IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the     26^th      Day of  March  2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

     Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.76/17

Mrs.Metilda Francis Lobo                            :         Complainant

W/o Gladwin

Tony Land,Kottiyam P.O

Kollam-691571.

[By Adv.Varghese Jan Yesudas]

V/s

1. Daiwik Motors Pvt.Ltd.                     :         Opposite parties

        Tvm Road, Pulamon

        Kottarakkara, Kollam

        Pin-691531.

      [By Adv.S.Riyas]

2. United India Insurance Company Ltd.

          Navaneetha Building, Kundara

           Mukkada, Kollam-691501.

         [By Adv.S.Subhash Chandra Babu]

     Additional 3^rd  opposite party

     International Cars and Motors Ltd.

      Pankaj Plaza-1

      Plot No-2, Karkar Dooma, Community Centre

     Commercial Complex, Delhi-110092.

      (Impleaded as per Order in IA.152/18 dated 20.04.2018)

       [By Adv.Jyothisagar.V]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a complaint filed u/s 12 of the Consumer Protection Act 1986. 

          The averments in the complaint in short are as follows:-

          The complainant who is a house wife is the owner of the car bearing Reg.No.KL 02 AR 6990 ICML Extreme Motor Car.  The 1^st opposite party is the authorized dealer and service provider of ICML.  2^nd opposite party is the insurer of the above mentioned car.  3^rd additional opposite party is the manufacturer of the said car.  The complainant purchased the above car from the 1^st  opposite party on 29.03.2014 by paying Rs.10,38,280/-.  The vehicle was hypothecated with Vijaya Bank, Kollam.  On 26.03.2014 Rs.1,30,000/- was received by the 1^st opposite party as down payment from the complainant.  The complainant has also exchanged secondhand Maruti Esteem car bearing Reg.No.KL.04 Q 3833 at the time of purchase and its price was adjusted towards the price of the new vehicle and balance amount of Rs.8,30,000/- was credited through Vijaya Bank.  At the time of purchase the 1^st opposite party was made the complainant to believe that the 2^nd opposite party was the only dealer of ICML in Kerala and they are well competent and authorized to provide all service and spare parts of the vehicle.  However on 15.03.15 the vehicle met with an accident and was towed to the 1^st opposite party’s service centre at Kottarakkara.  The vehicle was having valid insurance coverage at the time of accident and the 1^st opposite party promised the complainant to extend their service for consideration and promised to assess all damage sustained to the vehicle and repair the vehicle and change spare parts which are found necessary.  However the 1^st opposite party has not acted as promised but sent an estimate dated 23.03.15 for an amount of  Rs.4,47,555/- to the 2^nd opposite party insurance company.  The 2^nd opposite party deputed a surveyor on 25.05.15 and as instructed by the 2^nd opposite party the vehicle was inspected by the 1^st opposite party’s premises and till date they have not received the repair bills of the vehicle from the 1^st opposite party.  This matter was intimated to the 1^st opposite party through phone and by visiting the 1^st opposite party in person on several times.  But the 1^st opposite party was reluctant to do the repair works.  While visiting the 1^st opposite party’s  premises the complainant found that the vehicle was not properly kept in the custody which was left open in sun and rain and hence upholstery, floor carpet and all parts of the vehicle got rusted and damaged.  The 1^st opposite party informed the complainant to remit Rs.70,000/- as price of chasis in advance to order the same.  Complainant questioned the 1^st opposite party on the ground that in the estimate  Rs.37000/- only was shown as price of chasis.  But later complainant was ready to pay the amount asked for the 1^st opposite party.  Thereupon the complainant replied that the chasis is not available and hence work could not be started.  Additional 3^rd opposite party has not provided chasis and other necessary spare parts as additional 3^rd opposite party company is wound up and there is no stock.  Aggrieved by the above act of the 1^st opposite party the complainant approached TLSA, Kollam as PLP No.2870/2015 on 29.07.2015.  finally the complaint was disposed of by finding that no scope of settlement and directing the complainant to approach proper Forum.  Thereafter on 15.12.2016 the complainant caused to send a lawyer notice to the 1^st  opposite party to pay cost of the vehicle unnecessary expenses met by the complainant due to the non availability of the vehicle and  for loss and mental agony.   Though the 1^st opposite party has received the notice,   they have not cared to respond nor even sent a reply notice.  The vehicle is now not at all repairable and has been worn out due to lack of care and maintenance from the 1^st opposite party.  The act of the 1^st and additional 3^rd opposite party amounts to deficiency in service and unfair trade practice.  The complainant claims an amount of  Rs.10,98,280/- with interest @ 12% p.a for the loss sustained to the complainant on this count.  According to the complainant she has sustained much mental agony apart from financial loss and therefore she is entitled to get compensation to the tune of Rs.50,000/- and costs Rs.10,000/- from the opposite parties.  Hence the complaint.

