DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

 Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday, the 27^th  day of September 2024

CC. 249/2017

Complainant

                        Sunil Kumar.V.D,

                        Thulasi Nilayam,

                        Kadiyangad, perambra,

            Calicut – 673 525.

           (By Adv. Sri. Pavithran.K)

Opposite Parties

1.              Popular Vehicles and Services Ltd,

Civil Station (PO),

Wayanad road, Kozhikode – 673 020.

2.             The Managing Director,

Maruti Suzuki India Ltd,

Palam Gurgaon Road,

Gurugaon – Haryana – 122015.

3.              Lineesh.V,

Vilakkad Veedu,

Mundakkal (PO),

Poovattuparamba, Kozhikode.

4.             The Branch Manager,

National Insurance Company Ltd,

PARCO tower,

S.M.Street, Kozhikode – 673 001.

(OP1 and OP3- By Adv. Sri. Bijesh.K,

OP2 – By Advs. Sri. P. Jayabal and Sri.E. Rajesh,

OP4 – By Adv. Sri. M. Vinod Kumar)

ORDER        

 By Sri. V. BALAKSRISHNAN – MEMBER

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

The complainant purchased a SWIFT DEZIRE VDI CAR from the showroom of first opposite party on 26/10/2013, paying an amount of Rs. 7,82,016/-. The vehicle was manufactured by the second opposite party. Bank loan was arranged by CANARA BANK Permbra Branch for the purchase. The vehicle was insured with the fourth opposite party.The regular services of the vehicle were done correctly from the service centres of the first opposite party located at Vadakara and Kozhikode. The 7^thservice with the first opposite party was scheduled on 27/04/2015.The vehicle was taken for service on 27/04/2015by the3^rd opposite party, who was a staff member of the 1^st opposite party. On the way to service centre the vehicle met with an accident at Pachakal near the service centre of the 1^st opposite party at Kozhikode. The message of accident was conveyed to him by the first opposite party and the city police. He visited the spot and assurance was given by the 1^st opposite party that they would take the responsibility of the accident and permission was given to repair the vehicle. The first opposite party also promised that they would take back the vehicle when the complainant wishes to sell the same by paying the market rate at that time. Accepting this condition, he signed all the other necessary papers and handed over to the first opposite party. After 1 ½ months, by completing the repair works the vehicle was handed over to the complainant. No repair charges were collected from him.

