Karnataka High Court
Smt Chandrika vs Tvs Motor Company Ltd on 31 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:30212
RFA No.587 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL NO.587 OF 2015 (MON)
BETWEEN:
SMT. CHANDRIKA
D/O N. NARASIMHAMURTHY
AGED ABOUT 45 YEARS
R/AT NO.13, TEACHERS COLONY
J.S.S. HIGH SCHOOL, KONANAKUNTE
BANGALORE-560 062.
...APPELLANT
(BY SRI. NAIK N.R. ADV.,)
Digitally
signed by AND:
MALATESH
KC 1. TVS MOTOR COMPANY LTD
Location: P.B.NO.4, HANTA
HIGH
COURT OF HOSUR-635 109
KARNATAKA TAMILNADU
(REP. BY ITS GENERAL MANAGER (LEGAL)
SRI. R. MURALI.
2. PRANEETH VARMA ASR.
AREA SERVICE INCHARGE
TVS MOTOR COMPANY
NO.383, 2ND FLOOR
16TH MAIN, 3RD BLOCK
KORAMANGALA
BANGALORE-560 034.
3. THE MANAGER
BHARATH AUTOMOBILE AGENCY
AUTHORISED MAIN DEALER
TVS MOTOR COMPANY LTD
JAYANAGAR, BANGALORE-560 025.
4. NATIONAL INSURANCE COMPANY LTD.
BY ITS MANAGER
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RFA No.587 of 2015
3RD FLOOR, UNITY BUILDING ANNEX
72, MISSION ROAD
BANGALORE-560 027.
...RESPONDENTS
(BY SMT. SANJANA RAO, ADV., FOR
SRI. ARUN KUMAR, ADV., FOR R1 & R2
SRI. G.K. SHIVA PRAKASH, ADV., FOR R3
SRI. K. SRIDHARA, ADV., FOR R4)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.12.2014 PASSED IN
O.S NO.645/2012 ON THE FILE OF THE XIX ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-18),
DISMISSING THE SUIT FOR RECOVERY OF MONEY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.N.R.Naik, learned counsel for the appellant,
Smt.Sanjana Rao, learned counsel for respondent Nos.1 and 2,
Sri.G.K.Shiva Prakash for respondent No.3 and Sri.K.Sridhara,
learned counsel for respondent No.4.
2. The present appeal is filed challenging the judgment
and decree passed in O.S.No.645/2012 on the file of XIX
Additional City Civil & Sessions Judge, Bengaluru (CCH-18)
dated 12.12.2014, whereby the suit of the plaintiff seeking
recovery of money on account of damage to the vehicle
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attributed to the defendant Nos.1 to 3 as the vehicle in
question was not properly repaired by defendant Nos.1 to 3.
The suit on contest came to be dismissed.
3. Brief facts of the case which are utmost necessary
for disposal of the appeal are as under:
3.1 Plaintiff claims that she is the owner of TVS Scooty,
two wheeler bearing Registration No. KA-05-HE-8975, which
was purchased by her on 10.03.2008. Defendant No.1 is
manufacturer of the said vehicle, defendant No.2 is authorized
area service in charge of the said vehicle, defendant No.3 is the
dealer of vehicles manufactured by the first defendant and
defendant No.4 is the Insurance Company of the vehicle in
question.
3.2 After the purchase of the vehicle, plaintiff got
service of the vehicle regularly from defendant No.2 after the
vehicle was delivered from the defendant No.3. It is further
contended by the plaintiff that on 10.05.2009 at about 07:45
p.m. on Kanakapura main road, Bengaluru, plaintiff was going
on the vehicle in question following necessary traffic rules and
regulations, at that juncture, there was a pillion rider by name
Poorna Prajna. While plaintiff was riding her vehicle in a normal
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speed, the front wheel of the vehicle got separated from the
vehicle, due to which, the plaintiff and pillion rider fell down
and sustained injuries. Immediately the plaintiff and pillion
rider were shifted to the hospital and they took treatment and
spend a sum of Rs.55,000/- as medical expenses. Plaintiff
further contended that the incident has occurred on account of
the defective assembly of the front wheel by defendant Nos.1
and 2.
4. It is her case that the said fact has been noticed by
defendant Nos.2 and 3 and assured that they are going to
replace defective parts and will provide new parts. During
treatment, plaintiff lost her income to the tune of RS.30,000/-
and she is getting treated for the injuries till the date of filing
the suit spending huge amount. It is also contention of the
plaintiff that she suffered mental agony, loss of future income
which cannot be compensated in any manner. Therefore, she
has assessed nominally a sum of Rs.30,000/- as the damages
for mental agony and pain and she is also entitled to sum of
Rs.1,00,000/- towards the medical expenses and therefore, laid
the claim in a sum of Rs.3,68,030/- with future interest at the
rate of 8% p.a.
