State Consumer Disputes Redressal Commission
Tasveer Kaur Sohi vs Chandigarh Moto Company on 4 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.389 of 2016
Date of Institution: 15.12.2016
Order reserved on: 02.01.2018
Date of Decision : 04.01.2018
Tasveer Kaur Sohi wife of Sh. Inderbir Singh resident of house
no.75, Sector 8-A, Chandigarh.
.....Complainant
Versus
1. Chandigarh Moto Co. through its Partner/proprietor, behind
Sales Tax Office Barrier, Zirakpur, District S.A.S. Nagar.
2. Zorawar Singh S/o Karandeep Singh Suri r/o H.No.93, Sector
8-A, Chandigarh.
3. Gurfateh Singh s/o Karandeep Singh Suri r/o H.No.93, Sector
8-A, Chandigarh.
.....Opposite Parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. P.K. Kukreja, Advocate
For the opposite parties : Sh. S.S. Narula, Advocate
.................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (in short as OPs) on the averments that OP nos.1 and 2 have been running the business under the name and style of M/s Chandigarh Moto Company, whereas OP no.2 is sole proprietor of OP no.1. They have been rendering the services/repairs of various high end cars. The complainant owns one Mercedes Consumer Complaint No.389 of 2016 2 Model E-220 CDI Diesel version of white colour, bearing registration number CH01 AW 0575, which was purchased by her for Rs.38,93,275/- in the year 2013, vide invoice dated 06.02.2013 annexure C-1. She further paid Rs.2,33,597/- as road tax @6%. She availed finance facility from ICICI bank for purchasing this car. It is further averred that the right side rear door of the above car was dented in a minor condition requiring denting and painting thereto. The car was taken to the workshop of OP no.1 situated at Zirakpur on the instructions of complainant on 26.08.2016 by explaining the problems to OP no.2 in it. Its exhaust tip was also required the cleaning and the said job was also allocated to OPs by her. OPs have not provided the job card to her. After rectifying the denting and painting problem, OP no.2 unauthorizedly utilized the car of complainant for his personal use. On 31.08.2016, Mr. Gurinder Sidhu, telephonically informed the husband of the complainant regarding unauthorized driving of the said car by OP no.2. When husband of the complainant enquired about the status of car from OP no.2, the latter sent whatsapp message to him on 31.08.2016 through mobile no.9646836959 on mobile number 9023457575. The message so sent has been reproduced in complaint in detail. The husband of complainant came back from Delhi on 03.09.2016 and passed outside the house of OP no.2 at 10:30 PM, but he could not find the above car parked thereat. OPs utilized the said car of the complainant in an unauthorized manner without her consent. OP no.2 lodged DDR no.008 on 04.09.2016 at Police Station North Consumer Complaint No.389 of 2016 3 Chandigarh that the said car was parked on the pavement of his house on 02.09.2016 at about 8:30 PM for carrying out the denting job. The contents of the DDR reads out that the denting and painting job was completed and the car was brought back. The car was parked by OP no.2 in the pavement of his house, where someone put the above car on fire. The services of two fire brigades were requisitioned by OP no.2 to extinguish the fire. The contents of DDR were wrongly recorded regarding date of delivery and place of delivery of the car. On 04.09.2016 at about 11:00 AM, OP no.2 and 3 came to the house of complainant intimating her husband regarding the total loss of car and filing of DDR and fire brigade report in the incident of fire engulfing the car. OP no.2 and his brother assured to compensate the complainant in purchasing another car of the same model, in lieu of the damaged car. OP no.2 moved another complaint to police on 05.09.2016. On 06.09.2016, OPs backed out from their promise of paying the cost of the car to the tune of Rs.35,00,000/- to complainant by disowning their commitment. Husband of complainant lodged FIR no.142 dated 06.09.2016 against OP at police station North Chandigarh in this regard. OP no.2 and his brother moved anticipatory bail application on 08.09.2016 under Section 438 of CrPC before Sessions Judge Chandigarh for their pre arrest bail. It is further averred that OP no.2 utilized the filed print of whatsapp message dated 31.08.2016. OPs are alleged to be guilty of deficiency in service by bringing the car to their home without any authority from complainant. OPs failed to intimate the complainant Consumer Complaint No.389 of 2016 4 that car was ready with effect from 31.08.2016 and wrongly utilized the car, which was engulfed in the fire. The screen report of car issued by Registering and Licensing Authority Chandigarh as on 17.10.2016, revealed that the above car is still in the name of complainant in the record. The complainant has been deprived of utilizing her personal use and suffered loss and harassment in this regard. The complainant has, thus, filed the complaint praying that OPs be directed to pay the cost of the car to the tune of Rs.35,00,000/- with interest @18% per annum from 01.09.2016 till actual payment and further compensation of Rs.5,00,000/- and cost of litigation of Rs.44,000/- to her.
