Date of filing : 17.03.2021
Date of order : 22.02.2023
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
WEDNESDAY THE 22th DAY OF FEBRUARY 2023
CONSUMER COMPLAINT NO. 08/2021
St. Thomas Hospital & Leprosy Centre,
Rep by its Ms.A.Maria rathinam,
Chief Executive Officer,
Chethupattu Taluk,
Tiruvannamalai District - 606 801. …..Complainant
-Vs-
1. Mr. Arunkumar Jain ,
Director,
Sayar Automotive (P) Ltd.,
Perumugai Village,
Vellore – 632 009.
2. Mr.R. Pradeep @ Vishnu Pradeep,
S/o. Ramalingam,
No.B – 42, Sare Homes,
Kolathur Village,
H/o. Singaperumal Koil,
Kanchipuram District – 603 209.
3. The Manager,
M/s. AXIS Bank,
No.4, Upper Ground Floor,
1st East Main Road,
Gandhi Nagar,
Vellore – 632 006.
4. The Managing Director,
TATA Motors Corporate Office,
Bombay House,
No.24, Homi Mody Street,
Fort Mumbai,
Maharastra State – 400 001. ….Opposite parties
Counsel for complainant : Tmt. K.K. Kavitha
& Thiru. D. Samuvel Abraham
Counsel for first and second opposite parties : Set exparte on 30.01.2023
Third opposite party : Set exparte on 18.07.2022
Fourth opposite party : Set exparte on 17.06.2022
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
This complaint has been filed under section 12 of Consumer Protection Act 1986. The complainant has prayed this Hon’ble Commission to direct the opposite parties 1 to 4 jointly or severally to pay the cost of the vehicle through RTGS for a sum of Rs. 12,04,126/- with interest p.a. 12% and to pay the subsequent expenditure Conveyance and Incidental Charges & Loss of Income for a sum of Rs.1,50,000/- and to pay the advocate fee, xerox and other out of pocket expenses for a sum of Rs.25,000/-.
1. The Case of the complaint is briefly as follows:
The complainant’s Institution has a very strong Community Health Service Department, which has multifarious activities for the rural people. Every Tuesday Diabetic patients are tested free of cost in the Diabetic Clinic in OPD. The Institution waives medical bills for the deserving patients ranging from 10% to 15% of the total bills; provides and old – age home for the leprosy patients in the hospital premises where food, accommodation and medical treatment are free. Free Eye Camps and Free Plastic Surgery Camps are organized for those who are in need. During the time of Covid-19 epidemic, food materials, PPE kits, Gloves, Masks, Hand Sanitizers and sprayers were distributed to all patients, public at large in the nearby Villages etc., as an immediately relief. The complainant had decided to purchase a vehicle which could carry a team of Health Care Professionals to the Villages and hamlets within a radius of 5o kilometres. Accordingly, the complainant approached the First opposite party, who is the dealer of TATA Brand Vehicles at Vellore for purchasing a new vehicle, manufactured by opposite party No.4. The complainant would further submit the Managing Director of Opposite party No,1 received the complainant with proper respect and called Opposite party No.2, being the sales executive to look into the requirements of the complainant. after much deliberations, the complainant and her team selected a vehicle TATA safari storme LX model and obtained a quotation cum proforma Invoice No.2542, dated 13-11-2017 for a total amount Rs.12,04,126/- officially in the presence of No.1 and No.2 of opposite parties. Opposite party No.2 assured to deliver the Vehicle the day full payment was made as per proforma Invoice. Opposite party No.2 provisionally allotted to the complainant a vehicle bearing chassis No MAT617034, HANB00349, 54077226ABFR, BSYJ03539 on 25-11-2017 which happened to be a Saturday. The complainant would further submit that opposite party No.2 orally communicated to the complainant that he would communicate the correct bank details for transferring the amount by way of Real Time Gross Settlement (RTGS) mode later on Monday. Opposite party No.2 had also stated that there are many types of accounts for the company., i.e., one for salary, one for spare parts, one for sale of new vehicles etc. In as much as opposite party No.2 had been working for opposite party No.1 and opposite party No 1 delegated this work to Opposite party No.2, the complainant had to go with the words of Opposite party No.2 to remit the amount by bank transfer as he informed the complainant that cheque/DD payment would delay the matter and that particular vehicle would be sold to others who would come with ready cash. The complainant received E.mail from No.2 of Opposite party furnishing a bank account as detailed follow:
Vellore sayar Automotive
Account No: 917020074531324
Branch : Axis Bank, Katpadi
IFSC : UTIB0002823
As a genuine and prudent purchaser, complainant believed this account, being a current account, from a reputed Bank like Opposite party No.3 presuming that account would have been opened with due process of verification etc., the complainant believed this to be genuine, remitted the total cost of the vehicle as the events happened so far were chain of systematic activities where there arose not even an iota of doubt. The complainant would further submit that on 28-11-2017 when the complainant enquired about the date of delivery of the new vehicle as they remitted full money, the complainant was informed by the company office, that money had not been received in the company account and Opposite party No.2 has been received in the company account and Opposite party No.2 has been absconding from attending office. Subsequently a police complaint was preferred and accordingly complainant was lodged and an FIR had been registered in District Crime Branch (DCB), Vellore in No.16/2018 on 31-03-2018 under section 420,294(b) 506(1) of IPC. The complainant submits that opposite party No.1 appointed No.2 of the opposite party as sales Executive in Officer Cadre, and authorized to handle all sales activities from enquiry till vehicle is delivered to the customer. In as much he had been authorized by opposite party No.1, and as a principal Agent relationship exists, No.1 of the opposite party has to own complete responsibility of the misdeeds and misappropriation of the amount by Opposite party No.2. The complainant submits that opposite party No.3 is also guilty in all these fraudulent activities as all procedures, rules, RBI directions and safeguards were floated on the air with an ulterior motive with a main aim of helping opposite party No.2 to open a current account with similar name of an existing organisation in Vellore, till full amount was encashed, with a tune of Rupees 13 Lakhs in one transaction that too in cash. Hence this complaint.
