Complainant Prem Kumar has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) to seek a direction to the opposite parties to pay Rs.10,00,000/- on account of deficiency in services on the part of the opposite party and damages caused thereby to him alongwith interest @ 18% PA from the date of filing the complaint till its realization, in the interest of justice.
2. The case of the complainant in brief is that complainant due to his ill health appointed his son Sh.Sourav Mehra as his Special Attorney for presenting/filing and perusing the present complaint on his behalf to do all the needful in connection with the present complaint. He has further pleaded that he is a registered and lawful owner of car having registration No.HP-47-8786 having model of 2013, which he has purchased vide bill, invoice no.1 dated 17.04.2013 for Rs.9,26,207/- in his name after raising loan from the HDFC Bank, Dalhousie District Chamba. He had given his car Volkswagen Vento No.HP-47-8786 for the repair of AC on 21.06.2016 at M/s.C.P.L. Cars Private Limited. His car remained in the custody and possession of the opposite party no.1 for the purpose of repair. On 1.07.2016 his son came to know that his car met with an accident on Pathankot Jalandhar, Byepass Road, at Pathankot. This information was given to his son by one of his friend. His son went to the opposite parties agency at Pathankot and the Manager of the agency negotiated the matter and later on resiled from the same. Earlier the opposite party agreed that they will pay the price of the car if so purchased by him of the same model at his own and will also bear the expenses for transfer of that car in his name alongwith insurance and in returns he requires to pay the amount of accidental car which he will receive from the Insurance Company against loss of car. Lateron the opposite parties resiled from that negotiation. He suffered loss due to wrongful acts committed by the opposite parties as well as the deficiency in the service on the part of opposite parties. He has further pleaded that due to the accident of his car, he hired the taxies on 30.06.2016, 04.07.2016, 11.08,2016, 15.07.2016 for taking examination her daughter-in-law on B.Ed 2nd Semester at Jammu from Dalhousie to Jammu and paid Rs.27,000/- as charges for the same. Due to the accident of his car he had to hire taxies for his personal use on 24.06.2016, 06.07.2016, 13.07.2016 and paid Rs.17,350/- for the same. He suffered mental agony and loss due to the negligence on the part of the opposite parties to the extent of Rs.50,000/- each which the opposite parties are required to compensate him. On account of the accident the claim petition under motor vehicle act has been filed against him in the court of MACT, Pathankot and he paid legal fees to his counsel for defending the same alongwith mental agony for which he is entitled for Rs.50,000/-. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed the written reply submitting therein that the complainant came to the workshop with a Car vento Comfortline Candey White, Model 2013 bearing R.C. No.HP-47-8786 owned by him, with faults that the AC was not working property and engine light was blinking. While checking the vehicle it was found that there is a major fault in the AC wiring and some time was likely to be taken. The complete fault of A.C. and engine of the vehicle was removed. The vehicle was ready for delivery, before 1.07.2016. The service manager of the opposite party no.1 communicated to the complainant telephonically after completion of job order and requested him to take delivery of the vehicle. The complainant failed to collect earlier and requested that he will receive the vehicle on 2.7.2017, but he did not come and therefore the bill was not prepared, as the bill was to be prepared in the presence of the complainant, as per his instructions. The complainant failed to collect the repaired vehicle in time, as he was not in a position to pay the bill. The opposite party no.2 unauthorizedly took the vehicle outside the workshop, without taking consent or permission of owner of the workshop at the pretext of trial of the vehicle and unfortunately the vehicle met with an accident and two persons died. The FIR was registered against the opposite party no.2. It was further submitted that the negotiations took place between the complainant and the opposite party no.1 but it could not be succeeded due to non co-operative attitude of the complainant. Earlier opposite party no.1 agreed to pay the price of the car, if so purchased by the complainant of the same model at his own or that will also bear the expenses for transfer of that car in the name of the complainant alongwith insurance but the complainant refused and wanted new car of current model or the price of the car of new model. There was no question of giving new car of current model and the complainant can claim the car of same model or price equal to the price of model of his car. All other pleadings made in the complaint have been denied.
