Complainant/s:       1)   Manohar Hanumantasa Merewade,

                                              Age:65 Yrs, Occ:Advocate and Notary.

                                              R/o Kurattipeth, Betageri, Tq:Gadag,  

                                             Dist:Gadag.

                                                (Rep. by Sri. R.B.Challamarada, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SMT. YASHODA BHASKAR PATIL, MEMBER:

The complainant has filed the complaint U/Sec.35 of the C.P. Act, 2019 seeking relief against the OPs asking to return the old Maruti Omni Car which he got exchanged for a new wagon-R VXI and compensation of Rs.1,50,000/- towards mental agony and Rs.10,000/- for cost of litigation.   

1.  The brief facts of the complaint are as under:

         The contention of the complainant is that, the complainant purchased a new Maruti Suzuki Wagon-R VXI on 20.08.2020 in an exchange scheme from the OP No.1 for his old Maruti Omni KA-26
M-3594.  But at the time of  exchange the complainant had lost the RC Book of the Old Omni Maruti car on 22.06.2020 for which he had registered an FIR on 26.06.2020 and also he had submitted an application to OP No.2 (RTO) to issue a duplicate RC Book by paying the required fees on 27.07.2020 and 12.10.2020 respectively.  But he has not received the duplicate copy.           When the situation was such the complainant contends that he expressed his view to get back his old exchanged car and was ready to pay the said valued amount to the OPs staff of Gadag Branch, by name Vikram who is marketing manager. The said staff expressed the inability to return back the vehicle, but as contended by the Complainant the staff said that it can be returned back in somebody else’s name so the complainant expressed his view to get back the old car in the name of his brothers son and is ready to pay the valued amount of the old car which is Rs.1.45.000/-. Therefore, the complainant paid a sum of Rs.5,000/- as advance to  Ops staff and he  promised to get it exchanged once the duplicate RC book is received. So the complainant believed his version and waited till date.  Later the Ops staff called the complainant and communicated his inability to return the old car.     The complainant contends that he requested the Op several times and later wrote a letter on 12.10.2020 for which the OP have replied through their counsel expressing their inability to return the old car. The complainant contends that most recently it has come to his knowledge that the OP No.1 has already sold the vehicle to OP No.3 which is illegal and there is deficiency of service and negligence on the part of the OP No.1. Hence, this complaint.

          2. After registering the complaint, in pursuance of service of notice the OP No.1 and OP No.2 appeared through their respective counsels and filed written version and OP No.3 remained absent.

          3.       The brief facts of the written version of the OP No.1 are as under:

          OP denied the various averments made in the complaint.  OP No.1 contended that, the complainant himself is an advocate and the complaint filed is false and misconstrued and not maintainable in  law and facts. The complainant is obliquely trying to make unjust enrichment by filing a false complaint which suffers ambiguity. The contention of the OP No.1 is that the complainant has purchased a new Maruti Suzuki Wagon-R VXI  in exchange scheme for his old Maruti Omni Car. The OP contends that the complainant has twisted the contentions as per his convenience by saying that he has paid Rs.5,000/- which the OP staff has received for returning the old Car, but  which was forcefully given under undue influence. The OP contends that, the cause of action is not a proper one as the complainant has failed to make out a case and with due respect to the complainant as he being an Advocate himself and the OP has
properly/transparently appraised everything about the circumstances under which the complainant has exchanged the old car and which cannot be returned, he intimated several times personally and by way of two detailed replies.      The OP alleges that the complainant is not entitled for any relief as there is no cause of action and complainant should not be allowed to take the advantage of beneficial legislation. Hence, dismiss the complaint.

          4.       The brief facts of the written version of the OP No.2 are as under:

          The contention of the OP No.2 is that all the allegations leveled against the OP No.2 by the complainant is false. The OP contends that as per the application submitted by the complainant on 22.07.2020 the OP has issued the duplicate book, moreover the complainant is not a consumer of OP No.2 and there is no relation of seller and buyer and unnecessarily the OP No.2 has been made a party to the said complaint. The OP contended that the complainant has exchanged his old car and given the clearance certificate & form No.29 to OP No.2 on 22.10.2020 to transfer the ownership through his application which is accordingly done by the OP on 22.07.2020 and 17.08.2020.  Thereafter  on 21.10.2020   after the  signature of the complainant, the OP has sent the documents to the concerned authority, Bagalkot RTO to transfer and accordingly after issuing the  duplicate RC book the transfer is completed. All allegation against OPs are false. Further the contention of the OP No.1 is that there is no contract between  the complainant and there is no deficiency of service, so the complaint be dismissed.

          5.       To prove the case, the complainant has filed affidavit evidence and was examined as PW-1 and got marked the documents as Ex.C-1 to Ex.C-12. OP No.1 has filed an affidavit evidence and was examined as RW-1 and got marked the documents as Ex.OP-1 to Ex.OP-6. OP No 2 & 3 not filed their affidavit evidence.  

          6.       Heard the arguments on both sides. Complainant counsel submitted their written arguments and OP No.3 not advanced arguments.