2. On receipt of the notice from this Hon’ble Commission. Opposite parties did not appear, the opposite parties called absent set exparte.
3. Proof affidavit of complainant filed. Ex.A1 to Ex.A7 were marked. Written argument of complainant filed and oral argument heard.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
parties?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS. 1 & 2:
The complainant is a Christian Minority Institution they wanted to purchase a vehicle for the purpose of mobile health care activities in and around of Chethupattu Taluk. The complainant Institution had decided to purchase a vehicle from the first opposite party. The second opposite party is servant of first opposite party. They had purchased the first opposite party after much deliberation the complainant and the team selected a vehicle TATA Safari Storme LX Model and obtained a quotation cum Proforma Invoice No.2542 dated 13.11.2017 for a total amount of Rs.12,04,126/- officially in the presence of first and second opposite parties. The second opposite party assured to deliver the vehicle. When the full payment was made. The opposite party professionally allotted to complainant a vehicle Bearing Chasis No. MAT617034, HANB00349, 54077226ABFR, BSYJ03539 on 25-11-2017. The second opposite party informed that correct bank details for transferring the amount by way of Real Time Gross Settlement (RTGS). He also further state, that the opposite party company maintained many accounts i.e. one for salary, one for spare parts, one for sale of new vehicle etc., In as much as the second opposite party had been working for first opposite party and the first opposite party delegated this work to the second opposite party. The complainant believed the words of the second opposite party ready to remit the cost of the vehicle by bank transfer since opposite party-2 informed the complainant that cheques / demand draft payment would delay the matter and informed them the particular vehicle would be sold to others who come with ready cash. On 27.11.2017 complainant received E-mail from second opposite party furnishing bank account as details below :
VELLORE SAYAR AUTOMOTIVE
Account No: 917020074531324
Branch : Axis Bank, Katpadi
IFSC : UTIB0002823
The email was sent by the second opposite party, by the name “Vellore Sayar Automotive, TATA MOTORS”. Meanwhile the second opposite party talking with the complainant that some party had come with cash payment to purchase the above said vehicle and forced the complainant that to made immediate payment to get the above vehicle to the complainant. As a genuine and prudent purchaser the complainant believed that the aforesaid account being a current account from a reputed Bank like third opposite party presuming that account would have been opened with due process of verification etc., the complainant believed this to be genuine and remitted the total cost of the vehicle in the above account as the events happened so far where chain of systematic activities did not arose any an iota of doubt. On 28.11.2017 when the complainant enquired about the date of delivery of the new vehicle as they remitted full money, the complainant was informed by the company office, that money had not been received in the company account and second opposite party has been absconding from attending office. Subsequently, a police complaint was lodged and an FIR was registered in District Crime Branch (DCB), Vellore with Crime No.16/2018, on 31.03.2018 under sections 420, 294(b) 506(1) of IPC. It was latter revealed on enquiry that second opposite party opened a current account in the name and style of “Vellore Sayar Automotive” which resembles just like M/s. Sayar Automotive (P) Ltd and gave an impression that both are same. Third opposite party in whose bank, second opposite party opened a current account was in collusion with third opposite party, because he has allowed second opposite party to withdraw all the money which the complainant had paid, by way of cash, which is against the banking norms in the same date at one stretch leaving only a balance of Rs.18/-, violating all rules, procedures and Reserve Bank of India’s directions. The first opposite party appointed the second opposite parties as a Sales Executive in Officer Cadre, and authorised to handle all sales activities from enquiry till vehicle is delivered to the customer. In as much he had been authorised by the first opposite party, and as a Principal Agent relationship exists of the first opposite party has to own complete responsibility for the misdeeds and misappropriation of the amount by the second opposite party. The third opposite party was also guilty in all these fraudulent activities as all procedures, rules, RBI directions and safeguards were floated on the air with an ulterior motive with a main aim of helping the second opposite party to opened a current account with similar name of an existing organisation in Vellore, till full amount was encashed, with a tune of Rs.13 Lakhs in one transaction that too in cash. Therefore, hence this complaint.
