BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 60/2010 Filed on 23.02.2010

ORDER DATED: 08.02.2017

Complainant:

Sivadas, Latha Bhavan, T.C 29/502, Kavaradi Road, Pettah, Thiruvananthapuram.

                                       (By Adv. Anil.S)                        

Opposite parties:

1. M/s Ford India Pvt. Ltd., S.P. Koil Post, Chengalpattu-603 204.

(By Adv. V.K. Mohan Kumar)

2. The Director Operation, M/s Kerala Cars Pvt. Ltd., MGF House, Willington Island, Matsyapur P.O, Kochi-682 029.

3. M/s Kairali Ford, M.G. Building, Vallakkadavu P.O, Thiruvananthapuram-695 008.

(By Adv. S. Reghukumar for 2^nd & 3^rd O.P)

4. The New India Assurance Co. Ltd., Divisional Office, Kottakkal Arya Vaidya Sala, Building, M.G. Road, Ernakulam, Kochi-682 016.

                                (By Adv. M. Nizamudeen)

This C.C having been heard on 26.12.2016, the Forum on 08.02.2017 delivered the following:

ORDER

SMT. LIJU B. NAIR:  MEMBER

Case of the complainant is as follows:  Complainant purchased a ford Fiesta car bearing Reg. No. KL 01 AU 1895 on 14.11.2008 from the 1^st opposite party through their agent 3^rd opposite party.  Complainant purchased the above vehicle for an amount of Rs. 7,15,136/- with financial assistance of M/s Magna Fin Corporation Ltd., Thiruvananthapuram. On 31.03.2009 the said vehicle collided with a tanker lorry at Pathamkallu, near Neyyattinkara and the matter was informed to the Neyyattinkara police station and made entry in the General Diary and the vehicle was handed over to the 3^rd opposite party for repair on the same day.  The 3^rd opposite party agreed to deliver the vehicle after repair within three weeks.  But they did not deliver the vehicle within the specified time, nevertheless the complainant waited for one more week (i.e: up to one month).  Being a business man, the complainant was badly in need of a vehicle for the smooth running of his business.  Due to the inordinate delay caused by the 3^rd opposite party, the complainant requested to provide an alternative vehicle for his conveyance.  The 3^rd opposite party neither delivered nor arranged an alternative vehicle.  Hence the complainant was forced to take a rented car for his daily conveyance on daily rent @ Rs. 750/- per day till the delivery of the said vehicle, after 90 days from the date of delivery agreed upon.  Due to the irresponsible and negligent act of the 3^rd opposite party the complainant has suffered huge financial loss of Rs. 67,500/- and mental agony.  On 22.07.2009 the 3^rd opposite party issued a bill for Rs. 3,29,704/- towards repairing charges.  The said amount was not paid by the complainant as it was paid by the insurance company.  Again on 27^th July 2009, the 3^rd opposite party issued another bill for Rs. 76,730/-and bills for Rs. 3,240/- saying that the complainant should pay the total amount of Rs. 80,000/-for getting the vehicle delivered.  The claim of the 3^rd opposite party was illegal, unjust and without any bonafides.  The 3^rd opposite party, thus forced the complainant to pay an amount of Rs. 80,000/- for the delivery of the vehicle which the complainant did in protest, even though the vehicle had comprehensive insurance and vehicle warranty provided by the 1^st opposite party for one year.  The accident occurred during the coverage of insurance and warranty period.  The above said acts of the opposite parties have caused much mental agony and hardship to the complainant and is a clear case of deficiency of service and unfair trade practice.  The complainant is entitled to recover from the 3^rd opposite party, the amount received from the complainant unjustly and without any bonafides.  Further the complainant is allowed to recover the amount spent by him towards hiring charges for vehicle hired by the delay in delivering the vehicle after repair.  The complainant has no other remedy except to approach this Forum and the complainant is entitled to get Rs. 80,000/- and also entitled to get compensation of Rs. 67,500/- i.e; hiring charges for 90 days for the delay in repairing the said vehicle and compensation Rs. 2,00,000/- for mental agony.        

