BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No. 366 OF 2009 AGAINST C.C.NO.415 OF 2008 DISTRICT CONSUMER FORUM-III HYDERABAD
Between
The Manager, Concorde
Ground Floor, Golden Edifice
Opp: Visweswarayya Statue
Khairatabad Circle, Hyderabad-004
Appellant/opposite party no.2
A N D
1. Shameem Begum W/o Abdul Basith
Age 55 years, occ: Business R/o 1-3-701
Kavadiguda, Hyderabad
Respondent/complainant
2. Tata Motors rep. by its Regional Manager
2nd floor, Surya Towers, C-block, 104,
S.P.Road, Secunderabad-003
3. The New India Assurance Co.Ltd.,
rep. by its Manager, 3-1-2A, Opp:SBH
Habsiguda, Hyderabad-007
Respondents/opposite parties no.1 & 3
Counsel for the Appellant Sri J.Prabhakar
Counsel for the Respondent Sri Mir Zakawat Ali Khan
Counsel for the Respondent No.2 Served
Counsel for the Respondent No.3 Smt I.M.Vani
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
TUESDAY THE TWENTY SEVENTH DAY OF JULY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The appeal is directed against the order of the District Forum-III, Hyderabad in C.C. No.415/08.
The facts of the case as narrated by the complainant are that the complainant purchased Tata Indicab DLE III A/c from the 1st Opposite Party for a consideration of Rs.3,32,137/-. The Opposite Party No.2 has delivered possession of the Car in the month of august 2007. A sum of Rs.15,203/- towards Insurance premium and Rs.455/- towards quarterly tax and Rs.700/- towards handling charges were collected from the complainant. M/s.Sundaram Finance Ltd rendered financial assistance of Rs.2,30,000/- to the complainant an agreement that the amount is payable in 36 equal monthly instalments of Rs.7940/-. The complainant with an intention to earn amount by running the Car on hire, got registered the vehicle with Registration No.AP09-TV-6466 and insured the vehicle with the Opposite Party No.3. On 8.11.2007 the front tyre of the vehicle was burst, as a result of which the driver Syed Bugdad @ Muktha lost control of the vehicle and dashed it against a tree on the left side of the road at Sangeeta Theatre cross roads at Secunderabad. The body of the vehicle was damaged.
The husband of the complainant lodged the complaint before the Police, Gopalapuram Police Station. The Police issued a Challan of Rs.300/- under section 41 (1) of City Policy Act. The complainant incurred Rs.1,600/- for toeing the vehicle to the workshop of the Opposite Party No.2. The Opposite Party No.2 informed the complainant that due to the faulty tyre, the accident occurred and issued pre Job card. Further, it is stated that the Opposite party No.2 assured the complainant that the damages are covered by the Insurance Policy and as such the complainant need not pay any amount towards repairs. The Opposite Party No.2 demanded Rs.65,186/- towards repairs and the complainant refused to pay the amount on the ground that the damages are minor and the vehicle was covered by the Insurance coverage.
The Opposite Party No.2 resisted the claim contending that the claim if any, is between the Insurance Company and the complainant. They had no personal knowledge of occurrence of the accident and bursting of the tyre as also the manner in which the accident occurred. The vehicle was brought to the Opposite Party No.2 in a bad condition. The Opposite Party No.2 has not informed the complaint that the accident occurred due to that bursting of tyre. The Job card dated 13.11.2007 indicates the accident repairs and in contravention of the contents of the Job Card the complainant has filed the complaint with unsupported averments. The Opposite Party No.2 has not informed the complainant that the damages are covered by the Insurance policy.
The repairs of the vehicle were completed on 31.12.2007 and the same was informed on Phone to the complainant as also under letter dated 14.1.2008, 1.2.2008 and 18.3.2008. The complainant failed to take back the vehicle and make payment to the Opposite Party No.2. The Opposite Party No.2 got issued notice dated 25.2.2008 requesting the complainant to pay the bill amount and demurrage charges, parking charges at Rs.200/- per day from 31.12.2007 and take back the vehicle. The repairs were carried out on the specific instruction of the complainant. The vehicle suffered damages on account of the accident in which event the warranty provided by the manufacturer is not covered. The address given by the complainant in the complaint is not correct and the complainant is not residing at the given address. The Notice and letters sent to that address by the Opposite Party No.2 had been returned with an endorsement, “no such addressee”.
