Orissa

Cuttak

CC/71/2016

Md. Shamsad Alam - Complainant(s)

Versus

Branch Manager,Tata Motors Finance Ltd - Opp.Party(s)

A K Samal

21 Apr 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.71/2016

 

Md. Shamsad Alam,

At:Jobra Raheman Chhak,PO:College Square,

Town/Dist:Cuttack.                                                                   … Complainant.

 

                Vrs.

 

1.        TATA MOTORS FINANCE LTD.,

Keshari Talkies Complex,98,Kharvela Nagar,

Ist Floor,Unit-3,Bhubaneswar,Dist:Khurda,

Represented by its Branch Manager.

 

2.        R.T.O,Cuttack,

At:Near Collectorate Cuttack,

PO:Chjandinichowk,Town;’Dist:Cauttack.                                    … Opp. Parties.

 

Present:              Sri Bichitra Nanda Tripathy, Presiding Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   06.06.2016.

Date of Order: 21.04.2017.

 

For the complainant        :       Mr. A.K.Samal,Advocate & Associates.

For the  O.P.No.1.             :      Mr. P.K.Ray,Adv. & Associates.

For O.P No.2                      :               None.

 

Sri Bichitra Nanda Tripathy,Presiding Member.

                The case is against deficiency in service on the part of O.Ps.

1. The case in nutshell is that the complainant purchased one of the seized vehicles of O.P No.1.  The vehicle purchased was a truck bearing No.OR-05-AP-8175 for a price of Rs.7,00,000/- from the stock yard of the O.P at Keonjhar and the price was paid as follows:

Rs.3,70,000/- on 18.02.2014 vide M.R. No.307133075

Rs.50,000/- on 19.02.2014 vide M.R No.337133040

Rs.2,80,000/- on 19.02.2014 vide M.R. No.337133048.

