Orissa

Sambalpur

CC/12/2017

Rajkumar Satpathy - Complainant(s)

Versus

1-Proprietor,Ma Samaleswari Automobiles - Opp.Party(s)

24 Jan 2023

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

Consumer.Case No.- 12/2017

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member

 

Rajkumar Satpathy, 

S/o- Ramesh Satpathy,

R/O-Tiklipara, PS/PO-Jamankira,

Dist-Sambalpur.                                                                ……..…..Complainant

 

Vrs.

1. Proprietor, MA Salameswari Automobiles,

At-N.H.-6 Ainthapali

Po/Ps-Ainthapali, Dist-Sambalpur.

2. Biseswar Panigrahi,

At-Bagdoli, PO-Kameswarpali, Sonepur,

Dist-Subarnapur.

3. United Bank of India, Sonepur Branch, At/Po/Dist-Subarnapur.
4. M/S Cholamandalam finance Pvt. Ltd.

At-N.H.6, Ainthapali, PO/Ps-Ainthapali,

Dist-Sambalpur.

5. R.T.O., Sambalpur, Po/Dist-Sambalpur.                       …..….Opp. Parties

Counsels:-

1. For the Complainant       :-         Sri. B.Pradhan, Advocate & Associates.
2. For the O.P No.1              :-         Sri.P.K.Mishra, Advocate & Associates
3. For the O.P No.2&5         :-        Ex-parte
4. For the O.P No.3              :-         Sri. C.R.Debata, Advocate & Associates
5. For the O.P No.4             :-          Sri. A.K.Sahoo, Advocate & Associates

 

Date of Filing:15.02.2017,Date of Hearing :29.11.2022Date of Judgement : 24.01.2023

Presented by Sri Sadananda Tripathy, Member.

