BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 11^th day of July 2017

                                                                                                Filed on: 13.08.2014

PRESENT:

Shri. Sheen Jose,                                     Member. (President-in-charge)

Smt. Beena Kumari V.K.                          Member.

                        C.C.No.602/2014

                              Between  

                                                         O R D E R

Sheen Jose, Member (President-in-charge)

1. The case of the complainant is as follows:

The complainant was the owner of KL 32/C 4005 D2 M-Eagle Mahindra XYLO car.  On 19.03.2011 the said car was registered and used as Taxi which was the sole source of income of the complainant.  On 04.11.2012, the above said vehicle met with an accident with Lorry bearing Register No. Kl-35/B 2094 at Pulluvazhy Perumbavoor, Ernakulam District and caused damage to the complainant’s car.  After the accident, a G.D entry was registered by Kurumpamady Police station about the accident.  Thereafter, the vehicle was towed   to the 1^st opposite party – TVS Auto Mobile Solutions Ltd., which is an authorized Mahindra service centre at Perumbavoor.  After verifying damages of the car, the 1^st opposite party issued a job card showing repair estimate of 1.5 lakh rupees.  The complainant duly intimated about the accident to the 2^nd opposite party – Royal Sundaram Alliance Insurance Company Ltd.  The complainant had duly insured his Xylo car with the 2^nd opposite party.  He filed the Claim Form and also handed over all papers required for sanctioning the claim, on the next working day itself.  The insurance Surveyor of the 2^nd opposite party came to the workshop and assessed all the damages and also sanctioned an amount of Rs.3,11,470/- without delay.  But the 1^st opposite party made wilful delay in commencing works and in effect complainant’s Taxi vehicle docked in the 1^st opposite party’s workshop for the period from 04.11.2012 to 07.10.2013.  During the time of repair works, the complainant personally visited the 1^st opposite party’s workshop several times for evaluating work progress and also requested the 1^st opposite party’s works Manager to complete the work as soon as possible.  Due to the long delay in completing the accident work of the vehicle, the complainant sent a notice on 08.05.2013 to the 1^st opposite party for getting his taxi vehicle which was his only source of income, as soon as possible.  On 27.09.2013 the complainant had visited the 1^st opposite party for evaluating the work progress, the work shop authorities said to the complainant that the repair work was completed and demanded difference amount of Rs.1,41,877/- more than actual amount the complainant liable to pay as per liability computation table prepared by the 2^nd opposite party for Rs.60,375/-.  Even after repeated requests and frequent visits of the complainant, the opposite parties failed to complete the work and to deliver the vehicle to the complainant.  The 1^st opposite party threatened the complainant that they were unable to deliver the vehicle to him unless he sign the   job cards, invoice and letter prepared by the 1^st opposite party.  The complainant accordingly signed the job cards, invoice and letter prepared by the 1^st opposite party for getting deliver of the vehicle and duly paid Rs.69,000/- on 07.10.2013 to the 1^st opposite party.  The opposite party assured the complainant that all parts were replaced and works done as per Mahindra Standards by the 1^st opposite party sanctioned genuine fitment parts.  The complainant alleged that the accident works of the disputed car were not done properly by the 1^st opposite party and the 1^st opposite party neither replaced all the damaged parts nor the parts replaced were genuine. The act of the opposite party amounted to deficient service and unfair trade practice also.  Hence the complainant is before us seeking direction against the 1^st opposite party to replace the parts fitted with original fitment parts as per the sanctioned list of parts by the 2^nd opposite party and to complete the works as per Mahindra Standards. The complainant also sought for refund and amount of Rs. 70,000/- from the 1^st opposite party for replacing the parts and towards compensation and costs of the proceedings.  Hence the complaint.

2)      Version filed by the 1^st opposite party is as follows:

          The complainant is not a ‘consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. The 1^st opposite party was the service centre set up at Perumbavoor and not functional from April 2014 onwards.  On 05.11.2012 the complainant brought the vehicle to carry out accident repairs and the service personnel of the 1^st opposite party inspected the vehicle and prepared an estimate of work to be done.  The insurance surveyor inspected the vehicle and gave sanction for the work to be done under insurance policy.  The complainant had informed about the total estimate value of the work to be done and the amount sanctioned by the insurance surveyor.  The complainant had agreed to pay the difference in amount and gave consent to carry out the repair work without any demur.  The complainant had visited the garage regularly and ensured that the work was being done properly.  It is submitted that the 1^st opposite party had completed the work and kept the vehicle ready for delivery on 07.09.2014.  The insurance surveyor inspected the vehicle and noted the parts replaced and approved the work done.  The complainant was informed of this fact and he was requested to take delivery of the vehicle after paying the differential amount towards repair charges including costs of the parts replaced.  The complainant however failed to pay the balance amount towards repair charges and to take delivery.  It is also stated that the total bill amount for the work done came to rs.4,53,347/-.  The insurance company sanctioned an amount of Rs.2,48,095/-.  The complainant was liable to pay to TVS Automobile Solutions Ltd. the differential amount of Rs.2,05,252/-.  The complainant was not willing to pay the amount of Rs.2,05,252/- and to take delivery of the vehicle.  On 07.10.2013, the complainant offered Rs.69,000/- towards repair charges and requested the 1^st opposite party to accept it in full and final settlement and delivery of the vehicle to him.  The opposite party agreed the same for maintaining the good customer relationship.  Accordingly, the complainant paid Rs.69,000/- and took delivery of the vehicle on 07.10.2013.  It is submitted that the 1^st opposite party had not willfully delayed the work of the disputed vehicle.  The 1^st opposite party had placed orders for parts sanctioned to be replaced with the irrespective original equipment manufacturers.  Most of the items were not readily available and were supplied with delay.  The complainant had issued a lawyer notice on 08.05.2013 and he himself withdrawn the notice as per letter on 07.10.2013. The statement of the complainant that the 1^st opposite party had threatened the complainant to sign the job cards and letter and if those documents are not signed the vehicle will not be delivered, are without any basis and hence denied.  It is submitted that the first opposite party had not threatened the complainant to sign the document as alleged in the petition.  It is further submitted that the complainant signed the documents and the letter on his own volition and freewill.  All the allegations of the complainant that the work was not done properly that the damaged parts were not replaced, replaced parts are not genuine or not matching with original, bending and pending work as Mahindra Standards, the total work done and parts as per the 2^nd opposite party sanctioned or original fitment are without merit are denied.  The 1^st opposite party had carried out the work properly and the parts replaced were genuine parts supplied by the original equipment manufacturer and this has been verified by the surveyor.  The complainant had not raised any objection at the time of taking delivery or returned the vehicle after a reasonable time after taking delivery. The complainant had made these allegations with malafides as an afterthought for the purpose of this case.  There has been no deficiency in service or unfair trade practice on the part of the 1^st opposite party as alleged.  Therefore, the 1^st opposite party is in no way liable to compensate the complainant.  The complainant is not entitled to get any of the reliefs sought in this complaint.  The Hon’ble Forum may be pleased to dismiss this complaint with costs.

3)      Version filed by the 2^nd opposite party as follows:

          The 2^nd opposite party is not a necessary party in this complaint.  The 2^nd opposite party has only been dragged before the Forum unnecessarily.  The allegation of the complaint is only against the 1^st opposite party since the vehicle was not repaired to the satisfaction of the complainant and therefore the complainant had prayed for re-dent-realigned body parts replaced parts and to repaint the body parts dented replaced as per the Mahindra Standards and therefore the complaint is to be dismissed against the 2^nd opposite party.  The complainant has not made any averments against the 2^nd opposite party and therefore this complaint is liable to be dismissed as against the 2^nd opposite party.  The 2^nd opposite party has been wrongly impleaded as party in this dispute which relates to the repair work for which the complaint has to be filed against the repairer only.  Therefore, this complaint is liable to be dismissed as against the 2^nd opposite party.  There is no deficiency of service on the part of the 2^nd opposite party.  The claim of compensation for mental agony is exaggerated and unsustainable.  The instant complaint filed by the complainant is not maintainable and it deserves to be dismissed.

4)      Evidence in this case consisted of Exbt. A1 to A9 were marked on the side of the complainant.  There is no documentary or oral evidence adduced by the opposite partied.

5)      Issues came up for considerations are as follows:

1.      Whether the complainant is a ‘consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act?

2.      Whether the complainant has proved deficiency in service or unfair trade practice on the part of the opposite parties?

3.      Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

6)      Issue No. (i)

The 1^st opposite party stated in their version that the complainant is not a ‘consumer defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.  In this case, the complainant had purchased disputed vehicle for ‘Taxi’ service.  The complainant specifically stated in his complaint that car was registered and used as ‘Taxi’ and which was only the sole source of income of the complainant.  We find that the complainant used his Taxi vehicle for earning his livelihood.  In the absence of any contrary evidence.  We find that this complaint is maintainable before this Forum and the complainant is a ‘consume’ as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.

7)      Issue Nos. (ii) and (iii)

          The disputed vehicle had met with an accident on 04.11.2012 at 3.00 p.m. and got damaged.  The vehicle towed to the 1^st opposite party TVS Auto Mobiles Solutions an authorized Mahindra Service centre at Perumbavoor.  Exbt. A1- copy of the Registration Certificate goes to show that the vehicle was registered in the name of the complainant and he was the owner of the D2 Eagle Mahindra Xylo Taxi car bearing Register No. Kl 32 C 4005.  Exbt. A2 policy schedule shows that the disputed vehicle insured with the 2^nd opposite party at the material time of the accident.  Exbt. A3 copy of the permit shows that disputed vehicle was registered and used as ‘Taxi’.  Exbt. A4 copy of the extract of General Diary (G.D entry) registered by Kurupampady police station shows that the disputed vehicle met with an accident on 04.11.2012 at 3.00 .m at Pulluvazhy, Perumbavoor and caused damaged to the said vehicle.  Exbt. A5 receipts issued by the 1^st opposite party shows that the complainant had paid an amount of Rs.69,000/- to the 1^st opposite party towards repair charges after the sanction of the claim amount by the 2^nd opposite party.

