Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party No.1 is the manufacturer of the ‘Hyundai Santro Xing XP’ car, whereas the Opposite Party No.2 is one of the authorized dealers of the Opposite Party No.1 – Manufacturing Company. The Opposite Party No.3 is authorized service centre of the Opposite Party No.1 – Company; whereas the Opposite Party No.4 is the branch of the Opposite Party No.3 having a garage at the address as mentioned in title of the complaint. The Opposite Party No.5 is an insurance company with whom the vehicle in question, which was owned by the Complainant, was insured. [2] It is the case of the Complainant that in the month of May-2005, he had purchased a brand new ‘Hyundai Santro Xing XP’ car, bearing RTO Registration No.MH-04-CJ-1870, from M/s. Krishna Motors, Thane (West); and the Complainant had borrowed a vehicle loan for an amount in sum of Rs.3,26,000/- from the ICICI Bank. [3] According to the Complainant, he had given said car for servicing to the Opposite Party No.4 – Service Centre; on 13/1/2007 and the Opposite Party No.4 – Service Centre; had given a quotation for routine service for an amount in sum of Rs.2,800/-. Further, according to the Complainant, on 15/1/2007, he received a telephone call from the Opposite Party No.4 – Service Centre; to the effect that his car met with an accident and was badly damaged. The Complainant inspected his car, which was in a bad condition & shape. The Complainant states that the Opposite Parties No.1 to 4 assured him through their employees that the matter would be settled and the old damaged car would be replaced by a brand new car. The Opposite Parties No.1 to 4 persuaded the Complainant, in their joint meeting, not to lodge a complaint with the police. It was represented by the Opposite Party No.3 that it will complete the repairs of the car and claim reimbursement from the insurance company so that no financial loss is caused to the Complainant. On the request of the Complainant, the Opposite Party No.2 – Dealer; delivered a substitute car bearing Registration No.MH-06-M-5600, as a courtesy for the Complainant’s use. [4] It is further case of the Complainant that nothing was heard from the Opposite Parties in the matter of repairs of the car or substitution of the car and the Complainant reminded the Opposite Parties, by his letter followed by reminders and the representative of the Opposite Party No.1 – Company; sent an e-mail dtd.11/7/2007, giving assurance that they will take necessary steps to resolve the dispute. In the meantime, the Complainant continued to pay EMIs towards repayment of the vehicle loan. Despite assurance, the Opposite Parties failed to take steps to replace the car. The Complainant served a legal notice dtd.20/9/2007 to the Opposite Parties No.2 to 4, but there was no response from the Opposite Parties. Ultimately, the Complainant filed present complaint seeking directions, as against the Opposite Parties, to pay him an amount in sum of Rs.2,37,125/-, which was the residual loan amount to be paid to the ICICI Bank against the loan borrowed by the Complainant and provide the Complainant with a brand new car of the same make & model, as also, to pay compensation in sum of Rs.5,00,000/-. [5] The Opposite Party No.1 – Manufacturing Company; filed its written version and contested the complaint by taking stand that it has no concern what-so-ever with the transaction in question and the Complainant had not alleged manufacturing defect in the car, and therefore, the Opposite Party No.1 – Company; was not liable for reimbursement of any loss caused to the Complainant as well as replacement of the car. [6] The Opposite Party No.2 – Dealer; did not file its written version on the record, as called for by this Forum. [7] The Opposite Party No.3 – Authorized Service Centre; filed its written version and admitted that the Complainant’s car was delivered to its branch at Mulund on 13/1/2007. While the car was taken outside for a test drive by an employee of the Opposite Party No.4, it met with an accident and was badly damaged. The car was covered by a comprehensive insurance policy issued by the Opposite Party No.5 – Insurance Company. Lodging of FIR was deferred at the instance of the Complainant and it was decided to make collective & combined efforts to repair the car and claim reimbursement from the insurance company. The Opposite Party No.3 has referred to certain terms & conditions incorporated in the repair order dtd.13/1/2007 to which, we will advert to at a later stage. [8] It is further case of the Opposite Party No.3 that parties were constantly in touch with each other and a settlement was arrived at under which the Complainant agreed to receive an amount in sum of Rs.2,50,000/- on net salvage