PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1)This is the complaint regarding the deficiency in service on the part of Opposite Party as it did not take proper precautions for safety of the vehicle entrusted to it by the Complainant and therefore, the vehicle was stolen form the custody of the Opposite Party.
2) The facts of the complaint as stated by the Complainant are that the Complainant has purchased a vehicle for which they had taken loan from HSBC Bank. The vehicle (Qualis) was purchased for Rs.5,45,408.56 from Opposite Party on 04/09/02. the Opposite Party has agreed to provide 3 free services (in consideration of having purchased the said vehicle i.e. Qualis having registered No.MH-04-G-3170. On 02/11/02, the Complainant sent the vehicle to the Opposite Party for servicing. While the vehicle was in the custody of the Opposite Party on 02/11/02 the Opposite Party informed the Complainant that it was stolen. It is alleged by the Complainant that the Opposite Party was negligent in not safeguarding the vehicle.
3) It is further stated by the Complainant that the Complainant had hypothecated the vehicle to HSBC Bank and was paying Rs.22,637/- p.m. towards the repayment of loan. The Complainant vide its notice to the Opposite Party demanded replacement of the vehicle and expenses amounting to Rs.2,31,597/-. Thereafter, the Complainant put forth its claim amounting to Rs.15,67,447/-. This amount included Rs.47,347/- towards interest, conveyance expenses Rs.1,24,250/-, Salary expenses, Rs.60,000/- Man hour lost on visits to Opposite Party Rs.11,600/- plus 88,000/-. Compensation for inconvenience caused for 250 days - Rs.2,06,250/-, Legal expenses Rs.25,000/- communication expenses Rs.5,000/- punitive damage for callous conduct of Opposite Party Rs.10,00,000/-. It is further stated that, the watch and ward staff of Opposite Party guarding the vehicle was callous and Opposite Party is responsible for the theft of the above said vehicle.
4) The Complainant has prayed that, the Opposite Party be directed to pay a sum of Rs.15,67,447/- alongwith interest or in alternative to give the vehicle like the one which was stolen together with compensation as prayed above except the value of the vehicle and cost of this complaint.
5) The Complainant has attached the xerox copies of the following documents alongwith the complaint –
Letter dtd.10/12/02 addressed to Opposite Party, Letter dtd.12/04/04 addressed to Opposite Party, Letter dtd.15/04/04 addressed to Opposite Party.
6) The list of the documents attached to the complaint vide page no.6, mentions 22 different documents but actually the documents are not with the complaint.
7) The Complainant was admitted and notice was served on the Opposite Party. Opposite Party filed its reply wherein it denied the allegations mentioned in the complaint and specifically stated that it is an authorized dealer of Toyota Vehicles and providing regular free servicing to the customers during warranty period.
8) It is further stated by the Opposite Party that, the services rendered by the Opposite Party are strictly subject to the terms and conditions governing service of the vehicles, clause (2), which states that, “the company will not be held responsible for loss or damage to the vehicle or articles left in vehicle in case of fire, theft, accident or any other cause beyond the company’s control.” Therefore, in view of the above clause, the Opposite Party is not liable for the theft of the vehicle.
9) The Opposite Party has further pointed out that the Complainant has already received an amount of Rs.5,42,158/- being the value of the vehicle form the insurance company. The said amount has been actually paid to the HSBC to whom the vehicle was hypothecated. Having received the amount, the Complainant could have bought a new vehicle. Therefore, it is stated by the Opposite Party that the claim against the Opposite Party is not maintainable.
10) The Opposite Party has further given the details in respect of the vehicle stolen that, on 02/11/02 the vehicle was given to Opposite Party for 2nd servicing at 10.19 hrs. On completion of servicing, the vehicle was parked in front of the security post within the workshop premises at 14.30 hrs. in a ready for delivery status but after that the vehicle was found missing from the place where it was parked. Opposite Party filed FIR with Worli Police on the same day and informed the Complainant. Opposite Party also advised the Complainant to file the claim with the Insurance Company. Accordingly the claim was settled by the Insurance Company for Rs.5,42,158/-. This fact has been deliberately and dishonestly concealed by the Complainant.
