By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows: -
1. The complainant purchased vehicle Supro Maxi Truck T 4 from the first opposite party who is the authorized dealer of third opposite party and the vehicle was insured with the second opposite party. The vehicle No. is KL 65 P 2176. While the vehicle was driving from Thrissur to Balussery on 09/05/2020 met with an accident at V.K padi, A R Nagar at about 7 am. The vehicle hit against Innova car KL 47 8393 and thus the accident occurred. The accident was duly informed the Tirurangadi police and the police registered crime no 417/20. Thereafter the AMVI attached to Tirurangadi sub-RTO inspected the vehicle on 11/05/2020 and prepared a report. The complainant informed the insurance company and the insurance company directed the complainant to produce the vehicle before the first opposite party and accordingly he brought the vehicle with the assistance of AM crane service center at the cost of complainant itself. The insurance surveyor delayed the inspection of the vehicle and the vehicle was kept idle for several days due to the non-inspection of the insurance surveyor in time. Subsequently the surveyor inspected the vehicle and prepared a report. The opposite party delayed delivery of the vehicle and on enquiry it was informed that there was defect to the shell of the chassis and the estimate of the surveyor revised accordingly. Thereafter also it was told that there will be delay for supply of parts for the repair of the vehicle. Thereafter during 2020 July, it was informed that they received necessary parts for the repair of the vehicle and informed that vehicle will be delivered within one week. But it was informed that due to the crack to the shell, only on availability of shell of chassis the vehicle will be repaired, hence there will be further delay.
2. The first estimate prepared by the surveyor was for Rs.1,79,098/- and towards that amount the complainant paid 30,000/- rupees as advance. Subsequently there was revised estimate for Rs.3,47,596/-. The complainant submit that he sustained 34,000/- rupees as loss due to revising of the estimate. The complainant was not able to do any work during the period of 4 months due to non-delivery of vehicle from the service center. The complainant was compelled to pay Rs. 9,400/- per month towards the loan instalments. The complainant alleges deficiency of service and unfair trade practice against the opposite party and claims compensation of Rs.3,50,000/- on account of inconvenience and hardship suffered by the complainant and Rs. 1,00,000/- on account of mental agony sustained by the complainant.
3. The complainant also prays for the expenses met by him towards monthly instalments for the disputed period Rs.37,600/- and Rs.10,000/- towards cost of the proceedings.
4. On admission of the complaint notice was issued to the opposite parties and the opposite parties one and three entered appearance and filed version. The second opposite party did not turn up despite service of notice and so the second opposite party set exparte.
5. The first opposite party submitted the version denying the entire averments and allegations in the complaint and contended that the complaint is not maintainable against the opposite party.
6. The opposite party submitted that the complainant was doing vegetable sales through his goods vehicle and by itself it is an illegal business and has not contemplated under law and the vehicle is used for commercial purpose and so the complaint is not maintainable.
7. The opposite party further submitted that the complainant purchased goods vehicle for his commercial use and insured with the second opposite party. The vehicle had met with an accident and had garaged for repairs before the first opposite party and further submitted that the complainant could not use the vehicle during the period is obviously untrue since there was no authority to drive the vehicle during the period of covid .
8. The sole allegation against the first opposite party is regarding the delay of returning the vehicle after repairs, which is totally incorrect and false. The opposite party denied the allegation that the opposite party did not consider the complainant. The opposite party submitted that during the alleged period of accident the office of the opposite party was closed due to covid. The opposite party closed the office due to pandemic under the instruction of Kerala government and District administration under the Epidemic Diseases Act.
9. The opposite party submitted that they planned to garage the vehicle while the vehicle was brought. Though there was no office or work shop was functioning but still they made arrangements to evaluate the damages and also was ready to get the survey but the surveyor was also not available due to pandemic situation. However, the estimate was prepared as per available view without dismantling and was for Rs.3,47,596/- on 20/05/2020 and sought complainant to pay an advance sum. Though the complainant informed to pay on 20/05/2020, he paid the amount of Rs.30,000/- on 02/06/2020 after a gap of two weeks. Surveyor conducted first survey of the vehicle on 23/05/2020 and approval was received on 27/05/2020 and in consequence, parts were ordered on 28/05/2020. Due to the absence of transportation and complete lockdown, the work shop was not permitted during all these periods but special care was given to customers and due to the direct involvement of the management of opposite party, repair works were started thereafter and while the accidental parts were dismantled, body shell damage along with other internal damages were noticed on 15/07/2020 and was reported to the surveyor and second inspection was done and permission was granted on 20/07/2020. Revised estimate was taken on 20/07/2020 for Rs. 3,47,596/-. In the meantime, the complainant was requested to pay additional amount towards his part since the claim of insurance was not cashless. Therefore, the complainant was liable to pay his part and rest by insurance company. Though the complainant was asked to remit an amount of another one lakh in advance, though he promised, he sought time, but prolonged incessantly. He was well convinced about the payable amount but he did not take care any further payment. The opposite party also requested the insurance company to make advance payment but they paid 1,20,000/- rupees, as part payment towards body shell on 22/08/2020. The opposite party should pay the invoice amount to receive the parts along with placing the order and the complainant and insurance company to recoup the amount at earliest. The work was completed by the 12/09/2020 and requested the complainant to take delivery on payment of balance amount.