basis towards full & final settlement. The Opposite Party No.3 found out one prospective purchaser for the damaged car. However, the Complainant failed to sign the Memorandum of Understanding as well as agreement for sale in favour of the prospective purchaser and thus, backed out. In the meantime, the Complainant continued to possess & use the courtesy car. Thus, according to the Opposite Party No.3, it is not guilty of deficiency in service. [9] The Opposite Party No.4 is the branch of the Opposite Party No.3. Written version filed by the Opposite Party No.3 appears to be for itself as well as on behalf of the Opposite Party No.4. [10] The Opposite Party No.5 – Insurance Company; filed its written version of defence and admitted that car in question was insured with the Opposite Party No.5 – Insurance Company; and insurance policy was effective on 13/1/2007. The Opposite Party No.5 – Insurance Company; has denied any deficiency in service on its part. [11] The Opposite Parties No.1, 3 & 4, in their respective written versions, have taken stand that as per the terms & conditions incorporated at the back side of the service report, there was a condition, under which the Complainant/customer had agreed to fully indemnify the Opposite Party No.3 against all legal criminal & civil actions as may arise on account of accident of the car. In view of conditions incorporated in the service report, the Opposite Parties Nos.3 & 4 cannot be held liable for reimbursement of loss caused to the Complainant’s car, which met with an accident during the test drive. [12] The Complainant filed his rejoinder to the written versions filed by the Opposite Parties No.1, 3 & 5. The Complainant, in his rejoinder, has taken stand that the repair order was signed by him, but the terms & conditions overleaf were never read over to him and never explained to him and thus, there was no valid contract in respect of terms & conditions printed overleaf of repair/service order. According to the Complainant, the terms & conditions were drafted unilaterally without knowledge of the Complainant and they would not absolve the Opposite Parties from liability arising out of negligent driving on the part of their employee. The Complainant also took stand that car was given in custody of the Opposite Party No.4 for routine servicing and it was not required to be taken outside for a test drive, and therefore, taking the car outside for test drive was totally unauthorized use of the car. [13] The Complainant filed his written notes of arguments. The Opposite Parties Nos.3 & 4 also filed their written notes of arguments. [14] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [15] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Parties are guilty of deficiency in service on account of not making reimbursement of loss caused to the Complainant due to damage caused to his car? | YES. However, proved only as against the Opposite Parties No.3 & 4. | 2. | Whether the Complainant is entitled to any direction, as against the Opposite Parties? | YES. Replacement of the old car of the Complainant by providing him a brand new car of the same make & model. | 3. | What order? | The complaint is partly allowed. |
REASONS FOR FINDINGS [16] The Opposite Party No.4 has been referred to as a godown-cum-branch of the Opposite Party No.3 and the written version filed by the Opposite Party No.3 also reveals that it is for the Opposite Party No.4, which is an authorized service centre of the Opposite Party No.1 – Manufacturing Company. From the contents of paragraph (04) of the written version of defence, as filed by the Opposite Party No.3, it is seen that the Opposite Parties No.3 & 4 admit that the Complainant’s car bearing RTO Registration No.MH-04-CJ-1870 was delivered to the Opposite Party No.4 on 13/1/2007 for routine servicing and the repairs/service order was issued. The Opposite Parties Nos.3 & 4 also admit the fact that the car met with an accident and sustained damage and resultant loss. Since the car was given in custody of the Opposite Party No.4, for routine servicing and admittedly, since it met with an accident, obviously the car must have met with an accident while it was taken outside by an employee of the Opposite Party No.4. The repair order shows that it was paid service and the Complainant had agreed to pay an amount in sum of Rs.2,800/-. Copy of the repair order is placed on the record by the Complainant at Exhibit-A, page (12) of the compilation. From the contents of the complaint as well as affidavit filed by the Complainant, it is seen that on 15/1/2007, the Complainant received a telephone call from the Opposite Party No.4 to the effect that the car met with an accident and it was badly damaged. These allegations are