KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL 406/09

JUDGMENT DATED: 22.5.2010

PRESENT

SMT.VALSALA SARANGADHARAN              : MEMBER

SRI.M.V.VISWANATHAN                                : JUDICIAL MEMBER

The Branch Manager,                                          : APPELLANT

Popular Vehicles and Services Ltd.,

Elamakkara.P.O., Kochi,

Ernakulam.

(By Adv S.Reghukumar)

        Vs.

1.     Sri.Hamsa,

     S/o Ammed,                               : RESPONDENTS

     Vysan House,

     Kambalakkad.P.O.,

     Wayanad.

(By Adv.Abdulla Sait, counsel for R1)

2.     Joint RTO,

     Joint Regional Transport Office,

     Aluva.P.O.,

     Ernakulam.

3.     Sri.Saleem.K.A.,

     Kakkattil House,

     Aluva.P.O.,

     Ernakulam.

4.     Sri.Sajith,

     S/o Imbichikoya,

     Pennilodypiral House,

     Peruvayal.P.O.,

     Kozhikode.

5.     Sri.Sunny Xavier, S/o Xavier,

     Pattakulath House,

     Kumbalad,

     Muttil North.P.O.,

     Wayanad.

JUDGMENT

SRI.M.V.VISWANATHAN   : JUDICIAL MEMBER

The appellant herein was the 1^st opposite party and the respondent 1 to 5 were the  complainant and opposite parties 2 to 5 in CC.No.144/07 on the file of CDRF, Wayanad, Kalpetta.  The complaint in CC.144/07 was filed by the 1^st respondent as complainant against the opposite parties 1 to 5 alleging deficiency in service in effecting sale of  Maruthi Zen car bearing Reg.No. KL-07 BC/6190.  The complainant alleged that the opposite parties 1 to 3 colluded together and thereby created documents to appear the 2005 model vehicle as 2006 model vehicle and such an entry was also made in the registration certificate of the vehicle showing the year of manufacture as 2006.  The complainant alleged that he suffered loss of Rs.75,000/- by purchase  of the said vehicle from the 5^th opposite party.  Thus, the complainant claimed the aforesaid sum of Rs.75000/- with compensation of Rs.10000/- for the mental agony suffered by him.  He requested to make the  opposite parties  1 to 5 liable to pay the aforesaid  compensation with cost.

2. Before the  Forum below opposite parties 1 and 2(appellant and the 2^nd respondent) entered appearance and filed separate written version.  The 1^st opposite party contended that there was no  privity of contract between the 1^st opposite party and the complainant and that the complainant  is not a beneficiary of  any service rendered by the  1^st opposite party.  It was also contended that the  CDRF, Wayanad, Kalpetta has no territorial jurisdiction  as no part of the cause of action has arisen within the territorial jurisdiction of the CDRF, Wayanad, Kalpetta.  It was contended that the 1^st opposite party sold the vehicle to the 3^rd opposite party and the car sold to the 3^rd opposite party was  manufactured in the year 2005 and that the insurance policy issued to the 3^rd opposite party  would show the year of manufacture  of the vehicle as 2005.  The   1^st opposite party has also challenged the quantum of compensation claimed by the complainant.  Thus, the 1^st opposite party prayed for dismissal of the complaint.

3. The 2^nd opposite party filed the version contending that the vehicle was registered on the basis of the sale  certificate issued by the 1^st opposite party and that the 2^nd opposite party had no intention to manipulate the year of manufacture of the vehicle as 2006.  The mistake in the R1 certificate can be rectified by production of the same.

4. The opposite parties 3 to 5 remained absent.

5. Before the Forum below, the complainant was examined as PW1 and Ext.A1 to A5 documents were marked on his side.  From the side of the 1^st opposite party the Branch Manager was examined as OPW1 and Exts.B1 and B2 documents were also marked.  At the instance of the complainant a document was produced by the 2^nd opposite party and the same was marked as Ext.X1.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30^th April 2009 in CC.144/2007 directing the 1^st opposite party(appellant) to pay Rs.30,000/- as compensation to the complainant within 30 days from the date of receipt of the impugned order failing which the said amount will carry interest at the rate of 10% from the date of the impugned order till payment.  It is against the said order, the present appeal is preferred.