1. The Brief fact of the Complainant is that the Complainant is a consumer of the OPs as defined under CP Act. The Complainant was in need of a true value old Indigo ecs LS and accordingly the Complainant approached the OP No. 1 who is a registered dealer dealing with four wheelers car etc. The OP No. 1 demanded an advance of Rs. 5000/- towards charges of Old car Indigo ecs LS bearing No. OD 15 A 9996 on dtd. 16.01.2016 and accordingly the advance money of Rs. 5000/- was deposited with the OP No. 1 on the same day. The OP No.1 instructed the Complainant to make rest payment of Rs. 2,65,000/- towards the full and final consideration amount by dtd. 20.01.2016, so that the Indigo Car will be delivered  and took all responsibility being the dealer. As per the instruction of the OP No. 1, on dtd. 20.01.2016, the consideration amount was deposited with the OP No. 1 by the Complainant, who in consequence where of granted receipt for Rs. 2,65,000/- vide M.R No. 859 dtd. 20.01.2016 and gave delivery possession of the Indigo Car to the Complainant on the same day. The above noted car was initially purchased by the OP No. 2 from the OP No. 1 and subsequently the OP No. 2 took another vehicle from him by exchanging the Indigo ecs LS No. OD 15 A 9996 and this facts could be ascertained by the Complainant on query from the OP No. 1 later. The Complainant gave Rs. 3,000/- towards meeting the expenditure for transfer of ownership in the name of the Complainant to the OP No. 1 with some signatures of the Complainant in some forms for effecting the transfer of ownership. On dtd. 03.02.2016 the Complainant received the RC from RTO, Sambalpur.  The Complainant had earlier a talk with the OP No. 4 with the knowledge of the OP No. 1 that finance for Rs. 1,50,000/- will be provided by the OP No. 4 to the Complainant under hypothecation of the Indigo ecs LS after the transfer of ownership of the said vehicle. And in the month of Feb-2016 the loan was sanctioned by the bank and in the month of March-2016, the loan by the OP Npo. 4 was released in favour of the Complainant. As per the terms of the loan account, the Complainant is required to make payment towards the loan amount in 26 monthly installment for Rs. 6400/- . The Complainant is discharging his duties and responsibility by making payment of the installment to the OP No. 4 from the month of March 2016 and a very negligent amount is left towards the said loan amount. On dtd 4^th Dec, 2016 the family members of the Complainant had come to Sambalpur for health check up of his old father but on the way in Sambalpur Town, some un-known persons forcefully tried take possession of the vehicle from the driver. But the driver by using his presence of mind succeeded to take the vehicle in to the campus of Dhanupali Police Station and parked the Car inside the Police Station. Since the father of the Complainant was very serious by then, he was shifted to the hospital by the driver along with the other family members by leaving the car inside. On dtd. 8^th December 2016, the father of the Complainant succmbed to his ailments and therefore the Complainant did not get opportunity to ascertain about the incident and car in the Police Station. In the month of Jan-2017 after completion rituals, the Complainant went to Dhanupali P.S to take the Indigo ecs LS back with him but on reaching the Police Station, he could ascertained from the authority of the Police Station that the vehicle is in Town Police Station at present. Therefore the Complainant was told by the Police that the United bank of India, Sonepur Branch, has filed a fraud case against one Biseswar Panigrahi who was initially the registered owner of the Indica Car which he had purchased under hypothecation in the said Bank and he has not cleared up the loan amount and he managed to get exchange the said car with a new one with the active knowledge of the OPs and the Complainant has been put to dark of the said fradulent act causing thereby irreparable loss, mental distress and agony and financial loss and now the Complainant is running from door to door of the OPs but they are intentionally avoiding to came to the rescue and the car is parked under the open sky in the Town P.S campus. From the above facts and circumstances, it is crystal clear the OPs have played mischief and have committed act of fraud causing thereby wrongful loss to the Complainant which amounts to deficiency in service by the OPs. 
2. The written version of O.P No. 1  is that the OP No. 2 had purchased one Indigo ECS LS TDI from the OP No. 1 in the year 2013. At the time of purchase the OP No. 2 had availed financial assistance from United Bank of India, Sonepur and the said vehicle was registered in the Office of R.T.O, Sambalpur i.e the OP No. 5 with hypothecation endorsement of United Bank of India, Sonepur. In the month of Dec, 2015 the OP No. 2 approached the OP No. 1 to purchase a new vehicle and requested the OP No. 1 to exchange his old vehicle and disclosed before the OP No. 1 that he had already repaid the loan which he had availed at the time of purchase of the vehicle and produced the R.C Book of the said vehicle and on verification the OP No. 1 found that the hypothecation endorsement was cancelled by the RTO Office with proper seal and signature , thereafter the OP No. 2 changed the class of vehicle from Car-Taxi to Car Private and produced the original RC Book before the OP No. 1. The OP No. 2 also produced the certified copy of RC Book obtained from the OP No. 5. The OP No. 1 also verified the ownership etc. in respect of the said vehicle from the official website of Government of Orissa Department of Transport and could confirm that the vehicle stands in the name of OP No. 2 and there is no hypothecation endorsement in respect of the said vehicle.  After verification of the documents the OP No. 1 assessed the rate of the vehicle to be Rs. 2,80,000/- and accordingly the OP No. 2 agreed for the exchange price of Rs. 2,80,000/- in respect of his old vehicle. Thereafter the OP No. 1 sold one Tata Sumo Gold EX to the OP No. 2 deducting Rs. 2,80,000/- towards the value of old vehicle. The OP No. 2 has also signed one declaration form mentioning therein that he is the registered owner of vehicle and he has exchange his vehicle with the OP No. 1 on 15.12.2015. After receipt of the vehicle from the OP No. 2 the OP No. 1 on a subsequent date sold the vehicle to the Complainant for a consideration amount of Rs. 2,70,000/-. On the basis of the documents signed and submitted by OP No. 2 the ownership of the vehicle was also changed in the name of the Complainant and the Complainant had received the RC Book by Regd. Post sent by the OP No. 5. As per law, unless and until the hypothecation agreement is not cancelled, the ownership of the vehicle cannot be changed in the name of any other person. Before disbursement of the loan by the OP No. 4 in favour of the Complainant, the OP No. 4 must have made necessary inquiries from the Office of the RTO, Sambalpur to satisfy itself about the ownership of the vehicle. However, the OP No. 1 is not aware about the monthly installment if any paid by the Complainant to the OP No. 4.   The Complainant appeared before the OP No. 1 on 15.12.2016 and disclosed before the OP No. 1 that the vehicle has been seized by the officials of United Bank of India, Sambalpur region on the ground that the borrower i.e the OP No. 2 had not repaid the loan in respect of the said vehicle and subsequently the OP No. 1 could learn that the OP No. 2 has managed to cancel the hypothecation clause from the RC Book of vehicle with the help of some staffs of RTO Office, Sambalpur even though he had not repaid the outstanding loan which he had availed in respect of purchase of the vehicle. After knowing the same the OP No. 1 tried to contact the OP No. 2 to take back the exchange price of Rs. 2,80,000/- but the OP No. 2 is avoiding the OP No. 1. The OP No. 2 with an intention to cheat the OP No. 1 had produced RC Book in respect of vehicle deleting the hypothecation clause and deducted Rs. 2,80,000/- towards purchase of another vehicle as exchange price. Immediately the OP No. 1 lodged report before the IIC, Town PS, Sambalpur who refused to receive the same and thereafter  filed complaint case ICC Case No. 26 of 2017 before the Hon’ble SDJM, Sambalpur against the OP No. 2 and Hon’ble SDJM, Sambalpur has been pleased to direct the IIC, Town PS, Sambalpur to register the case against the OP No. 2 and to investigate into the matter. So the OP No. 1 is in no way responsible in the matter and it is the OP No. 2 and some of the official of the OP No. 5 in connivance with each other made conspiracy between themselves and have deleted the hypothecation clause for their wrongful gain and hence, the OP No. 2 and the OP No. 5 are liable to pay the cost of the vehicle to the Complainant.

