The complainant with a view to purchase a new four wheeler contacted O.P. 2 and it was decided by and between them that the total price of the new vehicle would be arranged by taking loan from O.P. 1 and balance if any, would be from the exchange value of the complainant’s old vehicle bearing Regd. No. JH-O1F/7529 which according to the complainant was assessed at Rs.1, 50,000/- duly agreed by O.P.2. Total cost of the vehicle was fixed at Rs. 6,02,261/-. The complainant took loan of Rs. 5, 25,000/- from O.P. 1 by executing a loan agreement dated 28/09/2012 and it was agreed that the loan amount together with interest at the agreed rate would be repaid by sixty installments including one advance installment. Accordingly, the O.P. 2 received Rs. 5, 25,000/- directly from O.P. 1 and also the old vehicle from the complainant. The O.P. 1 by Cheque received Rs. 12,950/- towards advance installment, Rs. 3,998/- towards service charge and Rs. 2,322/- towards insurance charge and Rs. 1,200/- towards Misc. Charges. In fact, the complainant paid Rs. 6, 75,000/- to O.P. 2 and thereby paid

Rs. 73,261/- in excess of the cost of the new vehicle. At the time of delivery of the vehicle the authorized person of O.P. 2 gave assurance that the other documents like R.C.Book, Tax Token, Insurance Certificate etc would be given to the complainant in due course on receipt of the same from respective appropriate authority. Despite several request and reminders over phone and through personal contract the O.P.2 did not hand over relevant documents relating to the vehicle purchased by him for want of which he was unable to ply the vehicle on road and was there by deprived of enjoying the vehicle causing mental harassment and loss of other benefits.

The complainant informed O.P. 1 the above situation, on hearing which the O.P.1 handed over the A/c Statements on 20/12/13 wherefrom he came to know that his vehicle has been registered vide Regd. No. JH/09G/8390 and Insurance Policy Certificate was obtained vide no. 1234. Though the complainant regularly paid the installments upto August 2013 yet in the account statement additional finance charges has been demanded by O.P.1. which he is not obligated to pay as the O.P. No. 2 did not hand over the relevant documents and the O.P. No. 1 despite request did not help in the matter specially when the vehicle is under hypothecation. Hence the case.

Having denied all the material allegations made in the petition of complaint both the O.Ps have contested this case by filing separate written statement.

The O.P. 1 admitted to have granted a loan of Rs. 5, 25,000/- with financial charges of 2,38,875/- to be repaid in 59 equated monthly installments of Rs. 12,950/- each commencing on and from 5/10/2012. In case of default the complainant was required to pay an interest @ 3% p.m. for the period until receipt of said amount equal to all unpaid periodical installment payment. But the complainant failed and neglected to make payment of nine installments and at the same time cheques given by him had also bounced. As a result, additional financial charges and Cheque return charges had accrued in his account which stood at Rs. 6,43,303/- as on 14/5/14. The complainant has paid only 11 installments and no further installment. It is further contended that the vehicle in question was to be hypothecated but no step has been taken in that regard nor the complainant has paid the balance amount. It is further contended that the vehicle in question has been registered and the concerned papers were with O.P. No. 2 and copy thereof has been supplied to it. Stating that the complainant is defaulter in payment of remaining installments and pleading that there is an arbitration clause in the loan agreement and there in no cause of action prayer for dismissal of the case has been made.

The O.P. 2 similarly denied all material allegations and has contended that the cost of the vehicle was Rs. 6, 02,261/- and he has received Rs. 5,25,000/- from the O.P. 1 and rest payable amount was Rs.77,861/-  for the vehicle. Further Rs. 20,584/- was payable for insurance and Rs. 5,000/- for TCR out of which complainant paid only Rs. 5,000/- and exchange value of the old vehicle of the complainant Rs. 80,000/-. Accordingly, a sum of Rs. 18,445/- is still due. It has further been averred that the vehicle was to be registered by the complainant where he actually resides or keeps the vehicle for use. Accordingly, as per request of the complainant TRC was issued to him so that he could take the vehicle to the desired place. There was no assurance that the O.P. 2 would supply to the complainant the R.C.Book, Tax Token, Insurance documents etc. Pleading no deficiency in rendering due service to the complainant and no adoption of unfair trade practice, the prayer for dismissal of the case has been made.

