Karnataka High Court
Smt Chandrika vs Tvs Motor Company Ltd on 31 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:30212
RFA No.587 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL NO.587 OF 2015 (MON)
BETWEEN:
SMT. CHANDRIKA
D/O N. NARASIMHAMURTHY
AGED ABOUT 45 YEARS
R/AT NO.13, TEACHERS COLONY
J.S.S. HIGH SCHOOL, KONANAKUNTE
BANGALORE-560 062.
...APPELLANT
(BY SRI. NAIK N.R. ADV.,)
Digitally
signed by AND:
MALATESH
KC 1. TVS MOTOR COMPANY LTD
Location: P.B.NO.4, HANTA
HIGH
COURT OF HOSUR-635 109
KARNATAKA TAMILNADU
(REP. BY ITS GENERAL MANAGER (LEGAL)
SRI. R. MURALI.
2. PRANEETH VARMA ASR.
AREA SERVICE INCHARGE
TVS MOTOR COMPANY
NO.383, 2ND FLOOR
16TH MAIN, 3RD BLOCK
KORAMANGALA
BANGALORE-560 034.
3. THE MANAGER
BHARATH AUTOMOBILE AGENCY
AUTHORISED MAIN DEALER
TVS MOTOR COMPANY LTD
JAYANAGAR, BANGALORE-560 025.
4. NATIONAL INSURANCE COMPANY LTD.
BY ITS MANAGER
-2-
NC: 2024:KHC:30212
RFA No.587 of 2015
3RD FLOOR, UNITY BUILDING ANNEX
72, MISSION ROAD
BANGALORE-560 027.
...RESPONDENTS
(BY SMT. SANJANA RAO, ADV., FOR
SRI. ARUN KUMAR, ADV., FOR R1 & R2
SRI. G.K. SHIVA PRAKASH, ADV., FOR R3
SRI. K. SRIDHARA, ADV., FOR R4)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.12.2014 PASSED IN
O.S NO.645/2012 ON THE FILE OF THE XIX ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-18),
DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.N.R.Naik, learned counsel for the appellant, Smt.Sanjana Rao, learned counsel for respondent Nos.1 and 2, Sri.G.K.Shiva Prakash for respondent No.3 and Sri.K.Sridhara, learned counsel for respondent No.4.
2. The present appeal is filed challenging the judgment and decree passed in O.S.No.645/2012 on the file of XIX Additional City Civil & Sessions Judge, Bengaluru (CCH-18) dated 12.12.2014, whereby the suit of the plaintiff seeking recovery of money on account of damage to the vehicle -3- NC: 2024:KHC:30212 RFA No.587 of 2015 attributed to the defendant Nos.1 to 3 as the vehicle in question was not properly repaired by defendant Nos.1 to 3. The suit on contest came to be dismissed.
3. Brief facts of the case which are utmost necessary for disposal of the appeal are as under:
3.1 Plaintiff claims that she is the owner of TVS Scooty, two wheeler bearing Registration No. KA-05-HE-8975, which was purchased by her on 10.03.2008. Defendant No.1 is manufacturer of the said vehicle, defendant No.2 is authorized area service in charge of the said vehicle, defendant No.3 is the dealer of vehicles manufactured by the first defendant and defendant No.4 is the Insurance Company of the vehicle in question.
3.2 After the purchase of the vehicle, plaintiff got service of the vehicle regularly from defendant No.2 after the vehicle was delivered from the defendant No.3. It is further contended by the plaintiff that on 10.05.2009 at about 07:45 p.m. on Kanakapura main road, Bengaluru, plaintiff was going on the vehicle in question following necessary traffic rules and regulations, at that juncture, there was a pillion rider by name Poorna Prajna. While plaintiff was riding her vehicle in a normal -4- NC: 2024:KHC:30212 RFA No.587 of 2015 speed, the front wheel of the vehicle got separated from the vehicle, due to which, the plaintiff and pillion rider fell down and sustained injuries. Immediately the plaintiff and pillion rider were shifted to the hospital and they took treatment and spend a sum of Rs.55,000/- as medical expenses. Plaintiff further contended that the incident has occurred on account of the defective assembly of the front wheel by defendant Nos.1 and 2.
