IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of November, 2023
Present: Sri. Manulal V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.61/2022 (Filed on 18/03/2022)
Complainant : A.C Annamma W/o Dominic Mathew,
Narikuzhi House,
Anthinadu P.O,
Lalam Village,
Kottayam – 686 651.
(By Adv: Joseph.T. John)
Vs.
Opposite parties : (1) The Managing Director,
FOCUZ Automobile Service Limited,
Door No.XXVII/533,
D1, Opposite Lulu Mall Main Gate(NH47),
Trinity Apartments Road,
Edappally,
Ernakulam - 682 024.
(2) The Service Manager,
FOCUZ Automobile Service Limited,
Kottayam - 686 013.
(Both by Advs: V. Krishna Menon,
Usha Menon & Prinsun Philip)
O R D E R
Smt.Bindhu.R, Member
This complaint is filed under Section 35 of the Consumer Protection Act, 2019.
The complainant purchased a TATA Altroz XZ vehicle bearing Reg.No. KL-35K-7250 from the authorized dealer. The said vehicle was validly insured under the New India Assurance Company Limited. The said vehicle met with an accident on 24/06/2021 and immediately after the accident it was shifted to the authorized service centre MK Motors, Kottayam and they were directed to take estimate for repair. There they informed that it would take 45 days to 2 months for the repair due to Covid 19 situation and hence the complainant approached the second opposite party and they offered 30 days for the repair. Only because of that the complainant shifted the vehicle to the second opposite party service centre on 12/07/2021. The said vehicle was taken for repair by the second opposite party on 12/07/2021 and the repair works were completed on 31/10/2021 but the same was delivered on 1/11/2021. So the second opposite party had delivered the vehicle only after 109 days after repairing the said vehicle against the offer given by them that the repair will be completed within 30 days. The second opposite party neither repaired the vehicle on time nor handed over an assistance service vehicle to the complainant. So the complainant had to pay Rs.1,12,500/- as taxi fare due to the delay in the delivery of the service vehicle. While examining the car by the insurance surveyor there was no scratch on the right side of the vehicle but after service there occurred a scratch on the right side of the vehicle which was alleged by the second opposite party to have occurred before the service. This scratch occurred only because of the negligence of the labourers of the second opposite party at the time of repair. To remove this scratch by painting the complainant had paid Rs.12,000/- plus GST charges. This amount was spent only because of the negligence of the second opposite party. The second opposite party had failed to show the consumable items which had been replaced for repairing the said vehicle. In that aspect the complainant had made a complaint to the first opposite party and in the Customer Care Center also, but the opposite parties did not resolve the issues raised by the complainant. It is the bounden duty of the opposite parties to provide an assistance vehicle to substitute the repair vehicle for the time period of repair. The opposite parties have committed deficiency in service by delaying the delivery of the vehicle more than 30 days as offered, not providing an assistance vehicle to the complainant during the period of service and causing scratches on the body of the vehicle during the period of service. The opposite party received the bill amount from the complainant’s insurance company and therefore the complainant had become a consumer as defined under the Consumer Protection Act. The complainant sent a legal notice on 11/01/2022 demanding an amount of Rs.3,00,000/- as compensation for the deficiency of service and negligence from the employees in scratching the vehicle etc. Though the first opposite party received the notice on 13/01/2022 and second opposite party on 12/01/2022 respectively, no reply has been made so far. Hence this complaint is filed for a direction to the opposite parties to pay compensation of Rs.3 Lakhs to the complainant.