Only question is whether the complainant is entitled to the reliefs prayed for or to what other relief the complainant is entitled

Decision with reasons

The complainant has sought for two distinct and separate relief respectively against OP-1 & OP-2. Though on perusal of the petition of complaint with special reference to the allegations made therein we find that he tried to make out a case that for non-supply of some essential documents like registration certificate, tax token etc. relating to the vehicle purchased by him he was unable to ply the vehicle on road and to enjoy the same in any other manner of his choice. So he was not obligated to make  payment of further installments, for which further financial burden has been imposed upon him of which he wanted to get rid of.

His relief as against OP no. 2 relates to getting delivery of those essential documents relating to the vehicle for want of which he claims himself unable to ply the vehicle on road.

Having considered entire materials on record we do not find that there was any privity of contract amongst the complainant, OP-1 & OP-2 that unless OP-2 hands over the desired documents relating to purchased vehicle the complainant will be at liberty not to pay further installments. On the other hand, the loan agreement has become a concluded contract containing stipulations binding on the parties wherefrom it is clear that in case of default in payment of any or some installments with regard to the loan amount, the loanee will be burdened with further financial implications as contained in the agreement itself. There is no such stipulation that if the loanee goes on paying the installments of loan regularly he will be burdened with any sort of financial implications. In the present case the complainant as a loanee has admittedly paid several installments and defaulted in payment of subsequent installments and allegedly some cheques issued by him have bounced. Having regard to the loan agreement we have no hesitation to hold that the complainant is not under obligation to undertake and pay any financial burden so long he was regular in paying installments towards repayment of loan amount with interest as agreed. Simultaneously, we are also to observe that since the time of his failure to repay further loan installments he, as per loan agreement, is under legal obligation to undertake further financial implication as embodied in the loan agreement. Therefore, the complainant is found entitled to the relief exempting him from paying additional financial charges for the period during which he was regular in making repayment of loan installments but he is not so entitled since when he has defaulted in making repaying of further loan installments etc.

So far the commercial relation between the complainant and OP-2 is concerned, admittedly, we find that the complainant wanted to purchase a new four wheeler by taking loan and the balance of the total consideration by way of  exchange of his old vehicle bearing registration no. JH-01F/7529. As per the complainant the exchange value was Rs. 1,50,000=00 while as per OP-2 it was Rs. 80,000=00. Admitted loan amount financed by OP-1 duly received by OP-2 is to the tune of Rs. 5,25,000=00.

Now the first dispute between the complainant and the OP-2 is whether the exchange value of the old car of the complainant was Rs. 1,50,000=00 or Rs. 80,000=00. Neither the complainant nor the OP-2 has filed any document whatsoever suggesting correct exchange value of said car. The claim seems to be rival and based on oath versus oath. Therefore, in order to resolve the dispute we are to haunt for some other material and procedure as is adopted in case of exchange of a vehicle. In this particular case exchange value was assessed in terms of money value either at Rs. 1,50,000=00 or Rs. 80,000=00. The OP-2 must have purchased this old vehicle (by way of adjusting exchange value with price of the new vehicle) either for its resale or for his personal use or some other purpose of his choice whatsoever. If OP-2 had purchased it for resale then for changing the name of the old owner (to be replaced by the new owner) a sale letter and no objection from the earlier owner is a legal requirement. Unless it is obtained it cannot be resold. If the vehicle was taken by OP-2 for his personal use or for any other purpose whatsoever except for its total dismantling then also similar document from the erstwhile owner is necessary and such document, if any, must be lying with the OP-2. He did not produce any such document. So adverse inference must be drawn against him, specially when it is not his case or defence that he accepted the said old vehicle with an intention to dismantle it to serve any special object and so he did not ask for any sale letter and or no objection from the complainant. This being the position we are left with no other alternative but to conclude that the exchange value of the old vehicle was Rs. 1,50,000=00 and not Rs. 80,000=00.

