Date of filing : 12-09-2011
Date of order : 11-10-2013 Date of order : 03 -10-2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.232/2011
Dated this, the 11th day of October 2013
PRESENT
SMT.P.RAMADEVI : PRESIDENT
SMT. K.G.BEENA : MEMBER
Premkumar.B, S/o.Bhavanandan, Manager, : Complainant
Ray Enginering Private ltd, HAL Site,
Having its registered Office at 1/462A,
Opp. BPCL Kochi Refineries Ltd,
Ambalamugal Po. Kochin.
(Adv. A.Rajagopala, Kasaragod)
The Manager, M/s. T.V.Sundaram Iyangar & Sons,: Opposite party
Thottada.Po. Kannur.
(Advs.V.Krishna Menon,.P.J.Anilkumar,
K. Devidas, Prinsun Philip, P.Narayanan
Kochi)
O R D E R
SMT.K.G.BEENA, MEMBER
Complainant is alleging deficiency in service on the part of opposite party, as they failed to return the vehicle after repair within the stipulated time to the complainant. Moreover opposite party colluded with the insurer to reduce the claim amount due to the complainant. Complainant’s vehicle met with an accident and after complying with the statutory formalities complainant entrusted the said vehicle to the workshop of the opposite party for carrying out certain accident repairs. Opposite party agreed to return the vehicle after repair within 10 weeks. After the expiry of 10 weeks as agreed, the opposite party has neither returned the vehicle after repair, nor informed the reasons for delay. The act of opposite party caused mental agony and monitory loss to the complainant. Hence the complaint for necessary redressal.
2. Opposite party filed version stating that complainant is not a consumer as defined under Sec.2 (1) (d) of the Consumer Protection Act 1986. The complaint is liable to be dismissed for mis-joinder of necessary party. But it is admitted by opposite party, that the complainant had entrusted his vehicle with the workshop of opposite party for carrying out certain accident repairs. As the complainant wanted to have the repairs earned out under insurance coverage. Opposite party prepared and submitted insurance coverage suggesting replacement of the body shell. The surveyor after inspecting the vehicle refused to accord sanction for replacement of the body shell. It is specifically informed to the complainant that repairs could be completed only on receipt of necessary parts from the manufacturer. There was some delay on dispatching the necessary parts which was beyond the control of opposite party. As soon as the necessary parts having been received, the vehicle of the complainant had been repaired and kept ready for delivery. There has been no deficiency in service or unfair trade practice on the part of opposite party. Opposite party is in no way liable or responsible to compensate the loss of the complainant.
3. Complainant’s Power of Attorney Holder filed proof affidavit, Exts A1 to A9 marked. Complainant is cross examined on affidavit. Eventhough opposite party prayed time for their evidence in 3 postings, they failed to adduce evidence. Thereafter also, opposite party’s counsel prayed time for production of documents in 3 consecutive postings. They failed to produce the same. Both sides heard and documents perused. Opposite party filed IA.374/12 to re-open the case. Complainant is further cross-examined by the counsel of opposite party on 6-8-2012. Here the points raised for consideration are:
4 1 Whether the complainant is a consumer?
2 Whether there is deficiency in service on the part of opposite party?
3 Whether the complainant is entitled for reliefs as claimed in the complaint?
5. Point.No.1: Consumer means any person who:-
(1) Buys any goods for a consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payments and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose.
(2) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services…….
6. Complainant will fall under second part of the definition. He hires or avails services for consideration, which is promised to be paid after repair. Ext.A4, photocopy of the receipt of advance payment Rs.10,000/- is a part payment, which is accepted by opposite party, complainant demanded the service of opposite party for which part payment is made through Ext.A4. Hence the complainant is definitely a consumer. Complainant produced Ext.A4 photo copy of the receipt of payment of Rs.10,000/- to opposite party M/s Sundaram Iyankar & Sons Ltd as an advance paid for Jeep repairing. Ext.A4 proves that opposite party is not a mis-joinder of necessary party.
7. Issue No.2: Whether there is deficiency in service on the part of opposite party?
The complainant’s vehicle met with an accident and entrusted to opposite party for repair on 8-2-2011. Complainant made advance payment of Rs.10,000/- for repair as he is badly in need of a vehicle for his daily use. Even after the stipulated time of delivery of the vehicle after repair opposite party has not informed the reason for the delay to the complainant. As a result of the delay, complainant is constrained to hire a vehicle for his regular use. Complainant deposed before the Forum that opposite party colluded with the insurer to reduce the claim amount due to him. Complainant received the vehicle after repair on 4th August 2011. After 5 months 27 days, this proves deficiency in service on the part of opposite party. As per Ext.A1 the vehicle is a new one, Mahindra Bolero SLX 2WD registered on 2010. After the stipulated period of delivery of vehicle after repair complainant sent a lawyer notice dated 24-06-2011 demanding to deliver the vehicle after repair with an amount of Rs.1,18,000/- within 7 days of receipt of notice. Due to the deficiency in service on the part of opposite party, complainant was constrained to hire taxi for his regular use. Thus the irresponsible act of opposite party caused unnecessary monitory loss and mental agony to the complainant. Another serious allegation raised by the complainant against opposite party is that, they colluded with the insurer to reduce the claim amount due to him, which is a serious allegation, unable to prove with documentary evidence; if it is true, it amounts to unfair trade practice.
8. Issue No.3: The Mercecles-Benz India Pvt Ltd V Later Card (India) Ltd (NCDRC) CPJ P.48. The case of the complainant is that no justifiable explanation was given to him for long delay caused in repairing, the vehicle remained at the workshop of respondents about 3 ½ months. No justifiable explanation for long delay caused in delivery of the vehicle after repair. Complainant was suitably compensated for the same. In this case the delay is nearly six months no justifiable explanations is given by opposite parties. So we are of the view that the complainant is entitled for compensation.
9. The two allegations raised by the complainant against opposite party are, deficiency in service and unfair trade practice. The documents produced by the complainant tallies with his complaint. So we are of the opinion that the loss and mental agony of the complainant is to be compensated.
In the result, the complaint is allowed and opposite party is directed to pay Rs.1,65,850/- as compensation to the complainant being the actual monetary loss suffered by him and also further directing to pay Rs.10,000/- for mental agony and sufferings and Rs.1000/- being the cost of the proceedings. Time for compliance 30 days from the date of receipt of copy of the order.
Sd/- Sd/-
MEMBER PRESIDENT
Exts.
A1. Photocopy of RC No.KL-40-D-5121.
A2. Photocopy of Certificate of Insurance & Policy Schedule
A3.Original delivery receipt
A4.25-03-2011 receipt issued by OP to complainant for an amount of Rs.10,000/-
A5.24-06-2011 copy of lawyer notice.
A6.28-07-2011 reply notice.
A7. Ledger account
A8 .Series receipts
A9.Series tourist taxi receipts
PW1. Thomas.K.O.
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
SENIOR SUPERINTENDENT
Pj/