The cost of the repairs is Rs.1,69,886/-. Demurrage charges @ Rs.200/- per day from 31.12.2007 to 28.7.2008 are Rs.42,000/-. The Insurance company, the Opposite Party No.3 has paid Rs.1,05,000/-. The balance amount to be paid is Rs.1,06,886/-. The Opposite Party No.2 is ready to handover the vehicle to the complainant provided she makes payment of Rs.1,06,886/-.
The Opposite Party No.1 has contended by filing counter that the complainant is not a Consumer within the meaning of Section 2(1) (d) of the C.P.Act as the complainant had purchased the vehicle for commercial purpose. The warranty period of the vehicle was seized as the vehicle met with an accident. The complainant has not filed any statement of account and she has not made out any case against the Opposite Party No.1.
The Opposite Party No.3 contended that it had appointed a Surveyor who submitted report on 7.1.2008 assessing the loss at Rs.1,10,732.23. The claim was settled and cheque bearing No.611117, dated 14.6.2008 for a sum of Rs.1,04,700/- was sent to the 2nd Opposite party and receipt of the cheque was acknowledged by the 2nd Opposite party.
The complainant has filed documents marked as Ex.A1 to A15. On behalf of the Opposite parties Exs. B1 to B3 had been marked.
The District Forum has allowed the complaint, wherein a direction was issued against the Opposite Party No.2 to pay an amount of Rs.80,000/- towards compensation to the complainant and Rs.10,000/- to be paid by the Opposite Party No.3. It was observed in the Order that the Car was handedover to the complainant as per the orders in IA 2/08.
Feeling aggrieved by the Order of the District Forum, the Opposite Party No.2 has filed the Appeal contending that the Driver at the time of the accident was not holding License. The vehicle was purchased under Taxi quota and not for personal use. As such, the complainant is not a consumer. The Surveyor has finalized the assessment in the month of June 2008 for a sum of Rs.1,10,732/- and the payment was made in the month of March, 2008. The Opposite Party No.2 was not under obligation to release the vehicle prior there to. Exs.B2 & B3, Letter and Claim disbursement voucher respectively have to be considered in the light of the Surveyor’s report, which does not cover plastic and glass parts.
Point for consideration is whether the impugned order suffers from mis-appreciation of fact or law ?
The purchase of the Tata Indicab DLE III by the complainant from the Opposite Party No.1 for a consideration of Rs.3,32,137/- is not disputed. The occurrence of accident and consequent repairs taken up by the Opposite Party No.2 are also not in dispute. The accident was occurred on 8.11.2007. The next day the vehicle was towed to the Opposite Party No.2 for carrying out the repairs. The Surveyor appointed by the Opposite Party No.3 assessed the loss at Rs.1,10,732/-. The Opposite Party No.3 approved the claim of the complainant to an extent of Rs.1,04,700/-.
We do not propose to venture into the aspect of the maintainability of the complaint for the reason that the Opposite Party No.2, who had come in Appeal contending that the complainant is not a Consumer on account of purchase of the vehicle for commercial purpose, has received the amount of Rs.1,04,700/- on 4.3.2008 paid by the Opposite Party No.3, in view of the Insurance coverage of the vehicle. Coming to the aspect of direction that the Opposite Party No.2 pay Rs.80,000/- towards compensation to the complainant, we are unable to understand how the District Forum has come to such a conclusion when the matter of contract between the Opposite Party No.3 and the complainant was not settled till the month of March, 2008. Any delay caused on account of settlement of the claim of the complainant by the Opposite Party No.3 cannot be made a ground for imposing liability on the Opposite Party No.2, who is a repairer and by virtue of the contract to undertake the repairs, the Opposite Party No.2 is entitled to the cost of the repairs.
The Opposite Party No.3 has settled the claim and paid the amount of Rs.1,04700/- and inspite of the Settlement of the claim, an amount of Rs.10,000/- was awarded as compensation against Opposite Party No.3. We do not propose to interfere with this direction against the Opposite Party No.3, as the Opposite Party No.3 has not chosen to challenge the impugned Order.
Taking into consideration of the repairs undertaken by the Opposite Party No.2 and the undertaking executed by the complainant in IA 232/08, we are inclined to allow the Appeal. The amount of Rs.10,000/- awarded as compensation against the Opposite Party No.3 is payable to the Opposite Party No.2 but not to the complainant. The complainant is liable to pay the balance amount due to the Opposite Party No.2.
In the result the Appeal is allowed. The order dated 9.3.2009 passed by the District Forum is modified. The Opposite Party No.3 is directed to pay a sum of Rs.10,000/- to the Opposite Party No.2. The complaint against Opposite Party No.2 is dismissed. There shall be no order as to costs.
MEMBER
MEMBER
Dt.27.07.2010
KMK*