4. Upon notice, the OP no.2 filed the written version through its counsel taking the preliminary objections that the complaint is not maintainable in the legal form; the opposite party no.2 has no concern with accident in any manner; there is contract between the complainant and opposite party no.2, so the complainant is never consumer under the definition of Consumer Protection Act, therefore the complaint is required to be dismissed. On merits, it was denied that the son of complainant came to know that their Car have met with accident at Pathankot-Jalandhar Bye Pass Road at Pathankot. It was again denied that information was given by his friend and confirmed by Hemraj employee of opposite party no.2 and the car of the complainant was driven by opposite party no.2 after closing hours of the agency in authorized manner and the opposite party no.2 have no concern with alleged accident in any manner and he was falsely implicated later on the false FIR. All other pleadings made in the complaint have been denied.
5. Sourav Mehra son of Prem Kumar Special Attorney of complainant tendered into evidence his own affidavit Ex.CW1/A alongwith other documents Ex.C-1 to C-22 and closed the evidence.
6. Sh.Madhu Sooden, Manager of opposite party no.1 tendered into evidence his own affidavit Ex.OP1/1 and closed the evidence.
7. Sh.Mandeep Saini of opposite party no.2 tendered into evidence his own affidavit Ex.OP-2/1 and closed the evidence.
8. We have carefully examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present complainant and the opposite party litigants while (at the same time) taking the due judicial-notice of the fact that relief has been mainly sought against the titled opposite party vendor workshop and its employee only .
9. We find that the present dispute/complaint has arisen as a result of the alleged accident by the opposite party no 2 who as per the complainant and the opposite party no 1 had unauthorizedly taken the vehicle on the road for a test-ride and thereby got stuck in an accident causing death to two persons, serious injuries to other(s) and total loss to the vehicle. However, the OP 2 has denied all these allegations in his written reply and also in his affidavit and with no information/evidence available as to the current status of the post-accident litigation etc we are forced to proceed with the consumer complaint, in isolation, sans notice and knowledge of the prime and other collateral legal proceedings. Moreover, the complainant’s allegation that the opposite party has backed out of the ‘compensation/compromise agreement’ does not fall within the purview of the consumer complaint as per the applicable statute and thus the same cannot be put on trial, here.
10. From the pleadings and evidence on record we find that opposite party No.1 has admitted in its reply that his employee i.e. opposite party No.2 unauthorisedly took the vehicle outside the workshop without consent and unfortunately the vehicle met with an accident. However, opposite party No.1 offered to pay the price of the vehicle as per market value of the said model of the car to the complainant but the complainant was asking for the price of the new car of current model. We observe that the complainant has suffered a lot of inconvenience and harassment at the hands of opposite parties No.1 and 2. He had to hire taxies for taking examination of her daughter-in-law at Jammu from Dalhousie and for personal use on many occasions. He further has alleged to have hired a lawyer at Pathankot to defend him in a MACT case for no fault on his part. We are of the considered opinion that the complainant rightly seeks ‘compensation’ at the hands of the opposite party 1 vendor workshop.
11. In the light of the all above and in view of the admitted case of negligence/deficiency in service on the part of OP 1 we observe that the complainant has successfully proved on record a serious infringement of his consumer rights at the hands of the opposite party no1 who was duty bound both professionally and as well as morally for the security and safety of the vehicle delivered/handed over for repairs. Hence we partly allow the complaint and direct the opposite party No.1 to pay the depreciated value of the car (deduction at the rate of 15% only) i.e. 15% of Rs.9,26,207/- be deducted and rest of the payable amount be paid to the complainant besides this opposite party No.1 is further directed to pay Rs.50,000/- in lump sum for the inconvenience, harassment and uncalled for litigations imposed upon the complainant as compensation and for litigation cost within 30 days from the receipt of copy of orders failing which opposite party No.1 will pay the payable amount with interest @ 9% PA from the date of filing of this complaint till payment. The complainant is also directed to hand over relevant documents of the vehicle to the Opposite No. 1 to get the vehicle released. The opposite party No.1 will bear the expenses for release/transfer of vehicle and insurance from their own pocket.
12. Copy of the order be communicated to the parties free of charges. File is ordered to be consigned to the record room.
(Naveen Puri)
President
ANNOUNCED: (Jagdeep Kaur)
July, 12 2017. Member.
*MK*
