Adv. For the Complainant: - Sri A.K. Mishra & Others
Adv. For O.P :- Sri A.K. Mohanty & Other
Date of filing of the Case :-12.02.2019
Date of Order :-24.06.2020
JUDGMENT
Sri A.K.Purohit, President
1. The case of the complainant is that, he had purchased a Hundai car from the O.P.1 on dated 23.10.16 for a consideration of Rs. 6,37,680/- bearing registration No. OD-03G-2090 with the financial assistance of SBI, Badmal Branch. By the time of purchase the O.P.1 assured the complainant for after sale service facility. The complainant found some defect in the door of the car on dated 4.5.18 and for repair of the same the complainant took the car to the O.P.1 and after verification the O.P.No.1 opined to shift the car to the O.P.2 for repair, and accordingly while shifting the car to the service center of O.P.2 on dated 6.5.18 the car meet with an accident at Rairakhole while the vehicle was driven by the B.M. of O.P.1 Prasanna Kumar Sahu. To this the O.P.1 reported the accident before the Rairakhole P.S and intimated the complainant. After receipt of the information the complainant lodge a claim application before the Insurance Company and in settlement of the claim the Insurance company paid Rs.3,50,000/- to the complainant towards the loss and damage caused to the accident vehicle of the complainant. According to the complainant by the time of settlement of the insurance claim the O.P.1 promised to pay the sale price of the car after deducting the claim amount. Hence the complainant claim the balance amount of Rs. 2,87,680/- from the O.P.1 but the O.P.1 refused to pay the same. Hence the complaint.
2. Although notice has been served on the O.P.2 neither he appears nor has filed his version and hence he was set experte vide order dated 4.4.19. The O.P. 1 appears on dated 15.3.19 and has did not chose to file his version till 21.11.19 and was set experte vide order dated 21.11.19. While the case was fixed for experte hearing, the O.P.1 on dated 18.3.20. i.e. after one year of his appearance has filed the written version. However for just decision of the case the version of O.P.1 taken into consideration. The O.P.1 admitted the accident of the vehicle and submitted that he being a sub-dealer of O.P.2 he had taken the vehicle to the O.P.2 for service. The O.P.1 denied the complainant allegations to provide a new vehicle in lieu of the used accident vehicle and submitted that the O.P.1 will help the complainant in settlement of the insurance claim. The O.P.1 denied all the allegations of the complainant and claims dismissal of the case.
3. Heard both the parties. Perused the pleadings of the parties and documentary evidence available on record. Purchase of the vehicle has not been disputed. Accident of the vehicle has also not been disputed by the O.P. The complainant has also admitted in his complaint petition that he had received an amount of Rs. 3,50,000/- from the Insurance Company towards his claim for the accident of the vehicle. The same has not been specifically denied by the O.P. With these admitted facts the point for consideration is whether the complainant is entitled to the sale price of the car after deducting the Insurance claim amount from the O.P.
4. Law is well settled that, the O.P. is duty bound to provide service to the complainant. After the accident of the vehicle there is no evidence available on record to show that, the O.P. handed over the vehicle to the complainant with required service and handed over the vehicle to the complainant in a running condition without any defect. Till date the O.P. has not handed over the vehicle to the complainant, for which the complainant is debarred from its use. This negligent act of the O.P. amounts to deficiency in service.
5. For the loss and enjoyment of the car the complainant is entitled to compensation. In several judicial pronouncement it has been held that, compensation may constitute actual loss or expected loss and extends to compensation for physical mental or even emotional suffering, insult or injury or loss. In Acruti Joy Developers versus Shashi Govind Gadakh reported in 2017(3) CPR 75 (NC) the Hon’ble National commission has held that, Consumer Fora is competent to adequately compensate a consumer for injustice suffered by him. Therefore under the aforesaid principle of law the complainant is entitled to the amount as he claimed in his complaint petition. Since the O.P.1 is a sub dealer of O.P.2 both the O.Ps. are jointly liable to pay compensation. Hence ordered:-
ORDER
The O.Ps. are directed to pay Rs.2,87,680/- ( two lakhs eighty-seven thousands and six hundred eighty rupees) to the complainant towards compensation within one month from the date of receipt of this order, failing which the amount shall bear an interest @ 10% per annum till payment. There shall be no order as to cost.
Accordingly the case is disposed of.
Pronounced in the open Forum to-day the 24th day of June 2020.
Sd/- Sd/-
(S.Rath) (A.K.Purohit)
MEMBER. PRESIDENT
