1. The brief facts of the case of the complainant are that he is a driver by profession and in order to eking his livelihood he had purchased a TATA Safari Storme vehicle from OP.4 for Rs.10, 55,747/- vide Invoice No. R-1213-00380 dt.28.2.2013 and has registered the vehicle with RTO, Koraput vide No. OD-10-8009. The complainant has deposited Rs.3, 25,000/- towards initial amount of purchase and has obtained financial assistance from OP.3 for rest of the amount and the EMI was fixed at Rs.24, 000/-. It is submitted that on 10.08.2014 the vehicle met with an accident causing serious damage to the vehicle and it was handed over to OP.4 at Jeypore who is the ASC of TATA Motors and the OP.4 promised early repair of the vehicle. It is submitted that the complainant visited the workshop of OP.4 on 21.10.2014 and found that the vehicle is lying unrepaired. The complainant deposited Rs.30, 000/- with OP.4 on 21.10.2014 towards repair of the vehicle but on repeated approach, the OP.4 with some plea or other avoiding repair and finally requested the complainant to bring CED PRT FOR ASSY HOOD from Visakhapatnam to be used for repair of the vehicle. The complainant has procured the same from VSP and handed over to OP.4 on 25.3.15 which costs Rs.7493/- but the OP.4 has not taken any step to repair the vehicle. The complainant submitted that he is a driver and the vehicle is his life line and due to non repair of the vehicle, he is unable to pay the EMIs and also to maintain his family. Thus alleging deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the OP.4 to deliver the vehicle in good running condition and Ops to pay compensation of Rs.1.00 lac, OD charges besides interests on the loan amount.
2. The OP.1 filed counter denying the allegations of the complainant and contended that the complainant has purchased the commercial vehicle and used the same extensively for commercial activities and as such the complainant is not a consumer. It is contended that the relationship exists between the Ops is on principal to principal basis and OP.1 is not liable for any independent act or omission committed by other OP. Denying that the complainant is a Driver-cum-Owner of the subject vehicle, the OP stated that the complainant has not produced any document to substantiate the same and the OP.1 has also no knowledge as to what amount has been paid towards down payment and what amount has been obtained as loan from TMF. It is also contended that the complainant is a defaulter in making payment to the financier and no money was paid to OP.4 for repair and hence the vehicle could not be repaired and handed over to the complainant. The OP.1 also contended that the OP.4 asked the complainant to get NOC from TMF to initiate the job but the complainant was not able to produce the same. The OP also further contended that the complainant had given Rs.30, 000/- towards repair and a spare part. When the job was completed for Rs.30, 000/-, the complainant was asked to pay 2nd instalment for repair but he did not deposit any amount and hence the repair could not be completed. Thus denying any fault on its part, the OP.1 prayed to dismiss the case of the complainant.
3. Ops 2 & 3 in spite of valid notice did not prefer to participate in the proceeding in any manner. The OP.4 filed counter admitting that after arrival of accident vehicle to the workshop, the complainant was advised to lodge the claim before the Insurance Co. by intimating the fact of accident but the complainant did not take any step to intimate the fact of accident to the Insurance Co. However, the OP.4 has estimated the repair cost at Rs.4.00 lacs approximately. It is contended that the complainant has deposited Rs.30, 000/- with OP.4 towards repair but the OP.4 has spent Rs.1, 70,000/- and the complainant is due of Rs.1, 40,000/- to which he did not pay. It is further contended that the OP.4 is ready to repair the vehicle if the complainant will pay the amount of repair. Thus denying any fault on its part, the OP.4 has prayed to dismiss the case of the complainant.
4. The OP No.5 was added as necessary party to this case by the complainant and it filed counter admitting the insurance vide Policy No.55270031136300187786 provided to the vehicle valid from 01.3.2014 to 28.2.2015 but due to non submission of relevant documents, the claim could not be settled. It is contended that after getting information of accident, the OP.5 deputed surveyor and registered a claim vide No. 552700/ 31/14/ 6390004920 and the complainant was asked vide their letter dt.08.9.2015 with subsequent reminders to submit documents but the complainant did not reply and remained silent. It is further contended that OP.5 has also made correspondence with OP.4 but after several reminders neither the OP.4 not the complainant submitted relevant documents for processing the claim. Thus denying any deficiency in service on its part, the OP.5 also prayed to dismiss the case of the complainant.
5. The parties have filed certain documents along with affidavits in support of their cases. Heard from the parties through their respective A/Rs and perused the documents available on record.
