IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 27th day of August, 2012
Filed on 02.04.2011
Present
- Sri. K. Anirudhan, Member (President-in-charge)
- Smt. N. Shajitha Beevi (Member)
in
C.C.No.123/2011
between
Complainant:- Opposite Parties:-
Sri. Girish.S. 1. Hyundai Motors India Ltd.
Aiswarya, Cheruthana P.O. NP-54, Developed Plot
Karthikappally Taluk Ekkaduthangal, Thiruvika
Alappuzha Distirct Industries Estate, Chennai –
(By Adv. R. Rajesh) 600 032
2. The Manager, Popular Motor World Private Ltd., Kaimanam
Thiruvananthapuram
3. Visal Dev, Kallungal
Klappana, Kollam
(By Adv.Laly Joseph)
4. The Manager, ICICI Lombard
General Insurance, Zenith House
Kesava Rao Khadi Marg
Mahalakshmi, Mumbai – 34
(By Adv. C.Muraleedharan)
O R D E R
SRI. K. ANIRUDHAN, MEMBER (PRESIDENT-IN-CHARGE)
Sri. Girish.S. has filed this complaint before the Forum on 2.4.2011 against the opposite parties. The allegations are as follows:- He had purchased a Hyundai Santro GL for a sum of Rs.3,70,000/- from the 2nd opposite party. The said vehicle – bearing regn. No.KL 29C/3207 – was purchased by him on the basis of the assurance of 2nd opposite party and their executive. At the time of purchasing the said vehicle, 2nd opposite party given an offer to him that they will provide ATS power windows to the vehicle by free of cost, together with the service of the vehicle, by way of collecting the vehicle from his residence. Believing the words of the 2nd opposite party, he had purchased the vehicle. But 2nd opposite party had not provided power window to the vehicle as per assurance. On 21.12.2010 the 3rd opposite party has taken the vehicle from him for first service and for providing power window. As such, he handed over the said vehicle to the 3rd opposite party at Haripad for the said purpose. But when the vehicle reached near Kayamkulam, the vehicle met with an accident, and the vehicle was damaged completely, and the chasis was bended and the vehicle was not in moving condition. Now the said vehicle is in the possession of the 2nd opposite party. Opposite parties jointly and severally liable for this. His request to change the vehicle with a new one was rejected by the opposite parties. Hence this complaint seeking relief.
2. Notice was issued to the opposite parties. They entered appearance and filed version.
3. In the version of the first opposite party, it is stated that the complaint is baseless , frivolous and misleading the facts, and that the complainant has no cause of action. It is stated that when the driver of the 2nd opposite party after collecting the said vehicle from the complainant was on his way to the workshop of the opposite party, for first service, the vehicle met with the accident. It is stated that they were not responsible for the accident, and that the vehicle is now in the custody of 2nd opposite party, and further stated that they are not responsible for that. It is further stated that the complainant has no allegation against the manufacturing defects of the car, and that they cannot be held liable for any act of the 2nd opposite party.
4. In the version of the 2nd opposite party, it is stated that they are admitted the purchase of the said vehicle from them by the complainant, and denied the allegation of neglecting to fix of power window. It is stated that the 3rd opposite party is only an employee in the sales division of the 2nd opposite party and he collected the vehicle for service on behalf of the 2nd opposite party. It is further stated that no liability can be fastened upon 2nd opposite party in connection with the said accident. It is stated that the said accident occurred due to the rash and negligent driving of the executive of the 2nd opposite party and they cannot be made liable for the alleged loss. The damage covered by the insurance of M/s. ICICI Lombard General Insurance Co. Ltd. and that the complainant can legally recover the compensation from the 4th opposite party.
5. 3rd opposite party has not filed any version. In the version of the 4th opposite party, it is stated that there is no deficiency in service and that they are to be exonerated from the liability. They had issued policy to the said vehicle for a period from 6.11.2010 to 5.11.2011. After the receipt of the claim, they deputed surveyor to ascertain the damages. The Surveyor inspected the vehicle on 13.1.2011 and filed report and he assessed the damages to an amount of Rs.1,34,108.74/-. The complainant was not carried out the repaired to the vehicle, vide their letter dt. 7.3.2011. They are liable to pay the assessed amount as per the report of the Surveyor.
5. Considering the disputes of the parties, this Forum has raised the following issues for consideration:-
1) Whether there is any deficiency in service on the side of the opposite parties?
2) Whether the complainant is entitled to get the relief as prayed for?
3) Compensation and costs.
6. Issues 1 to 3:- Complainant has filed proof affidavit in support of his claim and produced documents in evidence – Exts.A1 to A5 – marked. Ext.A1 is the copy of the RC Book. It further shows the details of the said vehicle. It shows the Hypothecation of the said vehicle to M/s. HDFC Bank. Ext.A2 is the copy of the Tax Receipt. Ext.A3 is the copy of the Insurance of ICIC Lombard. The insurance certificate shows the insurance coverage period – from 6.11.2010 to 5.11.2011. Ext.A4 is the FIR taken by the Police in connection with the details of the said accident. Ext.A5 is the statement given by the 3rd opposite party to the Police. It shows that he was the driver of the said vehicle at the time of the accident.
