DATED THIS THE 05th DAY OF JANUARY 2010.
COMPLAINANT

BY-SRI. B.CHANDRASHEKAR REDDY,

ADVOCATE, BELLARY.

//VS//


SRI. K. SRINIVASULU,

S/O K. NARAYANA, , R/O 34/25,

VIDYAGIRI COLONY,

NEAR FIRE STATION, BELLARY.
RESPONDENTS

BY-SRI.S.YEERISWAMY,

ADVOCATE, BELLARY.

For Respondent No.1.

BY-SRI.N.JATHAPP,

SRI.B.V.SURESH,

ADVOCATES, BELLARY.

For Respondent No.2.


BY-SRI.B.VENAKATESWARA-

PRASAD, ADVOCATE,

BELLARY.

For Respondent No.3.


1. THE MANAGER,

M/S CHOLAMANDALAM DBS

FINANCE LTD., NO.102, 1ST FLOOR,

MADANA TOWERS,

OPP: TO INDIAN BANK, AMEERPET,

HYDERABAD.



2. AUTOMOTIVE MANUFACTURERS

PRIVATE LTD., P.B.NO.1, NH-7,

SANTOOSH NAGAR, KURNOOL.

3. ICICI LOMBARD GENERAL INSURANCE

COMPANY, 2ND FLOOR, MAYURA

HOTEL COMPLEX, BELLARY.

BY ITS MANAGER.
//JUDGEMENT//

Sri. S.M.Reddy, President.



This is the complaint filed by above named Complainant under Sec-12 of C.P.Act, 1986 against the Respondent No.1 to 3 in which the Complainant has sought an order against Respondent No.1 and 2 for payment of Rs.5,48,602/- towards cost of the vehicle with interest @ 24% p.a. and also compensation for deficiency of service and loss of income etc.


2. The brief facts of the Complainant’s case are that;
He is the registered owner of the Scarpio vehicle bearing Regn.No.AP-02/TV-6027. The said vehicle was purchased on the finance made by the 1st Respondent office at Kurnool and said vehicle was hypothecated in favour of the Financier. Further it is the case of Complainant that, the said vehicle was insured with the Respondent No.3 vide Policy bearing No.3004/52687131/00/000 for own damages at Rs.5,48,602/- and the Complainant was running the said vehicle for his livelihood by engaging a paid driver by name Gopal Krishna. Further it is the case of Complainant that, the said vehicle of Complainant had met with an accident on 23/11/2007 near Vidapanakallu in which the said vehicle was extensively damaged and same was informed to the 3rd Respondent who is the insurer and after obtaining permission from the 3rd Respondent, the said vehicle was shifted to the workshop of 2nd Respondent at Kurnool and Surveyor appointed by the 3rd Respondent has noted down all the damages caused to the vehicle and made estimation of the said damages at Rs.8,13,111/- and labour charges as Rs.1,14,213/-. The said vehicle was left at the workshop of 2nd Respondent for its repairs and the Complainant had instructed the Respondent No.2 to proceed with repairs. Further it is the case of Complainant that, in the month of September-2007, the Complainant and his family members had with an accident and he was admitted as inpatient for a period of three months in the hospital and after his discharge he was advised to take bed rest for another three months. Hence, the Complainant was unable to repair the said vehicle during this period and after he became fit when he approached the 2nd Respondent at Kurnool he was informed that the said vehicle has been handed over to the 1st Respondent without being repair and said vehicle is not in their custody. It is the case of Complainant that, 2nd Respondent has handed over the said vehicle without consent and permission of the Complainant to the Respondent No.1 and he protested the said act of 2nd Respondent and also made efforts to get his vehicle from the custody of Respondent No.1, but his all efforts were in vain. So these acts and attitudes of Respondent No1. and 2 amounts to criminal breach of trust and also deficiency of service as a result of their acts, the Complainant has suffered mentally and also financially. So the Respondent No.1 and 2 are solely responsible to pay all the damages caused to the Complainant. So after issuing legal notice on 16-02-2009 the Complainant is constrained to file this complaint. In this complaint, the Complainant has claimed a sum of Rs.5,48,602/- from the Respondent No.1 and 2 towards cost of vehicle with interest @ 24% p.a. and also claimed compensation of Rs.20,000/- towards deficiency of service and Rs.10,000/- towards mental agony and Rs.500/- per day as loss of income from 23-11-2007 and Rs.5,000/- towards cost of the complaint.