supported by a copy of the e-mail dtd.9/7/2007, which was sent by the Complainant to the Opposite Party No.1 – Company. It appears that the Complainant wanted free servicing from the dealer from whom the car was purchased and the Opposite Party No.2 had referred the Complainant to the Opposite Party No.4, which is a branch of the Opposite Party No.3 and this is borne out from the repair/service report, a copy of which is produced on the record at Exhibit-‘A’, which is on the letterhead of the Opposite Party No.2. This shows that the car was taken into custody by the Opposite Party No.4 for servicing for and on behalf of Opposite Party No.3 and while in custody of the Opposite Party No.4, the car met with an accident. A photograph of the car is produced on the record, which shows that it was badly damaged and the damage was caused at the front side of the car. [17] The Complainant started correspondence with the Opposite Parties and we have referred to an e-mail dtd.9/7/2007, a copy of which is produced on the record at page (17) of the compilation, which was replied by the Opposite Party No.1, vide an e-mail dtd.11/7/2007 and the Opposite Party No.1 – Company; had agreed to attend the grievance of the Complainant, but nothing came out. The Complainant sent another e-mail dtd.23/7/2007 to the Opposite Party No.2 – Dealer; and the Complainant expressed grievance that the Complainant was not provided with replacement of the car and nothing was done to reimburse the loss sustained by the Complainant. The Complainant expressed his dissatisfaction/disappointment by an e-mail dtd.10/9/2007. When nothing concrete was done by the Opposite Parties, the Complainant served a legal notice dtd.20/9/2007, addressed to the Opposite Party No.3 and threatened the Opposite Party No.3 with legal action. All these facts establish that the Complainant’s car was in custody of the Opposite Parties Nos.3 & 4 and while it was taken outside for a test drive, the car met with an accident and was badly damaged. [18] Once the Complainant had given his car to the Opposite Parties No.3 & 4 for repairs, which the Opposite Parties Nos.3 & 4 agreed to conduct, vide their repair order, a copy of which is produced on the record at Exhibit-‘A’, page (12) of the compilation; relationship of a ‘bailor’ & ‘bailee’ came into existence since it was a contract of bailment. Contract of bailment comes into being as provided under Section-148 of the Indian Contract Act, 1872; when one person delivers goods to another person upon a contract that they shall, when the purpose is accomplish, be returned or otherwise disposed of according to the directions of the person delivering them. As per Section-151 of the said Act, in all cases of bailment, a ‘bailee’ is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances take of his own goods. If, due care is taken, bailee is not responsible for destruction or deterioration of goods bailed. As per Section-154 of the Indian Contract Act, 1872; if a bailee makes use of any goods bailed, which is not according to the conditions of bailment, he is liable to make compensation to the bailor for any damage to the goods. In the present case, the Complainant was a ‘bailor’ and the Opposite Parties Nos.3 & 4 were the bailees. Damage to the Complainant’s car was caused while the car met with an accident being driven by an employee of the Opposite Party No.4. Since, there was no defect in the engine of the car, it was not necessary to take the car outside for a test drive. Therefore, the Opposite Parties Nos.3 & 4 would be liable to pay compensation to the Complainant. [19] At the same time, by accepting the Complainant’s car for servicing at their service centre, the Opposite Parties Nos.3 & 4 agreed to provide service to the Complainant for a consideration and thus, they became ‘service providers’ to the Complainant and the Complainant became their ‘consumer’. [20] The Opposite Parties Nos.3 & 4 have principally relied upon following two conditions, which appear at the overleaf of the repair order:- “1. The Vehicle is driven, tested (including road test outside the workshop), repaired and stored at the sole risk, responsibility and liability of the Customer. In case of damage due to an accident, repairs will be carried out at customer cost/under the insurance of the vehicle & L. A. Motors Pvt. Ltd., will not be liable for any charges/deduction/depreciation/policy excess whatsoever nature may be, levied by Insurance Co. 2. The Customer agrees to indemnify L. A. Motors Pvt. Ltd., against any risk, liability/responsibility for loss or damage to the vehicle and/or life or property of all persons arising out of repairing/servicing/test driving of the vehicle when the vehicle is in the L.A. Motors Pvt. Ltd., custody