IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 25th day of January, 2022
Filed on 11.01.2021
Present
1. Sri.S.Santhoshkumar, BSc.LLB (President)
2. Smt.C.K.Lekhamma, BA, LLB (Member)
In
CC/No.11/2021
Between
Complainant:- Opposite party:-
Smt.NishaSanal, aged 31 years, The Manager
W/o Sanal, Hyundai Sales and Services Centre
SanalBhavan, Mavelikkara-P.O
Elippakkulam, Mavelikkara.
Mavelikkara (Adv. Babu Joseph)
Alappuzha
Represented by the Duly Authorized Agent
Adv.K.Murali, aged 58 years,
S/o P.K.Kunjupillai,
Paickattutharayil,
Chunakkara-PO
Mavelikkara
(Adv. Ananya Menon )
O R D E R
SMT.C.K.LEKHAMMA (MEMBER)
The facts leading to the complainants are as follows:-
1. The complainant is the owner of 2016 model Hyundai i20 car bearing Registration No.KL-31-K/3063 with Engine No.GLAGM164600, having Chassis No.MALBL51BLGM293947H. Now the complainant is working in a private company in Dubai.
2. Complainant bought this vehicle from Sajithamba, PaickattuTharayil, Chunakkara. The vehicle has met with an accident on 17.11.2017 while Smt.R.Sajithamba drove it. Following the accident, the vehicle has been shifted to the opposite party’s service center at Mavelikkara for repair. The opposite party assessed the damages and given an estimate of Rs. 2,73,000/-
3. The opposite party informed the complainant that the vehicle is ready to release and to remit the repair charges, Since the vehicle was duly insured, the insurance company allowed the fund and issued a cheque for the same in favor of the opposite party. But the opposite party declined to accept the cheque and demanded liquid cash but the Insurance company declined to pay liquid cash. Finally, the cheque collected by the power of attorney of the complainant, she was in gulf so it had taken some times to encash the cheque amount. Mean while the vehicle immersed in flood water in the month of August 2018.
4. Many times the Duly Authorized Agent of the complainant called on the opposite party and requested the opposite party to allow him to inspect the vehicle in order to assure whether the vehicle fit to be used in future but the opposite party did not allow for the same. Hence 04.12.2019 sent a notice to the opposite party offering the repair charges with a request to allow the Duly Authorized agent to inspect the vehicle but the opposite party paid no heed at all and again and again on 10.06.2020, 26.06.2020, 30.07.2020 and 06.08.2020 sent notices to the opposite party but not fruitful reply was given by the opposite party has sent notice to the complainant allowing to inspect the vehicle. As such he along with a Mechanic Mr.Suresh called on the opposite party at Mavelikkara on 05.08.2020 at 2.30 PM but the vehicle had been removed from there to some other places. This was also intimated to the opposite party by a letter dated 05.08.2020. If the opposite party was honest to their client, they ought to have allowed the Authorized agent of the complainant to inspect the vehicle as they promised. But repeatedly sending notices to the opposite party without answering or mentioning the actual issues.
5. The vehicle become un useful by immersing the same in flood water. It happened due to the negligence and irresponsibility of the opposite party. It is the bounden duty of the opposite party to handle the vehicle with utmost care and due diligence. But the opposite party kept the vehicle in open space and allowed to ruin the same in rain and sunlight and at the same immersed in flood water also hence the vehicle become unuseful and caused much damages to the complainant. Now the complainant believes that the opposite party ought to have been removed the genuine parts of the vehicle for their unlawful enrichment and make loss to the complainant that is why the opposite party is not allowing the complainant to inspect the vehicle. From the part of the opposite party there is deficiency in service hence the complainant is entitled to get sufficient compensation for the same hence this petition.
6. The complainant is a consumer by hiring the service of opposite party for ample consideration. But the opposite party did not provide quality service to the complainant thereby there is a deficiency in service hence the complainant is a competent party to file this complaint before this commission for redresses the following grievances.
A) Directing the opposite party to pay Rs.6,00,000/- (Rupees Six lakhs only) with 18% interest as the cost of the vehicle to the complainant
B) Allowing the opposite party to set off Rs.2,70,000/-, as the repair charges of the vehicle, from prayer A amount.
C) Allowing the complainant to realize the amount mentioned in prayer A after deducting prayer B amount from the opposite party and from their assets.
Version of the opposite party is as follows:-
7. Smt.NishaSanal is the owner of 2016 model Hyundai i20 car Registration No.KL-31-K-3063/Engine No.G4LAGM164600-Chasis No.MALBL51BLGM293947H. The opposite party has no knowledge that the complainant has appointed Adv.K.Murali as her authorized agent to file a complaint against the opposite party in this Commission. Opposite party may be allowed to verify the authorization letter from complainant.
