Manonmani vs Chellaiah

THIS appeal is directed against the order dated 27th day of November, 1998 in O.P. No. 56/1997 on the file of the District Consumer Disputes Redressal Forum, Salem.

THE appellant is the complainant while the respondent is the opposite party. Facts as culled out from the materials placed on record may in brevity be related in order to understand the crux of the issue arising for consideration in this action.

One Tmt. Manonmani (complainant), residing at No. 89, Neimundy Arunachalam Street, Gugai, Salem-6, it is said, purchased a Mahendra Maxi Cab Van for Rs. 2,25,000/- from one K. Vadivelu, son of Kondi Chetty, residing at No. 99-A, Chairman Sadagopan Street, Ponnammapet, Salem. The registration number of the vehicle is TN 27-E-4977. She purchased the van by availing a loan to the tune of Rs. 1,50,000/- from one Shanmuga Finance after providing her funds to the extent of Rs. 75,000/-. It appears that the change of registration of the van in the name of the complainant was not immediately effected by submission of necessary and requisite application to the Competent Authority. While so, the van met with an accident on 28.5.1996. In the course of accident, it is said, the vehicle sustained a heavy damage.

THE vehicle was entrusted to one Sri Muneeswari Bus, Lorry Body Labour Works & Co., located at Kalarampatty Main Road, Near Devi THEatre, Salem of which one Chellaiah, the opposite party, is the proprietor. THE opposite party Chellaiah agreed to repair the van at the cost of Rs. 10,000/- towards labour charges and expenses for replacement of parts at Rs. 40,000/-. THE complainant agreed for the same and entrusted the vehicle for repairs in the workshop of the opposite party. At the time of the entrustment of the vehicle for repairs, it appears, the complainant effected a payment of Rs. 10,000/- towards labour charges for which a stamped receipt had been passed by the opposite party mentioning the vehicle number in the receipt so passed. THE opposite party, it appears, promised to effect delivery of the vehicle on 1.8.1996 after the completion of the repairs. As promised, the opposite party, however, did not effect delivery of the vehicle after effecting the repairs. THE complainant also issued a legal notice dated 4.2.1997 to the opposite party. THE legal notice so issued was not responded by the opposite party by way of issue of a reply notice. In such backdrop and setting, the complainant knocked at the doors of the Forum below alleging that the act of the opposite party in not returning the vehicle after effecting the repairs to the complainant would tantamount to deficiency in service on his part and claiming reliefs as below : (1) Loss of earnings till the date of complaint : Rs. 70,000/-; and (2) Return of the vehicle.

ON service of process, the opposite party, of course, entered appearance through a Counsel of his choice but failed to file a version. He was also called absent and set ex parte and ex parte enquiry was held. During the course of enquiry, the complainant marked Ex. A1 to Ex. A6 and did not adduce any oral evidence. The Forum below after taking into consideration the materials placed on record, recorded a finding that there was no deficiency in service on the part of the opposite party and on the basis of such a finding, the complaint was dismissed, however, without costs. Aggrieved by the order as above, the complainant resorted to the present action by engaging a Counsel of her choice, namely learned Counsel M/s. S. Subbiah and Sheela Venkatesh.

ON service of process, the respondent/opposite party entered appearance through a Counsel of his choice/namely learned Counsel Mr. V. Ramesh.

WE heard the arguments of learned Counsel Mrs. Sheela Venaktesh appearing for the appellant/complainant and learned Counsel Mr. V. Ramesh appearing for the respondent/opposite party. From the pith and substance of the submission of learned Counsel appearing for the respective parties, the one and only question that crops up for consideration is as to whether the order of the Forum below in dismissing the complaint without costs on the facts and in the circumstances of the case is sustainable in law.

Even at the outset, we are pained to state that the Forum below did not take into account in the proper perspective the factual matrix of the case on hand and giving a legal fitment thereto and that perhaps was the reason, we rather feel, for the Forum below to have rendered the order now impugned in the present action. To put it otherwise, if the Forum below had appreciated the factual matrix in the proper perspective, cock sure it is, we rather feel, it would not have rendered an erroneous order now impugned in this action.

