M/S. New Bharat Tyres India (P) Ltd. Vs. Kurian Abraham and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1108873
CourtKerala State Consumer Disputes Redressal Commission SCDRC Thiruvananthapuram
Decided OnOct-25-2011
Case NumberFirst Appeal No. A/11/282 (Arisen out of Order Dated 30/10/2010 in Case No. CC/09/318 of District Ernakulam)
JudgeTHE HONOURABLE MR. S. CHANDRAMOHAN NAIR MEMBER
AppellantM/S. New Bharat Tyres India (P) Ltd.
RespondentKurian Abraham and Another
Excerpt:
shri. s. chandra mohan nair : member the 2nd opposite party in cc no. 318/2009 before the cdrf, ernakulam, is the appellant herein who is aggrieved by the directions of the forum below to pay to the complainant a sum of rs. 79,985/- within 1 month from the date of receipt of the order failing with the said opposite party is liable to pay interest also at the rate of 9% per annum from the date of default till payment. 2.   the case of the complainant before the forum was that he had purchased a honda city car bearing registration no. kl-7bk 336 from sri. tushar bhatia, mumbai and that the vehicle was having valid policy issued by the 1st opposite party for the period from 27.3.08 to 26.3.09 and that on 7.2.09 he had taken the vehicle to the 2nd opposite party for wheel alignment and up gradation of tyres. it is the further case of the complainant that the vehicle driven by one mr. ajesh, who is the employee of the 2nd opposite party met with an accident and for the repairs, the complainant had to spend nearly rs.1,29,000/-. alleging deficiency in service on the part of the 1st opposite party in repudiating the claim and non payment of the amount by the 2nd opposite party in the alternative, the complaint was filed praying for directions either to the 1st opposite party or to the 2nd opposite party to pay the amount spent for repairs. 3.   the 1st opposite party in the version contended that there was no contract between the complainant and the 1st opposite party. there was no policy issued in favour of the complainant or that the complainant had not changed the policy in his name after the purchase. the 2nd opposite party contended that the complaint was bad for non impleadment of necessary party and that the vehicle was moved by mr. ajesh, the sales man at the request of the complainant and hence the 2nd opposite party was not liable for any payment to the complainant. the 2nd opposite party has also denied the case of the complainant that the vehicle was brought for any wheel alignment or for any other works. 4.   the evidence consisted of the oral testimony of the complainant as pw1 and exts. a1 to a4 were marked on his side. the witness of the 2nd opposite party was examined as dw1 and exts. b1 and b2 were marked.it is based on the evidence that the impugned order was passed by the forum below. 5.   the learned counsel for the appellant/ 2nd opposite party submitted before us that it was wrong on the part of the forum below to direct the 2nd opposite party to pay the amount to the complainant since it was the complainant himself who had requested the sales man, mr. ajesh, to move the vehicle from the place where it was parked. it was also argued by him that the vehicle was not brought to the workshop of the 2nd opposite party for any wheel alignment or for any other works. it is his further case that since there is no evidence to prove the entrustment of the vehicle to the 2nd opposite party and since there is no consideration paid by the complaint to the 2nd opposite party, the complainant could not be said to be a consumer of the 2nd opposite party and hence the forums order fastening liability on the 2nd opposite party is perse unsustainable and hence liable to be dismissed. 6.   on the other hand, the learned counsel for the 1st respondent/complainant opposed the contentions of the learned counsel for the appellant. it is argued by him that the complainant had brought the vehicle to the 2nd opposite party for wheel alignment and that before the wheel alignment was carried out, the vehicle was driven by the employee of the 2nd opposite party and hence the 2nd opposite party is liable for the loss sustained by the complainant. it is also argued by him that the complainant can be termed as a consumer since after the wheel alignment the complainant had to pay the charges for it and one can be termed as a consumer if there is a promise for payment of consideration. in the instant case also the vehicle was brought to the 2nd opposite party with the promise for payment of consideration after wheel alignment and that it was for the said purpose that the employee of the 2nd opposite party took the vehicle to the garage of the 2nd opposite party whereby the accident and damage to the vehicle had occurred. hence it is his very case that the forums finding that the 2nd opposite party is vicariously liable for the acts of his employee which resulted is loss to the complainant is only to be upheld. he has also prayed for the dismissal of the appeal with compensatory costs. 7.   on hearing the respective counsels and also on perusing the records we find that it is the admitted case of both the parties that the vehicle was driven by the employee of the 2nd opposite party, mr. ajesh on 17.2.09. the forum below has found that the 1st opposite party was in no way liable for any payment since there was no insurance policy in the name of the complainant issued by the 1st opposite party. all the same the forum below has found that the vehicle was driven by the sales man mr. ajesh and that the surveyor had assessed an amount of rs.79,985/- for the repairs of the vehicle. it is to be found that in the version of the 2nd opposite party it is admitted that the vehicle was driven by mr. ajesh, a sales man of the 2nd opposite party during his recess time. but they would argue that it was done at the request of the complainant. however, we find that the incident had occurred in the premises of the 2nd opposite party and that the employee of the 2nd opposite party was the reason for the said incident. in given set of facts, the case of the complainant seems to be more probable. for no reason he would not have brought the vehicle to the 2nd opposite party. it is also seen that the employee of the vehicle had taken the vehicle to their garage and may be accidental that the incident had happened. we are of the view that the forum below has rightly appreciated the evidence on record and has passed the order fastening liability on the 2nd opposite party. we find no reasons to interfere with the said findings and conclusions. in the result, the appeal is dismissed. the order dated: 30.10.2010 in cc no. 318/2009 of the cdrf, ernakulam is confirmed. in the nature and circumstances of the present appeal, the parties are directed to suffer their respective cost. the office is directed to return the lcr along with a copy of this order to the forum below urgently.
Judgment:

SHRI. S. CHANDRA MOHAN NAIR : MEMBER

The 2nd opposite party in CC No. 318/2009 before the CDRF, Ernakulam, is the appellant herein who is aggrieved by the directions of the Forum below to pay to the complainant a sum of Rs. 79,985/- within 1 month from the date of receipt of the order failing with the said opposite party is liable to pay interest also at the rate of 9% per annum from the date of default till payment.

