This appeal is preferred against the Final Order and Judgment dated 13.10. 2020 delivered by Ld. DCDRF, Coochbehar in CC No. 11 of 2017.
One Prang Bind Roy filed the instant consumer complaint on 06.04.2017 against OP. M/S MAA Durga Transmotives. The case was contested by the OP and the said consumer complaint was allowed in favour of the Complainant. The complainant did not agree with the order and award passed by the Ld. Forum. So, this appeal.
The case, in nutshell is that the Complainant, who is a businessman, had purchased one Luxury Car being Model No. ICML Extreme LD, BS3 of International Cars & Motors Ltd. from the OP at a price of Rs.7,64,216/- on road which was financed by Bank of India, Cooch Behar Branch, to which the said vehicle was hypothecated. Later, he got the said vehicle insured with the National Insurance Co. Ltd. and also duly registered bearing No. WB-64-J-9036 having Engine No. G1408514B07515 and Chassis No. MCLSAGIWPRB008852. The OP had assured the Complainant that they would render proper service in respect of the said vehicle. In the month of July, 2015, the said vehicle met with an accident, in which major damage was caused to the vehicle. The said vehicle was taken to the OP who was also an authorized Service Centre of the Maker of the vehicle. On examination of the vehicle on 22.03.16, the OP issued an estimate of Rs.3,72,819.20/- for repair of the vehicle. However, before the estimate was issued the Complainant paid an advance of Rs.58,000/- by paying different sums on three occasions towards the cost of repair of the vehicle, for which money receipts were issued by the OP. According to the Complainant, the OP' promised to return the vehicle within 2 months. However, even after expiry of the stipulated period, the OP did not return the vehicle despite repeated requests and ultimately, the Complainant filed the instant case U/S 12 of CP Act, 1986 seeking several reliefs including direction for return of the said vehicle after completion of repair works etc.
The OP by filing a written version, evidence and written argument contested the case denying the allegations made by the Complainant. The OP claimed that the said vehicle, though having a private number, it was plying for commercial purpose at the time of accident and they could not start the repairing work immediately as the said vehicle was required to be inspected by the Insurance Co., which took much time to complete their survey work. However, after completion of survey work by the National Insurance Co. Ltd., the OP started repairing work. Again, he had to wait for final survey work of Insurance Co. and thereafter, the Complainant was informed over phone to take his vehicle on making final payment of repairing cost. But the Complainant failed to take delivery of the vehicle by paying the balance amount of cost of repair.
Further, in the written version, the OP made it clear that he was not carrying his business in the name and style "M/s Maa Durga Transmotives", instead he was carrying his business under the name and style "Saha Auto Pvt. Ltd." being the Authorized dealer of Tata Motors Ltd.
The appeal follows on the grounds that the said vehicle is now in the workshop of OP in idle condition and during the repairing period, the OP has vanished the chassis number of the vehicle, and as a result the vehicle is totally destroyed as well as not in a position to ply the on the road and Ld. Forum has failed or committed errors for not compensating the complainant in adequate manner.
The respondent (OP) has refused to receive the notice of appeal and did not contest the appeal. Ld. Advocate of the Appellant/ Complainant B. Moitra has conducted the hearing of the case on behalf of appellant.
Decision with reasons
During the course of hearing argument, ld. Advocate of the appellant in the tune of his WNA mentioned that in the present case, the disputes between the Respondent/Complainant and Appellant/Opposite Party No.1 is/was cropped when the Respondent failed to return back the vehicle within two months after completion of repair works of accidental damage of the vehicle. After the expiry of stipulated period of two months, appellant on several occasions went to the workshop of the respondent to take back the vehicle by paying the balance estimated amount, but on every occasion the respondent dillydallying on flimsy ground of shortage of staff etc. and till date the vehicle is still in the workshop of the respondent.
That in the long run appellant made contact over the telephone to the respondent and also personally visited to the proprietor of the respondent and narrating the incident with the request to return back the said vehicle and had to make alternative arrangements for his travel during the season time and became very depressed and trying to destroy himself to get relief from the burden of bank loan, burden of garage rent, burden of other credit in the market and in that event the appellant did not pay off his loan installment properly but all efforts were in vein. That presently the vehicle of the appellant is lying in the workshop of respondent under the open sky and in uncared manner and the appellant shall suffer irreparable loss due to the damage cause to the vehicle. Respondent neither returned back the vehicle after completion of works nor protected the vehicle form the rain and sunlight, which is tantamount to deficiency in service.
That your appellant on 21.07.2017 filed a petition before the Ld. Forum below for local inspection of the said vehicle through M.V.I. Coochbehar and after hearing Ld. Forum below allowed the same for local inspection of the said vehicle through M.V.I. That on 16.10.2017 M.V.I. went to the workshop of the respondent and examine the vehicle in presence of both the parties and submitted a repost on 18.10.2017 wherein it had been revealed that no chassis number had been found in the vehicle, and thereafter on 16.02.2018, as per order of the Ld. Forum below, M.V.I further examined the vehicle in presence of both the parties and submitted a report on 13.04.2018 and from that report it is revealed that chassis number was not found. "From the technical point of view, the vehicle is mechanically fit and roadworthy. As per vahan record the vehicle chassis number is MCLSAG1WPRB008852 but no such chassis number is found with the present chassis of the vehicle. So, from the report of the M.V.I. it is clear that said vehicle is not in a position to ply without chassis number and the respondent replaced/changed the chassis of the vehicle, which is the violation of provisions of the Motor Vehicle Act, 1988 and Motor Vehicle Rules. Due to non-availability of Chassis number, Registering Authority may refuse to renew the registration certificate under section 45 of the said Act or may cancel the registration under section 55 of the Motor Vehicle Act.