1^st opposite party filed version contending as follows:  It is not denied that the car was directly purchased by the complainant from 3^rd opposite party which bears the Reg. No. KL-01 AU 1895.  However, it is vehemently denied that the car was either purchased from or through the manufacturer i.e; 1^st opposite party.  It is denied that 2^nd opposite party is an authorized dealer and statement about the 4^th opposite party can be only ratified by the 4^th opposite party itself therefore needs no reply from the 1^st opposite party.  It is pertinent to mention that once the vehicle met with an accident with a tanker lorry at Pathamkallu near Neyyattinkara, the warranty is over as per the sales contract and thereafter impleading the manufacturer is totally uncalled for.  It is denied that the 3^rd opposite party agreed to deliver the vehicle within three weeks so delivering a vehicle in such time frame is uncalled for.  Moreover, the complainant has not put anything on record to prove such allegations, therefore complainant be put to strict proof for the same.  Complainant being a businessman does fall under the category of consumer therefore complainant is crying foul for the need of vehicle for the smooth functioning of business.  It is denied that there was any inordinate delay on the part of 3^rd opposite party.  The hiring of daily conveyance by the complainant is his personal affair and no liability falls on the opposite parties since there is no down time agreement between the parties.  Moreover, accident is an even which is beyond the control of opposite parties and damage done to vehicle cannot be ascertained by any dealer as a routine repair job.  Therefore the repair work on a vehicle damaged in the accident can never have a fixed time frame.  However it is pertinent to mention that warranty stands over in the case of accident and the same has been enumerated in the sales contract.  Since the opposite parties have principal to principal relationship therefore manufacturer can only be impleaded in the case where there is any manufacturing defect.  Therefore question of mental agony and hardship does not arise on the part of 1^st opposite party since the services were provided by 3^rd opposite party. 

