Complaint filed on: 17-12-2015 Disposed on: 20-10-2016
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No. 143/2015
DATED THIS THE 20th DAY OF OCTOBER 2016
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
Niranjana Murthy,
S/o. Halappa,
Aged about 45 years,
R/at Bommanahalli,
C.N.Halli Taluk,
Tumakuru district
(Advocate by Sri.Mallikarjunaiah)
V/s
Opposite parties:-
- Bellad Engineers Pvt. Ltd,
Reptd by its Manager/
Executive Sales,
Authorized dealers for commercial TATA Motor
Vehicles, Head Office,
Bellad Chamber III,
Unkal Cross, Vidhya Nagara,
Hubbali – 580031
- Bellad Engineers Pvt. Ltd,
Reptd by its Manager/
Executive Sales, Branch office, KIADB Industrial Area,
Bypass Road, Antharasanahalli,
Tumakuru
- TATA Motor Finance Ltd,
R/by Managing Director,
No.51, Lee-pare Richmonds,
1st Floor, Richmond Road,
Opp. To Canara Bank,
Above City Bank ATM,
Bengaluru – 560 025
- TATA Motor Finance Ltd,
R/by Manager, Branch office,
Shiny Towers, Shivakumara Swamiji Circle, Tumakuru
(OPs No.1 and 2 by Krishna Hegde-Advocate)
(OPs No.3 and 4 by M.S.Tharun Kumar-Advocate)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint is filed against the OPs No.1 to 4, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OPs to pass an order by awarding a sum of Rs.11,24,000=00 together with interest of 18% p.a. to recover the same from the Ops together with cost of this proceedings and pass such other relief as prayed in the complaint, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The 1st OP is the authorized dealer of TATA Motors, Commercial Vehicles at Hubbli and also having branch office at Industrial Area, Antharasana Halli, Tumakuru.
The complainant further submitted that, he had approached the 2nd OP for seeking invoice to purchase the TATA Motors ACE-DICOR commercial vehicle and the 2nd OP had issued invoice for a sum of Rs.4,11,609=00. Thereafter the complainant approached the OPs No.3 and 4 for financial assistance. The Ops no.3 and 4 have agreed to lend the financial assistance to the complainant to purchase the said vehicle from the Ops no.1 and 2. Accordingly the Ops no.1 and 2 have collected a sum of Rs.5,000=00 and issued cash receipt dated 2-9-2014 and further collected a sum of Rs.1,15,000=00 from the complainant and issued receipt dated 23-9-2014 towards advance for purchase of TATA Motor ACE-DICOR and the remaining amount as per the invoice was financed by the Ops No.3 and 4. At the time of sanctioning the loan amount, the Ops no.3 and 4 has taken four blank cheques from the complainant towards security of the loan under cheques bearing Nos.000044 to 000047 drawn on HDFC Bank, Tipaturu branch. The Ops No.3 and 4 are liable to return the blank cheques to the complainant and the complainant is not liable to pay the further loan amount to the Ops no.3 and 4.
It is further submitted that, the Ops No.3 and 4 who have sanctioned the loan to the complainant have sent the remaining amount to the 1st and 2nd OP and accordingly the Ops no.1 and 2 have called upon the complainant at Tumakuru branch office on 25-11-2014 and issued Delivery Note No.359 in respect of TATA Motors ACE-DICOR, vehicle Chassis No.MAT445452 E2J41118 and Engine No.08LNACRAIL50JVY594929 to the complainant. Further, the OPs no.1 and 2 will get the registration of the vehicle for which they have collected the amount and deliver the said vehicle to the complainant.
It is further submitted that, as per the terms of hire purchase and hypothecation conditions of the vehicle , the Ops no.3 and 4 ought to have signed to Form No.20 under the Motor Vehicle Rules to get the registration of the said vehicle. The Ops no.1 and 2 being the service providers in dealing with the business of TATA motors vehicles have committed deficiency in service and have not got vehicle registered by getting the signature through Form No.20 by the Ops no.3 and 4, thereby all the Ops no.1 to 4 have committed default and also deficiency in service of which caused loss and damages to the complainant and they failed to get the registration of the vehicle and to hand over the same to the complainant.
