Tamil Nadu

Vellore

CC/10/39

K.Sendhil Raj - Complainant(s)

Versus

The Managing Director,Sarvesh Cars And Motors Pvt Ltd - Opp.Party(s)

J.Sridharan

14 Jun 2022

ORDER

                                                                                                   Date of filing :  26.08.2010                                                                            

                                                                                           Date of Order:  14.06.2022 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE AT VELLORE DISTRICT.

          PRESENT:   THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L    PRESIDENT

                               THIRU. R.  ASGHAR KHAN, B.Sc. B.L.                  MEMBER – I

                               SELVI. I. MARIAN RAJAM ANUGRAHA,  M.B.A.   MEMBER - II

                                                                                                                       

TUESDAY THE 14 ^th DAY OF JUNE  2022 

CONSUMER COMPLAINT NO.39 / 2010

 

Thiru. K. Senthil Raj,

Son of Thiru. N. Krishnamoorthy,

No: 535, Maraimalai Adigal Street,

Gandhi Nagar East,

Vellore 06.                                                                                               ...Complainant

 

-Vs-

1. The Managing Director,

    Sarvesh Cars and Motors Pvt. Ltd,

    No. 296-3/2, Indira Nagar,

    Perumugai,

    Vellore 632 009.

 

2. The Manager,

    Ford Plant and Corporate Office,

    Ford India Pvt Limited,

    S.P. Koil Post,

    Chengalpattu 603 204.

 

3. The Regional Manager,

    Ford  India Pvt Limited,

    Block-IB, 1^st Floor,

    RM2 Millenia Business Park,

    No. 143, Dr. MGR road,

    North Veeranam Salai,

    Perungudi,

    Chennai – 96.                                                                           …Opposite parties

   

 

Counsel for Complainants                   :     Thiru.   J. Sridharan

 

Counsel for Opposite parties- 1 to 3    :     Thiru. G. Ravi        

 

ORDER

 

 

THIRU. A. MEENAKSHI SUNDARAM, PRESIDENT

 

This complaint has been filed under section 12 of Consumer Protection Act 1986. To directing the opposite parties to repay a sum of Rs.25,000/-  with interest and to pay a sum of Rs.1,00,000/- as damages for mental agony, inconveniences, loss and hardship due to gross deficiency of service along with interest at the rate of 18% per annum and also to pay a sum of Rs.1,00,000/- as compensation and Rs.50,000/- towards the cost of this proceedings.  

 

1. The case of the complaint is as follows:

 

The complainant is the owner of the Ford Ikon  bearing registration No.TN39 AC 9898.   He used to do periodical service with the first opposite party.  He also followed the instructions given in the user manual of the third opposite party.  On 05.03.2010 while the complainant was proceeding on his car to Vellore, near market a tricycle try to over take the complainant’s car and the driver of the tricycle lost his control and dashed with right side of the car.   As a result, right side car paint was damaged. Immediately, he has intimated to the first opposite party and surrenders the car on 08.03.2010 with them.  The Manager of the first opposite party accepted the  proposal form  and assured to deliver the vehicle within a week after rectify the paint damage. After one week when the complainant  came for taking delivery of the vehicle, he found shock and surprise that left side of the car paint was damaged.  He learn that one Magesh who was employees of the first opposite party had damaged the left side of the car paint for the purpose of coverage of insurance policy.  The complainant never give consent for making such damages to the car by the first opposite party. Immediately, the complainant take the matter before the first opposite party, the first opposite party find fault against the said Magesh and removed from service. Further the first opposite party assured the complainant to rectify the entire paint work at the cost of the insurance coverage or from their personal fund. Once again the complainant approached the first opposite party after one week.  At that time  the first opposite party told that the insurance company did not accept the cost incurred towards repairing the  left side damage and directed the complainant to pay a sum of Rs.25,000/-.   When the complainant  questioned the same, the first opposite party told that if you want delivery of the car used to pay entire amount to the first opposite party.  Due to the above reason the first opposite party have dragged the complainant and deliver the car only on 8.4.2010 after receipt of the said amount.   The complainant is not satisfied with the painting work done by the first opposite party.  He learned that the third opposite party had hired the some local painters and paint the car as against rules and regulations of the third opposite party.   The appearance of the car look like a second hand car.  The complainant was cheated by the first opposite party.  He never given any consent to the first opposite party service Manager Magesh to make damage the left side paint of the car.  According to the complainant whatever his workman has done it will be considered   as if done by the first opposite party.  Hence, the opposite parties are vicariously  liable to compensate the complainant.

