BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 471 of 2015
Date of Institution: 30.7.2015
Date of Decision: 15.6.2016
Ashwani Enterprises, A-220, Ranjit Avenue,Amritsar through its Partner Sh. Kewal Krishan Gupta aged 75 years
Complainant
Versus
- ANR Motors (P) Ltd. (Castle Toyota) Daburji,G.T. Road, Near Bye-Pass, Amritsar, through its Chairman/Managing Director/Director/Principal Officer
- HDFC Bank Ltd., Branch Mall Road, Amritsar through its Branch Manager
Opposite Parties
Complaint under section 12 & 13 of Consumer Protection Act, 1986
Present: For the Complainant : Sh. Updip Singh,Advocate
For the Opposite Party No.1 : Sh.Kanwar Pahul Singh,Advocate
For Opposite party No.2 : Sh. Anil Sharma,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Ashwani Enterprises through its partner Sh.Kewal Krishan Gupta, has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant is a partnership firm wherein the partners are working to earn livelihood and for self employment. Complainant firm is doing retail trading of sanitary goods. On 8.9.2014, complainant firm purchased one vehicle Toyota Innova bearing Chassis No. 7482527, Engine No. V609324 from opposite party No.1, who are authorized dealers of Toyota working under the name and style of Castle Toyota. The said vehicle was purchased by the complainant firm for personal use of the partner Sh.Kewal Krishan Gupta, who is a senior citizen and aged 75 years.Sh. Kewal Krishan Gupta is also suffering from age related ailments. As per the scheme for sale prevailing at the time of sale, the complainant firm was to make payment of Rs. 14,19,829/- to opposite party No.1, which included cost of vehicle Rs. 12,79,630/-, Rs. 3550/- as logistic charges, Rs. 50,246/- for insurance, Rs.14,952/- for smile pack & Rs.69,320/- registration charges. Accordingly, complainant firm made the payment of Rs. 6,19,829/- vide challan No.000615 dated 8.9.2014. The balance of Rs. 8 lacs was to be paid by the HDFC Bank Ltd. as Rs. 8 lacs was taken as loan from opposite party No.2. Thus opposite party No.1 gave delivery of the vehicle bearing Temporary registration No. PB-02-TBW-3399 vide delivery challan dated 8.9.2014 and insurance cover of ICICI Lombard General Insurance dated 8.9.2014 and further issued sale invoice dated 8.9.2014. Registration of the vehicle with transport department was to be done by the opposite parties at their end as per the ongoing policy of the State Government. When the complainant did not get registration certificate of the vehicle until 7.10.2014, the date of expiry of temporary registration, representative of the complainant firm visited opposite party No.1 for knowing status of the same , but initially no reason was given for the same. Ultimately opposite party No.1 demanded Rs. 21000/- more on the pretext that since State Government has increased Road Tax on the vehicles from 6% to 8% of the invoice value w.e.f 8.10.2014, therefore complainant firm was liable to make payment of the same . It was the duty of the opposite parties to deposit the registration charges immediately, after receiving the sale price from the complainant. RC of the vehicle of the complainant was prepared by opposite party No.1 only after the complainant paid Rs. 21000/- more to opposite party No.1 vide Challan No. 000732 dated 11.12.2014 under compulsion and under protest vide letters dated 3.12.2014, 4.12.2014 and 11.12.2014 . When complainant lodged written protest with opposite party No.1 with regard to charging of Rs. 21000/-in excess for registration of the vehicle , opposite party No.1 took excuse that since opposite party No.2 made part payment of the loan in the first instance and the balance was received by them on 4.10.2014 only subsequently, they got the process of preparing RC initiated and by then the road tax had already increased, despite the fact that the charges for road tax and other miscellaneous charges for preparation of RC were given to opposite party No.1 separately at the time of purchase of the vehicle. Even, otherwise also, if opposite party No.2 has sent part of loan amount at a belated stage to opposite party No.1 , complainant is not at fault and he cannot be made to suffer for the same. The act of opposite party No.1 in not depositing the road tax of the vehicle of the complainant, which was part of the package and then charging over and above the agreed amount of the package, has resulted into harassment, mental agony as well as financial loss to the complainant which is in itself a deficiency in service for which opposite parties are liable to compensate the complainant. The complainant has sought the following reliefs vide instant complaint :-
i) Compensate Rs. 21000/- with interest to the complainant for enhanced road tax by the complainant ;
ii) Pay further Rs. 50000/- for harassment and mental agony and financial loss .
iii) Pay cost of complaint to the tune of Rs. 11000/-./
Hence, this complaint.
2. Upon notice, opposite parties No.1 & 2 appeared and contested the claim of the complainant by filing separate written statements.
