DISTRICT CONSUMER DISPUTES REDRESSAL FORUM. BOLANGIR.
………………………
Presents:-
- Sri P.Samantara, President.
- Sri G.K.Rath, Member.
- Smt. S.Rath, Member.
Dated, Bolangir the 31st day of August 2016.
C.C.No. 76 of 2014.
1.Ramakanta Rout, age-30 years son of late Hrushikesh Rout.
2.Pramodini Rout,age-47 years w/o. late Hrushikesh Rout.
3.Khileswari Patel @ Rouut,age-21 years d/o late Hrushikesh Rout.
4.Puspanjali Rout,age-24 years d/o.late Hrushikesh Rout.
5.Sushama JRout, age-21 years D/O.late HrushikeshRout.
All are resident of Rajpur (Nuapada Town) P.O/P.S
& Dist- Nuapada.
.. .. .. Complainants.
-Versus-
1.Mahindra & Mahindra Financial Services Ltd.Sadhana House,
2nd Floor,570,P.B.Marg,Worli,Mumbai-400018.
2.Mahindra & Mahindra JFinancial Services Ltd,Bolangir Branch,
At/P.O/P.S/Dist- Bolangir.
3.Royal Sundaram Alliance Insurance Company Ltd.
Regd.Office-21,Patullos Road, Chennai-600002.
4.Royal Sundaram Alliance Insurance Company Ltd.
Radhika Complex, Second Floor,Cuttack Road, Jharpada,
Bhubaneswar-751006,Odisha.
5.Minerva AutoMobiles,NH-26, SambalpurRoad, Madhiapali,
Bolangir, P.O/P.S/Dist- Bolangir, Odisha.
.. .. .. Opp.Parties.
Adv. for the Complainants- Sri B.C.Pradhan & Associates.
Adv. for the O.Ps 1 & 2 - Sri B.K.Nanda & Associates.
Adv.for the O.Ps 3 & 4 - Sri R.K.Mohakur & Associates.
Adv. for the O.P.No.5 -Sri A.K.Mishra & Associates.
Date of filing of the case – 03.11.2014
Date of order -31.08.2016
JUDGMENT.
Sri P.Samantara, President.
The complainant Ramakant Rout has filed the case by virtue of legal heir certificate issued by Tahasildar, Nuapada and subsequent authorization of the remaining heirs in averring that purchased a vehicle “Bolero SLX, white, the Engine No.GPDHM8167,Chasis Noa.MAIPS2GPKE5A8212, on dt.10.02.2014.Further averred the Bolero SLR costs Rs 7,51,163/-.The complainant has paid total a sum of Rs 4,07,525/- vide receipt No.129 dt 10.01.2014 and receipt No.404 which includes margin money Insurance charges, MAS & 1 years MLS and other charges.
2. The complainant also added, documentation process was completed, where the vehicle was insured along with life of one named Hrusikesh Rout vide policy No. VPC. 06208980000100 and intermediary code No.BR260000 bearing intermediary Name- Mahindra Insurance Brokers Ltd and delivered the vehicle.
3. The complainant stated, his father died on dt.23.02.2014 and lodged a claim in indemnification of the outstanding loan. The vehicle remain unregistered and in possession of the complains the claim lodged by the complainant was repudiated and demanded a sum of Rs 4,80,000/- towards finance amount.
4. The complainant further stated without prior notice, the vehicle was repossessed by O.P.No.5 forcibly on dt.29.9.2014. Latter did not release the vehicle and backtrack in process of death claim assurance. The loan was guaranteed by Dhanesh Dandsena in which presence, Minerva Auto mobile herein after O.P.No.5 has taken a sum of Rs 4,07,525/- which includes Registration charges in RTO, vehicle Insurance, death insurance cover of loanee, under 1 year MLS,MAS 1st installment, down payment along with other charges. Praying in the interest of justice O.Ps 1 and 2 may kindly be directed to collect the death claim benefit of the Insured Hrusikesh Rout and repay the same towards the finance amount and supply the registration paper of the vehicle along with compensation and cost. Relied on Insurance cover note and policy Memo of authorisation, Finance proposal copy, Gate pass/delivery challan, cash receipt, Money receipt of booking amount, cheque bearing No.2044, Letter dt.28.04.2014, Death certificate, legal certificate and affidavit.
5. In pursuance to notice, the O.P.1 and O.P.2 remain silent with omit & ignoring the forum, giving enough opportunity as it’s appearance is strictly necessary in adjudication of the case, which yield no result.
6. In response to the notice, the O.Ps 3 & 4 appeared in too deferred date. Submitted that the motor policy issued bearing No.VPC06208980000100 is valid from 10.02.2014 to 09.02.2015 with regard to commercial vehicle having make of Mahindra Bolero. The motor policy covered only accidental damages not any death claim, under the motor insurance policy such claim is untenable and unsustainable. Therefore no such payment arises on demise of Hrushikesh Rout to pay for any out-standing loan amount. No claim has been lodged also submitting that without establishing any just cause and with unclean hands, with the sole intention of gaining lawfully from those O.Ps.
7. Further contending the complaint is not maintainable either in law or on facts and liable to be dismissed in limine also complaint is liable to be dismissed on this preliminary ground of non disclosure and concealment of material facts.
8. Further submitting that the complaint is not maintainable before this forum since this forum lacks territorial jurisdiction to entertain this matter as the complainant had taken a motor policy from the Bhubaneswar office, vehicle was financed through Mumbai office, so the complaint is not maintainable in view of the various decisions. Praying the complaint may kindly be dismissed with costs as the matter is unsustainable under the law.
9. The O.P.5 appeared and submitted that the petition is false, imaginary and frivolous, further submitting the complainant has mislaid the court by filing false affidavit to gain faith of this forum. There are total of (5) petitioners in the above noted case but they have not signed the petition filed by them, moreover the present complainant has no locustandi to file the present case. This O.P has not received the full consideration amount of Rs 7, 51,163/- from the proposed purchaser. Late Hrushikesh Rout who made part payment of Rs 4, 07,525/- and under arrangement of finance of the rest amount unfortunately died with an expectation that it will be financed and receive the balance & delivered the vehicle. The buyer handed the vehicle to this O.P, no force has been applied. The O.P has no evil intention in the matter. Moreover the petition filed by the petitioner is not tenable in the eye of law as they are not consumer as per the description prescribed in the C.P.Act.
10. Heard the complainant and respective learned counsels at length and perused the record.
11. On perusal of record, it is come across, out of five nos of O.Ps only three appeared and made their version. O.Ps 1 and 2 neither appeared nor made any version, having provisioned with various opportunities. It is also made out without participation of O.Ps 1 and 2,the case plunged into complex mad having no go through hence we decided as per the material available on record.
12. The complainant in purchase of a vehicle (Bolero SLR) deposited advance money, booking amount and Insurance charges inclusive of processing fee with Minerva Automobiles admittedly respectively on dated 10.01.2014 and 10.02.2014,vide receipt No.404 and 129 total amounting Rs 4,07,525/-,whereas the vehicle costs Rs 7,51,163/- the remaining Rs 3,43,638/- while in process of finance from O.P.No.1 and 2,the complainant died without completion of documentation. Further argued the petitioner deposited some money towards MAS and 1 year MLS- which mean Surakshya coverage means in case of petitioners death, the dues remain in repayment of loan to be covered by the finance or receiving party, complained through money has received such indemnification is not effected thus the case.
13. When no loan is sanctioned or disbursed by the financer and document has been sought in process of same and so also the nature of finance is obligatory we considered no liability can fastened on the financer in the pretext that loan has been disbursed and premium of insurance has been taken is unreasonable and illogic to the case.
14. The O.Ps appeared vehemently contended, the petitioner is not a consumer and the court lacks jurisdiction, competent locus standi, thereby maintainability is ousted.
15. On such issue, we gone into extensive consideration. The petitioner is an heir apparent and got the authorization of the remaining heirs to lodge the case as the records goes and became a petitioner so the mandatory provision u/s.2(1)(v) has been complied with.
16. On the question of jurisdiction, the complainant made an affidavit he is a resident of Nuapada town and District Nuapada. Admittedly the vehicle is snatched on dt.29.09.2014 while plying at Nuapada town so the no part of cause of action does not arises at Bolangir district and section 11(1) (b) envisages on application a permission be sought in encompass of jurisdiction, which is also a mandatory requisite prior to entertain the case which is found to be in short.
17. Further on the fact, it is shrouded that the finance company did not prefer to appear. So also without getting money the vehicle has been delivered on faith and believes. Even the O.P.5 has been advised by O.P.s 1 and 2 to collect documents as indicated in the finance proposal form before the delivery of the vehicle still not clear. On the other hand O.Ps 3 and 4 has issued comprehensive motor policy along with cover note but it is not on the record or in version, who paid the insurance premium, which is not clear and transparent, whereas the statutory requirements spells:
Central Motor Vehicle Rule 42 says:- Certificate Holder (Or dealer) shall not deliver the vehicle to the purchaser/vehicle owner without registration of the vehicle, whether it is permanent or temporary registration. Accordingly, on sale of vehicle the dealer collects motor vehicle registration fees and road taxes from the purchaser/owner and deposits to the RTO for permanent or temporary registration.
(ii).The trade certificate holder is supposed to stock a fixed number of vehicles (Chassis ) as specified in trade certificate issued to him.
ONLINE DEALER POINT REGISTRATION:- On line application for registration of vehicle from Dealer point (DPR) is full proof value addition based application. The dealer (Trade Certificate Holder) enters data that required in form -20 for registration of a vehicle and submits the documents to RTO for physical verification and registration. No assignment.
The dealer enters chassis numbers of all new arrived vehicle. The chassis numbers need to be approved online by the RTO/IMV to comply section 44 of the CMV rule. Once the dealer chassis is approved, then only the dealer can enter the details of the vehicle sold. The dealers have to enter the application for registration in form 20 by “T” + 1 day.
ONLINE DEALER POINT:- Mandatory benefit or provision available.
(i)Dealer has to apply online for registration in form-20 and pay fees and tax as calculated by the system by ‘T’+1 day where ‘T’ is the date of sale.
(ii) Minimized the plying of un-registered vehicle on road as registration process can be completed on same day or next day.
(iv) Stock of Trade certificate Holders recorded and penalty can be raised over stock.
(v) Vehicle not authorized by the RTO can’t be sold or registered.
(vi) Blocks the dealer login, if its validity of trade certificate is expired.
18. Under the above enumerated circumstances the dealer can’t wriggle out of his responsibility/obligation liability from sales to registration and insurance which is statutory and also directive by the authority, thus it is evidential he has also not come with clean hands before this forum.
19. In addition, the finance proposal form issued by Mahindra Finance on dt.10.02.2014 and therein the break up calculation on the right side of the document speaks respectively under other head MAS-2315 and 1 year MLS 3948 collectively amounting to Rs 6,313/- has to be collected or is to be received is not clarified by appearing O.Ps end. No document persists to observe on such specific issues or same amount has been collected by O.P 1 and O.P.2.
20. Again the petitioner paid booking amount of Rs 10,000/- and advance payment (direct payment) of Rs 3,97,525/- to the O.P.5 which as per his submission does not include any charges. And also submitted if any charges or Insurance cover of ‘loan money Surakshya” as claimed. That would have to be covered after the necessary finance, which is neither completed nor disbursed. So it appears O.Ps are at collusion and made the version with unclean hands. So also the petitioner mislaid the court on jurisdiction and also approached with unclean hands to grapple the apple from the consumer orchard taking shelter under consumer protection Act.
21. The entire fact is a mixture of truth, mistruth and half truth is filed in an articulated conceived manner being in perverse as it is clear evidential parties are evasive and in collusion.
22. In view of the above noted discussion, and peculiarity of fact and material on record, we prefer to order as indicated.
ORDER.
The O.Ps are directed to refund the sum of Rs 4,07.500 – Rs 30,000 = Rs 3,77,500/- ( Rupees three lakhs seventy seven thousand five hundred) only to the complainant within 45 days of this order through the Forum, failing which the amount shall carry interest @ 6% per annum till payment. On the other side complainant is directed to return the vehicle to the O.Ps and receive the amount in intimating the forum in writing that the delivery has been effected on date and time.
No order on cost & compensation.
Interim order issued from time to time is herewith vacated.
(P.Samantara)
PRESIDENT.
