SRI R. DEY
The present case has been filed by the complainant praying for passing an order to OP to deliver the repaired motor cycle immediately under supervision of OP no. 2, to pay a compensation of Rs. 90,000/- to the complainant for deficiency in service and litigation cost of Rs. 10,000/-.
The complainant’s case, in a nutshell, is that the complainant is the registered owner of Honda Motor Cycle being no. WB-30K/0839, chassis no. ME4JC474EB8078362 and engine no. JCA47E0210423. The complainant took an insurance policy being no. 15603431 1310000344 from National Insurance Company for the period from 14-08-2013 to 13-08-2014. The complainant met an accident with the said motor cycle and the said motor cycle was badly damaged. The complainant made a diary to Bhupatinagar P.S. in respect of this accident vide case no. 05/2014 dt. 08-01-2014. After the said accident the complainant has offered the said damaged vehicle to garage for repairing according to the said insurance company. As per the complainant the OP was agreed to deliver the vehicle after repair on 26-12-2013 but after several reminders from the part of the complainant the OP did not deliver the said vehicle after repair and for the very reason the complainant has to face financial losses. Hence the case has been filed by the complainant.
The OP no. 1 has not appeared in the case despite service of notice upon him from DCDRF, Purba Medinipur and did not file WV also. Hence this case is running ex-party against the OP no. 1.
The OP no. 2 has appeared in this case by filing WV wherein the OP no. 2 has admitted the complainant’s statement made in the complaint. The OP no. 2 has stated about the said accident on 12-12-2013 and damage of the said vehicle for the said accident. He also stated and admitted about the complainant’s delivery of damaged vehicle for repair to the garage of OP no. 1 on 18-12-2013 as per their instruction. On 22-12-2013 the authorized surveyor of the OP collected the estimate for repairing the motor cycle from OP no. 1 and advised OP no. 1 to finish the repairing job. As per OP no. 2 the representative of the OP no. 2 visited the garage of OP no. 1 several times to supervise the progress of the repairing work but found that the OP no. 1 did not make endeavor to repair the said motor cycle for some obscure reasons. The OP no. 2 personally visited the garage of OP no. 1 on 06-06-2014 and then the Service in charge assured him to deliver the motor cycle within half an hour. As per OP no. 2 it has not heard anything from OP no. 1 regarding repairing of the said damaged motor cycle till the date of filing WV.
None of the parties adduced any evidence but they have relied upon the averments mentioned in their respect pleadings, which were supported by affidavit, and the documents submitted by them before this forum except OP no. 1. The complainant has filed his WNA also.
We have carefully gone through the pleadings of the parties, the document including WNA submitted by them.
Points for consideration
- Is there any deficiency in service on the part of the OPs?
- Whether the complainant is entitled to get any relief as prayed for?
Decisions with reasons
Point nos. 1 & 2:
Having perused the facts and documents filed by the complainant and OP no. 2 it is found that the complainant met an accident and for which his two wheeler vehicle was damaged. According to the admitted fact the OP no. 2 produced a Xerox copy of job card no. 1120 of OP no. 1. It appears that the OP no. 1 received the vehicle of the complainant on 18-12-2013 which was damaged in the aforesaid accident. It also appears from the said job card that the expected delivery time of the said vehicle was 26-12-2013. The Op no. 1 offered an insurance claim estimate regarding the damaged vehicle to the complainant on 22-12-2013. The OP no. 1 did not contest the instant case in spite of service of notice upon it. From the said discussion we see that the OP no. 1, who is the dealer of Honda Motor Cycle and Scooter India (P) Ltd. had received the complainant’s damaged motor cycle and gave him an assurance for proper delivery of the same one in time after repairing. But from the record it appears that Op no. 1 has not kept his word and failed to deliver the damaged motor cycle after repairing till the end of procedure of the instant case after being followed up regularly by the complainant and also by the OP no. 2. Here we find deficiency in service on the part of the OP no. 1. As OP no. 2 sent an authorized surveyor for collecting the estimate for repairing the said motor cycle from the OP no. 1 within 10 days from the date of said accident and frequently visited OP no. 1 for getting information about the said vehicle which was under OP no. 1 for repair. Besides, as the complainant has not stated any adverse statement against the OP no. 2 regarding the insurance system and claim procedure of OP no. 2, hence we find no deficiency in service e on the part of the OP no. 2.
As the OP no. 1 has not delivered the said motor cycle to the complainant which indicates that it assumes that the OP no. 1 has possessed the vehicle of the complainant, which is the means of communication of the complainant. Due to such possession of OP no. 1, the complainant has been compelled to use another mode of communication on hire basis for carrying himself to one place to another place by paying a certain amount. Hence, we feel the complainant is entitled to get back his damaged motor cycle duly repaired by OP no. 1 under the supervision of OP no. 2 together with a compensation of Rs. 3,000/- and a litigation cost of Rs. 1,000/- from the OP no. 1. There shall be no bar on the part of the OP no. 1 to claim/receive the repairing cost of the said motor cycle from the complainant after handing over the said motor cycle to the complainant after necessary repairing.
Hence, it is
ORDERED
that the instant case be and the same is allowed on ex-parte against OP no. 1 and this case be and the same is dismissed against OP no. 2 on contest. The OP no. 1 is directed to deliver the repaired motor cycle of the complainant under supervision of OP no. 2, as also to pay Rs. 3,000/- as compensation and Rs. 1,000/- as litigation to the complainant within 20 days from the date of communication of this order, failing which, the complainant shall have the liberty to execute the order, in which case the OP no. 1 shall pay a fine of Rs. 100/- per day from the date of issuance of this order till the compliance of the order in toto.