2. Upon notice, OPs filed their joint written reply and contested the complaint of the complainant vehemently. Preliminary objections were raised by OPs that complaint is bad for misjoinder of parties and is not maintainable. Since, car was handed over to OP no.2, who is the sole proprietor of OP no.1, hence no consumer complaint is competent. It is denied that this is a case of any deficiency in service on the part of OP nos.1 and 2, because there is no point of any deficiency of service in denting and painting job. Consumer complaint is not maintainable, because no allocation of consideration has been involved in this case. The complainant is not consumer of OPs. The job for which car was handed over to OP nos.1 and 2 was accomplished satisfactorily, vide photographs and whatsapp message annexure C-3 to C-5. Even contents of DDR no.008 annexure C-7 and C-8 have ruled out any allegation of Consumer Complaint No.389 of 2016 5 deficiency in service on the part of OPs. The job assigned was completed by OPs on 02.09.2016 and car was parked on the pavement outside the house of OP no.2, which was few houses away from the house of the complainant. Whatsapp message clearly revealed that immediately car was set on fire by some miscreants in the early hours on 04.09.2016. OPs tried to contact the complainant and her husband personally as well as on telephone. FIR was got registered just to put pressure upon OPs at the instance of complainant in this case. The complaint is alleged to be malafide and motivated one. The husband of the complainant and complainant plied the car without insurance policy and thereby offended Section 146 of the Motor Vehicles Act, 1988, which is punishable under section of 177 of Motor Vehicles Act. The OPs also contested the complaint even on merits. It is further averred that car in question was used by husband of complainant Inderbir Singh. OP no.2 took the car to his workshop from the husband of complainant for repair by denting and painting on the right rear door. After doing the needful, OP no.2 brought the car back to his workshop Chandigarh for its delivery to the husband of complainant on 02.09.2016. The car was at the workshop of OP no.2 for denting and painting and other minor jobs. The husband of complainant was duly informed on 02.09.2016 to collect the car in the evening, but he failed to turn up to receive it. OP no.2 brought the car back and parked the car outside his house. It was denied that OPs utilized the car for their own personal purposes unauthorizedly. On 03.09.2016, husband of Consumer Complaint No.389 of 2016 6 complainant asked OP no.2 for dropping back the car at home and it was informed him that the car was already lying outside the house of OP no.2 and he could collect the same. The husband of the complainant told OP no.2, that he would collect the car in the evening, as he was away to Delhi. OP no.2 went to the house of the complainant to deliver the car, when he received no such intimation from husband of complainant. Finding complainant and her husband unavailable thereat, OP no.2 brought back the car and parked it outside of his house on the pavement and on the intervening night of 3-4 September 2016, the complainant and her husband could not be contacted at their house, whereas some miscreants set the car on fire and police was duly informed about it by OPs. The OPs have their own personal cars and there is no question of utilizing the car of complainant. The job of car was completed on 02.09.2016 and it was brought back on the request of husband of complainant for its delivery. OPs have controverted the other averments of complainant and prayed for dismissal of complaint.
3. The complainant tendered in evidence affidavit of Inderbir Singh her husband Ex.CW1/A, her affidavit Ex.CW1/B and affidavit of Gurinder Singh Sidhu Ex.CW1/B alongwith copies of documents Ex.C-1 to C-15 and closed the evidence. As against it, OPs tendered in evidence affidavit of Zorawar Singh Ex.OP-A, affidavit of Gurfateh Singh Ex.OP-B and affidavit of Karandeep Singh Suri Ex.OP-C alongwith copies of documents Ex.R-1 to R-3 and closed the evidence.
Consumer Complaint No.389 of 2016 7
4. We have heard the learned counsel for the parties at considerable length and have also examined the material evidence on the record. The first point raised by counsel for OPs in this case before us is that complainant is not proved to be consumer of OPs. Section 2(1)(d) of Consumer Protection Act, 1986 defines the consumer, which is reproduced as under:-
"(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];
Explanation- For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment."
