Complaint No: 188 of 2022.
Date of Institution: 09.09.2022.
Date of order: 22.11.2023.
Aatma Singh Son of Hazara Singh, resident of Village Kotla Suba Singh Tehsil Batala District Gurdaspur.
….....Complainant.
VERSUS
1. Kotak Mahindra Bank, SCO 153-154-155 Basement Sector 9-C Madhya Marg, Chandigarh, through its Manager – 160009.
2. Kotak Mahindra Bank, Branch Manimajra, Chandigarh -160101, through its Manager.
3. Kotak Mahindra Bank, Near Bus Stand, Jalandhar, through its Manager – 144001.
….Opposite parties.
Consumer complaint u/s 35 of the Consumer Protection Act.
Present: For the Complainant: Sh.B.S.Khaira, Advocate.
For the Opposite Parties: Sh.Vaarul Jain & Sh.Satish Kumar, Advocates.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Aatma Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act (here-in-after referred to as 'Act') against Kotak Mahindra Bank Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that complainant has purchased a Truck bearing Registration No.PB-12-T-0153, Chasis No. 01298 and Engine No. 63310872 mode 2013 from Sarwan Ram Son of Santu Ram resident of Village Dolowal Tehsil Anandpur Sahib District Roopnagar on 06.10.2014. It is pleaded that the said original owner Sarwan Ram has also executed the Special Power of Attorney with regard to the vehicle in question in favour of complainant to deal and transact with every department, authority on his behalf. It is further pleaded that the above mentioned vehicle / Truck was hypothecated with the opposite parties and customer relationship No. 31318032. It is further pleaded that since the date 06.10.2014, complainant is plying the above mentioned vehicle on road and has paid all the installments of the above mentioned vehicle due towards opposite parties time to time without any default. It is further pleaded that Complainant possess all the payment receipts in this regard and this very fact is also clear from the statement of account of the above mentioned loan account. It is further pleaded that now when all the installments, amount due towards the opposite parties regarding the above said vehicle has been cleared by complainant, he requested opposite parties to handover the NOC for removal of the hypothecation of the above mentioned vehicle. It is further pleaded that the opposite parties for such purpose has concluded the account and apart from the amount of installment opposite parties further demanded an amount of Rs.27,760/- outstanding towards the client. It is further pleaded that complainant was willing to pay the same. It is further pleaded that the opposite parties initially kept the matter lingered on with one pretext or the other and are unnecessarily harassing the complainant by one way or the other. It is further pleaded that the complainant is still ready and willing to pay the amount if any outstanding towards complainant to get the NOC issued, but the opposite parties with malafide intention to harass and humiliate complainant are not accepting that amount and are also not issuing the NOC to the complainant which is otherwise legal right of the complainant. It is further pleaded that not only this complainant orally as well as in writing requested opposite parties several times to receive the amount and to issue the NOC in favour of the complainant, So that complainant can get the hypothecation removed from the competent authority, but the opposite parties had not paid any heed to the genuine request of complainant. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to issue the NOC regarding the above mentioned vehicle in favour of the complainant and the complainant may be awarded the amount of Rs.1,00,000/- for the physical harassment and mental agony at the hands of the opposite parties and Rs.30,000/- as a cost of litigation.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint is not maintainable against the opposite parties and is liable to be dismissed. It is pleaded that the complainant has not come to the Hon’ble Court with clean hands and has suppressed the material & true facts from this Hon'ble Commission and as such, the complainant is not entitled to seek the relief as prayed in the present complaint against the opposite parties and thus the complaint is liable to be dismissed on this score alone. It is further pleaded that no cause of action has arisen to the complainant to file the present complaint against the opposite parties as no act of deficiency in service has ever been committed by the opposite parties and therefore, the complaint is liable to be dismissed. It is further pleaded that opposite parties have not committed any act of deficiency in service or unfair trade practice and as such, the complaint is liable to be dismissed. It is further pleaded that the complainant is not a consumer of the opposite parties and there is no relationship of consumer & service provider between the complainant and opposite parties and as such, the complaint is liable to be dismissed. It is further pleaded that the complainant is not the owner of the Truck bearing Registration No.PB-12T-0153. It is further pleaded that as per own version of the complainant, the said vehicle was owned by Shri Sarwan Ram son of Sh. Santu Ram and though the complainant has alleged to have purchased the vehicle but the complainant has not placed on record any document showing his ownership over the said vehicle. It is further pleaded that the complainant has alleged that the owner Shri Sarwan Ram has executed a special power of attorney in favour of the complainant in respect of the aforesaid vehicle and apparently, the special power of attorney is not in any manner a document of ownership. It is further pleaded that the complaint has not been filed by competent /duly authorized person and as such, the complaint liable to be dismissed. It is further pleaded that this Hon'ble Commission has no jurisdiction to entertain, try and decide the complaint. It is further pleaded that there are intricate questions of law and facts and the same requires elaborate evidence, which is beyond the scope of this Hon'ble Commission and as such, the complaint is liable to be dismissed.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Aatma Singh, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-11.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Vijender Singh, (Authorized Signatory of Kotak Mahindra Bank, Ludhiana) as Ex.OPW-1,2,3/A alongwith other documents as Ex.OP-1 to Ex.OP-2.