Upon receipt of notice from this Commission the opposite parties appeared
and filed their version contending that the complainant is not a consumer of the opposite parties. During July 2021 the complainant contacted the workshop of the opposite parties over telephone seeking to know whether the opposite parties immediately attend to certain accident repairs of her vehicle and she was categorically informed by the opposite parties that owing to the prevailing pandemic and restrictions imposed by the Central and State Governments with respect to opening of workshops as also the minimal staff available on those days were permitted to function owing to lack of public transport and there was delay in obtaining spare parts from the manufacturer from Pune or Bangalore with the restrictions imposed for inter-state travel of goods vehicles, It would take time for the completion of the works. At no point of time had the opposite parties assured the complainant to deliver the vehicle within 30 days as alleged. In July 2021 when the complainant’s car was brought to the workshop, the service personnel of the opposite party prepared the initial estimate for the repairs which was given to the complainant for the approval from the insurance company with which her car was insured as the said company was not one with which the manufacturer had a tie up. The complainant was further informed that the work could be started only after the final approval of the surveyor on the second estimate and it would take time, and further after obtaining the necessary parts from the manufacturer from Pune or Bangalore for which an order could be placed only after obtaining the approval from the Surveyor. As the insurance company was one of her choice and not with the one which had tie up with the manufacturer the opposite party required the complainant to pay 50% of the amount as advance but owing to the persistent request of the complainant the opposite parties did not receive any advance amount. Opposite party had placed orders for obtaining the necessary spare parts with the manufacturer requesting for early despatch of the same immediately after obtaining the necessary approval from the surveyor of insurance company. Immediately on receipt of the necessary parts the repair work of the complainant’s car was done in a priority basis as on the days when the workshop was permitted to function by the Government and on being informed of the completion of the repairs the complainant took delivery of her car on 1/11/2021 after fully satisfied on payment of the necessary charges payable by her. The complainant had been provided with a cash discount of Rs.3,643/- from the amount payable by her. There was no wilful delay on the part of the opposite parties and so there is no deficiency of service on their part. The opposite parties are not responsible for the taxi charges alleged to have been used/spent by the complainant. The scratch on the car as alleged had been noticed when the car had been towed and brought to the workshop of these opposite parties and which could have occurred at the time of towing of the vehicle. Though the said aspect had been duly brought to the notice of the surveyor of the insurance company he had refused to accord his approval for removal of the scratch under insurance coverage and the opposite parties are not liable or responsible for the same. The opposite parties had done the necessary painting over the scratch with the appraisal of the complainant and all payment were done by her. The opposite parties are in no way liable to compensate the complainant as the alleged loss stated to have been suffered by the complainant.. Hence the complaint is liable to be dismissed.
The complainant filed affidavit in lieu of chief examination along with documents which were marked as Exhibits A1 to A11. The complainant was examined as PW1. The opposite parties filed proof affidavit but did not render
any documentary evidence.
On perusal of the pleadings and evidence on record we frame the following issues to be answered :
(1) Whether the complainant is the consumer of the opposite parties ?
(2) Whether there is any deficiency of service on the part of the opposite parties ?
(3) If so, what are the reliefs to be granted ?
POINT No. 1 :-
The complainant’s case is that her car TATA Altroz XZ bearing number KL-35K-7250 which was met with an accident on 24/06/2021 was entrusted with the opposite parties for repair on 12/07/2021 on the assurance given by the opposite parties that they would complete the repair work and deliver the vehicle within 30 days as the vehicle was very necessary for her daily travel purpose. But the vehicle was delivered only on 1/11/2021 thus the opposite party has delayed the delivery of the vehicle by 109 days. Moreover the opposite parties didn’t give an assistance vehicle to the complainant during the period of the repair. The complainant further alleged that at the time of delivery there was a scratch on the left side of the vehicle which was not there when the vehicle was given for repair work and this has happened only because of the negligence of the staff of the opposite parties. The opposite party contended that the delay happened in the delivery of the vehicle was not a wilful one but happened because of the restriction imposed by the State and Central Governments due to the Covid pandemic. The delay had happened in getting the spare parts from the company and the delay in obtaining two survey reports for insurance claim caused the delay.
We have given a thoughtful consideration on the complaint, version and the evidence adduced by both parties. The opposite parties have contended that the complainant is not a consumer of the opposite parties. Admittedly the opposite parties have repaired the vehicle of the complainant by receiving the payment from the insurance company of the complainant’s vehicle. As the premium to the insurance policy had been paid by the complainant the insurance company has paid the amount for indemnifying the complainant’s liability to pay. Hence the payment can be deemed to have been done by the complainant herself. Moreover in Exhibit A6, the e-mail sent by the opposite parties to the complainant dated 1/10/2021 regarding the delay in finishing the repairing work and about the scratch occurred to the car’s body. Moreover Exhibit A10 is the estimate of repairs issued by the opposite parties in the name of the complainant amounting to Rs.4,65,225/-. So from the version itself though the opposite party denies the consumer relation with the complainant throughout its version it has admitted that there was a consideration paid by the complainant credentials company and the opposite parties have rendered service to the complainant so there is no dispute about the service provider-consumer relationship between the opposite party and the complainant.
POINT Nos.2 & 3 :-
The major allegation of the complainant is that the opposite parties have made inordinate delay in the repairing and delivery of her vehicle which met with an accident. As she was in dire need of a vehicle for her everyday travel to her office, this delay had caused several hardships including financial loss by hiring another vehicle. The opposite parties were supposed to give an assistance vehicle during the period of the service. Here accident took place on 24/06/2021 and the vehicle was entrusted with the opposite party on 12/07/2021. After service the vehicle was delivered only on 1/11/2021 thus a delay of 109 days occurred. The allegation of the complainant is that the opposite party had made inordinate delay. Moreover during this delayed service, the opposite party was not ready to give an assistance vehicle to the complainant for her day-to-day use.
