OKAY TRANSPORT CORPORATION vs M.O.H.TRANSPORT CORPORATION

THE First Appeal No. 533/93 by M/s. Okay Transport Corporation, complainant before the State Commission and the Cross Appeal No. 558 of 1993 by M/s. M.O.H. Automobiles, opposite party No. 1 before the State Commission, are directed against the order dated 13.9.93 passed by the State Commission, Tamil Nadu at Madras, partly allowing the complaint.

BRIEFLY the admitted facts are these. The complainant purchased two Eicher Mitsubishi Canter Goods Vehicles from opposite party Nos. 2 and 3 and got them registered as MCU 6292 and MCU 4265. Vehicle No. MCU 4265 met with an accident on 12.6.87 at Kanchipuram. After survey by the Surveyors of United India Insurance Company the said vehicle was entrusted to opposite party No. 1 which runs the authorised workshop for opposite party Nos. 2 and 3. The estimate of repair charges was prepared by the opposite party No. 1 on 6.7.87 for a sum of Rs. 88,220,42. The complainant paid to opposite party No. 1 on 22.11.88 a sum of Rs. 50,000/- towards the repair charges. The other vehicle MCU 4262 also met with an accident on 6.3.89 and it was entrusted to the opposite party No. 1 on 15.3.89 for repairs. On 28.8.89 after the Surveyor had submitted its report to the United India Insurance Co. and it was cleared by the Insurance Company, the opposite party No. 1 prepared a job card for estimated costs of Rs. 79,640/61 and duly endorsed by the complainant. The complainant alleged in the complaint that they have been containing opposite party No. 1 on several occasions and every time they were informed that the vehicles were undergoing repair works and because of some procedural and spare parts procurement delays, the repair of the vehicles could not be completed. The complainant ultimately sent a notice dated 6.6.90 through Counsel alleging that opposite party No. 1 had not carried out any repairs and the vehicles have rusted and do not have any value. It was also alleged that the failure to complete the repairs and to hand-over the vehicles in time has resulted in incurring heavy losses to the complainant and a sum of Rs. 8,34,645/- with interest was claimed in the notice. Some correspondence was exchanged between the parties and the complainant alleged that the opposite party No. 1 whose services were hired for repairs for consideration, neglected and defaulted in effecting the repairs to the vehicles and making the two vehicles roadworthy. The complainant claimed that opposite parties are liable to pay the value of two vehicles less depreciation and loss of profit.

INITIALLY the complaint was filed before this Commission. On going through this petition it was prima facie felt that the valuation put by the complainant was patently excessive and arbitrary and that it had probably been done with a view to bring the matter within the jurisdiction of this Commission. On this being pointed out to the learned Counsel appearing for the complainant, he requested that the complaint petition may be returned to him for presentation before the concerned State Commission after revising the valuation. This Commission in the order dated 5th August, 1992 acceded to this prayer and directed that the Original Petition be returned to the complainant through his Counsel for presentation to the Forum having jurisdiction after the valuation is reasonably revised. The time for return was fixed as one week from the date of the order and the time for presentation before the proper Forum as one month from the date of the order. The complainant revised the valuation to Rs. 8,58,636.00 and filed the complaint before the State Commission, Tamil Nadu at Madras within time allowed by this Commission.

THE opposite party No. 1 in its version raised two preliminary objections namely (i) that the complainant is not a consumer as the vehicles were purchased for commercial purpose and (ii) that the complaint is barred by limitation. On merits it was pleaded that the vehicle MCU 4262 was completely repaired with respect to accident job and in fact inspected by opposite party No. 3 who certified it and called upon the complainant to collect the vehicle after settling the payment. The complainant refused to take delivery falsely alleging that unauthorised repairs have been carried out, that labour charges were on higher side and that it has unnecessarily to incur additional costs of 17,000/- for changing all tyres, if the vehicle has to be taken. As regards Vehicle No. MCU 4265, it is alleged that after dismantling the vehicle, the actual assessment took place and the opposite party No. 1 submitted a bill for Rs. 1,38,309/- and so a resurvey became necessary to assess the actual loss. This vehicle was inspected by Surveyors of Insurance Co. who opined for a cash loss settlement. The allegations of negligence or deficiency in service or any alleged loss suffered by the complainant are denied. A joint counter was filed by opposite party Nos. 2 and 3 denying any vicarious liability on the plea that the opposite party No. 1 is only their authorised workshop carrying on business independently without any control of opposite party Nos. 2 and 3 and that in using their good office and requesting the opposite party No. 1 to carry out its obligations, opposite party Nos. 2 and 3 did not incur any liability.