It is further submitted that, 2nd OP had prepared delivery note on 25-11-2014 and handed over the said vehicle without getting registered at the Tumakuru RTO office. The OPs submitted that they will get the registration of the vehicle by getting the Form No.20 signed from the 4th OP and they will process the same within two days and intimate the complainant. But the Ops no.2 and 4 have failed to get the registration of the vehicle and the 2nd OP had taken back the said vehicle on 27-3-2015 and issued acknowledgement for having taken the redelivery and further agreed to get the registration of the vehicle within two days. But all the Ops have failed to get the registration of the said vehicle and handover the same to the complainant, thereby committed deficiency in service as per the contract.
It is further submitted that, the complainant could not able to ply the vehicle on road without registration, the Ops no.3 and 4 have collected the monthly premium towards loan in a sum of Rs.1,26,000=00 as on 2-9-2015.
It is further stated that, from 25-11-2014 the complainant had sustained a loss and damages @ Rs.2,000=00 per day as the OPs have failed to deliver the vehicle as per the contract of service. In view of the deficiency in service made by all the Ops, the complainant did not want to get the delivery of the vehicle and thereby the complainant had demanded them to pay back the amount received by them together with interest @ 18% p.a. by causing legal notice dated 3-11-2015 which was served on the Ops no.1 to 3 and notice issued to the 4th OP was returned with postal shara “door locked”. The OP No.3 had evasively replied, but the Ops no.1, 2 and 4 failed to answer the legal notice and kept quite.
It is further submitted that, all the Ops are liable to pay Rs.1,20,000=00 which was received by the Ops no.1 and 2 and Rs.1,26,000=00 which was received by the 4th OP together with interest @18% p.a. and to pay Rs.7,68,000=00 together with interest @ 18% p.a. towards loss and damages caused to the complainant from 26-11-2014 to 14-12-2015 and to pay Rs.1,00,000=00 towards incidental charges spent by the complainant from 25-11-2014 till 3-11-2015 and Rs.10,000=00 towards legal notice and further incidental charges. In all the Ops no.1 to 4 are liable to pay a sum of Rs.11,24,000=00 together with interest @ 18% p.a. to the complainant. Hence the present complaint is filed.
3. After service of the notice, the OPs No.1 to 4 have appeared through their counsel.
4. The OPs No.1 and 2 have filed their common objections and pleaded that, allegations made in the complaint against these OPs are false, concocted and fabricated as per the will and fancy of the complainant just to file the complaint with malafide intention, hence the same is denied in toto.
It is further submitted that, the Ops no.1 and 2 are dealers sold the vehicle to the complainant, but they have collected Rs.5,000=00 and Rs.1,15,000=00 etc. are denied. However, it is true that, the part of amount of purchase was paid through financing. After receipt of the price of vehicle, the vehicle was delivered on compliance of necessary formalities to the complainant.
It is further submitted that, the OPs no.1 and 2 are only dealers and on sale of vehicle, they have to issue sale letter for enabling the purchaser for getting registration of the vehicle. Exactly here, the responsibility of the dealers ends with respect to registration of the vehicle. However, these OPs also have got done temporary registration of the vehicle while delivering the vehicle to complainant.
It is further submitted that, the complainant has approached the OPs no.1 and 2 requesting to sell TATA Ace vehicle and accordingly he chosen to purchase Silver Coloured TATA Ace vehicle which was Sept.2014. The price of the vehicle including tax after deducting concession was Rs.3,62,436=00 and the complainant has booked the vehicle by paying initial amount of Rs.80,000=00 and he paid Rs.3,22,024=00 through loan from TATA Motor Finance. As per the request of the complainant, these OPs agreed to get temporary registration and also arranged to get the vehicle insured through AIG General Insurance Co. Ltd. by arranging to pay Rs.22,152=00.
It is further submitted that, these OPs have agreed to bear the expenses of registration charges as per the repeated request and demand of the complainant and accordingly returned Rs.14,259=00 to him vide cheque No.445887 of SBI and the said cheque was got encashed by the complainant.
