DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.419 of 2016

                                                Date of institution:  08.07.2016                                              Date of decision   :  23.09.2019

Jaswinder Kumar son of Nirmal Chand, resident of Aman Nagar, Ward No.6, Sirhind, Tehsil and District Fatehgarh Sahib.

…….Complainant

Versus

1.     Magma Fincorp Limited, SCO 75, IInd Floor, Phase-IX, Mohali through its authorised signatory.

2.     Magma Fincorp Limited, having registered office at 24, Park Street, Kolkata 700016 through its Director.

                                                      ……..Opposite Parties        

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri Sanjeev Singh proxy counsel for the complainant.

                Shri Tushar Arora, counsel for  OPs.

Order by :-  Shri G.K. Dhir, President.

Order

               Earlier OPs financed truck bearing registration No.UK-06-CA-4689 to one Avdhesh Goswami regarding which  entry was incorporated in the records of DTO, Rudarpur, District Udham Singh Nagar, Uttrakhand in favour of OPs. Said Avdhesh Goswami  failed to repay financed amount, due to which possession of the vehicle was taken by OPs. Thereafter OPs sold said truck to complainant on 21.12.2015 for total sale consideration of Rs.6,53,000/-. That amount was paid by complainant on 21.12.2015 in office of OPs at Mohali. Truck was purchased by complainant for earning livelihood. After receipt of sale consideration, it was the duty of OPs to deliver possession of truck without imposing any charges, but OPs forced complainant to take possession of truck from its parking place situate at City Shiv Kirpa. Complainant paid parking charges of Rs.11,500/- at the said parking place for taking possession of the truck. That amount liable to be refunded by OPs. Besides, OPs were bound to provide registration certificate, insurance cover note, pollution, route permit etc. to complainant so as to give transferable right to complainant. OPs issued no due certificate of truck in favour of complainant for the purpose of cancellation of hypothecation note. While receiving total sale consideration amount of Rs.6,53,000/-, OPs concealed the fact from complainant regarding pendency of litigation of truck in question. While receiving sale consideration, OPs delivered Form No.29, 30 and 35 to complainant, but did not deliver the remaining documents referred above. Complainant had to get the truck repaired by paying amount of Rs.30,000/-. Complainant had to visit Hardoi and Haridwar from his residence at Sirhind by spending Rs.5,000/-. Even complainant had to spend Rs.13,000/- for submitting papers for transfer of truck. Complainant visited Mohali for payment of sale consideration and for contacting OPs for getting the truck transferred in his name. Expenses of Rs.62,500/- in all were spent by complainant. Complainant after making enquiries from  transport authorities of PS Billgram, Hardoi  found as if truck was involved in litigation pending in the court of Ld. CJM, Udham Singh Nagar. It was on account of this that concerned transportation authority expressed its inability to transfer the truck in the name of complainant. Complainant since after purchase of truck is not in a position to enjoy the same for want of RC etc. and that is why by claiming that OPs adopted unfair trade practice, this complaint filed for seeking return of Rs.6,53,000/- alongwith cost of Rs.62,500/-  and interest @ 12% per annum from 21.12.2015 till realisation. Compensation for mental agony and harassment of Rs.2.00 lakhs and litigation expenses of Rs.20,000/- more claimed.

2.             In reply filed by OPs, it is claimed that complainant purchased the truck in question in open auction conducted through internet. As and when purchase is made on “as is where is basis”, in open auction, then relationship of consumer and service provider do not exist. It is claimed that vehicle has been sold to complainant on “as is where is basis.” Complainant was fully  made aware that the vehicle is repossessed vehicle on account of default of payment of dues of OPs.  Complainant is fully aware that as and when the vehicle is repossessed on account of default in payment, then original owner of the vehicle would not be in a position to provide additional support in matter of transfer of vehicle. Despite that all the documents available with OPs were provided to complainant. Complainant before purchase of vehicle was aware of the status of vehicle. Value of such vehicle sold is normally less than the market value. Complainant participated in open auction, by making bid after knowing status of vehicle.  Complainant is owner of several vehicles and as such he is not entitled to the benefits of provisions of Consumer Protection Act. It is denied that the vehicle was to be used by complainant for earning livelihood. OPs never gave assurance for owning responsiblility of transfer of the vehicle. Totally false and concocted story has been put forth. All expenses pertaining to assembly, disassembly, load etc. required to be incurred for taking delivery of assets. All RTO formalities required for transfer and NOC to be performed by the buyer and buyer to bear expenses in respect thereof also as per terms and conditions of open auction. Complainant has not made any reference to the litigation of truck deliberately. In case the concerned transport authority has refused to transfer the truck in the name of complainant, then complainant is at liberty to move concerned court.  Allegations of deficiency in service on part of OPs or of adoption of unfair trade practice by OPs denied one by one each.

