By Sri. Jose V Thannikode, President:
 

The complaint is filed against Opposite Party to return the vehicle after rectifying all defects of the vehicle which is caused due to an accident and to give compensation and cost and the expenses incurred for the repairs of the vehicle and expected repair.
 

Brief of the complaint:-

2. The complainant purchased Brand new Black Honda CB Shine Bike on 17.12.2010 and its registration No. KL 12E 9068 . The Ex showroom price of the bike was Rs.53,619/- and the 1^st Opposite Party had issued a warranty for two years. The said vehicle has been insured with the 2^nd Opposite Party having the validity from 18.12.2010 to 17.12.2011 bearing policy No.76060031100100016440 and the premium amount was Rs.1,097/- within the warranty period on 17.01.2011 Complainant's son when driving the bike met with an accident with an authorikshaw. Thus the vehicle got damaged. The incident was immediately reported to both Opposite Parties and the vehicle was entrusted with 1^st Opposite Party for repair, after repair the vehicle the 1^st Opposite Party collected Rs.1,500/- from Complainant and claim form submitted to 2^nd Opposite Party for claim for Rs.4,000/- as damaged cost. But the 2^nd Opposite Party has not sanctioned any amount for the repair of the vehicle so far.

3. Even after the said repair the defects of the vehicle were not cured and so the Complainant again entrusted the vehicle to the 1^st Opposite Party for rectifying the defects. At that time the 1^st Opposite Party stated that the repair has not done well and there was major repair like replacement of bridge, fork etc., and they offered that the vehicle will be delivered within 13.07.2011 after rectifying the defects.

4. On 13.07.2011 when the Complainant approached the Opposite Party for getting vehicle, the 1^st Opposite Party saying lame excuses without repairing the vehicle, and kept in the premises by exposing to rain and sunshine and till date the vehicle could not repaired.

5. The unnecessary delay in delivering the vehicle has caused inconvenience in agricultural and educational purpose of the Complainant. The non delivery of the vehicle after the repair by the 1^st Opposite Party, non sanctioning of the claimed amount are gross deficiency of services and unfair trade practice from the side of Opposite Parties. Due to the deficiency of service occurred from the side of Opposite Party, the Complainant has sustained inconvenience, heavy financial loss, damages, sufferings, hardships and mental pain and agony. Thus this petition is filed before the Forum directing the Opposite Parties to redress the Complainant's grievances, ie to rectify the entire defects of the vehicle and handover the vehicle with full running condition to the Complainant and to refund the collected amount of Rs.1,500/- at the time of repair and to bear the cost of the second repair and to pay Rs.50,000/- towards loss damages inconvenience mental agony, hardships and sufferings and cost of this complaint.

6. The complaint filed on 28.09.2011 and notices were served to the Opposite Parties on 08.10.2011 and 10.10.2011 respectively. Opposite Party No.1 filed version on 22.12.2011, Opposite Party No.2 filed version on 25.11.2011

7. Opposite Party No.1 in his version stated that there is no deficiency of service from the part of this Opposite Party and stated that they have duly performed their obligations without any delay or default, and have been providing all services as a responsible dealer.

8. The Complainant brought the bike for accident repair. As he had insisted for replacements of all the damaged parts under insurance cover an estimate for replacement was issued for submission to the Insurance Company. Later as he (Complainant) found it difficult to get the insurance cover and the matter was being delayed, on account of the same he had asked for repair of the damaged bike. Accordingly the bike was repaired to the satisfactory of the Complainant and the same taken delivery by him after paying the accident repair charges of Rs.1,500/- on 22.01.2011.

9. Later the Complainant had brought the bike for regular service and checkup (2^nd free service on 17.03.2011 and the 3^rd free service on 16.05.2011) and after free service the complainant took the vehicle endorsing full satisfaction.

10. On 12.07.2011 the Complainant brought the vehicle for accident repair stating that the bike met with another accident and also stated that along with accident repair 4^th free service also to be made together.

11. The Opposite Party has repaired the vehicle as per the request by the Complainant and the vehicle kept ready for delivery. The total bill amount for repair was Rs.6,752/- which the Complainant has to pay and can take delivery of the vehicle and further states that the Complainant had been protracting the matter stating that the insurance company would pay the amount and he is taking the necessary steps for the same. But it appears that the insurance company has declined to entertain the claim and the complaint is antagonised by the same and is now attempting to sum how or other get back on them and this Opposite Party is also unnecessary dragged into the same and in view of the matter this Opposite Party is not liable or responsible for any of the reliefs seen claimed and prayed to dismiss the complaint awarding compensatory costs as contemplated under section 26 of the Consumer Protection Act.

12. Opposite Party No.2 filed version and stated that the vehicle insured with 2^nd Opposite Party and an accident claim request was received and it was processed by the surveyor and on the basis of survey report this Opposite Party has settled the claim for Rs.1,050/- and a voucher for Rs.1,050/- is signed by the Complainant and the cheque was forwarded to the Complainant vide forwarding letter dated 28.04.2011. And in their chief affidavit, the Opposite Party further stated that, After filing the complaint it is understood that the cheque for Rs.1,050/- send by the Company infavour of the petitioner was not served on him and hence the company has produced the cheque for Rs.1,050/- before the Forum and further stated that the complainant is not entitled to get any amount of compensation and there is no deficiency of service on the part of this Opposite Party and prayed that the petition may be dismissed with cost of this respondent.

13. On considering the complaint, versions, affidavits and documents produced by both parties the following points are to be considered.