Consumer Complaint No.389 of 2016 8It is, thus, evident from perusal of this relevant provision of law that a person will be consumer, if he buys any goods or hired any service for consideration, which has been paid or promised or partly paid and partly promised or under any system of deferred payment. Herein, the car of the complainant was taken to the service station of OP nos.1 and 2 for denting and painting work as delivered to them by husband of complainant. OP nos.1 and 2 were to carry out the denting and painting work in the car and thereafter the car was to be returned to complainant and bill was to be raised by OP nos.1 and 2 for its repair charges. The consideration is under the deferred system of payment in this case, as gathered by us from the record. The submission of counsel for OPs that there is no consideration in this case at all and hence complainant would not be consumer is inconsequential. It is not the pleaded case on the file or established case on the record that it was a gratuitous denting and painting work by OPs. The consideration is only of deferred payment in this case, which were to be paid by complainant to OPs at the time of delivery of the car after due satisfaction of the work carried out by OP nos.1 and 2. The contention of counsel for OPs is that there is no job card also holds no water in this case, when it is the case of complainant that no job card was issued by OPs, when car was taken by OP no.2 at workshop. Our attention has been drawn to law laid down by Apex Court in "M/s National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another" 2012(1)CPC-190, wherein Apex Court examined the controversy under caption E and held that Consumer Complaint No.389 of 2016 9 Section 2(d) of Consumer Protection Act is very vide- it takes within its fold any person who buys any goods for a consideration paid or promised or partly paid and partly promised, or under any system of deferred payment. We are further fortified by law laid down by larger bench of National Commission in case "M/s Mohindra Gas Enterprises Vs. Jagdish Poswal and others" 1993(1)CPJ-90, wherein it was held by larger bench of the National Commission that in the matter of gas connection, no payment was made for a gas cylinder at the time of its registration by the complainant. It does not mean that the consumer had not hired the services of distributor, as per Section 2(1)(d)(ii) of the Act, it is not necessary that consideration should be paid at the time of hiring of services. Consideration can be deferred till the gas connection is released. The status of consumer and service provider was affirmed in the cited authority. Single bench of National Commission has also held in "Sanya Motors Pvt. Limited Vs. Anil Narsingrao Jawanjal"
2017(2)CPJ-544 that in ordinary course of business, when a car is brought to a workshop for repairs, a job card is opened, an estimated is prepared and approval of customer to said estimate is taken before undertaking repair of car. In this view of the matter, we have come to this conclusion that it is not a case, where no consideration is involved and rather it is a case of deferred payment of consideration only. Consequently, the counsel for OPs cannot derive any benefit from law laid down by our own State Commission in case titled as "Kuldip Raj Kalia Vs. Adarsh Kumar and another" Consumer Complaint No.389 of 2016 10
2009(1)CPJ-540. In the cited authority, the complainant wanted to become consumer on the basis of payment of house tax, which was not held to be consideration. The ratio of this authority is not applicable in this case at all. Payment of tax is not consideration, because tax is levied by the authorities by the sanction of law only. Counsel of OPs, then referred to law laid down in "Debraj & others Vs. State of Orissa & others" 1995(2)CPJ-180 by Orissa State Consumer Disputes Redressal Commission, Cuttack. We find that since this is a case of deferred payment of consideration, hence complainant is consumer of OPs and this authority would not help the OPs in this case in our view. In the light of our above discussion, we hold that this is a case of deferred payment of consideration between complainant and OP nos.1 and 2 and as such the consumer complaint is competent under Consumer Protection Act, 1986 in this case.