Opposite parties 2 & 3 filed version contending as follows: It is admitted that complainant had purchased a Ford Fiesta car from 3^rd opposite party.  The date of purchase etc. are matters of records, the originals of which are in the custody of the complainant.  The 2^nd opposite party is shown as the Director-Operations of M/s Kerala Cars Private Ltd.  Kerala Cars (P) Ltd. is the authorized dealer-cum-service centre of the 1^st opposite party at Ernakulam.  It is submitted that the Director-Operations is only an officer of M/s Kerala Cars Pvt.ltd. and has no direct relationship with the complainant whatsoever.  The transaction of the complainant was with M/s Kerala Cars (P) Ltd., a company registered under the Companies Act and the complainant is only a customer of the company.  The 3^rd opposite party, is the brand name of the branch of the 2^nd opposite party at Trivandrum.  The 3^rd opposite party is also the authorized dealer-cum-service centre of the 1^st opposite party at Trivandrum.  The date of purchase of the vehicle, the invoice value of the same and the financial assistance of M/s Magna Fin Corporation Ltd., Trivandrum etc. are matters of records and the said facts and records that are best known to the complainant and the related documents are in his custody.  It is understood from the information given to these opposite parties by the complainant that his vehicle collided with a tanker lorry on 31.03.2009.  The averments regarding the information made to the Neyyattinkara police station and the entries in the General Diary are information best known to the complainant of which the opposite parties have no information at all.  It is admitted that the vehicle was entrusted with the 3^rd opposite party for repair.  However the vehicle was entrusted for repairs with the 3^rd opposite party on 04.05.2009 and not on 31.03.2009 as alleged in the complaint.  It is incorrect and denied that the 3^rd opposite party had agreed to deliver the vehicle after repairs within 3 weeks.  The vehicle was brought for major accident repair and was in a very bad condition consequent to the collusion with the tanker lorry.  In view of the same, the opposite parties could not give any assurance with regard to delivery time of the complainant’s vehicle.  The averments to contrary in the complaint are vehemently denied.  However it is submitted that, if at all any delivery date is given to the complainant, the same is only an expected/approximate date within which the opposite parties expects the vehicle to be delivered after repair and the same is subject to various factors like availability of spare parts, payments made by the complainant or his insurer as the case may be or the approval of the insurer to start the work if the vehicle is covered under insurance policy.  Moreover, if there is any delay in the payment or approval for replacement of any parts from the insurer, the delivery would also be delayed on the said counts.  It is pertinent to note that the complainant has admitted in the complaint that he being a business man was using the vehicle for the smooth running of his business.  In view of the above said admission made by the complainant, that he was using his vehicle for commercial purposes, it is submitted that the complaint itself is not maintainable before this Forum as the complainant is not a consumer as defined under the Consumer protection Act since he is using his vehicle for commercial/business purpose.  The complaint ought to be dismissed on this count alone.  There is no willful delay, negligence or latches in delivery of the vehicle back to the complainant after repairs.  It is denied that the complainant requested the 3^rd opposite party to provide him with an alternate vehicle for his conveyance.  It is submitted that the opposite parties are not under any obligations to provide or arrange for any alternate vehicle to the complainant or any other customers who bring their vehicle for accident repairs.  The averment that the complainant took a rented card for his daily conveyance by spending Rs. 750/- per day till the delivery of his vehicle by the opposite parties after repairs is absolutely false and vehemently denied.  In any event the opposite parties herein are not in any way responsible for the alleged availing of rented cars by the complainant.  The opposite parties are also not liable for any payments whatsoever allegedly made by the complainant for the alleged rented cars.  The said false allegations are made on false premises for gaining undue monitory benefits from the opposite parties.  It is trite law that opposite parties are not liable for consequential damages whatsoever allegedly caused to the complainant.  There is no negligence or irresponsibility shown by the 3^rd opposite party as alleged.  Similarly the complainant has not suffered any financial loss of Rs. 67,500/- or any other amounts whatsoever on the above said account.  Neither has he suffered any mental agony as alleged.  It is made clear that the accident repair works in the complainant’s vehicle was carried out under the specific instructions of the complainant and his insurer and on the assurance that all payments for such works will be made before taking delivery of the vehicle.  It is admitted that the 3^rd opposite party had on 22.07.2009 issued a invoice for Rs. 3,29,704/- for Repair Order bearing No. ROAB900582OA to the complainant towards accident repair charges.  The accident repair was carried out as instructed by the complainant under the cover of the insurance policy.  However, the payments are to be made either by the complainant or his insurance company as and when the bills are submitted to the complainant.  It is denied that the 3^rd opposite party had issued other bills for Rs. 76,730/- on 27.07.2009 and yet another bill for Rs. 3,240/-.  It is true that the complainant had made an advance payment of Rs. 76,730/- for the repair works for which he was issued with a proper receipt bearing No. 1046 dated 20.07.2009 by the opposite parties.  The allegation that there was a separate invoice for Rs. 76,730/- raised by the opposite parties is false and denied.  It is denied that the opposite parties had issued an invoice for Rs. 76,730/- raised by the opposite parties is false and denied.  It is denied that the opposite parties had issued invoice for Rs. 3,240/-.  It is however true that an invoice dated 18.07.2009 was issued by M/s New Bharat tyres towards cost of one tyre purchased by the complainant for his vehicle.  The invoice dated 22.07.2009 for Rs. 3,29,704/- was raised by the 3^rd opposite party for having undertaken the accident repairs and for replacement of the parts of the vehicle which had to be repaired/replaced consequent to the serious damage to the vehicle parts due to the major accident including labour and service charges. The vehicle was delivered to the complainant after repairs on 22.07.2009.  There is no illegality, injustice or malafides on the part of the 2^nd & 3^rd opposite parties as alleged by the complainant.  Without prejudice to the above it is submitted that the total invoice value for the repairs was Rs. 3,29,704/-.  The depreciation amount for the above said bill amount was Rs. 76,730/-.  Since the insurer of the complainant would not pay the said amount the same was paid by the complainant as advance on 20.07.2009 and a proper receipt issued to the complainant.  The amount received from the insurance company of the complainant was only Rs. 2,43,600/-. The said amount was received by cheque No. 159554 dated 26.08.2009.  The invoice for Rs. 3,240/- for the tyre purchased for the complainant was raised by the seller of the tyre and the said payment was initially made by the opposite parties herein.  Thereafter the complainant had made the payment of Rs. 3,240/- to the opposite parties.  The total amount thus received towards the invoice raised by the opposite parties were only Rs. 3,20,330/-.  The total amounts received from the complainant in all was Rs. 3,23,570/-, the split up being Rs. 76,730/- (paid as advance by complainant) + 2,43,600/- (paid by insurance company) + 3,240/- (paid by complainant towards cost of tyre ) for the same.   There was a shortage/deficit of Rs. 9,374/-.  The said amount was not paid to the opposite parties by the complainant.  The delivery of the vehicle was given to the complainant on 22.07.2009 even though there was an outstanding amount of Rs. 9,374/- due to the opposite parties from the complainant towards the repair charges.  The complainant promised to pay the said amounts within 2 weeks from the date of delivery.  Since the payments were not received the complainant was informed that the opposite parties would take legal action against the complainant.  The complainant thereafter contacted the opposite parties and requested the opposite parties to waive the outstanding amounts and also to provide him with further discount/concession in the bill as he had raised the amount of Rs. 76,730/- by pledging his wife’s gold ornaments and that he cannot raise any further amount to pay the outstanding dues.  The opposite parties after considering his request waived the outstanding amount of Rs. 9,374/- and further returned him an amount of Rs. 13,082/- on 26.10.2009 from the amounts already collected from him.  This was in addition to the amount of Rs. 9,374/- payable by him that remained as outstanding dues.  Thus an amount of Rs. 22,456/- was discounted from the invoice amount of Rs. 3,29,704/-.  The opposite parties had offered the said reduction to the complainant as a goodwill measure especially in view of the financial constraints as highlighted by him to the 2^nd & 3^rd opposite parties. 

