IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 25th day of July, 2014
Filed on 13.01.2010
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
- Smt. Jasmine D (Member)
in
C.C.No.9/2010
between
Complainant:- Opposite Parties:-
Sri.Jagal Prasad.P. 1. M/s.Tata Motors Ltd.
Chirayil 26th Floor, Centre No.1
Kattoor P.O, World Trade Centre
Kalavaur Mumbai
Alappuzha – 688 546. rep. by its General Manager
(Adv.K.N.Azhakesan) (Adv.C.Muraleedharan)
2. M/s.R.F.Motors (P) Ltd.
Near Kerala Water Authority
Thiruvampadi P.O.
Alappuzha
rep. by its Manager
(Adv.Anil S.Raj)
3. M/s.New India Assurance Company Ltd.
Alappuzha Branch
Alappuzha,
rep. by its Branch Manager
(Adv.Hemalatha.R.
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The facts of the case are as follows:
This is a case remanded by the Hon’ble CDRC by its order dtd. 31.05.2012 for fresh disposal after giving ample opportunity to the appellant/respondent therein. The complainant purchased a TATA Indigo CSLS 1405 motor car bearing No.KL-04Y-700 from the 2nd opposite party on 04.02.2009. On 12.07.2009 the vehicle fallen in a pond and sustained serious damage to the same. The complainant communicated the 2nd and 3rd opposite parties and the employees of the 2nd opposite party and took the vehicle to its garage. After that the 2nd opposite party informed the complainant and 3rd opposite party that an amount of Rs.5,12,042.10 is needed for repair. Then the complainant informed them that the show room price of the new vehicle is only Rs.4,32,072/- and the calculation for repair is only baseless. Thereafter, the surveyor of the 3rd opposite party inspected the vehicle and prepared a list. But, that was not informed to the complainant. Then the 2nd opposite party demanded Rs.1,65,784/- from the complainant towards repairment and for replacing the items of spare parts. The vehicle was purchased on 04.02.2009 and all spare parts have got 1-3 years of warranty. The complainant has to pay Rs.1,65,784/- to the 2nd opposite party and they have returned the vehicle only after encashment of cheque on 31.10.2009. The 3rd opposite party have paid only Rs.98,480/- as the charges of 51 spare parts and the remaining Rs.67,304/- has met by the complainant himself. Even though the complainant has made a police complaint on 31.10.2009 under the influence of the 2nd opposite party, it was not registered. Hence the complaint is filed claiming the following reliefs:-
- To direct the 2nd opposite party to pay Rs.67,304/- with 18% interest which is received as excess to the complainant.
- To direct the opposite parties to pay Rs.1 lakh as compensation.
2. The version of the 1st opposite party is as follows:- The complainant is not a consumer. The vehicle in question is of excellent quality and the complainant purchased the same on being satisfied with the conditions and performance, the vehicle was attended by the 2nd opposite party in line with the warranty. Specification and assurance provided for it by the 1st opposite party. The warranty provided, it is not covered the accident requires. The complaint is to be dismissed with cost.
3. The version of the 2nd opposite party is as follows:- The complaint had chosen to buy the car from the 2nd opposite party out of his own free will. Since the new vehicle of the complainant had suffered extensive damage, a lot of work would be necessary to restore it to a roadworthy condition, the 1st opposite party prepared an estimate for the same and informed the complainant and surveyor of the 3rd opposite party. An amount of Rs.5,12,002.10 was estimated by including huge amount which would be involved in replacing the patch shell and full body bending and extensive denting besides replacement of other expensive spare parts. Approved surveyor of the 3rd opposite party inspected the vehicle and approved an amount of Rs.33,500/- for repair and Rs.1,500/- for towing the vehicle though the amount paid by the opposite parties for the same was much higher. As a matter of fact, the surveyor approved replacement of around 55-56 parts, but for repairing the vehicle, nuts, bushes, screws, etc. are inevitable. The 2nd opposite party obtained the consent of the complainant over telephone for the said manner of repair. They have not unauthorizedly replaced any funds. The total charge of patching up of the complainant’s car scaled upto Rs.1,65,784/-, the complainant did not turn up any time to take the delivery of the vehicle. Complainant is bound to pay the entire repair charge. There is only a warranty for most repairs caused, the complaint is to be dismissed with costs.