5. Now, we come to grips with the merits of the case. Plea of the complainant is that OP no.1 is the service/repair centre and OP no.2 is the sole proprietor of it. The complainant sent her above said car with OP nos.1 and 2 for denting and painting work therein. The car was taken by husband of the complainant with OP nos.1 and 2 at the instance of complainant for doing the needful repair work of denting and painting. It was accepted in the service station by OP nos.1 and 2 for doing the needful work without providing any job card to husband of complainant. OP nos.1 and 2 undertook to rectify the defects in the above car by means of doing necessary denting and Consumer Complaint No.389 of 2016 11 painting work. The averment of complainant is that OP no.2 utilized the above car for his own personal use without any permission of complainant. One Gurinder Singh Sidhu intimated complainant's husband on telephone on 31.08.2016 regarding driving of the above car by OP no.2 unauthorizedly. When husband of the complainant looked into this matter, OP no.2 sent message to him through whatsapp to the effect that the car was lying at his house under repaired condition. When husband of complainant returned from Delhi on 03.09.2016 and passed outside the house of OP no.2 at about 10:30 PM, he found no car parked thereat. OP no.2 utilized the car of complainant in an unauthorized manner without any permission of complainant. OP no.2 lodged DDR no.008 at Police Station North Chandigarh on false contents that Niku Libra parked the said car on 02.09.2016 on pavement of the house of OP no.2 at 8:30 PM for carrying out denting and painting work and someone put the car on fire. OP no.2 and his brother OP no.3 came to the house of complainant and intimated her on 04.09.2016 at about 11:00 AM regarding total loss of the car in engulfment of the car in fire. OP no.2 and his brother OP no.3 assured her and her husband to compensate her by purchasing another car of the same model in lieu of the totally damaged car. OP no.2 moved another complaint to Police Station about the car on 05.09.2016. OPs backed out from their commitment thereafter to pay the price of the car to the tune of Rs.35,00,000/- to complainant. The car of the complainant has been destroyed by OP no.1 and 2 by means of utilizing it unauthorizedly. Consumer Complaint No.389 of 2016 12 The complainant relied upon tax invoice dated 06.02.2013 regarding purchase of above car for Rs.38,93,175/-. Ex.C-2 is the certificate issued ICICI Bank, as financer of the car to complainant. Ex.C-3 to C-5 are the photographs of the car. Ex.C-6 is the whatsapp message. The DDR report lodged with the police is Ex.C-7. The complaint filed by OP no.2 proprietor of OP no.1 regarding loss of car in fire, addressed to SSP Chandigarh is Ex.C-8. FIR lodged by husband of complainant is Ex.C-9. OP no.2 and his brother OP no.3 were arrayed as accused in the case on the basis of FIR lodged by complainant side, wherein they moved anticipatory bail application before Sessions Judge Chandigarh, vide Ex.C-10. Ex.C-11 is the copy of affidavit of Gurfateh Singh. Ex.C-12 to C-14 are the photographs of burnt car on the record. Screen report of said car is Ex.C-15 on the record. Affidavit filed by Inderbir Singh husband of complainant is Ex.CW1/A on the record. This witness has testified the utilizing of the car by OP nos.1 and 2 for their personal use by diverting from the purpose for which it was handed over to them. He also testified that Gurinder Singh Sidhu informed him on telephone about the driving of the car by OP no.2. He also deposed regarding causing of loss of car by fire due to negligent act of OP nos.1 and 2. Affidavit of complainant is Ex.CW1/B on the record in support of her averments. Affidavit of Gurinder Singh Sidhu is Ex.CW1/B on the record, who intimated Inderbir Singh husband of complainant regarding user of above car by OP nos.1 and 2 on 31.08.2016. Consumer Complaint No.389 of 2016 13
6. OP also brought on record their counter evidence to refute the evidence of the complainant. OPs denied any deficiency in service in their written version. OPs averred that car was set on fire by some miscreants in the early hours of 04.09.2016. They contacted complainant and her husband for delivery of car to them, but could not find them. They further pleaded that they were impleaded as accused in criminal case founded on FIR no.142 dated 06.09.2016 lodged by husband of complainant. He stated that car was brought to them for denting and painting job and cleaning of exhaust tip. It was ready for delivery to complainant after doing needful, but she was not found available to take its delivery. OP no.3 has got no concern with the matter in the case at all. Affidavit of Zorawar Singh OP no.2 is Ex.OP-A on the record. This witness testified on oath that the car was handed over to him by Inderbir Singh husband of complainant for doing the denting and painting work. There was no deficiency or fault in the denting and painting work, so as to make the case cognizable by Consumer Forum. Inderbir Singh husband of complainant handed over the car to them but not on behalf of his wife. The statement made by complainant to police is Ex.R-1 on the record and Ex.R-2 is the copy of examination report dated 16.02.2017 by Central Forensic Science Laboratory, Chandigarh regarding the burnt condition of the car. The order of Additional Sessions Judge Chandigarh granting anticipatory bail to this witness is Ex.R-3 on the record. Affidavit of Gurfateh Singh OP no.3 is Ex.OP-B on the record. This witness also denied any such Consumer Complaint No.389 of 2016 14 concern with complainant. He further stated that complainant held no insurance of the car and thereby violated Section 146 of Motor Vehicles Act, which is made punishable under Section 177 of above Act. Affidavit of Karandeep Singh Suri is Ex.OP-C on the record to the effect that OP no.1 is proprietorship concern of OP no.2, whereas OP no.3 is independent and has no concern with them whatsoever. He also testified that this car in dispute was without any insurance and thereby complainant violated Section 146 of Motor Vehicles Act, which is punishable under Section 177 of the above Act. This witness also denied any liability of OPs in this case.