          Originally there are only 2 opposite parties which are the authorized dealer and  insurance company.  Opposite party No.1&2 filed separate version denying the averments in the complaint.  However all the 3 opposite parties would admit the following facts.  The complainant had purchased ICML Extreme Motor car bearing Reg.No.KL 02 AR 6090 from the 1^st opposite party.  On 15.03.15 the said vehicle met with an accident and was taken to the 1^st opposite parties service centre at Karikkakam, Kottarakkara.  The vehicle having a valid insurance coverage vide policy No.1007023114 P100158436.  The service person of the 1^st opposite party inspected the vehicle and found that it require major repair works and also replacement of parts including chasis.  The said fact was informed to the 2^nd opposite party  insurer of the vehicle.  The surveyor deputed by the 2^nd opposite party inspected the vehicle and issued an estimate of Rs.4,47,555/-.  The 2^nd opposite party issued work order to the 1^st opposite party.  Accordingly the 1^st opposite party demanded Rs.70,000/- from the complainant towards the value of chasis which was to be paid to the manufacturer ICML Company.  The complainant was initially not ready to pay the said sum on the ground that she required brand new vehicle as replacement to the vehicle met with the accident.  However on 20.04.15 the complainant again went to the 1^st opposite party’s office received back original documents such as RC Book, Insurance Policy, Driving License etc.  Thereafter on 04.07.15 she again went to the garage of the 1^st opposite party and caused to remove stereo, JBL, LCD etc. from the vehicle with the help of the technician  of the 1^st opposite party.  Subsequently the complainant again went to the garage of the 1^st opposite party showed her willingness to pay  the said amount of Rs.70,000/- and  on that day itself the 1^st opposite party                                        contacted the manufacturing company for getting the chasis of the said vehicle.  But the manufacturing company has been wound up and as such there was no stock of  the chasis.  The said fact was immediately made known to the complainant.  If the complainant paid the value of the chasis during March 2015 itself the vehicle would have been repaired by duly replacing the chasis.  It was solely due to the reluctance and negligence on the part of the complainant to pay the said sum at that time.  Though the complainant filed a petition before the Legal Service Authority she did not turn up and hence after hearing the 1^st opposite party the proceedings was closed.  The 1^st opposite party repeatedly informed the complainant to take back the vehicle from the garage premises but she failed to do so.  The 1^st opposite party has no objection to allow the complainant to take the wreck vehicle after paying floor rent.  The complainant has no cause of action against any of the 3 opposite parties.

          The 2^nd opposite party would raise the following additional contentions.  The complainant has not sought any relief from the 2^nd opposite party and hence 2^nd opposite party is not a necessary party to the proceedings.  However the 2^nd opposite party would further content that though the company has issued a policy insuring the vehicle the 2^nd opposite party is not liable to pay compensation under the policy on the ground that the insured has violated all the conditions of the policy.  It is mandatory on the part of the insured to the parties forthwith regarding the happening of any loss sustained during the accident.  No claim under the policy shall be payable unless the terms and conditions of the policy have been complied with.  The 2^nd opposite party got information about the accident and damage caused to the vehicle only at a later stage.  But immediately on receipt of information about the accident the 2^nd opposite party deputed a qualified surveyor by name G.Sampath who visited the vehicle and assess the damages caused to the vehicle.  As per the information furnished by the complainant the vehicle was entrusted to the 1^st opposite party for repairing it after the said accident.  The surveyor visited the premises of the 1^st opposite party on 24.03.2015 but the repair bills were not made available to the surveyor till 24.05.15.  He sent a letter to the complainant requesting to submit it before the insurance company as per the survey report and settle the claim.  Thereafter no information received either from the complainant or from the 1^st opposite party.  The 2^nd opposite party has no knowledge regarding the further transaction between the complainant and the 1^st  opposite party.

          In view of the contentions of the opposite party No.1&2 the complainant has filed IA.152/2018 on 20.04.2018 seeking to impleaded the manufacturer as the 3^rd additional opposite  party.  Accordingly the manufacturer was impleaded as additional 3^rd opposite party.   In response to the notice the additional 3^rd opposite party entered appearance filed separate version raising the following contentions.  The complaint is not maintainable as it is barred for misjoinder of parties.  There is neither any allegation nor any relief has been sought against the 3^rd opposite party.  The complainant has no cause of action against the additional 3^rd opposite party to file the present complaint.  However the additional 3^rd opposite party would admit that the car involved in the accident has been manufactured by the 3^rd opposite party.  But the liability of the manufacturing company is limited to the extent to repair or replace any part during warranty period on complaint to warranty terms and conditions of the customers.  The complainant has no allegation of any manufacturing defect in the vehicle.  The vehicle was having warranty of 2 years or  100000 kms whichever is earlier.  The vehicle was purchased on 29.03.2014 and the complaint has been filed in the year 2018 after a gap of 4 years.  Hence the complaint is hopelessly barred by limitation against the 3^rd additional opposite party that the vehicle is out of warranty also.  As the vehicle has been involved in an accident it is the matter between the complainant and opposite party No.1&2.  Even  otherwise damage due to accident is not covered under warranty. 

