Date of Filing: 10.10.2018
Date of Order: 29.05.2020
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B., PRESIDENT
HON’BLE Sri K.RAM MOHAN, B.Sc. M.A L.L.B., MEMBER
HON’BLE Smt. CH. LAKSHMI PRASANNA, B.Sc. LLM. (PGD (ADR) MEMBER
On this the Thursday, the 29th day of May , 2020
C C No.388/2018
Between:
Sri Kodalim Rajesh,
S/o. Sri K.Balakrishna Rao,
Age 33 Years, Occ: Motor filed,
R/o. H.No. Plot No. 109, Sy.No.83,
Venkateshwa Enclave
Near Priyadarshni Hotel
Suchitra, Hyderabad – 500 067
And
1) Concorde Motors India Limited,
Rep.by its Chairman / Managing Director,
Having its registered office at 3d floor, Nanavatimahalay
18, Homi Mody Street, Hutatna `Chowk, Mumbai,
Maharastra – 400 001. Opposite parties.
2) General Manager (Service) Concord Motors,
Branch Office at Flat No,.B-51, APIIC industrial Estate,
Opp: Sanathnagar Bus stop , Sanathnagar,
Hyderabad – 500 018.
3) Manager Concord Motors,
Branch Office at Flat No,.B-51, APIIC industrial Estate,
Opp: Sanathnagar Bus stop , Sanathnagar,
Hyderabad – 500 018.
4) Service Advisor Body Shop Concord Motors,
Branch Office at Flat No,.B-51, APIIC industrial Estate,
Opp: Sanathnagar Bus stop , Sanathnagar,
Hyderabad – 500 018.
5) Manager Body Shop Concord Motors,
Branch Office at Flat No,.B-51, APIIC industrial Estate,
Opp: Sanath Nagar Bus stop , Sanathnagar,
Hyderabad – 500 018.
O R D E R
(By Smt. CH. Lakshmi Prasanna,B.Sc. LLM (PGD ( ADR)., Member on behalf
of Bench
1) The complaint is filed under Section 12 of C.P. Act of 1986 against the opposite parties, seeking to grant the following reliefs:
• To direct the opposite parties to pay an amount of Rs.1,30,999- towards Car repair and servicing done by one M/s Tejaswi Automobiles,
• To direct the Opposite parties to pay compensation of Rs.12,74,800 /-towards loss and suffering, and mental agony caused to the complainant.
The averments of the complainant are:-
2. The complainant is the owner of the Tata Indica car bearing TS 16 UA 7666, engaging a driver to run it for Uber Cab Services. On 28/12/2017, being informed by the car driver G.Shiv Kumar that the car got damaged in an accident, the complainant got the vehicle towed by one Sri Pandu Ranga towing services and gave it for repair to the Opposite Party No.5 with duly issued receipt dt.29/12/2017 and job card No.jc-ccdhyd-sn-1718-016527. After a long delay of more than 6 months, the Opposite Parties informed the complainant on 10/7/2018 that his car repair is done and handed over a bill of Rs.2,60,781/-, stating that an amount of Rs.1,47,600/- was paid by the Insurance Company and hence need to pay the balance amount of Rs.1,13,181/- to take the delivery of the car. The complainant alleges deficiency of service and negligence on the part of the Opposite Parties for the partial rejection of the insurance claim attributing delay in submitting insurance claim, and putting up excess labour charges, multiple charges of same items, and replacing with high end model spare parts etc. The opposite Parties denied the allegations and served a legal notice dt.26/7/2018 demanding the complainant to pay the balance amount of Rs. 96,000/- considering the complainant's complaint with the customer care of the Opposite parties vide Complaint No.1-79756421375 dt.3/8/2018 and the intervention of the Telangana Trade Union Cell. However, when the complainant paid the amount of Rs.96,000/- and collected his car on 20/8/2018 from the service centre, his car suddenly stopped on the way and the Opposite Parties did neither respond nor helped the complainant. Thereafter, the complainant took his car to another Tata Service Centre, M/sTejaswi Automobiles who stated that his car was not properly repaired and issued a service estimation bill for body shop Rs.86,390/- and mechanical estimation of Rs.44,609/- totaling to Rs.1,30,999/-.The complainant is compelled to spend extra Rs.1,30,999/- for the required repair of his car to make it roadworthy. Alleging negligence and deficiency of service on the part of the Opposite Parties, after serving legal notice dt.30/8/2018, the present complaint is filed seeking appropriate relief.