(Such money receipts are vide Annexure-1 series).  The complainant paid the stock yard charges amounting to Rs.3740/- and got the vehicle as per vehicle release order. (Annexure-2).  O.P. No.1 handed over the complainant a copy of letter bearing Ref. No.5000686457 dt.20.02.2014 addressed to RTO,Cuttack intimating the facts that the vehicle was repossessed by O.P No.1 due to non-payment of dues by the previous purchaser vide Hire purchase/lease/hypothecation agreement No.5000686457 between Anand Chandra Jethi/Binod Jethi and Tata Motors.  The same vehicle was sold to Md. Shamsad for which the vehicle may be transferred to the name of Md. Shamsad.(Annexure-3).  The complainant produced such letter before the RTO,Cuttack and spend an amount of Rs.1,,28,114/- towards repair of the said truck since it was not roadworthy.  He also changed the battery and engine oil of the vehicle by spending a further sum of Rs.12,200/- and Rs.6,700/- respectively.(Annexure-4 series).  The ownership was not transferred to the name of the complainant and neither the RTO nor the O.P No.1 could give a satisfactory reply to this effect.  It came to the knowledge of the complainant that the previous owner Ananda Chandra Jethi had filed a writ application before the Hon’ble High Court of Orissa vide W.P(C ) No.4479 of 2014 against the O.P No.1(Financier) & R.T.O.  Hon’ble High Court of Odisha vide their order dt.11.03.2014 has directed the petitioner, Ananda Chandra Jethi to deposit the outstanding amount within a month before the O.P No.1(Financier) who shall release the vehicle in his favour if there is no other impediment.  It is also ordered that if the petitioner (Mr. Jethi) files an application for rephasement, the same shall be considered by the O.P No.1 sympathetically.  If the O.P is aggrieved by this order, they may file an application for modification of the same. (Copy of such order vide Annexure-5).  The ownership of the purchased vehicle could not be transferred to the name of the complainant due to the above order of the Hon’ble High Court of Odisha for which the complainant suffered from harassment and mental agony since the financier had suppressed such facts from the complainant.  The complainant approached O.P No.1 to refund the cost of vehicle with interest including the expenses made by him but the O.P No.1 replied that they will succeed in the legal battle with the previous owner and the complainant was advised to wait for some more time.  The complainant waited for a year but the problem remained the same.  R.T.O,Cuttack demanded to the complainant to pay the tax along with penalty.  Since the ownership was not transferred the complainant was compelled to approach the Hon’ble High Court of Odisha vide W.P(C ) No.11681 of 2014 against the O.P No.1 and R.T.O,Cuttack.  After hearing the matter the Hon’ble High Court of Odisha vide their order dt.20.08.2014 directed the petitioner (complainant) to clear the entire tax liability and 60% of the penalty within a period of 2 weeks and after deposit of such amount R.T.O,Cuttack(O.P No.2) shall do well in registering the vehicle within a further period of 2 weeks.  (The copy of such order of Hon’ble High Court of Odisha in W.P.(C ) No.11681 of 2014 dt.20.8.2014 is annexed,vide Annexure-6).  Accordingly the complainant has paid road tax amounting to Rs.43,840/- and insured the vehicle by paying a sum of Rs.29,751/-.  Also paid a sum of Rs.7200/- towards road permit and Rs.3700/- towards fitness and Rs.1600/- towards D.R.C to R.T.O,Cuttack(Annexure-7 series).  The complainant vide letter dt.19.10.2015 requested the R.T.O,Cuttack  again to change the ownership of the vehicle to the name of the complainant (Annexure-8) but the complainant came to know that R.T.O,Cuttack has lodged FIR against him U/S-419/420/468/471 of IPC(Annexure-9).  The complainant apprehending arrest filed for an Anticipatory Bail vide ABLPL No.3797/2016 before the Hon’ble High Court of Odisha and was allowed Anticipatory Bail.  The complainant came to know that the O.P No.1 had suppressed the facts that the previous owner Sri Jethi has deposited the outstanding dues with O.P No.1 as per order passed by Hon’ble High Court of Odisha in W.P.(C ) No.4479 of 2014 since the vehicle was not released in favour of the previous owner, the previous owner Sri Jethi filed a contempt petition on 25.06.2015 with Hon’ble High Court of Odisha vide CONTC No.600 of 2014.  On 15.7.2015 the Hon’ble High Court had directed the O.P No.1 Financier to comply the orders passed in W.P(C ) No.11681 of 2014 by releasing the vehicle on realization of outstanding dues from the previous owner Sri Jethi, within a period of two months.  Being disgusted with the harassment of O.P No.1 the complainant again submitted a letter to the State Head of Auction Department, Tata Motors Finance Ltd. intimating that he has purchased the truck bearing Regd. No.OR-05-AP-8175 on 19.02.2014 but due to legal issues between the previous owner and Tata Motors Finance Ltd., the vehicle is not yet transferred to the name of the complainant since last 2 years.  The complainant vide his above letter also requested to refund him the cost of the vehicle paid and all other expenses/Taxes paid for the purpose along with supporting bills and vouchers(Annexure-10) but in vain.  The complainant issued a legal notice against O.P No.1 on 03.05.2016 asking him to refund Rs.13,05,445/- by registered post with A.D(Anenxure-11) which yielded no result.  Finding no other way, the complainant has taken shelter of this Hon’ble Forum.  He has prayed to direct O.P No.1 to pay him Rs.13,05,445/- as claimed vide letter dt.27.02.2016, a sum of Rs.5,00,000/- as compensation towards mental agony and harassment.

