State Consumer Disputes Redressal Commission
Nanavati Motors Pvt Ltd. vs Kallu Buddhilal Shahu on 30 November, 2022
Details DD MM YY
Date of Judgment 30 11 2022
Date of filing 16 02 2015
Duration 14 09 07
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Appeal No. 2015/536
Court No. 1
1. Nanavati Motors Pvt. Ltd.
Nanavato Toyota,
Opp: Iscon Mall,
Piplod, Surat.
2. Nanavati Motors Pvt. Ltd.
Owner: Shri Hitendra Jariwala,
Adult, Occupation : Business,
Opp: Iscon Mall
Piplod, Surat.
3. Nanavati Motors Pvt. Ltd.
General Manager (Customer Service),
P.K.Kaushal,
Adult, Occupation: Service,
Opp: Iscon Mall
Piplod, Surat. ...Appellants
Vs
1. Shri Kallu Buddhilal Shahu,
Age: 45 Years, Occupation: Business,
Residing At: G-51, Silver Point,
Bhatar Road, Surat. ...Respondent
Coram : Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms.A.C.Raval, Member
APPERANCE : Mr.D.V.Acharya, advocate for the appellant Mr.Dr.N.N.Jadav, advocate for the respondent Order by Hon'ble Ms. A.C.Raval, Member
1. The appellant has filed this appeal under section 15 of the consumer protection Act 1986, being aggrieved by and dissatisfied with the order dated 31.12.2014 passed by the Learned District Commission Surat (Additional) in consumer complaint No.990/2009.
2. Heard learned Advocate Mr. D.V.Acharya for the appellant and learned Advocate Mr. Dr.N.N.Jadav for the respondent.
D.I.DABHI A-2015-536 Page 1 of 82.1. The appellants is the original complainant, and respondent is Original opponent before the District Commission. Hereinafter the parties will be referred as per their original status.
3. Order under challenge:.
ૂ ક૨ળામાં અળે છે .
"૧) પરીયાદીની પરીયાદ અથી અંતઃ મંજર
૨) સામાળાલાઓએ પરીયાદીને કુ રા.૧૧,૦૬,૫૨૦/-(અંકે રપયા ગગયાર ાખ છ હજાર ાંચસો ળીસ)પરીયાદ કયાા ની તારીખથી ૯% ચઢતા વ્યાજ સાથે ચુકળણું થાય તયાં સુધી ચુકળળા.
૩) સામાળાલાઓએ પરીયાદીઓને ારીરરક - માનપસક ત્રાસ ેટે રા.૨૦૦૦/- (અંકે રપયા ફે હજાર પ ૂરા) ને પરીયાદ ખચા ના રા. ૧૦૦૦/-(અંકે રપયા એક હજાર પ ૂરા) ચુકળળા.
૪) સદ૨ હુકમનો મ ૩૦ રદળસમાં ક૨ળો.
૫) સદ૨ હુકમ ની જાણ ક્ષકારો ને પળના મ ૂલ્યે ક૨ળી."
4. Facts of the case: The complainant had produced one Innova-V Car on 11.04.2007, having Registration No. GJ-5-CJ-2222. The car mat we can accident on 20.04.2009 near village Byavra at Madhya Pradesh. The complainant brought this car to transport in put this same road repairing at the opponent's garage. The estimation for repair was given for Rs.3,00,000/- and agreed to the delivery of the car on 30.05.2009. The delivery of the car was given by the opponent on 29.06.2009 that is laid by one month and on given bill of Rs.4,28,340/-. The complainant paid Rs.4,00,000/- by cheque and Rs.28,340/- in cash the receipts were given to the complainant. The complainant demanded all spare parts but the opponent did not return the same. After repairing the knows was coming from the steering of the car. Therefore, again the car was sent to the garage on 06.07.2009. The car was not working in a gives condition therefore again in repairing for 11.12.2009. The delivery was giving on 22.12.2009 again it was sent for repairing on 28.07.2009 in sought the car was not properly repairing after paying the huge amount of more than Rs.4,00,000/-. The complainant requested to give his car back on telephone the complainant was asked to check delivery on 07.08.2009. The complainant received a phone on 07.08.2009 to the effect that his car had been stolen and to come immediately at the Garage. When the D.I.DABHI A-2015-536 Page 2 of 8 complainant is demanded his car back on 08.08.2009 to opponent short for time at 20 days therefore, the complainant dated 20 days Thenafter filed out police complain on 17.01.2009. The complainant requested the opponent to give his car back who did not received the favorable report so the complainant preferred Consumer Case No.990/2009 before the learned District Commission Surat. The Judgment was rendered by the District Commission on 31.12.2014 therefore some topographical error so it was modified on 01.01.2015 by the Learned District Commission.
Being aggrieved and dissatisfied with the order passed by the Learned District Commission the original opponent preferred the present appeal.
