DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 43 of 2018

 

Shri Dulal Chakraborty,

S/O.Late Hiralal Chakraborty,

Partner, M/S. Ramthakur Construction,

69, HGB Road, Agartala District, West Tripura,

Owner of vehicle TR-04A0638(TATA Safari).…............................................Complainant.

 

-VERSUS-

 

1. Sri Nimai Kar,

Managing Director,

Niladri Motors, A.A. Road, Kashipur,

Agartala, P.S.-East Agartala,

District- West Tripura.

 

2. Senior Manager,

TATA Motors, 

Rene Tower, 2nd Floor, Plot No.1842,

Rajdanga Main Road, Kolkata-700107.

 

3. TATA Motors Limited,

4th Floor, Ahura Centre,

82 Mahakali Caves Road,

Midc, Andheri Eastn, Mumbai-400093........................................................ Opposite parties.

 

     __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SRI UMESH DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SMT. Dr. BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

C O U N S E L

 

For the Complainant : Sri Tapas Kr. Deb,

  Sri Debabrata De,

  Advocates.

 

For the O.P. No. 1 : Sri Sudipta Sekhar Debnath,

  Sri Manoj Debnath,

  Advocates.  

For the O.P. No. 2  : Sri Amrit Lal Saha,

  Sri Kajol Nandi,

  Advocates. 

For the O.P. No.3 : None appeared. 

 

JUDGMENT  DELIVERED  ON :  22/10/2019

 

J U D G M E N T

          The Complainant Shri Dulal Chakraborty, set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act, 1986 complaining deficiency of service by the O.Ps.

Complainant's case, in brief, is that the Complainant is a reputed contractor by  profession and also one of the partners of the construction Firm namely M/S. Ramthakur Construction, Agartala. He being the owner of a TATA Safari VX Model Vehicle bearing registration No. TR-04-A-0638, Chasis No.MAT403743CNA00238 & Engine No.2.2LDICOR09AXYJ00152 gave the said Vehicle for repairing on 24/07/2017 to the O.P. No.1 who is the Authorised Dealer of TATA Motors and also a service Provider for maintenance of repairing of TATA Motors vehicles. The O.P. No.1 had assured the complainant to deliver him his vehicle after repairing on 26/07/2017. The Complainant has stated in his complaint that the O.P. No.1 has failed to deliver the vehicle in time though he had gone to the showroom-cum-garage of the O.P. No.1 for several times. The O.P. No.1 has, however, after elapse of two months by a letter dated 22/09/2017 informed the Complainant that the vehicle of the complainant had been repaired in time but before it was being delivered it was put to test drive on 26/07/2017 by two employees of the O.P. No.1 namely Sri Dhruva Debnath & Sri Arindam Sinha and that while the vehicle reached near Durgachowdhury Para it got skidded from the road due to raining and that at that time one Sri Babul Debbarma suddenly hit the vehicle by a iron rod without any reasonable ground. The Vehicle was damaged badly. The complainant was further informed by the O.P. No.1 by the said letter dated 22/09/2017 that due to the such incident a police case was registered vide Budhjongnagar P.S. Case No.030 dated 26/07/2017, U/S -341/323/427/506 & 379 IPC and that the O.P. No.1 had obtained order from Learned Court for release of the vehicle subject to furnishing of bail bond of Rs.5 lac to be given by the Complainant. The complainant further stated in his complaint that in response to the letter dated 22/09/2017 of the O.P. No.1, he issued a letter dated 10/10/2017 to the O.P. No.1 intimating him his reluctance to act upon the request of the O.P. No.1 stating the grounds that his vehicle was not fit to be plied on road and that the incident had occurred while it was in custody of the O.P. No.1 and also that his vehicle was kept in uncared for condition for 76 days due to the negligence of the O.P. No.1. By the said letter the Complainant further requested the O.P. No.1 to inform him about the next course of action to be taken by the O.P. No.1 in regard to the furnishing of bail bond from his end and that in case there was no response from the O.P. No.1 it will be treated that the O.P. No.1 was not interested to have the vehicle released on bail. The Complainant also stated in his compliant that the O.P. No.1 did not give any reply to the said letter.  According to the Complainant he being a contractor had to look after various project works and that due to the want of his vehicle he had to hire a vehicle for inspecting / supervising his project works. For hiring the vehicle he had incurred Rs.2,91,900/-. The Complainant further stated in his complaint that on 02/05/2018 he issued  a legal notice to the O.P. No.1 demanding for either replacing his vehicle of same model or refunding the entire amount of his vehicle within a period of one month. The O.P. No.1 in response to the said legal notice submitted a reply by a letter dated 30/05/2018 and stated that the due to the negative attitude of the Complainant the vehicle was not released from the Police Station and that due to this the vehicle was getting further damage for no fault of the O.P. No.1. 