and all the Customer confirms to have obtained insurance of the vehicle together with accessories and other components or articles and things therein and L. A. Motors Pvt. Ltd., shall not be liable for any loss damages or injury whatsoever.” [21] The Complainant, in his affidavit of rejoinder, has explained that on 13/1/2007, he signed the repair order without reading the terms & conditions at the overleaf. Those terms & conditions were never explained to him. According to the Complainant, the terms & conditions were drafted unilaterally, detrimental to the customer’s interest and according to the Complainant, those terms & conditions would not absolve the Opposite Parties from the liability arising out of negligent act on the part of their employee. We have gone through the copy of service order, as produced on the record by the Complainant, which at the front page, bears the signature of the Complainant and the terms & conditions are at the overleaf. There is no material on the record to show that all these conditions and particularly, Conditions Nos.1 & 2 were explained to the Complainant. Assuming that under Condition No.2, the Complainant had agreed to indemnify the Opposite Parties Nos.2 & 3 for loss or damage caused to the vehicle, while it was taken outside for test drive, it would be applicable when the loss or damage to the vehicle had occasioned without negligence on the part of the employee and when the test drive is required. In the present case, at the first instance, it is not established that test drive was needed. Still then, the vehicle was taken outside for a test drive, which met with an accident and was badly damaged. Therefore, these two clauses would not exempt or absolve the Opposite Parties Nos.3 & 4 from its liability to make compensation to the Complainant in a dual capacity of ‘service provider’ as well as a ‘bailee’. [22] Not only that but the written version as well as written notes of arguments filed by the Opposite Party No.5 – Insurance Company; reveals that the car was insured with the Opposite Party No.5. The Complainant had sent a letter dtd.28/12/2007 to the Opposite Party No.5 that the Opposite Party No.4 had collected all the original papers of the vehicle and the Complainant’s signature was taken on a blank motor claim form. Pursuant to that, the Opposite Party No.5 – Insurance Company; appointed a surveyor and as per the claim form and survey report, accident in question had taken place on 1/2/2007 at about 10:00 a.m., on Andheri – Kurla Road. A police complaint was lodged by one Mr. Kevin D’ Souza of the Opposite Party No.4, under which he alleged that the accident had taken place on 1/2/2007, while he was driving the said vehicle. As against this, the Complainant had received information on 15/1/2007 that the accident had taken place in the morning of 15/1/2007 and the car was badly damaged. The Complainant had throughout, in his correspondence, mentioned the date of accident as 15/1/2007 and the Complainant received a courtesy car on 25/1/2007. The Opposite Party No.3, in its written version of defence, has stated that a courtesy car was given to the Complainant on 25/1/2007 and compensation is sought by the Opposite Parties No.3 & 4 from the Complainant from the said date i.e. 25/1/2007. As against this, a copy of station diary about this police complaint shows that it was lodged by one Mr. Kevin Francis D’ Souza on 3/2/2007 with the allegations that an accident had taken place on 1/2/2007. It pertained to the Complainant’s vehicle. All these facts show that after the Complainant was asked to wait and was persuaded not to file a police complaint, the Opposite Parties Nos.2 to 4 decided to seek reimbursement from the Opposite Party No.5 – Insurance Company; and to substantiate that claim, they lodged a false complaint with the police subsequent to the accident and the Opposite Party No.5 – Insurance Company; in its written notes of arguments has thoroughly exploited the stand taken by the Opposite Parties Nos.2 to 4 vis-à-vis said accident. In view of written version as well as written notes of arguments, as filed by the Opposite Party No.5 – Insurance Company; it does not appear that the Opposite Party No.5 has sanctioned the insurance claim regarding the vehicle of the Complainant. [23] The Opposite Parties Nos.3 & 4 have also referred to certain settlement, a copy of which is produced on the record by the Opposite Parties No.3 & 4 alongwith their written notes of arguments, but the Complainant did not sign the settlement or any consent terms. Therefore, they would not be binding upon the Complainant. [24] Result is that the car given by the Complainant to the Opposite Parties Nos.3 & 4 for routine servicing was taken outside for a test drive by an