6. We heard the learned counsel for the appellant and the 1^st respondent.  There was no representation for the respondents 2 to 5 (opposite parties 2 to 5).  The learned counsel for the appellant/1^st opposite party much relied on B1 copy of the insurance policy issued by National Insurance Company insuring the Maruthi Zen LX car in the name of Mr.Salim.K.A., Kakkatle House, Aluva.P.O.,Ernakulam and also B2 invoice issued  to the 3^rd  opposite party Salim.K.A., Kakkatle House, Aluva.P.O.,Ernakulam and argued for the position that the appellant/1^st opposite party sold the said Maruthi Zen LX car to the 3^rd opposite party Salim.K.A and that the 3^rd opposite party was well aware of the fact that he purchased 2005 model Maruthi Zen car on 17.1.2006.  He also relied  on  Ext.A1 copy of the certificate of registration with respect to the Maruthi Zen car bearing Reg.No. KL-07 BC/6190 and submitted that the vehicle was taken delivery on 17.1.06; but the said vehicle was registered with the 2^nd opposite party only on 26.5.06.  It is further submitted that there was no deficiency in service on the part of the appellant/1^st opposite party in effecting sale of the said vehicle to the 3^rd opposite party and that there was no privity of contract between the appellant/1^st opposite party and the 1^st respondent/complainant.  He also relied on oral testimony of the complainant as PW1.  Thus the appellant prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the 1^st respondent supported the impugned order and argued for the position that there was deficiency in service on the part of the appellant/1^st opposite party, the dealer of the said vehicle in issuing the sale certificate to the 2^nd opposite party, Joint RTO in getting the vehicle registered as 2006 model. It is further submitted that because of the aforesaid deficiency in service the 1^st respondent/complainant suffered loss of Rs.75000/-.  Thus, the 1^st respondent prayed for dismissal of the present appeal.

7. The points that arise for  consideration are:-

1)                             Whether the complainant in CC.144/07 on the file of CDRF, Wayanad, Kalpetta had any cause of action to file the said complaint against the 1^st opposite party/Branch Manager, Popular Vehicles and Services Ltd., Ernakulam?

2)                             Whether the complaint in CC.144/07 on the file of CDRF, Wayanad Kalpetta filed against the 1^st opposite party/ Popular Vehicles and Services Ltd., Ernakulam was maintainable in law?

3)                             Whether there was any deficiency in service on the part of the 1^st opposite party/Branch Manager, Popular Vehicles and Services Ltd., Ernakulam in effecting sale of the Maruthi Zen Car bearing Reg.No. KL-07 BC/6190?

4)                             Is there any legally sustainable ground to interfere with the impugned order dated 30^th April, 09 passed by CDRF, Wayanad Kalpetta in CC.144/07?

8. For the sake of convenience, the parties to this appeal  will be referred to according to their rank and status before the Forum below in CC.144/07.

9. Points 1 to 4:-

The 1^st opposite party is the dealer of maruthi vehicles.  Admittedly the 1^st opposite party sold a Maruthi Zen LX vehicle to the 3^rd opposite party Salim.K.A.  The complainant as PW1 has categorically admitted that the said vehicle was sold by the 1^st opposite party as dealer of the Maruthi  vehicle to the 3^rd opposite party Salim.K.A.  Ext.B2 is the tax invoice issued by the 1^st opposite party in the name of the 3^rd opposite party Salim.K.A. for effecting sale of the Maruthi Zen LX car to the 3^rd opposite party.  Ext.B2 tax invoice would show the chasis No of the said vehicle as 852801 with engine No.356280 and colour white.  The said vehicle was sold on 17.1.2006 for a total sale consideration of Rs.3,28,717.56.