4. It is her case that the said fact has been noticed by defendant Nos.2 and 3 and assured that they are going to replace defective parts and will provide new parts. During treatment, plaintiff lost her income to the tune of RS.30,000/-
and she is getting treated for the injuries till the date of filing the suit spending huge amount. It is also contention of the plaintiff that she suffered mental agony, loss of future income which cannot be compensated in any manner. Therefore, she has assessed nominally a sum of Rs.30,000/- as the damages for mental agony and pain and she is also entitled to sum of Rs.1,00,000/- towards the medical expenses and therefore, laid the claim in a sum of Rs.3,68,030/- with future interest at the rate of 8% p.a. -5- NC: 2024:KHC:30212 RFA No.587 of 2015
5. Upon service of the suit summons, defendant Nos.1 and 2 filed a joint written statement denying the plaint averments in toto, except admitting the fact that the vehicle in question was delivered from dealership. Insurance company of the vehicle in question field a separate written statement stating that the policy was not all comprehensive policy and it was a package policy, which did not cover the risk on account of the mechanical defect in the vehicle, whereby, insured could be compensated.
6. Based on the rival contentions of the parties, trial Court arises following issues:
"1. Whether the plaintiff proves that TVS Scooty bearing Regn.No.KA-05-HE-8975 manufactured by the defendant Nos.1 and 2 had mechanical defects as alleged?
2. Whether the plaintiff proves that the said vehicle bearing Regn.No.KA-05-HE-8975 met with an accident on 10/5/2009 at 7.45 p.m. on Kanakapura Main Road, Bangalore, only due to mechanical defects in the said vehicle and as a result, she has sustained injuries as alleged?
3. Whether the plaintiff proves that the defendants are liable to pay totally a sum of -6- NC: 2024:KHC:30212 RFA No.587 of 2015 Rs.3,05,000/- together with interest towards damages as claimed?
4. Whether the defendant Nos.1 and 2 proves that the accident occurred on 10/05/2009 was due to rash and negligent driving by the plaintiff only as alleged?
5. Whether the plaintiff proves that the defendants are jointly and severally liable to pay the suit claim?
6. Whether the plaintiff is entitled for a judgment and decree as sought for?
7. To what order to decree?
Additional Issues
1. Whether the suit is not maintainable as against the 4th defendant ?"
7. In order to prove the case of the plaintiff, plaintiff got examined herself as PW-1 and places on record as many as 39 documents which was exhibited and marked as Ex.P1 to Ex.P39 comprising of:
Ex.P.1-3 - 3 Invoices
Ex.P.4 - Insurance policy.
Ex.P.5 - Motor Vehicles Owner's Manual.
Ex.P.6 - RC book.
Ex.P.7-11 - 5 Scooter package policies.
-7-
NC: 2024:KHC:30212
RFA No.587 of 2015
Ex.P.12-19 - 8 medical bills.
Ex.P.20-25 - 6 labour service bills.
Ex.P.26,27 - 2 invoice bill.
Ex.P.28 - Another medical bill.
Ex.P.29-32 - 4 prescriptions.
Ex.P.33 - Discharge summary.
Ex.P.34 - Cost estimate receipt.
Ex.P.35 - Visiting card.
Ex.P.36 - Card issued by Modern Service
Centre.
Ex.P.37 - Acknowledgment card.
Ex.P.38 - Office copy of legal notice
dt:10.08.2010.