IT is the positive case of the complainant that she purchased a Mahendra Maxi Cab Van bearing Registration No. TN 27 E 4977 from one K. Vadivelu of Salem for Rs. 2,25,000/-. IT is her further case that she availed of a loan to the tune of Rs. 1,50,000/- from one Shanmuga Finance and providing funds from her to the tune of Rs. 75,000/- to make him sale consideration of Rs. 2,25,000/-. IT is her further case that the van she purchased met with an accident on 28.5.1996 and the said van had been entrusted to the custody of the opposite party for effecting repairs. The opposite party demanded a total sum of Rs. 50,000/- comprising of Rs. 10,000/- towards labour charges and Rs. 40,000/- towards the replacement of spare parts. The complainant also agreed for the same and as a matter of fact, paid a sum of Rs. 10,000/- towards labour charges and for the sum so paid, the opposite party issued a stamped receipt under Ex. A2. The fact remains that the opposite party who promised to return the vehicle on 1.8.1996 after effecting the repairs did not at all return the vehicle to the complainant. In such a factual matrix, the question that will arise for consideration is as to whether the act of the opposite party to whom the vehicle was entrusted for repairs by the complainant in not returning the vehicle after effecting the repairs would tantamount to deficiency in service on his part. In consideration of such a question, the Forum below went into consideration of certain questions not falling within its purview or jurisdiction. The Forum below went to the extent of stating in its order that on the date of the entrustment of the vehicle to the opposite party and on the date when the vehicle stated to have been met with an accident, as well, the vehicle was not standing in the name of the complainant as owner and on the other hand, the vehicle stands in the name of the owner by name K. Vadivelu of Salem. No doubt Ex. A1, R.C. Book, stands in the name of one K. Vadivelu of Salem. The change of name in the permit from the original owner K. Vadivelu to the name of the complainant, namely Manonmani was effected by the R.T.A., Salem under Ex. A6. The said Exhibit was signed by the R.T.A. on 17.12.1996 and the date of transfer was stated to have been effected on and from 26.6.1996. This aspect of the matter was taken into consideration by the Forum below as a factor throwing lot of suspicion with regard to transfer effecting in the name of the complainant. This sort of a discussion as entered into by the Forum below as we have already stated is not at all relevant for the purpose of arriving at a decision in the case on hand. Even if it is necessary, we are of the opinion on the materials placed on record that the Forum below had not taken into account the relevant statutory provisions and rules regarding the effect of change of ownership of the vehicle. IT is permissible for the purchaser who purchased the vehicle from another to have the change of name effected after some sort of a delay in the sense of not effecting the transfer of ownership within the time permissible under rules. In order to take care of such a situation, there is a rule in the shape of 105-A of the Tamil Nadu Motor Vehicles Rules, 1988 (for short, "the Rules 1988"). Under the said rule, if there is a delay in effecting transfer of ownership, the transferee is given option to pay the prescribed fee thereunder in lieu of any action that may be taken under Section 177 of the Motor Vehicles Act and Rules. IT appears that the complainant paid the necessary and requisite fee for the delay caused in effecting the transfer of ownership in her name and that perhaps was the reason the R.T.A., Salem issued Ex. A6 effecting the transfer of ownership of the vehicle in the name of the complainant on and from 26.6.1996. We are put to the necessity of entering into such discussion to point out that the Forum below did not take into consideration the relevant statutory provisions and not otherwise. The discussion of ours relatable to the change of ownership of the vehicle in the name of the complainant should not at all be taken into consideration as conclusive and it is perfectly open for the original owner of the vehicle, namely K. Vadivelu to agitate the matter if he desires to do so in the proper Forum. The reason why we say so is that in his absence before us we should not give a finding relatable to the ownership of the vehicle, added by the fact that such a question is also not required to be decided for the purpose of coming into any conclusion in the case on hand. From the admitted factual matrix, one thing is certain that the complainant entrusted the vehicle in question to the opposite party for effective repairs and the opposite party also agreed to return the vehicle to the complainant after effecting the complete repairs on payment of necessary and requisite charges to him. That means the complainant is a bailor and the opposite party is a bailee as defined under Section 148 of the Indian Contract Act, 1872 (for short, "the Act, 1872"). Section 151 thereto specifies 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 and value as the goods bailed. Section 152 thereto prescribes that the bailee, in the absence of any special contract, is not responsible for the destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. To put it otherwise, in the absence of special contract, the baillee is not responsible for the loss, destruction or deterioration of the thing bailed if he has taken the amount of care as a man of ordinary prudence would take of his own goods. Section 161 thereto provides 