Orissa

Cuttak

CC/31/2018

Rabindra Kumar Jena - Complainant(s)

Versus

Managing Director,Cholamandalam Investment & Finance Company Ltd - Opp.Party(s)

K C Prusty

20 Sep 2019

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.31/2018

Rabindra Kumar Jena,

At:Bada Nuagaon,P.O/P.S:Jatni,

Dist:Khurda.                                                                                       …Complainant.

 

                Vrs.

1.         Managing Director,

Cholamandalam Investment & Finance Co. Ltd

(Formerly known as Cholamandalam DBS Finance Ltd.),

Dare House Complex,Parry House,2^nd Floor No.2,

N.S.C,Bose Road,Parrys,Chennai-600001,

 

2.         Branch Manager,

Cholamandalam Investment & Finance Co. Ltd

(Formerly known as Cholamandalam DBS Finance Ltd.),

Akash Institute,3^rd Floor,Link Road,Madhupatna,

Dist:Cuttack..                                                                                        … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     19.03.2018

Date of Order:   20.09.2019

 

For the complainant:          Mr. K.C. Prusty,Adv. & Associates.

For Opp.Parties 1 & 2:        Mr. R.K.Pattnaik,Adv. & Associates.

 

Sri Dhruba Charan Barik,President.

The complainant has filed this consumer complaint alleging therein deficiency in service and unfair trade practice on the part of the O.Ps seeking appropriate relief against them in terms of the complaint petition.

1. The factual aspect of the case of the complainant stated in brief was that the complainant intended to purchase a TATA SFC 407 MINI TRUCK so as to earn his livelihood by way of self-employment.  He contacted O.P No.2 and purchased that vehicle bearing Regd. No.OD-05-R-7463 engine no.497SP67NUY638395 and Chassis No.MAT455040F8N27712 from him on consideration of Rs.4,20,000/-.  Added to it Rs.30,000/- was also given to O.P.2 towards insurance expenses.  The copy of the payment receipt and the R.C. book of the said TATA SFC 407 MINI Truck have been filed and marked as Annexure-1 & 2.  The said vehicle was also insured with the Bajaj Allianz General Insurance Company Ltd. vide policy No.OG-18-2403-1803-00000189 on payment of premium of Rs.29,306/-.  The period of the policy was valid from 22.6.2017 to 21.6.2018 but the vehicle was insured in the name of O.P.2.  Annexure-3 is the photo copy of the insurance papers of the said vehicle.

It is important to leave a mention here that even after delivery of possession of the vehicle to complainant on 20.6.17 O.P.2 did not take any step for transfer of ownership of the said vehicle to the name of complainant and also did not hand over the R.C book and insurance papers to him despite repeated requests made by the complainant to this effect.Consequently the complainant was unable to ply the vehicle in absence of the above relevant documents which has caused unnecessary harassment and serious mental agony to him.He has also incurred heavy loss per day for his failure to ply the vehicle for want of documents.

It is further revealed that the O.P.2 has also seized the vehicle in question from the possession of the complainant without supplying copy of the seizure list to him despite his request.The complainant has availed loans from outsiders as well as from the bank by mortgaging his gold ornaments to finance the purchase of the said vehicle and has been paying interest on the loan regularly.As such he has incurred heavy loss on that score for keeping the vehicle idle on the road.Such arbitrary and illegal action of the O.Ps is tantamount to deficiency in service and unfair trade practice on their part.Lastly he has filed this case against them with prayer to direct the O.Ps to transfer the ownership of the vehicle No.OD-05-R-7463 in favour of the complainant, to pay compensation of Rs.30,000/- permonth since 20.6.2017 towards compensation on account of financial loss and to pay a sum of Rs.2,00,000/- towards compensation for mental agony and harassment together with Rs.10,000/- towards litigation cost to him in the interest of justice.

2. O.Ps 1 & 2 have filed joint written version for their case.  While traversing the material averments in the complaint petition, O.Ps 1 & 2 have stated that  the complainant being an auction purchaser of the vehicle in question is no more a consumer as defined U/S-2(1)(d) of the C.P.Act.  It is also stated that the said vehicle was purchased on the condition “as is where is” basis as revealed from the sale acceptance letter dt.19.6.17.  Annexure-B is the copy of the said letter filed in this case.  Annexure-A is the copy of the quotation of the complainant dt.29.5.17 for his participation in the auction bid.  It is further stated that the sale-acceptance letter Annexure-B stipulates the condition that it is the sole responsibility of the complainant to get the ownership of the said vehicle transferred in his name and the O.Ps will not be liable for it in any manner whatsoever.  No undertaking has also been given in the sale certificate by the O.P.2 that no arrear was outstanding against the complainant at the time of sale.  The complainant has also issued a letter of indemnity to the O.P., on 19.6.17 wherein the complainant has taken the vehicle after clearly understanding the terms and conditions that the complainant is solely responsible for transfer of ownership to him and the original R.C book in the name of the O.P.2 will not be handed over to the complainant.  Annexure-C is the copy of the said letter of indemnity issued by the complainant.  While giving para-wise comment in rebuttal to the averments made in the consumer complaint, the O.Ps have stated that when the complainant filed an application before the concerned R.T.O for change of ownership of the said vehicle in his name, the original owner made a complaint before this Forum vide C.C No.92 of 2017 in which an interim order was passed at the request of the said original owner against the O.P.  in that case that no coercive action can be taken against the vehicle in question.  On the basis of the said interim order, the concerned R.T.O blocked the process of change of ownership of that vehicle to the name of the complainant.