3.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-7 and Mark-A  and then closed evidence.   On the other hand, counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Himendra Pal, Assistant Manager Legal alongwith documents Ex.OP-1 to Ex.OP-7 and then closed evidence.

4.             Written arguments submitted by the parties. Oral arguments heard and records gone through.

5.             From perusal of documents Ex.C-1 to Ex.C-6 as well as Ex.OP-1 to Ex.OP-4, it is made out that repossessed vehicle on account of default committed by Avdhesh Goswami was sold by OPs to complainant for Rs.6,53,000/-.and thereafter OPs issued NOC dated 11.02.2016 and even handed over Form No.35, 30 and 29 to complainant. In fact Form No.29, 30 and 35 bear signatures of Avdhesh Goswami for showing that he has no objection in case certificate of registration in his name is cancelled because he has sold the truck in question. Name of the seller is not at all mentioned in Ex.C-3 to Ex.C-5. Ex.C-2 = Ex.OP-1 was issued by OPs as NOC for claiming that their lien on the vehicle may be deleted from the records of registering authority of  Motor Vehicle Department. OPs after receipt of Rs.6,53,000/- issued slip Ex.C-4 = Ex.OP-4 in the name of Shiv Kirpa Service Station for calling upon later to release truck in question in favour of complainant. This purchase was made by complainant from Ops through online transaction effected through Car Trade Exchange, is a fact borne from Ex.OP-6. Quotation for purchase of this repossessed truck was submitted by complainant through Ex.OP-5.

6.             As per condition No.2 of Ex.OP-5 complainant understood that he is solely responsible for all past and future RTO liabilities, State Permit, Tourist Permit, insurance premium etc. or any other statutory dues unpaid at the time of taking delivery of vehicle. Besides through Clause No.3 of Ex.OP-5, complainant rendered himself solely responsible for transferring the vehicle in his name and get the duplicate RC or any other relevant papers from the concerned RTO. Signatures of complainant on this Ex.OP-5 are there  and as such in view of this certainly submissions advanced by counsel for OPs has force that complainant himself undertook to get all the formalities of transferring the vehicle rights in his name performed by him. If that be the position, then certainly complainant estopped from filing this complaint by claiming that liability of OPs to provide duplicate RC and other relevant papers for transfer of vehicle in his name is there. Terms of contract binds a party and as such complainant in view of contents of Ex.OP-5 read with agreement Ex.OP-2 arrived at between him and OPs, bound by terms thereof. Even in Ex.OP-2, agreement signed by complainant, it is mentioned that the truck is sold by constituted attorney of OPs on “as is where is basis” only. All expenses and other legal charges regarding formalities of transfer and NOC to be borne by buyer at his  cost as per Clause 3 (f) of Ex.OP-2. Being so, complainant now estopped from claiming that formalities of transferring the vehicle were to be undertaken by OPs at their expenses. Terms of contract binds a party and nothing can be added or subtracted thereto. If at all complainant wishes to claim that he has been defrauded in getting his signatures on Ex.OP-2 and Ex.OP-5 obtained, then remedy available for complainant is to approach civil court or competent court for redressal of grievance because complicated question of law and facts cannot be gone into in the summary proceedings of consumer complaint. In holding this view, we are fortified by law laid down in cases titled as P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (NC);  Bright Transport Company Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC): Oriental Insurance Co. Ltd. Vs. Munnimaesh Patel IV (2006) CPJ 1 (SC); Reliance Industries Ltd. Vs. United India Insurance Co. Ltd., I (1998) CPJ 13 (NC); M/s. Singhal Swaroop Ispat Ltd. Vs. United Commercial Bank, III (1992) CPJ 50 (NC); Sagli Ram Vs. General Manager United India Insurance Co. Ltd. II (1994) CPJ 444;  Harbans & Co. Vs. State Bank of India, II (1994) CPJ 456; Jayantilal Keshavlal Chauhan Vs. The National Insurance Co. Ltd. 1994(1) CPR 396 and Ranju Devi Vs. Branch Manager, State Bank of India 2015(4) CLT 131 (JHK).

9.             As a sequel of above discussion, the complaint dismissed but with the observations that the complainant will be at liberty to approach civil court/forum for redressal of his grievance. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

September 23, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member