Ex.P.39 - Certified copy of the order passed by
Consumer Disputes Redressal Forum
in complaint No.2942/2010
8. As against the evidence placed on record on behalf of the defendant, four witnesses were examined namely R.N.Banu as DW-1, N.Mohan Murali as DW-2, Sowman Mukherjee as DW-3 and Vigneshwari as DW-4 and placed on record 13 documents which are exhibited and marked as Ex.D1 to Ex.D13 comprising of:
-8-
NC: 2024:KHC:30212 RFA No.587 of 2015 Ex.D.1 - Notice sent to defendant.
Ex.D.2 - Envelop.
Ex.D.3 - Owners manual book.
Ex.D.4-8 - Job cards.
Ex.P.9,10 - TVS Motor Company certificates
dt:27/9/2007 and 25/9/2006.
Ex.D.11 - Authorization letter.
Ex.D.12,13 - Authorization letter and its true copy.
9. Thereafter, learned Trial Judge heard the parties in detail and by judgment dated 12.12.2014 dismissed the suit of the plaintiff.
10. Being aggrieved by the same, plaintiff is before this Court on the following grounds:
The trial court come to conclusion that though the incident took place on 10.05.2010 due to defect in the vehicle and such defect has been denied by the respondents 1 to 3 as the incident took place due to negligence of the appellant herein.
The trial court gravely erred that though the witnesses are admitted about the components of the vehicle found defence but, till today they have not come forward either to replace or to handover new vehicle as the appellant is suffered grievous injuries.
The trial court gravely erred that the appellant has placed all necessary documents before the -9- NC: 2024:KHC:30212 RFA No.587 of 2015 trial court to establish her case, but still none of the documents are considered and pass the order as requested by the appellant.
The trial court gravely erred that the manufacturing defect was found in the vehicle and the defence taken by the respondents as if the vehicle was run 7017 kms., till 02.03.2010 and such defect is not found on the vehicle, whereas during the course of evidence it is not establish by the respondents and admitted the fact none of the witnesses seen the vehicle or made any inspection.
The trial court gravely erred that though the incident was took place on 10.05.2010 and warranty was expired and such defect cannot be renovated.
The trial court gravely erred that the front wheel of the gridge was broken due to the defect installed in the vehicle and the said vehicle was left for repair and none of the authorities were notified the defect found in the vehicle. And the trial court come to conclusion that the burden on the appellant is not established about the said defect.
The trial court repeatedly brought the evidence of DW1 to DW3 and discussed and emphasize about their version to prove that as if the appellant is handling the vehicle in a rough manner and due to that reason the defect is found in the vehicle.
The trial court gravely erred that when the vehicle was left with the respondents about the major defect and they have admitted about he exchange of gridge installed in the front wheel, but no such exchange was made because they want to provide estimate on the said defect,
- 10 -
NC: 2024:KHC:30212 RFA No.587 of 2015 but no correspondence has been made to the appellant.
The trial court gravely erred that the 4th respondent visited the vehicle and they have noticed about defect in the vehicle, hence they have denied to pay the compensation, because whatever the injuries sustained by the appellant is not comes within the purview of the policy which was issued in the name of appellant herein.
The trial court gravely erred that though the documents were placed before the court, but none of the documents were verified with the evidence, but still the suit came to be dismissed though the appellant is entitle for compensation.
The trial court gravely erred that the defence taken by the respondents during warranty period no such defect is found as claim made by the appellant.
The trial court gravely erred that the appellant is neither mechanic nor having knowledge about the automobiles and during the course of cross examination of DW1 to 3 admitted about the facts as the defect found in the vehicle.
The trial court gravely erred that the observation made relating to issues combinding all together and proper appreciation of evidence is not available while passing the judgment.
The trial court judgment is totally perverse in nature and whatever the judgement and authorities are placed before the trial court are not relied upon.