          7.       The points for our consideration arose are as under:

          i)        Whether the complainant proves that he is a                           consumer and  there is a deficiency of service on                  the part of OPs?

          ii)       Whether the complainant is entitled for the relief?

          iii)      What order?

          8.       Our findings on the above points are as under:   

                   Point No.1: In the negative.

                   Point No.2: Partly affirmative.  

                   Point No.3: As per final order.

          REASONS

          9.       Point No.1 & 2:- The points are taken together to avoid the repetition of facts. The counsel for complainant argued that, as per the evidence of PW-1 and the documents Ex.C-1 to Ex.C-12, complainant proved his case and is entitled for the relief.  The learned counsel for OP No.1 argued that, the complainant is not a consumer and there is no deficiency of service. 

          10.     On careful perusal of the materials placed before the Commission, PW-1 has reiterated the contents of the complaint in affidavit. The main contention of complaint is that after purchase the new car in exchange he expressed his intention to repurchase his old Omni, staff of the OP No.1 at Gadag Sri. Vikram did not agree for resale in his name, but assured to sell in the name of third person.  Accordingly the complainant paid Rs.5,000/- in advance as the valued vehicle was for Rs.1,45,000/- and agreed to purchase in the name of son of his brother.  Later OP No.1 did not return the vehicle even though he is ready to pay the remaining balance amount. 

          11. According to OP No.1 there is no agreement or contract between complainant.  Mere intention to repurchase the old Omni car is not valid contract. OP No.1 never agreed to return the old Omni car to complainant for Rs.1,45,000/-  and received the advance of Rs.5,000/-. Complainant forcibly paid Rs.5,000/-  to staff of the OP No.1.

          12. While purchasing a new car the complainant has sold his old Maruti Omni Car bearing KA-26 M-3594 (In exchange Scheme and accordingly to facilitate the OP No.1 to sell the same to others, the complainant has executed all necessary documents i.e. buying price offer letter, sellers agreement, delivery receipt and form No.29 and 30 (relating to transfer of ownership of car) etc.,  As per agreement the complainant has handed over his old Omni Car to OP No.1 and accordingly the complainant had admitted that at the relevant time he has lost his RC book and he had promised to furnish the duplicate copy by obtaining from the concerned RTO. Accordingly the OP has acted as per the authorization given by the complainant (through documents) to obtain the RC book copy and to transfer his vehicle.  Accordingly the OP No.1 sent his staff to collect the duplicate RC book at that juncture the complainant expressed his intention to get back his old Omni car. However, by then the OP had sold the Omni vehicle based on the complainant’s earlier agreement.  The OP has expressed his inability to return the car despite the complainant’s willingness to pay the price fixed for the old car. OP contends that at the time of collecting the duplicate RC book the complainant insisted upon the OP staff to take Rs.5,000/- as advance for buying back his old Omni car, though the staff refused to accept the advance the complainant forced the staff to take the said amount and said that he will persuade the concerned / related staff later. The staff reported about the receipt of Rs.5000/- to the OP. The OP conveyed clearly to the complainant that the OP cannot return the Omni car and to take back the amount of Rs.5,000/-.  But the complainant was not prepared to take back the said amount. Further, the OP contends that, customer is a valued customer and should understand the situation of OPs as Op has expressed his inability to return the old car as it is already sold to some other person.  The OP contended that they are reputed establishment and maintain customer friendly relations and requested to forget any alleged/mistake, behavior if any from their staff.  

          13. The complainant has to prove that there is an agreement regarding repurchase of his old Omni car from OP No.1, for Rs.1,45,000/- and paid an advance of Rs.5,000/- and he is a consumer of the OP No.1.  Admittedly complainant has not met the OP No.1 at Hubli, office and expressed his desire to repurchase.  PW-1 has stated that he has expressed his desire to repurchase  his old vehicle to  Gadag staff of OP No.1 Sri. Vikram.  Further stated that the said Vikram did not agree for resale in the name of complainant.  So the said Vikram is not an authorized or competent  person to enter into contract with complainant for resale.  Therefore, the intention of purchase of his old vehicle paying Rs.5,000/- to Vikram is not a valid agreement or contract, as Vikram is neither owner or duly authorized by the OP No.1. As per exchange of old and new car, complainant handed over all the relevant documents of old vehicle and agreed to furnish the duplicate RC. After duplicate RC was received by the complainant then only the OP No.1 sold the old vehicle to OP No.3. except that no reliable evidence or document is produced by the complainant to show that there is a  privity of contract between himself and OP No.1.  So complainant has not proved initially the burden that he is a consumer of OP No.1. In prayer, complainant is seeking relief that his old Omni car No.KA-26 M-3594 may be returned to him.  The complainant stated that Vikram has  specifically denied for return of vehicle in his name.  So proposal of complainant for repurchase  of the Omni is not duly accepted by Vikaram or OP No.1.  PW-1 stated that Vikram advised to repurchase the vehicle in the name of brothers son of complainant.  Even the complainant has not specifically stated date, place, and time that Vikram agreed to return the said vehicle. Simply complainant stated that he has paid Rs.5,000/- in advance to Vikram and he agreed to return the said vehicle for Rs.1,45,000/-, to the complainant. But subsequently it was sold  to OP No.3.