8. As per records of the opposite party, the vehicle in question was originally owned and possessed by Mrs.Sajithamba, Paickattutharayil, Chunakkara. The opposite party understands that this lady is the wife of Adv.Murali, the authorized agent of the complainant and staying together at Paickattutharayil, Chunakkara Alappuzha District. Understand that the vehicle has met with an accident on 17.11.2017 at Mavelikkara while the above R.Sajithamba was driving the vehicle.
9. The damaged vehicle was shifted to opposite party’s service centre at Mavelikkara and taken up for estimate on 20.11.2017 after getting approval from New India Assurance Company with whom the vehicle was insured. The damages were assessed and an estimate for Rs.2,73,000/- was prepared and allowed by Insurance Surveyor.
10. The entire repair work of the vehicle was over as on 19.04.2018 and intimation given to Adv.Murali to take delivery of the vehicle after making the payment. He has not responded to phone calls made several times. Insurance surveyor inspected the vehicle after repairs and he has advised up to raise repair bill. Adv.Murali visited our service centre, inspected the vehicle and took from us advance payment receipt for submitting to the Insurance company. He has been taken the advance payment receipt from us after giving an undertaking in writing that payment will be made to us as and when the insurance claim is received by registered owner. The repair bill amount of Rs.26,800/- was cleared by the Insurance company and credited to the account of Smt.NishaSanal on 20.06.2018 based on the advance payment receipt and invoice obtained by Adv.Murali from opposite party’s service centre. The Insurance company has confirmed in writing that the payment has already been released to the registered owner of the vehicle on the strength of documents issued by the opposite party. Even after getting the insurance amount from the Insurance company, neither the complainant has paid the money to the opposite party nor has she taken delivery of the vehicle.
11. When repeated reminders did not elicit any response from Adv.Murali, the then representative of the complainant, we tried to contact Smt.NishaSanal registered owner of the vehicle over phone many times. When our calls remained unanswered, representative of opposite party visited her house at Chunakkara. We were told by her relatives that she has left India for the Middle east. Then opposite party lodged a complaint with CI of Police, Mavelikkara 16.11.2019 vide receipt No.48. There after the opposite party contacted her over phone and informed that her car is still lying with us duly repaired due to non-payment of the repair bill. She said that the bill amount has already been given to her agent Adv.Murali for onward payment to the opposite party. The payment has not been made to the opposite party and delivery of the vehicle has not been taken by Adv.Murali.
12. The vehicle was inspected by Adv.Murali when he came to our service centre to take the advance payment receipt. Also the surveyor has inspected the vehicle after completion of the repair and given satisfaction note to the Insurance Company. Based on completion of the repairs as per approval given by the Insurance Company and satisfactory inspection report of the surveyor. The payment was released to the registered owner of the vehicle.
13. We invited Adv.Murali to inspect the vehicle on 22.08.2020. Though he has agreed to visit our Enathu Service facility, he has not turned up. The entire story made out by Adv.Murali is a ploy to deny due payment to us
14. The vehicle has never been immersed in water as the complainant alleged. The complainant’s delay of months taking delivery of the fully repaired vehicle after repairs has caused some issues on the battery and seat covers. These defects can be set right. But before we do any further job on the vehicle, the complaint must pay to us the amount of repair bill received from the Insurance Company.
15. We have given best service as per norms of Hyundai Motor India Ltd. The registered owner and her agent failed to take delivery of the repaired vehicle in time. We are ready to deliver the vehicle to the complainant once our payment is received. The opposite party is not responsible for defects developed on the vehicle kept for a long duration of period after repairs. Taking delivery of the vehicle after satisfactory repair was the responsibility of the complainant. Instead of making payment of the repair bill and taking delivery of the vehicle, the representative of the complainant Adv.Murali has denied the payment to us. Denial of payment by Adv.Murali is a breach of undertaking and assurance given in writing by him.
16. When the opposite party filed a police complaint with the CI of Police, Mavelikkara and requested her to make our payment and take delivery of the vehicle, Adv.Murali took the role of her advocate and started sending us legal notices. These notices were having incorrect statements and threatening postures with a view to pressurizing opposite party.