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 bailor for any loss, destruction or deterioration of the goods from that time. As such, it is crystal clear where the case is one governed by Sections 151 and 152 the loss or damage of goods entrusted to a bailee is prima facie evidence of negligence and the burden to disprove negligence lies on the bailee. In the case on hand, though an adequacy of opportunity was given to the opposite party bailee to project his case before the Forum below, the opposite party for reasons best known to him did not file any version at all though he engaged a Counsel of his choice. What is further worse is that he remained absent and he was set ex parte. He has also not responded by way of a reply to the notice issued by the complainant under Ex. A3 dated 4.2.1997. In such a situation, it cannot at all be stated that the opposite party placed anything on record to disprove negligence on his part in not effecting the return of the vehicle to the complainant after the repairs. As such, the opposite party is duty bound to return the vehicle to the complainant after effecting the repairs. Of course, payment of charges by the complainant did not effect delivery of the vehicle to the complainant on the date the delivery was to be effected, namely on 1.8.1996 and for the non-effecting delivery of the vehicle on the day, no explanation also forthcame from him. Such being the case, his act in such circumstances would definitely tantamount to deficiency in service on his part and for such deficiency in service, he is squarely responsible to compensate the complainant for not effecting the return of the vehicle. The cost of the vehicle is Rs. 2,25,000/-. It is not as if the vehicle was in the same stage as it was purchased from the original owner K. Vadivelu. The vehicle actually met with an accident as already indicated and the cost of restoration of the vehicle to its original roadworthy condition as stated by the complainant by way of incorporation of averment is Rs. 50,000/- comprising of cost of labour charges quantified in a sum of Rs. 10,000/- and replacement of parts quantified in a sum of Rs. 40,000/-. There is no material placed on record to point out that the complainant paid any amount far beyond Rs. 10,000/- towards labour charges in respect of which a stamped receipt has been passed by the opposite party under Ex. A2. In other words, no material had been placed on record to point out that the complainant had effected payment of Rs. 40,000/- to the opposite party for the replacement of spare parts for the vehicle in question which met with an accident. Such being the case, the complainant cannot be expected to be given the relief of the return of the vehicle after effecting complete repairs unless and until he makes the payment of Rs. 40,000/- towards the replacement of parts. In the circumstances of the case, we rather feel, the best course to be adopted is to issue a direction to the opposite party to pay to the complainant the sum of Rs. 2,25,000/- (-) Rs. 40,000/- representing the cost of replacement of parts which was not paid by the complainant (+) Rs. 10,000/-, the amount paid by the complainant to the opposite party towards labour charges in respect of which a stamped receipt has been passed by the opposite party, equivalent to Rs. 1,95,000/-. The complainant also prayed for a sum of Rs. 70,000/- to be paid to her representing the loss of income sustained by her because of the non-return of the vehicle on 1.8.1996 till the date of filing of the complaint. No material worth the name had been filed on record to point out that she as a matter of fact sustained such sort of a loss during the period in question. Therefore, we reject the claim made towards the loss of earnings during the relevant period. At this stage, learned Counsel Mrs. Sheela Venkatesh intervened and submitted that as a matter of fact, the complainant purchased all the spare parts necessary for putting the vehicle to a roadworthy condition and gave it to the opposite party and in substantiation of such an argument she referred to the documents marked as Ex. A5 series. The bill under Ex. A5 series comes to Rs. 16,490/-. We are unable to take that into account and the reason is simply this. The complainant did not at all state anything by way of averments in the complaint that she as a matter of fact, purchased certain spare parts from out of her own funds and paid the same to the opposite party for effecting the repairs to the said vehicle. As a bolt from the blue, certain xerox copies of the bills have been placed on record by the complainant during the course of enquiry before the Forum below and to such bills, we are unable to give any credence when there is no plea by way of incorporation of averments in the complaint. Any amount of evidence, oral or documentary without necessary and requisite plea is of no use and, therefore, we reject the argument of learned Counsel on such aspect of the matter.

IN fine, the order of the Forum below is set aside and the appeal is allowed in part. The opposite party is directed to pay to the complainant a sum of Rs. 1,95,000/- [Rs. 2,25,000/- (-) Rs. 40,000/-(+) Rs. 10,000/- = Rs. 1,95,000/-]. We, however, make no order as to costs on the facts and in the circumstances of the case. We, however, make it crystal clear that the order of ours is required to be complied with by the respondent/opposite party within a month from the date of receipt of the order, or otherwise it would be open to the complainant to invoke jurisdiction under Section 27 of the Consumer Protection Act, 1986 (for short, "the Act, 1986"). Appeal partly allowed.