Being displeased and dissatisfied with the conduct of the O.Ps.,  the Complainant has filed the complaint before this Forum claiming Rs.7 lac being the price of his vehicle, Rs.50,000/- as compensation for causing mental agony and suffering, Rs.3,50,000/- for his loss of business and Rs.1,63,800/- as hiring charges incurred by him for want of his vehicle. The complainant also prayed for issuing a direction so as to exempt him from liabilities in respect of the police case which had been registered with the Bodhjungnagar P.S. Case vide No.030 of 2017 U/S-341/325/427/506 & 379 of IPC raising the plea that he was in no way involved in the said case as at the relevant time his vehicle was placed for servicing and repairing to the Workshop of the O.P. No.1. 

Hence this case.

2. In due course of time notices were duly issued initially to the O.P. Nos.1&2 and subsequently to the newly added O.P. No.3. The O.P. Nos.1&2 have appeared and filed W.Os. separately. The O.P. No.3 on the other hand did not appear before the Forum to contest the case though the said O.P. had received notice issued from the Forum. Consequently as per order dated 21/08/2019 the case proceeded exparte against the O.P. No.3. 

  The O.P. No.1 in his W.O. has denied the allegations and contentions of the complainant. He has however admitted that the vehicle of the Complainant was placed at his garage for repairing and that as per the repairing agreement the subject vehicle was attended to and got repaired with care and protection in time before the agreed date i.e. on 26/07/2017. The vehicle was thereafter put to test driving on 26/07/2017 but unfortunately it met an accident on the road. FIR was duly lodged with the Bodhjungnagar  P.S. The vehicle was seized by the Police and kept in the Bodhjungnagar  P.S. premises. Bail order for the vehicle was duly obtained from the Hon'ble Court. The incident of accident was immediately intimated to the Complainant and request was made to him for executing a bail bond for getting the vehicle released from the Police Station and thereafter undertaking necessary repairing work to the vehicle from the end of the O.P. No.1. The O.P. stated in his W.O. that the Complainant refused to  execute the bail bond till date though the O.P. by a letter dated 22/09/2017 requested the Complainant to execute the bail bond and that consequence thereof the vehicle is still lying in the premises of the  Bodhjungnagar P.S.   

          Denying any deficiency of service on his part, the O.P. No.1 in his W.O. has asserted that the alleged loss being suffered by the Complainant was due to the reluctance on the part of the Complainant to execute the bail bond for releasing the vehicle from the Police Station and that for this act the Complainant himself is liable. The O.P. No.1 further asserted that there is no negligence on his part towards the Complainant. He has thus prayed for dismissal of the complaint.  

  The O.P. No.2 who is the manufacturer of TATA Motors Vehicles in his W.O. has also denied the allegations and contentions of the Complainant. The said O.P. has asserted that the Complainant has unnecessarily impleaded the O.P. No.2 as  there was no complaint regarding manufacturing defect of the vehicle belonging to the Complainant. The O.P. has, however, admitted that the subject vehicle was purchased long back as on 07/06/2012 from the Authorized Dealer namely M/S. S B M Motors Pvt. Ltd. According to the O.P. the instant consumer complaint was filed on the ground of a dispute which had arisen between the Complainant and the O.P. No.1 due to the accidental damage of the vehicle caused at the time of taking test drive of the vehicle by the employees of the O.P. No.1 and for that the O.P. No.2 has no responsibility whatsoever. The O.P. further stated in his W.O. that the relationship exists between the O.P. No.2 and the O.P. No.1 is on 'Principal to Principal' basis and as such the O.P. No.2 can not be liable for any independent act and / or omission, committed by the O.P. No.1.          

               The O.P. No.2 has thus prayed for dismissal of the complaint against him with costs. 

EVIDENCE ADDUCE BY THE PARTIES:-

3. The Complainant examined himself as PW-I and submitted his examination in chief by way of affidavit. He has produced 08 documents. The documents on identification have been marked as Exhibit – 1 Series. The complainant was cross examined by the O.P. side.

