JUDGMENT 19.11.2010 Justice Pritam Pal, President 1. This appeal by M/s Dynamic Motors one of the Opposite parties is directed against the order dated 6.5.2008 passed by District Consumer Forum-I, U.T. Chandigarh whereby complaint bearing No.982 of 2007 of respondent No.1/complainant was allowed with costs of Rs.5500/- and appellant/OP No.1 was directed not to charge any parking charges from the complainant and settle the issue on its making payment of the depreciated amount of Rs.99,530/-. OP No.1 was also directed to pay Rs.10,000/- as compensation to the complainant towards harassment and mental agony suffered by him due to deficient service and unfair trade practice. The order was directed to be complied with within 30 days from the date of receipt of the copy of the order, failing which OP NO.1 was made liable to pay penal interest @ 12% p.a. from the date of complaint i.e. 16.11.2007 till actual realization. However, 14 days parking charges amounting to Rs.2800/- deposited by OP NO.1 with the Forum vide Account Payee Cheque were ordered to be adjusted by OP No.1 while settling the accounts as per order. 2. The parties hereinafter shall be referred to as per their status before the District Forum. 3. In nutshell the facts as set out in the complaint are that the Complainant firm purchased a new Chevrolet Optra Magnum, TCDI motor car vide invoice dated 12.08.2007 bearing registration No.CH04-9898 from OP No.1 which met with an accident on 26.9.2007 near Karnal and the matter was reported to the service personnel, but they refused to help the Complainant and instructed him to take the vehicle to OP No.1 being the main dealer of OP No.2 as the dealer at Karnal would not be able to repair the vehicle in question immediately. On inspection of the vehicle on 27.9.2007, after dismantling the damaged parts, the vehicle was retained by OP No.1 with an assurance to give the delivery within 10 days from 27.9.2007 but the same was not delivered despite repeated visits and requests made by the complainant even till the date of filing of the complaint. Thus, due to deficient service of OPs, the Complainant had to undergo a great hardship, inconvenience and financial loss as he had to hire taxi service for commuting from various places which was @ Rs.2000/- per day commencing with effect from 12.10.2007. Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Forum. 4. On the other hand, case of OP NO.1 before the District Forum was that the Complainant approached it on 27.9.2007 for repair of its accidental Car and OP No.1 before undertaking to repair the vehicle had made it clear that the Complainant would have to pay the amount of depreciation i.e. the difference of the bill raised and the amount to be received from the Insurance Company. It was also informed that the depreciation amount approximately Rs.1.5 lacs which could be lesser or higher after the final inspection by Surveyor would have to be paid in advance by the Complainant before the start of repair as the total cost of repair estimated was to exceed Rs.3.00 lacs. The complainant was asked to take the delivery of car on 15.10.2007 subject to its depositing the depreciation amount in advance. Thereafter, the estimate of the repair was made by visual examination of the vehicle in question on 28.9.2007 and the insurance company was informed about the damage to the car, which in turn deputed a Surveyor who checked the vehicle and the estimates on 30.9.2007 and also instructed to carry out the repairs on the vehicle in question. However, the work to carry out the repairs could not be started as the Complainant had not deposited the depreciation amount as promised by him inspite of various reminders on telephone. It was pleaded that on 8.10.2007 the Complainant approached OP No.1 and requested that he may be allowed to deposit the amount of depreciation at the time of taking delivery of his car and it agreed to carry out the repair as a goodwill gesture only on the condition that complainant would have to deposit the amount before taking the delivery. Thus, on 8.10.2007, the repair work on the vehicle in question started which was completed on 12.11.2007. When the vehicle became ready after inspection by Insurance Company, the Complainant was asked to take the delivery of his vehicle after depositing Rs.1,06,000/- out of the total bill of Rs.3,21,000/- which was the amount to be paid by Complainant after adjusting the insurance amount of Rs.2,15,000/- to be received from the insurance company. However, the Complainant insisted on taking the delivery of car without payment of any amount on the ground that nothing was payable as he had got the vehicle fully insured and threatened to approach the courts for taking the delivery without paying any amount. As the Complainant was not coming forward to take delivery of the vehicle, so letter dated 13.11.2007 was sent to it for taking delivery of the vehicle after paying the depreciation amount but no body turned up on behalf of complainant to take delivery of the vehicle. Then another letter dated 23.11.2007 was sent to the complainant to take the delivery after paying the depreciation amount, failing which the parking fee of Rs.200/- per day shall be charged. The Complainant was further reminded to take the delivery of the car vide letter dated 27.11.2007. Still the Complainant had not taken the delivery and had created false grounds to claim compensation. 