7. From critical analysis of entire pleadings and evidence on the record and written brief points and hearing the respective submissions of counsel for parties, we find that it is a case of deferred payment of consideration by complainant through her husband Inderbir Singh to OP nos.1 and 2 and as such she is consumer of OP nos.1 and 2. This is a case of bailment, as defined under Section 148 of Contract Act 1872. Section 148 of Contract Act, 1872 lays down that essence of bailment is possession. When the custody is of the bailee or the sub-bailee, the burden is on them to show how they handled the car. The burden is on them to establish to the satisfaction of the Court as to what degree of care was taken in respect of the damaged car. The bailment is the delivery or transfer of possession of goods with a specific mandate which requires the identical res either to be returned to the bailer or to be dealt within a particular way by the bailee, as per directions of the Consumer Complaint No.389 of 2016 15 bailer. Section 149 of Contract Act 1872 describes that the delivery to bailee may be made by doing anything which has the effect of putting the goods in the possession of the intended bailee or of any person authorised to hold them on his behalf. Section 151 of Contract Act 1872 is the most essential provision of law, which is reproduced as under:-
"151. Care to be taken by bailee- In all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity and value as the goods bailed."
It is, thus, clear from perusal of Section 151 of Contract Act that in all cases of bailment, the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quantity as value as the goods bailed. The bailee is required to take amount of care of the goods bailed to him like a man of ordinary prudence is under similar circumstances to take of his own goods. Section 154 of Contract Act, further lays down that if the bailee makes any use of the goods bailed, which is not according to the condition of the bailment, he is liable to make compensation to the bailer for any damage arising to the goods from or during such use of them. As per Section 154 of the Contract Act, the bailee is not entitled to use the goods bailed beyond the conditions of bailment, otherwise he is liable to make compensation to bailer for any Consumer Complaint No.389 of 2016 16 damage arising to the goods from or during such use of them. In this case, the pleaded and proved case of complainant is that OP no.2 used the car for personal use unauthorizedly, whereas it was given to him for denting and painting work and hence OP nos.1 and 2 have not used the car according to the conditions of bailment, as provided in Section 154 of the Contract Act, 1872 by moving the car out of the workshop. Section 160 of Contract Act, 1872 further lays down that it is the duty of the bailee to return, or deliver according to the bailer's directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished. Section 161 of Contract Act further lays down that if by the fault of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailer for any loss, destruction or deterioration of the goods from that time.
8. Considering the entire gamut of evidence on the record and the submissions of counsel for parties, we find that OP nos.1 and 2 took the car to their home and used it beyond the directions and conditions of bailment in an unauthorized manner by removing the car outside the service station. The car has not been returned to complainant after accomplishing the work and rather it was gutted in the fire, while in the custody of OP nos.1 and 2, as bailee. The onus is on bailee to prove that they took care of the car like a man of ordinary prudence would, under similar circumstances taken of his own goods of the same bulk, quantity and value, as the goods Consumer Complaint No.389 of 2016 17 bailed. The onus is on OP nos.1 and 2, as bailee, to prove this point to the satisfaction of the Court. Section 154 of Contract Act further enjoins the bailee not to use the goods beyond the conditions of bailment, otherwise bailee is liable to make the compensation to bailer for any damage arising to goods or during such use of them. Section 161 of Contract Act further mandates the bailee to return the goods after expiry of the bailed time or the accomplishment of the purpose for which they were bailed. Section 161 of Contract Act enjoins upon bailee that if the goods are not returned by it at proper time, bailee is liable to bailer for any loss, destruction or deterioration of goods from that time.