5. Argument of the appellant: The Learned Advocate appearing for the appellant argued that learned forum has no power to modified/changed the judgment and order already pronounced in passed in 31.12.2014 nearly the error appeared on the of the order can be modified here the entire amount is modified by the Learned District Commission. The Learned District Commission has erred in considering the amount of repairing as well as the amount of vehicle after depreciation. Either the depreciated value of the vehicle can be avoided or the repairing charges may be awarded. The appellant had properly done the repairing but the complainant was not satisfied if perusing the documents at page no.50 he shows that when the car was sent for repairing on 29/06/2009 the meter shows 45,250 Km and the documents at page no.52 shows that when the car was sent for repairing on 30/07/2009 it had run for 47,046 Km therefore, it transfers from the record that the car was used for commercial purpose. There were terms and condition by the opponent produced at page no.73 merit is mention that the appellant had to take reasonable pay of the vehicle while the same lying for service at its place but in the case of theft, accident or any other causes beyond the reasonable control of the dealer, the dealer is not liable for the said Act. Therefore the appellant cannot be made liable for any payment. The IDB is mentioned in the Insurance Policy of the vehicle was 9,10,000/- for the year 10/04/2009 to 09/04/2010 therefore the amount calculate by the Learned District Commission was at much higher side. Hence, the order passed by the Learned District Commission is legal perverse and against D.I.DABHI A-2015-536 Page 3 of 8 the principle of natural justice is require to be quashed and set aside this appeal is allowed.
6. Argument of the respondent: Learned advocate for the respondent has argued that the order passed by the Learned District Commission has just, proper and relying and it is not required any modification the opponent/appellant had not given proper services to the complainant and the complainant does not believed that his car was stolen from the place of the opponent but it was misappropriated by the opponent. Opponent had given the estimation for repairing first time for Rs.3,00,000/- and the complainant had to pay Rs.4,28,340/-. The correction in the order by the Learned District Commission is within the powers of review the order. The order is corrected on from next day and the objections of the opponent were considered by the while passing the order hence there was no error in the order under challenged. This appeal would be rejected and the order passed by the Learned District Commission may be confirmed.
Merit of the case:
7. Certain facts are undisputed in the present appeal that the complainant had purchased Innova-V car on 11/04/2007 registered at registration no.GJ-05-CJ-2222. The car mat with an accident on 20/04/2009 at Byavra at Madhya Pradesh. The car was given for the repairing at opponents' garage on 22/12/2009. The complainant was not satisfied with the service and had to put the car for repair time and again. At last the complainant had sent the car for repairing on 28/07/2009 and the complainant received phone call on 07/08/2009 that his car was stolen from the opponent's garage. The complainant waited for 20 days for delivery of his car after theft but the opponent did not reply properly. Therefore the complainant had to lodge police complainant against the opponent. It is the duty of the opponent to take proper care of the car when it was in the garage of opponent for repairing world by showing the one sided condition cited at page no.43, it was argued that the dealer would not be liable in case of theft. The opponent failed to show that what steps they have taken to procure the stolen car or why the opponent had not filed the police complaint of theft against the unknown person. It was the duty of the opponent to file the police D.I.DABHI A-2015-536 Page 4 of 8 complaint immediately after the theft of the car from his garage. This shows the deficiency in service and unfair trade practice on the apart of the opponent and he is liable to pay the reasonable amount towards the loss of car.
8. The appellant has taken the stand that the car was playing for commercial purpose therefore the complainant is not entitled to any relief under the Consumer Protection Act. The opponent has failed to prove by producing documentary evidence to the effect that the car was used for commercial purpose.
9. To calculate the loss to the complainant, the complainant is entitled to have the prevailing value of the car at the time of theft. The car was purchased on 11/04/2007 and was stolen on 07/08/2009. The car was stolen just after about 4 months of completion of 2 year from the purchased date, the rate of depreciation calculated for different purpose in India under the Indian motor tariff, "GR.8. Insured's Declared Value (IDV) The Insured's Declared Value (IDV) of the vehicle will be deemed to be the 'SUM INSURED' for the purpose of this tariff and it will be fixed at the commencement of each policy period for each insured vehicle.
The IDV of the vehicle is to be fixed on the basis of manufacturer's listed selling price of the brand and model as the vehicle proposed for insurance at the commencement of insurance /renewal and adjusted for depreciation (as per schedule specified below). The IDV of the side car(s) and/or accessories, if any, fitted to the vehicle but not included in the manufacturer's listed selling price of the vehicle is also likewise to be fixed.
The schedule of age-wise depreciation as shown below is applicable for the purpose of Total Loss/ Constructive Total Loss (TL/ CTL) claims only. A vehicle will be considered to be a CTL, where the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV.
The depreciation for replacement of parts in partial loss claims will be as per a separate schedule specified under GR.9.
