The instant consumer complaint is contested by the OPs contending inter alia that the present complaint is frivolous , baseless , harassing , vague , misleading and hit by the doctrines of waiver , estoppel and also is bad for misjoinder and / or non-joinder of necessary party. The case of the OPs 1 & 2 is that the complainant has suppressed the basic and material facts relating to the instant proceedings and has not come with clean hands. It is denied that the sale price included Insurance and transfer fees etc. It was agreed that the complainant would purchase the said car for a sum of Rs.3,15,000/- and out of the said consideration money the complainant had paid a sum of Rs.3,10,000/- and Rs.5,000/- remains due and payable by the complainant . It is denied that the OPs had undertaken the responsibility of getting all the paper works done for getting name transfer in the Smart Card from the original owner. The OPs cannot give assurance that they would get transfer of ownership of the vehicle done since they were neither buyer nor seller of the said vehicle. It is the duty of the buyer to get the ownership of vehicle transferred in his name. The falsity of the claim of the complainant is discernable from the fact that in Delivery Note it is mentioned that the complainant firstly received the original Smart Card and subsequently Xerox amongst other documents pertaining to the said vehicle. It is denied that Smart Card was not given to the complainant. The complainant had left the Smart Card at the office of the OP1 as he did not pay the due amount and moreover he wanted that the OPs should get the name transfer done.It is also denied that the complainant had paid a sum of Rs.5,000/- to the OP2 as alleged at all and had made full payment for purchasing the said car. Further the complainant has failed to mention as to when the alleged cause of action of the said complaint has arisen. As such, OPs have prayed for dismissal of the instant consumer complaint.
Ld. Advocate for the complainant has advanced the case by adducing relevant evidences and documents. OPs 1 & 2 have filed WV supported by an affidavit. But did not rely upon any document. Both the parties replied to the questionnaire set forth by their adversaries of the OPs 1 & 2. We have gone through all the evidences and documents on record and gave a thoughtful consideration to the entire fact.
Admittedly the complainant purchased the said car from the OP1. There is also no doubt that booking amount of Rs.10,000/- was paid on 10/09/2017 and on 22/09/2017 OPs 1 & 2 delivered the said car to the complainant on payment of Rs.3,00,000/- . Photocopy of the delivery note goes to show that on 22/09/2017 the complainant received the following documents from the OP1:
- Original Tax token No.
- Original Policy No.
- Key.
- Spanner, Jack handle.
- Audio panel.
In the place of R. C. Book / Smart Card there is a pen scratch on ‘Xerox’ and ‘Original’ with an initial and thereafter it is mentioned that ‘Xerox on 18/12/17’ with initial . Ld. Advocate for the complainant alleged that only Xerox copy of the Smart Card was provided to the complainant by the OPs and it was agreed between the parties that the OPs will get the Complainant’s name registered in the Smart Card of the said car in the next three months after handing over the car to the complainant. In the WV OPs have submitted that:
In this regard it is stated that the complainant had not paid the entire consideration money to the opposite party No.1 and did not collect the Smart Card on the pretext that he would collect the same when he would pay the balance consideration money but he never paid the balance amount.
The complainant submitted that consideration amount was settled including transfer and policy fees which is denied by the OPs. Neither The Complainant nor the OPs furnished any material document in this regard. Material documents annexed by the complainant reveal that the complainant has paid Rs.10,000/- on 10/09/2017 , Rs.3,00,000/- on 22/09/2017 and Rs.5,000/- was received as T.P Insurance A/C on 18/12/2017 by the OPs. Thus Rs.3,150,000/- is paid by the complainant to the OP1. Ld. Advocate for the OPs argued that the complainant had left the Smart Card at the office of the OP1 as he did not pay the due amount. This submission does not sound logical.
Ld. Advocate for the complainant has mentioned that in the section 50 (Clause 1) of The Motor Vehicle Act 1988 it is mentioned that:
(1) Where the ownership of any motor vehicle registered under this Chapter is transferred,-
(a) the transferor shall,-
(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee;
The complainant submitted that as per abovementioned fact he has not received any such report by post or been handed to him by the OP1 nor by Mahalaxmi Iron Foundry. In the Questionnaire No. 14 the complainant ask the OPsthat :
If the transferor had reported the sale of the car with the registering authority of the motor vehicle department within 14days of the car been handed over to the complainant . Provide the copy of the report ?
Ops answered that :
As far as the opposite parties are aware Mahalaxmi Iron Foundry , the actual owner had reported sale of the said vehicle to the Registering Authority.
In reply of the Question No. 15 of the questionnaire that:
The opposite party handed over the Swift Dzire car to the complainant on 22/09/2017 and gave the delivery note . Fourteen days from delivery date is 06/10/2017 you are required to report the sale to the registering authority of the Motor vehicle department. Is this correct?
OPs answered that:
The actual owner if required to report .
Further OPs submitted that:
The opposite parties cannot give assurance that they would get transfer of ownership of the vehicle done since they were neither buyer nor seller of the said vehicle.
In this regard the complainant put question inNo. 5 of the Questionnaire asking that:
As stated by the opposite party in their written version and evidence in chiefthat the opposite party no 2 cannot give assurance of getting the ownership transfer of the vehicle. Since he is neither the buyer nor the seller of the said vehicle .then why did he receive the payment for the car and issue the money receipt ?
OPs answered that:
Krishna Motor was facilitating sale of the vehicle on behalf of the Mahalaxmi Iron Foundry and SubhamKhetan was working as co-ordinatior of Krishna Motors.
On perusal of the material documents on record no such document is found by us that OPs have received the consideration amount of the said car on behalf of Mahalaxmi Iron foundry. Therefore, theabovementioned submission made by the OPs has no legs to stand as the complainant submitted in the complaint petition that the OP1 is engaged in buying and selling of second hand used car which is not controverted by the OPs. Moreover, the complainant has purchased the car from the OPs and the consideration amount of the said car is received by the OPs, not by the previous owner of the said car namelyMahahlaxmi Iron Foundry.
It is also submitted by the OPs that they have yet to receive an amount of Rs.5000/- from the complainant out of total consideration amount of Rs.3,15,000/- . In this context, replying to the Question No.10 of the Questionnairemade by the complainant asking that:
Why did Opposite party stay quiet for the last 1.5 years and did not contact the complaint, to recover the balance money of Rs.5000/- . Did the Opposite party write to the complainant for the alleged balance due ?
OPs stated that:
Krishna Motors had contacted the complainant over telephone several times for payment of outstanding amount. Not written demand was made.
In the WV also not a single scrap of paper is adduced by the OPs as evidence in this regard. Therefore this submission has no value in the eye of law.It is also observed by us that evidently the Smart Card of the said car is in the possession of the OPs.
In view of the above facts we are of the opinion that the OPs have failed to perform their responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the utter negligence on the part of the OPs. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OPs is proved and the complainant is entitled to get relief/ reliefs.
Based on the above discussion we disposed of the consumer caseon contest against the OPs 1 & 2 in the following terms:-
1. OPs are jointly and severally directed to get the name transferred in the Smart Card from the previous owner of the said car to the complainant’s name.
2. OPs are further jointly and severally directed to make payment of RS.10,000/- as compensation for harassment and mental agony caused to the complainant due to deficiency in service within stipulated period.
3. OPs are also jointly and severally directed to pay Rs.5,000/-as cost of litigation to the complainant.
This order shall be complied within 04 weeks from the date of this order failing which the amount shall carry interest at the rate of 9 percent p.a. from the date of the order till its realization.
The instant Consumer Complaint is thus allowed on contest against the OPs.
Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.
