State Consumer Disputes Redressal Commission
The Manager, My Tvs 24 X 7 Emergency ... vs Mr.R. Vijayakumar, S/O. Ramalingam ... on 23 August, 2013
IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.A.K.. ANNAMALAI, M.A. M.L., M.Phil., Presiding Judicial Member
Thiru.S. SAMBANDAM, B.Sc., Member
F.A.No.426/2012
(F.A.No.192/2012 on the file of State Consumer Disputes Redressal
Commission, Chennai.)
(Against the order in C.C.No.68/2007, dated 29.12.2010 on the file of DCDRF,
Dindigul)
FRIDAY, THE 23rd DAY OF AUGUST 2013.
1. The Manager,
My TVS 24 x 7
Emergency Service,
TVS Workshop,
211, South Veli Street,
Madurai.
2. TV Sundaram Iyengar (P) Ltd.,
(Emergency Service),
Rep.by its Chairman,
211, South Veli Street,
Madurai Appellants/Opposite Parties 2 & 4
Vs
1. Mr.R. Vijayakumar,
S/o. Ramalingam Pillai,
LIC Colony Extension,
Dindigul. 1st Respondent/Complainant
2. Sasi,
S.K. Motors,
4/294, Indira Nagar Opposite Stadium,
Thadicombu Road,
Chettinaickenpatti Post,
Dindigul. 2nd Respondent/1st opposite Party
2
3. Sundar,
Indian Auto Service,
Madura Coats Colony,
Opposite West Police Station,
Virudhunagar. 3rd Respondent/3rd opposite party
For Appellants/Opposite Parties: M/s. Satish Parasaran, Advocates.
For Respondent-1/Complainant : Paper publication effected and called absent.
For Respondent 2/opposite party-1: Paper publication effected & called absent.
For Respondent 3/opposite party-3: Served called absent
This appeal coming before us for final hearing on 13.08.2013 and on
hearing the arguments of the appellants' side and upon perusing the material
records this Commission made the following:
ORDER
Thiru. A.K. ANNAMALAI, PRESIDING JUDICIAL MEMBER.
1. The opposite parties 2 and 4 are the appellants.
2. The complainant on 23.11.2007, traveled with his family in his Tata Sierra Car from Dindigul to Tirunelveli towards Virudhunagar, 10 Kilometers ahead of Virudhunagar at 9.00 a.m. due to some trouble in the vehicle the radiator became boiled when contacted the 1st opposite party through mobile phone he directed to contact 2nd opposite party who are attending online emergency repairs and when contacted the 2nd opposite party, in turn he directed to contact the 3rd opposite party having the jurisdiction of the place and the 3rd opposite party being an employee of the 2nd opposite party attended the 3 repairs on collection of Rs.500/- to be adjusted with repair cost and thereafter the vehicle was taken to workshop by towing and where the engine of the vehicle was opened by replacing spare Head Gasket and hose all purchased by the complainant and in spite of replacement as the engine was not worked which was wrongly repaired without taking care of the timing system fixation and thereby the complainant was compelled to travel by engaging taxi by spending Rs.5000/- and another Rs.1500/- towards spare parts of the vehicle since the vehicle was left with the 3rd opposite party to be repaired and handed over through the 1st opposite party and thereby the complainant filed the complaint claiming for Rs.4,06,500/- towards harassment, mental agony, loss of things etc.,.
3. Before the District Forum, the 3rd opposite party remained absent and was set exparte. The 1st opposite party remained absent after filing vakalath and set exparte even though filed written version by the 1st opposite party, in which contending that the 1st opposite party is not liable to pay any compensation in any way since the complainant's vehicle was not repaired by him and he was not a member of the My TVS Service Card for availing emergency service from the 1st opposite party and the repair was wrongly done by the 3rd opposite party for which the 1st opposite party is not liable. The 2nd and 4th opposite parties, denying the allegations, pointed out that the complainant not being a member of the My TVS Service Card for emergency service and there was no contract between them and only on the humanitarian 4 ground, he was helped free of costs and thereby there was no deficiency of service on their part.
4. The District Forum after an enquiry and on the basis of both sides materials, allowed the complaint against the opposite parties 2 to 4 and directed to pay a sum of Rs.25,000/- as compensation and Rs.2000/- as costs, Rs.9,940/- expenses met by the complainant totaling Rs.34,940/- with 10% interest from 23.11.2007.