8)      According to the complainant, he had entrusted the vehicle to the 1^st opposite parlty for carrying out the accident repairs and the opposite party had not done the properly.  It is alleged that the opposite party had not replaced necessary parts and the replaced parts were not genuine and also not matching with the original.  Denting and painting works were not done s per Mahindra Standards.  The 1^st opposite party repaired the vehicle without following the instructions and directions from the 2^nd opposite party.  The 1^st opposite party used substandard products to repair the same.  Inordinate delay also happened on the side of the 1^st opposite party to repair and deliver the vehicle.  The complainant alleged in his complaint that the claim amount is deducted by the 2^nd opposite party due to the negligent service and practice on the side of the 1^st opposite party.  Ext. A7 a legal notice dated 18.12.2013 issued by Adv. James Chacko to the 1^st opposite party under the instruction from the complainant.  As per Exbt. A7 the complainant alleged that the repair work done by the opposite party was deficient and the complainant had suffered a lot of inconvenience and loss of money due to the negligence happened on the part of the 1^st opposite party.  Exbt. A8 reply notice dated 26.03.2013 sent to the complainant by the Counsel of the opposite party shows that all the allegations made by the complainant in his complaint denied by the opposite party shows that all the allegations made by the complainant in his complaint denied by the opposite party and stated that there was no deficiency in service on their part.

9)      Exbt. A6 and A9 are the inspection report with photographs of the disputed vehicle.  Exbt. A6 and A9 prepared by PJ Darmarajan, who was the surveyor of the 2^nd opposite party stated that the repair was not carried out satisfactorily and the following defects were noticed during the time of inspection.

1.      Side body LH was not welded properly.  The joints were erratic, painting in this area found rusted and was very poor.

          2.      Front LH door alignment is not correct.

3.      Front LH door pad was not replaced with new one; whereas the insurance company has sanctioned a new one.

4.      The steering wheel replaced was found not matching with the colour of the interior panel.  In the original equipment both are of same colour.

5.      Steering column cover fond broken.

6.      Windshield glass replaced was found as a duplicate one, since there were no ISI mark and year of manufacture on it.

7.      Dash board replaced was not an original equipment.  It doesn’t have the clock on it and the colour was not matching.

8.      The repairer has not replaced the top roof pad, which damaged severally and ugly looking.

9.      The repairer claimed for a new insulator heat firewall and the same has been sanctioned by the insurer but it was found not replaced.

10.    The inter cooler assembly fitted on the vehicle found damaged.  The repairer has claimed for a new one and the insurer sanctioned it.

10)    In this case, the complainant has alleged serious deficiency in service and unfair trade practice on the part of the 1^st opposite party.  The Counsel for the 1^st opposite party vehemently argued that there was no deficiency in service or unfair trade practice happened on the part of the 1sgt opposite party. The opposite party did not produce any convincing evidence before this Forum to show that they had given sufficient or good service to the complainant.  In the absence of any such evidence, we are of the opinion that the case of the complainant is believable and there is deficiency in service happened on the side of the opposite party.  We have considered the Exbt. A6 and A9 Surveyor Report of the 2^nd opposite party.  As per the said report, the insurance surveyor, clearly stated that the repair works were not carried out satisfactorily and the defects were noticed during the time of inspection of the repair work done.

11)    In this case, we are of the opinion that the complainant had suffered a lot of inconvenience, hardships, mental agony and financial loss due to the deficient service and unfair trade practice on the part of the 1^st opposite party.  In that case, the 1^st opposite party is liable to compensate the same to the complainant.  It calls for compensation and costs of the proceedings.  We think that an amount of Rs.40,000/- towards compensation and Rs.10,000/-                    towards costs of the proceedings are sufficient and enough to abate the agony of the complainant.

12)    In the result, we partly allow the complaint and direct as follows:

1.      The 1^st opposite party shall pay an amount of Rs.40,000/- to the complainant towards compensation for the mental agony and inconvenience suffered by the complainant.

2.      The opposite party shall also pay an amount of Rs.10,000/- towards costs of the proceedings to the complainant.

Pronounced in the open Forum on this the 11^th day of July 2017.

Sd/-Sheen Jose, Member (President-in-charge)

Sd/-Beena Kumari V.K., Member

                                                     Forwarded by Order

                                                     Senior Superintendent

                                    APPENDIX

Complainant’s Exhibits:

Opposite party’s Exhibits:    Nil

………………………..