- 11 -
NC: 2024:KHC:30212 RFA No.587 of 2015
11. Sri.N.R.Naik, learned counsel for the appellant, reiterating the grounds in the appeal memorandum, vehemently contended that DW-1 has categorically admitted the defects found in the vehicle in question in his cross-
examination and which have been observed by the learned Trial Judge in the impugned judgment but failed to consider the same in its proper perspective and wrongly dismissed the suit of the plaintiff resulting in miscarriage of justice, and sought for allowing the appeal.
12. He further contended that after purchase of the vehicle, it is being serviced from time to time is not in dispute, and DW-1 has categorically admitted that the front wheel separating away from the fork of the vehicle cannot happen in a road traffic accident and therefore, the front wheel separating away from the fork is only due to the defect in the manufacturing of the vehicle, which resulted in the unfortunate incident where the plaintiff and the pillion rider-Poorna Prajna got injured, besides, the vehicle damages to the considerable extent. Therefore, the claim of the plaintiff ought to have been allowed by the learned Trial Judge by reiterating the suit and thus sought for allowing the appeal.
- 12 -
NC: 2024:KHC:30212 RFA No.587 of 2015
13. Per contra, the learned counsel for respondents supports the impugned judgment. Learned counsel for respondent Nos.1 and 2 in addition to supporting the judgment, contended that admittedly, the vehicle after the incident was brought to the third defendant, wherein the vehicle was inspected and it was noticed that the front wheel has been separated away from the fork of the vehicle and the damage was assessed. A provisional invoice shows what are the necessary expenditure that would be required to repair the vehicle and the plaintiff did not choose to make such payment and therefore, the vehicle was delivered in the same condition to the plaintiff. Therefore, the alleged admission on behalf of DW-1 is the post incident status of the vehicle and not the status of the vehicle before the incident which has nothing to do with the alleged incident and therefore, the alleged admission has been rightly appreciated by the learned Trial Judge in the impugned judgment and rightly dismissed the suit of the plaintiff and thus sought for dismissal of the appeal.
14. Learned counsel Sri.G.K.Shiva Prakash for respondent No.3 while supporting the impugned judgment contended that after the delivery of the vehicle, free service
- 13 -
NC: 2024:KHC:30212 RFA No.587 of 2015 has been offered by the third defendant soon after the purchase of the vehicle. The third defendant has got no nexus whatsoever of the vehicle, as the vehicle was subsequently being serviced in the service center of the second defendant and therefore sought for dismissal of the appeal.
15. Learned counsel for respondent No.4 Sri.K.Sridhara appearing for the Insurance Company contended that admittedly, the policies obtained by the plaintiff which is placed on record is the package policy which did not cover the risk alleged by the plaintiff in the plaint and therefore, dismissal of the suit is fit and proper and sought for dismissal of the appeal.
16. Having heard the parties in detail, this Court perused the material on record meticulously.
17. On such perusal of the material on record, following points would arise for consideration:
"1. Whether the plaintiff has made out a case that the vehicle at the time of purchase had inherent mechanical defect that resulting in the incident that occurred on 10.05.2010?
2. If so, whether the claim of the plaintiff was in a sum of Rs.3,05,000/- together with interest is justified?
- 14 -
NC: 2024:KHC:30212 RFA No.587 of 2015
3. Whether the impugned judgment is suffering from legal infirmity, perversity and thus, calls for interference?
4. What order?"
REG.POINT NOS.1 TO 3:
18. In the case on hand, the evidence of PW-1 and the documents placed on record clearly establish that the plaintiff has purchased TVS Scooty, two wheeler bearing No.KA-05-HE-8975 manufactured by the first defendant, sold by the third defendant-dealer in favour of the plaintiff. Vehicle was purchased on 02.03.2008. After the purchase of the vehicle, the plaintiff was satisfied with the performance of the vehicle and she has complained few defects in the running of the vehicle namely, low mileage and few minor adjustments. Periodical service was also conducted apart from the free service.