7. Opposite parties have field proof affidavit and filed counter affidavits against the proof affidavit of the complainant. Opposite parties have not produced any documents before the Forum. In this case, a commissioner was appointed. The commissioner has filed a detailed report. Verified the report in detail. It shows that the commissioner has stated the details of the said vehicle, cause of accident, details of damages and summary assessment etc. The Commissioner had suggested to settle the claim as ‘Total loss base’. It is to be noted that the opposite parties are not turned up, at the time of inspection of the said vehicle, even though the commissioner had intimated the details of inspection of the said vehicle to the opposite parties.
8. We heard this matter in detail and perused the documents given in evidence and verified the Commission Report. The dispute was relating to the accident occurred while the vehicle was driving by the executive of the 2nd opposite party from the residence of the complainant to the workshop of the opposite parties for the first service on 21.12.2010. The accident occurred within 45 days of the purchase of the said vehicle. Due to the rash and negligent driving of the executive of the 2nd opposite party, the vehicle met with the said accident. It is alleged that the vehicle was fully damaged due to that accident. All these contentions of the complainant are agreed by the 2nd opposite party. It is alleged that the opposite parties have agreed to release a new vehicle to the complainant, before its release from the Police Station. But it is noticed that later the opposite parties have violated the assurance and not taken any sincere attempt to release the new vehicle to the complainant so far. Now the vehicle is in the custody of the 2nd opposite party. It is further noticed that the complainant is to pay the loan installment to M/s. HDFC in connection with the loan to purchase the said vehicle. A commission was appointed by this Forum to ascertain the details of the said vehicle. The commissioner has filed the report along with the photos of the damaged vehicle. The commissioner has reported that the vehicle is in a ‘Total loss base’. On a verification of the entire facts and circumstances of this case, we are of the view that the contentions raised by the opposite parties cannot be taken into account, since it has no merit and without any bonafides. It is to be noticed that the accident occurred within 45 days from the date of purchase of the said vehicle and while going to the workshop of the 2nd opposite party, the executive of the 2nd opposite party was the driver of the said vehicle at the time of accident. So, the opposite parties cannot escape from the liability by raising unnecessary contentions regarding the status of their executive. The opposite parties are jointly and severally liable to give proper relief to the complainant as prayed for. All the contentions put forward by the opposite parties are illegal, arbitrary and unauthorized and cannot be sustained. On a detailed verification of the exhibits, commission report and other facts of this case, we are of the considered view that the allegations raised by the complainant is to be treated as genuine. The opposite parties’ contentions regarding this disputes have no locus standi and it cannot sustain in any way. On a detailed readings of the whole matter involved in this case, we are of the further view that the opposite parties are jointly and severally liable to give proper relief to the complainant, since the accident occurred due to negligence and rash driving of the 3rd opposite party who is the staff of the 2nd opposite party and that there is deficiency in service, negligence, unfair trade practice and dereliction of duty on the side of the opposite parties by way of purposeful refusal to give proper remedy to the complainant in time. Instead of giving proper relief to the complainant in time by way of release of a new vehicle, the opposite parties raised unnecessary contentions against a fair settlement of this matter, and that the opposite parties unnecessarily drag on the complainant before the Forum for settlement. In this context, we are of the strong view that the complaint is to be allowed as prayed for by the complainant. All the issues are found in favour of the complainant. Hence the complaint allowed.
In the result, we hereby ordered that the opposite parties 1 to 3 shall release a new Hyundai Santro GL plus Car to the complainant without insisting any further amounts from the complainant, together with a compensation of Rs.25,000/- (Rupees twenty five thousand only) for his mental agony, pain, inconvenience, physical strain, financial loss and harassment due to the grossest deficiency in service, culpable negligence, imperfection and unfair trade practice of the opposite parties by way of purposeful refusal to give new car of the same description of the earlier vehicle to the complainant in time, and committed in- ordinate delay for the same. After a detailed verification of the facts and circumstances of this matter, we are of the considered view that the opposite parties 1 to 3 are fully liable to pay punitive costs to the complainant. So we further ordered that the opposite parties to pay a sum of Rs.2000/- (Rupees two thousand only) as punitive costs and further pay a sum of Rs.1000/- (Rupees one thousand only) as costs of this proceedings to the complainant. We ordered that if the opposite parties shall violate this order, they are liable to pay interest at the rate of 12% per annum for the whole amount to the complainant from the date of filing of this complaint to till the date of realization of the full amount. We hereby direct the opposite parties 1 to 3 to comply with this order, within 30 days from the date of receipt of this order.
Complaint allowed.
Pronounced in open Forum on this the 27th day of August, 2012.
Sd/- Sri. K. Anirudhan:
Sd/- Smt.N.Shajitha Beevi:
Appendix:-
Evidence of the complainant:-
Ext.A1 - Copy of RC Book
Ext.A2 - Copy of the Tax Receipt
Ext.A3 - Copy of the insurance of ICIC Lombard
Ext.A4 - FIR
Ext.A5 - Statement given by the 3rd opposite party to the Police
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
