Punjab

Ludhiana

CC/21/542

Shashank Kapoor - Complainant(s)

Versus

Bajaj Finance Limited - Opp.Party(s)

complaint in person

13 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:542 dated 07.12.2021.                                                         Date of decision: 13.03.2024.

 

Shashank Kapoor S/o. Sh. Vinod Kumar Kapoor, Aged about 35 years, Resident of 64, Naseeb Enclave, Haibowal Kalan, Near Azad Gas Agency, Ludhiana. M-9464543499, Email-Shashankkapoor56@gmail.com

….. Complainant

                                                         Versus

1. M/s. Bajaj Finance Limited, Registered Office Mumbai-Pune Road, Akurdi-411035, Maharashtra through its Managing Director.

Branch Office- Ist Floor SCF-35G, BRS Nagar, Opp. Police Station, Orient Cinema Road, Ludhiana-141002.

2. Girnarsoft Automobiles Private Limited – Girnar 21, Govind Marg, Moti Doongri Road, Dharam Singh Circle, Jaipur, Rajashtan.

…..Opposite parties 

Complaint Under section 35 of the Consumer Protection Act, 2019 as amended up to date.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Shashank Kapoor in person.

For OP1                         :         Sh. Sumit Jain, Advocate.

For OP2                         :         Sh. Harsh Parpagga, Advocate for OP2.

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant with intention to purchase a car for his personal use, visited website of OP2 CARDEKHO where banks auction the repossessed cars from customers who are unable to pay off their loans. As the complainant dropped query on the website so he was called back by Mr. Kamal Bhagwat, employee of OP2, upon which the complainant forwarded identity and PAN documents as well as deposited an amount of Rs.18,850/- on 14.12.2020 including membership charges and refundable security in account of OP2. On activation of membership, the complainant was allowed for bidding for purchase of vehicle. According to the complainant, on 26.12.2020, he participated in online auction of a car Audi Q3 bearing registration No.UP16-AU-0023 and offered a bid for Rs.7,75,000/- and was a highest bidder as shown in the auction portal of OP2. On 28.12.2020, Mr. Krishan Rathore employee of OP2 vide whatsapp message informed regarding approval of bid by OP1 and the complainant should pay the amount in company account of OP1 for getting the vehicle released and further the documents should be provided by OP1.

                   The complainant stated that on 29.12.2020, he deposited the bid value of Rs.7,75,000/- through RTGS and also supplied an indemnity bond as per demand of OP1 which includes a clause for preference of Arbitration by arbitrator appointed by OP1 over legal recourse. The receipt of payment was confirmed by Jasvinder Singh and Vijay, employees of OP1. After checking the contents of indemnity bond, vehicle release order was issued in favour of the complainant to vehicle holding yard along with original registration certificate in the name of previous owner M/s. AJ Enterprises. On demand of documents regarding transfer of vehicle from employees of OP1, they assured the complainant to send the same on his mailing address within 30 days of release of vehicle. The complainant further stated that after many reminders and requests, on 02.02.2021, Jasvinder Singh forwarded scanned copy of No Objection Certificate on whatsapp. On further requests, few unfilled but signed forms of RTO for transfer of vehicle along with NOC were sent to complainant on 10.02.2021. On receipt of said documents, the complainant approached RTA for asking requirements for transfer of vehicle from Uttar Pradesh to Punjab enabling him to use the vehicle. He was asked to submit already available documents along with authority letter and KYC of partner and partnership deed and then the car will be registered as sale by earlier owner to this owner not as sale through auction by bank. So the complainant approached OP1 and OP2 regarding same but he was illegally persuaded into agreeing for transfer from seller to buyer and not as auction sale as OP1 would have to do certain legal formalities like issuing sale notice etc. which could not done as the car has been sold to the complainant. However, the complainant seeing no option had to agree even after protest.