10. The opposite party submitted that there is no delay in carrying out the accident repairs. The opposite party carried out the works with utmost sincerity and speedily on the availability of parts that too without paying the required advance amount for repairs. The parts to be replaced are to be purchased by the opposite party from the manufacturer on payment and is not available free of cost. It is the duty of insurance company and the complainant to pay the same. In this complaint the insurance company released a part payment of Rs. 1,20,000/- on 22/08/2020 but the complainant was not paid the substantial amount payable by him. Hence the opposite party submitted that they suffer and sustained heavy loss since the amount is advanced to the manufacturer from the own fund of the opposite party in their overdraft account for which 18% interest is payable. Hence it is submitted that all the delay in payment is a loss to the opposite party and which will affect the fiscal policies. Hence the submission is there was no single day delay on the part of the opposite party to deliver the vehicle. But the complainant though promised to pay the amount several times but did not pay until 14/09/2020 and thereafter the vehicle was released.
11. The submission of the opposite party is that there is gross violation of terms of policy by the complainant and he was bound to pay half of the amount payable but he did not pay except an amount of Rs. 30,000/- in advance. The opposite party could have kept the vehicle without repairs due to nonpayment of his part but did the work at the earliest. It is submitted that opposite party extended all the best efforts even without waiting for the legally entitled advance amount and carried out the work that while the work shop and premises were closed due to covid. The work was carried out under closed shutters since it was done during lock down that too lot of power interruptions and other negative actions were in force. During this period several workers arranged alternatively fallen ill due to covid. Even after all these direct impacts due to covid 19 the work was done at the earliest possible opportunity. It is submitted that there was difficulty to receive the spares and parts due to travel ban by the different states. It is further submitted that the accident accused to the vehicle was not a small accident but was a heavy and sustained hectic damage to the vehicle. It can be seen that an amount of Rs.3,47,596/- came up for the repairs for a vehicle cause about 5.8 lakh ex showroom price. Hence the submission is that there is no deficiency from the side of opposite party and the complaint is to be dismissed with compensatory cost of the opposite party.
10. The third opposite party filed version denying the allegations against the third opposite party. The third opposite party contended that there is no allegation against third opposite party in the entire complaint and so the complaint is bad for mis joinder of parties. The contention in the complaint is not at all maintainable against the opposite party.
11. The submission of the third opposite party is that the transaction between the first and third opposite party are on principal to - principal basis. The present complainant is pertaining to alleged delay in accidental repairs of the complainant’s vehicle. The repairs occurring due to an accident is an independent transaction between the complainant and the dealer. The accidental repairs are not covered under warranty. The answering opposite party had never any transaction with the complainant and therefore there is no privity of contract between the complainant and the third opposite party. Hence the third opposite party is not vicariously or otherwise liable for acts of omission and commission if any of the opposite party No.1. The first opposite party is not an agent of the third opposite party. The relation between the first and third opposite parties are limited to the specific terms in the relationship agreement executed between the parties. There is no deficiency in service from the side of third opposite party and the complainant has no right to invoke the provisions of the Consumer Protection Act 1986 or 2019 against the opposite party. The complaint is filed without any bonafides but on experimental basis. The subject complaint is regarding a commercial vehicle purchased by the complainant and so the complainant cannot be treated as “consumer “as defined in in Consumer Protection Act. Hence the prayer of the opposite party is to consider the maintainability as preliminary issue.