The written version of O.P No. 3 is that the aforesaid case filed at the instance of the Complainant against the OP No. 3 is not maintainable & liable to be rejected. The OP No. 3 is not a proper & necessary party in this case. Further the Complainant is not a consumer under the OP No. 3 nor any relief has been claimed against him. There is no deficiency of service by the OP No. 3 against the Complainant. The Indigo ecs LS car bearing No. OD 15 A 9996 had been purchased by OP No. 2 from he authorised dealer OP No. 1 being financed by OP No. 3 to the tune of Rs. 4,90,000/- after complying due Bank procedure and existing norms of the bank in the year 2013. The vehicle in question is under hire purchase/hypothecation agreement with OP No. 3 as per the provision of section 51 of the M.V Act. There is/was necessary entry to that affect in the R.C Book as well as on the records of the RTO, Sambalpur maintained by him for the car. The borrower/owner OP No. 2 has also executed hypothecation agreement with the bank OP No. 3 as well as he has handed over the duplicate key and the true copy of the registration certificate of the car to OP No. 3 as per procedure under the provision of M.V Act in support of H.P.A. The said borrow OP No. 2 has not yet repaid fully the loan amount and thewre is a balance and outstanding to the tune of Rs. 4,36,000/- against OP No. 2 the owner/borrower of the car in question and as such the H.P agreement has not been cancelled yet legally, and the entry in R.C Book regarding H.P agreement is still in existence. But the borrower/owner OP No. 2 in connivance with RTO staff Sambalpur and others person fraudulently by forging, manipulating and public documents and record has on 07.12.2015 managed to cancelled/omit the H.P agreement entry in the RC Book as well as in RTO records without the consent and behind the knowledge of OP No. 3 the UBI, Sonepur branch and also managed to sale/exchange the said car with OP No. 1.The OP No. 5 has also not complied with the provision of section 51 (10) of M.V Act. For the aforesaid fraudulent act and mischief of OP No. 2, the OP No. 3 after he knew the aforesaid fact of cheating and fraud has lodged a report/ complained before the IIC Town P.S. on 15.12.2016. The said report has may registered by the police a case U/s 468/471/34 IPC vide P.S Case No. 466/16 & G.R Case No. 3856/16. The investigation of the aforesaid case is going on sub-judice. The IIC Town P.S during investigation, seized the offensive car and is lying in the custody of police.

