Order No. 17 dt. 09/11/2016
The case of the complainant in brief is that the private car of the complainant bearing no.WB 20Z 4978 fell into a pond and the said car was taken to one of the authorized service centre of o.p. no.1 for repairing on 25.1.14. The o.p. no.1 informed the complainant that the repairing will be done in accordance with the instruction of the expert of the concerned insurance company but the complainant will have to pay Rs.50,000/- as an advance and at the time of delivery the full payment is to be made. The complainant agreed to the said proposal. The complainant thereafter on 7.3.14 paid an advance amount of Rs.50,000/-. After 4 months the complainant received the repaired car and found that o.p. no.1 demanded Rs.1,19,521/- and he paid the entire amount. At the time of delivery the complainant demanded the return of the damaged parts which were replaced by new parts but o.p. no.1 did not return those parts and as such o.p. no.1 committed unfair trade practice. After delivery when the car was being used it was found that there was several defects for which the complainant went to o.p. no.1 for repairing. The o.p. no.1 took the car in their garage and even after the lapse of 2 weeks o.p. no.1 did not repair the car. Subsequently the complainant sent lawyer’s notice asking the o.p. no.1 to return the car after repairing the same within 7 days and o.p. no.1 sent two letters informing that the amount paid by the complainant cannot be taken into consideration for the subsequent repairing of the car for which the complainant handed over the same to o.p. no.1. The complainant further stated that the insurance company after getting information of the accident of the said car appointed one surveyor for assessing the loss and the surveyor in the report mentioned that some items of the bill he has not understood so he wanted to go to the work shop but in spite of visiting the garage the problem was not solved. Since the o.p. no.1 committed unfair trade practice and deficiency in service the complainant filed this case praying for proper repairing of the engine of the car and other defects without asking for any charge, damage of Rs.1,50,000/- and litigation cost of Rs.10,000/- .
The o.ps. contested this case by filing separate w/v and denied all the material allegations of the complaint. The o.p. no.1 stated that after inspection of the vehicle it was informed to the complainant that he engine was full of mud and water and it was advised that the battery as well as engine was required to be replaced. The complainant informed the o.p. no.1 that the car was insured with the Reliance General Insurance Co. and the complainant had no facility to have cashless tie up with RLIC. Accordingly the complainant was asked to pay Rs.50,000/- as advance. The complainant paid the advance one and half months after the inspection of the vehicle and thereafter o.p. no.1 informed RLIC for appointment of a surveyor for loss assessment of the car. The surveyor assessed the loss and instructed the o.p. not to replace the engine but to repair it. On 2.6.14 the complainant reported to o.p. that the engine was not working properly and asked for free repair of this car which o.p. refused and the complainant left his car to o.p’s premises and lodged an FIR with Chetla P.S. but the policy did not take any action on the basis of the complaint lodged by the complainant. After detail inspection of the car it was found that the cylinder was broken and water was sucked into a combustion chamber while the engine was running. After thorough inspection it was found that repeated cranking of the engine resulting in hydrostatic lock. The surveyor visited the garage and took the photograph and submitted report. The o.p. no.1 stated that since the complainant failed to agree to pay the charge that would be claimed by o.p. no.1, the complainant did not agree to the said proposal and left the vehicle in the garage of o.p. no.1. Considering such background of the case o.p. no.1 has prayed for dismissal of the case.
The o.p. no.2 stated that they a have no liability regarding the claim made by the complainant. It was stated that there was no deficiency in service on the part of o.p. no.2 and as such o.p. no.2 also prayed for dismissal of the case against o.p. no.2.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant went to the garage of o.p. no.1 for repairing of his car.
- Whether the complainant paid the amount.
- Subsequently whether it was found that the vehicle required further repairing.
- Whether the complainant will be entitled to get the repairing of the vehicle without payment of the charges.