5. OP No.2 also filed its reply before the District Forum inter-alia stating therein that the relationship of OP No.2 and OP No.1 was that of principal to principal and there was no privity of contract between the Complainant and the OP No.2. As per the settled practice and also as per the agreement, the carrying out of repair was within the sole domain of the OP No.1 and as a gesture of goodwill, OP No.2 may provide assistance in case a request was made. Even as per the case of the Complainant, E-mail was given to OP No.2 on 7.11.2007, which was quickly responded to and the Car was duly repaired which was surveyed by the surveyor of Insurance company on 13.11.2007. It was pleaded that despite repeated reminders of OP NO.1, the Complainant did not chose to take delivery of his car. 6. The learned District Forum after going through the evidence and hearing the learned counsel for the parties allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved, OP No.1 has come up in this appeal. 7. When the case was taken up for hearing arguments, none was present on behalf of the appellant/OP No.1 as well as respondent No.1/complainant. We have heard learned counsel for respondent NO.2 and gone through the file carefully. The main point urged in grounds of appeal is that the complainant at the time of giving its vehicle for repair had agreed to pay the parking charges @ Rs.200/- per day in case the vehicle was not removed from the workshop within seven days from the date his vehicle was ready for delivery. The complainant did not take the delivery of the vehicle after its repair despite letters annexures R-1/1, R-1/2, R-1/3 and R-1/7 sent by OP NO.1 in that regard and as such complainant was liable to pay parking charges. The other ground taken was that the complaint was not maintainable as complainant was a private limited firm which had purchased the vehicle in question for commercial purpose for the betterment of its business. Further, the insurance company was not impleaded which was a necessary party for proper adjudication of the complaint. 8. There is no denying the fact that the accidental car of the complainant was repaired by OP NO.1 and it was agreed between the parties that the depreciation amount i.e the difference of the bill raised and the amount to be received from the insurance was to be paid by the complainant. Thus, as agreed between the parties it was the OP No.1 which was to get the claim amount from the insurance company under the policy with regard to the damage to the vehicle in question and as such insurance company was not a necessary party as the dispute was not with regard to the insurance amount received from the Insurance company whereas it was between the complainant and OP NO.1 with regard to the parking charges etc. It is admitted case of OP NO.1 that the repair work on the vehicle was started on 8.10.2007 and due to technical reasons it could not be completed within the stipulated period and the vehicle became ready on 12.11.2007 and final survey was conducted on 13.11.2007. However, another surveyor appointed by the insurance company submitted his report on 31.12.2007. Further, OP No.1 was not entitled to charge parking charges for 14 days as per statement made by its counsel before the District Forum which period was granted to it for filing reply to the complaint. The learned District Forum rightly observed that the complainant was not liable to pay the parking charges as it was never settled or agreed to between the parties at the time when the accidental car was given to OP No.1 for repairs and as such OP NO.1 had no right to charge the parking charges. Any unilateral or arbitrary decision taken by OP No.1 at its own did not bind the complainant to pay parking charges. 9. With regard to the maintainability of the complaint, the learned District Forum rightly observed that as the vehicle was purchased by the complainant company for personal use of its Director and was not being used for any activity directly connected with the commercial purpose of earning profit, so complaint filed by complainant firm was maintainable as the car was not being used for any commercial purpose. 10. In view of the above discussion, we are of the opinion that there is nothing wrong in the impugned order passed by the learned District Forum. Thus, the appeal being without any merit is hereby dismissed leaving the parties to bear their own costs . Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