          It is further contented that the additional 3^rd opposite party sells vehicle and spare parts to the dealers who further sells to the same to their customers against their own invoice.  Being a road side accident case additional 3^rd opposite party has no role in the matter.  The allegation of the complainant that spare parts and chasis were not available is totally denied by the additional 3^rd opposite party.  It is further content that no request was made by the 1^st opposite party or the complainant in this regard.  The additional 3^rd opposite party supplied spare parts to different dealers as and when orders placed for the same.  The additional 3^rd opposite party is not liable to pay any amount including compensation to the complainant and the complainant is not entitled to get any relief from the additional 3^rd opposite party.

  Subsequent to the filing of version by the opposite parties including additional 3^rd opposite party the complainant filed IA.No.192/99 and got amended the complaint as per order dated 24.02.2020 passed in the said IA.  Thereafter the 2^nd opposite party has filed additional version by reiterating the earlier contentions and also contenting that there is no specific allegation of  deficiency in service and unfair trade practice against  the 2^nd opposite party anywhere in the original or amended complaint.  Hence the prayer in the amended complaint to the effect that all the opposite parties are jointly and severally liable has no merit at all.  The averments  in paragraph 9&11 of the amended complaint changed the character of the complaint and the same is not maintainable against the 2^nd opposite party.  The complaint has not alleged any genuine reasons for raising any contradictory pleadings in the complaint.  There is no willful latches or deficiency in service or dereliction of duty or any unfair trade practice on the part of the 2^nd opposite party.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of  opposite party No.1&2 and additional 3^rd opposite party?
2. Whether the complainant is entitle to get Rs.10,38,280/- being  the cost of the vehicle along with interest from opposite party No.1&2 and additional 3^rd opposite party?
3. Whether the complainant is entitled to get compensation and costs of the complaint from all the opposite parties?
4. Reliefs and costs.

Point No.1 to 3

For avoiding repetition of discussion of materials these 3 points are considered together.  Though the case was specifically posted for trial in the list the complainant and her counsel has not turned up.  However we are of the view that the complainant is not interested in adducing oral evidence.  Hence the document produced  along with complaint has been marked Ext.P1 to P10 subject to the objection raised by the counsel for opposite party No.1&2 that the documents are only unattested photo copies.  The 1^st opposite party has filed proof affidavit and got marked Ext.D1 to D4.  Heard the counsel for opposite party No.1 and additional 3^rd opposite party and taken up for judgment.

While perusing the records it is seen that the documents are marked subject to proof.  Therefore the examination of the complainant is highly essential for the just decision of the case.  Hence earlier posting of the case for order stands reviewed suomoto and posted for examination of the complainant.  Though notice was issued and directed the complainant to appear on 18.03.22 and give evidence if he intends to prosecute the complaint was served neither the complainant nor her counsel turned up on 18.03.2022.    In the circumstances we are of the view that the complainant is not interested in prosecuting the complaint by standing  in the witness box and facing cross examination and also make the marking  of the documents absolute.  The unchallenged averments in the affidavit filed by the 1^st opposite party coupled with Ext.D1 to D4 documents would primafacie probabilise  the case of the opposite parties.  There is absolutely no evidence to prove the allegations in the complaint and at the same time the evidence tendered by the 1^st opposite party remains un challenged which would probabilise the case of the opposite parties.  As the complainant has failed to substantiate the allegations in the complaint the complaint is only to be dismissed.   Points answered accordingly.

Point.No.4

In the result complaint stands dismissed.  Parties are directed to suffer their respective costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  26^th  day of  March    2022.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

         Stanly Harold:Sd/-

        Forwarded/by Order

       Senior Superintendent

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext P1 :  Receipt for Rs.1,30,000/-  dated 26.03.2014 from Daiwik Motors Pvt.Ltd.

Ext P2:  Copy of certificate of registration.

Ext.P3 :  Copy of GD extract  of Pulikeezhu  Police Station as on 19.03.2015.

Ext.P4:   Copy of private car package policy from United India Insurance Co.Ltd.

Ext.P5:   Copy of  additional estimate of  labour charges and spare parts of the accident vehicle Reg.No.KL 02 AR 6990 from Daiwik Motors.

Ext.P6 :   Letter dated 25.05.2015 from G.Sambath, Surveyor.

Ext.P7 :   Copy of complaint.

Ext.P8:   Copy of lawyer notice dated 15.12.2016.

Ext.P9  : Copy of  postal receipt.

Ext.P10: Copy of complaint settled reply dated 16.01.2017.

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1: Copy of letter from The works manager, Daiwik Motors dated 28.05.2015.

Ext.D2:            Copy of estimate dated 23.03.2015.

Ext.D3:            Authorization letter dated 20.10.2021 from S.Ajith Kumar, MD,Daiwik Motors Pvt.Ltd.

Ext.D4:            Copy of Letter dated 25.05.2015 from G.Sambath, Surveyor

E.M.Muhammed Ibrahim:Sd/-

          S.Sandhya Rani:Sd/-

          Stanly Harold:Sd/-

         Forwarded/by Order

        Senior Superintendent