12. The opposite party specifically denied the entire averments in the complaint The opposite party admitted that the complainant purchased Mahindra Supro Maxi Truck T 4 goods carrier from the first opposite party. But the contention regarding the insurance, the purpose for which the vehicle was purchased etc. are not within the knowledge of the opposite party. It is admitted that the vehicle met with an accident on 09/05/2020 and reported to the work shop on 13/05/2020 but the other averments are denied by the opposite party. The opposite party denied the allegation that there was intentional delay after dismantling the vehicle for repairs. It is submitted that after dismantling of the vehicle for repairs on 15/07/2020, cabin / chassis issue was also noticed, supplementary estimate was prepared on 17/06//2020 and the same was submitted to the surveyor of the opposite party No.2 on 20/07/2020. But the opposite party submitted that they did not involve in any of such procedures. The opposite party submitted that for the repair of vehicle there was initial estimate and part order was raised on 28/05/2020 few of the parts were received by first opposite party on 14/07/2020 and the order for spare parts were raised at the time when there was a nationwide lockdown due covid 19 pandemic and there were restriction on movement of people and transportation of goods. It is submitted that many offices and plants were shut due to the restrictions or were not fully functional during the relevant period. It is submitted that the body shell damage was identified on 15/07/2020 and the surveyor had approved body shell part replacement on 20/07/2020. It is submitted that the order for spare parts for the shell damage was released to the first opposite party on 28/08/2020, the same was possible only due to easing some restrictions for movement of goods and partial opening of plants by the government. The complainant is not justified in making such allegations during the pandemic, especially when the governments are continuing with the restrictions.
13. The opposite party submitted that the first estimate was prepared on the basis of preliminary inspection of the vehicle and after dismantling the vehicle on 14/07/2020, defects were noticed in the body shell and a supplementary estimate with parts / labor required was given to the surveyor on 20/07/2020. Hence there is no basis for the allegation regarding sustaining of any loss due to the subsequent estimate. The opposite party submitted that they are not aware about the loan or repayment as alleged in the complaint. It is also submitted that the repairs to the vehicle were necessitated only due to the accident and not due to any defect in the vehicle. It is submitted that Mahindra and Mahindra Ltd. is selling every vehicle with specified warranty. The Mahindra supro maxi truck T II vehicle is having a standard warranty and the warranty policy is given in the owner’s manual.
14. The opposite party explained in the version regarding the warranty conditions and it is specifically contended that “repairs required because of accident, misuse, abuse, neglect is not covered under warranty “and the warranty conditions are applicable to both the complainant as well the manufacturer.
15. The opposite party denied the allegation that the opposite parties committed deliberate delay and committed fault in providing entitled services. It is an admitted fact that the subject vehicle met with a major accident and due to the restrictions due to Covid 19 pandemic more time was required for the major repairing process. The allegation that the complainant sustained mental agony, financial loss etc. are denied by the opposite parties. There is no intentional delay caused by any of the opposite parties, there is no deficiency of service or unfair trade practice from the side of opposite party. It is also denied that due to failure in granting timely service by the opposite parties and actions of opposite parties, complainant suffered financial loss and damage for reputation as alleged. It is further submitted that some more time was taken for repairing due to nationwide lockdown, shutdown manufacturing unit and interstate transportation issues. Hence the opposite party submitted that there is no cause of action against the opposite party and the complainant is not entitled any relief as claimed in the complaint. It is submitted that the complaint be dismissed with cost to the opposite party.
16. The complainant and the first and third opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext.A1 to A9. The documents on the side of third opposite party marked as Ext. B1. Ex.t A1 is copy of FIR dated 11/05/2020 Tirurangadi police crime No. 471/20. Ex.t A2 is copy of AMVI report prepared by AMVI Tirurangadi. Ext. A3 is Photostat copy of photos of the vehicle involved in the accident. Ext. A4 is copy of insurance policy dated 14/11/2019 in respect of vehicle No.KL -65-P 2176. Ext. A5 is copy of the receipt of crane service charge. Ext. A6 is copy of estimate prepared on 19/05/2020 for Rs.1,79,098/-. Ext. A7 is second estimate dated 14/09/2020 for Rs.3,47,596/-. Ext A8 is copy of RC of vehicle No.KL 65 P 2176 dated 25/11/2019. Ex.t A9 is copy of license of the complainant dated 23/02/2018. Ext. B1 is copy of relevant pages from the service manual of the vehicle.
17. Heard the complainant and opposite parties one and three, perused affidavit and documents. The following points arise for consideration
- Whether the complaint is maintainable?
- Whether there is deficiency in service or unfair trade practice from the side of opposite parties?