employee of the Opposite Party No.4, which met with an accident. It is not known as to whether the car has been completely repaired by the Opposite Parties Nos.3 & 4 and it has been made roadworthy. No doubt, the Complainant had purchased the car in the year 2005 and according to the Opposite Parties Nos.3 & 4, the car had already covered a distance of 14,507 km. Still then, the car had not become old and it had not inherent manufacturing defect and it was roadworthy. The Complainant had purchased the car by borrowing a loan in sum of Rs.2,60,000/- from ICICI Bank. The Complainant is burdened with a liability to repay the loan dues and it appears from the written notes of arguments filed by the Complainant that he has continued to make payment of EMIs towards repayment of loan dues. It is seen from the written version as well as written notes of arguments filed by the Opposite Party No.5 – Insurance Company; that it has not sanctioned the insurance claim, as submitted by the Opposite Parties Nos.3 & 4. It is not known as to whether in future it would be sanctioned. In fact, comments made by the Opposite Party No.5 – Insurance Company; about the bonafides of the Opposite Parties Nos.3 & 4 gives indication that the Opposite Party No.5 – Insurance Company; is reluctant to approve the claim. Therefore, placed in this situation, the Complainant has no other option left except to seek direction from this Forum as against the Opposite Parties Nos.3 & 4 to make compensation to the Complainant. Now, the Complainant’s car has been badly damaged and it does not appear from the written version filed by the Opposite Parties Nos.3 & 4 that it is in a roadworthy condition. Thus, the Complainant who had purchased a car by borrowing a loan from the bank has been deprived of his vehicle on account of negligence on the part of the Opposite Parties Nos.3 & 4. Therefore, in this situation, a just & proper order would be to direct the Opposite Parties Nos.3 & 4 to provide a brand new car of the same make & model to the Complainant. [25] The Complainant is in possession of a courtesy car provided to him by the Opposite Parties Nos.3 & 4. The Complainant will have to surrender the same to the Opposite Parties Nos.3 & 4 before taking delivery of a brand new substitute car. Since the Opposite Parties Nos.3 & 4 have been directed to prove a brand new car to the Complainant, old damaged car of the Complainant shall be retained by the Opposite Parties Nos.3 & 4 and the Complainant shall sign necessary documents to transfer the ownership of that car in favour of the Opposite Party No.3 and the Opposite Party No.3 shall be entitled to dispose of the said vehicle according to its own free will or it is at a liberty to retain the same for its own use. [26] In view of the fact that the Complainant would get a brand new car, we are not inclined to direct the Opposite Parties No.3 & 4 to pay additional compensation to the Complainant. [27] The Opposite Party No.1 is the manufacturer of the said car. It has no concern with the transaction in question. Similarly, the Opposite Party No.2 also had no concern what-so-ever with the accident in which the Complainant’s car was damaged. Similarly, no liability could be fastened on the Opposite Party No.5 – Insurance Company. Therefore, the complaint, so far it relates to the Opposite Parties No.1, 2 & 5, shall have to be dismissed. With this, we proceed to pass the order as below:- ORDER The complaint is partly allowed. The Opposite Parties Nos.3 & 4 are jointly & severally directed to provide a brand new ‘Hyundai Santro Xing XP’ car to the Complainant. It is hereby made clear that supply of a brand new car by the Opposite Parties Nos.3 & 4 to the Complainant and surrender of courtesy car bearing RTO Registration No.MH-04-M-5600, by the Complainant to the Opposite Parties Nos.3 & 4, shall take simultaneously. At the same time, the Complainant shall execute requisite documents for transfer of ownership of his old damaged car bearing RTO Registration No.MH-04-CJ-1870 in favour of the Opposite Parties Nos.3 & 4. The Opposite Parties Nos.3 & 4 shall also pay to the Complainant, an amount in sum of Rs.10,000/- towards costs. The Opposite Parties Nos.3 & 4 are directed to comply with the foregoing order within a period of three months from the date of receipt of copy of this order failing which, they shall also be liable to pay to the Complainant, an amount in sum of Rs.500/- per day towards penalty, as from the date of expiry of stipulated period of three months till the foregoing order is duly complied with. The complaint, as against the Opposite Parties Nos.1, 2 & 5, stands dismissed. Rest of the claims of the Complainant stands rejected. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