  On behalf of the O.P. No.1 three witnesses namely Sri Anuar Hossain, Workshop Manager, Sri Dhruba Debnath, Mechanic & Sri Arindam Singha, Service Advisor  were examined. The said witnesses were also cross examined by the Complainant side. On behalf of the O.P. No.1  08 documents were filed but only 06 documents have been marked  as Exhibit A Series. 

4. POINTS TO BE DETERMINED:- 

  (i) Whether there is deficiency of service on the part of the O.Ps?

  (ii) Whether the complainant is entitled to get compensation/  relief as prayed for?

5. DECISION   AND  REASONS  FOR  DECISIONS:- 

      We have heard arguments from both sides. The O.P. No.1 has submitted Written arguments. 

We have carefully gone through the pleadings of both the parties, the evidence, both documentary and oral adduced by both sides, and have also gone through the memorandum of arguments placed before us by the O.P. No.1.

While arguing the case Learned Advocate appearing for the Complainant had contended that the TATA Safari VX Model Vehicle of the Complainant had been placed by the Complainant on 24/07/2017 for repairing with the O.P. No.1 who is the Authorized Dealer of TATA Motors and also Service Provider and that the vehicle was agreed to be returned to the Complainant after repairing on 26/07/2017. But the vehicle met with an accident while it was taken for test driving on 26/07/2017. Though the incident had occurred on 26/07/2017 but the O.P. No.1 after elapse of two months i.e. on 22/09/2017 by a letter(under Exhibit-A series) informed the Complainant about the incident and had requested him to execute a bail bond of Rs.5 lac for release of the vehicle from the Police Station. Learned Advocate argued that the incident of accident occurred while the vehicle was in custody the O.P. No.1 and that having had found that the O.P. No.1 informed the Complainant after elapse of two months of the accident causing further damage to the vehicle after the accident, the Complainant as such by a letter dated 10/10/2017 under Exhibit-I series requested the O.P. No.1 to take responsibility/liability of the bail bond amount of Rs.5 lac in case the said amount got forfeited and also to give him assurance to provide him a new vehicle or to pay him proper value of the vehicle. Learned Advocate further argued that the O.P. No.1 did not give any reply to  letter of the Complainant. He thus argued that the Complainant has succeeded in establishing the case U/S 12 of the Consumer Protection Act, 1986 and thus urged upon the Forum to pass appropriate order directing the O.Ps. to pay him the cost of the vehicle along with compensation and other reliefs.   

Per-contra Learned Advocate for the O.P. No.1 has argued that the Consumer complaint filed by the Complainant was not maintainable as the Complainant did not implead the Niladri Motors which is a separate legal entity as a Company. The complainant had given his vehicle for repairing to the Niladri Motors Company. The Complainant has only arrayed the Managing Director, Niladri Motors as the O.P. No.1. Non impleadment of the Niladri Motors Company in the present consumer complaint according to the Learned Advocate for the O.P. is fatal for the case of the Complainant. 

Learned Advocate for the O:.P. No.1 further argued that the Complainant was guilty of contributory negligence in causing further damage to the subject vehicle after the accident had occurred due to his reluctance to get the vehicle released on bail from the Police Station though the O.P. No.1 had duly informed the Complainant about the fact of accident and sought help for him for getting the vehicle released on bail bond to be furnished by him being the competent person as the owner of the vehicle. Learned Advocate by referring the Last Opportunity Rule also argued that the Complainant could have avoided causing further damage to the subject vehicle after the accident had occurred, if the complainant was good enough to execute the bail bond and would help the O.P. No.1 in getting the vehicle released from the Police Station on bail.  

Hence, Learned Advocate for the O.P. argued that there was no deficiency of service on the part of the O.P. No.1 towards the Complainant. He thus prayed for dismissal of the complaint. 

It is evident from the case record that there was no denial from the side of the O.P. No.1 that the subject vehicle was given to the garage of Niladri Motors for repair on 24/07/2017 and that it was agreed between the Complainant and the O.P. No.1 that the vehicle would be returned to the Complainant on 26/07/2017 after necessary repair. It further reveals from the case record that the subject vehicle met with an accident on 26/07/2017 when it was taken for test drive after completion of the  repair. Admittedly, the accident had occurred while the vehicle was in custody of the O.P. No.1. We find that the fact of the accident was intimated to the Complainant on 22/09/2017 by the O.P. No.1 by a letter(Under Exhibit-A series) which was delayed by two months. No explanation was given by the O.P. No.1 about the cause of delay. The O.P. No.1 has failed to adduce any iota of evidence to prove that prior to the issuance of the letter dated 22/09/2017 to the Complainant, he had verbally intimated the complainant about the accident. We also find that the O.P. No.1 had obtained bail order of the subject vehicle from Court behind the back of the Complainant. Even the O.P. No.1 did not make any response to the letter of the Complainant dated 10/10/2017(under Exhibit-I series) addressed to him wherein the complainant had proposed to the O.P. No.1 to take responsibility / liability of the bail bond amount of Rs.5 lac of the sized car in case the bail amount got forfeited. By the said letter the Complainant had also proposed to the O.P. No.1 to provide him a new vehicle or to pay him proper value of the vehicle. The O.P. No.1 according to us aught to have replied to the letter of the Complainant and settled the matter with the complainant.  