It is further submitted that, the complaint is filed just to extract money by harassing the OPs, hence the complaint is filed just to extract money by harassing the OPs. Therefore the complaint is devoid of merit, hence prays to dismiss the complaint with cost of Rs.10,000=00 to these OPs. The OPs are not at all liable to pay any claimed amount and there is no deficiency of service on the part of the OPs, so the complaint be dismissed with exemplary cost.
5. The OPs no.3 and 4 have filed their common objections and pleaded that, the complaint is not maintainable as the complainant has suppressed the true material facts and has suggested falsehood and hence the complaint needs to be dismissed in limine.
It is further submitted that, the complainant has willfully made false allegations, knowing such allegations are false with the malafide intention of securing unlawful gains and escaping from the liability of payment of outstanding amount. Hence the complainant has not come with clean hands, as the loan facility availed by the complainant was not paid as per repayment schedule and suppressing the same.
It is further admitted that, the complainant had approached for financial credit facilities for the purchase of TATA Motors Ace-Dicor, Commercial vehicle for doing commercial activities. This Forum has no jurisdiction to entertain and adjudicate the present complaint as the complainant is not a consumer within the meaning of Section 2 (1) (d) of the CP Act. The averments made in the complaint itself prima-facie shows that the complainant has availed the service from the OP for carrying the commercial purpose.
It is further submitted that, the complaint is based totally on presumptions and conjectures drawn by the complainant and not based n any cogent and valid documents or opinion. The complaint is totally frivolous and vexatious and ought to be dismissed under the provisions of Section 26 of the CP Act.
It is further submitted that, since various complicated question of facts and law are to be gone into, the complaint ought to be rejected at the very outset. The satisfactory adjudication of the matter under CP Act is difficult because of the nature of factual and legal issue involved therein. The present dispute, if any, has arisen out of contractual relationship and the same does not fall within the purview of the CP Act.
It is further submitted that, the complainant had taken the loan from these OPs and the loan matters does not come within the purview of CP Act. As such the relation between the party whereof principal and borrower or loaner and loanee is not a consumer and service provider as such the complaint is not maintainable in the Forum.
It is further admitted that, the complainant had approached these OPs requesting for credit facilities for the purchase of TATA Motors Ace-Dicor Commercial vehicle and these OPs had sanctioned loan of Rs.3,26,000=00 vide loan account no.5001676070 dated 3-11-2014 and the complainant had agreed to pay the said amount in 36 EMIs. The loan amount was disbursed directly to the OPs no.1 and 2 the dealer of the vehicle from who the complainant had purchased the vehicle with instructions to get the vehicle hypothecated in favour of these OPs and in that regard appropriate/requisite RTO forms were handed over to the OPs no.1 and 2 and even the complainant was informed that post registration of the vehicle to provide the registration certificate.
It is further submitted that the complainant and OPs no.1 and 2 reasons best known to each other did not get the vehicle registered before the RTO and on enquiring with the dealer it was learnt that the expenditure towards the registration was not paid and hence the vehicle is not registered, however the complainant claimed that, the appropriate RTO forms to be sent from these OPs. Hence the complainant was informed to collect the forms, however he has failed to collect the same, this fact was also communicated through the reply notice dated 9-12-2016. The complainant cannot blame these OPs for the act of the OPs no.1 and 2 because the registration of the vehicle is done by them and if they had not done they would responsible for the same. For the negligence of the OPs no.1 and 2, these OPs cannot have charge over the vehicle and it is the only security through which the loan amount can be recovered in case of default.
It is further submitted that, the complainant in order to escape from the loan liability has filed this complaint on the false, frivolous and imaginary grounds and has not produced any documents to substantiate the allegations. Hence, there is no deficiency in service as per Section 2 (1) (g) of the CP Act. Clause 23 of the agreement provides that, if any disputes, difference, claims arising out of the agreement, the same had to be settled by arbitration as per the provision of Arbitration and Conciliation Act, 1996.
