By Smt. Padmini Sudheesh, President:
The complaint in short is as follows. The complainant is the owner of vehicle registration No.KL-8M/5950 tempo traveller and it has an insurance policy vide policy No.100602/31/41/16/155543/99 with first opposite party insurance company. The policy is with effect from 15.2.2000 to 14.2.2001. The said vehicle is being used to take the employees of Apollo Tyres Company permanently and the complainant is depending upon the income derived from the vehicle for his livelihood. The vehicle has been purchased by availing a loan from South Indian Bank Branch Meladoor. The complainant has spent about Rs.10,000/- towards instalments with interest. On 17.3.2000 while the complainant and his family were returning from a pilgrimage from Velankanny, the vehicle met with an accident at 5-15 a.m. at Mullakkara near Mannuthy and the vehicle was extensively damaged. Due to the accident, the front left side of the vehicle was completely damaged and the chassis of the vehicle was heavily bent and the body shell is also sustained damages. On 17.3.2000 itself the vehicle was taken to 2nd opposite party establishment for repair. The 2nd opposite party agreed to return the vehicle after repair with 20 days of its entrustment. The vehicle was not returned after repair within 20 days as agreed to by the 2nd opposite party. The vehicle was returned to the complainant after 5½ months at 6-30 on 23.8.2000. The 2nd opposite party had obtained signature in a number of papers in order to realize the repair charges from the first opposite party. The complainant has requested the opposite parties to change the chassis of the vehicle. Due to bend of chassis, the damages were sustained to body shell and the opposite parties are liable to replace the body shell. The opposite parties did not replace the body shell. The opposite parties did not replace the body shell. The complainant wrote a letter to Bajaj Tempo Limited, the company has informed that the chassis should not be welded or drilled. This information was also passed to opposite parties. The 2nd opposite party has welded the bent chassis and the 2nd opposite party failed to properly and correctly joint the bent. The welding of the chassis was done by the 2nd opposite party in order to help the first opposite party who has to pay damages to the complainant. After having taken delivery of the vehicle, the complainant has detected that the major portion of the spares fitted were of duplicates at the time of repair by the 2nd opposite party. On 24.8.2000 morning the complainant took the vehicle to Sastha Auto Sales and Services, Thrissur and after a detailed examination of the vehicle, they have detected the following damages:- the radiator is not suitable to the vehicle, chassis frame is not properly welded, steering draglink is not changed, accelerator pedal is not changed, right side cowl is not replaced, brake, clutch, and pedals were old and rusted, there is a bent for steering wheel, right side door is not new, bonnet is not a new one, wiper blade is old, engine mending is old, release cable of engine cover is old and the radiator grill shell also appears to be old. Since the Sastha Auto Sales and Services is the dealer of Thrissur Bajaj Tempo Limited, the opposite party refused to give the details of the parts fitted in their letter head and they have written to the complainant only in a white paper. When the vehicle was taken to the 2nd opposite party, they refused to entertain the complaint. Therefore, on 25.8.2000 the complainant went and saw the first opposite party manager and the manager of first opposite party assured the complainant that this matter will be immediately informed to the 2nd opposite party. Though the complainant made repeated visits to the 2nd opposite party and the 2nd opposite party did not bother to the complaints reported by the complainant. Since the 2nd opposite party did not consider the bill amount submitted by the first opposite party, the complainant caused to send lawyer notice on 28.8.2000. The welding of the chassis of the vehicle by the 2nd opposite party is not in a scientific manner. There is likelihood of causing damages to the vehicle due to improper alignment. The 2nd opposite party did not agree to change the chassis. The first opposite party in order to make wrongful gain colluded with the 2nd opposite party. The first opposite party is liable to replace the chassis with a new one and the instruction given by the first opposite party to weld the chassis is deficiency in service. The 2nd opposite party is not entitled to get the amount shown as per bill submitted by them to the first opposite party. It could be seen from the bills submitted by the 2nd opposite party that the parts fitted were not of new one and the 2nd opposite party has claimed the price of the brand new parts. The 2nd opposite party has not repaired the vehicle properly. Therefore, the first opposite party have no right to give the amount claimed by the 2nd opposite party. The documents obtained by the 2nd opposite party on 23.8.2000 from the complainant cannot be acted upon. The value of the vehicle considerably reduced due to improper repair by the 2nd opposite party and the complainant has claimed Rs.1,00,000/- as compensation for mental agony and hardships. The complainant has further requested to get Rs.1,00,000/- for replacement of the duplicate parts in the vehicle. The 2nd opposite party agreed to deliver the vehicle within 20 days after repair and the 2nd opposite party delivered the vehicle only after 5½ months for which the complainant claims Rs.50,000/-. The complainant had to pay the tax believing that the 2nd opposite party will return the vehicle after 20 days and he suffered a loss of Rs.5000/-. The complainant therefore, prays to direct the opposite parties to pay Rs.2,00,000/- for financial loss, due to incorrect and improper repair and for replacing duplicate and old parts in the vehicle and to pay Rs.80,000/- as compensation for mental agony, harassment and hardships.
