IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 RSA.No. 834 of 2003() ------------------------------- AS.76/2002 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.539/1999 of I ADDL. MUNSIFF COURT, ERNAKULAM .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------------------------- THE MOTOR AND GENERAL FINANCE LTD., M.G.F.HOUSE, 17-B, ASAFALI ROAD, NEW DELHI - 110 002, REPRESENTED BY T.J.THOMAS, FIELD OFFICER, THE MOTOR AND GENERAL FINANCE LTD., M.G.ROAD, ERNAKULAM. BY ADV. SRI.G.HARIHARAN RESPONDENTS/RESPONDENTS/PLAINTIFF ---------------------------------------------------------------- 1. JIMMY JOSEPH, PROPRIETOR, HIGH WAY GARAGE TELCO, AUTHORIZED SERVICE STATION, THAIKKATUKARA, ALUVA - 683 106. 2. THE ORIENTAL INSURANCE COMPANY LTD., SHAN COMPLEX, DOOR NO.IV/990, BAZAR ROAD, MATTANCHERRY, KOCHI. 3. N. NASSEMUDDIN, S/O.MOHAMMED EBRAHIM, KUMBIYAZHIGON HOUSE, KOTTAPURAM, SOUTH PARAVUR, KOLLAM DISTRICT. R1 BY ADV. SRI.K.L.JOSEPH. R2 BY ADV. SRI.S.SACHITHANANDA PAI. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON 21/07/2010 DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.834 of 2003-G ------------------------------------- Dated 21st July 2010 Judgment Aggrieved by the Judgment and decree in OS No.539/99 as confirmed in AS No.76/02, the first defendant in the suit has come up in appeal. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. The first plaintiff claimed to be the Manager of Highway Garage, an authorised service station of Telco. According to the plaintiffs, the third defendant had brought a vehicle bearing Registration No.KL-2/B-7812, which was purchased under hire purchase scheme from the first defendant. The said vehicle was insured with the second defendant. The vehicle was entrusted with the plaintiffs for repairs since it had met with a major accident. The repair charges came to Rs.2,30,950/-. A survey was conducted by the Insurance Surveyor and the second defendant had RSA 834/03 2 issued a cheque for Rs.1,76,000/-. According to the plaintiffs, since there was a hire purchase agreement between defendants 1 and 3, the balance amount was to be paid by the first defendant to the plaintiffs. Several letters were addressed to the first defendant, but there was no response. According to the plaintiffs, another vehicle was also brought to the plaintiffs' workshop and for the repair of the said vehicle also, huge amounts were incurred. Since in respect of one of the vehicles, the claim was barred, the plaintiffs had given up that claim. It is pointed out by the plaintiffs that by letter dated 30.03.1996, the first defendant wanted the plaintiffs to release the vehicle. The vehicle was released on condition that the first defendant pays proportionate repair charges. In spite of several communications sent to the first defendant, the amount was not paid. Thereafter, a lawyer notice was issued. Since the amount was still remaining unpaid, the suit was laid. RSA 834/03 3 3. The first defendant in its written statement, denied the liability to pay any amount to the plaintiffs. They admitted that there was a hire purchase agreement between them and the third defendant. However, they contended that the vehicle was not entrusted by them for repairs and there was no privity of contract between them and the plaintiffs. The vehicle was entrusted by the registered owner and no undertaking was given by the first defendant to pay any charges for the repairs carried out by the plaintiffs. On the basis of these contentions, they prayed for dismissal of the suit. 4. The third defendant remained ex parte and the second defendant also filed a written statement, denying their liability to pay any amount to the plaintiffs. 5. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A9 from the side of the plaintiffs. The defendants examined DW1 and had Ext.B1 marked. On a consideration of the evidence, RSA 834/03 4 the Trial Court came to the conclusion that there was no evidence to show that the first defendant had got the vehicle released on giving an assurance that they would pay the repair charges. Therefore, they were liable for the amount claimed by the plaintiffs. Accordingly, the suit was decreed. 6. The first defendant carried the matter in appeal as AS No.76/02 before the District Court, Ernakulam. The very same contentions were taken up before the lower Appellate Court also as in the Trial Court. The lower Appellate Court repelled all the contentions and concurred with the Trial Court and found that the first defendant was in fact, liable to pay the amount. The said Judgment and decree are assailed in this appeal. 7. The learned counsel for the appellant pointed out that there was no privity of contract between the appellant and the plaintiffs and therefore, the appellant, who is the first defendant in the suit had no obligation to pay any amount to the plaintiffs. The third defendant in the RSA 834/03 5 suit was the registered owner of the vehicle and it was he who had entrusted the vehicle to the plaintiffs for repairs. It is true that the appellant had entered into a hire purchase agreement with the third defendant in the suit. But, that cannot make him liable for the repair charges of the vehicle entrusted with the plaintiffs by the third defendant. According to him, the Judgment and decree of the courts below are clearly unsustainable in law. 8. The learned counsel for the respondents, on the other hand, pointed out that both the courts below have considered the above contention in considerable detail and found it to be unsustainable in law. Both the courts have found that it was the appellant, who had got the vehicle released and there was an undertaking by them that they would pay the required charges. Having got the vehicle thus released, according to the learned counsel, they cannot now turn round and say that they are not liable to pay any amount. RSA 834/03 6 9. There seems to be considerable force in the submissions made by the learned counsel for the respondents. PW1, in his evidence has stated that the balance amount of Rs.54,950/- was due for repairs of the vehicle, when the vehicle was released to the first defendant. DW1 on examined on behalf of the first defendant would simply say that they had not entrusted the vehicle to the plaintiffs for repairs and since there was no contract between them, the first defendant was not liable to pay any amount to the plaintiffs. 10. However, the plaintiffs produced letters issued by the first defendant which were admitted by DW1 at the time of evidence. The courts below have placed considerable reliance on Ext.A1 document which would show that there were communications between the plaintiffs and the first defendant for release of the vehicle and that the vehicle was released on the strength of the understanding reached between the parties. It cannot be disputed that the vehicle was taken from the workshop of RSA 834/03 7 the plaintiffs. If, as a matter of fact, the first defendant had not agreed to pay the charges, it is difficult to believe that the plaintiffs would have simply released the vehicle to them. Moreover, the first defendant was exercising its right as the financier. It cannot be said that the first defendant who had taken the vehicle has no liability to pay the amount due to the plaintiffs. It is true that the lower Appellate Court had relied on a document which was not marked before the Trial Court. But, that was available in the file. That document shows that the appellant had undertaken to pay the repair charges. Strictly speaking, that cannot be taken note of, but the fact remains that there has been an undertaking by the appellant to pay the repair charges. At any rate, Ext.A1 to a considerable extent, strengthens the case put forward by the plaintiffs and it is too difficult to believe that the plaintiffs would have simply released the vehicle without getting an assurance from the appellant to pay the repair charges. Whatever that be, both the courts below on an appreciation of the evidence in the RSA 834/03 8 case have come to the conclusion that the first defendant had undertaken the liability to pay the repair charges and they were bound to do so. Being a pure question of fact, no grounds are made to interfere with the judgments and decrees of the courts below under S.100 CPC. No substantial questions of law arise for consideration as it is not shown that the findings of the courts below are either perverse or not warranted by the evidence on record. This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. Sd/- P.BHAVADASAN, JUDGE sta True copy PA TO JUDGE RSA 834/03 9