3. All the three Respondents have appeared through their respective counsels and have filed their separate Written Versions.



4. The Respondent No.1 in his Written Version at the first instance has stated that the Complaint is not maintainable either in law or on facts and same is liable to be dismissed for lack of jurisdiction, because all transaction has taken at Andhra Pradesh and this Forum will have no jurisdiction to entertain the complaint. The Respondent No.1 except admitting that the Complainant has purchased the said Scorpio vehicle by taking loan from the Respondent No.1 by hypothecating it in favour of Respondent No.1, has denied all other allegations made in the complaint. It is the specific case of Respondent No.1 that, the Complainant has availed the loan from the Respondent No.1 under a Loan Agreement dated: 23-03-2006 agreeing to repay the loan amount along with interest in 48 monthly installment of Rs.17,200/- each. Further it is the case of Respondent No.1 that, they are not aware as to when the said vehicle of Complainant had met with an accident. After availing the loan in the year 2006, the Complainant committed defaults in payment of installments even after repeated requests/demands and finally in the month of November-2008 when one of the representative of Respondent No.1 went to the Complainant’s place and requested for payment of loan installment and it was at that time, the Complainant cared to inform that the said vehicle had met with an accident which was his gross negligence as per Article-9 of Loan Agreement and when the Respondent No.1 insisted to pay the loan amount, the Complainant bluntly refused to repay the loan amount stating that the Respondent No.1 can take the damaged vehicle which was lying with the Respondent No.2 and on the instructions of Complainant, the Respondent No.2 has handed over the said vehicle without any repairs to the Respondent No.1 in the damaged condition. Thereafter, in the month of January-2009 when Respondent No.1 got issued a legal notice dated; 03-01-2009 calling upon the Complainant and guarantor who is none other than the Complainant’s wife to repay the balance loan amount, he has failed to repay the said loan. Thereafter, he has filed this false complaint without there being any cause of action. Further the claim made by the Complainant arises out of commercial transaction between the parties. So the Complainant cannot be construed as a consumer under Sec-2(1)(d) of C.P.Act. On these grounds, it is stated that the Complainant is not entitled to any of the reliefs and same is liable to be dismissed with exemplary costs.



5. The Respondent No.2 in his Written Version has also taken a contention about maintainability of the complaint and lack of jurisdiction as taken by the Respondent No.1. The Respondent No.2 has taken a specific contention that, the Respondent No.2 is the authorized dealer for Sales and Service of Mahindra & Madindra range vehicles. The Complainant has left his said Scorpio vehicle with this Respondent No.2 on 29/11/2007 for carrying accidental repairs. After verifying the damages of said vehicle, this Respondent No.2 had issued a tentative estimation/quotation. As per the procedure, after furnishing estimation by this Respondent No.2 the Complainant or his authorized representatives have to give an undertaking/consent letter to proceed with the repairs along with 50% advance of the estimation furnished. It is only after receiving the consent from the customer along with advance, the Respondent No.2 will commence to carry out the repair works. But in the instant case, the Complainant or his representatives have not given any consent to proceed with the repairs, but during the last week of January-2008 the Complainant had sent a fax message to this Respondent No.2 for handing over the vehicle to the finance Manager of Respondent No.1 one Mr.Phani Kumar and whatever yard charges are there will be paid by him and he has also expressed his inability to repair the vehicle. Thereafter, when the said Finance Manager of Respondent No.1 approached the Respondent No.2 and has given a letter dated: 31-01-2008 stating they are the Financier of Complainant’s vehicle and Complainant has requested to take back the vehicle from the custody of this Respondent No.2. So under these circumstances, the Respondent No.2 has handed over the custody of said vehicle to the Respondent No.1 without any repairs. So under these circumstances, absolutely there is no negligence or deficiency in service on the part of this Respondent. Further he has stated that he has neither necessary nor proper party to the present complaint. On these grounds, he has prayed for dismissal of the complaint as against this Respondent.



6. The Respondent No.3 who is the insurer in his Written Version has admitted that the said Scorpio vehicle of Complainant was insured with this Respondent No.3 for the period from 20-10-2007 to 19-10-2008. But according to this Respondent, the present complaint is bad for mis-joinder of parties as this Respondent is neither necessary nor a proper party and no claim is made against this Respondent and the averments made in the complaint goes to show that there is no cause of action to file the complaint against this Respondent as the alleged deficiency of service is attributed only against the Respondent No.1 and 2. Therefore, only with an intention to get jurisdiction of this Forum the Respondent No.3 has been made as a party. Therefore, the complaint is liable to be dismissed with exemplary cost of Rs.5,000/-

7. The Complainant in support of his case filed his affidavit evidence as P.W.1 and got marked documents as Ex.P.1 to Ex.P.14 and closed his side. The Respondent No.1 has filed the affidavit evidence of its Asst. Manager (Legal) as R.W.1 and got marked documents Ex.R.1 to Ex.R.5. Asst. Branch Manager of Respondent No.2 has filed his affidavit evidence as R.W.2 and got marked document Ex.R.7 and closed his side. The Respondent No.3 has filed affidavit evidence of its Manager as R.W.3 and got marked document Ex.R.6 Insurance Certificate-cum-Policy schedule and closed his side. Both the sides have filed their respective Written Arguments and oral arguments of both the sides have been heard.



DATED THIS THE 05th DAY OF JANUARY 2010.
COMPLAINANT



BY-SRI. B.CHANDRASHEKAR REDDY,

ADVOCATE, BELLARY.

//VS//


SRI. K. SRINIVASULU,

S/O K. NARAYANA, , R/O 34/25,

VIDYAGIRI COLONY,

NEAR FIRE STATION, BELLARY.
RESPONDENTS

BY-SRI.S.YEERISWAMY,

ADVOCATE, BELLARY.

For Respondent No.1.

BY-SRI.N.JATHAPP,

SRI.B.V.SURESH,

ADVOCATES, BELLARY.

For Respondent No.2.



BY-SRI.B.VENAKATESWARA-

PRASAD, ADVOCATE,

BELLARY.

For Respondent No.3.

1. THE MANAGER,

M/S CHOLAMANDALAM DBS

FINANCE LTD., NO.102, 1ST FLOOR,

MADANA TOWERS,

OPP: TO INDIAN BANK, AMEERPET,

HYDERABAD.

2. AUTOMOTIVE MANUFACTURERS

PRIVATE LTD., P.B.NO.1, NH-7,

SANTOOSH NAGAR, KURNOOL.

3. ICICI LOMBARD GENERAL INSURANCE

COMPANY, 2ND FLOOR, MAYURA

HOTEL COMPLEX, BELLARY.

BY ITS MANAGER.
//JUDGEMENT//
Sri. S.M.Reddy, President.

This is the complaint filed by above named Complainant under Sec-12 of C.P.Act, 1986 against the Respondent No.1 to 3 in which the Complainant has sought an order against Respondent No.1 and 2 for payment of Rs.5,48,602/- towards cost of the vehicle with interest @ 24% p.a. and also compensation for deficiency of service and loss of income etc.


2. The brief facts of the Complainant’s case are that;

He is the registered owner of the Scarpio vehicle bearing Regn.No.AP-02/TV-6027. The said vehicle was purchased on the finance made by the 1st Respondent office at Kurnool and said vehicle was hypothecated in favour of the Financier. Further it is the case of Complainant that, the said vehicle was insured with the Respondent No.3 vide Policy bearing No.3004/52687131/00/000 for own damages at Rs.5,48,602/- and the Complainant was running the said vehicle for his livelihood by engaging a paid driver by name Gopal Krishna. Further it is the case of Complainant that, the said vehicle of Complainant had met with an accident on 23/11/2007 near Vidapanakallu in which the said vehicle was extensively damaged and same was informed to the 3rd Respondent who is the insurer and after obtaining permission from the 3rd Respondent, the said vehicle was shifted to the workshop of 2nd Respondent at Kurnool and Surveyor appointed by the 3rd Respondent has noted down all the damages caused to the vehicle and made estimation of the said damages at Rs.8,13,111/- and labour charges as Rs.1,14,213/-. The said vehicle was left at the workshop of 2nd Respondent for its repairs and the Complainant had instructed the Respondent No.2 to proceed with repairs. Further it is the case of Complainant that, in the month of September-2007, the Complainant and his family members had with an accident and he was admitted as inpatient for a period of three months in the hospital and after his discharge he was advised to take bed rest for another three months. Hence, the Complainant was unable to repair the said vehicle during this period and after he became fit when he approached the 2nd Respondent at Kurnool he was informed that the said vehicle has been handed over to the 1st Respondent without being repair and said vehicle is not in their custody. It is the case of Complainant that, 2nd Respondent has handed over the said vehicle without consent and permission of the Complainant to the Respondent No.1 and he protested the said act of 2nd Respondent and also made efforts to get his vehicle from the custody of Respondent No.1, but his all efforts were in vain. So these acts and attitudes of Respondent No1. and 2 amounts to criminal breach of trust and also deficiency of service as a result of their acts, the Complainant has suffered mentally and also financially. So the Respondent No.1 and 2 are solely responsible to pay all the damages caused to the Complainant. So after issuing legal notice on 16-02-2009 the Complainant is constrained to file this complaint. In this complaint, the Complainant has claimed a sum of Rs.5,48,602/- from the Respondent No.1 and 2 towards cost of vehicle with interest @ 24% p.a. and also claimed compensation of Rs.20,000/- towards deficiency of service and Rs.10,000/- towards mental agony and Rs.500/- per day as loss of income from 23-11-2007 and Rs.5,000/- towards cost of the complaint.



3. All the three Respondents have appeared through their respective counsels and have filed their separate Written Versions.



4. The Respondent No.1 in his Written Version at the first instance has stated that the Complaint is not maintainable either in law or on facts and same is liable to be dismissed for lack of jurisdiction, because all transaction has taken at Andhra Pradesh and this Forum will have no jurisdiction to entertain the complaint. The Respondent No.1 except admitting that the Complainant has purchased the said Scorpio vehicle by taking loan from the Respondent No.1 by hypothecating it in favour of Respondent No.1, has denied all other allegations made in the complaint. It is the specific case of Respondent No.1 that, the Complainant has availed the loan from the Respondent No.1 under a Loan Agreement dated: 23-03-2006 agreeing to repay the loan amount along with interest in 48 monthly installment of Rs.17,200/- each. Further it is the case of Respondent No.1 that, they are not aware as to when the said vehicle of Complainant had met with an accident. After availing the loan in the year 2006, the Complainant committed defaults in payment of installments even after repeated requests/demands and finally in the month of November-2008 when one of the representative of Respondent No.1 went to the Complainant’s place and requested for payment of loan installment and it was at that time, the Complainant cared to inform that the said vehicle had met with an accident which was his gross negligence as per Article-9 of Loan Agreement and when the Respondent No.1 insisted to pay the loan amount, the Complainant bluntly refused to repay the loan amount stating that the Respondent No.1 can take the damaged vehicle which was lying with the Respondent No.2 and on the instructions of Complainant, the Respondent No.2 has handed over the said vehicle without any repairs to the Respondent No.1 in the damaged condition. Thereafter, in the month of January-2009 when Respondent No.1 got issued a legal notice dated; 03-01-2009 calling upon the Complainant and guarantor who is none other than the Complainant’s wife to repay the balance loan amount, he has failed to repay the said loan. Thereafter, he has filed this false complaint without there being any cause of action. Further the claim made by the Complainant arises out of commercial transaction between the parties. So the Complainant cannot be construed as a consumer under Sec-2(1)(d) of C.P.Act. On these grounds, it is stated that the Complainant is not entitled to any of the reliefs and same is liable to be dismissed with exemplary costs.



