Date of filing :28.7.2017
Judgment : Dt.17.4.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Masum Mallick and (2) Mushtari Akhtar alleging deficiency in service on the part of the opposite parties namely (1) Deepak Agarwal, (2) Venkatesh Motors, (3) HDFC EREGO and (4) Cartrade.Com as proforma opposite party.
Case of the Complainant in brief is that the Complainant being desirous to purchase a used four wheelers gathered information through cartrade.com and contacted the OP No.1 who is the proprietor of the OP No./2 Venkatesh Motors and visited the showroom of OP No.2 and agreed to purchase one Hyundai i10 Magna 1.2 model manufactured in 2013 being registration No.WB02AD8027 at a consideration of Rs.3,21,000/- which was registered in the name of one Rachna Bhattar. The Complainants have stated that an Agreement was executed between the parties and the OP assured the Complainants to do needful for transferring the documents of the said car in favour of the Complainant which was registered under Beltala R.T.O. and accordingly the Complainants have paid an advance amount of Rs.2,000/- on 20.9.2016 and requested for certification of inspection by Cartrade.com which was done accordingly and receiving the said certificate on 30.9.2016 the Complainants paid an amount of Rs.19,000/- as advance to the OP No.1. It is further stated by the Complainants that the Complainants have paid total consideration amount through NEFT in the Account No.018705002012 under ICICI Bank, Chowringhee Road Branch on 20.10.2016 in favour of A.V.Marketing which was confirmed by the OP through e.mail. It is stated by the Complainant that after receiving the entire amount of consideration the Complainant No.2 to sign on the Form No.29 & 30 for transferring ownership of the said vehicle which the OP No.2 complied with request to the OPs to do the needful towards the transfer of the ownership of the said vehicle. The Complainants have further mentioned that the said OPs also e.mail one copy of Certificate of Insurance in favour of the Complainant No.2 wherein the concerned R.T.O. was mentioned as the same of South 24 Pgs. and receiving the same the Complainants were under impression that the said vehicle had already been transferred in favour of the Complainant No.2 but afterwards to their utter surprise they found that the OPs had not taken any step for transferring the ownership of the said vehicle. The Complainants have stated that they requested the OP No.1 to transfer the ownership of the said vehicle but the same yielded no fruitful result. The Complainants have further stated that they enquired that how the Insurer (OP No.3 herein) issued Insurance Policy in favour of them whereas the said car was still under ownership of his previous owner Rachna Bhatter but the OP no.1 failed to give any satisfactory reply to that. The Complainants have further stated for cross checking they searched VAHAN the official website of Ministry of Road Transport, wherefrom it was known that the said car was registered under ARTO, Salt Lake, which implied that the OP No.1 & 2 neither delivered the papers not did take any step for obtaining NOC from RTO, Beltala or Sale Lake ARTO and placed the said paper before the RTO, 24 Parganas South. The Complainants have communicated the same to the OP No.1 & 2 vide letter dt.17.12.2016, 30.1.2017 and 7.4.2017 to which the OP Nos.1 & 2 pay no heed at all. The Complainants have stated that in spite of paying entire amount of consideration of the vehicle in question they cannot ply the said vehicle for lack of proper legal papers. Accordingly has prayed for direction upon the OP Nos.1 & 2 to hand over the duplicate key smart card and money receipt in respect of the car in question to take proper step for transferring the name of the purchaser from the RTO, 24 Parganas, in proper legal way in the event of failure to do the same the OP Nos.1 & 2 to refund Rs.3,21,000/- to the Complainants in return of which the Complainants will hand over the said vehicle to the OP Nos.1 & 2, direction upon OP No.3 to issue proper insurance policy in favour of the Complainants, direction upon OP Nos.1 & 2 to pay compensation of Rs.1,00,000/- for mental agony and harassment to pay Rs.50,000/- towards cost of litigation.
The Complainant annexed payment receipt, smart card, tax token, etc.
The OPs contested the case by filing written version denying an disputing all the allegation made out in the petition of complaint. The OP Nos.1 & 2 by filing written version stated inter alia that they supplied the copy of agreement which was executed by and between the Complainant and OPs along with Form 28 to the OP Insurance Company for transferring the policy in favour of the Complainant No.2 and an amount of Rs.13,409/- had been paid by cheque being No.1371 dt.24.10.2016 drawn on HDFC Bank to the Insurance Company and the OP Insurance Company issued policy No.231120153595000000 in favour of the Complainant No.2.
It is stated by the OP Nos.1 & 2 that the OP No.1 has initiated the procedure of getting the name transferred from the RTO PVD, Salt Lake by filing the requisite papers as required and conveyed and the fact had been informed to the Complainant stating that her name would be transferred shortly for which the Complainants required to pay the initial cost but they failed to do. It is further stated by the OP Nos.1 & 2 that the said OPs had paid Rs.13,409/- towards payment of Insurance Policy and Rs.16,000/- towards expenses incurred for getting the ownership transferred in favour of the Complainant and, therefore, demanded the aforesaid sum from the Complainants, however, they refused to pay the same and initiated the instant proceeding which is according to the OP Nos.1 & 2 frivolous. Accordingly, the OP No.2 prays for dismissal of the complaint with cost.