- Relief and cost
18. Point No.1,2 and 3
The case of the complainant is that he purchased vehicle from the first opposite party who is the dealer of the third opposite party and the vehicle was insured with second opposite party. The grievance is that his vehicle was met with an accident on 09/05/2020 and when it was entrusted for repair before the first opposite party, it was repaired and released to the complainant after a period of 4 months there by the complainant sustained huge loss and so seeking compensation from the opposite parties. The complainant produced Ext. A1 to A9 to prove his case. But the case of the opposite party is that the delay caused if any was not will full one but due to covid pandemic restrictions imposed by the governments. The opposite parties one and three contended that there were restrictions on movement of people and transportation of goods. Also submitted that many offices and plants were shut due to the restrictions or were not fully functional during the relevant period. The complainant produced documents regarding the estimate which are marked as Ext. A6 and A7 respectively. Ext A6 and A7 shows that the estimation of the vehicle was taken 2 occasions. The first occasion it was assessed as 1,79,098/- rupees and the second time it was assessed 3,47,596/- rupees. The first opposite party submitted that the first estimate was prepared even without dismantling the vehicle. Only on the second occasion the vehicle was dismantled and more damages were found out. The first time it was prepared the estimate on 20/05/2020 and second time estimate was prepared on 15/07/2020. The submission of the second opposite party is that there was no office or work shop was functioning during the period, even then the first opposite party decided to evaluate the damages and also was ready to get the survey but the surveyor was also not available due to pandemic situation. The first opposite party further submitted that the complainant delayed in payment of advance for repair cost since the claim of insurance was not cashless. The insurance company made advance payment on 22/08/2020. Even then the opposite party completed the repair work on 12/09/2020. The submission of the first opposite party is that there were sufficient reasons to cause the delay of repair work which is not at all due to any sort of default from the side of opposite parties. But the opposite party extended all the best efforts even without waiting for the legally entitled advance amount and carried out the work that too while the work shop and premises were closed down due to covid. It is further submitted that the work was carried out under closed shutters since it was done during lockdown that too power interruptions and negative actions were in force. It is also submitted that during this period several workers arranged alternately fallen ill due to covid. It is also submitted that there were difficultly to receive spare parts due travel ban by the different states. Therefore, the manufacturer the third opposite party and the dealer the first opposite party took the best effort to do the work at the earliest opportunity and only due to the same the vehicle could be made ready. It is also relevant to note the submission of the first opposite party that the ex-showroom price of the vehicle is Rs.5,80,000/- and the repair estimate is Rs.3,47,596/- and so it is evident that the damage caused to the vehicle was not simple one but an extensive one.
19. Though the opposite parties have got a contention that the complaint is not maintainable before the commission under the ground that the vehicle was used for commercial purpose, we do not find merit in the contention. The complainant has got every right to get repaired his vehicle duly within reasonable time. But considering the facts and circumstances in this case the vehicle met with an accident on 09/05/2020 and the vehicle sustained hectic damage and the vehicle was repaired by the first opposite party on 12/09/2020 that means the opposite party availed 4 months duration for repairing the vehicle. The first and third opposite parties explained the cause for the delay for repair work. The commission cannot ignore the factual situation prevailed during the period of alleged incident. There was total restriction in all spheres of life during the period and there is every chance to cause delay in all the transactions. In this complaint the vehicle was met with hectic damage and for the repair work, the assessment by the surveyor, availability of workers and spares were relevant factors. It appears there was sufficient reason for the delay in the repair work of the vehicle in this complaint. There is no reason to find fault on the opposite parties for the alleged delay in this complaint. The complainant did not explain whether covid pandemic caused for delay or not as contended by the opposite parties in the matter. So, the Commission uphold the contention of the opposite parties and the complaint stand dismissed.
Dated this 11th day of July , 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A9
Ext.A1: Copy of FIR dated11/05/2020 Tirurangadi police crime No. 471/20.
Ext.A2: Copy of AMVI report prepared by AMVI Tirurangadi .
Ext A3: Photostat copy of photos of the vehicle involved in the accident.
Ext A4: Insurance policy dated 14/11/2019 in respect of vehicle No.KL -65-P 2176.
Ext A5: Receipt of crane service charge.
Ext A6: Estimate prepared on 19/05/2020 for Rs.1,79,098/-.
Ext A7: Second estimate dated 14/09/2020 for Rs.3,47,596/-.
Ext A8: RC of vehicle No.KL 65 P 2176 dated 25/11/2019.
Ext A9: License of the complainant dated 23/02/2018.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: Relevant pages from the service manual of the vehicle.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
