By Smt. PREETHI SIVARAMAN.C, MEMBER
1.The complaint in short is as follows:-
Complainant is a driver and he was in search of a second hand bus for his self employment purpose. Opposite parties are having an office in Jubiliy road Perinthalmanna and they represented that they are having a bus TATA 407 Passenger bus 2007 model for sale. They have shown the photographs of the bus to complainant and they assured that bus is having in a good condition. Opposite parties shown the vehicle to complainant having registration No. KA-20-B-834, 2007 model. First opposite party is an agent of second opposite party.
2. Complainant and first opposite party went to Udupi to see the bus , but the bus was not having in a good condition. Opposite parties stated that they will deliver the bus at Vengara town after completing the paper work and necessary repairs. So complainant paid Rs. 2,45,000/- to opposite party as an advance for purchasing the bus and it was stated that the balance amount of Rs. 30000/- to be paid when the bus is delivered to the complainant. An agreement was executed on 02/08/2017 and paid Rs. 2,45,000/- as agreed. After a month, the first opposite party delivered the bus at Vengara with photocopy of the records. But the vehicle was not seen in a good running condition and complainant found that the vehicle stands in the name of second opposite party . At the time of purchasing the vehicle the first opposite party represented that the bus is belonging to him and in the agreement also the same is recorded. When the bus was shown to the complainant the second opposite party was also seen present.
3. When the bus was handed over to complainant at Vengara , the first opposite party charged Rs. 68,000/- as charges for the transportation and balance payment and they stated that they have arranged NOC and other records within a week. They also instructed the complainant to repair the bus and as per the direction of opposite parties , complainant spent Rs 1,85,000/- to repair the bus including its tyres. The records were not perfect and the bus could not piled in Malappuram district or anywhere. The bus was kept idle since no records are handed over to complainant. The 1st opposite party with his influence transported the bus to Kerala which was their part of business.
4. As per the law, vehicle can be used for ten years from its manufacture , complainant waited for months but opposite parties were not able to hand over the records of the bus. Hence complainant was not able to use the bus which was purchased for the livelihood of his family consisting of many members. It was easy for complainant to arrange a route and his family members can work and earn their livelihood through that. The fund was also arranged jointly and the family members purchased the bus in the name of complainant who spent nearly 75% of the cost of the bus. Thereafter the booking office started by opposite party were also closed down.
5. Complainant again stated that the first opposite party told him that there is every chance of a local financier seizing the bus , since the registration certificate of the bus was pledged with him. Then opposite party No.1 with his workers removed the body portion of the bus and same was taken away by him. Complainant was helpless and he was forced to agree for the same. Moreover opposite party told to complainant at 2018 March that they will arrange a good model body for the bus along with records. But nobody provided the records to complainant.
6. Complainant again stated that the bus is useless and opposite parties are not handed over the records to complainant. It is deficiency in service from the side of
opposite parties. Hence this complaint.
7. The prayer of the complainant is that, the Commission may direct the opposite partiers to hand over the records of the bus along with its body or direct the opposite parties to repay Rs. 3,05,000/- and Rs.1,00,000/- as compensation on account of deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant and cost of the proceedings.
8. On admission of the complaint notice was issued to the opposite parties and notice served on them and opposite party No.2 did not turn up. Hence opposite party No.2 set exparte. After receiving the notice opposite party No.1 filed version.
9. In their version, opposite party No.1 stated that they are staying at Uduppi district of Karnataka state which is far away from the Consumer Forum of Malappuram District. They again stated that this Forum (Now Commission) is not having any jurisdiction in the subject matter of the dispute between the parties. As per Section 11 of CP Act 1986 ‘” a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the opposite parties , where there are more than one , at the time of institution of the complaint actually and voluntarily resides or carries on business………………………….wholly or in part arises”. They again stated that as per the agreement executed between complainant and opposite party No.1 on 02/08/2017, it is stated that both the parties have signed that agreement on the above stated date, month and year at Uduppi. Moreover the possession of the bus was also handed over to the complainant herein by the opposite party No.1 in Udupi only. They again stated that Condition 5 of the agreement also reveals that the bus was handed over to complainant not at Vengara Town as stated in the complaint. Hence this complaint is not maintainable and is hit by that Section 11 of CP Act. Hence complaint may be dismissed.
10. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and he produced one document and which is marked as Ext. A1. Ext.A1 is the photocopy of the agreement for sale of TATA 407 bus . But opposite party No.1 did not file affidavit to prove their case, hence they set exparte . 11. Case posted for hearing of complainant on 12/01/2023. On that day complainant filed one IA 22/2023 to appoint an Advocate Commissioner for inspecting the vehicle. That petition allowed and Advocate Sourav .S Nair is appointed as Advocate commissioner and he filed commission report on 10/04/2023. In his report, he stated the present status of the vehicle involved in this case. He reported that vehicle has no number plate , the body of the vehicle is blue in colour and there is a white line all over the lower part of the body of the vehicle. The vehicle is situated at Chakirimoochikkal in the Thrippanachi Manjeri Road, 50m away from the main road . The vehicle had six tyres and all tyres are got punctured . In the front glass of the vehicle there wrote EKB in capital letters of English alphabet with yellow colour stickers. The emblem ‘T’ of TATA Motors also embedded in the front portion of radiator covering. The glass of back portion of the bus totally in a cracked condition and the English letters EKB noted in the back side of the body of the vehicle. Commissioner also noted in the Commission Report that complainant told him that he has not received any document including the registration certificate of the vehicle. Hence he is unable to register the vehicle in Kerala. The body of the vehicle also damaged due to rust. There is no battery in the vehicle at the time of inspection. While inspecting the inner side of the vehicle, it is seen that there is 21 seats and the material used to make the seats also got damaged due to non use of the vehicle. There is rust seen in the Engine also. Moreover he submitted six photographs of the vehicle before the Commission.
12. Heard the complainant and perused the affidavit and documents filed by complainant. The allegations against opposite parties are proved by the unchallenged evidence of complainant. There is no contra evidence in this matter. The photographs and the reports submitted by the Commissioner reveals the above mentioned vehicle is in a pathetic condition. From Ext.A1 document submitted by complainant , it is clear that the total consideration of the vehicle has been fixed as Rs. 2,75,000/- and complainant paid Rs.2,45,000/- to opposite party No.1 as an advance. As per Ext. A1 document it is seen that opposite party No.1 has handed over the actual possession of the vehicle to complainant along with Photostat copies of the documents of the vehicle on that day. In the agreement there mentioned that original of the above agreement is in the custody of complainant. But complainant not produced the original agreement before the Commission. From the report of the Commissioner, it is understood that complainant is not in a position to use the vehicle which he purchased for his livelihood. The photographs submitted by the commissioner along with the Report also showing the same. Hence the Commission finds that there is deficiency in service and unfair trade practice on the part of the opposite parties as alleged in the complaint. Hence we allow this complaint holding that opposite parties are deficient in service.
13. We allow this complaint as follows:-
- The opposite party No.1 is directed to refund Rs.2,45,000/- (Rupees Two lakh and fourty five thousand only) to complainant, the amount he had paid to opposite party No.1 as the advance for purchasing the bus as per agreement.
- The opposite parties are directed to pay compensation of Rs.50,000/- (Rupees Fifty thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties are also directed to pay Rs. 25,000/- ( Rupees Twenty five thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 10th day of July, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1
Ext.A1 : Photocopy of the agreement for sale of TATA 407 bus.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