4. The version of the 3rd opposite party is as follows:- There is no deficiency on the part of the 3rd opposite party. 3rd opposite party had issued the policy as per the request of the complainant. The surveyor had inspected the vehicle and filed a report before the opposite party according to the terms and conditions of the policy. On receiving the surveyor’s report, the opposite party had satisfied claim of the complainant as per the surveyor’s report. There is no deficiency on the part of the 3rd opposite party.
The complaint was examined as PW1 and the documents produced were marked as Exts.A1 to A7. Ext.A1 series are the copy of the bills from RF Motors (P) Ltd., Alappuzha (5 sheets) . Ext.A2 is the copy of the receipt dtd. 28.10.2009. Ext.A3 is the legal notice dtd.26.11.2009. Ext.A4 is the copy of the Reply Notice dtd.10.12.2009. Ext.A5 is the copy of the Reply Notice dtd.15.12.2009. Ext.A6 is the copy of complaint before the Alappuzha South Police Station dtd. 31.10.2009 and Ext.A7 is the original receipt from the police station dtd. 31.10.2009.
5. The 2nd opposite party filed proof affidavit and documents produced were marked as Exts.B1 to B5. The surveyor was examined as RW1. The surveyor report is marked as Ext.C1. The 3rd opposite party filed proof affidavit and produced 2 documents and are marked as Exts.B6 and B7.
6. The points for consideration:-
- Whether the complaint is maintainable?
- If there is any deficiency in service on the part of the opposition parties?
- If so, reliefs and costs?
7. It is an admitted fact that the complainant had purchased a vehicle from the 1st opposite party. It is also not in dispute that the vehicle was insured with the 3rd opposite party. The allegation of the complainant is that the 2nd opposite party replaced 104 items of spare parts without his consent and hence an amount of Rs.1,65,784/- is to be paid by the complainant as the labour charge and others. According to the complainant, since the accident occurred during the warranty period, he is entitled to place the warranty items without any cost. There is no document produced by the complainant to resist the contention of the 1st opposite party that accident repairs are not covered by the warranty provided. It is an admitted fact that the accident occurred by the fall of the car in a pond. If it is due to the mechanical defect it should be proved by the complainant. Since there is no document to substantiate the allegation of the complainant, he is not entitled to replace the damaged item without any cost under the veil of warranty.
8. Another allegation of the complainant is that the 2nd opposite party, without obtaining the prior consent of the complainant conducted extra items of work and replaced unnecessary parts, other than the items and works agreed and mentioned in the surveyor’s report without any authority. Ext.B7 is the survey report. The authorized surveyor of the 3rd opposite party was examined as RW1. On cross-examining the surveyor he deposed that he had examined the vehicle in the presence of the mechanic of the work shop. He again stated that “ഏതെല്ലാം സ്പെയര് പാര്ട്സുകളാണ് പൂര്ണ്ണമായും മാറ്റിവയ്ക്കേണ്ടതെന്ന് രണ്ടാം എതിര്കക്ഷിയെ ബോധ്യപ്പെടുത്തിയോ? ബോധ്യപ്പെടുത്തി. Moreover, he stated that while he examined the vehicle on second time ie. after the repairment, he did not see more spare parts were replaced than he suggested. According to the surveyor, 51 items of accessories are to be replaced. The amount assessed by the surveyor is Rs.98,480/-. It is settled law that the surveyor report is an important document and it cannot be brushed aside unless there are specific reasons to do so or where some mala fide on the part of the surveyor established by evidence. In the instant case, there is no reason to disbelieve the report of the surveyor. The 3rd opposite party had satisfied the claim of the complainant according to the surveyor report. Hence there is no deficiency in service on the part of the 3rd opposite party. According to the complainant, the 2nd opposite party replaced 104 items instead of 51items without his consent. The 2nd opposite party stated that since the complainant was hospitalized at the material time they obtained the complainant’s consent telephonically. But complainant sticks to his stand that he has never been hospitalized at the material time. The surveyor of 3rd opposite party examined the vehicle in the presence of 2nd opposite party. If the 2nd opposite party is not satisfied with the report of surveyor he should have inform their objection to the surveyor. In the instant case, the complainant entrusted