3. After the repairs, the performance of the vehicle was not satisfactory compared to the performance before the accident. There was shivering while driving and wear and tear for the tyres, less mileage and difficulty in negotiation of vertical gradient.  These issues were conveyed on 07/07/2016 to Vatakara service centre of the 1^st opposite party. After this service also,  the issues were not solved and the 1^st opposite party was approached to take back the vehicle after payment of the market value as on 27/04/2015. The 1^st opposite party was reluctant to take back the vehicle. No claim bonus was also received by him while renewing the insurance policy. It is also noticed that the accident claim for the vehicle was received by the 1^st opposite party from the 4^th opposite party.  
4. Even though the complainant tried to sell the vehicle to some other parties, they offered only 60% of the market value as the vehicle had met with an accident. The gravity of the accident and its repairs were understood by him in  a  later stage only and the 1^st opposite party had concealed the same from him. It is an unfair trade practice and deficiency of service on the part of the opposite parties.
5. So the complainant has approached this Commission to give direction to the 1^st, 2^nd and 3^rd opposite parties to take back the vehicle by paying the market value as on 27/04/2015 and direct the opposite parties to pay compensation of Rs. 3,00,000/- to him for the unfair trade practice and deficiency of service.
6. The opposite parties filed version separately. In the version filed by the 1^st  opposite party, almost all the averments in the complaint are denied by them. They have admitted the purchase of the vehicle by the complainant, paying an amount of Rs. 7, 82, 016/-. It is also admitted by him that the vehicle was having valid insurance policy of National Insurance Company. Pick up of the vehicle for the service on 27/04/2015 was arranged by them as per the request of the complainant. When the vehicle met with an accident they agreed to carry out the necessary repair works under insurance claim and pay the cost of the repair exceeding insurance approved amount as a matter of maintaining a good customer relation. The first opposite party never assured the complaint to take back the vehicle.  The allegation that only on that assurance he had signed all the papers etc. are false and hence denied. The vehicle was delivered to the complainant on 23/05/2015 after completing  all the accident repair works and never assured to take back the vehicle by paying the current market price whenever the complainant wishes to sell the car. The complainant was provided with a copy of vehicle service history and in the said document it was stated about the details of the repair works carried out to the vehicle. At the time of handing over the vehicle for service, at Vatakara, the complainant never informed that the vehicle was not smooth, there was vibration while running the vehicle, mileage was lowered, and tyres wear up etc.
7. On the day of the accident, vehicle was driven by the third opposite party from complainant’s residence to Kozhikode. Unfortunately, the vehicle met with an accident just before reaching the service centre. It is the general practice that the opposite party never indemnify the customer against the accidents which was caused while driving the vehicle during pick-up and delivery for service. Insurance for the repairs after the accident was claimed with the consent of the complainant. The complainant had already signed the claim form in order to forward for getting the insurance claim. So he cannot tell that he was ignorant about claiming the insurance. The remaining amount for depreciation value and the other things excluded by the insurance policy was met by the 1^st opposite party. No amount was claimed from the complainant on this additional expenses. The complainant took delivery of the vehicle only after being satisfied with the service rendered by them. In the month of July 2016 only the complainant approached them and showed interest to sell his car. So he was directed to visit true value division, which is the separate division run by 1^st opposite party group to deal with used cars. It is seen from records that the said vehicle met with other accidents before and after the accident mentioned herein. Moreover, it is clear from the records that the vehicle was repaired several times due to the rough and careless use. So according to the first opposite party, that there is no deficiency of service or alleged unfair trade practice from the side of them and the complainant is in no way eligible for the relief sought for and the complaint is only to be dismissed.
8. The second opposite party, the manufacturer of the vehicle filed version denying almost all averments in the complaint. The liability of the company under warranty, is specific as set out under the warranty policy and as stated in the owner’s manual and service booklet. Also the company is not responsible for any of the communications or understanding shared between the complainant and the remaining opposite parties and hence not answerable to any of the contentions raised in the complaint. The company is an independent entity having its own MOA and carrying out the business on their own invoice and sales certificate. Also, they are not selling their products to any individuals under invoice or sales certificates. The subject matter in the complaint is a dispute relating to independent contract for repurchase of the vehicle entered between the complainant and the first opposite party. In this case their company has not received any consideration from the complainant. The complainant has impleaded them without any reason, cause of action or justification. The allegations made in the complaint do not constitute any consumer dispute between the complainant and their company. So, the second opposite party prays to dismiss the complaint.
9. The 3^rd opposite party, the driver engaged by the 1^st opposite party filed separate version. He also denied all most all the averments in the complaint. The pick up and drop facility was given to the complainant as per his request and according to the direction of the 1^st opposite party. The vehicle was picked by him on 24/07/2015. The vehicle was driven from the house of the complainant to the service centre at Pachakkal, Kozhikode. Before reaching service centre the car hit with a carelessly driven bike. The vehicle was repaired by the 1^st opposite party and it was taken back by the complainant on 23/05/2015 with full satisfaction. He is only an employee of the 1^st opposite party and no way connected with the issues raised by the complainant. There is no deficiency of service on his part.  Hence the 3^rd opposite party prays to dismiss the complaint.
10. The version was filed by the 4^th opposite party, the insurance company in which the vehicle was insured. The company admits that the vehicle was having valid insurance policy from 20/10/2014 to 25/10/2015 and the liability  of them is limited to the terms and conditions stipulated in the said policy. The company also admits that on 27/04/2015, the said car met with an accident and sustained damages. The city traffic police, Kozhikode registered FIR NO. 1283/2015 dated 29/04/2015 U/s 279, 337 and 338 of IPC with respect to the said accident against the driver of the said vehicle on that day. As per the police case, the vehicle turned to right side without signals and hit with motorcycle.   Due to that impact the rider and pillion rider of the bike sustained injuries. The firm paid their compensation allowed by the MACT and indemnified the complainant. 
11. On receiving the claim form from the complainant on 05/05/2015 for getting the compensation for the damages sustained in the accident, an IRDA approved surveyor was deputed to inspect the vehicle and to assess the loss and damages. Based on the survey report and as per the direction of the complainant, Rs. 36, 830/- was paid to the 1^st opposite party by them.  
12. The claim of the opposite party was settled by the insurance company in accordance with the report of the surveyor. As per the terms and conditions of the policy they are liable to pay the amount assessed by the surveyor. Also the complainant had given a full satisfaction certificate to the insurance company for the said amount given to the 1^st opposite party. Also the insurance company denies the value of the vehicle shown by the complainant. According to the law of insurance and terms of the policy the complainant is not entitled to get no claim bonus. The 4^th opposite party prays that the complaint may be dismissed.