9. Admittedly, the car was in the possession of OP nos.1 and 2, which was use of bailment. OP nos.1 and 2 misused the car beyond the terms of bailment and took it to their own house by using it in that fashion. Car was destroyed in fire, while in possession of OP nos.1 and 2 and the bailment still subsisted. It is for OP nos.1 and 2 to prove that they took care like an ordinary man would have taken of his own goods as in such similar circumstances. There is no cogent evidence on the record by OP nos.1 and 2 to prove this fact. The Apex Court has examined this point in "Union of India Vs. Hafiz Bashir Ahmed" 1986(12)CPSC-528 and held that Railway administration was responsible for the loss of goods booked from Bhadohi station by respondent no.1 for delivery of goods to consignor's agent. Delivery not given to agent. Goods kept at Jetty at the part instead of godown of Railway. Goods destroyed by fire. The Consumer Complaint No.389 of 2016 18 Apex Court held that the goods were expected to be delivered to the agent of consignor to whom the receipt was endorsed and hence it dismissed the appeal of the Union of India representing Railway administration affirming its liability. The Apex Court has also held in case titled as "Dhian Singh Sobha Singh Vs. Union of India"
1957(10)CPSC-109 that there was wrongful detention of the plaintiff's chattel. The plaintiff entitled to choose his remedy and is entitled to sue for wrongful conversion or detention. Measure of damages for wrongful detention can be the value of goods as at the date of the verdict or judgment. The appeal of the aggrieved party against Union of India was allowed by the Apex Court with the above ratio of law. The Apex Court has also held in "N.R. Srinivasa Iyer Vs. New India Assurance Company Limited" 1983(7)CPSC- 186 that N.R. Srinivasa Iyer appellant insured his car with respondent in respect of accident loss or damage. According to terms of contract, insurer obliged to remove car from scene of accident to the nearest repairer, but in this case this duty performed by insured. Insurer ready to repair the car and charges for repair to be negotiated and settle between insurer and repairer. While the car was in the custody of repairer, a fire destroyed the car. Again the Apex Court has held in this authority that insurer is liable as bailee and repairer as sub bailee, when custody of car was of bailee or sub- bailee, the burden was on them to take proper care of the car. No evidence has been led by respondent that what amount of care being bailee or sub bailee took in respect of car. In this view of law Consumer Complaint No.389 of 2016 19 laid down by the Apex Court in the above referred authority, the bailee is bound to reimburse the loss to the bailer at the time of verdict, where the bailee has failed to prove as to what amount of care he has taken of the goods bailed to him.
10. On the basis of law laid down by the Top Court in the above referred authorities, we find that the evidence of OPs consisted of Affidavit of Zorawar Singh Ex.OP-A, affidavit of Gurfateh Singh Ex.OP-B and affidavit of Karandeep Singh Suri Ex.OP-C. None of these affidavits have brought any evidence on the record to prove this fact that OP nos.1 and 2 took care like an ordinary man would have taken of his own goods, as enjoined by law. It is evident from perusal of report of Central Forensic Science Laboratory Ex.R-2 that the car was put on fire by some miscreants and it was not an accidental one. The evidence of the complainant on the record has proved that car was in the possession of OPs during subsistence of bailment and they used it for their personal use unauthorizedly by removing it away from service station and then it was destroyed by fire, while in their custody. OPs failed to discharge the onus to prove that they took care of the car like an ordinary man would have taken of his own goods, as per mandate of Section 151 of Contract Act. Section 154 of Contract Act further enjoins upon bailee not to make use of any goods in violation of the terms of the bailment, otherwise bailee would be liable to make compensation to bailer for any damage arising to goods there or during such use of them. The OPs have not returned the bailed car to complainant after doing the Consumer Complaint No.389 of 2016 20 needful and rather it was destroyed in fire while in their custody. Obviously, the OPs failed to prove that they took proper care like an ordinary man would have taken of their own goods and OP nos.1 and 2 are found to be negligent in the loss of the car.
11. So far as OP no.3 is concerned, there is no privity of contract of complainant with OP no.3 nor OP no.3 has any control over OP nos.1 and 2 and the contract of complainant through husband was with OP nos.1 and 2 only. Consequently, OP no.3 is not liable to make any payment of any compensation to complainant, being unconcerned with this incident and hence he is discharged from any liability in this case.
12. As a result of our above discussion, we hold OP nos.1 and 2 to be liable to pay compensation to the complainant which shall be the value of the car minus depreciation charges therein, as admissible under rules on the date of its loss in the fire. Consequently, we accept the complaint of complainant against OP nos.1 and 2 only and direct them to pay the amount of Rs.35,00,000/-, as price of the car, after making due deductions of depreciation charges therein, as admissible under rules on the date of its loss alongwith interest @8% per annum thereon from the date of loss till actual payment to complainant. OP nos.1 and 2 shall make payment of Rs.1,00,000/- to complainant as compensation for mental harassment and Rs.30,000/- as cost of litigation. Consumer Complaint No.389 of 2016 21
13. Arguments in this complaint were heard on 02.01.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
14. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER January 04, 2018.
(MM)