The OP Nos.1 & 2 have annexed (1) Copy of certificate of Insurance cum Policy schedule and (2) Copy of receipt dt.26.4.2011 issued by the PVD, Govt. of W.B.
The OP No.3 also contested the case and filed written version stated inter alia that one policy of Insurance was issued in the name of Complainant No.2 in respect of a vehicle bearing registration No.WB 02 AD 8027 and the said policy is valid on and from 25.10.2016 till 24.10.2017. It is further stated by the OP No.3 that receiving the form 29 and 30 as it was found that there was a break in the previous Insurance Policy in respect of the said vehicle and after proper inspection of the said vehicle by the representative of the OP No.3 in presence of the Complainants and on the basis of the data provided by the Complainants the said Insurance Policy was issued and the same was provided to the Complainant No.2. It is also stated by the OP No.3 that though the Complainants have stated that the said policy is fake one and the details mentioned in the said policy about RTO is incorrect but they have not approached this answering OP for necessary correction. The OP No.3 has prayed for dismissal of the complaint with cost against OP No.3. In support of such contention the OP No.3 has annexed copy of Break-in inspection report.
Both parties adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
Points for determinations
- Whether Complainants are consumers under the OPs?
- Whether there is deficiency in providing service on the part of the OPs?
- Whether the Complainants are entitled for the reliefs as prayed for?
Decision with reasons
Point No.1 : Admittedly the Complainant purchased goods on agreed consideration from the OP Nos.1 & 2 and thus became Consumer under them. The OP No.3 issued Insurance Policy in favour of the Complainant No.2 after receiving a sum of Rs.13,409/- as premium. The Complainant No.2 has become consumer under the OP No.3.
Point No.1 is decided accordingly.
Point No.2 : Admittedly the Complainants entered into an agreement dt.20.9.2016 for purchasing a vehicle having registration No.WB 02 AD 8027 at a consideration of Rs.3,21,000/- which the Complainant had paid to the OP No.1. The Complainants have alleged that transfer of ownership has not been done so far due to willful negligence on the part of the OP No.1. The OP No.1 who is proprietor of OP No.2 has stated that he initiated the process of transfer and as such deposited the requisites with the proper authority. Copy of receipt dt.26.4.2017 issued by the PVD, Govt. of W.B. supports such contentions of the OP No.1. The OP No.1 has stated that he had to spent an amount of Rs.16,000/- towards processing of transfer of ownership and, therefore, demanded the said sum from the Complainants which they refused to pay. On scrutiny of documents no such documents has been found wherefrom, it would have been evident that the OP No.1 ;demanded any amount towards processing transfer of ownership of the vehicle in question or the Complainants ever agreed to pay any change for processing of transfer of ownership of the said vehicle. Since the OP No.1 deposited the requisite with the concerned authority it is construed that they are to execute the transfer of ownership process in favour of the subsequent buyer (i.e. Complainant No.2) of the vehicle in question. It appears that the entire amount of consideration was paid by October 2016 and the OP No.1 deposited requisite on 26.4.2017. It is not explained that why the OP No. 1 initiated the transfer of ownership at such belated stage. Further, after initiating the process of transfer of ownership of the said vehicle. These unanswered questions indicate deficiency on the part of the OP No.1.
The Complainants have also alleged that the OP No.3 Insurer issued a fake Insurance Policy. However, there is no basis to consider the issued policy as fake since GR 25 of Insurance Act 1938 provides validity of the same. Hence, no deficiency is found in respect of OP No.3.
Point No.2 is decided accordingly.
Point No.3 : The Complainants have prayed for transfer of ownership of the said vehicle in favour of them since the total amount of consideration has been paid by the Complainant to the OP No.1 and further the OP No.1 failed to prove that the Complainants are to pay fees for processing of transfer of ownership in favour of the Complainant. The OP No.1 is liable to make the said transfer in favour of the Complainant.
It is observed that the OP No.1 paid the premium for Insurance and also initiated the process of transfer of the ownership in favour of the Complainant No.2.
Considering such conduct on the part of OP No.1, we are inclined not to pass any order as to compensation. However, inordinate delay for transfer of ownership of the said vehicle on the part of the OP No.1 compelled the Complainant to file the instant complaint. Hence, the OP No.1 is held liable to pay the cost of litigation.
Point No.3 is decided accordingly.
In the result, the Consumer Complaint succeeds.
Hence,
ordered
That CC/420/2017 is allowed in part on contest against OP No.1 & 2 with cost and dismissed on contest against OP No.3.
The OP No.1 is directed to transfer the ownership of the said vehicle in favour of the Complainant No.2 within two months from the date of this order and to pay Rs.7,500/- towards litigation cost within aforesaid period. Failing which the OP No.1 is to pay Rs.3,21,000/- i.e. the consideration amount to the Complainant and receiving the same the Complainant No.1 will return the said vehicle to the OP No.1 forthwith immediately. In that case the deposited sum of Rs.3,21,000/- will carry interest @ 3.5% p.a. from the date of payment till realization thereof.
