DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 10th day of July, 2023
Present : Sri.Vinay Menon V., President
: Sri.Krishnankutty N.K., Member Date of filing: 21/12/2019
CC/291/2019
Shajahan.A
S/o Abdhul Azeez,
Peeliyod House,
Pattanchery (Post)
Palakkad.
(By Party in person) - Complainant
V/s
Kings Auto
Rep. by Proprietor,
Swaminadhan, 24/550,
Shornur Road, Nurani (PO), Palakkad, - Opposite party
(By Adv. Sreejith Menon.M)
O R D E R
Prepared by Smt. Vidya.A, Member
1. Pleadings of the complainant in brief
Complainant is a ‘consumer’ of the opposite party. The opposite party is engaged in the business of buying and selling of used two wheeler motor vehicles. A person who intends to sell his vehicles can avail the service of opposite party by entrusting it to the opposite party and a document in the manner as ‘display and sale agreement’ will be executed between them. After that, the opposite party keeps the vehicle for sale in their premises and whenever a customer comes, the opposite party purchases the vehicle from the original seller in its name and resell for a higher margin and the agreed amount is given to the original seller.
The complainant registered his scooter bearing register number KL-70-63570 for sale in the website of OLX. On seeing this, the opposite party called the complainant and assured that they will sell the scooter for the price expected by him. Believing the opposite parties words, the complainant entrusted his vehicle to the opposite party on 24/8/2019 and on that they issued a “display and sale agreement” to him. On 4/11/2019, the opposite party informed the complainant that his vehicle is sold to a customer. The opposite party sold the vehicle for Rs.74,000/- and they received a consideration of Rs. 10,000/- for that the opposite party promised to pay Rs. 97,000/- in cash on 6th or 7th November and the balance within one week through Bank Account. A document in the name and style as ‘വാഹനവിൽപ്പന കരാർ പത്രിക’ was issued to the complainant. After that complainant requested to the opposite party several times for the whole payment, but the opposite party evaded payment sating lams excuses. The acts of the opposite party amount to deficiency in service and unfair trade practice. Due to this the complainant suffered mental agony and financial loss and the opposite party is liable to compensate for this. So he approached this Commission for directions the opposite party to pay (1) Rs. 63,400/- along with 12% interest per annum from 4/11/2019, the date of receipt of amount by the opposite party till realization.
(2) To pay a compensation of Rs. 25,000/- for the loss and mental agony caused to the complainant due to deficiency in service and unfair trade practice.
(3) To pay the cost of the proceedings and other incidental reliefs.
2. Complainant was admitted and notice was issued to the opposite party. The opposite party entered appearance and Vakalath was filed in behalf of them and on application IA 51/20 is filed for hearing an maintainability. Complainant filed objection and both parties were heard. IA is disposed stating that issues regarding maintainability can be considered after the evidence and at the time of final orders.
3. The opposite party filed their version. The main intention raised by the opposite party are that the complaint is bad for non-joinder of necessary parties and the complainant is not a Consumer of the opposite party.
They admit that the complainant entrusted his vehicle to the opposite party to be sold out by the way of ‘display and sale agreement, but they denied the rest of the allegations. The complainant approached the opposite party to sell his scooter to any customer who fulfills the expected price and was ready to display his vehicle at the showroom of the opposite party. The opposite party is running a business to display and sale of second hand two wheelers and gets a minimum brokerage as benefit. The complainant made believe the opposite party that he is having full ownership of the vehicle and there is no hypothecation over the vehicle and he has closed it and would produce No Objection Certificate with original Registration Certificate when the full payment is made. On seeing the vehicle, a customer approached and the vehicle was sold to that customer for Rs.63,500/-. An advance amount of Rs. 5,000/- was paid to the complainant. Even after repeated requests, the complainant did not produce the No Objection Certificate and RC and finally disclosed that the vehicle is still in hypothecation with Indian Overseas Bank, Yakkara Brach. He did not close the balance loan amount of Rs.53,500/- plus for closure interest as the existing loan is higher than the price of the vehicle. Without NOC, the customer was not able to change the ownership of the vehicle or avail a loan. The balance amount could be paid by the opposite party only after clearing the loan by the complainant. The complainant has not performed his part of the agreement. The opposite party is ready to fullfil their part, if the complainant produces NOC from the Bank. There is no deficiency in service and unfair trade practice on the part of the opposite party. The complainant has to be dismissed with cost of the opposite party.