3. In the written version filed on behalf of all the Opposite parties, while denying all the allegations, the Opposite parties raised the preliminary objections that a) the complainant is not a consumer admittedly being in the business of running the cab services by engaging a driver, b) for non-joinder of necessary party of Insurance Company in determining the correctness or otherwise of the insurance claim.
The Opposite Parties further contended that the complainant's car which was purchased on 31/1/2015 has run around 75,800 km when it was brought for accident repairs on 28/12/2017 and the complainant's car travelled a 5,464 km within two weeks after repair on 20/8/2018 and the mileage reading was 81,264 km on 8/9/2018 showing that the car was thoroughly repaired and made roadworthy. In their written arguments, the opposite Parties submitted that in fact the complainant was personally supervising the repair work, being an ex-employee of the company and all the repairs were done diligently done by the Opposite Parties. The complainant refused to pay the balance amount of Rs.96,000/- after partially approved insurance claim and made unreasonable demands to deliver his vehicle without making any payments and threatened to file case against them. In response to a legal notice served by the Opposite parties calling on the complainant to pay the repair charges of Rs.96,000/-, the present complaint is filed with false allegations and for wrongful gain, avoiding due payments towards his car repairs by the Opposite Parties.
4. In the enquiry, the complainant filed his evidence affidavit reiterating the averments in the complaint supporting his claim with 18 documents ( EX A1 to A18) while Ex B1 to B3 are marked on behalf of the Opposite Parties including the job card, Invoice for the repair of the Complainant’s car and the Insurance Claim.
5 Based on the facts and material brought on record, and written arguments submitted by both the parties, the following points have emerged or consideration:
• Whether, the complainant is a " consumer" under the Consumer Protection Act?
• Whether there is negligence and deficiency on the part of the Opposite Parties?
• Whether the complainant is entitled for the claim/compensation made in the complaint and to what relief?
6 Point No.1:- Before discussing the merits of the case, the main question that needs to be answered is as to whether the complainant who had purchased the Tata Indica Car and using it for cab services for earning profits can be regarded as a consumer even for the purposes of services offered by the Opposite Parties as envisaged under section 2(1)(d)(i) of the Consumer Protection Act. In this context, it is worth perusing the principle/legal position and the lucid illustrations given by the Hon'ble Supreme Court in Laxmi Engineering Works-Vs-P.S.G. Industrial Institute (AIR 1995 SC 1428)- it was opined that even a purchaser of a vehicle who purchases it for plying it as a public carrier would be a consumer if he plies it himself and even if he takes the assistance of one or two persons to assist/help him in operating the vehicle he does not cease to be a consumer. As against this a person who purchases the vehicle to be plied for commercial purposes and operated exclusively by another person would not be a consumer.
With a view to obviate any confusion with respect to "commercial purpose" "livelihood"- Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of 'self employment', such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. The several words employed in the explanation, viz., 'uses them by himself ', 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood.
In the instant case, the complainant admittedly purchased the car for running cab services by engaging a driver for commercial purposes for earning profit. As could be seen from the averments in the complaint, the complainant categorically stated that he has been put to heavy loss of an amount of Rs.9,45,000/- on account of alleged delay in repair works by the Opposite Parties and non-functioning of the car for more than six months. Ex A2 is the permit for contract carriage issued by the Government of Telangana Transport Department, showing the commercial purpose of the vehicle, and Ex A5 & A6 are Uber Fleet Dashboards showing the receipt of Rs.5133.15 of the complainant's cab on 28/12/2017, i.e on the date of the accident. Further, admittedly, the complainant has engaged one driver Mr.Shiv Kumar to drive the vehicle and apparently retained the driver by paying Rs.7500/-per month even during eight months of the repair work after the alleged accident of the vehicle. This clearly indicates that the complainant was not only earning livelihood before booking of the commercial premises but he was also providing employment to another person/driver. And it is quite unreasonable to retain a driver without work unless there are other cars owned by the complainant to engage his services. Hence, by no stretch of imagination can it be considered as a consumer dispute as envisaged under the Act.