6. Rejoinder not filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant had purchased one truck from Sarwan Ram who being the original owner of the vehicle had executed special power attorney in favour of the complainant. It is further argued that since 06.10.2014 complainant is plying the said truck and has paid all the installments to the opposite parties No.1 and 2. It is further argued that inspite of fact that all the installments have paid by the complainant, opposite parties have further demanded Rs.27,760/- from the complainant and when complainant approached the opposite parties to deposit the same, opposite parties refused to accept the demanded amount and issue No Due Certificate which amounts to deficiency in service.
9. Counsels for the opposite parties have argued that complainant is not registered owner of the truck and has not produced any record and any document regarding ownership of the truck and as such is not entitle to receive No Due Certificate and there is no deficiency in service on the part of the opposite parties and there is no relationship of consumer and service provider between the complainant and opposite parties.
10. We have heard the Ld. counsels for the parties and gone though the record.
11. To prove his case complainant has placed on record his affidavit Ex.CW-1/A, copy of statement of account Ex.C1, copies of affidavits Ex.C2 and Ex.C3, copy of special power of attorney Ex.C4, copy of R.C. Ex.C5, copy of Aadhaar Card Ex.C6, copy of letter dated 11.04.2019 Ex.C7, copy of legal notice Ex.C8 and postal receipts Ex.C9 to Ex.C11. On other hand counsels for the opposite parties have placed on record affidavit of Vijender Singh authorized signatory Ex.OP-1,2,3/A, copy of resolution Ex.OP1 and copy of agreement schedule Ex.OP-2.
12. It is admitted fact that truck bearing No.PB-12-T-0153 is registered in the name of Sarwan Ram. It is further admitted fact that said Sarwan Ram had executed special power of attorney Ex.C4 in favour of the complainant. It is further admitted fact that installments were being deposited by the complainant with the opposite parties. It is further admitted fact that complainant is ready to deposit balance amount if any. It is further admitted fact that opposite parties have refused to issue No Due Certificate to the complainant as he is not registered owner of the truck. The only disputed issued before this Commission is whether opposite parties are liable to issued No Due Certificate to the complainant after receipt of balance amount or not. Perusal of file shows that registered owner i.e. Sarwan Ram had executed special power of attorney dated 20.10.2014 in favour of the complainant as per which all the authority in respect of truck has been given to the complainant and by way of special power of attorney complainant has been authorized to do all the act and deeds in respect of the truck in question and affidavits Ex.C2 and Ex.C3 shows that registered owner has sold said truck to the complainant meaning thereby that complainant being special power attorney holder and beneficiary is fully entitle to deposit the balance amount if any with the opposite parties and receive No Due Certificate from the opposite parties.
13. We have placed reliance upon the judgment of Hon'ble Supreme Court of India in Civil Appeal No.1042 of 2020 in case titled as Canara Bank. Vs. M/S United India Insurance Co. Ltd.& Ors. wherein in para No.25 it is held as under:-
"25. The definition of consumer under the Act is very wide and it not only includes the person who hires or avails of the services for consideration but also includes the beneficiary of such services who may be a person other than the person who hires or avails of services".
As such by relying upon the above referred judgment we are of the view that opposite parties cannot deny to issue No Due Certificate to the complainant after receiving the balance amount if any being beneficiary consumer.
14. Accordingly, present complaint is partly allowed and opposite parties are directed to issue No Due Certificate to the complainant after receiving the balance amount if any and pay Rs.5,000/- as compensation on account of mental tension, harassment and cost of litigation to the complainant within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Nov. 22, 2023 Member.
*YP*