 10. Ext.B1 is copy of the certificate of insurance with respect to aforesaid Maruthi Zen LX car bearing engine No. 356280 and chasis No.852801.  Ext.B1 insurance policy with respect to the said vehicle was issued by  National Insurance Co. as the insurer in the name of the 3^rd opposite party Salim.K.A. as the insured for the period from, 17.1.06 to 16.1.07 with the policy No.9614160.  In B1 insurance policy the year of manufacturer of the said vehicle is specifically shown as 2005.  DW1 the 1^st opposite party has categorically  deposed about policy of insurance and B2 tax invoice.  Thus, the evidence of OPW1 and the documentary evidence of Exts.B1 and B2 would make it clear that the 1^st opposite party/Popular Vehicles and Services Ltd. as dealer had only sold 2005 Maruthi Zen LX car to the 3^rd opposite party Salim.K.A.   

11. There is no contra evidence forthcoming from the side of the complainant or the other opposite parties to discredit the genuineness and correctness of B1 and B2 documents.  It is further to be noted that the 3^rd opposite party has no case that he purchased 2006 model vehicle from the 1^st opposite party.  It is also to be noted that the 3^rd opposite party remained absent through out the proceedings.  He has also remained absent in this appeal proceedings.  There is nothing on record to show that the 1^st opposite party committed any fraud upon the 3^rd opposite party /purchaser of the vehicle in effecting sale of the maruthi zen LX car covered by B2 invoice and B1 policy of insurance.

12. The complainant as PW1 has categorically admitted the fact that he had no privity of contract with the 1^st opposite party/dealer of the said vehicle.  There is also nothing on record to show any transaction entered into between the 1^st opposite party and the complainant.  The complainant has got a case that the opposite parties 1 to 3 colluded together and  created false documents to make it appear that the vehicle sold by 1^st opposite party to the 3^rd opposite party was manufactured in the year 2006.  But the complainant as PW1 has admitted that he has no evidence to show or prove the alleged collusion among opposite parties 1 to 3.  According to PW1 he got information about the collusion among the opposite parties 1 to 3 from his enquiry.  But PW1 was not in a position to give details of the said enquiry or the person from whom he obtained the information regarding the alleged collusion among the opposite parties 1 to 3.  It is a settled position that fraud or collusion is to be pleaded  and proved by the person who alleged fraud or collusion.  But the complainant miserably failed in establishing the alleged fraud or collusion among opposite parties 1 to 3.  But, the evidence on record would only show that there was no such collusion among opposite parties 1 to 3 in effecting the sale of the Maruthi Zen LX car covered by B2 tax invoice and B1 policy of insurance.

13. The 2^nd opposite party/Jt.RTO, Aluva.P.O., Ernakulam had issued a letter dated 31.10.08 to the President of the CDRF, Wayanad Kalpetta stating that the motor car bearing Reg.No. KL-07 BC/6190 was registered on 25.5.06.  It was further stated that the file regarding the registration of the said vehicle could not be traced out.  As the old file had been dumped in a room given by the Taluk authorities.  The 2^nd opposite party had also requested for time to produce the said file.  In letter dated 21.l2.07 issued by the 2^nd opposite party to the Forum below,  it was stated that the said vehicle was registered on 25.5.06 on the basis of the sale certificate issued by the 1^st opposite party in form 21 and that the said sale certificate was issued on 17.1.2006. It was further stated that the details were entered in registration certificate as per the sale certificate issued by the 1^st opposite party/dealer.  It was stated that the vehicle was registered after the lapse of 5 months from the issuance of the sale certificate.  It was also stated that the mistake regarding the year of manufacture was crept into the registration certificate and the same can be rectified on production of the registration certificate.  It was categorically stated that the 2^nd opposite party had no intention in manipulating the year or model as 2006 instead of 2005.  Ext.X1 is the details furnished by the 2^nd opposite party subsequently.  It would show the date of delivery of the vehicle and the engine No. and chasis No. of the vehicle and the validity of the   registration from 25.5.06 to 24.5.2021.  The 2^nd opposite party in his version has also disclosed the fact that there was no such collusion or manipulation on the part of the 2^nd opposite party in registering the said vehicle.  Thus, there is nothing on record to uphold the case of the complainant regarding the deliberate act on the part of the opposite parties 1 and 2 in creating false entry in the registration certificate of the vehicle.