Be that as it may, now the question for consideration is whether there is negligence and deficiency of service on the part of the Opposite Parties. The complainant's allegation is that the Opposite parties charged heavily for the replacement of damaged parts of the vehicle with high end model parts and delay in submitting insurance claim. It is clear from the Job Card Ex B1 that the warranty on the vehicle being expired, and hence the accident repairs by way of sheet metal welding/repair, drive shaft lh, assy engine mount, gear shift cables etc were replaced and made road worthy accordingly charged for the replacement parts. Having noticed that an excess amount of Rs.16,728/- has been charged erroneously, the Opposite Parties deducted the said excess amount and delivered the car after due payment of Rs.96,000/- (Ex A 13) by the complainant. As seen from Ex B2, the Opposite Parties submitted the insurance claim immediately on 4/1/2018. Thus there was no delay in submitting the insurance claim and the Opposite Parties cannot be held liable for the correctness or otherwise of the partially approved insurance claim, and the same cannot be adjudicated in the absence of making the Oriental Insurance, a necessary party to the present complaint. As per the Job Card Ex B1 the total cost of the accident repairs of the complainant's car was Rs.2,60781/- out of which, an amount of Rs.1,47,600/- Insurance claim was approved/reimbursed. In the balance amount of Rs.1,31,181/- due for payment by the complainant, an excess amount of Rs.16,728/- has been charged erroneously, which was admitted by the Opposite Parties and deducted the said excess amount. Finally, on payment Rs.96,000/- the complainant's car was delivered after completing the repairs on 20/8/2018. Further it is found that the complainant's car which was purchased on 31/1/2015 has run around 75,800 km when it was brought for accident repairs on 28/12/2017 and the complainant's car travelled a 5,464 km within two weeks after repair on 20/8/2018 and the mileage reading was 81,264 km on 8/9/2018 showing that the car was thoroughly repaired and made roadworthy. Keeping in mind the legal position as laid down by the Supreme Court and on a careful scrutiny of the materials placed before this Court and also in the light of the aforesaid discussions, this Forum is of the considered opinion that deficiency of service is not proved against the Opposite Parties.
7. Point No.2 :- In view of the above findings of this Forum, the complainant is not entitled for any of the claims and hence the complaint is dismissed with no costs.
8) Point No.3:- In the result, the complaint is dismissed. No order as costs.
Dictated to steno, transcribed and typed by her, pronounced by us on this the 28th day of May , 2020.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESS EXAMIND
Nil
Exs. filed on behalf of the Complainant:
Ex.A1 – Certificate of Registration – Form -23.
Ex.A2 – permit in respect of a particular contract carriage.
Ex.A3 –Cash / Estimate Bill dt,29.12.17.
Ex.A4 A6 - . Drivers Performance promotions trip payments
Ex.A7 – Job slip
Ex.A8 – Tax invoice
Ex.A9 – Cashless authorization for vehicle
Ex.A10 – Legal notice 26.7.2018.
Ex.A11 – Gmail letter dt.3.8.2028
Ex.A12 – Tax Invoice.
Ex.A13 – Receipt dt.20.8.2018
Ex.A14 – S M S sent by opposite parties.
Ex.A15 – Job slip dt.21.8.2018
Ex.A16 – Tejasvi Auto mobiles Body Shop estimation dt.21.8.2018
Ex.A17 – Legal notice dt.30.8.2018.
Ex.A18 – Reply dt.20.9.2018
Exs. filed on behalf of the Opposite party
Ex.B1 - Job card
Ex.B2 – Cashless authorization for vehicle
Ex.B3 - Legal Notice 26.7.2018
MEMBER MEMBER PRESIDENT