2.   The case of the complainant before the Forum was that he had purchased a Honda City Car bearing Registration No. KL-7BK 336 from Sri. Tushar Bhatia, Mumbai and that the vehicle was having valid policy issued by the 1st opposite party for the period from 27.3.08 to 26.3.09 and that on 7.2.09 he had taken the vehicle to the 2nd opposite party for wheel alignment and up gradation of tyres. It is the further case of the complainant that the vehicle driven by one Mr. Ajesh, who is the employee of the 2nd opposite party met with an accident and for the repairs, the complainant had to spend nearly Rs.1,29,000/-. Alleging deficiency in service on the part of the 1st opposite party in repudiating the claim and non payment of the amount by the 2nd opposite party in the alternative, the complaint was filed praying for directions either to the 1st opposite party or to the 2nd opposite party to pay the amount spent for repairs.

3.   The 1st opposite party in the version contended that there was no contract between the complainant and the 1st opposite party. There was no policy issued in favour of the complainant or that the complainant had not changed the policy in his name after the purchase. The 2nd opposite party contended that the complaint was bad for non impleadment of necessary party and that the vehicle was moved by Mr. Ajesh, the sales man at the request of the complainant and hence the 2nd opposite party was not liable for any payment to the complainant. The 2nd opposite party has also denied the case of the complainant that the vehicle was brought for any wheel alignment or for any other works.

4.   The evidence consisted of the oral testimony of the complainant as PW1 and Exts. A1 to A4 were marked on his side. The witness of the 2nd opposite party was examined as DW1 and Exts. B1 and B2 were marked.

It is based on the evidence that the impugned order was passed by the Forum below.

5.   The learned counsel for the appellant/ 2nd opposite party submitted before us that it was wrong on the part of the Forum below to direct the 2nd opposite party to pay the amount to the complainant since it was the complainant himself who had requested the sales man, Mr. Ajesh, to move the vehicle from the place where it was parked. It was also argued by him that the vehicle was not brought to the workshop of the 2nd opposite party for any wheel alignment or for any other works. It is his further case that since there is no evidence to prove the entrustment of the vehicle to the 2nd opposite party and since there is no consideration paid by the complaint to the 2nd opposite party, the complainant could not be said to be a consumer of the 2nd opposite party and hence the Forums order fastening liability on the 2nd opposite party is perse unsustainable and hence liable to be dismissed.

6.   On the other hand, the learned counsel for the 1st respondent/complainant opposed the contentions of the learned counsel for the appellant. It is argued by him that the complainant had brought the vehicle to the 2nd opposite party for wheel alignment and that before the wheel alignment was carried out, the vehicle was driven by the employee of the 2nd opposite party and hence the 2nd opposite party is liable for the loss sustained by the complainant. It is also argued by him that the complainant can be termed as a consumer since after the wheel alignment the complainant had to pay the charges for it and one can be termed as a consumer if there is a promise for payment of consideration. In the instant case also the vehicle was brought to the 2nd opposite party with the promise for payment of consideration after wheel alignment and that it was for the said purpose that the employee of the 2nd opposite party took the vehicle to the garage of the 2nd opposite party whereby the accident and damage to the vehicle had occurred. Hence it is his very case that the Forums finding that the 2nd opposite party is vicariously liable for the acts of his employee which resulted is loss to the complainant is only to be upheld. He has also prayed for the dismissal of the appeal with compensatory costs.

7.   On hearing the respective counsels and also on perusing the records we find that it is the admitted case of both the parties that the vehicle was driven by the employee of the 2nd opposite party, Mr. Ajesh on 17.2.09. The Forum below has found that the 1st opposite party was in no way liable for any payment since there was no insurance policy in the name of the complainant issued by the 1st opposite party. All the same the Forum below has found that the vehicle was driven by the sales man Mr. Ajesh and that the surveyor had assessed an amount of Rs.79,985/- for the repairs of the vehicle. It is to be found that in the version of the 2nd opposite party it is admitted that the vehicle was driven by Mr. Ajesh, a sales man of the 2nd opposite party during his recess time. But they would argue that it was done at the request of the complainant. However, we find that the incident had occurred in the premises of the 2nd opposite party and that the employee of the 2nd opposite party was the reason for the said incident. In given set of facts, the case of the complainant seems to be more probable. For no reason he would not have brought the vehicle to the 2nd opposite party. It is also seen that the employee of the vehicle had taken the vehicle to their garage and may be accidental that the incident had happened. We are of the view that the Forum below has rightly appreciated the evidence on record and has passed the order fastening liability on the 2nd opposite party. We find no reasons to interfere with the said findings and conclusions.

In the result, the appeal is dismissed. The order dated: 30.10.2010 in CC No. 318/2009 of the CDRF, Ernakulam is confirmed. In the nature and circumstances of the present appeal, the parties are directed to suffer their respective cost.

The office is directed to return the LCR along with a copy of this order to the Forum below urgently.