                   The complainant further stated that he kept requesting for pending documents such as authority letter and KYC of partner and partnership deed but after few days Mr. Jasvinder Singh stopped answering his calls. Even the complainant sent reminder to Jasvinder Singh through whatsapp on 3^rd, 14^th, 16^th, 20^th and 22^nd March 2021 but no reply was received. Even another employee Mr. Ajay Singh of OP1 was in touch with the complainant who tried to coordinate the matter but all in vain. On 22.03.2021, Pan Card and Aadhar Card copies of earlier owner Firm’s partner was forwarded by Sh. Ajay Singh on whatsapp who told the complainant to wait for 3-4 months for remaining documents. Further, the complainant contacted Mr. Ashish Ramrakhyani the alleged partner of earlier owner firm M/s. AJ Enterprises, Noida through phone call who denied providing any documents. The complainant after waiting for 4-5 months as per promise of Ajay Singh employee of OP2, requested for getting documents through phone calls but to no avail. In last week of October 2021, the complainant in anger called Ajay Singh who provided Email addresses of few responsible employees of OP2. The complainant further stated that he was three times stopped by Traffic Authorities due to incomplete documents of the vehicle for which he had to face embarrassment and humiliation. On 03.11.2021, the complainant wrote Email to Email addresses  i.e.

2.                Upon notice, OP1 appeared and filed written statement by taking preliminary objections that on the ground of maintainability of the complaint; lack of jurisdiction; lack of jurisdiction; lack of cause of action; mis-joinder and non-joinder of necessary parties; suppression of material facts etc.  OP1 stated that a necessary documents for transfer of vehicle were provided to the complainant but instead to apply to RTO for transfer of vehicle has filed the present false and frivolous complaint. Even the possession of vehicle was given to the complainant after inspection of vehicle and documents and being satisfied, the complainant agreed to purchase the vehicle for consideration. The complainant also agreed in indemnity bond that all RTO related formalities with respect to transfer of ownership and NOC’s shall be done by him at his costs and consequences.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections and facts of the case. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.      

3.                OP2 filed a separate written statement and in preliminary submissions, OP2 stated that it is India’s leading car search venture who helps users to buy cars that are right for them and also engaged in providing offline auction services for sale of vehicle through website. OP2 is associated with numerous Banks/Financial Organizations/NBFC’s and offers their online and offline services at a fee calculated on the basis of consideration or as agreed upon between them. According to OP2, to become a registered bidder and participate in auction sale through their platform, user needs to pay nonrefundable annual registration fees of Rs.8850/- and non-interest bearing refundable security deposit of Rs.10,000/-. OP2 further stated that they have refunded the non-interest bearing refundable security amount of Rs.10,000/- to the complainant on 03.02.2022 in his bank account No.10014927059 but balance Rs.8850/- cannot be refunded back as the complainant had availed the services of OP2. OP2 further stated that by virtue of agreement dated 10.03.2017 and 08.04.2019, OP2 agreed to provide auction services to OP1 for sale of vehicle financed by it. Further as per cause 3.3/4.4 of Service Provider Agreement dated 10.03.2017 between Op1 and OP2, OP2 is merely a conduit for sale of vehicles and sale-purchase transaction is strictly a bipartite contract between OP1 and buyer in any which way for which OP2 is not liable for any act or omission on the part of OP1. As such, OP2 is not a necessary nor a proper party for adjudication of the present complaint.

                   Under the column of parawise reply, OP2 reiterated the crux of averments made in the preliminary objections and facts of the case. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                The complainant filed replication to the written statement of OP1 reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement of OP1.

5.                Further the complainant filed replication to the written statement of OP2 reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement of OP2.

6.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 to Ex. C7 are the copies of screenshots of whatsapp chat, Ex. C8 are the copies of Emails correspondence, Ex. C9 is the copy of documents issued by OP1 i.e. No objection for deletion of hypothecation, removal of insurance hypothecation,Form-35, Form-26, No Objection Certificate, Form 28, Ex. C10 is the copy of certificate of insurance w.e.f. 06.09.2021 to 05.09.2022, Ex. C11 is the copy of certificate of insurance w.e.f. 06.09.2022 to 05.09.2023, Ex. C12 is the copy of receipt of Transport Department of Government of India, Noida, Ex. C13 is the copy of RC particulars of vehicle, Ex. C14 is the copy of screen shot of whatsapp chat and closed the evidence.

7.                On the other hand, counsel for OP1 tendered affidavit Ex. RA of Ms. Shivani Garg, Cluster Manager of OP1 along with document Ex. R1 is the copy of partners authorization letter of AJ Enterprises, Ex. R2 is the copy of partnership deed of AJ Enterprises, Ex. R3 is the copy of deed of amendment of AJ Enterprises, Ex. R4 is the copy of PAN Card of AJ Enterprises, Ex. R5 is the copy of Aadhar Card of Ashish Ramrakhyani, Ex. R6 is the copy of PAN Card of Ashish A Ramrakhyani, Ex. R7 is the copy of Aadhar Card of Nidhi Dixit, Ex. R8 is the copy of indemnity bond for release of vehicle, Ex. R9 is the copy of vehicle release order dated 29.12.2020 and closed the evidence. 

                   Learned counsel for OP2 tendered affidavit Ex. R2/A of Sh. Ajay Singh, authorized representative of OP2 along with document Ex. OP2/1 is the copy of authority letter, Ex. OP2/2 is the copy of Addendum Service Provider Agreement dated 08.04.2019, again OP2/2 is the copy of Service Provider Agreement dated 10.03.2017, Ex. OP2/3 is the copy of bidder terms and conditions, Ex. OP2/4 is the copy of refund of deposit and closed the evidence.

8.                We have heard the arguments of the counsel for the parties and also gone through the complaint, replications, affidavit and annexed documents and written statements along with affidavits and documents produced on record by both the parties. We have also gone through written arguments submitted by the complainant as well as OP2.

9.                OP2 is a service provider engaged by OP1 for providing online and offline services for the sale of OP1 Company’s pre-owned, repossessed or surrendered vehicles. Besides, this, OP2 claims to have  business tie-ups with other banks and financial institutions. For this purpose, OP2 maintains an online market platform such as auctions.cardekho.com and www.cardekhoauctions.com. The complainant who intended to purchase a car for his personal use, availed services of OP2 by making a payment of Rs.18,850/- inclusive of membership fees and refundable security on 14.12.2020 and the complainant was enrolled as an active member and became eligible to participate in auction on the portal of OP2. On 26.12.2020, the complainant was declared a successful bidder in an online auction of car Audi Q3 bearing registration no.UP16-AU-0023 previously owned by M/s. AJ Enterprises. On getting intimation with regard to approval of bid, the complainant paid an amount of Rs.7,75,000/- being bid value in the bank account of OP1. The complainant being buyer executed an indemnity bond Ex. R8 with seller OP1, seer. The relevant terms of Ex. R8 reads as under:-

“2. The Buyer has inspected the said asset, its documents available with the seller, and after being satisfied with the condition of the Asset buyer has agreed and expressly accepted to purchase the said Asset against the total consideration mentioned in Schedule-1 and Seller has agreed to sell the said Asset for the said consideration.

4.iv. All RTO related formalities with respect to transfer of ownership and NOC’s shall be done by the buyer at his cost and consequences.

5. The buyer further agrees that, he/she shall get transfer the ownership of the vehicle in his/her name as early as possible and all charges and fees with this regard shall be solely born by the buyer.”

Accordingly, the release order Ex. R9 was issued in favour of the complainant. The OPs had represented and assured the complainant that he will get all the requisite documents so to facilitate seamless transfer of the vehicle in favour of the complainant.  The complainant received certain documents but authority letter, KYC of partner and partnership deed of M/s. AJ Enterprises (previous owner) was not provided by the OPs. The complainant repeatedly contacted the OPs telephonically as well as through Emails but failed to get the desired results. Even the employees of the OPs, who were interacting with the compalinant during the pre-auction period refused to attend and respond to the calls and concerns of the complainant. A detailed Email dated 03.11.2021 Ex. C8 also failed to resolve the issue which led to the filing of present complaint on 07.12.2021.

10.              During the course of proceedings of this complaint, the required documents such as Ex. R1 partners authorization letter of AJ Enterprises Ex. R1, partnership deed of AJ Enterprises Ex. R2, deed of amendment of AJ Enterprises Ex. R3, PAN Card of AJ Enterprises Ex. R4, Aadhar Cards as well as PAN Cards of partners of AJ Enterprises Ex. R5 to Ex. R7 were shared with the complainant. From the chronology of the events, it is evident that there is an inordinate and unexplained delay of more than one year on the part of the OPs for supplying the desired documents to the complainant. All the sincere efforts made by the complainant have fallen to the deaf ears of the officials of the OPs. OP2 also cannot escape from its liability by saying that its role was confined till auction proceedings. It is OP2 who subscribed the complainant as member and it was its bounden duty to negotiate and deliver the vehicle along with compete set of legal and valid title documents required for the purpose of transfer of vehicle in the name of the complainant. For want of registration certificate in his name, the complainant could not make an effective and complete use of the vehicle. The act and conduct of the OPs amounts to deficiency in service and adoption of trade practice which entitles the complainant for awarding of compensation. In this regard, reference can be made to Magma Fincorp Limited Vs Ashok Kumar Arya in Revision Petition No.2387 of 2019 decided on 05.04.2021 whereby the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held as under:-

“9.    Both the Foras below have righty concluded that when the tractor was sold to the respondent on “as is where is” basis, it was the duty of the petitioner to hand over all the relevant documents on the date the vehicle was sold. The petitioner has not handed over original RC containing the name of the original owner of the said vehicle. When the property sold on “as is where is”, all the documents showing the ownership of that property, lies with the seller, are required to be handed over to the purchaser. If that is not done, it could either mean that the vehicle does not legally vest in the seller or the seller has illegally obtained the possession of vehicle and it would amount to cheating an innocent buyer into buying a property. If the seller had a valid document to prove the ownership of the sold property, it is his bounden duty to hand over the documents.”  

11.              The complainant in the prayer has sought directions to the OPs to get back car Audi Q3 and to refund the amount of Rs.7,75,000/- as well as membership charges of Rs.18,850/- along with interest @12% per annum on said amounts. Besides, the complainant has sought directions to the OPs to pay amount spent on periodic service, insurance along with compensation of Rs.5,00,000/- and litigation expenses of Rs.25,000/-. The complainant himself has pleaded that he has got the vehicle insured from The New India Assurance Co. Ltd. w.e.f. 06.09.2021 to 05.09.2022 vide policy Ex. C10 by paying premium of Rs.16,433/- and further got insurance from National Insurance Co. Ltd. w.e.f. 06.09.2022 to 05.09.2023 vide policy Ex. C11 by paying premium of Rs.14,260/- in the name of previous owner M/s. AJ Enterprises. Perusal of Ex. C10 and Ex. C11 shows that the Insured Declared Value of the vehicle was Rs.10,74,773/- and Rs.10,74,780/- respectively i.e. more than amount invested by the complainant for purchase of car. Further the complainant has claimed to spent Rs.12,800/- on the periodic maintenance of the car. The complainant has also pleaded that he was also stopped by the traffic police thrice when he was driving the vehicle on the road. So it can be easily deduced from the aforesaid averments of the complainant himself that he got the delivery of fully functional car after the auction which continued to remain defect free till the filing the complaint. It is not the case of the complainant that the OPs have prevailed upon him to purchase a car which was having a defect and was not in a roadworthy condition. So the complainant failed to make a case for refund of amount of Rs.7,75,000/- along with non-refundable amount of Rs.8850/-. So accordingly the prayer is declined. Therefore, considering the peculiar facts and circumstances of the case, the complainant is only entitled to the composite costs of Rs.50,000/- to be jointly and severally paid by the OPs to the complainant.

12.              As a result of above discussion, the complaint is partly allowed with direction to the OPs to jointly and severally pay composite costs of Rs.50,000/- (Rupees Fifty Thousand only) within 30 days from the date of receipt of copy of order, failing which the complainant shall be held entitled to interest @8% per annum from the date of order till it actual payment. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                                       (Sanjeev Batra)

Member                                                     President    

 

Announced in Open Commission.

Dated:13.03.2024.

Gobind Ram.