- Whether the complainant will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant’s car was damaged due to falling of the car in the pond. Subsequently the complainant went to the garage of o.p. no.1 and o.p. no.1 after inspection of the vehicle demanded Rs.50,000/- as advance and after repairing demanded further amount of Rs.1,40,581/-, in total the complainant paid Rs.1,90,581/-. Though the complainant paid the said amount and the vehicle was handed over to the complainant but within the short period the vehicle had further trouble for which the complainant went to o.p. no.1 and asked to repair the vehicle without payment of any amount to which o.p. no.1 denied. The complainant after payment of the amount of Rs.1,90,581/- asked the o.p. no.1 for handing over the damaged parts to him so that he can come to the conclusion that actually those parts were damaged and replaced but o.p. no.1 did not hand over those damaged parts. The complainant thereafter kept the vehicle the garage of o.p. no.1 and did not take delivery of the vehicle. In view of the said fact ld. lawyer for the complainant has prayed for necessary direction upon the o.p. for repairing of the vehicle as well as the compensation and cost.
Ld. lawyer for the o.p. no.1 argued that after the car fell in a pond the complainant went to o.p. no.1 and o.p. no.1 after inspection found that the engine was full of mud and water and it was advised the battery as well as engine were required to be replaced and accordingly the complainant was informed and he agreed to pay the advance of Rs.50,000/-. After the completion of work o.p. no.1 charged the balance amount of Rs.1,40,581/- which was paid by the complainant and subsequently the car was delivered to the complainant. The complainant after receiving the vehicle expressed his satisfaction and received the same, subsequently further defect arose and o.p. no.1 on inspection found that the engine was not working properly and the complainant asked free repair of his car which was refused by o.p. no.1. After detail inspection of the vehicle it was found that the cylinder was broken at V angle water was sucked into the combustion chamber while the engine was running. After thorough inspection it was found repeated cranking of the engine resulting in hydrostatic lock for which the engine was damaged and the damage caused was of greater magnitude and accordingly the engine if not replaced it will become a scrap. After the said fact was pointed out to the complainant and o.p. demanded the repairing charge to which the complainant refused and thereafter the complainant left his car in the garage of o.p. no.1 and he turned up and filed the case. Considering all these aspects ld. lawyer prayed for dismissal of the case.
Having regard to the submission of the respective parties it appears that the vehicle was damaged extensively and the vehicle was insured with the insurance company at the relevant point of time and it is also an admitted fact that the insurance company paid a sum of Rs.78,000/- towards full and final settlement of the claim lodged by the complainant and the complainant accepted the said amount towards full and final settlement of the case. The insurance company proforma o.p. no.3 in their w/v stated that o.p. no.1 did not repair the said vehicle after the incident properly and rather they charged excessive amount. The surveyor after assessment of loss submitted a report wherein after scrutinizing the bill he observed that he has not understood the items of the bill mentioned and he wanted to visit the garage and in spite of his visiting to garage the problem has not solved. On the basis of the observation of the said surveyor of the amount paid by the complainant it appears that the complainant paid the entire amount claimed by o.p. no.1 and subsequently whenever the problem further cropped up the complainant requested the o.p. no.1 to repair the vehicle free of charges to which o.p. no.1 refused, as such the complainant had to filed this case.
Considering the facts and circumstances of the case, it is crystal clear that there was gross deficiency in service as well as unfair trade practice on the part of the o.p. no.1 in spite of receiving the amount of Rs.1,90,581/- the vehicle did not repair properly and there was defect and o.p. no.1 did not hand over the damaged parts, on the contrary, he charged excessive amount which has also been mentioned by the proforma o.p. no.3 in their w/v relying upon the report of the surveyor who assessed the loss in respect of the damage of the vehicle. Accordingly, we hold that there was gross deficiency in service as well as unfair practice on the part of the o.p. no.1 and as such, the complainant will be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.545/2014 is allowed on contest with cost against the o.p. no.1 and dismissed on contest without cost against other o.ps. The o.p. no.1 is directed to repair the vehicle in question of the complainant properly without imposing any repairing charge and pay to the complainant compensation of Rs.30,000/- (Rupees thirty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