Age of the Vehicle % of Depreciation for
Fixing IDV
Not exceeding 6 months 5%
Exceeding 6 months but not exceeding 1 year 15 %
Exceeding 1 year but not exceeding 2 years 20 %
Exceeding 2 years but not exceeding 3 years 30 %
Exceeding 3 years but not exceeding 4 years 40%
D.I.DABHI A-2015-536 Page 5 of 8
Exceeding 4 years but not exceeding 5 years 50%
The application for review of final order is produced at page no.38. It is mentioned in application that the value of the car on the date of purchased i.e. 11/07/2007 was Rs.10,43,870/-. The appellant has produced insurance policy of the vehicle at page no. 43. The period for insurance shown is 10/04/2009 to 09/04/2010 and I.D.V shown is of Rs.9,10,000/-. The theft took place on 07/08/2009 hence the theft is within the prescribed period of policy. Hence the I.D.V mentioned in the policy should be considered as a value of the vehicle as on the date of theft.
10. We have referred the judgment reported in AIR 1983 Supreme Court 899 Para:21 & 22 of the judgment are relevant and are read as under:
"21. The second point which this Court directed the High Court to decide was whether the respondent company failed to take as much care of the Motor Car as a person of ordinary prudence would in similar circumstances take of his own Motor Car of the same quality and value? When the car was in the custody of the sub-bailee, it was destroyed by fire that occurred in the repairer's workshop. The sub-bailee was bound to take the same care as a man of ordinary prudence would take in regard to his own goods of the same quality and value as was expected of the bailee. Now no evidence has been led by the defendants to explain what amount of care the bailee or the sub-bailee took in respect of the car. When the custody is of the bailee or the sub-bailee, the burden is on them to show how they handled the car. This is well established and need no authority. In Morris's case (1965-2 All ER 725) the question of burden of proof was examined by the Court of Appeal and the law was stated as under:
"Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care; to keep them safe; and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show - and the burden is on him to show - that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty."
22. In the present case, the trial Court held that the repairer the sub-bailee failed to take that much care as a prudent man would take of his own thing in respect of the car. The High Court has not touched this aspect while reversing the decision of the trial Court. There is no evidence on behalf of the Insurer on the question as to what amount of care has been taken by the repairer the sub-bailee. One R. Rajaram D.W. 1 was examined on behalf of the Insurer, and there is not one word in his examination-in-chief as to what degree of care was taken to keep the car in safe custody by the sub-bailee. No one was examined on behalf of the sub-bailee. The burden was on them to establish to the satisfaction of the D.I.DABHI A-2015-536 Page 6 of 8 Court as to what degree of care was taken in respect of the damaged car. Plaintiff has led some evidence in this behalf as to the careless manner in which the car was kept in the workship where inflammable material was kept. Without doubt the burden being on the bailee and the sub-bailee and the same having not been perfectly justified in accepting the evidence of the plaintiff and in recording the finding that bailee and the sub-bailee had not taken such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value. Therefore, the bailee is liable for the loss suffered by the plaintiff the bailor."
11. The opponent is liable for every loss related to car. There is a Deficiency in Services and unfair trade practice committed by the opponent/appellant. Therefore the complainant is entitled to resolve his grievance under the Consumer Protection Act. We are of the opinion that the appeal should be partly allowed and the order passed by the Learned District Commission Surat in CC. no.990 of 2009 should be modified and the complainant should be paid Rs.9,10,000/- for the loss accured to him.
12. We have considered the grounds stated in memo of appeal, reasons stated in impugned Judgment and order, documentary evidence produced on record, argument advanced by the learned advocate by the parties, ratio laid down in the above referred citation and fact and circumstances of the case. We have satisfied that the order passed by the Learned District Commission is legal, proper and correct in Eye of law. Therefore it does not required interference as a result the appeal is required to be dismissed. Hence in the interest of justice following order is passed.
ORDER A. The Appeal No.2015/536 is hereby Partly allowed.
B. The order dated 31.12.2014 passed by the Consumer Disputed Redressal Forum; Surat (Additional) in Consumer Complaint No. 990/2009 is hereby modify to the following extent, opponent /appellant is directed to pay Rs.9,10,000/- to the complainant along with the 9% interest from the date of the filling of the compliant till the realization of the amount.
C. Rest of the order is confirmed.
D.I.DABHI A-2015-536 Page 7 of 8D. Office is directed to verify the amount deposited by the appellant in appeal No. 2015/536 and if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant by RTGS after following due procedure and verification. For this purpose the appellant has to file an application with details to the account branch of this commission.
E. Registry is directed to send certified copy of this judgment to the parties free of cost. Registry is further directed to send copy of this judgment to the District Commission Surat (Additional) through E- mail in PDF format for taking necessary action.
Pronounce in open court today on 30.11.2022.
[Ms. A. C. Raval] [Hon'ble Justice V.P. Patel]
Member President
D.I.DABHI A-2015-536 Page 8 of 8