2. Written version of first opposite party filed  and adopting second and third opposite parties are  as follows:

          The complainant was not maintained the vehicle regularly.  The first opposite party service centre itself was opened only on 26.02.2010 whereas the car was  manufacture in the year of 2005.  On 08.03.2010 complainant brought his car to this opposite party service centre alleging that  the car was involved in a minor accident with a tricycle in which the right side paint of the car was damaged.  He wanted to paint whole body of the car at the cost of insurance company.  Further he assured that apart from whatever the insurance company pays towards the claim, the complainant gave assurance to pay the balance cost for the whole body painting.  Accordingly the complainant submitted the claim form to the insurance company and asked first opposite party to rectify the right side damage alone.   He also wanted to carry out 7000 K.M service and to check engine noise, head lamp focusing, belt noise and about getting cut off frequently.  Accordingly repair work and service work was completed.  The complainant came to service centre and he wanted  to do whole body painting.  He also agree to pay the balance amount after deducting the  amount sanctioned by the insurance company.  The first opposite party charged a sum of Rs.30,000/-.  On request by the complainant it has been reduced to 25,000/- by the first opposite party.  The insurance company had sanctioned only 6800/- as per surveyor’s report.  Therefore the complainant should pay the balance amount along with charges for other spares and services done at the request of the complainant.   However, the complainant did not take the delivery of the car immediately saying that he could not mobilise funds   to pay the bills of the third opposite party.  On 09.04.2010 he paid a sum of Rs.47,251/- voluntarily including sum of Rs.6,800/- sanctioned by the insurance company.  He took delivery of the vehicle in good condition on the very same day.  It is false to state that the service Manager of the third opposite party Mr. Magesh himself had damaged the left side of the car for the purpose of getting  insurance claim and as such he was   removed from the service of the third opposite party. The third opposite party never given any assurance to the complainant to bear the cost of the painting, if insurance company did  not pay full claim. There was no damage caused to the left side of the car as alleged by the complainant.   Damage was only on right side of the car.  Complainant initially insisted for total car paint from insurance claim.   The  third opposite party inform to the complainant if the insurance company sanctioned lesser  amount than bill amount the complainant should bear the balance cost.  The complainant  agreed for the same.  The whole body painting was done with the consent of the complainant.  After taking the delivery of the car again complainant brought his car to third opposite party service centre on 15.04.2010 and took delivery of the car on 16.04.2010 after paying service charge of Rs.4,769/-.  This would show that even with regard to previous service, the complainant fully satisfied with the service of the first opposite party.  If at all there was any problem  in the previous service by the third opposite party, the complainant could not have opted for further service with this opposite party.   The opposite party learns that the complainant subsequently with the ill- conceived  the idea of getting back the cost paid by him towards the painting.  It false to state that he has suffered  lot of mental agony and mental worries due to first opposite party acts.  Hence, this complaint  may be dismissed with cost.  

3.      Proof affidavit of complainant filed.  Exhibits A-1 to A-5 were marked.  Proof affidavit of opposite parties not filed.  No Documents was not filed.  Written arguments of both sides not filed. 

4.  THE POINTS THAT ARISES FOR CONSIDERATION ARE:    

1.Whether there is any deficiency in service on the part of the

              opposite parties ?    

2. Whether the complainant is entitled for relief as claimed in the complaint?

           3.To what  relief, the complainant is entitled to?

 

 