3. In its written statement, opposite party No.1 took certain preliminary objections therein inter alia that complainant does not fall under the definition of “consumer”. The car was purchased by the firm M/s. Ashwani Enterprises as is clear from the Sales Invoice. It was never purchased in the name of the complainant. All the documents are in the name of the firm.The car was not purchased exclusively for the purpose of earning livelihood by means of self employment by the partner of the said firm. The car was not for earning livelihood of the partner or for his personal use. The complainant has to use the car only for commercial purposes and that is why the same was purchased in the name of the firm for use by the partner, who is to carry on the business of the firm. The use of the car was meant for running the business of the firm which itself is a commercial transaction. Thus, the complainant is not consumer and the present complaint is not maintainable under Consumer Protection Act , as such, the same deserves dismissal on this score alone ; that complainant has no locus standi to file the present complaint ; that the complainant has suppressed and concealed the material facts from this Forum and as such he is not entitled to any relief as prayed for ; that the complainant is stopped by his own act/omissions or commissions from filing the present complaint, as such the complaint is not maintainable in the eyes of law. On merits it is specifically denied that partners of the complainant firm are working to earn livelihood and for self employment. The business of doing retail trading of sanitary goods cannot be carried out solely by partners of the said firm. The complainant has not mentioned that who are the partners of the said firm and how many persons are partners of said firm. The complainant has not mentioned how many employees are there, who are working for carrying out the said business, since without employees said business cannot be carried out, details were required to be given. The complainant has not attached the list of the partners of the said firm nor the list of employees of the firm. It is admitted that complainant firm purchased said vehicle from opposite party No.1. It is denied that vehicle was purchased by the complainant firm for personal use of its partner as alleged. The story has been coined just with a view to invoke the jurisdiction of this Forum and to save the court fee which was payable for proceeding in Civil Court. It is denied that representative of the complainant firm visited opposite party No.1 for knowing the status of the registration but no reason was given for the same. As and when the representative of the complainant firm came or contacted the opposite party No.1 for knowing of the status of registration, he was told that the total sale price of the car has not been paid either by complainant or his banker, as such the R.C. was not applied by opposite party No.1. It is denied that complainant firm had already made payment of RC amount much before 8.10.2014 and accordingly it was the duty of the opposite parties to deposit the same immediately. As a matter of fact the complainant or his banker has not paid total amount of the car including all expenses such as RC etc till 5.10.2014. So opposite party No.1 was unable to deposit the charges of RC with the concerned department before that day. It is also pertinent to mention here that the website for depositing the amount of RC was closed in the month of September and it was opened in the first week of October i.e. 8.10.2014 with the increased amount of road tax by 2% i.e. from 6% to 8%, as such Rs. 21000/- more was demanded from the complainant on account of increased charges of road tax, which he was liable to pay. There is absolutely no deficiency in service on the part of opposite party No.1.
4. In their written version opposite party No.2 took certain preliminary objections therein inter alia that the present complaint is bad for want of cause of action against the replying opposite party. Hence, complaint against opposite party No.2 is liable to be dismissed ; that opposite party No.2 has been dragged into unwanted litigation, for that opposite party No.2 reserve its legal right to take appropriate action against the complainant ; that present complaint is legally not maintainable against opposite party No.2 ; that complainant is stopped by his own act and conduct from filing the present complaint ; that replying opposite party has no concern with the alleged dispute which has arisen between complainant and opposite party No.1 ; that vehicle in question has been purchased for commercial purposes . The loan is in the name of firm M/s. Ashwani Enterprises, hence present complaint is not legally maintainable and dispute is not covered under the ambit of Consumer Protection Act. On merits , facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.
5. Complainant tendered into evidence copy of bill dated 8.9.2014 Ex.C-1, copy of Insurance cover note Ex.C-2, copy of registration certificate Ex.C-3, copy of letter dated 4.12.2014 Ex.C-4, copy of letter dated 11.12.2014 Ex.C-5, copy of e-mail between the parties Ex.C-6, copies of treatment record of Kewal Krishan Gupta Ex.C-7 & C-8 , affidavit of Sh.Kewal Krishan Gupta Ex.C-9 and closed the evidence.
6. To rebut the aforesaid evidence, opposite party No.1 tendered into evidence affidavit of Sh.Rakesh Kapoor, GM Finance Ex.OP1/1, copies of e-mails Ex.OP1/2 and Ex.OP1/3, copy of ledger account of the complainant Ex.OP1/4 and closed the evidence on behalf of opposite party No.1.