In view of the facts and circumstances stated above, it is prayed that there are no materials to prove that there was deficiency in service or unfair trade practice on the part of the O.Ps in any manner.Rather the complainant is guilty of suppression of material facts.Accordingly it is prayed that the consumer complaint being devoid of merit may be dismissed in the interest of justice.

3. We have heard the learned counsels from both the sides, gone through the contents of the pleadings and the Annexures filed by the parties to this case.

At the outset the learned counsel for the O.P has called din question the very maintainability of the case, mainly on the ground that the complainant is not a consumer and that he is guilty of suppression of material facts.Further submission advanced by the learned advocate for the O.P goes to show that since the complainant is an auction purchaser of the vehicle inquestion he cannot be a consumer as defined U/S-2(1)(d) of the C.P.Act.That apart, it is also submitted that the vehicle was sold in auction to the complainant on ‘as is where is’ basis pursuant to the sale acceptance letter accepted by the complainant.Annexure-B is the said sale acceptance letter by virtue of which the sale was made on payment of consideration of Rs.4,20,000/-.On verification of Annexure-B it is revealed that complainant has agreed to the condition that transfer of registration of the vehicle immediately on taking delivery possessionor within the statutory period by law or by the R.T.O whichever is earlier shall be done at the risk of the complainant and he is solely liable to the consequences arising there from in the event of any dispute. if it is not so done.Added to it it is stated by the learned counsel for the O.P that the complainant has issued a letter of the indemnity as per Annexure-C thereby undertaking to indemnify the owner in case of any default and it has been signed by the complainant after full understanding of the contents thereof.The learned counsel for the complainant has failed to seriously counter the points leveled against him by his counterpart.

The law is well settled that when sale is made on ‘as is where is’ basis and the complainant participated in the open auction he cannot be treated as a consumer.This view has been taken in a decision reported in Ram Kishan Vrs. Chandigarh Administration,II(2014) CPJ 152(Chd.).In another decision reported in Suresh Kumar Sharma Vrs. Raju Sen,(2015) 432(NC) by the Hon’ble National Consumer Disputes Redressal Commission it has been held that when auction is made on ‘as is where is’ basis, any dispute arising out of it cannot be treated as consumer dispute.Reference may be made to another decision of the Hon’ble National Commission reported in Rakesh Jhunjhunwala Vrs. Rajasthan Housing Board,III(2010) CPJ 274(NC).In that case a house was purchased in public auction and offer was accepted on the basis of ‘as is where is’ it has been held by the Hon’ble National Commission that in such a case the complainant is estopped from raising any grievance in terms of deficiency in service etc .Another decision on this point has been reported in Sunil Kumar Vrs. New Mandli Township III(2014) CPJ 241 (NC) it has been held that consumer For a have no jurisdiction to try the case of open auction.There is no submission made by the learned counsel for the complainant contrary to the findings of the decision supra.

The next point for consideration as advanced by the learned advocate for the O.P is that the complainant is guilty of suppression of material facts and has not approached this Forum in clean hand and as such he is not entitle to the relief as prayed for on the ground of equity and fairness.

Admittedly there is no averment in the complaint petition that the complainant purchased that vehicle by participating in the auction sale and that he is a defaulter in payment of loan installments although the fact of seizure of the said vehicle has been admitted.The complainant has also not disclosed the material fact about the filing of C.C No.92 of 2017 before this Forum by the previous owner of the vehicle in question where interim order was passed for not taking any coercive action against that vehicle.The complainant has also suppressed the material fact with regard to sale acceptance letter and indemnity bond as stated above.Those facts have got material bearing on the merit of the case and material suppression of those facts could definitely disentitle the consumer to any relief as prayed for.No satisfactory reply has been furnished to it by the learned advocate for the complainant. As such it is held that the complainant is guilty of suppression of material facts and has not approached this Forum in clean hand.Hence the allegation of deficiency in service rendered and unfair trade practice adopted by the O.Ps in this case has failed.Hence ordered;

                                                                                ORDER

The case be and the same is dismissed on contest against the O.Ps.

                Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 20^th day of September,2019  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                     President.

                                                             

 

                                                                                                     (Smt. Sarmistha Nath)

                           Member(W)