Quorum: Shri Jagdish Prabhudesai, President
Shri Aremmy G.O. Fernandes, Member
Smt. Kala P. Dalal, Member
Complaint No.13/2000


Smt. Nalini Vishwanath Shirodkar,
H.No. 347,
Kakoda, Curchorem Goa. ….. Complainant

V/s.

1.M/s. Narcinva Damodar Naik,
V.N. Naik Road., Box no. 45,
Margao Goa.

2.Oriental Insurance Co. Ltd.,
Divisional Office,
David House, 2nd Floor,
Margao Goa. ….. Opposite Parties


Advocate Shri Anand V. Kurdikar for the Complainant
Advocate Shri Moraes for O.P. 1
Advocate Shri Prakash S. Prabhu Dessai for the O.P 2

Dated: 30/04/2009



O R D E R

(Smt. Kala P. Dalal, Member)

By this Order we shall dispose off the Complaint dated 21.02.2000 filed by the Complainant herein against the Opposite Parties (O.Ps.) herein under section 12 of the Consumer Protection Act 1986.

Brief facts of the case are as follows:

I.That the Complainant had purchased a motor vehicle of TATA make SFC 709 bearing Registration No. GA-02-T-9237 from the O.P. No.1 and the said vehicle was insured with the O.P. No.2.
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II.That the said vehicle met with an accident on 30.07.1998 and its cabin was totally damaged and hence the Complainant approached the O.P. No.1 for its repairs. The O.P. No.1 assured to the Complainant the entire work of repairs including the replacement of the cabin with in 40-50 days on or before and requested the Complainant to get the assurance from O.P. No.2 to make payments of the entire repairs and as a token of guarantee demanded a sum of Rs. 26,000/- from the Complainant.

III.The Complainant says that she immediately paid Rs. 26,000/- to the O.P. No.1 and on 24.11.1998 the O.P. No.2 consented to pay the balance amount of Rs. 1,72,000/- directly to the O.P. No.1 for the repairs of the said vehicle.

IV.The Complainant further says that when she took the delivery of the said vehicle after inordinate delay, she found that the O.P. No.1 had fitted old renovated cabin of TATA 407 model instead of SFC 709E cabin, and represented that 407 model cabin is in good condition and charged the Complainant a sum of Rs. 95,852/-, which in fact was not adjustable and every month cabin foundation sets break and required replacement of new nuts. The O.P. No.1 has also failed to handover the vehicle to the Complainant in time and there was a delay of 8 months, for which she lost the business for a period of more than 8 months amounting to Rs. 40,000/- per month, heavy interest on the loan amount and had to suffer mental torture, inconvenience.

V.Based on the said cause of action the Complainant has filed the present complaint with the following prayers:

(a)That the O.Ps be directed to pay the compensation of Rs. 3,20,000/- to the Complainant with interest at the rate of 18% per annum from the date of filing of the complaint till the recovery of the amount.

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(b)The O.P. No.1 be directed to replace 407 model with new cabin of TATA S.F.C. 709 E.
(c)Any other under this Hon’ble Court feel fit and proper in the interest of justice.

On issuance of the notice by this Forum the O.P. Nos. 1 and 2 filed their written versions dated 04.04.2000 and 02.05.2000 respectively inter-alia opposing the allegations of the Complainant on the following amongst other grounds:

1.That the complaint is bad in law and requires to be dismissed in limine, as the same has not been verified as required under the law.

2.That the repairs and replacement of the said vehicle were agreed to be undertaken by the O.P. no.1 on the conditions, that the Complainant deposits an advance payment equal to 50% of the total estimated cost, and the Complainant produces in advance a letter of approval of the estimates from the O.P. No.2 before any work to be undertaken by the O.P. No.1.

3.That the Complainant failed to deposit the above said amount for a considerable time from 06.08.1998 to 24.11.1998 inspite of several requests. The Complainant however paid to the O.P. No.1 only Rs. 26,000/- on 07.10.1998 even though she was asked to deposit Rs. 98,895./- being the 50% of the amount of the total estimated cost of Rs. 1,97,790/-. Therefore the works on the said vehicle were not to be commenced for the own fault of the Complainant atleast till 24.11.1998.

4.That the estimate of the repairs/replacement was prepared by the O.P. no.1 as early as on 08.08.1998 under reference no. WS/1/ACCDT/EST/CUST/GEN/98 and hence the same was submitted to the Complainant and hence there is no question of O.P. No.1 failing to carry out the repairs upon the payment of Rs. 26,000/- on 07.10.1998.
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5.Further the O.P. No.1 clarify that there is no difference in the cabin of vehicles of models TATA 407 and model SFC 709E as they are of same specifications and can be used for each other model and hence the cabin of TATA 407 was fitted to the said vehicle upon the approval of the Complainant. And if the Complainant had not approved the same, the repairs would have taken more time to bring from the manufacturers ditto same cabin with numerical meant for model 709. Therefore there was no negligence on the part of O.P. No.1 and hence prayed for dismissal of the complaint.

6.The O.P. no.2 submitted that regardless of the truth and or merits of the averments made in the complaint, the grievances sought to make therein is directed against the O.P.no.1 as such O.P. no.2 is unnecessarily and improperly made a party to the present complaint and hence there is no cause of action against the O.P.no.2 and hence prayed for dismissal of the complaint as against O.P. No.2.

We have gone through the entire records, Affidavitory evidence of both the parties, the documents on record and the written as well as oral arguments advanced by both the parties. Now we proceed to record our findings arising out of the facts and circumstances of the case:

1)At the outset there is no dispute as regards the said vehicle was insured with the O.P. No.2 and the O.P. no.2 has made payment of the claim in full and final satisfaction/settlement of the Complainant and hence we are of the opinion that there is no deficiency-in-service on the part of the O.P. No.2.

2)It is admitted by both the Complainant as well as the O.P. No.1 that the Complainant had deposited an amount of Rs. 26,000/- on 07.10.1998, as a token of guarantee. The O.P. no.1 has produced on record an estimate of repairs dated 08.08.1998 and a letter dated 23.10.1998 addressed to the Complainant requesting to deposit

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50% of the cost of the estimated repairs. Whereas the Complainant has paid Rs. 26,000/- on 07.10.1998. Hence we do not find any negligence or delay on the part of the O.P. No.1 as regards taking up of the repairs to the said vehicle.

3)With respect to the model of the cabin of the said vehicle, we are of the opinion that fixing a cabin of model TATA 407 instead of model AFC 709E definitely amounts to ‘deficiency-in-service’ on the part of the O.P. No.1 as rightly stated by the Complainant in her Affidavit-in-evidence that the said cabin has failed in maintaining alignment and therefore cannot be adjusted and requires frequent repair works.

4)In our opinion the Complainant has succeeded in proving the allegations partly which amounts to ‘deficiency-in-service’ as defined under the Consumer Protection Act, 1986 on the part of the O.P. No.1. We do not find any’ deficiency-in-service’ on the part of O.P. No.2.

We therefore pass the following Order:

O R D E R


It is hereby Ordered that the Complaint dated 21.02.2000 filed by the Complainant is partly allowed. The O.P.No.1 is directed to replace 407 model with new cabin of TATA SFC 709 E to the vehicle bearing Registration No. GA-02-T-9237. The O.P. No.1 is also directed to pay to the Complainant an amount of Rs. 20,000/- (Rupees twenty thousand