The contentions of the Learned Advocate for the O.P. No.1 that the consumer complaint suffers from non-joinder of necessary party on account of the Complainant's failure to implead the Niladri Motors Company as a party does not appear to us convincing. We find that regarding the repair work of the subject vehicle there was agreement between the Complainant and the O.P. No.1 who is holding an important post like Managing Director of Niladri Motors. The O.P. No.1 in his written objection has admitted about the oral agreement having been made between the Complainant and him in the matter of repair of the vehicle. Moreover, the O.P. No.1 in his W.O. has not raised the issue that the consumer complaint is bad for non-joinder of necessary party. So we hold that the consumer complaint is maintainable against the O.Ps. and that non- impleadment of the Niladri Motors Company does not render the consumer complaint fatal. 

We observe that the delay made by the O.P. No.1 in intimating the Complainant about the accident of his vehicle resulted in depriving the Complainant from getting insurance benefit from the insurer of the vehicle as the Complainant being the insured was duty  bound as per the terms and conditions of the insurance policy to inform the Insurer immediately after the occurrence of the accident of his vehicle. 

We find that there is abundant evidence on record holding the O.P. No.1 liable for committing deficiency of service towards the Complainant. 

As there was no complain from the Complainant regarding manufacturing defect in the subject vehicle, we are of the opinion that the O.P. Nos.2&3 who are representing the manufacturer have no liability towards the Complainant. Hence, the complaint stands dismissed against the O.P. Nos.2&3.

6. In view of the discussion made above and having regard to the materials on record we find and hold that the Complainant has succeeded in establishing his case U/S 12 of the Consumer Protection Act, 1986 against the O.P. No.1. 

  We accordingly find the O.P. No.1 guilty of committing deficiency of service against  the Complainant. 

          We further find and hold that the Complainant is entitled to get price of his vehicle from the O.P. No.1 in lieu of the damaged subject vehicle. It reveals from the W.O. filed by the O.P. No.2 that the Complainant had purchased the subject vehicle long back on 07/06/2012 from the Authorized Dealer namely M/S. S B M Motors Pvt. Ltd. So, considering the wear and tear due to usage of the subject vehicle for 05 years from 2012 to 2017 and also having regard to the market price of the subject vehicle, we consider it fit and proper to direct the O.P. No.1 to pay Rs.5 lac to the Complainant being the price of the vehicle. We also direct the O.P. No.1 to pay Rs.70,000/- as a token amount to the Complainant for vehicle hiring charges as the Complainant has submitted voucher to show that he had spent Rs.1,63,800/- for the said purpose. Apart from this the O.P. No.1 is further directed to pay   Rs.20,000/- for causing  mental agony and harassment and Rs.5,000/- as litigation costs. 

  There is no other relief which can be given to the complainant as per the Consumer Protection Act, 1986.

    Thus in total the Complainant is entitled to get Rs.5,95,000/-(Rs.5,00,000/-+Rs. 70,000/- + Rs.20,000/-+Rs.5,000/-). The O.P. No.1 is directed to pay the aforesaid amount of Rs.5,95,000/- to the Complainant  within a period of 2 months from the date of judgment failing which the amount of compensation shall carry interest @ 9% P.A. till the payment is made in full.

  We further direct that the Complainant shall have to issue no claim certificate / relinquish his claim to the subject vehicle bearing registration No.  No. TR-04-A-0638, Chasis No.MAT403743CNA00238 & Engine No.2.2LDICOR09AXYJ00152 after observing all formalities in the even he received the compensation amount in full as ordered above from the O.P. No.1. 

 

    Announced.

 

SRI  BAMDEB  MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

SRI  UMESH  DAS

MEMBER,

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.

 

 

SMT. DR.  BINDU  PAL

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA