Date of Filing: 05.02.2018

Date of Disposal: 13.03.2020

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU. J. JUSTIN DAVID., M.A., M.L., .…. PRESIDENT

TMT.K.PRAMEELA., M.Com., …….MEMBER-I

THIRU.D.BABU VARADHARAJAN., B.Sc., B.L., ……MEMBER-II

CC No.11/2018

THIS FRIDAY THE 13^th DAY OF MARCH 2020.

Mrs.V.Pushpanjali, W/o.Vijaya Baskar,

No.24, Ragavendra Apartments,

Sri Ram Nagar Cross Street, Sri Ram Nagar,

Porur, Chennai -600 116. ….. Complainant.

//Vs//

The Manager, TVS Automobile Solutions Private Limited,

(TATA Authorized Service center),

New No.105, Old No.69 Mount Poonamalle Road,

Porur, Chennai -600 116. …Opposite party.

This Complaint is coming upon for final hearing before us on 04.03.2020 in the presence of Mr.A.R.Poovannan, Counsel for the complainant and M/s. K.R.Mahesh, Counsel for the opposite party and after perusal of the both side documents and hearing the arguments on both sides, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the Consumer Protection Act, 1986 against the opposite party for seeking direction to deliver the vehicle for the original demand dated 10.10.2016 and to pay a sum of Rs.2,40,000/-towards the loss of income to the complainant at the rate of Rs.20,000/- per month and to pay further sum of Rs.20,000/- per month till the date of delivery of the vehicle and to pay a sum of Rs.2,00,000/- towards compensation for the loss, mental agony, hardship and strain caused to the complainant by the act of the opposite party and to pay cost of this proceedings.

2.The brief averment in the complaint is as follows:-

The complainant is the owner of vehicle Tata Indigo, bearing registration No.TN 10 AK 5044 Engine No.MA601465CWJ38566. The complainant’s husband Mr.V.Vijaya Baskar is a driver by profession. Thus the complainant attached the vehicle with Ola cabs and is being driven by her husband. When the complainant’s husband was driving the vehicle, carrying passengers, when the vehicle was nearing Guindy Railway Station, near HP petrol bunk, the car suddenly caught fire and suffered severe damage. The complainant’s husband with the help of towing vehicle had dropped the vehicle for repairs at the opposite party’s workshop. Hence the complainant’s husband made a complaint with the Inspector of Police, Guindy, and an FIR was also registered on that accident. The car was insured with New India Assurances and was under insurance cover. The opposite party on 17.08.2016 after the inspection by the Insurance Surveyor had given an estimate of repairs for a sum of Rs.98,650/-and the same was accepted by the complainant and the opposite party assured that a major amount will be paid by the insurance company and also assured that the vehicle will be ready after 21 days. The complainant and her husband were repeated approached the opposite party for their vehicle from the 2^nd week of September 2016 and there was no proper reply and thereafter on 10.10.2017 the complainant received a communication from the opposite party stating the entire repairing cost was Rs.2,99,583/- and the complainant should pay a sum of Rs.1,06,233/- after deducting the insurance amount. The complainant tried to negotiate through her husband with the opposite party and her husband had met the opposite party several times in this regard and the matter remained unresolved. Therefore the complainant then on 16.01.2017 issued notice to the opposite party through consumer organization, for which the opposite party has replied through their counsel dated 01.04.2017 stating that the complainant is liable to pay Rs.1,06,233/- vide their intimation, after confirmation from New India Assurances. The complainant and her family are depending only on the income from the car that too was lying idle in the opposite party garage for more than ten months without any fault of the complainant. The vehicle has to be released for their livelihood the complainant and her husband approached the opposite party on 13.12.2017 for marking the payment as demanded in the reply notice and now claiming an exorbitant amount of Rs.1,31,193/- . This sudden and ever increasing claim has resulted in causing loss, harassment and severe mental agony to the complainant and her family. Hence the opposite party has committed severe deficiency in service by not getting instructions from the complainant for the repair of this exorbitant amount and it is highly incompetence on their part. Because of the deficiency in service and the inordinate delay it had caused immense mental agony and severe trauma, monetary strain, loss of interest, hardship, irreparable loss and which has to be compensated. Therefore on 21.12.2017 issued a notice the opposite party to return back their vehicle on payment of the agreed amount and to pay a sum of Rs.5,00,000/- as compensation towards mental agony, monetary loss and for deficiency in service and there is no reply till today. Hence this complaint.

3. The contention of written version of the opposite party is as follows:-

The opposite party on 17.08.2016 after the inspection of the Insurance Surveyor had given the estimate for a sum of Rs.98,650/-. The true fact is that on 08.08.2016, the vehicle was inspected in the presence of the complainant’s driver Mr.Vijaya Bhaskar by the opposite party’s personnel and a fresh estimate was prepared before dismantling the vehicle. Since as per the statement of said Vijaya Bhaskar, the vehicle is insured with New India Assurance Company and having valid insurance policy the opposite party’s service personnel advised Vijaya Bhaskar to approach the Insurance Company along with the copy of FIR so that the Insurance surveyor will come and inspect the vehicle. Further it is informed to Vijaya Bhaskar that only after the inspection by the Insurance surveyor, the vehicle will be dismantled and then only the actual cost for repairs will be arrived. For the time being the rough estimate for the cost of the repair was informed to the Vijaya Bhaskar by the opposite party’s service person that the rough estimate for the repairs would be around Rs.98,650/- and the complainant has to pay Rs.30,000/- as advance before starting the work. The insurance surveyor visited the opposite party’s workshop on 10.8.2016 and gave his approval to start the work. Believing the words of the said Vijaya Bhaskar that he will make the advance the next day the opposite party’s service personnel dismantled the vehicle and started the repair work. After dismantling the vehicle it was found that some more parts were damaged and it is informed to the said Vijaya Bhaskar who has come to the workshop of the opposite party almost every day. The said Vijaya Bhaskar assured the opposite party that he will make the entire cost without default and gave permission to replace the damaged parts also. It is clearly informed to the complainant that the final cost will be arrived at only after the entire work is over and the bill will be sent to the Insurance company and after their approval for the bill, the approved amount will be adjusted in the bill and the balance cost of the labour as well as parts will have to be paid by the complainant. The said Vijaya Bhaskar accepted to the said information and he looks after each and every job carried out by the opposite party in his car on his visit. The above said Vijaya Bhaskar fails to pay the advance amount of Rs.30,000/- towards advance payment to the opposite party even after repeated demand. The total cost of the repair and replaced parts comes to Rs.1,88,196/-. The said Vijaya Bhaskar dodging the payment of advance amount of Rs.30,000/- though he has come daily. On further instruction by the opposite party it was found that engine turbo charger of the subjected vehicle is not functioning properly. The said Vijaya Bjaskar requested the opposite party to replace the damaged turbo charger and he agreed to pay the charges for the same. Upon his assurance the cost of the turbo charger was also informed to the insurance company and another supplemental estimate was given to insurance company. Both the initial and supplemental estimates were also provided to the complainant. Even after receipt of the same the complainant kept quiet and even after that she is not willing to make the initial advance amount of Rs.30,000/- for the reasons best known to her. Though she has not paid any advance amount, since her husband visiting the opposite party’s workshop almost every day, the opposite party believed that he will make the full payment of the repair charges at the time of taking delivery of the vehicle. The vehicle got ready on 16.11.2016. In the meanwhile, the insurance company has settled an amount of Rs.1,93,350/- as allegedly mentioned in the complaint by the complainant. After adjusting the insurance liability amount the complainant has to pay Rs.1,06,233/- towards the balance repair charges. On seeking the balance amount payable the said Vijaya Bhaskar got agitated and refused to make payment of bill amount and insisted the opposite party to receive Rs.30,000/- as initially demanded by them and deliver the vehicle to him. All the repairs were carried out only in the presence of the said Vijaya Bhaskar who is none other than the husband of the complainant has now revealed to the opposite party he was kept quiet about making payment of the repair charges all the days and finally he agrees to pay only Rs.30,000/- which was originally demanded as advance by the opposite party for starting the work. This attitude of the complainant is clearly reveals that he wants to pay only Rs.30,000/- for the entire repair job but he got all the repairs done by the opposite party as if it is free of cost which is not legally tenable. The complainant is liable to pay only Rs.1,06,233/- as mentioned in the reply notice and not Rs.1,31,193/- as allegedly claimed by the complainant. The vehicle got ready after repairs on 16.11.2016 and the complainant was informed about the same and to take delivery of the vehicle after making payment of the balance amount of Rs.1,06,233/-. But the complainant fails to make the balance due amount towards the repair charges and take delivery of the vehicle and hence the question of vehicle was lying idle in the opposite party’s workshop is absolutely untenable and the words “without any fault of the complainant” is also untenable and unsustainable as the complainant has not come forward to take delivery of the vehicle by making the balance due amount of repair charges. The opposite party though the bill amount of Rs.1,06,233/- which is the balance due payable by the complainant this opposite party at request of the complainant agreed to give discount on the bill amount to the tune of Rs.15,000/- and hence the complainant can make only Rs.91,233/- and take delivery of the car. Even after that the complainant is not willing to take delivery of the car. Hence the claim is also not unsustainable and unacceptable.

4. In order to prove the case, on the side of the complainant, proof affidavit filed as his evidence and Ex.A1 to Ex.A14 were marked. While so, on the side of the opposite party proof affidavit filed as his evidence and Ex.B1 to Ex.B4 and both parties adduced oral argument.

5. At this juncture, the point for consideration before this forum is:-

(1) Whether there is any deficiency in service on the part of the opposite party?

(2) Whether the complainant is entitled for the reliefs as claimed in the complaint?

(3) To what other relief the complainant is entitled to?

6. Point Nos.1 & 2:-

The complainant is the owner of the Tata Indigo bearing Registration No.TN 10 AK 5044 and she purchased the vehicle in the year 2013. Ex.A2 is the form of certificate of registration of the complainant’s vehicle. As per registration certificate the complainant’s vehicle bearing Registration No. TN 10 AK 5044 is being hypothecation at Tata Motors Finance Limited, T. Nagar Chennai -17. The complainant also obtained permit from transport department to use the vehicle which has been marked as Ex.A1 document.

7. The opposite party is the authorized service centre of Tata Indigo. The complainant’s vehicle was insured with the New India Assurances but the complainant has not filed the copy of insurance policy. On the other hand, the opposite party has not disputed the insurance coverage of the complainant’s vehicle. As per Ex.A4, the period of insurance coverage is from 18.02.2016 to 17.02.2017. In such circumstances the above said vehicle got fire on 06.08.2016 when the complainant’s husband was driving the vehicle and due to fire the complainant’s vehicle suffered severe damage.

8. Hence the complainant’s husband has gave a complaint to the Guindy Police Station on 10.08.2016 stating that the vehicle bearing Registration No.TN 10 AK 5044 suddenly got fire and damaged. Ex.A3 is the receipt issued by the Sub-Inspector of Police, Guindy Police Station. According to the complainant the vehicle got fire on 06.08.2016, but the complainant’s husband gave a complaint to the police only on 10.08.2016. Further there is valid insurance coverage at the time of alleged insurance.

9. The complainant alleged that the opposite party on 17.08.2016 after inspection by the Insurance Surveyor had given an estimate of repairs for a sum of Rs.98,650/-and the same was accepted by the complainant and the opposite party assured that the major amount will be paid by the insurance company and also assured that the vehicle will be ready after 21 days. Whereas on 10.10.2017 the complainant received a communication from the opposite party stating the entire repairing cost was Rs.2,99,583/- and the complainant should pay a sum of Rs.1,06,233/- after deducting the insurance amount.

10. The opposite party contended that the rough estimate issued by the opposite party for the cost of repair and the same was expressed and after dismantling the vehicle it was found that some more parts were damaged and the same was informed to the husband of the complainant and he gave permission to replace the damaged parts. The opposite party further contended that the total bill cost of Rs.2,99,583/- and after deducting the insurance amount the complainant has to pay Rs.1,06,233/- only.

11. The opposite party has admitted that the service personnel of the opposite party service centre gave a rough estimate of Rs.98,650/- to the complainant. Ex.A5 is the copy of estimate dated 17.08.2016 issued by the opposite party in which it is stated that the total amount of Rs.98,650/-. It is only an estimate. Further the complainant’s vehicle severely damaged due to fire and therefore the actual damage can be assets only after dismantling the vehicle. Hence the opposite party has dismantled the vehicle with the consent of the complainant’s husband and many parts were damaged and the complainant’s husband agreed to change the parts and therefore with the consent of the complainant’s husband the opposite party changed all the damaged parts of the vehicle.

12. The opposite party also filed a copy of Tax Invoice dated 05.11.2016 and the same has been marked as Ex.B2 and therefore Ex.A7 and Ex.B2 are copy of the same documents. The opposite party issued Tax Invoice for Rs.2,99,583/- for repairing the complainant’s vehicle. According to the opposite party the insurance company had paid only Rs.1,93,350/- and the remaining amount of Rs.1,06,233/- is payable by the complainant to the opposite party.

13. The complainant has not added the insurance company as a party in this proceeding. Further the complainant has not filed the copy of policy of the vehicle. If the complainant added the insurance company as a party and filed the copy of policy, then only this Forum can know what are the conditions stipulated in the policy for the payment of insurance amount and the liability of the insurance company for payment towards repairing the vehicle. Hence it is necessary to add the insurance company as a party in the proceeding. But the complainant failed to do so. At the outset the opposite party issued a rough estimate on 17.08.2016 for Rs.98,650/- and actual damages and the cost of the repair only assets after dismantling the vehicle and also changing the damaged parts of the vehicle. Hence after repair the opposite party issued Tax Invoice for Rs.2,99,583/-. The opposite party has done the work with the consent of complainant.

14. The complainant’s vehicle is ready for delivery on 16.11.2016 and the same also informed to the complainant’s husband but the complainant failed to take delivery of the vehicle after making payment of balance amount. The complainant’s vehicle is now lying in the opposite party’s service centre. The learned counsel for the opposite party argued that the complainant’s vehicle is hypothecated with the Tata Motors Finance Limited and the complainant has not paying the monthly installments to the said Finance Company and if the complainant takes delivery of the vehicle then the finance company may cease the vehicle. The learned counsel for the opposite party further argued that the opposite party is ready to deduct 25% of the balance amount, but the complainant is not willing to take delivery of the vehicle. The above attitude of the complainant shows that if the complainant takes delivery of the vehicle then the finance company may cease the vehicle. Hence the complainant filed this complaint without sufficient reason and there is no merit in this complaint. Under these circumstances there is no deficiency in service on the part of the opposite party and the complainant is not entitled for any relief as claimed in this complaint. Thus the point No.1 & 2 is answered accordingly.

15. Point No.3:-

In the result, this complaint is dismissed. No costs.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 13^th day of March 2020.

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MEMBER-II MEMBER-I PRESIDENT

List of document filed by the complainants:-

List of document filed by the opposite party:-

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MEMBER-II MEMBER-I PRESIDENT