5. Aggrieved by the impugned order, the opposite parties 2 and 4/ appellants have come forward with this appeal by contending that the opposite parties 2 and 3 wrongly entertained the complainant's vehicle for service and only the members holding under the My TVS Service Card alone are entitled for emergency online service on the road and in this case the complainant has not become a member and even though the alleged payment of Rs.500/- towards membership paid to the 2nd opposite party who is not authorized to receive the same without prescribed manner and the 3rd opposite party wrongly repaired the vehicle for which the 1st opposite party or the 4th opposite party are not liable and the District Forum erroneously allowed the complaint which is to be dismissed.
6. In this appeal, the 1st respondent/complainant and other respondents 2 & 3 have remained absent before this Commission in spite of notices served against the Respondent-3 and paper publication effected against the 5 Respondents 1 and 2 and after hearing the appellants side arguments and perused the materials placed before us, order being passed on merits.
7. We have heard the arguments of the appellants and perused the entire materials placed before this Commission. The appellants have filed the rules and regulations relating to the emergency service procedures to be availed from the opposite parties 2 and 4 through the authorized service persons and agreeing all the conditions of the appellants, the emergency road service are made available only to the members of the My TVS Service Card holder and the membership application by paying membership cost of Rs.500/-. But in this case it is said to have been paid by the complainant through the 3rd opposite party under Ex A1 in which it is recorded as he had collected Rs.500/- as Non-Member Charge as per instructions of the emergency service persons and thereby contended the repairs of the complainant's car which entered into erroneous mode of engine repair without locking timer system which caused the damage to the vehicle and thereby the complainant was compelled to spend further charges towards repairs. Regarding the liabilities of the opposite parties 2 and 4 are concerned it is contended that they are not liable for the non members repairs done by the authorized persons and as per the rules and regulations of the members concerned which is produced with the type set in the appeal relating to the service rendered by the authorized service persons and other repairing persons the charges are directly payable to the authorized persons and in no way they are not liable for any payments to the parties and in the Rules and Regulations 6 of membership, it is stated as follows: " Exclusion of Liabilities of TVS - (1) The Member accepts and acknowledges that TVS does not render any service under the Scheme and the role of responsibility of TVS is limited to facilitate the Member to avail at the place of break down or accident (a) break down and repair service from the ASP (b) Taxi services from taxi operators and (c) ambulance and medical services from the doctors and hospitals. The Member accepts and acknowledges that the above services availed by the Member are rendered only by respective ASP. TVS shall be under no liability whatsoever to the Member in respect of any loss or damage arising directly or indirectly out of any delay in or non delivery of, defect/deficiency in the services/parts provided by the respective service providers, (2) The ASPs are not agents of TVS and the Member shall deal with the ASPs directly, at his own risk and costs. All payments due to the ASP as a result of the Member having availed the ASPs services shall be made directly to such ASP. (3) Members are advised to take an acknowledgement from the ASP for the list f Accessories/extra fittings and other belongings in the Vehicle at the time of ASP taking possession of the vehicle and to verify these items when delivery is taken back by them. Claim for loss of /damage to items, if any, should be taken up with the ASP directly. TVS shall not be responsible for any such claims, damages/loss or any deficiency of service of the ASP. "
8. In this case, as per the above, Exclusion clause even though the 3rd opposite party who remained absent before the District Forum and was set 7 exparte has no authority to receive membership charges from the complainant that too without having any prescribed form and Ex A1 did not disclose who authorized to receive the said membership fees and proceeded with the repairs and thereby we are of the view the opposite parties 1, 2 and 4 cannot be held liable and since it is admitted that the complainant is not a member in My TVS Service Card Holder the complainant cannot be considered as a member under opposite parties 2 and 4 to avail emergency services and even though the opposite parties 1 and 3 are alleged to be authorized service persons and as per the rules and regulations for the membership under Exclusion clause only the authorized services persons were directly liable on receiving the payments for services rendered. We are of the view that the District Forum erroneously allowed the complaint since the opposite parties/appellants failed to bring to the notice of the District Forum regarding the relevant membership details and exclusion clause which is brought to the notice before this Commission now only and thereby the appeal filed by the opposite parties 2 and 4 alone to be allowed and the order against the 3rd opposite party has to be confirmed.
8. In the result, the appeal is allowed by setting aside the order of the District Forum in C.C.No.68/2007 dated 29.12.2010 against the appellants/ opposite parties 2 and 4 alone and in other respects the order of the District Forum is confirmed. No order as to costs in this appeal.
Sd/-S. SAMBANDAM, Sd/-A.K. ANNAMALAI,
MEMBER PRESIDING JUDICAIL MEMBER
INDEX: YES / NO
TCM/Mdu Bench/Orders- 2013/August