6. On receipt of this compliant, this Hon’ble Commission issued notice to the opposite parties. All the opposite parties received the notice. But they did not turned up before this commission to answer the claim of the complainant . Therefore, they called absent set exparte. We perused the records filed by the complainant, which revels that the complainant booked a vehicle with the first opposite party and the same was marked as Ex.A1. Further, the complainant transferring the money to the Vellore Sayar Automotive accounts a sum of Rs.12,04,126/- through RTGS the said document was marked as Ex.A2. The complainant also raised a issue with the first opposite party through email, that email as marked as Ex.A3. The complainant also registered an FIR against the second opposite and the same was marked as Ex.A7. 7. In this regard, we refer to the Reserve Bank of India, circular No. RBI/2017-2018/15 dated 06.07.2017 “Limited liability of customer entitlement to is liable sale arise where the unauthorised transactions occurred in the following fees.
Limited Liability of customer
(a) Zero Liability of a Customer
8. A customer’s entitled to zero liability shall arise where the unauthorised transaction occurs in the following events:
(i) contributory fraud / negligence deficiency on the part of the bank
(irrespective of whether or not the transaction is reported by the customer).
(ii) third party breach where the deficiency lies neither with the bank nor with
the customer but lies elsewhere in the system, and the customer notifies
the bank within three working days of receiving the communication from the
bank regarding the unauthorised transaction.
Further, it is admitted fact that the second opposite party is the employees of the first opposite party. Therefore, whatever committed by the second opposite party. The first opposite party vicariously liable for the acts of the second opposite party. Similarly, the third opposite party is a bank authorised by the RBI. Whereas how the third opposite party allowed, the second opposite party to opened an account in the name of resembling to first opposite party without verifying the credential and customer Know Your Customer (KYC). Therefore, there is a lapse and negligence on the part of the third opposite party as well. Further, all the opposite parties has received the notice from this Hon’ble Commission. But they did not appear answer the claim of the complainant. For the foregoing reason this complaint is allowed. We find that all the opposite parties are jointly or severally held responsible for the loss of money to the complainant. Hence, these Point Nos.1 and 2 are decided in favour of the complainant.
9. POINT NO. 3:
As we have decided the point Nos.1 and 2 that there is a deficiency in service on the part of the opposite parties. The opposite parties 1 to 4 are jointly or severally directed to refund Rs.12,04,126/- (Rupees Twelve Lakhs Four Thousand One Hundred and Twenty Six only) the amount deposited by the complainant with interest at 12% p.a. from 27.11.2017 to till date of this order and to pay a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant. Hence, this Point Nos. 3 is also answered accordingly.
In the result, this complaint is partly allowed. The opposite parties 1 to 4 are jointly or severally directed to refund Rs.12,04,126/- (Rupees Twelve Lakhs Four Thousand One Hundred and Twenty Six Only) the amount deposited by the complainant with interest at 12% p.a. from 27.11.2017 to till date of this order and also to pay a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- ( Rupees Twenty Five Thousand only) towards cost to the complainant, within Two month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 22th February, 2023
Sd/- Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
LIST OF COMPLAIANNT SIDE DOCUMENTS:
Ex. A1. 13.11.2017 – Copy of Quotation cum proforma invoice
Ex. A2. 27.11.2017 – Copy of RTGS application
Ex. A3. – Copy of Intimation E-mail given by opposite party No.2
Addressed to the complainant to remit money
Ex. A4. 27.11.2017 – E- mail sent to Opposite party
Ex. A5 08.12.2017 – E- mail sent by complainant addressed to Managing Director
TATA Motors
Ex. A6. 06.12.2017 – Complainant Letter addressed to S.P. Vellore
Ex. A7. – FIR copy 16/2018, DCB, Vellore
LIST OF OPPOSITE PARTIES SIDES DOCUMENTS: -NIL-
Sd/- Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
