38,000/- per month for his necessities and the 1st opposite party has to compensate the additional burden. As observed above when the 1st opposite party is not shown to have obligation to carry out repairs or to commence repairs soon after payment of Rs.1,00,000/- the 1st opposite party cannot be found fault with for keeping the vehicle in the open place. It must be understood that the vehicle was kept there by the complainant himself instead of keeping it elsewhere. The extent of damage to the seats because of keeping the vehicle in the open place cannot be readily inferred because in the estimate prepared by the 1st opposite party under Ex.A.4, there is reference to some repairs to the seats also. In the 4th page of Ex.A.4 Back Assy-RR Seat RH, Back Assy-RR Seat Lh, Cushion Assy-RR Seat, Armrest Assy-RR Seat back, Hinge Assy-RR Seat Back CTR Frame and lock Assy-RR Seat Back are noted. Therefore we do not find that there is deficiency in service on the part of the 1st opposite party in not carrying repairs to the damaged vehicle. POINT No.2:- 10 In view of the answer on Point No.1 the complainant cannot be allowed the relief as prayed for. However to provide a solution to the dispute we feel it proper to give some directions, so that the complainant may have either the repaired vehicle or the insurance amount. According to the 1st opposite party he required Rs.5,00,000/- as advance to commence repairs. Therefore it would be proper to give liberty to the complainant to pay the balance advance amount of Rs.4,00,000/- and to make a written request to the 1st opposite party to carry out the repairs of the vehicle and deliver the same. If the complainant did not elect within 15 days to pay the balance advance amount and seeking complete repairs, the 1st opposite party may be directed to return the amount of Rs.1,00,000/- to the complainant within one month from the date of this order. failing which the 1st opposite party shall be liable to pay interest at the rate of 9% per annum on the amount of Rs.1,00,000/- from the date of order till realization. On the complainant electing to seek repairs and paid the balance advance amount the opposite party shall carry out the repairs to the extent possible within two months from the date of delivering written request from the complainant to the 1st opposite party. The 2nd and 3rd opposite parties do not have any obligation and no relief cannot be granted against them. 11. In the result, this complaint is ordered accordingly. The complainant is given liberty to pay Rs.4,00,000/- the balance advance amount and to make a written request, to the 1st opposite party within 15 days from the date of this order, to carry out repairs and on such request the 1st opposite party shall carry out repairs within two months from the date of written request and deliver the vehicle on receipt of balance of repair charges either from the complainant or from the insurance company. If the complainant failed to make such a request within 15 days the 1st opposite party shall pay the amount of Rs.1,00,000/- to the complainant within one month from the date of this order, failing which it shall carry interest at the rate of 9% per annum from the date of order till realization. Both parties shall bear their respective costs. Complaint for the rest of the reliefs is dismissed. The complaint against opposite parties 2 and 3 is dismissed. Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 17th day of May, 2013. PRESIDENT MEMBER MEMBER APPENDIX OF EVIDENCE WITNESSES EXAMINED For the complainant: For the opposite parties:- P.W.1 Nelli Venkateswara Rao D.W.1 M.B. Krishna Prasad (by affidavit) Executive Director of the 1st Opposite party (by affidavit) D.W.2 Sri Manish Kumar, Assistant Manager, Legal and Secretarial of the 3rd opposite party (by affidavit) DOCUMENTS MARKED On behalf of the complainant: Ex.A.1 . . Photocopy of Certificate of registration. Ex.A.2 . . Photocopy Insurance policy Ex.A.3 19.05.2012 Photocopy inquest report. Ex.A.4 22.05.2012 Photocopy of repair estimation prepared by 1st opposite party. Ex.A.5 29.05.2012 Photocopy of Motor Claim Form. Ex.A.6 06.07.2012 Photocopy of Bank Receipt issued by the 1st opposite party along with photocopy of Andhra Bank cheque for Rs.1,00,000/-. Ex.A.7 28.11.2012 Photocopy of letter from the 1st opposite party. Ex.A.8 21.11.2012 E-mail letter. Ex.A.9 01.06.2012 Photocopies of bunch of cash/receipts issued by Divya Car Travels, Vijayawada. Ex.A.10 04.12.2012 Office copy of legal notice. Ex.A.11 . . Five postal receipts. Ex.A.12 19.12.2012 Reply notice issued by the 1st opposite party. Ex.A.13 . . Unserved returned cover. Ex.A.14 21.01.2013 Reply notice from V.V.S.Saibabu, Counsel, Vijayawada to the Counsel for complainant. For the opposite parties: Ex.B.1 30.01.2008 Retail invoice copy. Ex.B.2 . . Photocopy of Hyundai New vehicle warranty. PRESIDENT | 