19. After the expiring of free service period, the vehicle was being serviced by the third defendant. Defendant No.3 prepared necessary job cards and serviced the vehicle time to time. The last service that has been conducted by the second defendant could be seen from the material on record is on
- 15 -
NC: 2024:KHC:30212 RFA No.587 of 2015 02.03.2010. Job cards in respect of the said service are marked at Exs.D4 to 8.
20. As could be seen from Exs.D4 to 8, it is crystal clear that the plaintiff has complained only with regard to the low mileage and there was a change of engine oil and few minor adjustments and general service has been conducted. No other defects were noticed like wobbling in the front wheel or in other aspects or any other odd sound in the front wheel by the plaintiff till such time. It is pertinent to note that, for a period of more than two years, the vehicle has been successfully ridden by the plaintiff without noticing any of the defects in the front wheel. Under such circumstances, in the general service, when there was no defect pointed out by the plaintiff, the service agents have generally inspected the vehicle in all aspects of the vehicle and found it right and it was fit enough to move on the road.
21. When the matter stood thus, on 10.05.2010 on the evening hours, on the Kanakpura Main Road, Bengaluru the plaintiff along with the pillion rider by name Poorna Prajna were moving and there was unfortunate incident, wherein, the front wheel got separated out from the fork of the vehicle and
- 16 -
NC: 2024:KHC:30212 RFA No.587 of 2015 whereby the pillion rider and the rider fell down and sustained injuries. Necessary efforts made to shift them to hospital. Thereafter, the vehicle was taken to defendant No.3's center. In defendant No.3's center, the vehicle was inspected by the service engineer and noticed that there was damages.
22. Admittedly, these damages to the vehicle was inspected by the second defendant and their service engineers, only after the unfortunate incident occurred on 10.05.2010 and these defects were not found earlier to 10.05.2010 when the last service took place as per Ex.D4 job card on 02.03.2010.
23. In other words, post-incident if some damages have occurred to the vehicle and that has been inspected, and in respect of the same, if an estimate is prepared by defendant No.3 that could not be treated as an admission by the part of the defendants that there was an inherent mechanical defect in the vehicle in question resulting in front wheel separating away from the fork of the vehicle resulting in the incident.
24. Therefore, in the absence of any other material evidence placed on record by the plaintiff either by examining any other auto mobile engineers or the instructor of motor
- 17 -
NC: 2024:KHC:30212 RFA No.587 of 2015 vehicles, the finding recorded by the Trial Judge that the plaintiff has failed to make out because of the mechanical defect, the unfortunate incident has occurred on 10.05.2010 cannot be faulted with and there is no other evidence on record to establish the fact that the vehicle had an inherent mechanical defect resulting in the incident that occurred on 10.05.2010.
25. Moreover, if the vehicle has run for a period of more than two years successfully and has being serviced form time to time and no such mechanical defect has been noticed at any given point of time, the contention of the plaintiff that because of the inherent mechanical defect the incident on 10.05.2010 has occurred cannot be countenanced in law. The point No.1 needs to be answered in the negative.
26. In view of the finding of this Court on point No.1, the question of payment of compensation would not arise as a party cannot take advantage of his own wrong.
27. The material on record has been rightly appreciated by the learned Trial Judge. Taking into consideration cumulatively the oral and documentary evidence placed on
- 18 -
NC: 2024:KHC:30212 RFA No.587 of 2015 record and by properly applying the principles of law with regard to the law of damages, therefore, this court does not find any legal infirmity or perversity in the finding recorded by the learned Trial judge while dismissing the suit of the plaintiff. Consequently, the point Nos.1 to 3 are answered as follows:
Point No.1 in the negative.
Point Nos.2 does not arise for consideration. Point No.3 in the negative.
REG.POINT NO.4:
28. In view of the finding of this Court on point Nos.1 to 3 as above, the following:
ORDER The appeal is merit less and hereby dismissed. No order as to costs.
Sd/-
(V. SRISHANANDA) JUDGE ABK List No.: 1 Sl No.: 7