2. On receipt of notice of this complaint, the opposite parties appeared and filed separate written objections. The first opposite party admits that the vehicle registration No.KL-8M/5950 is having a valid policy issued by them and the limit of liability is as per the terms and conditions of the policy. The first opposite party denies the averment in Para-2 to 11 of the complaint. As soon as claim is reported, a spot survey was conducted by Jose.N. Mathew on 17.3.2000. Estimate was given to this opposite party on 11.4.2000. This opposite party conducted survey through Loganathan for the assessment of the damages and value of the damaged parts. Surveyor submitted report on 27.6.2000 and assessed the loss for a sum of Rs.1,23,756/-. The reinspection of the vehicle was conducted on 27.8.2000 and 1.9.2000. Repair was done in their workshop and at the instance of the complainant. The complainant gave a satisfaction note to the 2nd opposite party on 25.8.2000. The complainant directed the 2nd opposite party to receive the amount for repair from the first opposite party. Satisfaction note was submitted to the 2nd opposite party on 31.8.2000. This opposite party was in the process of paying the amount assessed by the surveyor. In the meanwhile, this opposite party received a claim petition from this Forum. This opposite party is always ready to pay the amount as per the survey report to the complainant or repairer. This opposite party has not repudiated the claim and there is no deficiency in service on the part of opposite party. The first opposite party denies that the petitioner is entitled for replacement of the chassis. The surveyor has not recommended the replacement of the chassis. The complainant is not entitled to get repair the vehicle as per his whims and fancies. He is entitled to get only for the actual loss as submitted by the surveyor.
3. The 2nd opposite party contends that the complainant is having two tipper lorries in addition to the tempo traveller for which a claim filed before the 2nd opposite party. The complainant is not using the vehicle for his own use and therefore, he is not a consumer. If the complainant derives the income, he has paid Rs.3080/- as quarterly tax to the vehicle, naturally he has to pay income tax. The complainant has failed to produce any documents to show that he has been paying income tax. They also deny that the complainant has taken the vehicle to the workshop of the 2nd opposite party on 17.3.2000. The complainant brought the vehicle to the workshop and entrusted with this opposite party for repair and replacement of the damaged parts. This opposite party has never assured that the vehicle can be repaired within 20 days. The vehicle was taken delivery by the complainant on 23.8.2000. The allegation that this opposite party has got signed so many receipts by the complainant at the time of delivery of the vehicle is false. All the documents were duly signed by the complainant with the contents of the documents. This opposite party is not aware regarding the information given by Bajaj Tempo Company to the complainant. 13 items fitted in the vehicle are brand new spare parts. On 24.8.2000 the vehicle has not been brought to the opposite party workshop. The chassis has been welded and made perfect. The 2nd opposite party is entitled to receive the amount as per the claim from the first opposite party. The vehicle has been scientifically and technically repaired by this opposite party. The complainant has no right to get any compensation from this opposite party. The delay for repair of the vehicle was caused due to non-availability of the parts which had to come from the company at Pune. The complaint therefore, may be dismissed.
4. The points for consideration are:
(1) Is there any deficiency in service to the complainant in relation
to repair of the vehicle done by the 2nd opposite party?
(2) Is there any deficient service to the complainant in relation to
Non-replacement of the chassis as per the estimate by first
opposite party?
(3) Reliefs and costs.
5. The evidence consists of Exts. P1 to P21, Exts. R1 to R17, Ext. C1 commission report, deposition of PW1 and RWs-1 and 2.
6. Points: The complaint was disposed on 13.9.01 and ordered against the first respondent to pay the cost of the original chassis of the vehicle to the complainant and the 2nd respondent is directed to pay 75% of the value of new parts in place of the old parts fitted in the vehicle. The 2nd respondent is further directed to pay Rs.25,000/- as compensation for the mental agony. The 2nd respondent challenged the order against them in the appeal and the Hon’ble State Commission remitted back the case for fresh consideration to the order passed against 2nd respondent only and the order against first respondent upheld by the Commission. It is directed by the Apex Commission that the Lower Forum has gone wrong in dismissing the application to adduce evidence by expert commissioner and thereby denied opportunity to the 2nd respondent to get the expert commissioner examined. It is directed to give opportunity to all the parties to adduce further evidence in support of their case. It is also made clear that the 2nd respondent has to be given opportunity to take steps for examining the expert commissioner who submitted Ext. C1 report. On the basis of the directions of State Commission the case was posted for evidence and the parties submitted the only evidence to be adduced is the examination of expert commissioner. The expert commissioner is examined as CW1. The report was already marked.
7. It is the case of complainant that old spare parts were used by the 2nd respondent to repair the vehicle and bills were issued for the cost of new spare parts. During examination CW1 deposed that the steering wheel even if new it has got bent. The RHS door is not new and second hand door was used. He also deposed that bonnet is not new and second hand bonnet was used. The clutch and brake pedals are also old according to CW1. During cross examination by 2nd respondent CW1 stated that at the time of inspection the entire repair works were completed. According to him, the damaged spare parts can be refitted and the replacement can be done only for the totally damaged parts. He also deposed that the parts were not inspected one by one by removing the vehicle. According to him there was no need to inspect the parts by removing the vehicle. The bent to steering wheel according to him was easily visible. He also explained the reason for replacement of RHS door by an old one. It is his version that at the time of inspection the vehicle was in red colour. He adds that the new doors are coming without colour. The colour of bonnet was red. According to him, the bonnet was replaced by old bonnet. The chassis according to him was properly repaired. He definitely deposed that the replacement of some parts was made by second hand parts. The name of some parts were explained as RHS door assembly and bonnet. According to him, the cost of second hand parts was 25% out of the total amount. So according to CW1 as stated by the complainant some parts were replaced with second hand parts. It is the definite case of complainant that the second respondent committed deficiency in service by repairing the vehicle with second hand spares. The repair of chassis also under dispute. But CW1 stated that the repair of chassis was proper. Since there is no contrary evidence, the opinion of CW1 has to be looked into. Since the first respondent Company is liable to indemnify the loss the 2nd respondent is only liable to pay compensation for the deficient act they have done.
9. In the result, the 2nd respondent is directed to pay Rs.20,000/- (Rupees twenty thousand only) as compensation to the complainant within one month from the date of receipt of copy of this order. If not, the amount will carry interest at the rate of 12% per annum from the date of complaint till realization.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 28th day of October 2010.