the 2nd opposite party for repairments. He was under the belief that he needs to pay only the service charge of replacement of 51 items. Instead of that the 2nd opposite party replaced 104 items. The 2nd opposite party failed to prove that he replaced the additional 53 items with the consent of the complainant. Moreover, the 2nd opposite party could not hand over the spare parts that they replaced. According to the 2nd opposite party the work was over by the 1st week of September 2009 and the complainant was requested to collect the vehicle after making necessary payments, but the complainant did not come to take delivery of this vehicle. Since they cannot keep the replaced parts indefinitely, they constrained to send Ext.B2 letter dtd.23.10.2009 by courier to the complainant. But complainant completely denied this contention. According to the complainant, no notice was sent to him through courier. It is pertinent to notice that the opposite party failed to mention the name of the courier service through which the notices sent. Moreover no receipt of acknowledgment from courier service is produced to prove their contention. The opposite party did not show the salvage value of the replaced items or returned the replaced item to the complainant. It has come out in evidence that 51 parts alone was recommended for replacement by the approved surveyor. After the completion of work, the surveyor only noticed 51 parts replaced as per his recommendation. There is no case for opposite parties that the other 53 parts not recommended by the surveyor was replaced with the approval of the complainant also The 53 items so replaced is not returned to the complainant also. But the work sheet produced and the bill of the parts (Exts.3 series and B4 series) show that the other 53 parts were also replaced. Moreover the vehicle was released to the complainant after repair and the complainant received the same without any objection.
9. The real grievance of the complainant is that the 53 other parts were replaced without his prior consent. At the same time the vehicle was delivered in good condition. Hence this Forum finds that the complainant can’t refuse to pay the price of the other 53 parts solely on the reason that prior approval was not obtained by the opposite parties from him. Hence the prayer for the refund of the value of 53 parts claimed by the complainant is refused.
10. However the opposite parties failed to prove the prior consent of the complainant for replacing the other 53 parts, which practice is not encouragable. The refund of the value of 53 other parts is denied only for the reason that the complainant has benefited out of it. Since this deal caused much mental agony and inconvenience to the complainant and also considering the laches from the part of 2nd opposite party in not obtaining the consent of the complainant and also in not delivering the replaced items to the complainant, an amount of Rs.20,000/- is awarded as compensation.
In the result, the 2nd opposite party is directed to pay Rs.20,000/- (Rupees twenty thousand only) to the complainant towards compensation. The 2nd opposite party is also directed to pay Rs.2,000/- (Rupees two thousand only) towards cost of the proceedings. The order shall be comply within one month from the date of this order.
Dictated to the Confidential Assistant transcribed by him corrected by me and pronounced in open Forum on this the 25th day of July, 2014.
Sd/- Smt. Elizabeth George (President)
Sd/- Smt. Jasmine D (Member)
Sd/- Sri. Antony Xavier (Member)
Appendix:-
PW1 – Jagal Prasad.P.
Evidence of the complainant:-
Ext.A1 series - Copy of the bill received from RF Motors.
Ext.A2 - Copy of the receipt dtd. 28.10.09.
Ext.A3 - Legal notice dtd. 26.11.09.
Ext.A4 - Copy of the Reply Notice dtd.10.12.2009.
Ext.A5 - Copy of the Reply Notice dtd.15.12.2009.
Ext.A6 - Copy of complaint before the Alappuzha South Police Station dtd. 31.10.2009.
Ext.A7 - Original receipt from the police station dtd. 31.10.2009.
Evidence of the opposite parties:-
RW1 - V.N.Sivan Pillai
Ext.B1 - Copy of receipt No.461 dtd.13.07.09 for Rs.4,750/-.
Ext.B2 - Copy of photos of the damaged car.
Ext.B3 - Copy of job card from the RF Motors (P) Ltd.,Alappuzha (6 sheets).
Ext.B4 - Copy of Tax Invoice from the RF Motors dtd. 31.08.09.
Ext.B5 - Copy of letter of parking fees from RF Motors dtd.23.10.09.
Ext.B6 - Copy of private car package policy clause.
Ext.B7 - Copy of Motor Survey Report dtd.08.09.09.
Ext.C1 - Surveyor Report
-//True copy//-
By Order,
To Senior Superintendent.
Complainant/Opposite parties/SF
Typed by: Pg/-
Compd. by: Pr/-