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5. Upon service of the suit summons, defendant Nos.1
and 2 filed a joint written statement denying the plaint
averments in toto, except admitting the fact that the vehicle in
question was delivered from dealership. Insurance company of
the vehicle in question field a separate written statement
stating that the policy was not all comprehensive policy and it
was a package policy, which did not cover the risk on account
of the mechanical defect in the vehicle, whereby, insured could
be compensated.
6. Based on the rival contentions of the parties, trial
Court arises following issues:
"1. Whether the plaintiff proves that TVS
Scooty bearing Regn.No.KA-05-HE-8975
manufactured by the defendant Nos.1 and 2 had
mechanical defects as alleged?
2. Whether the plaintiff proves that the said
vehicle bearing Regn.No.KA-05-HE-8975 met with an
accident on 10/5/2009 at 7.45 p.m. on Kanakapura
Main Road, Bangalore, only due to mechanical defects
in the said vehicle and as a result, she has sustained
injuries as alleged?
3. Whether the plaintiff proves that the
defendants are liable to pay totally a sum of
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Rs.3,05,000/- together with interest towards damages
as claimed?
4. Whether the defendant Nos.1 and 2 proves
that the accident occurred on 10/05/2009 was due to
rash and negligent driving by the plaintiff only as
alleged?
5. Whether the plaintiff proves that the
defendants are jointly and severally liable to pay the
suit claim?
6. Whether the plaintiff is entitled for a
judgment and decree as sought for?
7. To what order to decree?
Additional Issues
1. Whether the suit is not maintainable as
against the 4th defendant ?"
7. In order to prove the case of the plaintiff, plaintiff
got examined herself as PW-1 and places on record as many as
39 documents which was exhibited and marked as Ex.P1 to
Ex.P39 comprising of:
Ex.P.1-3 - 3 Invoices
Ex.P.4 - Insurance policy.
Ex.P.5 - Motor Vehicles Owner's Manual.
Ex.P.6 - RC book.
Ex.P.7-11 - 5 Scooter package policies.
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Ex.P.12-19 - 8 medical bills.
Ex.P.20-25 - 6 labour service bills.
Ex.P.26,27 - 2 invoice bill.
Ex.P.28 - Another medical bill.
Ex.P.29-32 - 4 prescriptions.
Ex.P.33 - Discharge summary.
Ex.P.34 - Cost estimate receipt.
Ex.P.35 - Visiting card.
Ex.P.36 - Card issued by Modern Service
Centre.
Ex.P.37 - Acknowledgment card.
Ex.P.38 - Office copy of legal notice
dt:10.08.2010.
Ex.P.39 - Certified copy of the order passed by
Consumer Disputes Redressal Forum
8. As against the evidence placed on record on behalf
of the defendant, four witnesses were examined namely
R.N.Banu as DW-1, N.Mohan Murali as DW-2, Sowman
Mukherjee as DW-3 and Vigneshwari as DW-4 and placed on
record 13 documents which are exhibited and marked as Ex.D1
to Ex.D13 comprising of:
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Ex.D.1 - Notice sent to defendant.
Ex.D.2 - Envelop.
Ex.D.3 - Owners manual book.
Ex.D.4-8 - Job cards.
Ex.P.9,10 - TVS Motor Company certificates
dt:27/9/2007 and 25/9/2006.
Ex.D.11 - Authorization letter.
Ex.D.12,13 - Authorization letter and its true copy.
9. Thereafter, learned Trial Judge heard the parties in
detail and by judgment dated 12.12.2014 dismissed the suit of
the plaintiff.
10. Being aggrieved by the same, plaintiff is before this
Court on the following grounds:
The trial court come to conclusion that though
the incident took place on 10.05.2010 due to
defect in the vehicle and such defect has been
denied by the respondents 1 to 3 as the
incident took place due to negligence of the
appellant herein.
The trial court gravely erred that though the
witnesses are admitted about the components
of the vehicle found defence but, till today they
have not come forward either to replace or to
handover new vehicle as the appellant is
suffered grievous injuries.
The trial court gravely erred that the appellant
has placed all necessary documents before the
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trial court to establish her case, but still none
of the documents are considered and pass the
order as requested by the appellant.
The trial court gravely erred that the
manufacturing defect was found in the vehicle
and the defence taken by the respondents as if
the vehicle was run 7017 kms., till 02.03.2010
and such defect is not found on the vehicle,
whereas during the course of evidence it is not
establish by the respondents and admitted the
fact none of the witnesses seen the vehicle or
made any inspection.
The trial court gravely erred that though the
incident was took place on 10.05.2010 and
warranty was expired and such defect cannot
be renovated.
The trial court gravely erred that the front
wheel of the gridge was broken due to the
defect installed in the vehicle and the said
vehicle was left for repair and none of the
authorities were notified the defect found in the
vehicle. And the trial court come to conclusion
that the burden on the appellant is not
established about the said defect.
The trial court repeatedly brought the evidence
of DW1 to DW3 and discussed and emphasize
about their version to prove that as if the
appellant is handling the vehicle in a rough
manner and due to that reason the defect is
found in the vehicle.
The trial court gravely erred that when the
vehicle was left with the respondents about the
major defect and they have admitted about he
exchange of gridge installed in the front wheel,
but no such exchange was made because they
want to provide estimate on the said defect,
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but no correspondence has been made to the
appellant.
The trial court gravely erred that the 4th
respondent visited the vehicle and they have
noticed about defect in the vehicle, hence they
have denied to pay the compensation, because
whatever the injuries sustained by the
appellant is not comes within the purview of
the policy which was issued in the name of
appellant herein.
The trial court gravely erred that though the
documents were placed before the court, but
none of the documents were verified with the
evidence, but still the suit came to be
dismissed though the appellant is entitle for
compensation.
The trial court gravely erred that the defence
taken by the respondents during warranty
period no such defect is found as claim made
by the appellant.
The trial court gravely erred that the appellant
is neither mechanic nor having knowledge
about the automobiles and during the course of
cross examination of DW1 to 3 admitted about
the facts as the defect found in the vehicle.
The trial court gravely erred that the
observation made relating to issues combinding
all together and proper appreciation of
evidence is not available while passing the
judgment.
The trial court judgment is totally perverse in
nature and whatever the judgement and
authorities are placed before the trial court are
not relied upon.
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11. Sri.N.R.Naik, learned counsel for the appellant,
reiterating the grounds in the appeal memorandum,
vehemently contended that DW-1 has categorically admitted
the defects found in the vehicle in question in his cross-
examination and which have been observed by the learned Trial
Judge in the impugned judgment but failed to consider the
same in its proper perspective and wrongly dismissed the suit
of the plaintiff resulting in miscarriage of justice, and sought for
allowing the appeal.
12. He further contended that after purchase of the
vehicle, it is being serviced from time to time is not in dispute,
and DW-1 has categorically admitted that the front wheel
separating away from the fork of the vehicle cannot happen in
a road traffic accident and therefore, the front wheel separating
away from the fork is only due to the defect in the
manufacturing of the vehicle, which resulted in the unfortunate
incident where the plaintiff and the pillion rider-Poorna Prajna
got injured, besides, the vehicle damages to the considerable
extent. Therefore, the claim of the plaintiff ought to have been
allowed by the learned Trial Judge by reiterating the suit and
thus sought for allowing the appeal.
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13. Per contra, the learned counsel for respondents
supports the impugned judgment. Learned counsel for
respondent Nos.1 and 2 in addition to supporting the judgment,
contended that admittedly, the vehicle after the incident was
brought to the third defendant, wherein the vehicle was
inspected and it was noticed that the front wheel has been
separated away from the fork of the vehicle and the damage
was assessed. A provisional invoice shows what are the
necessary expenditure that would be required to repair the
vehicle and the plaintiff did not choose to make such payment
and therefore, the vehicle was delivered in the same condition
to the plaintiff. Therefore, the alleged admission on behalf of
DW-1 is the post incident status of the vehicle and not the
status of the vehicle before the incident which has nothing to
do with the alleged incident and therefore, the alleged
admission has been rightly appreciated by the learned Trial
Judge in the impugned judgment and rightly dismissed the suit
of the plaintiff and thus sought for dismissal of the appeal.
14. Learned counsel Sri.G.K.Shiva Prakash for
respondent No.3 while supporting the impugned judgment
contended that after the delivery of the vehicle, free service
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has been offered by the third defendant soon after the
purchase of the vehicle. The third defendant has got no nexus
whatsoever of the vehicle, as the vehicle was subsequently
being serviced in the service center of the second defendant
and therefore sought for dismissal of the appeal.
15. Learned counsel for respondent No.4 Sri.K.Sridhara
appearing for the Insurance Company contended that
admittedly, the policies obtained by the plaintiff which is placed
on record is the package policy which did not cover the risk
alleged by the plaintiff in the plaint and therefore, dismissal of
the suit is fit and proper and sought for dismissal of the appeal.
16. Having heard the parties in detail, this Court
perused the material on record meticulously.
17. On such perusal of the material on record, following
points would arise for consideration:
"1. Whether the plaintiff has made out a case that
the vehicle at the time of purchase had inherent
mechanical defect that resulting in the incident
that occurred on 10.05.2010?