4^th opposite party filed version contending as follows:  It is submitted the fort Fiesta car bearing Reg. No. KL-01 AU 1895 owned by the complainant was insured with the 4^th opposite party under tie-up arrangements with M/s Kairali Ford vide policy No. 760700/31/08/01/00004993 for the period from 14.11.2008 to 13.11.2009 for an amount of Rs. 7,15,136/-.  The complainant himself has clearly admitted that 4^th opposite party has paid an amount of Rs. 3,29,704/- to the 3^rd opposite party as the charges of the aforesaid vehicle.  It is submitted that 4^th opposite party is not liable to pay any amount to the complainant and the complainant has impleaded this 4^th opposite party unnecessarily and without any basis.  There is no allegation of deficiency in service whatsoever against 4^th opposite party/insurance company anywhere in the complaint.  The allegations are against the opposite parties 1 to 3, the manufacturers and repairers.  The allegations in the complaint are that besides the amount of Rs. 3,29,704/- towards repair charges, the 3^rd opposite party repairer issued another bill for Rs. 76,730/- and bills for Rs. 3,240/- totaling Rs. 8,000/- saying that the complainant should pay the total amount of Rs. 80,000/- for getting the vehicle delivered.  It is submitted that the bill for Rs. 76,730/- and bills for Rs. 3,240/- if any were issued by the 3^rd opposite party, the same were not issued for repairing any damage caused in the accident.  No claim whatsoever was submitted in respect of repairing any damage caused in the accident covered by bill for Rs. 76,730/- or bills for Rs. 3,240/-.  The complainant himself has no case that he paid the amounts of Rs. 76,730/- and bills for Rs. 3,240/- in respect of any damage caused in the accident.  It is submitted that if the complainant has paid any amount to the 3^rd opposite party in excess of the amount of Rs. 3,29,704/- incurred by the opposite party for repairing the damages caused in the accident, 4^th opposite party is not liable to pay or reimburse the same to the complainant.  4^th opposite party had deputed independent licensed surveyor to assess the loss caused to the insured vehicle belonging to the complainant in the accident and considering his report and the bills submitted for repairing the damages caused to the vehicle in the accident, had sanctioned Rs. 3,29,704/- to the complainant which was accepted by the complainant and repairer 3^rd opposite party in full and final settlement of the complainant’s claim.  Therefore this Forum has no jurisdiction to entertain the complaint against 4^th opposite party and the same is liable to be dismissed as against 4^th opposite party. 

Complainant filed affidavit along with 9 documents which were marked Ext. P1 to P9.  He was examined as PW1.  2^nd & 3^rd opposite party filed affidavit.  Perused the documents and gone through the pleadings of both sides.

Issues raised:

1. Whether there is any deficiency or unfair trade practice is shown by the opposite parties?
2. Whether the complainant is eligible for any relief as prayed for??