The written version of O.P No. 4 is that the Complainant is a customer who was desirous of availing loan to Re-finance a Vehicle for commercial purpose and approached the OP No. 4 for sanction of finance Rs. 1,50,000/- to which the OP No. 4 finance company agreed. Accordingly asked the Complainant to execute the vehicle loan cum hypothecation agreement which was executed between the Complainant and OP No. 4 and the said loan was disbursed. The Complainant has not produced an iota of evidence to prove there is any deficiency of service on the part of OP No. 4 and the Complainant has suffered any damages/injury to claim compensation. Hence, the complaint may be dismissed with exemplary cost. The Complainant was extremely reluctant to pay the said installments within time as provided under the said Agreement, despite repeated notices and reminders and personal follow up by the officers of OP No. 4 , the Complainant neglected and failed to make payment of his dues. The Complainant defaulted in payment of the loan installments of Rs. 38,000/- & other over dues of Rs. 12,670/- and has failed to pay the subsequent installments. In view of such continuous default of installment dues the OP No. 4 has approached the said Complainant through letters and personal contacts to pay the same but the said Complainant is deliberately and intentionally not clearing up the said dues and has retained the said vehicle under his custody without any reasonable excuse. As a result the OP No. 4 was constrained and compelled to take the lawful possession of the said vehicle after following the due procedure of law as per the terms and conditions in the agreements. So the Complainant has no case to say that the OP No. 4 has rendered any deficiency in service and in absence of such prima-facie case the complaint should be dismissed. Further advocate for the OP No. 4 filed copy of the RC Book and submitted that the OP No. 4 has no any liability and after verification of the RC Book re-finance has been made and also submitted that there is no any nexus with the Complainant relating to seizure of the vehicle as the previous owner is entangled in a fraud case.

The other OPs are set exparte.

3. From the facts and evidences it is found that the OP No. 1, 2 and 5 are deficient in their service while the OP No. 3 & 4 has no deficiency in service. The OP No. 1 who is a registered dealer dealing with four wheelers car etc., provided the disputed vehicle to the Complainant without proper verification.  The OP No. 2 in connivance with RTO staff Sambalpur and others person fraudulently by forging, manipulating and public documents and record has on 07.12.2015 managed to cancelled/omit the H.P agreement entry in the RC Book as well as in RTO records and exchanged the vehicle with the OP No. 1. Further the RTO staffs involved in the said fraudulent hypothecation cancellation for which the dispute arose and the said vehicle was registered in the name of the Complainant without previous cancellation of the hypothecation and instead of not clearning of the installments amount by the OP No. 2 to the OP No. 3. Accordingly the case is disposed of with following order:

                             ORDER

The O.P. No. 1 is directed to refund back all the amount paid by the Complainant and the amount deposited by the Complainant towards payment of loan amount to the OP No. 4 with 9% interest from the date of filing of the case to the Complainant. Further the OP No. 1, 2 & 5 are directed to pay Rs. 50,000/- each to the Complainant in terms of mental harassment, financial loss and sufferings on account of illegal seizure of the car by the police as compensation and Rs. 15,000/- towards cost of the petition to the Complainant within 30 days from the date of order, failing which the amount will further carry with 9% interest per annum till realization to the complainant.

Order pronounced in the open Court today on 24^th day of Jan, 2023.

Free copies of this order to the parties are supplied.