According to the opposite parties, the delay caused in the delivery of the vehicle was in the circumstances of the Covid pandemic. There was strict restrictions for the workshops etc. to perform. Workshops were permitted to be opened only in alternate days or 2 or 3 days in a week etc., so moreover there was several travel restrictions also both intra state and inter-state. But the contentions of the opposite parties that they were unable to procure the required spare parts from the manufacturing company due to these restrictions and thus the delay in repairing the vehicle occurred, is not seen admissible as first of all, it was in the second phase of the pandemic all the incidents took place when there was not much restrictions as the previous phase. We see that as per the estimate given by the opposite parties for the repair of the accident prone vehicle, number of spare parts were needed. Opposite parties being authorized service centres they should procure all of them collecting from the manufacturer. But though they have taken such a contention, the opposite parties didn’t produce any document to show that they had placed a proper order before the manufacturer on time. There is no document before us to prove that the opposite parties have placed proper order in proper time for the purchase of the spare parts so that the vehicle could have been delivered on time. In the absence of such an evidence we presume that the opposite parties have failed to place the order for the spare parts on time with the manufacturing company for delivering the vehicle after service on the promised date, which is a deficient service on the part of the opposite parties.
Another reason raised by the opposite parties is that the delay occurred because of the delay in submitting the report by the 2nd surveyor. For this also there is no evidence to show that the delay occurred from the part of the insurance company or surveyor. The date of visit of the surveyor or the date of receipt of the insurance amount etc. are still in dark. The opposite party has failed to disprove the allegations of the complainant with cogent evidence.
Another allegation against the opposite parties is that due to the negligence of the staff of the opposite parties the complainant’s vehicle at the time of delivery bore a scratch on the left side of its body which was not there before the repair work. The opposite party themselves have admitted in the version that the scratch would have been occurred because of the towing of the car for several times for the purpose of repair and in Exhibit A5, the opposite party admits that the scratch would have occurred due to the towing and they would try to include it in the policy claim. But no evidence has been adduced to prove that the opposite parties have taken a genuine effort to include the expense of the painting to remove the scratch, in the policy claim, nowhere in the estimate given by the opposite parties ie. Exhibit A10 also such an amount is seen entered. The opposite parties have demanded and received payment from the complainant for the removal of this scratch by painting. So this also is a deficiency on the part of the opposite party.
The complainant has produced the receipts of the payment of taxi availed by her for her conveyance during the period of repair as Exhibit A4(series). The total amount is 1,12,500/-. All these receipts do not contain the signature of the driver. Moreover, these receipts are not seen issued on daily basis. The admissibility of the A4(series) receipts is doubtful.
Thus on the basis of the above discussion we allow the complaint vide the following order :
1. The opposite parties are directed to pay Rs.1,00,000/- (Rupees One Lakh only) as compensation to the complainant with interest @9% p.a. from the date of filing of this complaint ie 18/03/2022 till realisation.
2. The opposite parties are further directed to pay Rs.3,000/- (Rupees Three Thousand only) as litigation cost to the complainant.
The opposite parties are jointly and severally liable to pay the award amount. The order shall be complied within 30 days from the date of receipt of copy of this order.
Pronounced in the Open Commission on this the 24th day of November, 2023
Smt.Bindhu.R, Member Sd/-
Sri. Manulal V.S, President Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witness from the side of the Complainant :
PW1 - Annamma A.C
Witness from the side of the OppositeParties :
Nil
Exhibits from the side of the Complainant :
A1 - Copy of Identity Card showing the Designation of
the complainant
A2 - Copy of RC Book of Vehicle bearing Reg.No.KL-35K-7250
A3 - Copy of Policy Schedule cum Insurance Certificate issued
by United India Insurance Company Limited
A4(series) - Tourist Taxi Receipts (3 Nos)
A5 - Copy of E-mail dated 28/09/2021 sent by the complainant
to the 1st opposite party
A6 - Copy of E-mail dated 01/10/2021 sent by the Customer
Care Team of Tata Motors to the complainant
A7 - Copy of lawyer Notice dated 11/01/2022 issued by the
Advocate of the complainant to the 1st & 2nd opposite parties
A8(series) - Postal Receipts(2 Nos)
A9(series) - Postal AD Cards(2 Nos)
A10 - Copy of Estimate for repairs dated 09/07/2021 issued by the
opposite parties
A11 - Copy of Tax Invoice dated 12/10/2021 issued y the
opposite parties
Exhibits from the side of Opposite parties :
Nil
By Order,
Sd/-
Assistant Registrar