2. O.P No.2 vide their letter No.4359 dt.28.03.2016 has intimated that truck No.OR-05-AP-8175 was registered on 05.05.2011 in the name of Sri Ananda Chandra Jethi, S/O:Mukunda Jethi under hypothecation with Tata Motors Ltd.   On 11.03.2014 the financier intimated O.P No.2 vide Form 36 that they had repossessed the vehicle from the registered owner and requested for issuing fresh R.C. in the name of financier as per provision of Section-51 of M.V.Act,1988.  After receipt of form 36 from the financier, O.P No.2 issued notice on form 37 on the registered owner Sri Jethi as per rules on 11.03.2014.  The registered owner Sri Jethi submitted his reply on 22.03.2014 and enclosed copy of order dt.11.03.2014 of Hon’ble High Court of Odisha in W.P.  (C ) 4479 of 2014 wherein O.P No.1 (Tata Finance Ltd.) was directed by Hon’ble High Court to release the vehicle on realization of outstanding loan dues from the petitioner for which application for issue of fresh R.C in the name of financier was not considered.  On 26.08.2014 Md. Samsad Alam made a written application to this authority claiming himself as the purchaser of the said vehicle and for payment of tax and penalty against the said vehicle by enclosing an order dt.20.08.2014 of Hon’ble High Court of Odisha in W.P(C ) No.11681 of 2014, wherein Hon’ble High Court has ordered for realization of entire tax and 60% of penalty from Sri Samsad Alam(petitioner of the case) which was carried out by O.P No.2.  O.P No.2 vide letter No.5330 dt.22.09.2014 wanted to know the status on compliance of the order of the Hon’ble High Court from the registered owner.  Sri Jethi intimated on 29.09.2014 that he has deposited the outstanding dues with the financier as per directions of Hon’ble High Court vide W.P(C ) No.4479 of 2014 but the financier has not released the vehicle in his favour for which he has filed a contempt petition on 25.06.2015 before the Hon’ble High Court of Odisha vide Contc. No.600 of 2014.  He has also filed an intervention application for recalling the order of Hon’ble High Court of Odisha dt.20.8.2014 in W.P.(C ) No.11681 of 2014.  Hon’ble High Court has ordered on Contc. No.600/2014 for comply of the order issued in W.P(C ) No.4479 of 2014 by O.Ps (Tata Motors Finance Ltd.) i.e. to release the vehicle on realization of outstanding dues from the petitioner(Sri Jethi) within a period of two months. On 20.02.2016 the registered owner Sri Ananda Ch. Jethi made a written complaint that the address of his ownership was changed from son of Mukunda Jethi,At:Indrenga,Jodama,Badamba,Cuttack to C/o: Md. Shamsad Alam, near Jobra Masjid,Raheman Chhak,College Square,Cuttack without his knowledge by one Md. Shamsad Alam and Tata Motors Finance Ltd. but he has not made any application for change of address in form 33 to the office of O.P No.2.  An enquiry was conducted to this effect in the office of O.P No.2 and it was learnt that the computerized database was changed and duplicate R.C book was also issued and change was also allowed in the recorded mobile no. of the registered owner.  It was also learnt that the signature made in the application form, affidavit, station diary were not made by the registered owner Sri Jethi but his signature was forged in such documents.  Therefore data on the vehicle have been blocked in computerized system to prevent any further transaction and FIR was lodged with Lalbag Police station vide letter No.974 dt.20.02.2016 and a criminal case was registered.  O.P No.2 vide the said letter has also intimated that the complainant Md. Shamsad Alam,S/O:Sk. Adlat,Joba Ranihat,Cuttack has no locostanding so far as vehicle OR-05-AP-8175(truck).
3. The O.P No.1 vide written version dt.19.10.2016 has intimated that the transfer of ownership could not be done due to order passed by Hon’ble High Court of Odisha in W.P(C ) No.4479 of 2014 dt.11.3.2014 and the complainant should have sought for remedies in his favour before the Hon’ble High Court.  Since possession of vehicle was taken by the complainant prior to 11.03.2014 i.e. the date of order of Hon’ble High Court of Odisha, the O.P No.1 has not suppressed any fact from the complainant to this effect.  The complainant has paid tax, insurance premium, fitness and permits even if the ownership of the vehicle was not transferred to the name of the complainant for which it was presumed that he was plying the vehicle and making profit and no loss is suffered by the complainant. The O.P No.1 has further intimated that the complainant was aware of the fact that the vehicle has been repossessed from the registered owner due to non-payment of the loan dues and there is every possibility that the said loanee may approached any court of law to secure the release of the vehicle.  The O.P No.2 is not liable for the expenses incurred by the complainant since such expenses were incurred prior to change in the ownership to the name of the complainant.
4. We have gone through the case in details, perused the documents/papers as filed by the complainant and as well as by the O.Ps, heard the learned advocates at length from all the sides and observed that the complainant purchased a Truck which was repossessed by the financier (Tata Finance Ltd.) from the previous purchaser Ananda Chandra Jethi by paying a sum of Rs.7,00,000/- on 18.2.14 and on 19.2.2014 under auction.  The vehicle was purchased from the stock yard of the O.P No.1 at Keonjhar and was released on 19.2.2014 vide release order dt.19.2.2014.  On 20.2.2014 O.P No.1 also issued a letter to R.T.O,Cuttack that the said truck was repossessed for non-payment of dues of the financier i.e. Tata Finance Ltd.(O.P No.1) and has been sold to Md. Shamsad on auction.  O.P No.1 had also requested the R.T.O,Cuttack to transfer the ownership of the vehicle to the name of O.P No.1.  Hon’ble High Court of Odisha court vide order dt.11.03.2014 in W.P(C ) No.4479 of 2014 had ordered that the petitioner(Sri Jethi i.e. the previous purchaser) to deposit the outstanding amount within a month before O.P No.1 who shall release the vehicle in his favour if there is no other impediment.  Vide the said order, Hon’ble High Court has also directed that “if the O.P is aggrieved by this order, he may file an application for modification of the same.”  It is learnt that the financier (O.P.1) has neither intimated the details of facts that the repossessed vehicle has already been sold to Md. Shamsad Alam(complainant ) before the Hon’ble High Court nor has filed any application for modification of the said order as passed by Hon’ble High Court .  O.P No.1 has not intimated all such details to the complainant rather intended that the complainant should have filed another writ petition seeking remedies for transfer of ownership of the vehicle to his name as a right has occurred in his favour after purchase of the vehicle in auction.  After auction sale of the vehicle to the complainant it was the responsibility of O.P No.1 to ensure transfer of ownership to the name of the complainant.  Of course in the present case transfer of ownership could not be effected due to above order of the Hon’ble High Court dt.11.032014 in W.P.(C ) 4479 of 2014.  Since the vehicle was not released in favour of the previous purchaser Ananda Ch. JHethi even after deposit of outstanding dues with the financier on 29.09.2014, Sri Jethi filed a contempt petition on 25.06.2015 before the Hon’ble High Court vide Contct No.600 of 2014 wherein the Hon’ble High Court has ordered on 15.07.2015 to release the vehicle on realization of outstanding dues from the petitioner ( Sri Jethi) within a period of two months.  Vide order dt.20.08.2014, Hon’ble High Court in W.P(C) No.11681 of 2014 has directed the complainant/petitioner Md. Shamsad Alam to clear the entire tax liability and 60% of the penalty within a period of two weeks.  R.T.O,Cuttack(O.P No.2) was also directed to do well in registering the vehicle within a period of two weeks thereafter.  On 25.06.2015 the previous purchaser Sri Jethi had also filed an intervention application for recalling or order dt.20.08.2014 in W.P.(C ) No.11681 of 2014.  Md. Shamsad Alam, complainant had also filed contempt case against R.T.O,Cuttack wherein Hon’ble High Court has ordered on 18.11.2015 vide Contc. No.1372 of 2015 as follows: “It is stated by learned counsel for the petitioner that order dt.20.08.2014 passed in W.P.(C ) No.11681 of 2014 has not yet been complied with.  If the order has not been complied with, let the O.P comply with same within a period of two months from the date of communication of this order”.We have perused the bills and vouchers submitted by the complainant  in connection with the expenses incurred by him for the said vehicle apart from the cost of vehicle  amounting to Rs.7,00,000/-which are as follows:

Stock yard charges              Rs.     3,740/-   (copy of bills/vouchers not submitted    )

(paid at Keonkhar)

 

Custody charges                   Rs.66,300/-                     -do-

paid by the complainant

 

Cost of battery                      Rs.12,200/-     (Bills/Voucher submitted)

Engine oil                             Rs.   6,700/-         (Copy of bill/voucher not submitted )

Body repairing                   Rs.1,12,114/- 

 (The exact amount spend for the purpose is not clear from the copy of the bill submitted for the purpose/No money receipt is also submitted)

Road Tax paid                    Rs.43,840/-         (Copy of bill submitted)

Legal expenses                 Rs.39,800/-         (No bill/money receipt  copy submitted)

Insurance                            Rs.29,751/-                         -do-

Road Rent                           Rs. 7,200/-                           -do-

Fitness                                  Rs. 3,700/-                           -do-

D.R.C.                                    Rs. 1,600/-                           -do-

We have observed that O.P No.1 has not taken any effective step to safeguard the interest of the complainant who has purchased the said vehicle under auction and also has spend money for the said vehicle for various purposes which amounts to non-action on the part of the O.P No.1(Tata Finance Company).  Hence there is deficiency in service on the part of O.P No.1.  Basing on the facts and circumstances as stated above and to meet the ends of justice and also keeping in mind the orders passed by Hon’ble High Court , we allow the case against the O.P No.1 on contest.

                                                                            ORDER

                O.P No.1 will refund a sum of Rs.7,00,000/- to the complainant along with interest @ 12% per annum from 19.022014 till date of final payment.  Apart from above, O.P No.1 will also refund the complainant the following expenses incurred by the complainant against which copy of bills/vouchers has been provided before this Forum.  Such expenses are:

Cost of Battery                  Rs.12,200/-

Road Tax paid                    Rs.43,840/-

Total                                      Rs.56,040/-

                A further sum of Rs.10,000/- shall also be paid to the complainant by the O.P.1 towards cost of litigation.  The finance company shall take back the truck from the complainant at his cost and expenses and will pay the complainant the amount as stated above.  This order shall be carried out within a period of 45 days from the date of receipt of this order.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 21^st day of April,2017 under the seal and signature of this Forum.

 

                                                                                                                                       (Sri B.N.Tripathy )

                                                                                                                                      Presiding Member.

 

                                                                                                                                               

                                                                                                                                       (Smt. Sarmistha Nath) 

                                                                                                                                 Member(W).