6. In this case, accident to the vehicle No.OD-10-8009 of the complainant which was insured with OP.5 vides Policy No. 55270031136300187786 are all admitted facts. It is also an admitted fact that the vehicle after its accident was taken to the garage of OP.4 which is the authorised sales & service centre of TATA Motors Ltd. and the Insurance Co. has also deputed its surveyor to inspect the vehicle. It is seen that the vehicle was produced in the garage of OP.4 soon after the accident on 10.8.2014 for repair but the OP.4 did not take up repair to the vehicle. As per advice of OP.4, the complainant has deposited Rs.30, 000/- on 21.10.2014 and supplied a motor part namely CED PRT FOR ASSY HOOD by procuring the same from VSP for Rs.7493/- on 25.3.2015. According to the complainant, in spite of necessary cooperation from his side, the OP.4 did not take up repair of the vehicle. The Surveyor, Mr. B.B. Patra in his report dt.21.2.2017 also opined that there was no cooperation extended by the repairer to dismantle and carry out the repairing work of the vehicle and the vehicle was found as it is damaged position and was thrown to a corner of the workshop in an untouched condition since long.
7. It is seen from the record that the OP.4 in spite of notice dt.21.8.2015 did not prefer to participate on the proceeding till 23.12.2015. Due to such non participation of OP.4, the complainant has filed a petition dt.21.12.15 seeking interim order from the Forum to direct OP.4 to bring the vehicle roadworthy by taking up necessary repairs and handover the vehicle to the complainant. Taking the circumstances of the case into consideration, the Forum directed the OP.4 to repair the vehicle and handover the same to the complainant within 15 days and further directed the complainant to pay the balance amount of repair to OP.4. It is seen that the OP.4 flouted the order of the Forum and did not carry out such order of the Forum and complainant through a petition dt.18.2.2016 has intimated the Forum about such inaction of OP.4.
5. The OP.4 in his counter stated that the estimated cost of repair is Rs.4.00 lacs which appear to be false as because the vehicle has not been dismantled by him and no such estimate has been prepared by him. Further the OP.4 says that he has spent Rs.1, 70,000/- towards repair and after payment of Rs.30, 000/- by the complainant, rest amount of Rs.1, 40,000/- is due from the complainant. On the other hand the Surveyor stated in his report that the subject vehicle is lying in a corner of the garage with untouched condition. In view of report of the surveyor, the averment of the OP.4 that he has spent Rs.1, 70,000/- towards repair of the vehicle is false. Further the OP.4 is grumbling about nonpayment of loan dues by the complainant. In our view, the focus of OP.4 on loan dues is uncalled for. The duty of OP.4 is to repair the vehicle but without doing so, he is drawing his attention to unnecessary things to which he is not related.
6. It is also seen that the OP.4 has not complied with the interim directions dt.13.12.2015 of the Forum. In that order it was specifically directed that the OP.4 will bring the vehicle to the roadworthy and handover the same to the complainant within 15 days and the complainant was directed to pay the rest of repair dues to OP.4. This order was flouted by the OP.4. In this case, the complainant is a poor driver and was eking his livelihood out of the income from the vehicle. If his vehicle lies in the garage for an indefinite period, how could he be able to maintain his family? Further the vehicle is hypothecated to TMF with Rs.24, 000/- EMI. How could the complainant pay the EMIs? Considering all those aspects, the Forum had directed OP.4 to repair the vehicle on payment of cost but the OP.4 became adamant in his stand. This inaction of OP.4 in our opinion amounts to deficiency in service for which the complainant sustains a huge loss and the TMF is ready to repossess the vehicle. All those things happened due to the fault of OP No.4. The OP.4 also committed fault by not complying with the interim order of the Forum in spite of knowing that the vehicle is the lifeline of the complainant. Hence OP.4 is to be heavily punished. In view of above facts and circumstances, we feel that it would be proper to direct the OP.4 to repair the vehicle and bring it to the roadworthy at his own costs and handover the vehicle with repair bills. After getting the vehicle and repair bills (whatever may be the amount) the complainant is to produce the same before OP No.5 and the OP.5 is to consider the said bill amount as settled claim amount and to pay the same to TMF immediately for adjustment in the loan dues of the complainant. We do not lay any emphasis on the report of surveyor dt.19.4.2017 regarding the liabilities of OP.5 because the OP.4 says that the estimated cost of repair would be more than Rs.4.00 lacs.
7. Further the OP.5 knows that the vehicle is lying unrepaired in the garage of OP.4 due to want of money with the complainant for a longer period. In these circumstances, the OP.5 should come forward for a garage settlement so that the vehicle would have been repaired soon but the OP.5 did not do so. This inaction of OP.5 also amounts to serious deficiency in service. The complainant also sustained all type of harassment due to OP.5. Hence the OP.5 is to be directed to pay Rs.50, 000/- towards compensation to the complainant.
8. Hence ordered that the complaint petition is allowed in part and the OP.4 is directed to repair the vehicle and bring it to the roadworthy at his own cost and handover the vehicle with actual repair bills to the complainant. The complainant is directed to receive the repaired vehicle with bills and produce the said bills before OP.5. The OP.5 is directed to consider the said bill as claim settled amount of the complainant and pay the said amount to TMF immediately for adjustment against loan dues. Further the OP.5 is directed to pay Rs.50, 000/- towards compensation to the complainant. The above directions are to be complied by the parties within 30 days from the date of communication of this order.
(to dict.)