That the respondent never informed the appellant regarding the non-availability of chassis number. It is further submitted that insurance company will not insure the vehicle of the appellant without chassis number and accordingly to section 146 (1) of the M.V. Act, 1988 "No person shall use except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by the person or that other person, as the case may be, a policy of insurance complying with the requirement of this Chapter".
It is very much clear that due to negligence of the respondent the vehicle of your appellant became a scrap. So, there is a deficiency in service on the part of the respondent and there are no latches or fault on the part of the appellant/complainant.
After hearing the argument of the appellant and on Perusal of documentary evidence furnished by the Parties to the case, It is established beyond doubt that the appellant had purchased the vehicle from the respondent who happened to be the authorized dealer and service centre of International cars and Motors ltd. In July 2014 the car met with a road traffic accident next year since purchase and got severely damaged which was sent to the workshop of respondent for repairment who on examining the vehicle estimated the cost of repair at his Rs. 3,72,819/- and the appellant as advance payment or repairing cost, made payments of Rs. 58,000/- till 18.02.2016.
For the damage to the vehicle, the insurer of National Insurance company has settled the claim for Rs. 1,87,700/- after deduction or depreciation, Policy excess and salvage.
The Complainant raised about fitness and road worthy condition of the said vehicle and that's why, the Complainant had made a prayer for inspection of the said vehicle by the Motor Vehicles Inspector to ascertain the condition and his prayer was allowed and accordingly, Mechanical Inspection was held by Motor Vehicle Inspector (Technical) of the Motor Vehicles Department, Govt of West Bengal, Cooch Behar and he submitted a report on 18.10.17. Subsequently, again, the said vehicle was inspected by Motor Vehicle Inspector (Technical), who submitted a report and in both the reports, it has been opined in no uncertain terms that the said vehicle is mechanically fit and road worthy. However, Chassis No. could not be found but absence of Chassis No might be due to change of Chassis as argued on behalf of the OP. The change or replacement of Chassis, which was severely damaged, for which Chassis No. is not appeared, cannot be the reason for refusal and acceptance of the vehicle by the Complainant. Section 52-Sub-Section-3 of Motor Vehicles Act envisages that "Where any alteration has been made in motor vehicle without the approval of registering authority or by reason of replacement of its engine without such approval under sub-section (2), the owner of the vehicle shall, within fourteen days of making the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of registration may be entered therein.
Thus, on consideration of the materials and in view of the discussions as made above, we are of the opinion that as repairing work of the vehicle was completed, the vehicle was found to be mechanically fit and road-worthy.
On the other hand, the Respondent was not vigilant enough to repair the damage of the vehicle and to make this vehicle in road worthy conditions and kept the vehicle in idle condition for a long period and suppress the fact to the complainant about the vanishing chassis number which was misbehavior done at the time of repairing and replacing the chassis frame Assembly and chassis cross number and in this way, there was deficiency of service and unfair trade practice on the Part of the respondent (op) and Ld. Forum at the time of adjudicating the dispute, proper and appropriate compensation was not awarded in favour of the complainant.
Total cost of repairment was estimated to at Rs. 3,72, 819/- out of which Rs.58,000/- was paid. So, balance amount remains due to the tune of Rs. 3,14,819/-.
The insurance company has compensated the damage to the tune of Rs.1,87,700/-. The repair cost of the vehicle included in the insurance Settlement. The complainant has already paid R. 58,000/-. So, the complainant/appellant as per insurance surveyor Settled cost of repair remains due (Rs.1,87,700 – 58,000/-) Rs. 1,29, 700/- . This amount should be treated as balance amount of repairing cost.
On the other hand due to laches and lacuna on the part of the of respondent, the appellant could not use the vehicle for a considerable period and the vehicle by lapse of time has depreciated its value due to natural war and tear and for that reason, the said amount Rs. 1,29,700/- has to be adjusted as compensation in favour of the complainant/appellant.
So, the order of the LD. Forum should be modified in the appeal.
Hance it is ordered,
That the appeal be and the same is hereby partly allowed on its merit without cost. The final order of the Ld. Forum dated 13.10.2020 to be modified that the OP/ Respondent is directed to hand over the vehicle bearing No. WB-64J 9036 to the appellant / complainant in Mechanically fit and road worthy condition within one month since date of receiving the copy of this final order Passed by this bench, failing which the present marketable Price of the said vehicle as assessed by any licensed Surveyor shall have to be paid by the OP within One month from the date of assessment.
Let a copy, of this order be supplied to the Parties free of cast and the same to be Communicated to the D.C.D.R.F. Coochbehar.