2. If so, whether the claim of the plaintiff was in
a sum of Rs.3,05,000/- together with interest is
justified?
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3. Whether the impugned judgment is suffering
from legal infirmity, perversity and thus, calls for
interference?
4. What order?"
REG.POINT NOS.1 TO 3:
18. In the case on hand, the evidence of PW-1 and the
documents placed on record clearly establish that the plaintiff
has purchased TVS Scooty, two wheeler bearing
No.KA-05-HE-8975 manufactured by the first defendant, sold
by the third defendant-dealer in favour of the plaintiff. Vehicle
was purchased on 02.03.2008. After the purchase of the
vehicle, the plaintiff was satisfied with the performance of the
vehicle and she has complained few defects in the running of
the vehicle namely, low mileage and few minor adjustments.
Periodical service was also conducted apart from the free
service.
19. After the expiring of free service period, the vehicle
was being serviced by the third defendant. Defendant No.3
prepared necessary job cards and serviced the vehicle time to
time. The last service that has been conducted by the second
defendant could be seen from the material on record is on
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02.03.2010. Job cards in respect of the said service are marked
at Exs.D4 to 8.
20. As could be seen from Exs.D4 to 8, it is crystal clear
that the plaintiff has complained only with regard to the low
mileage and there was a change of engine oil and few minor
adjustments and general service has been conducted. No other
defects were noticed like wobbling in the front wheel or in other
aspects or any other odd sound in the front wheel by the
plaintiff till such time. It is pertinent to note that, for a period
of more than two years, the vehicle has been successfully
ridden by the plaintiff without noticing any of the defects in the
front wheel. Under such circumstances, in the general service,
when there was no defect pointed out by the plaintiff, the
service agents have generally inspected the vehicle in all
aspects of the vehicle and found it right and it was fit enough to
move on the road.
21. When the matter stood thus, on 10.05.2010 on the
evening hours, on the Kanakpura Main Road, Bengaluru the
plaintiff along with the pillion rider by name Poorna Prajna were
moving and there was unfortunate incident, wherein, the front
wheel got separated out from the fork of the vehicle and
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whereby the pillion rider and the rider fell down and sustained
injuries. Necessary efforts made to shift them to hospital.
Thereafter, the vehicle was taken to defendant No.3's center.
In defendant No.3's center, the vehicle was inspected by the
service engineer and noticed that there was damages.
22. Admittedly, these damages to the vehicle was
inspected by the second defendant and their service engineers,
only after the unfortunate incident occurred on 10.05.2010 and
these defects were not found earlier to 10.05.2010 when the
last service took place as per Ex.D4 job card on 02.03.2010.
23. In other words, post-incident if some damages have
occurred to the vehicle and that has been inspected, and in
respect of the same, if an estimate is prepared by defendant
No.3 that could not be treated as an admission by the part of
the defendants that there was an inherent mechanical defect in
the vehicle in question resulting in front wheel separating away
from the fork of the vehicle resulting in the incident.
24. Therefore, in the absence of any other material
evidence placed on record by the plaintiff either by examining
any other auto mobile engineers or the instructor of motor
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vehicles, the finding recorded by the Trial Judge that the
plaintiff has failed to make out because of the mechanical
defect, the unfortunate incident has occurred on 10.05.2010
cannot be faulted with and there is no other evidence on record
to establish the fact that the vehicle had an inherent
mechanical defect resulting in the incident that occurred on
10.05.2010.
25. Moreover, if the vehicle has run for a period of more
than two years successfully and has being serviced form time
to time and no such mechanical defect has been noticed at any
given point of time, the contention of the plaintiff that because
of the inherent mechanical defect the incident on 10.05.2010
has occurred cannot be countenanced in law. The point No.1
needs to be answered in the negative.
26. In view of the finding of this Court on point No.1,
the question of payment of compensation would not arise as a
party cannot take advantage of his own wrong.
27. The material on record has been rightly appreciated
by the learned Trial Judge. Taking into consideration
cumulatively the oral and documentary evidence placed on
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record and by properly applying the principles of law with
regard to the law of damages, therefore, this court does not
find any legal infirmity or perversity in the finding recorded by
the learned Trial judge while dismissing the suit of the plaintiff.
Consequently, the point Nos.1 to 3 are answered as follows:
Point No.1 in the negative.
Point Nos.2 does not arise for consideration.
Point No.3 in the negative.
REG.POINT NO.4:
28. In view of the finding of this Court on point Nos.1 to
3 as above, the following:
ORDER
The appeal is merit less and hereby dismissed.
No order as to costs.
Sd/-
(V. SRISHANANDA)
JUDGE
ABK