Issues (i) & (ii):- The complainant’s case is that he is the owner of Ford Fiesta bearing Reg. No. KL-01 AU 1895 purchased from the 3^rd opposite party for an amount of Rs. 7,15,136/- with financial assistant of M/s Magna Fin Corporation Ltd., Trivandrum.  On 31.03.2009 the said vehicle met with an accident and the said vehicle was handed over to the 3^rd opposite party for repair.  On 22.07.2009 the 3^rd opposite party issued a bill of Rs. 3,29,704/- towards repairing charges and subsequently on 27.07.2009 issued another bill of Rs. 80,000/-, for getting the vehicle delivered to the complainant.  The complainant was forced to pay Rs. 80,000/- to the 3^rd opposite party in protest even though the vehicle had comprehensive insurance and one year warranty provided by the 1^st opposite party and the acts of the opposite parties has caused mental agony and hardships to the complainant amounting to deficiency in service and unfair trade practice.  It is true that the vehicle was insured with the 4^th opposite party and it was sent for repair with the 3^rd opposite party.  An amount of Rs. 3,29,704/- was paid by the 4^th opposite party to the 3^rd opposite as the repairing charges of the aforesaid vehicle.  Complainant alleges that he was forced to pay Rs. 80,000/- in addition to that amount and he claims for refund of the same along with cost and compensation.  In the cross examination by 4^th opposite party, complainant clearly admits that he received Rs. 3,29,704/- as full and final settlement and he had no grievance against 4^th opposite party.  Rs. 80,000/- was asked by the 3^rd opposite party to pay.  Rs. 3,29,704/- was paid by the 4^th opposite party on 22^nd July 2009.  He says that he was asked to pay Rs. 76,730/- along with Rs. 3,240/- cost of replaced tyres on 27^th July 2009.  3^rd opposite party demanded Rs. 80,000/- in total, which he claims to be illegal and unjust.  For finding out the veracity of this allegation, all documents produced by the complainant is to be looked into.  He had produced 9 documents in total which were marked as Exts. P1 to P9.  Ext. P7 & P8 are to be looked in detail.  On going through Ext. P7, it is crystal clear that it is it is receipt of advance payment for Rs. 76,730/- (Seventy six thousand seven hundred and thirty only) dated 20.07.2009.  it is a ‘RECEIPT’ proving advance payment for the invoice No. 582, which is produced and marked by the complainant as Ext. P5.  It is a tax invoice.  Complainant himself produced that receipt.  Ext. P6 is the copy of retail invoice dated 18.07.2009 for Rs. 3,240/-.  He says that he was asked to pay this amount and the bill was issued to him on 27.07.2009 again.  3^rd opposite party vehemently denied this allegation.  They admit that the complainant made an advance payment of Rs. 76,730/- for the repair works for which he was issued with a proper receipt bearing No. 1046 dated 20.07.2009 by the opposite parties.  The allegation that there was a separate invoice for Rs. 76,730/- raised by the opposite parties is false and denied.  It is denied that the opposite parties had issued invoice for Rs. 3,240/-.  It is true that an invoice dated 18.07.2009 was issued by M/s New Bharat tyres towards cost of one tyre purchased by the complainant for his vehicle.  The invoice dated 22.07.2009 for Rs. 3,29,704/- was raised by the 3^rd opposite party for having undertaken the accident repairs and for replacement of the parts of the vehicle which had to be repaired/replaced consequent to the serious damage to the vehicle parts due to the major accident including labour and service charges.  The vehicle was delivered to the complainant after repairs on 22.07.2009.  the total invoice value for the repairs was Rs. 3,29,704/-.  The depreciation amount for the above said bill amount was Rs. 76,730/-.  Since the insurer of the complainant would not pay the said amount, the same was paid by the complainant as advance on 20.07.2009 and a proper receipt was issued to the complainant.  The amount received from the insurance company of the complainant was only Rs. 2,43,600/-. The said amount was received by cheque No. 159554 dated 26.08.2009.  The invoice for Rs. 3,240/- for the tyre purchased for the complainant was raised by the seller of the tyre and the said payment was initially made by the opposite parties herein.  Thereafter the complainant had made the payment of Rs. 3,240/- to the opposite parties.  The total amount thus received towards the invoice raised by the opposite parties were only Rs. 3,20,330/-.  The total amounts received from the complainant in all was Rs. 3,23,570/-, the split up being Rs. 76,730/- (paid as advance by complainant) + 2,43,600/- (paid by insurance company) + 3,240/- (paid by complainant towards cost of tyre) for the same.   Moreover complainant failed to produce even a scrap of paper to prove that 3^rd opposite party demanded Rs. 80,000/- from him.  So the complainant failed miserably to establish his case which is only to be dismissed.

In the result, complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 8^th day of February 2017.

Sd/-

LIJU B. NAIR                        : MEMBER 

 Sd/-

P. SUDHIR                            : PRESIDENT

Sd/-

                        R. SATHI                               : MEMBER

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C.C. No. 60/2010

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - J. Sivadasan

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of R.C Book

P2     - Copy of driving licence

P3     - Copy of insurance certificate

P4     - G.D Extract of Neyyattinkara Police Station

P5(series)- Tax invoice (10 Nos.)

P6     - Copy of retail invoice issued by New Bharath Tyres

P7     - Receipt dated 20.07.2009 for Rs.76,730/-

P8     - Copy of notice dated 15.12.2009 issued to 2^nd O.P

P9     - Acknowledgement card  

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

NIL

                                                                                                      Sd/-

PRESIDENT

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