5. POINT NOS.1&2:   The complainant is the owner of the Ford Ikon bearing registration No.TN39 AC 9898.   He has done periodical service with the first opposite party.  He also followed the instructions given in the user manual of the third opposite party.  On 05.03.2010 while the complainant was proceeding on his car to Vellore, near market a tricycle try to overtake the complainant’s car and the driver of the tricycle lost his control and dashed with right side of the car.   As a result, right side car paint was damaged. Immediately, he has intimated to the first opposite party and surrenders the car on 08.03.2010 with them for service.  The Manager of the first opposite party accepted the  proposal form  and assured to deliver the vehicle within a week after rectify the paint damage. After one week when the complainant came to the first opposite party service centre for taking delivery of the vehicle, he found shock and surprise that left side of the car paint was also damaged. He learns that one Mr. Magesh who was employees of the first opposite party had damaged the left side of the car paint for the purpose of insurance coverage.  He has never given any consent for making such damages to his car by the first opposite party. Immediately, the complainant took the matter before the first opposite party, the first opposite party find fault  against the said Mr. Magesh and removed from service.  Further the first opposite party assured the complainant to rectify the entire paint work at the cost of the insurance coverage or from their personal fund. Once again the complainant approached the first opposite party after one week.  At that time,  the first opposite party told that the insurance company did not accept the cost incurred towards repairing the  left side damage and directed the complainant to pay a sum of Rs.25,000/-.  When the complainant  questioned the same, the first opposite party told that if you want delivery of the car, you should  pay entire amount to the first opposite party.  Due to the above reason the first opposite party have dragged the complainant and deliver the car only on 8.4.2010 after receipt of the said amount.   The complainant is not satisfied with the painting work of the first opposite party.  He alleged that the third opposite party had hired the some local painters and paint the car as against rules and regulations of the third opposite party.   The appearance of the car looks like a second hand car.  The complainant was cheated by the first opposite party.   He never given any consent to the first opposite party service Manager Mr. Magesh to make damage on left side of the car.  According to the complainant whatever his workman has done it will be considered as if done by the first opposite party.  Hence, the opposite parties are vicariously  liable to compensate the complainant.

  Per contra, the opposite parties specifically denied the allegation of the complainant that the left side of the car was damaged by their employee and hence they are not liable to pay the charges for the whole body painting. Though the opposite party denied the allegation of the complainant,  but failed to disprove the same by  producing the relevant documents  such as the employees rolls of the first opposite party for inspection of this court.   In view of the section 102 of the Indian Evidence Act 1872, the burden of proof have been shifted to the opposite party.   However, the opposite parties fails to produce any concrete proof to disprove the contention of the complainant.  This was done according to own volition of the complainant.  He is liable to pay for the some either from insurance claim or from his pocket.  Merely because, the complainant done service subsequent to the incident does not absolves the act of the opposite party Further, after the alleged incident Mr. Magesh who was employee of the opposite party was removed or not within their own knowledge.  It is for the opposite party  to produce relevant records for the inspection of this court.  Therefore we have no other option except accepting the contention of the complainant.  Further the opposite parties did not produce any documents to substantiate their contention. The first opposite party also failed to produce the rolls of the employees register to show that after the alleged incident Mr. Magesh was continue to be in service of the first opposite party.  For the foregoing reason, we came to the conclusion that the complainant has proved that there is a deficiency in service on the part of the opposite parties.  These Point Nos.1 and 2 are decided in favour of the complainant.    

6. POINT NO.3:       We have already decided in Point Nos.1and 2 that there is deficiency in service on the part of the opposite parties.  Hence the opposite parties are jointly or severally directed to refund a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) paid by the complainant as painting charges with interest at the rate of 9% p.a.  from 09.04.2010 to till the date of this order and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only)  as compensation for deficiency in service and mental agony and also Rs.5,000/- (Rupees Five thousand Only) towards cost to the complainant.  This point No.3 is also answered accordingly.  

 

  7.         In the result this complaint is partly allowed.  The opposite parties are jointly or severally directed to refund a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) paid by the complainant as painting charges with interest at the rate of 9% p.a.  from 09.04.2010 to till the date of this order and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) as compensation for deficiency in service and mental agony and  also to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost to the complainant within one month from the date of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization. 

 

Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the  14^th June, 2022.

   Sd/-                                               Sd/-                                                Sd/-                                                                                          

   MEMBER – I                                 MEMBER – II                                          PRESIDENT

 

 

LIST OF COMPLAINANT SIDE DOCUMENTS:

Ex.A1-08.04.2010      -   Copy of invoice

Ex.A2-08.04.2010      -   Copy of bill

Ex.A3-13.05.2010      -   Office copy of legal notice

Ex.A4                         -   Postal acknowledgement signed by the opposite parties

Ex.A5-23.05.2010      -   Reply notice issued by the opposite parties

 

LIST OF OPPOSITE PARTIES SIDES DOCUMENTS:            -NIL-

 

         Sd/-                                             Sd/-                                            Sd/-                                                                                          

   MEMBER – I                                           MEMBER – II                                         PRESIDENT