1. Whether there is any deficiency of service on the part of the Opposite Parties?

2. Relief and cost.

14. Point No.1:- The complainant filed chief affidavit in addition to the complaint and he has stated as stated in the complainant. He produced Exts.A1 to A5, Ext.A2 is the insurance certificate of the disputed vehicle. From the side of 2^nd Opposite Party Exts.B1 to B6 is marked.

15. Ext.B1 series is the parts requisition slip and Job card , bills etc., which shows that the vehicle is entrusted with 1^st Opposite Party for repair on 12.07.2011 and thereafter the bills dated 13.10.2011 worth Rs.6,752/- shows that the bike was kept ready after repair only on 13.10.2011. Ext.B2 is the motor final survey report for vehicle No. KL 12E 9068 dated 22.01.2011, which shows that in the month of January 2011 the bike met with an accident and a claim application received by 2^nd Opposite Party and proceed the claim and settled the claim for Rs.1,050/-. Ext.B4 is the cheque forwarding letter to the Complainant for Rs.1,050/- which shows that the 2^nd Opposite Party has sent the cheque bearing No.94398 to the Complainant, which also shows that Opposite Party owes Rs.1,050/- to the Complainant on 21.03.2011, and the cheque for Rs.1,050/- bearing No.098045 dated 09.03.2012 produced before the Forum ( as stated in the chief affidavit of the 2^nd Opposite Party) shows that the cheque already send to the Complainant is not accepted by the Complainant.

16. Further the Complainant deposed in the cross examination that “ hWn¡v AsI Hcp A]ISta ]änbn«pfq. cWmas¯ repair ]Ww In«m³ claim form \ÂInbn«nev” Which proves that the above said vehicle not met with a second accident and for the second repair no claim form is submitted to the 2^nd opposite party.

17. In the above circumstances we are in the opinion that the Complainant's bike met with an accident in the month of January 2011 and entrusted with 1^st Opposite Party and claim form is submitted to 2^nd Opposite Party. 1^st opposite Party has repaired the bike and received the repair charge and the vehicle is taken back by the Complainant and 2^nd Opposite Party processed the claim application and settled the claim for Rs.1,050/- and any way the complaint is not received the settled claim amount till today, it is the deficiency of service from the side of 2^nd Opposite Party. So the Complainant is entitled to get the claim amount of Rs.1,050/- with 12% interest from the date of 21.03.2011 onwards. The 2^nd Opposite Party is liable to pay Rs.1,050/- with interest @ 12% per annum from 21.03.2011 till payment and the 2^nd Opposite Party is at liberty to get back the deposited cheque from the Forum.

18. And for the second repair the Complainant entrusted the vehicle to the 1^st Opposite Party on 12.07.2011 which is evidenced from the B1 series document. The bike was kept ready for delivery only on 13.10.2011 which is evidenced from Ext.B1 series document (Bill). The 1^st Opposite Party took 3 months for repair, it is the deficiency of service from the part of 1^st Opposite Party. And after paying the repair charge not taking delivery of the bike which was kept ready for delivery is the fault on the part of the Complainant. The complainant can very well seek relief after taking the bike for the delay caused for repairing the bike. The point No.1 is decided accordingly.

19. Point No.2:- So the Complainant is entitled to get Rs.50/- per day for the delay of 75 days in repairing the bike (ie total delay is 90 days- 15 days reasonable time for repair) from 1^st Opposite Party and the 1^st Opposite Party is entitled to get Rs.6,752/- with 12% interest from 13.10.2011 as repair charge and keeping charges from the complainant. And the complainant is entitled for Rs.1,050/- with interest at the rate of 12% per annum from 21.03.2011 from the 2^nd Opposite Party, and the point No.2 is decided accordingly.

In the result, the Complainant is directed to pay Rs.6,752/- (Rupees Six thousand Seven hundred and Fifty Two) only with 12% interest form 13.10.2011 to the 1^st Opposite Party and take delivery of the vehicle, and 1^st Opposite Party is directed to pay Rs. 50/-

(Rupees Fifty) only per day for the delay of 75 days in repairing the bike to the Complainant (ie total delay 90 days - 15 days reasonable time for repair) and 2^nd Opposite Party is directed to pay the claim amount of Rs.1,050/- (Rupees One thousand and Fifty) only with interest at the rate of 12% per annum from 21.03.2011 to the Complainant till payment and 2^nd Opposite Party can receive back the cheque deposited before the Forum after paying the amount and no order as to cost and compensation. All the party is directed to comply the order within one month of receipt of this order.

Pronounced in the open Forum on this the 31^st day of July 2013.

Date of filing:26.09.2011.

PRESIDENT: Sd/-

MEMBER : Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

A P P E N X I X

Witness for the Complainant:

PW1. K.P. Vijayan Complainant.

Witnesses for the Opposite Parties:

OPW1. Shaji. P.V Branch In charge K.T.C. Motors, Kalpetta.

OPW2. Harikumar Chelli. Senior Manager, New India Assurance Company,

Kalpetta.

Exhibits for the Complainant:

A1. Copy of Booking Form.

A2 series (2 sheets) Copy of Motor Vehicle Cover Note and Policy Schedule cum

Certificte of Insurance.

A3. Copy of Driving Licence dt:02.08.2010.

A4. Copy of Certificate of Registration.

A5 series (2 Nos) Acknowledgement.

Exhibits for the Opposite Parties:

B1 series (7 sheets) Job Card.

B2. Motor Final Survey Report for Vehicle No. KL12E 9068.

B3. Copy of Receipt.

B4. Copy of Letter. dt:28.04.2011.

B5. Copy of Payment Voucher dt:21.03.2011.

B6. Coppy of Policy Schedule cum Certificate of Insurance.