THE State Commission formulated the following points for consideration :� (1) Whether the complainant is a consumer and the complaint is maintainable? (2) Whether there has been any deficiency of service or negligence on the part of the first opposite party ? (3) Whether the claim against the first opposite party is barred by time ? (4) Whether the claim is sustainable against the opposite party Nos. 2 and 3? (5) What relief, if any, is the complainant entitled ?

THE State Commission on point No. 1 observed that the complainant does not claim to be a consumer as purchaser for these vehicles under Section 2(l)(d)(i) of the Consumer Protection Act, 1986 and that it claims to be consumer only as hirer of the services of the opposite party No. 1 for consideration for the purpose of effecting repairs to these vehicles. The State Commission came to the conclusion in our view, rightly that the complainant is undoubtedly a consumer within the meaning of the Act. On point No. 2 the State Commission held that the opposite party No. 1 has not done any repairs to the first vehicle MCU 4265 and has been dragging on all these years right from June, 1987 for more than six years and this amounts to not only gross deficiency of service but also utter negligence. As regards second vehicle MCU 4262 the State Commission held that the opposite party No. 1 had not carried out repairs for this vehicle also in a proper manner and its claim that this vehicle has been fully repaired and made roadworthy fails. On the question of limitation under point No. 3 the State Commission found that the first vehicle has been entrusted to the opposite party No. 1 for repairs in June, 1987 and the second vehicle in May, 1989 and that they are still lying in the workshop of opposite party No. 1 without any repairs being carried out. It was held that so long as the vehicles are with the first opposite party for the purpose of repairs, limitation can not run against the complainant and it only starts to run when notice dated 6.9.90 was issued claiming compensation and the complaint had been filed within three years there from, is within time. On point No. 4 it was found that opposite party Nos. 2 and 3 are not liable. On Point No. 5 the State Commission on the appreciation of the evidence came to the conclusion that since these vehicles have been lying with the opposite party No. 1 for years together and are now reduced to almost scrap it is just and proper to direct opposite party No. 1 to take them and to pay to the complainant the post accident value of these vehicles. The post accident value of MCU 4265 was computed at Rs. 89,158 and that of vehicle No. MCU 4262 at Rs. 54,059.39. The State Commission directed :� (i) The opposite party No. 1 shall take the vehicle MCU 4265 and pay to the complainant Rs 89,158/- with interest thereon at 18% from 1.10.87 till payment. (ii) The opposite party No. 1 shall refund to the complainant a sum of Rs. 50,000/- received for effecting repairs with interest thereof at 18% from 22.11.88 till payment. (iii) The opposite party No. 1 shall take the vehicle MCU 4262 and pay to the complainant a sum of Rs. 54,059.39 with interest thereof at 18% from 15.6.89 till payment. (iv) The opposite party No. 1 shall also pay to the complainant costs of Rs. 5,000/- including of the Commissioner''s fee.

The complainant as well as the opposite party No. 1 feeling aggrieved from the order of the State Commission have filed two appeals. We have heard the learned Counsel for the parties and have also gone through the records. It is apposite to recall the entire case set up in the complaint with respect to Vehicle No. 4265 with a view to find out whether the claim made in the complaint is stale and barred by limitation. It is stated in the complaint: "The vehicle having registration No. MCU 4265 met with an accident at Kanchipuram in Tamilandu on 12.6.87. In view of the terms and conditions of the policy the vehicle has been surveyed by the authorised Surveyors of the Insurance Company and it has been completed on 7.7.87. The vehicle has been entrusted to the first respondent, the approved dealers for sales, service and repairs of the vehicles of Eisher. The first respondent postponed the repairs of the vehicles for various reasons which are flimsy and baseless from all aspects, to justify the delay caused by the first respondent. They again requested for resurvey of the vehicle and after resurvey they assessed the revised estimate for repairs. They also demanded payment of Rs. 50,000/- for meeting the expenses to be incurred for repairs. A cheque was issued on 22.11.88 in this regards."