7. On the other hand opposite party No.2 tendered affidavit of Sh.Bhupinder Kumar, Asstt.Manager (Legal) Ex.OP2/1, copy of account statement Ex.OP2/2, copy of account statement of M/s. ANR Motors Ex.OP2/3 and closed the evidence on behalf of opposite party No.2.
8. We have heard the ld.counsel for the parties and have also gone through the written synopsis of arguments submitted on behalf of complainant as well as opposite party No.1.
9. On the basis of the evidence on record, ld.counsel for the complainant has vehemently contended that it is not denied that complainant purchased one vehicle Toyota Innova bearing Chassis No. 7482527, Engine No. V609324 from opposite party No.1, who are authorized dealers of Toyota working under the name and style of Castle Toyota. The said vehicle was purchased by the complainant firm for personal use of the partner, Sh.Kewal Krishan Gupta, who is a senior citizen and is suffering from age related ailments. As per the scheme for sale prevailing at that time, the complainant firm was to make payment of Rs. 14,19,829/- to opposite party No.1 which included cost of vehicle Rs. 12,79,630/-, Rs. 3550/- as Logistic charges, Rs. 50,246/- for insurance , Rs.14,952/- for Smile Packs, Rs.69,320/- for Registration charges. The complainant firm made the payment of Rs. 6,19,829/- vide Challan No. 000615 dated 8.9.2014. The balance amount of Rs. 8,00,000/- was to be paid by HDFC Bank which was obtained as a loan from opposite party No.2. Opposite party No.1 gave delivery of the vehicle bearing Temporary Registration No. PB-02-TBW-3399 vide delivery challan dated 8.9.2014 and insurance cover of ICICI Lombard General Insurance dated 8.9.2014 and further issued sale invoice dated 8.9.2014 Ex.C-1. Registration of the vehicle with transport department was to be done by opposite parties at their end as per the ongoing policy of the State Government. It is further contended that complainant did not get the RC of the vehicle until 7.10.2014 i.e. date of the expiry of the temporary registration. The complainant approached opposite party No.1 for knowing the status of the registration certificate. But however, opposite party No.1 demanded Rs. 21000/- more on the pretext that the State Government has increased road tax on the vehicles from 6% to 8% w.e.f 8.10.2014, therefore, complainant firm was liable to make the payment of the same inspite of the fact that complainant already made payment of the RC amount much before 8.10.2014.
10. Ld.counsel for the complainant has vehemently contended that the complainant has proved that car in dispute for personal use of the partner of the complainant firm namely Sh.Kewal Krishan Gupta because he was an old person and suffering from age related ailments. No business of the firm was to be carried out by Sh.Kewal Krishan Gupta with the help of the car in dispute . As such the complainant firm has proved itself to be a consumer under opposite parties No.1 & 2. Reliance in this regard has been placed on Controls & Switchgear Company Ltd. Vs. Daimlerchrysler India Pvt.Ltd 2007(3) CLT 327 (NC) para14 which reads as under :-
“In our view, there is no substance in the aforesaid contention , because (i) company is a legal entity and is entitled to file complaint.(ii) The cars are purchased for the use of the Directors and are not to be used for any activity directly connected with commercial purpose of earning profit. Cars are not used for hire but are for the personal use of the Directors. Hence, it cannot be said that the complainant company has purchased cars for commercial purpose.”
Further reliance has been placed upon Deepak K. Raman Vs. Maruti Udyog Ltd.& Anr. 2010(3) CPC page 296 (NC) wherein it has been laid down that merely because it has been purchased by a partnership firm , it could not be said that vehicle in question was purchased for any commercial purpose because it was neither intended to be resold with a view to earning any profit etc nor for running it as a commercial transport. We are,therefore, unable to uphold the said finding of the State Commission.
11. It has been further contended by ld.counsel for the complainant that Rs. 21000/- has been wrongly charged by opposite party No.1 for preparing the registration certificate of the car in dispute on the pretext that payment of sanctioned loan amount was received at a belated stage . Whereas in the written statement , opposite party No.2 has specifically stated that the loan in dispute was sanctioned and paid on 24.9.2014, as such fault, if any, lay upon either opposite party No.1 or opposite party No.2 and the complainant cannot be blamed for enhancement of road tax by the State Government from 6% to 8% w.e.f 8.10.2014. The complainant protested regarding the over charging of Rs. 21000/- and also issued letters, copies whereof are Ex. C-4, Ex.C-5 and Ex.C-6 on record. As a matter of fact registration charges were to be paid separately and the same were not part of the amount given on loan by opposite party No.2 . When opposite party No.1 has already obtained requisite fee for registration charges from the complainant at the time of delivering the car in dispute on 8.9.2014, there was absolutely no reason that opposite party had to over charge an amount of Rs. 21000/- on account of alleged enhancement of road tax by the State Government from 6% to 8%. It is, therefore, contended that opposite parties No.1 & 2 are deficient in service and therefore, they may be directed to refund Rs. 21000/- with interest for enhanced road tax paid by the complainant, Rs. 50000/- for harassment and mental agony and Rs. 11000/- as litigation expenses accordingly.