5. The Respondent No.2 in his Written Version has also taken a contention about maintainability of the complaint and lack of jurisdiction as taken by the Respondent No.1. The Respondent No.2 has taken a specific contention that, the Respondent No.2 is the authorized dealer for Sales and Service of Mahindra & Madindra range vehicles. The Complainant has left his said Scorpio vehicle with this Respondent No.2 on 29/11/2007 for carrying accidental repairs. After verifying the damages of said vehicle, this Respondent No.2 had issued a tentative estimation/quotation. As per the procedure, after furnishing estimation by this Respondent No.2 the Complainant or his authorized representatives have to give an undertaking/consent letter to proceed with the repairs along with 50% advance of the estimation furnished. It is only after receiving the consent from the customer along with advance, the Respondent No.2 will commence to carry out the repair works. But in the instant case, the Complainant or his representatives have not given any consent to proceed with the repairs, but during the last week of January-2008 the Complainant had sent a fax message to this Respondent No.2 for handing over the vehicle to the finance Manager of Respondent No.1 one Mr.Phani Kumar and whatever yard charges are there will be paid by him and he has also expressed his inability to repair the vehicle. Thereafter, when the said Finance Manager of Respondent No.1 approached the Respondent No.2 and has given a letter dated: 31-01-2008 stating they are the Financier of Complainant’s vehicle and Complainant has requested to take back the vehicle from the custody of this Respondent No.2. So under these circumstances, the Respondent No.2 has handed over the custody of said vehicle to the Respondent No.1 without any repairs. So under these circumstances, absolutely there is no negligence or deficiency in service on the part of this Respondent. Further he has stated that he has neither necessary nor proper party to the present complaint. On these grounds, he has prayed for dismissal of the complaint as against this Respondent.



6. The Respondent No.3 who is the insurer in his Written Version has admitted that the said Scorpio vehicle of Complainant was insured with this Respondent No.3 for the period from 20-10-2007 to 19-10-2008. But according to this Respondent, the present complaint is bad for mis-joinder of parties as this Respondent is neither necessary nor a proper party and no claim is made against this Respondent and the averments made in the complaint goes to show that there is no cause of action to file the complaint against this Respondent as the alleged deficiency of service is attributed only against the Respondent No.1 and 2. Therefore, only with an intention to get jurisdiction of this Forum the Respondent No.3 has been made as a party. Therefore, the complaint is liable to be dismissed with exemplary cost of Rs.5,000/-

7. The Complainant in support of his case filed his affidavit evidence as P.W.1 and got marked documents as Ex.P.1 to Ex.P.14 and closed his side. The Respondent No.1 has filed the affidavit evidence of its Asst. Manager (Legal) as R.W.1 and got marked documents Ex.R.1 to Ex.R.5. Asst. Branch Manager of Respondent No.2 has filed his affidavit evidence as R.W.2 and got marked document Ex.R.7 and closed his side. The Respondent No.3 has filed affidavit evidence of its Manager as R.W.3 and got marked document Ex.R.6 Insurance Certificate-cum-Policy schedule and closed his side. Both the sides have filed their respective Written Arguments and oral arguments of both the sides have been heard.