14. The materials on record would make it abundantly clear that the complainant had no cause of action against the appellant/^1st opposite party.  The vehicle was sold by the 1^st opposite party to the 3^rd opposite party Salim.K.A. on 17.1.2006 and the said vehicle was registered by the 2^nd opposite party.  The 3^rd opposite party who purchased the vehicle from the 1^st opposite party had no case that the 1^st opposite party played any fraud upon him, in effecting sale of the vehicle.  The 3^rd opposite party has no case that the 1^st opposite party sold 2005 model vehicle as 2006 model vehicle.  The 3^rd opposite party has also no case that he was made to believe that the vehicle he purchased was manufactured in the year 2006.  On the other hand, B1  insurance policy taken by the 3^rd opposite party would make it crystal clear that the 3^rd opposite party purchased Maruthi Zen LX car which was manufactured in the year 2005.  Thus, the purchase of the vehicle was effected by the 3^rd opposite party by fully knowing the fact that the vehicle was manufactured in the year 2005.  The 1^st  opposite party obtained the sale consideration for the vehicle which was manufactured in the year 2005.  It is also to be noted that the vehicle was taken delivery on 17.1.2006.  This circumstance would also make it clear that it was practically impossible to get a vehicle manufactured in the year 2006 on 17.1.2006.  So, there was no  foulplay  or fraud or cheating on the part of the 1^st opposite party(appellant) in effecting the sale of the said Maruthi Zen Lx car to the 3^rd opposite party.  Thus, the 1^st opposite party had not obtained any illegal gain by sale of the vehicle covered by B2 invoice.  The 3^rd opposite party has also no case that the 1^st opposite party obtained any unlawful gain by the sale of the said vehicle covered by B2 invoice dated 17.1.2006. 

15. The Forum below came to the conclusion that the 1^st opposite party has obtained gain in the matter by registering the vehicle as 2006 model instead of registering the vehicle as 2005 model.  But no evidence was available before the Forum below to hold that the 1^st opposite party obtained any illegal gain by the sale of the vehicle.  The mere fact that the 1^st opposite party issued the sale certificate stating that the vehicle was manufactured in the year 2006 can not be taken as a ground to hold that 1^st opposite party obtained illegal action in issuing such a sale certificate.  It is true that the 2^nd opposite party has categorically contended that the vehicle was registered as 2006 model vehicle based on the sale certificate issued by the 1^st opposite party/dealer. But there is nothing on record to show that the 1^st opposite party obtained any sort of gain by issuing such a sale certificate with respect to the sale of the vehicle to the 3^rd opposite party K.A.Salim.  So, the aforesaid entry in the sale certificate issued by the 1^st opposite party can only be treated as a mistake and the same can be corrected.  There is no evidence on record to show that the 1^st opposite party collected any excess amount from the 3^rd opposite party for issuing such a sale certificate.  On the other hand, B2 invoice issued by the 1^st opposite party to the 3^rd opposite party purchaser would show that the only legitimate sale consideration had been collected by the 1^st opposite party from the 3^rd opposite party purchaser.  So, the aforesaid finding of the Forum below is legally unsustainable and the same is liable to be deleted.