Second disputes is with regards to T.C.R-

Refuting the allegation that he was supposed to hand over the RC Book, Tax token etc. the OP-2 has contended through his written version and argument advanced by his Ld. Advocate that had he been really under such obligation there was no reason for him to accept Rs. 5,000=00 and hand over the TCR enabling the complainant to shift the vehicle to his own place for registration. Now, the question is whether OP-2 has spoken the truth with regard to handing over the TCR. Admittedly, he has received Rs. 5,000=00 for TCR. The complainant denied handing over of TCR to him. In this factual aspect the OP-2 was under burden to prove by production of the copy of the TCR or to ask the complainant, through this Forum to produce the original TCR. But he did not do so. He at least could produce the receipt showing payment of Rs. 5,000=00 for the purpose of obtaining the TCR. No such document is forthcoming which are expected to come from the custody of OP-2.  It has further been argued that had the TCR not been handed over to the complainant it was not possible for him to shift the vehicle from the show room to his own place. But this argument though apparently sounds convincing yet not acceptable because the complainant might have shifted the vehicle without any TCR at his own risk. The OP-2, since have not produced any of the above-mentioned documents we are constrained to hold that no TCR was handed over to the complainant.

In the above factual matrix we are to hold that it was agreed between the complainant and OP-2 that RC, Tax Token and other related documents would be handed over to the complainant by the OP-2 as and when received from respective appropriate authority. Undisputedly, that has not been done. The above finding is based on the fact that amongst the essential documents insurance policy relating to the vehicle is one of such essential document. Admittedly the cover note of the insurance policy has been handed over by OP-2. It is argued that since no vehicle can come out of the show room without the insurance policy the OP2 obtained the cover note and handed over to the complainant. But this argument suffers from inherent weakness because of the founded fact that the OP-2 did not hand over the TCR suggesting that he agreed to hand over the RC Book to the complainant, so also the Tax Token etc. This observation and finding is further fortified from the fact that there has been some payment in excess of the true cost price of the vehicle which is also suggestive of the fact that said excess payment might have been paid for the purpose of getting the vehicle registered by the OP and to hand over the same with other documents to the complainant. Therefore, we have no hasitation to hold that the O.P. 2 is deficient in rendering due service to the complainant.

Third dispute is with regard to Registration of the vehicle:-

The materials on record have brought to our notice that there is great discrepancy in the delivery challan filed by the complainant and that by O.P.2. There is also a great doubt about the Registration Certificate forthcoming to this Forum at the instance of O.P.1. The copy of delivery challan filed by the complainant is dated 20/2/13 (vide Annex. 1) which bears signature of the complainant as well as the representative of the O.P.2. But the copy of retail invoice filed by O.P.2 is dated 15/10/12 and it does not bear the signature of the complainant. Question is which of the two is genuine? The O.P. 2 requested by requisition slip dated 18/10/12 for release of the amount sanctioned as loan in favour of the complainant as a part of total cost of the vehicle in question. But the retail invoice is dated 15/10/12 which means that the vehicle was delivered prior to getting major portion of the cost of t5he vehicle. On the other hand, the delivery challan filed by the complainant is dated 20/2/13 which suggest that well after getting at least the major portion of the price of the vehicle the delivery challan was issued. The later action seems to be more plaussible and therefore, we accept the delivery challan dated 20/2/13 to be the genuine one which bears signature of both the parties. Accordingly, the retail invoice datedc 15/10/12 seems to be manufactured one specially because it does not bear the signature of the complainant/purchaser.

A great controversy exists with regard to the procurement and handing over certain other documents related to the vehicle specially the R.C.Book. According to the complainant the responsibility was with O.P.2 while stand of the O.P. 2 is that the purchaser/complainant is under the obligation to get his vehicle registered and to obtain the R.C.Book. To justify such stand the O.P. 2 has taken a plea that he issued TRC. But it has already been found on evidence that the O.P. 2 has failed to justify that plea. With utter surprise we find from Para 16 of the W/V filed by O.P. 1 where it has been stated on oath that the vehicle of the complainant has been duly registered and all the concerned papers were with the O.P. No. 2 copy of which have been supplied to the answering O.P.1. On going through this portion of the statement of O.P. 1, the complainant by a petition dated 20/8/14 prayed for directing the O.P. 1 to produce the documents in relation to registration of the vehicle. Accordingly the order was passed vide Order No. 11 dated 20/8/14. Obeying the order Ld advocate for O.P.1 handed over copy of said documents to Ld advocate for the complainant who submitted the same to this Forum vide Order No. 12 dated 3/9/14. On the same date on 3/9/14 Ld advocate for the complainant on detection of certain discrepancy in the documents by an application dated 3/9/14 prayed for directing O.P. 2 to appear and explain the discrepancies. Order was passed accordingly.