It is manifest that as regards complaint with respect to this vehicle the cause of action arose when the vehicle was entrusted to the opposite party No. 1 for repairs and again when the survey was completed on 7.7.87 and after the expiry of a reasonable period of time for effecting the repairs and again when survey who done a revised estimate was prepared and in any case lastly on 22.11.88 when a payment of Rs. 50,000/- for meeting the expenses to be incurred for the repairs was made. The complainant''s own case is that no repairs have been carried out by the opposite party No. 1 at all. The opposite party No. 1 asserted that the complainant was fully aware that vehicle No. MCU 4265 involved in the accident is total loss and it cannot be repaired as it is beyond repairs. The Surveyors of the Insurance Co. on resurvey opined for cash loss statement. If no repairs at all have been carried out, the limitation would not stop to run merely because the vehicle was lying with the opposite party No. 1 for repairs. The State Commission is wrong in holding that so long as the vehicles are with opposite party No. 1 for the purpose of repairs, limitation cannot run against the complainant. The cause of action could not arise when notice dated 6.6.90 was issued. Cause of action arose on 7.7.89 on the entrustment of the vehicle for repairs and the refusal or inability of opposite party No. 1 to carry out repairs which according to the complainant himself was known lastly on resurvey and in any case before 22.11.88. The complainant claims in the complaint for loss of operation gain w.e.f 1.8.87, tax from 27.7.87, insurance premium w.e.f. 27.7.87 beside a refund of Rs. 50,000/-with interest w.e.f. 22.11.88. Thus according to the complainant himself, he expected the vehicle to be repaired within a reasonable time after 7.7.87 and delivered to him and he fixed the date as 1.8.87 which was not done. The cause of action according to the complainant himself thus arose on 1.1.87. The complaint with respect to vehicle No. MCU 4265 filed long after the expiry of three years is clearly barred by limitation and we hold so. 12. The position with respect to vehicle No. MCU 4262 is slightly different. This vehicle met with an accident on 6.3.89 and was entrusted to the opposite party No. 1 on 15.3.89 for necessary repairs after completing the survey. After survey and getting the clearance from the United India Insurance Co. a job card was prepared by the opposite party No. 1 on 28.9.89 with the approval of the Insurance Co. with costs and repairs assessed at Rs. 79.640.61. As to when the repairs were actually carried out, the present record is absolutely silent. Be that as it may the complaint was filed within the period of three years, even if we take the cause of action having commenced on 28.9.89. The grievance of the complainant with regard to vehicle No. MCU 4262 is entitled to be adjudicated upon. 13. The State Commission noticed that according to the complainant this vehicle has not been repaired and has not been made roadworthy and according to the opposite party No. 1 the repairs for the vehicle had been fully carried out. Mr. Sabu Isaac, Service Engineer of Eicher Motors Ltd. was directed by the State Commission to examine the vehicle and to submit a report. The report is Exhibit C l dated 2.6.93 bringing out various deficiencies in the repairs and the defects noticed by the Commission with the ultimate finding that the vehicle is not roadworthy. Another Commission was appointed by the State Commission and his report is Exhibit C3 dated 10.7.93. His report also gives defects and ultimate conclusion. The State Commission was, therefore, fully justified to come to the conclusion on the basis of Exhibits C l and C3 that the opposite party No. 1 has not carried out repairs for the vehicle and also in a proper manner and its claim that the vehicle has been fully repaired and made roadworthy fails. Both the complainants as well as first opposite party has questioned the quantum of the damages/ loss. We find that the assessment by the State Commission based on the post accident value of the vehicle is on sound principles. We uphold the finding that the opposite party No. 1 has to take vehicle No. 4262 and pay to the complainant a sum of Rs. 54,059.39. We are, however, of the opinion that this quantification of the post accident value should carry interest from the date of the order of the State Commission i.e. from 13th September, 1993. The complainant had claimed operational loss, motor tax paid, insurance claim and these have been rightly rejected by the State Commission. No serious arguments were addressed by the learned Counsel for the complainant before us on these aspects. 14. In the result, First Appeal No. 533 is dismissed. First Appeal No. 558/93 is partly allowed and the order of the State Commission is so far as it relates to vehicle No. MCU 4265 is hereby set aside. We direct that the opposite party No. 1 shall take the vehicle No. 4262 and pay within one month to the complainant a sum of Rs. 54,059.39 with interest thereof at 18% from 13th September, 1993 till payment. The opposite party No. 1 shall also pay to the complainant costs of Rs. 5,000/-includingthe Commissioner''s fee as assessed by the State Commission. The parties shall, however, bear their own costs before this Commission.