11) Thus, it is alleged by the Opposite Party that the Complainant has already recovered the price of the stolen vehicle form the Insurance Company, still the Complainant is claiming the exorbitant amount more than the price of the vehicle and making double profit from this incidence and hence, the complaint deserves to be dismissed with exemplary costs.
12) The Complainant thereafter filed affidavit and evidence and written argument wherein it reiterated the facts mentioned in the complaint. The Complainant also submitted affidavit-in-evidence alongwith one form – Repair order – blank, containing terms 01/06/06 from TATA AIG regarding the settlement of the claim. The Opposite Party also submitted its written submission wherein the facts and point mentioned in its written statement were reiterated.
13) We heard the Ld.Advocates for both the parties and perused the papers submitted by both the parties and our findings are as follows –
The vehicle Quails MH-4-G-3170 was purchased from the Opposite Party by the Complainant. For that purpose the Complainant has taken a loan from HSBC Bank. Within two months of the purchase, the said vehicle, when it was given to Opposite Party for servicing, was stolen from the workshop of the Opposite Party. It has been alleged by the Complainant that due to negligence of the Opposite Party the vehicle was stolen. As per the written statement of the Opposite Party only it is seen that the vehicle was stolen in a day light when it was kept ready for being handed over the Complainant’s authorized person. This certainly indicates that there is negligence on the part of Opposite Party because of that only the vehicle was stolen. The Opposite Party has not mentioned about what precautions it has taken to prevent the theft of the said vehicle. Thus, there is deficiency in service on the part of Opposite Party.
14) From the pleadings of both the parties it is seen that the complaint of theft was given by the Opposite Party only and it has cooperated to get the insurance claim of the vehicle lost. The Complainant has used this vehicle for two months, still it got almost all the price of the vehicle through insurance. The Complainant has not even mentioned about the receipt of this insurance claim in his complaint. It is not disclosed as to when the Complainant has submitted his claim. It is the obligation of the Insurance Company to settle the claim within 30 days of the receipt of the insurance claim from the insured. It is alleged by the Complainant that he had received the insurance amount almost after one year. Therefore, he had to pay the loan installment (interest) to the bank for this period. But, as explained above, it is not known, when the Complainant had submitted the claim and why the Insurance Company took so much time to settle the claim. Therefore, the Opposite Party cannot be held responsible for the interest paid by the Complainant to the bank.
15) The vehicle was stolen from the premises of the Opposite Party and it had not taken proper precautions to guard the said vehicle. Therefore, certainly the Complainant has to make efforts to get the insurance amount. At the same time due to the absence of the vehicle, there must have been inconvenience caused to the Complainant for one year. However, the Complainant has not specifically mention the exact details of the expenses incurred by it on this count. The Complainant has not mentioned as to how many times they had to visit the insurance office to get the claim ? What were the expenses ? Still the Complainant claimed Rs.1,24,250/- towards the conveyance expenses. Similarly the Complainant has also claimed salary of the employees and expenses for visit to Opposite Party. This is nothing but multiple charging for the same expenses which is not acceptable. On the whole, the amounts claimed by the Complainant are vague and exorbitant. In our candid view, an amount of Rs.10,000/- towards the inconvenience caused to the Complainant due to theft of its vehicle and expenses for getting the insured value of the vehicle would be just and proper. The Complainant is also entitled for the reasonable cost of this complaint. The Complainant being the Private Ltd. Company a special entity, as stated by the Ld.Advocate for the Complainant at the time of oral argument, the compensation for mental agony cannot be awarded to the Pvt. Ltd. Company. Therefore, in view of the above observations we pass the following order –
O R D E R
i. Complaint No.127/2004 is partly allowed.
ii Opposite Party is directed to pay an amount of Rs.10,000/-(Rs. Ten Thousand Only) to the Complainant for
causing inconvenience due to deficiency in service as explained in the para 13 & 15 above.
iii.Opposite Party is also directed to pay Rs.5,000/- (Rs. Five Thousand Only) to the Complainant towards the cost
of this complaint.
iv.Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
v.Certified copies of this order be furnished to the parties free of cost.
