DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.179 of 2016
Date of institution: 01.04.2016 Date of decision : 14.12.2016
Ashit Malik son of late Yash Paul Malik, resident of H.No.135, Sector 27-A, Chandigarh.
……..Complainant
Versus
1. Joshi Hyundai, Joshi Automobiles Pvt. Ltd., Showroom & Workshop: C-117, Industrial Focal Point, Phase-VII, SAS Nagar, Mohali through its Director/Partner/General Manager.
2. Hyundai Motor India Limited, North Regional Office: Add Unit No.C-113-114, 1st Floor, Office Suites Elante, Plot No.178-178-A, Industrial & Business Park Phase-I, Chandigarh through its Regional Manager.
………. Opposite Parties
Complaint under Sections 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Shri Amrinder Singh Sidhu, Member.
Mrs. R.K. Aulakh, Member.
Present: Shri Sagar Aggarwal, counsel for the complainant.
Shri Rajesh Verma, counsel for OP No.1.
Shri Lalit Sood, counsel for OP No.2.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Ashit Malik son of late Yash Paul Malik, resident of H.No.135, Sector 27-A, Chandigarh has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. Complainant had purchased Hyundai Verna car bearing Registration No.CH-01-AK-8489 on 31.10.2011. The car was insured with National Insurance Company Ltd. for the period from 31.10.2015 to 30.10.2016 with IDV of Rs.5,50,000/-On receiving call from OP No.1, the complainant sent his car for service on 22.03.2016 and job card dated 22.03.2016 was issued by OP No.1. The car was to be delivered by OP No.1 on 23.03.2016 after service and an estimated charge of Rs.7,300/- for service was given by OP No.1. On 22.03.2016 at about 2.00 P.M. OP No.1 informed the complainant that his car met with an accident and the complainant was asked to reach the service station. It was informed that while reversing the car in the workshop, the foot of the mechanic slipped from the accelerator and the car struck a pillar due to which damage was caused to rear portion of the car. On reaching service station at about 4.00 P.M. the complainant found that heavy damage had been caused to the car and the reason given was not plausible. The whole of the boot space went inside which caused further damage to the rear chassis. It was clear that something big had hit the car from behind at a very high speed which is not possible if the car was not taken out of the service station. OP No.1 tendered apology for the same but refused to compensate the complainant for the loss/damage. However, the General Manager of OP No.1 offered to repair the car by using the insurance policy of the car and also offered Rs.1,50,000/- as compensation for the heavy damage caused to car due to their negligence. The complainant refused to this offer of OP No.1 and asked it to pay the IDV of the car and also to pay him Rs.1,50,000/- for deficiency in service and Rs.2,00,000/- as compensation for harassment. OP No.1 on 25.03.2016 informed the complainant that now they are ready to repair the car without using insurance policy of the car but no compensation shall be paid for negligence or harassment and promised to settle the matter on 29.03.2016 but thereafter they did not bother to contact the complainant. Both the OPs are vicariously liable for harassment and loss as OP No.1 is authorised dealer of OP No.2, thus they have equal responsibility to compensate the complainant. Hence this complaint for giving directions to the OPs to pay him Rs.5,50,000/- the IDV of the car; Rs.1,50,000/- for deficiency in service; Rs.2,00,000/- as compensation for harassment and mental agony and Rs.25,000/- towards litigation expenses alongwith interest @ 18% per annum.
3. The complaint is contested by the OPs. OP No.1 in its written statement had raised certain preliminary objections, inter alia, that no cause of action has arisen against it and the complaint is false and frivolous On merits, OP No.1 has admitted that the vehicle of the complainant had come to its workshop vide job card on 22.03.2016 at a mileage of 99133 KMs. The manner of the accident which took place in its workshop was informed to the complainant. The damage has been caused to the vehicle during repair in the premises of OP No.1. OP No.1 has denied that the vehicle of the complainant was taken out of the premises of OP No.1. As per the repair order, the consent was signed by the complainant through his driver Mr. Sagar that the car will be driven tested and repaired entirely on the owner’s risk and the complainant was also informed vide letter dated 31.03.2016 by Vikram Sharma, Manager that there was no liability on the part of No.1 to repair the vehicle as the damage is caused during repair but still as a goodwill gesture, OP No.1 had extended help to repair the vehicle free of cost to the satisfaction of the complainant. Another letter dated 28.04.2016 was sent to the complainant to give approval to start the job work but he did not give any consent. Thus, denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint against it.
