FA 404/2008  in CC No. 392/2007  on the file of the

 District Forum I, Visakhapatnam

Between :

M/s. Automotive Manufacturers Pvt. Ltd.,

Represented by Sri T. R. Ganesh Aiyer

S/o late Sri T. K. R. Aiyer, aged about 46 years,

Occ : Service, the Chief General Manager

Office at 8571, Rashtrapathi Road,

Secunderabad                                            .. Appellant/opposite party

And

Sri K. V. V. S. N . Vara Prasad

S/o Sri Appa Rao, aged about 34 years,

Occ : not known to the appellant

R/o d. No. 12, Police quarters

Anakapalle, Visakhapatnam  District   … Respondent/complainant

Counsel for the Appellant            :           M/s. Shyam S. Agrawal

Counsel for the Respondent      :           served.

Coram           ;           Sri Syed Abdullah              …        Hon’ble Member

And

Sri R. Lakshminarasimha Rao…      Hon’ble Member

Monday, the Nineteenth Day of July, Two Thousand Ten

Oral Order     :           ( As per Sri Syed Abdullah,  Hon’ble Member )

*******

This appeal has arisen against the order dated 18.01.2008 passed in       C. C. 392/2007 by the District Forum I, Visakhapatnam, where under,  the appellant/opposite party was directed to pay a sum of Rs.19,000/- towards loss of earnings, Rs.1000/- towards compensation besides costs of Rs.1000/-.  The impugned order is assailed as erroneous  both on question of fact and law.

The facts of the case disclose that the complainant purchased LMV Maxi Cab, commander Jeep  from the opposite party  for earning his livelihood by taxi business. The said vehicle met with an accident.   So it was shifted to the opposite party’s  work shop on 07.03.2003 for repairing it.  The opposite party issued an estimation for repairing the vehicle.  After some time, when the complainant went to take delivery of the vehicle,  he was informed that except the body, all the parts of the car were stolen and he was asked to come later as the stolen parts could be replaced  with a new one.  Subsequently, the opposite party informed that the parts of the vehicle which were stolen were  traced out by police  and that police had registered a case.   An application was submitted before the Magistrate, Visakhapatnam for taking return of the parts  from the custody of the Court.  The opposite party after attending to the repairs did not give proper answers.   The complainant was eking out his livelihood  by running the it as  and thereby he sustained loss to a tune of Rs.70,000/-.  The complainant purchased the vehicle  with the help of financier and he was supposed to pay monthly instalments  on the loan borrowed.  A registered notice dated 01.06.2003  was sent to the opposite parties for which he sent reply with false allegations.

Denying the allegations for the liability to pay compensation the opposite party filed its version admitting that the vehicle was purchased and registered in the name of the complainant. It is stated that since the said vehicle met with an accident it was brought to its work shop for effecting repairs but the parts of the vehicle  were stolen. So a police complaint was lodged and that the police  has traced out some of the parts.  The opposite party had carried out  the repairs of the vehicle and delivered it to the complainant.   It is denied that the complainant had sustained loss of Rs.70,000/- towards his earnings and this claim is made to make unlawful gain.  Immediately, after taking delivery of the spare parts from the Court, repairs were effected without any further delay.

Both sides have filed evidence affidavit along with Ex. A-1 to A-6 and Ex. B-1 to B-3 respectively.

After going through the evidence on record, the District Forum directed the opposite party to pay a sum of Rs.19,000/- towards loss of earnings  along with compensation of Rs.1000/- and costs of Rs.1000/-.

The strong hold contention of the appellant is that the District Forum  over looked the terms and conditions  mentioned in Ex. B-3 Job Card and Clause IV under which it is necessary that  in case of  major repairs/accidental repairs 50% of estimation amount  should be paid towards advance along with work order  and in the absence of payment of 50% of the amount, there is no obligation to commence  the repair  work as such it cannot be said that there was any delay in commencement of the work much less deficiency in service as alleged.  It is also mentioned that there is no evidence on record to show that after handing over the vehicle for repairs, on what date the complainant turned up and paid 50% of the amount.  The next contention is that the complaint should have been dismissed  when the case is filed against a company and it is not filed against a person who is responsible for liability.

Point for consideration is, whether the impugned order suffers from any factual and legal infirmity ?

Ex A-1 is the Job card issued by the opposite party on 07.03.2003 at 10.45 AM which shows that the vehicle is to be attended to the accidental repairs, i.e., repair to be body, bonnet, sheets,  Mudguard, Radiator, Fan etc and it is enclosed with certain terms and conditions.  The terms and conditions in respect of repairs is not filed along with the Job card.  However, in Ex. B-3, copy of the job card contains  the terms and conditions.   In clause 4 it is made clear that 50% of the estimated amount  is to be paid for commencement  of the repairs and there is no evidence on record to show that  when the said 50% of the amount was paid.  Ex. A-4 dated 28.07.2003 shows that a  sum of Rs.87,924/-  was paid on 28.07.2003.  In Ex. A-1  the time for completing the repairs is not mentioned. There is no stipulation of the date at all.   Where there is a mistake of fact in the agreement by both parties the   agreement is void U/s. 20 of the Indian Contract Act. From Ex. A-1  it cannot be said that  within what period the opposite party is expected to repair  and deliver the same. When clause 4 of Ex. B-3 Job card  makes it clear compulsory payment of 50% of the estimated repair charges are to be paid  and in the absence of payment of it, the repairer need not commence the repair work at all.   Whatever it may be, in the mean while,  when the vehicle was in the work shop  some of the parts of the vehicle were stolen for which the opposite party  gave police report  and on that  the police registered a case  and thereafter stolen parts of the vehicle  were recovered, which was very much within the knowledge of the complainant and he along with the opposite party jointly filed a petition  in the Criminal Court  for taking return of the stolen articles  which were recovered by the police.   Ex. A-6 is the Gate pass  shows that the vehicle in question was permitted  to be taken out by the complainant and delivery of it was singed on 16.07.2003.  Thus it is clear  that  it was delivered on 28.07.2003 on which date  a sum of Rs.87,924/-  was paid.  There is no dispute that the opposite party  had repaired the vehicle by incurring expenditure.  The only grievance is that right from 07.03.2003 till 28.07.2003 the vehicle  was not attended to repairs and due to delay in delivery of it, he lost his livelihood by engaging the taxi suffering  loss @ Rs.1000/- per day which is to be compensated  by the opposite party.

 In fact, the complaint was filed on 02.11.2003, after the expiry of two years period but the delay was done on the application filed by the complainant.  Even though delay was condoned,  it is a clear case of lack of proper understanding or mistake of fact between the parties in fixing time to  the repairs and delivery of it and hence it cannot be said that the opposite party had deliberately negligent and on account of his delay, the complainant sustained loss.  The complainant also was  equally negligent in not making  necessary enquiries from the repairer ever since it was handed over on 07.03.2003.  He who seeks equity must do equity.   The complainant has not come with clean hands to seek for equitable relief. There is no basis to hold that the opposite party caused delay in delivering the vehicle after its repair.  Thus the findings are not based on correct facts.  Both on questions of fact and law, the complainant is not entitled for compensation.  Therefore,  we are of considered opinion that the order of District Forum suffers from factual and legal infirmity which is liable to be set aside.

In the result,  the appeal is allowed setting aside the order of the District Forum in CC 392/2007 dated 18.01.2008 and consequently dismissed the complaint.  Each party to bear their own cost through out.

Sd/-MEMBER

                                                                                                                                                                        Sd/-MEMBER

                                                                                                                                                                        DATED :        19.07.2010.