13.   The points that arise for determination in this case are:                                                                                                                                                                                                                                                                                                                                                   1) Whether there was any unfair trade practice and deficiency of service on the part of the opposite parties, as alleged.                       2) Reliefs and costs.  
14. Evidence in this case consists of oral evidence of PW1, who is the power of attorney holder and brother in law of the complainant and Ext A1 to A13 on the side of the complainant. No oral evidence was let in by the opposite parties. On part of first opposite party B1to B7 are marked.
15. Heard both parties. Argument note is filed by the complainant.
16. Point No 1:  In order to substantiate his case, PW1 has filed proof affidavit and deposed in terms of the averments in the complaint. Ext A1 is the proforma in voice of the vehicle, Ext A2 is the copy of owner’s manual  and service booklet., Ext A3 is the statement of accounts of Canara Bank for the period 01/01/2009 to 31/12/2014, Ext A4 is the statement of account of Canara Bank for the period 24/12/2014 to 15/06/2017, Ext A5 is the copy of the FIR of Kozhikode City Traffic Police Station, Ext A6 is the copy of inspection report of motor vehicle involved in an accident, Ext A7 is the vehicle history copy issued by first opposite party showing the job card dated 06/05/2015, Ext A8 is the copy of vehicle history copy of service centre of first opposite party, at Vatakara, Ext A9 is copy of payment approval details issued by 4^th opposite party, Ext A10 is the copy of the payment approval details issued by the 4^th opposite party, Ext A11 is the copy of evaluation report on 08/08/2016 issued by first opposite party obtained from its True Valued Division, Ext A12 is the copy of the email dated 11/08/2016 sent by complainant to the representative of third opposite party, Ext A13 is the copy of email dated 14/08/2016 sent by the complainant.
17. On behalf of first opposite party Exts B1 to B7 are marked. Ext B1 is the vehicle history, Ext B2 is the copy of insurance policy of vehicle valid from 26/10/2018 to 25/10/2019. Ext B3 is the copy of the insurance policy of the vehicle valid from 26/10/2019 to 25/10/2020, Ext B4 series are the insurance claim forms submitted by the complainant to 4^th opposite party, Ext B5 is the Satisfaction Certificate issued by the complainant, Ext B6 is the receipt of claim issued by 4^th opposite party to first opposite party and Ext B7 is the copy of award of Motor Accident Claims Tribunal, Kozhikode.
18. The specific case of the complainant is that for the service of the vehicle, he made use of the pickup and drop facility offered by first opposite party. The vehicle was taken by the 3^rd opposite party who is the driver engaged by first opposite party to pick the vehicle KL-56-H-6421 on 27/04/2015 for the seventh service. The new vehicle was purchased from first opposite party on 26/10/2013. Just before reaching the service centre the vehicle met with an accident. The vehicle was repaired by first opposite party and later they received the insurance claim of Rs. 36,830/-. The vehicle was handed over to the complainant on 23/05/2015 after accident repairs.
19.  The case of the complainant is that there was an assurance given by the first opposite party to him that when he desires to sell the vehicle, the first opposite party would take back the vehicle  at the market rate prevailing.
20. It is an admitted fact that the vehicle had already completed 25402 kms of run at the time of accident. After receiving the vehicle back it was again given to the service repairs on 10/09/2015 at a km reading 31042. Again the vehicle was given for service on 12/04/2016 at a km reading 41337 . The next service was carried out on 16/06/2016 after completing 48590 kms of run. The vehicle was again handed over for service on 07/07/2016 at km reading of 50575.
21. From Ext A11 it is evident that the request to take back the vehicle was mailed by complainant on 11/08/2016. By that time the vehicle had already  completed  about 25000 kms of run after the accident.
22. The main point to be answered in the present case is that whether there was an understanding or assurance given by the first opposite party to the complainant to take back  his vehicle at any future period paying market rate at the time of accident.
23. This is no documentary evidences shown by the complainant like a written undertaking or agreement etc. to show about the assurance given by the first opposite party regarding the repurchase of the vehicle of the complainant. The vehicle was met with the accident on 27/04/2015 at km reading of 25402. From the available documents it is understood that initial steps to sell back the vehicle to the first opposite party was taken after the service on 07/07/2016. By that time the vehicle completed a run of 50575 kms. There is no evidence to show that between 27/04/2015 to 11/08/2016 there was any steps taken by the complainant to sell the vehicle back to the first opposite party.
24. The specific complaint is that, after accident repairs the vehicle is not smooth, there is vibration while running, mileage was lowered tyres wear abnormally and lack of pulling in vertical gradient etc.
25. In cross examination the complainant admitted that after the accident the vehicle was given for services to the first opposite party on 10/09/2015 at km on 31045, on 12/04/2016 at km on 41337, on 16/06/2016 at km 41337. In all these service history papers there is no mentioning about the above defects and there was no demand for repairs by the complainant to rectify the same. In Ext A8 only there is mentioning about demand for repairs of FRONT NOISE and ALIGNMENT OUT.
26. So it is an admitted fact that the complainant used the vehicle satisfactorily which ran about 25000 kms after the accident, from May 2015 to July 2016 without any proposal to get it purchased back by the first opposite party.
27. In Ext A7 the estimate for the whole work of repairs is shown as Rs. 49,883.93/- which included cost of spare parts and labour.
28. The complainant had admitted that no amount was collected from him towards the accident repairs. Ext A10 and also Ext B6 show that the first opposite party received only Rs. 36,830/- from the third opposite party towards accident repair of the vehicle. Also 50% depreciation is shown for the spares as per Ext A9. So it is beyond any doubt that the first opposite party had spent additional amount for repairs than what they received from 4^th opposite party as the claim. From Ext B5 it is admitted that the complainant is satisfied with the repair works done.
29. There is no evidence to show that the accident repair work done by first opposite party was not up to the standard. If the complainant was having any doubt regarding the quality of repairs the vehicle could have been got inspected by an expert.
30. There is no documents produced by the complainant to show that what amount was lost to him on account of no claim bonus in insurance payment due to the accident happened on April 2015.
31. In cross examination PW1 has admitted that the vehicle had met with an accident and given for repairs on 09/07/2014 and insurance was claimed for the repairs. Also, the same vehicle was given for accident repairs on 17/05/2017.
32. In the immediate preceding year of the accident, there was a claim for accident repairs. So in the absence of any documents to prove that the  no claim bonus was lost due to the accident that happened on April 2015, we are not in  a position to assess that the complainant lost any amount in successive payment of insurance  premium.
33. It is well settled that in Consumer complaint, the onus to prove the deficiency  in service is on the complainant. This has been reiterated by the Hon’ble Apex Court in SGS India Vs Dolphin International Ltd. LLD LL 2021 SC 544. It may noted that there is absolutely no evidence to show that there existed an undertaking or agreement between the first opposite party and the complainant, that  the first opposite party would take back the vehicle at the prevailed market rate at the time of accident, if he desires to sell it later.
34. Also nothing is produced by the complainant to prove that the repair work done after accident was below standard and that performance of the vehicle after repair was not satisfactory.
35. To sum up, this Commission is of view that there is no proof of any deficiency of service or unfair trade practice on the part of the opposite parties as alleged and consequently the complainant is not entitled to get any relief.
36. Point No. 2:- In view of  finding on the above point, the complainant is not entitled to the reliefs sought for, and complaint is only to be dismissed.

 In the result, the complaint is dismissed. However, no order as to costs.

Pronounced in open Commission on this, the 27^th day of September, 2024.

Date of Filing:  11/07/2017

                     Sd/                                                             Sd/-                                                             Sd/-                                                                            PRESIDENT                                              MEMBER                                                    MEMBER                              

APPENDIX

Exhibits for the Complainant:

Ext A1 -  Proforma in voice of the vehicle.

Ext A2 - Copy of owner’s manual  and service booklet.

Ext A3 - Statement of accounts of Canara Bank for the period 01/01/2009 to 31/12/2014.

Ext A4 - Statement of account of Canara Bank for the period 24/12/2014 to 15/06/2017.

Ext A5 - Copy of the FIR of Kozhikode City Traffic Police Station.

Ext A6 - Copy of inspection report of motor vehicle involved in an accident.

Ext A7 - Vehicle history copy issued by first opposite party showing the job card dated 06/05/2015.

Ext A8 - Copy of vehicle history copy of service centre of first opposite party, at Vatakara.

Ext A9 -  Copy of payment approval details issued by 4^th opposite party.

Ext A10 - Copy of the payment approval details issued by the 4^th opposite party.

Ext A11 - Copy of evaluation report on 08/08/2016 issued by first opposite party obtained from its True Valued Division.

Ext A12 -Copy of the email dated 11/08/2016 sent by complainant to the representative of third opposite party.

Ext A13 - Copy of email dated 14/08/2016 sent by the complainant.

Exhibits for the Opposite Party

Ext B1 - Vehicle history,

Ext B2 - Copy of insurance policy of vehicle valid from 26/10/2018 to 25/10/2019.

Ext B3 - Copy of the insurance policy of the vehicle valid from 26/10/2019 to 25/10/2020.

Ext B4 series - Insurance claim forms submitted by the complainant to 4^th opposite party.

Ext B5 -  Satisfaction Certificate issued by the complainant.

Ext B6 - Receipt of claim issued by 4^th opposite party to first opposite party

Ext B7 - Copy of award of Motor Accident Claims Tribunal, Kozhikode.

Witnesses for the Complainant

PW1  -   Dhanesh. P.T.K (Power of Attorney holder of the Complainant).

Witnesses for the opposite party

NIL                               

                     Sd/                                                             Sd/-                                                             Sd/-                                                                            PRESIDENT                                              MEMBER                                                    MEMBER                 

                                                                     True Copy,                                                                   

                                                                                                                                           Sd/-                                                                                                                                       

                                                                                                                                                   Assistant Registrar.