4. OP No.2 in the preliminary objections of its written statement has pleaded that there is no allegation against OP No.2 and all the allegations have been leveled against OP No.1. Liability of OP No.2 is limited to performance of car and since the complainant has not raised any allegations regarding performance of the car, no deficiency can be attributed to OP No.2. The complainant has concealed the material fact that the vehicle had already met with an accident on 20.12.2011 at mileage of 3081 KMs, on 18.01.2012 at mileage of 4253 KMs and on 10.10.2012 at mileage of 21545 KMs. On merits, OP No.2 has denied that it is vicariously liable for any act or omission on the part of OP No.1. OP No.1 is neither agent nor employee of OP No.2. OP No.2 operates with its dealers on principal to principal basis. Denying any deficiency in service, OP No.2 has sought dismissal of the complaint against it.
5. In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of retail invoice Ex.C-1; insurance policy Ex.C-2; job card Ex.C-3; photographs Ex.C-4; sale certificate Ex.C-5; loan sanction letter Ex.C-6 and letter Ex.C-7. In rebuttal OP No.1 tendered in evidence affidavit of Hardyal Singh Jaswal, its Service Manager Ex.OP-1/1; copies of consent letter Ex.OP-1; postal receipt Ex.OP-2; letter dated 28.04.2016 Ex.OP-3; postal receipt Ex.OP-4; job card dated 27.03.2016 Ex.OP-5 and authorization letter in favour of H.S. Jaswal Ex.OP-6. Evidence of OP No.2 consists of affidavit of Manish Kumar, its authorised signatory Ex.OP-2/1.
6. Learned counsel for the complainant has argued that the car was handed over to OP No.1 on 22.03.2016 for service. OP No.1 prepared the job card Ex.C-2. OP No.1 has admitted vide letter dated 31.03.2016 Ex.C-7 that during repair of the vehicle, it met with an accident in its washing area and offered to repair the car free of cost to the entire satisfaction of the complainant. Learned counsel for the complainant has argued that vehicle was purchased by the complainant vide retail invoice dated 31.10.2011 Ex.C-1. The complainant has availed loan of Rs.10,00,000.00 for purchase of the vehicle from Punjab National Bank as is evident from certificate dated 18.04.2016 Ex.C-6. Learned counsel for the complainant has pleaded that the damage can be seen from the photographs Ex.C-4 and it can be inferred that the car was badly hit from back side. Even if at all it is repaired by OP No.1 free of cost, its resale value will be on lesser side. Thus, the complaint may be allowed and Insured Declared Value of the car to the tune of Rs.5,50,000/- as per insurance policy Ex.C-2 besides compensation for mental agony, harassment, financial loss and costs of litigation.
7. On the other hand learned counsel for the OP No.1 has argued that complainant was duly informed about the manner in which damage was occurred to the vehicle during repairs. As a goodwill gesture OP No.1 offered to repair the vehicle free of costs and this fact was intimated to him vide letter dated 31.03.2016. However, the complainant had not given his consent and is adamant for paying him the IDV of the vehicle alongwith other compensation which OP No.1 is not liable as there is no deficiency in service on its part. Similarly learned counsel for OP No.2 has argued that the complainant has not alleged any manufacturing defect in the vehicle, as such there is no deficiency in service on its part and it is not liable for any acts done by OP No.1. OP No.2 is manufactured of the vehicle in question.
8. We have gone through the pleadings, evidence and written as well as oral submission of counsel for the parties. It is an admitted fact that the complainant handed over his car to OP No.1 for service on 22.03.2016 vide job card Ex.C-2. The factum of damage to the car during service on 22.03.2016 is also admitted by OP No.1 as is evident from document Ex.C-7. From the photographs Ex.-4 (colly) it can be seen that the rear portion of the car had been badly damaged. No doubt, OP No.1 has offered to repair the damaged car free of cost but it will definitely decrease the re-sale value of the car. The complainant has proved purchase of another car on 31.03.2016 vide retail invoice Ex.C-5.In our opinion, even if the car is repaired by OP No.1 free of cost, it will not serve the purpose of the complainant as he has already purchased a new vehicle. Since the OP No.1 has admitted damage to the car so it is liable to compensate the complainant. There is no allegation leveled by the complainant that the car was having any manufacturing defect, hence OP No.2 who is manufacturer of the vehicle in question is not liable for the lapse on the part of OP No.1. The relationship between OP No.2 and 1 is on principal to principal basis. So no relief can be allowed against OP No.2.
9. Accordingly, the present complaint stands allowed against OP No.1. We direct OP No.1 to pay to the complainant the Insured Declared Value of the car to the tune of Rs.5,50,000/- (Rs. Five lacs fifty thousand only) and to pay compensation of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused to the complainant due to negligent act of the OP No.1 alongwith litigation cost of Rs.10,000/- (Rs. Ten thousand only) after receipt of all the requisite documents of the car in question from the complainant. The complainant will also sign the requisite documents for transfer of the car on the name of OP No.1 or any person as desired by OP No.1. However, complaint against OP No.2 is dismissed.
The OP No.1 is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order.
The arguments on the complaint were heard on 30.11.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 14.12.2016
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