4. From the pleadings of both parties, the following points arise for consideration.
- Whether the complainant has performed his part of the contract by production of NOC ?
- Whether there is any deficiency in service on the part of the opposite party ?
- Whether the complainant is entitled to the reliefs claimed ?
- Reliefs if any as cost and compensation.
5. Complainant filed proof affidavit and Exts. A1 to A3 marked from the side of the complainant Ext.A3 is objected as it is a copy and the objection is overruled as the opposite party has no case that it is forged or fabricated. Opposite party also filed proof affidavit and no documents were marked from their side. Complainant filed an application IA-31/23 to cross examine the opposite party and it was allowed. But opposite party was not present for cross and their evidence was closed.
6. Point No.1
Complainant averment is to the effect that the complainant approached the opposite party for selling his scooter who is in the business of buying and selling used two wheeler motor vehicles. They entered into a “display and sale agreement” and he entrusted his vehicle with the opposite party for sale. On 4/11/2019, the opposite party informed the complainant that his vehicle was sold to a customer for Rs.74,000/- and they obtained consideration of Rs.10,000/- for the sale. The opposite party promised to give Rs. 9700/- in cash to the complainant within 2 days and the balance within one week through Bank Account. But the opposite party did not make Bank Account. But the opposite party did not make full payment even after repeated requests.
7. The opposite parties contention in this regard is that the complainant entered into the agreement with the opposite party and made him believe that he is having full ownership of the vehicle and there is no hypothecation over the vehicle, and he has closed it and promised to produce NOC and original RC when full payment is made. After selling the vehicle, the opposite party paid an advance amount of Rs.5,000/- to the complainant and agreed to pay the balance on production of NOC and Original RC. Even after repeated request, he did not produced and finally disclosed that the vehicle is still in hypothecation with Indian Overseas Bank, Yakkara Branch.
8. The complainant produced 3 document which are marked a Exts. A1 to A3. Ext.A1 is the “Display and sale Agreement” entered into between the complainant and M/s King Auto(opposite party) on 24/08/2011 for the side of his vehicle for an amount of Rs.75,000/-. Ext.A2 is the “വാഹന വിൽപ്പന കരാർ പത്രിക” entered into between complainant and opposite party. As per Ext.A2, the complainant sold the vehicle to the opposite party on 4/11/2019 for an amount of Rs.63,000/- and out of that Rs.9700/- was given to the complainant and the complaint entrusted the vehicle and Registration Certificate original to the opposite party.
Further it is stated that the balance amount of Rs.53,700/- after deducting the advance amount to be given to the complainant and at that time the complainant has to hand over all documents including papers to transfer RC Permit without any liability.
It further states that any party who omits to perform their part of the agreement has to suffer the losses arising out of it.
9. Here the complainant has not adduced any evidences to show that he has handed over all the documents including NOC from the financier Bank showing that vehicle is free from any liability. So the complainant has failed to perform his part of the contract. Point No.1 is decided accordingly.
Points 2 to 4
In view of the findings in Point No. 1 it is seen that the complainant failed to comply his part of the contract by producing No Objection Certificate from the Financier. The opposite party is bound to pay the entire amount only on production of all documents as per this agreement. So there is no deficiency in service/unfair trade practice on the part of the opposite party.
In the result, the complaint is dismissed.
Order Pronounced in abstentia of the author concerned on 10th day of July 2023; concurred by President & Member who conducted the proceedings.
Sd/-
Vinay Menon V
President
Sd/- Krishnankutty N.K.
Member
APPENDIX
Documents marked from the side of the complainant:
Ext. A1 : Display and Sale Agreement dated 24/08/2011.
Ext. A2 : Sale Agreement dated 04/11/2019
Ext. A3 : Copy of Bank Account Statement.
Documents marked from the side of opposite parties:
Witness examined from the complainant’s side : Nil
Witness examined from the opposite parties side:
Cost: Nil
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