16. Admittedly the complainant purchased the vehicle from the 5^th opposite party Sunny Zavier. Ext.A2 is the agreement for sale  entered into between the complainant and the 5^th opposite party.  The aforesaid agreement is on 5.9.07.  As per A2 sale agreement the complainant purchased the vehicle bearing Reg.No.Kl-7 BC 6190 from the 5^th opposite party and by the sale agreement there was exchange of another vehicle owned by the complainant bearing Reg.No.KL.10-K 5225.  As per Ext.A2 sale agreement the 5^th opposite party sunny Zavier made the complainant to believe that the said vehicle is of the model 2006.  So, even if there occurred any misleading statement or cheating  it can only be  treated as one made by the 5^th opposite party.  But, there is nothing on record to show as to how the 5^th opposite party obtained the right and  possession over the said  vehicle KL-07 BC/6190.  Ext.A1 copy of the certificate of registration would show that the vehicle stood in the name of the 4^th opposite party Sajid S/o Impichikoya.  The name of the registered owner is shown as Sajid S/o Impichikoya.    Ext.A3  insurance policy with respect to the vehicle bearing registration No. KL-07 BC/6190 is also in the name of Mr.Sajid S/o Impichikoya.  In Ext.A3 insurance policy the year of manufacture of the  vehicle is shown as 2006 and the policy was for the period from 17.1.07 to 16.1.2008.  So, there is no documents forthcoming to show the ownership of the 5^th opposite party Sunny Zavier over the said vehicle.  Ext.A2 sale agreement is also silent about the fact as to how the 5^th opposite party obtained the ownership or right  over the vehicle bearing registration No. KL-07 BC/6190.  It is further to be noted that A1 is only copy of the certificate of registration.  A1 certificate of registration would show that the date of delivery of the vehicle as on 17.1.2006 and the date of registration was on 26.5.06.  But no document is forthcoming from the side of the complainant to show as to how the vehicle was registered in the name of the 4^th opposite party.  Ext.B2 notice would show that the  vehicle was sold to the 3^rd opposite party, K.A.Salim and the policy of insurance was also issued in the name of the 3^rd opposite party.  The registration certificate and the subsequent insurance policy would show that the 4^th opposite party obtained the ownership over the vehicle.  But nothing is available on record to show as to how the 5^th opposite party obtained the right over the said vehicle from the 4^th opposite party.  It is also to be noted that the complainant has not produced the insurance policy with respect to the vehicle in the year 2006 to 2007.  At the same time B1 copy of the policy of insurance would show that the aforesaid vehicle with chasis number and engine number was insured for the year 2006-07 in the name of the 3^rd opposite party.  Thus, in all respects it can be seen that the complainant had no cause of action against the appellant/1^st opposite party.  There is also nothing on record to show that the complainant was a beneficiary of the service rendered by the appellant/opposite party as dealer of the vehicle.   The materials available on record would show that there was no privity of contract between the appellant/1^st opposite party and the 1^st respondent/complainant.  It would also show that no part of the cause of action has arisen between the appellant/1^st opposite party/dealer of the vehicle and the 1^st respondent/ complainant.  Thus, it can very safely be concluded that the complainant had no cause of action against the appellant/1^st opposite party.  The complaint in CC.144/07 filed against the 1^st opposite party was not maintainable in law.  Forum below can not be justified in entertaining the complaint filed by the complainant against the 1^st opposite party dealer of the vehicle which was sold to the 3^rd opposite party on 17.1.06.  We have no hesitation to hold that the complaint in CC.144/07 filed against the 1^st opposite party(Branch Manager, Popular Vehicle Services Ltd., Ernakulam) was not maintainable.

17. The forgoing discussion and the findings there on would make it clear that the complainant in CC.144/07 on the file of CDRF, Wayanad Kalpetta was not entitled to get any compensation from the 1^st opposite party/dealer.  There was no evidence available on record to fasten liability on the 1^st opposite party who had no transaction with the complainant.  There was also no evidence available on record to show that the complainant suffered any loss due to the transaction entered into between the  1^st opposite party and the 3^rd opposite party.  There was also no material available on record to hold that the price difference between 2005 and 2006 model vehicle would come to Rs.30000/-.  Thu, in all respects the impugned order passed by the Forum below is legally unsustainable.  We have no hesitation to set aside the impugned order passed by the Forum below.  Hence we do so.  These points are answered accordingly.

In the result the appeal is allowed.  The impugned order dated 30.4.2009 passed by CDRF, Wayanad, Kalpetta in CC.144/07 is set aside.  The parties are directed to suffer their respective costs.

       SRI.M.V.VISWANATHAN                         : JUDICIAL MEMBER

       SMT.VALSALA SARANGADHARAN       : MEMBER

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