Thereafter, summon was issued and served it upon O.P. 2 through local P.S. and thereafter, the O.P. 2 appeared and filed Written version. But neither in the W/V nor in the Written Argument we find anything explaining the discrepancies detected in the copy of registration certificate in respect of the vehicle. The discrepancies are narrated in the following paragraph.

Undisputedly, the Chasis Number and the Engine Number of the vehicle sold to the complainant are respectively MAT44653209J40199 and 497SPTC43JXY660631. The copy of certificate of registration supplied by O.P. 1relating to the same engine number and chasis number shows that the registration number of the vehicle is JH09G8309 which is dated 20/4/2007. This document itself speaks that the vehicle sold to the complainant was duly registered and the registration number is as above. There is no denial on the part of O.P. 2 that no such document was handed over by it to O.P.1. This being the ultimate position as found from the materials on record there is no option but to conclude that either the aforesaid RC is manufactured one or the vehicle sold to the complainant is an old one. So we find that the retail invoice submitted by O.P. 2 and the R.C submitted through O.P. 1 are manufactured one which on the other hand speaks that the vehicle sold to the complainant is old one. Ld advocate for O.P. 2, drawing our attention to the last page of the copy of the agreement for loan, has submitted that how the engine number, chasis number and registration number of the vehicle yet to be sold could be known to the complainant and O.P.1 who are the only author of the agreement for loan? By this argument he wanted to impress that the complainant and the O.P.1 knew about all those and so they had noted the same in the agreement for loan. If such argument is to be accepted then we are to conclude that the complainant wanted to purchase an old vehicle duly registered in the year 2007. But it is no body’s case that the complainant wanted to purchase an old vehicle at the above mentioned price and the O.P. 2 agreed to it. Therefore, it can be definitely assumed that all those particulars must have been written on the back page of the loan agreement at a point of time subsequent to the execution of the agreement for loan. The plea of the O.P. 2 that insurance was obtained as no vehicle can leave the show room without insurance, also speaks in favour of the fact that it was a new vehicle. Therefore, the argument advanced by Ld advocate for O.P.2 seems to be of no value. That being the position it is hard to believe that an old vehicle was sold to the complainant. If an old vehicle was really delivered to the complainant it must have been done in violation of the agreement between the complainant and O.P.2 simply because it is no body’s case that the complainant wanted to purchase an old vehicle. That being the position the present facts and circumstances of the case speaks of a clear instance of either fabricating documents or adopting unfair trade practice by O.P.2.

In view of the findings based on the materials on record and the conclusion drawn there upon the petition of complaint deserves avourable consideration and so it is liable to be allowed. Hence,

ORDERED

That the petition of complaint filed on 4/3/14 be and the same is allowed on contest with litigation cost of Rs. 15,000/- (Fifteen thousand) only payable to the complainant by O.P.2 within two months from the date of this order.

The O.P. 1 is directed to prepare correct statement of account without demanding additional finance charges for the period during which the complainant was regular in making payment of loan installments and to hand it over to the complainant within two months from the date of this order.

The O.P. 2 is directed to hand over the documents viz. R.C.Book, Tax Token, Insurance Certificate for the relevant period at the time of purchase of the vehicle and also the Sale Certificate to the complainant within two months from the date of this order.

The O.P. 2 is further directed to pay a compensation of Rs. 50,000/- (Fifty thousand) only to the complainant within aforesaid period of two months.

Non compliance of any portion of the order by O.P.1 and O.P. 2 will burden each of them to pay punitive damage @ Rs. 100/- (One hundred) and Rs. 200/- (Two hundred) respectively per day until compliance. Punitive damage if so collected would be credited to the Consumer Legal Aid account bearing No. 34735771817 of SBI, Purulia Branch.

Let a copy of this judgement be supplied to the parties free of charge.