          14. Ex.C-1 to Ex-C-4 Postal receipts and acknowledgment,
Ex.C-5 and Ex.C-6 notices issued by complainant, Ex.C-7 & Ex.C-8 postal acknowledgments for  receipt, notice, Ex.C-9 reply notice issued by OP No.1 are not disputed by the parties, Ex.C-10 H.P. cancellation issued to RTO Gadag regarding no objection for cancellation of Hypothecation, Ex.C-11 acknowledgment slip and
Ex.C-12 Renewal notice are also not disputed by the parties. 

          Ex.OP-1 clearance certificate issued by OP No.2, Ex.P-2 application submitted by complainant to OP No.2 for issuance of clearance certificate, Ex.P-3 form No.29, Ex.P-4 Vehicle registration certificate Ex.Op-5 and Ex.Op-6 issued by OP No.2 are also not disputed by the complainant.

          15. Learned counsel for OP No.1 argued that even though there is no agreement for resale of the old Omni car with the complainant, OP No.1 fairly admitted about the amount of Rs.5,000/- forcibly paid to the  staff of OP No.1, as complainant being regular customer and senior Advocate who exchanged the old Omni for a new Wagon-R VXI from OP No.1.  Complainant has not produced any receipt for Rs.5,000/- paid to OP No.1 as advance amount.  However, the OP No.1 fairly admitted the amount of Rs.5,000/- received by staff member.  So complainant is entitled for refund of Rs.5,000/- from OP No.1 with interest @ 8% p.a. from the date of complaint till realization.

          16. So far as OP No.2/RTO is concerned, complainant alleges that he applied for duplicate RC,  but did not supply the duplicate RC. In prayer seeking relief against the OP No.2 to direct him to supply the duplicate RC. In the written version filed by the OP No.2 stated that already RC was issued to complainant and  he is not a consumer of
OP No.2. In the written argument counsel for complainant stated that OP No.2 is colluding with OP No.1, duplicate RC was handed over to OP No.1, then the OP No.1 sold old car in favour of OP No.3. Whether
OP No.1 & 2 are colluding or not is a different aspect.  But complainant admitted that already OP No.2 had handed over the duplicate RC to
OP No.1, even though he applied for duplicate RC. Anyhow on the application filed by complainant, OP No.2 supplied the duplicate RC.  The complainant has failed to prove that the OP No.2 directly handed over the duplicate RC to OP No.1.

          17. The relationship between the complainant and OP No.2 is not of  a consumer. Whatever the charge or necessary fees paid to OP No.2 Govt the said amount is not consideration amount. So PW-1 has also failed to prove that he is a consumer of  OP No.2 and OP No.2 has committed deficiency of service.

          18. So far as OP No.3 is concerned, there is no single allegation made in complaint against OP No.3.  OP No.3 is subsequently impleaded by filing application. Even after impleading, complainant has not made efforts to amend  complaint for his grievance against the OP No.3. OP No.3 is a stranger to this complaint as she has purchased the vehicle from OP No.1. Always burden lies upon the complainant to prove that he is a consumer or deficiency of service is committed by Ops.

          19. For the above, complainant has utterly failed to prove that he is a consumer of Ops and deficiency of service is committed by the Ops.  Accordingly.  We answer point No.1 in the negative and point No.2 partly in affirmative.

          20.     Point No.3:- In the result, we pass the following: 

           //O R D E R//

The complaint filed u/Sec.35 of the Consumer Protection Act, 2019 is hereby dismissed against the OP No.2 & 3 and partly allowed against OP No.1.

The complainant is entitled for a sum of Rs.5,000/- (Rupees Thousand only) with interest @ 8% p.a. from the date of complaint till realization from OP No.1.

No order towards mental agony and cost of the proceedings.

Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us in the Open Court on this 29^th day of
July-2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Manohar Hanumantasa Merewade,  

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1 to 4  : Postal receipts and postal acknowledgments.

Ex.C-5         : Copy of reply notice.

Ex.C-6         : Copy of notice issued by complainant dtd:26.11.2020.

Ex.C-7& 8    : Postal acknowledgments.

Ex.C-9         : Copy of reply notice issued by OP No.1.

Ex.C-10       : Copy of H.P. cancellation letter issued to RTO Gadag   

                       regarding no objection for cancellation of Hypothecation                  dtd:04.07.2020.

Ex.C-11       : Copy of acknowledgment slip.

Ex.C-12       : Renewal notice.

EVIDENCE ON BEHALF OF OPs:

RW-1: Mr. Archana W/o Sampathkumar Guruwadeyar.

DOCUMENTS ON BEHALF OF OP No.1

Ex.OP-1       : Copy of clearance certificate issued by OP No.2.

Ex.OP-2       : Copy of clearance certificate.

Ex.Op-3       : Form No.29  of notice of transfer of                                    

                      ownership of a vehicle.

Ex.OP-4       : Copy of vehicle registration certificate MRZ information.

Ex.OP-5  & 6:  copies issued by OP No.2.

(Shri Raju N. Metri)    (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER