BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 08^th February 2017

PRESENT

        SRI. RAVISHANKAR         :  HON’BLE PRESIDENT

       SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                        

COMPLAINT NO.65/2015

        (Admitted on 07.02.2015)

K. Divakara Acharya,

S/o Janardhana Acharya, R/at. 2.9B,

Kuttathadka, Punacha, Post and village,

Bantwal Taluk, House,

Kodimbala Post and village,

Puttur Taluk, D.K.

                                                         ……… Complainant

(Advocate for Complainant by Sri. SD)         

VERSUS

Manager,

Saraswathi Credit Sowhardha,

Sahakari N,

Main Branch Darbe,

Puttur, D.K.

                                               ……. Opposite Party

 (Advocate for opposite party. Smt: LCH)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. RAVISHANKAR

1. The Complaint filed this complaint against opposite party alleging deficiency in service in not refunding an amount of Rs. 65,000/- which was paid excess purchase amount by complainant hence prays for direction against opposite party to refund the said amount along with 12% from 10.10.2013 and compensation of Rs.50,000/- for the deficiency in service with another 30,000/- as additional expenses.

The brief facts of the case are as under:

            The complainant had purchased TATA Winger vehicle bearing registration No.KA.21 A.4911 on 26.09.2013 by participated the public auction given by opposite party dated 18.09.2013.  The complainant participated in public auction and successfully purchased the said vehicle for a bid amount of Rs. 1,90,000/ (Rupee One lakh ninety thousand only) in order to pay the said amount opposite party had sanctioned a loan of Rs.1,25,000/ to the complainant and said amount was adjusted towards the purchased price.  The opposite party have deliberately misled the complainant saying it was a good vehicle and manufactured in 2011.  The complainant after auction purchase had inspected the vehicle and noticed that the vehicle is in bad condition on the date of purchase of the vehicle itself the battery was not working and complainant compelled to purchase new batter with miner repair in order to move the vehicle and also spent Rs. 5,000/ for toeing.  The complainant also inspected the vehicle from Shakti motors who gave estimation of Rs.1,33,500/ towards repair of the vehicle.  The engine of the vehicle was completely damaged and vehicle was out of order.  Inspite of that opposite party had tendered the vehicle for public auction.  The said facts intimated to opposite party for which opposite party has sanction Rs.40,000/ for the repair of the vehicle and complainant repaired the vehicle on 26.12.2013.  Even after repair the vehicle was not in good condition. The opposite party by suppressing the condition of the said vehicle have sold to the complainant fraudulently hence opposite party rendered deficiency in service. Finally complainant issued a legal notice dated 01.01.2014 for which opposite party replayed untenably. Further opposite party issued legal notice dated 20.08.2014 for which the complainant also replayed to the said notice on 22.08.2014.  Due to fraudulently act of the opposite party the complainant had purchased the said vehicle in a public auction by paying Rs.1,90,000/.  Thereafter the opposite party had sold the vehicle in a public auction on 23.04.2014 for just Rs.60,000/,  hence it is clearly shows that opposite party at the time of first public auction have over priced the junk vehicle and sold to the complainant.  Hence opposite party is liable to refund an amount of Rs.65,000/ which was collected by opposite party as action purchase money and also prays for direction against opposite party to pay compensation of Rs.50,000/ for deficiency in service as prayed above.

II.      After service of notice opposite party appeared through his counsel and filed version and contended that the vehicle bearing registration KA.21. A.4911 TATA Winger 2011, was dully auctioned on 26.09.2013 by following necessary procedures.  The public auction for sale of the vehicle was published in daily newspaper on 18.09.2013 and date of auction was fixed on 26.09.2013.  On the date there were seven bidders for the said vehicle.  Among the bidders the complainant was the highest bidder and coated amount Rs.1,90,000/ for auction on the vehicle. The bid of the complainant was accepted and opposite party sold the vehicle to complainant as per the procedure of the auction but it is false that this opposite party misled the complainant before auction.  In fact complainant had inspected the vehicle before purchase and after satisfying himself valuanterly participated in the public auction. 

          The vehicle which was auctioned to the complainant previously inspected by authorized panel insurance surveyor of the opposite party and submitted report/valuation of the vehicle on 23.09.2013.  As per the said report the vehicle bearing registration KA.21 A.4911 TATA Winger was in a good condition and at the time of auction it did not require any repairs.  After assessing the condition of the vehicle only it was sold in the auction. 

          The complainant after completion of the auction proceedings requested this opposite party for Sahakari Loan to the tune of Rs.1,25,000/ same was sanctioned on 10.10.2013 but complainant so for had not repaid the loan installments.  Inspite of repeated requests and demand made by the opposite party complainant had not paid the loan amount.  Thereafter having no other alternative this Opposite Party attached the vehicle of the complainant on 23.04.2014 as per due process of law and again it was sold in public auction on 02.06.2014 to recover the outstanding loan amount on the complainant. The vehicle of the complainant was auctioned and auction proceeds was adjusted to the loan account.  And now the complainant is still in due of Rs. 1,27,542/ and complainant is liable to pay said amount.

          There is no any deficiency in service on the part of this opposite party as alleged by complainant and they are not liable to pay any amount as claimed in the complaint hence prays for dismissal of the complaint.

III.  In view of the above said facts, the points now that arise for our consideration in above complaint is as under:

1. Whether the Complainant are proved that the Opposite Parties committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

         In support of the complaint One K. Divakara Acharya, (CW1) complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and

produced document same has marked as Ex C1 to C16.  One Sri. Seetharama Poojary B, (RW1) of opposite party filed counter affidavit and answered the interrogatories and produced the document marked Ex R1 to R22.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the FORA and answered the points are as follows:                  

                       Point No.(i) and (ii): Negative.

                     Point No.(iii): As per the final order.

REASONS

IV. POINTS No. (i) and (ii):

            On going through the pleadings affidavits and documents produced by both complainant and opposite party we noticed that there no dispute that on 26.09.2013 the vehicle bearing registration No. KA.21 A.4911 was sold in public auction for a bid amount of  Rs. 1,90,000/. The only dispute raised by complainant is that Opposite Party has misled the complainant by saying that the vehicle was in a good condition and further alleges after auction purchase he was unable to use the vehicle on the same day of auction and spent Rs. 5,000/ for toeing and left the vehicle for the repair at Shakti motors who gave estimation of Rs.1,33,500/ for repair. Complainant further alleged that Opposite Party  has sanction a loan Rs.1,25,000/, for purchase of the vehicle and also sanctioned Rs.40,000/ for repair of the vehicle.  After repair of the vehicle the Opposite Party have again sold in public auction for meager amount of Rs.60,000/ within 6 month of the purchase of the vehicle.  Hence complainant alleges deficiency in service in misleading the complainant in order to purchase the said vehicle for Rs.1,90,000/ and prays for refund of  amount of the Rs.65,000/ from Opposite Party.

          On perusal of the entire documents produced by both complainant and Opposite Party. We are the opinion that the complainant in the year 2013 had purchased the vehicle by coating highest bid of Rs.1,90,000/ in the public auction.  Accordingly Opposite Party had accepted the highest bid and sold to the complainant thereafter Rs.1,25,000/ was sanctioned to the complainant under the  Sahakari Loan.  The said loan was not repaid by complainant which resulted in public auction of the same vehicle on 02.06.2014.  But after sale of the vehicle in public auction the complainant issued a legal notice to Opposite Party alleging they have sold the junk vehicle to the complainant by misleading as it was good and called the Opposite Party  to pay and amount of Rs. 65,000/ which was excess amount paid by complaint.  The plea taken by complainant is not justifiable because the complainant himself had coated highest bid in the public auction in the year 2013 whereas the another public action held in the year 2014 the highest bid is only Rs. 60,000/. Accordingly the Opposite Party have sold the vehicle to the highest bidder. Hence we are of the opinion that merely the vehicle was sold for lower amount of Rs.60,000/ that does not mean that the Opposite Parties  have suppressed the condition of the vehicle.  Further we are of the opion that the complainant had thoroughly inspected the vehicle before bidding highest amount of Rs.1,90,000/.  Further we noticed that complainant is defaulter in paying the loan instilments which resulted in sale of the said vehicle in public auction again.  The complainant cannot question sale amount of the vehicle in another public auction we found there is no any deficiency in services on the part Opposite Party in the selling the vehicle of the complainant in the public auction to the highest bidder.  The complainant in order to avoid a loan repayment has issued legal notice for repayment of Rs. 65,000/.  The complaint further failed establish the deficiency in service.  Hence the complainant is liable to the dismissed.  And for the above said reason we answer point No. 1 and 2 in negative.

 In the result, we pass the following

ORDER

       The complaint is dismissed. No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.

(Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 8^th day of February 2017.)

      MEMBER                                       PRESIDENT

   (SMT.LAVANYA M. RAI)                  (SRI. RAVISHANKAR)

D.K. District Consumer Forum             D.K. District Consumer Forum

                  Mangalore.                                          Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1: K. Divakara Acharya.

Documents marked on behalf of the Complainant:

Ex.C1: 26.09.2013: Paper publication given by the Opposite Party.

Ex.C2: 01.04.2013: Copy of the Insurance policy.

Ex.C3: 26.09.2013: Receipts issued by the Opposite Party .

Ex.C4: 30.09.2013: Receipts issued by the Opposite Party.

Ex.C5: 05.10.2013: Receipts issued by the Opposite Party.

Ex.C6: 10.10.2013: Receipts issued by the Opposite Party.

Ex.C7: 26.12.2013: Estimate issued by Shakthi Motors.

Ex.C8: 01.01.2014: O/c of regd Notice.

Ex.C9: 20.01.2014: Reply of the Opposite Party.

Ex.C10: 12.03.2014: Notice issued by the Opposite Party.

Ex.C11: 27.03.2014: Reply of the complainant.

Ex.C12: 28.03.2014: Postal Acknowledgement.

Ex.C13: 20.08.2014: Notice issued by the Opposite Party.

Ex.C14: 22.08.2014: Reply of the complainant.

Ex.C15: 25.08.2014:  Postal Acknowledgement.

Ex.C16: 15.10.2013: Receipt issued for toeing.

Witnesses examined on behalf of the Opposite Party:

RW1: Sri. Seetharama Poojary B,

Documents Marked on behalf of the Opposite Party:      

Ex.R1: Policy No. 422207/31/2014/12 for the period from 1.4.2013 to 31/3/2014.

Ex.R2: Copy of the Insurance Policy No.422207/31/2015/38 for the period from 1/4/2014 to 31/3/2015.

Ex.R3: Copy of the document showing payment of Rs.1,25,000 to the complainant.

Ex.R4: Copy of document of Rs.40,000 loan.

Ex.R5: Copy of the vehicle inspection report dated: 23.9.2013 (2 pages)

Ex.R6: Copy of the Vehicle inspection report dated:25.5.2014.

Ex.R7: Copy of seizer report dated: 23.04.2014.

Ex.R8: Copy of the letter addressed to Sri Shakthi Motors, Bantwal.

Ex.R9: Copy of the letter addressed to the station house officer,Bantwal police station dated: 23.04.2014.

Ex.R10: Copy of the inspection and valuation report dated:22.09.2013.

Ex.R11: Copy of the resolution dated 2.6.2014.

Ex.R12: copy of the public notice dated 2.06.2014.

Ex.R13: Copy of the details of persons who participated in the auction on 2.06.2014.

Ex.R14: Copy of the details relating to public auction dated 2.6.2014.

Ex.R15: Copy of the paper publication relating to public auction dated 2.6.2014.

Ex.R16: Copy of public notice dated 26.9.2013.

Ex.R17: Copy of the details relating to persons who were present during public auction on 26.9.2013.

Ex.R18: Copy of the proceedings relating to public auction dated 26.9.2013.

Ex.R19: Copy of the proceedings/resolution relating to public auction dated 26.9.2013.

Ex.R20: Copy of the list of persons who participated during public auction dated 26.9.2013.

Ex.R21:  Copy of the paper publication dated 26.9.2013 relating to public auction.

Ex.R22: Copy of the statement of account of the complainant maintained at the Opposite Party society.

Dated: 08.02.2017.                                       PRESIDENT