12. But however, from the appreciation of the facts and circumstances of the case, it becomes evident that the present complaint has been filed by the firm which is carrying on its business under the name and style of M/s. Ashwani Enterprises. The car is also registered in the name of said firm. Though the complainant pleaded in his complaint and further stated in his affidavit that firm is doing business for earning livelihood and for self employment yet the complainant has totally failed to prove the same by cogent and convincing evidence. The complainant has not led any evidence to prove how many partners are there in the firm, who are running the business. What was theturn over or income and expenses of the said firm from which it could have been proved as to whether firm was doing small business or it was running a large scale business ? But no such evidence was adduced for the reasons best known to the complainant. Therefore, adverse inference that the firm was not working for earning livelihood of the partners can be drawn against the complainant. Reliance in this connection can be placed upon Pharos Solutions Pvt.Ltd.-Complainant Vs. Tata Motors Ltd. & Ors.-Opposite parties IV(2014) CPJ 525 (NC), wherein it has been laid down that car in hand not purchased exclusively for the purpose of earning livelihood by means of self employment for the legal Director of the company. It is not for the livelihood of the Director or personal use of the Director. He has to use the car only for commercial purposes. There is no resolution for purchase of car. In case the companies are allowed to save the Court fees, the very purpose of ordinary consumer or as defined by the Act shall stand defeated. Consequently, we find that the present case is not maintainable and the same is, therefore, dismissed in limine. The law laid down in the judgement supra is fully applicable to the facts of the present case and this being the latest judgement of the Hon’ble National Commission is binding in preference to Deepak K. Raman Vs. Maruti Udyog Ltd.& Anr. (supra) relied upon by the complainant.
13. Not only that even on merits, it becomes amply clear that complainant had not paid the entire amount of the vehicle at the time of the delivery. The complainant purchased the car on 8.9.2014 and Rs.25,688/- were due from the complainant which he did not pay to opposite party No.1 until 5.10.2014. Ex.C-4 is the document whereby the complainant has admitted this fact that he had paid the said amount on 5.10.2014 to opposite party No.1 vide document Ex.OP1/2. It is proved that said amount was paid by the complainant vide cheque bearing No. 000676 HDFC Bank, copy whereof is Ex.OP1/4. Immediately, thereafter, opposite party No.1 applied for RC of the complainant which was issued in favour of the complainant. The excess amount charged from the complainant was nothing but an increased road tax which was enhanced by the Government without any prior notice w.e.f. 8.10.2014. From 29.9.2014 to 7.10.2014, the DTO site was closed and when it became operational, there was already increase of tax by 2% as such how opposite party No.1 could have deposited the tax on 5.10.2014 when the site was closed. The said fact was duly intimated to the complainant via e-mail copy whereof is Ex.OP1/3. Opposite party No.1 has proved the closure of the site between 29.9.2014 to 7.10.2014 by duly sworn affidavit but no counter affidavit has been filed to disprove the said fact by the complainant despite the fact that the complainant has tendered his affidavit in evidence after tendering the affidavit of opposite party No.1. The complainant has just tendered affidavit in verbatim to what was stated in the complaint. As such the complainant impliedly admitted the fact of the closure of the site during the relevant period . So when the complainant did not pay the entire amount to opposite party No.1 until 5.10.2014 and the site was closed uptil 7.10.2014 and it became operational on 8.10.2014 only with already increased tax by 2%, opposite party No.1 cannot be fastened with the liability to pay the amount of increased tax. The complainant was liable to pay the amount of the said increased tax as he himself was in default. It is now settled that delay if any occurred in giving the RC was due to balance amount , which the complainant was required to pay. Therefore, the delay, if any, with regard to registration of vehicle, was due to outstanding amount against the complainant which was deposited by him in the month of October. Therefore, no deficiency can be found with regard to registration number because the complainant himself was in default. It has been so held in recent judgement of the Hon’ble Punjab State Commission passed in case Ms. Meenu Kapoor Versus Pioneer Hyundai and others FA No. 918 of 2015 decided on 4.1.2016. The said judgement is applicable to the facts of the present case of all its fours. As such no deficiency in service is attributable to opposite parties No.1 & 2 and the complaint filed by the complainant is devoid of any merit.
14. Consequently, in view of the aforesaid discussion, the instant complaint fails being meritless and the same is ordered to be dismissed. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 15.6.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