It is further submitted that, the prayer sought by the complainant cannot be granted as the complainant admittedly had defaulted in payment of the installments to the OPs. As such, the complainant is debarred from claiming compensation under Section 73 of the Indian Contract Act. The acts of these OPs are in terms of the agreement, the allegation of deficiency of service does not arise and the complainant had not produced any documents to substantiate the loss caused to him.
It is further submitted that, the complainant had defaulted in making timely payments to these OPs. Further, the person who himself breach the terms and conditions of the contract and claims compensation from the other party clearly violates the provision of Section 73 of the Indian Contract Act. The complainant had committed breach of the contract and violated the terms of the agreement. The complainant has come to this forum with unclean hands; hence it is prayed to dismiss the complaint with cost.
6. Both parties have filed their affidavit evidence. The complainant marked the documents at Ex-C1 to C9 and the OPs no.3 and 4 have marked the documents Ex-R1 and R2. Heard the arguments and perused the documents and posted the case for orders.
7. Based on the above materials, the following points will arise for our consideration.
- Whether there was deficiency in service on the part of the OP Nos.1 to 4 as alleged by the complainant?
- What Order?
8. Our findings on the above points are;
Point no.1: Partly affirmative.
Point no.2: As per the final order below.
REASONS
9. On perusal of the averments of the complaint, objections of the OPs, affidavit evidence and documents produced by both the parties, it is an undisputed fact that, the complainant had purchased the TATA Motors ACE-DICOR, Commercial vehicle from the OPs No.1 and 2 and they had issued the invoice for a sum of Rs.4,11,609=00. Thereafter, the complainant had availed the loan facility from the OPs No.3 and 4 to purchase the said vehicle from the OPs no.1 and 2. The OPs Nos.1 and 2 had collected a sum of Rs.5,000=00 and Rs.1,15,000=00 by cash from the complainant and issued cash receipts dated 2-9-2014 and 23-9-2014 towards advance amount for purchase of TATA Motor Ace-Dicor Commercial vehicle and the remaining amount has financed by the OPs no.3 and 4. To substantiate this fact, the complainant even in his sworn testimony, reiterated the same and produced the new vehicle delivery note dated 25-11-2014, on looking into at the delivery note, it is discloses that, on 25-11-2014 the OPs No.1 and 2 had issued the new vehicle delivery note No.359 for TATA Motors ACE-Dicor Commercial vehicle chassis No.MAT445452E2J41118 and Engine No.08LNACRAIL50JVY 594929 for a sum of Rs.4,11,609=00/Ex-C1, Cash receipts dated 2-9-2014 and 23-9-2014 for a sum of Rs.5,000=00 and 1,15,000=00/Ex-C2 and C3 and OPs no.3 and 4 had sanctioned the loan amount of Rs.3,26,000=00 vide loan A/c No.5001676070 dated 3-11-2014/Ex-C5, this evidence has not been denied by the OPs, therefore it is proper to accept the contention of the complainant.
10. The main contention of the complainant is that, the complainant has purchased the said vehicle from the OPs. No.1 and 2 dated 25-11-2014, till today, the OPs no.1 and 2 have not registered the complainant’s vehicle at the office of the RTO, Tumakuru, even though, the complainant paid the registration fee to the OPs No.1 and 2. The OPs No.3 and 4 have financed the complainant’s vehicle and have got the signature in Form No.20 to get the registration. Hence, the OPs no.1 to 4 has failed to get the registration of the said vehicle, thereby OPs have committed deficiency in service, due to this act of the OPs, the complainant has suffered financial loss and mental agony.
11. On the other hand, defence was taken by the OPs No.1 and 2 in their version and also affidavit evidence that, as per the request of the complainant, these OPs have agreed to get temporary registration and also arranged to get the vehicle insured. These OPs have agreed to bear the expenses of registration charges, as per the repeated request and demand of the complainant, they returned the amount of Rs.14,259=00 to the complainant vide cheque No.445887 of SBI and the said cheque was encashed by the complainant. Hence, we come to conclusion that, the OPs no.1 and 2 have agreed to bear the expenses of Registration charges and they have collected the amount from the complainant, but these OPs mentioned in the version and also affidavit evidence. The OPs No.1 and 2 have returned the amount which they have collected from the complainant i.e. Rs.14,259=00 vide cheque no.445886 of SBI. In this regard, the OPs no.1 and 2 have not produced any iota of documentary evidence; hence we cannot accept the contention of the OPs no.1 and 2. The OPs no.1 and 2 have collected the registration charges from the complainant, and it is bounden duty of the OPs no.1 and 2 to get registration of the complainant’s vehicle. But the OPs no.1 and 2 have failed to do so; hence there is deficiency of service on the part of the OPs no.1 and 2.
12. Further defence of the OPs no.3 and 4 is that, these OPs have sanctioned the loan amount of Rs.3,26,000=00 to the complainant’s vehicle and that loan amount was disbursed directly to the OPs no.1 and 2 the dealer of the vehicle with instruction to get the vehicle hypothecated in favour of these OPs and in this regard, appropriate RTO forms were handed over to the OPs no.1 and 2. But the complainant and OPs no.1 and 2 did not get the registration before the RTO, Tumakuru. These OPs have informed the complainant to collect the appropriate RTO form, but he failed to collect the same. For the act of the OPs no.1 and 2, the complainant’s vehicle is not registered. Hence OPs No.3 and 4 would not be responsible for the same.
13. By making careful scrutiny of the evidence of the complainant and averments of complaint and documentary evidence of complainant, it is made unambiguously clear that the complainant has made allegations of deficiency of service against the OPs No.1 and 2 as the OPs No.1 and 2 are the Authorized Dealer of TATA Motors ACE-DICOR Commercial vehicle. The OPs no.1 and 2 has delivered the vehicle to the complainant without getting registration certificate (RC) from the RTO office, Tumakuru by getting Form No.20 from the financer i.e. OPs no.3 and 4, but the OPs no.1 and 2 have failed to give the registration certificate of the complainant’s vehicle and these OPs had taken back the said vehicle on 27-3-2015 and issued acknowledgement dated 27-3-2015 and the OPs No.1 and 2 have failed to deliver the vehicle by getting the registration certificate from the RTO office, Tumakuru and thereby the OPs No.1 and 2 have committed deficiency of service. Hence it is just and proper to direct the OPs No.1 and 2 to deliver the vehicle by getting registration certificate (RC) from the RTO office, Tumakuru and accordingly we answer the point in the affirmative.
14. The complainant has prayed Rs.1,20,000=00 and Rs.1,26,000=00, Rs.7,68,000=00 together with interest @18% per annum and Rs.1,00,000=00 towards incidental charges and Rs.10,000=00 towards legal charges, in all the OPs are liable to pay a sum Rs,11,24,000=00, but the said amount sought by complainant as damages appears to be excessive and exorbitant, so looking to the affirmative finding on point no.1 and gravity of negligence and deficiency of service on the part of the OPs No.1 and 2, we feel it proper to award Rs.20,000=00 as a damages/compensation to the complainant along with 12% interest per annum on the said amount from the date of complaint to till the date of realization. Further the OPs no.1 and 2 are directed to pay Rs.10,000=00 to the complainant towards cost of litigation. The complaint filed against the OPs no.3 and 4 are hereby dismissed and accordingly we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
(Vide detailed separate order dated 20-10-2016)
The complaint is allowed in part.
The OPs No.1 and 2 are directed to get the permanent registration certificate (RC) to the complainant’s vehicle i.e. TATA Motors ACE-DICOR Commercial vehicle from the RTO office, Tumakuru with 30 days from the date of this order. Further, directed to the complainant will cooperate with the OPs no.1 and 2 to get the Permanent Registration Certificate (RC) from the RTO office, Tumakuru.
The OPs No.1 and 2 are further directed to pay Rs.20,000=00 to the complainant towards damages/ compensation
The OPs No.1 and 2 are further directed to pay Rs.10,000=00 to the complainant towards cost of litigation.
This order is to be complied by the OPs No.1 and 2 within 30 days from the date of this order.
The complaint filed against the OPs no.3 and 4 is hereby dismissed.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 20th day of October 2016).
MEMBER MEMBER PRESIDENT