18. All notices issued by complainant were replied by the opposite party.
| | 19.Points for consideration are as follows:- 1. Whether the opposite party has committed any deficiency in service?. 2. Relief and cost if any? 4. The complainant represented through her advocate, Ext.A9 is the authorization, he was examined as Pw1. Ext.A1 to A9 were marked. Opposite party was adduced oral as well as documentary evidence. RW1 was examined and Ext B1 to B9 were marked. Thereafter we have heard both sides. Point No. 1:- 20. One of the contentions taken by the opposite party is that Ext. A9 is a sham document, it seems that the signature contained in it is not attested.Pw1 is an advocate, who is conducting the case on behalf of the complainant, since she is residing abroad. Being an advocate, pw1 has sufficient knowledge and awareness of the importance and validity of the document if it is not properly attested. It seems that this complaint was filed under the provision of the Consumer Protection Act, which is a beneficial legislation to protect the interest of the consumers and can be construed liberally. Therefore, we have no hesitation to hold that even in the absence of written authorization anybody under the complainant can be proceeded to conduct the case on behalf of the complainant. 21. The case of the complainant is that the disputed vehicle has been brought to the opposite party for repairing after it met with an accident on 17.11.2017. The opposite party informed the complainant that the vehicle is ready to release and to remit the repair charges. The insurance company allowed the insured amount of Rs.2,73,000/- and issued a cheque in favour of the opposite party. But the opposite party declined to accept the cheque and demanded liquid cash. So Pw1, the power of attorney holder of the complainant collected the cheque deposited in the account of the complainant. It had taken time to encash the cheque. Meanwhile, the vehicle was immersed in flood water in August 2018. The opposite party did not allow the pw1 to inspect the vehicle and assess the damage with the help of an expert. 22. Opposite party has denied the allegations of the complainant and pleaded that the entire repairing of the vehicle was completed on 19.4.2018 it was communicated to the Pw1 to take delivery of the vehicle after making the payment. But pw1 did not respond. The insurance company has cleared the repairing amount and credited it to the account of the Complainant on 20.6.2018 itself, but the complainant has not handed over said amount to the opposite party and has not ready to take the delivery of the vehicle as agreed. The vehicle has never been immersed in water. 23. The question is whether the opposite party has committed any negligence or deficiency in service to repair and handed over the vehicle as they agreed. It is to be noted that paragraph 4 of the proof affidavit pw1, complainant admitted that the opposite party informed the complainant that the vehicle is ready to release and to remit the repairing charges. Further deposed that the insurance claim has received after the vehicle was repaired. The claim amount has been credited to the complainant's account on 26.6.2018, It is to be noted the contradiction in the following testimony of the PW1 deposed that during this period the complainant was abroad and the cheque has been collected by the pw1 he adds that, the complainant did not give the power of attorney for collecting the cheque. Further, he deposed that the said amount has been entrusted by the complainant to his wife and he is not remembering how he had transferred money to his wife. He adds that he is ready to produce evidence about the transfer of said amount to his wife. Further, that the amount credited in the complainant's account might be in July 2018. On perusal of Ext.B3 dtd. 20.6.2020 is the letter issued by the insurance company to the opposite party, in which it is mentioned that ‘we have settled the above claim to the insured directly on 20.6.2018’ and also mentioned that the vehicle was also re-inspected by their Surveyor. It is crystal clear from the evidence that before 20/6/2018, the vehicle was repaired. In Ext. A5 letter by the opposite party, in which mentioned that the vehicle was repaired on 19.4.2018.on perusal of evidence it revealed that the oral evidence of the Pw1 will not help him that the vehicle was not repaired by the opposite party before the flood on the contrary, it revealed that it is only the fault or latches of the complainant that she could not pay the repairing charge to the opposite party as agreed, though the insurance company transferred the amount in time to her. Therefore failed to prove that the opposite party committed deficiency in service. Hence the complaint is devoid of any merit. 24. Point no.3.:- In the result, we dismiss the complaint. No order for cost. | |
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 25th day of January, 2022.
Sd/-Smt.C.K.Lekhamma (Member)
Sd/-Sri.S.Santhosh Kumar (President)
Appendix:-Evidence of the complainant:-
PW1 - Adv.K.Murali (Complainant)
Ext.A1 - Legal Notice
Ext.A2 - Notice dtd.10/6/2020
Ext.A3 - Notice dtd.26/6/2020
Ext.A4 - Notice dtd.30/7/2020
Ext.A5 - Letter dtd. 28/12/2019
Ext.A6 - Registered Letter dtd. 22/6/2020
Ext.A7 - Letter dtd. 20/7/2020
Ext.A8 - Letter dtd. 19/10/2020
Ext.A9 - Letter of Authorisation dtd. 5/11/2019
Evidence of the opposite parties:-
RW1 - Radhakrishnan V.(witness)
Ext.B1 - Invoice Summary
Ext.B2 - Repari Order dtd/20/12/2017
Ext.B3 - Letter dtd. 2/6/2020
Ext.B4 - Copy of Petition dtd. 18/11/2019
Ext.B5 - Letter with Postal Receipt dt.28/12/2019
Ext.B6 - Letter dtd. 19/9/2020
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Compared by:-
