<br /> COMPLAINT FILED: 30.01.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 18th APRIL 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.269/2009<br /> <br /> <br /> COMPLAINANT Mr.P.Govinda,S/o Ponnuswamy,Aged 47 years,R/o # 19, Siddapura,Opp. 10th Cross,Wilson Garden,Bangalore – 560 027.Advocate – Sri.U.AshokV/s.<br /> OPPOSITE PARTIES 1. M/s.Cholamandam DBS Finance Ltd.,‘Dare House, 1st Floor,# 2, NSC Bose Road,Chennai – 600 001.Represented by its Director.2. M/s.Cholamandam DBS Finance Ltd.,Having its Branch office at# 210/211, Citi Centre,Patto Complex,PANAJI,GOA – 403 001Represented by its Branch Manager.Advocate – Sri.R.Balaji<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to deliver the physical possession of the Lorry bearing No.GOA-9/T-5278 or refund Rs.6,90,000/- with 18% interest from 29.01.2007 till date and pay a compensation of Rs.50,000/- on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> OP agreed to sell the Lorry No.GOA-9/T-5278 to the complainant for a total price of Rs.6,90,000/-. Complainant paid Rs.10,000/- on 18.01.2007 and remaining Rs.6,80,000/- is paid subsequently through with demand draft and cash which OP acknowledged. But thereafter OP failed to deliver the actual and physical possession of the said Lorry including the documents like R.C Book, form No.29 & 36 etc. The repeated requests and demands made by the complainant went in futile. On enquiry complainant came to know that OP in collusion with its Manager and third party Smt.Parvati Majik transferred the said vehicle in favour of Smt.Parvati Majik. Thus complainant felt that he is duped and cheated. Complainant demanded OP either to hand over the physical possession of the said Lorry along with documents or refund whatever the amount that is paid. There was no response. Complainant caused the legal notice on 06.10.2008. Again there was no response from the OP. For no fault of his, he is made to suffer both mental agony and financial loss. Complainant felt deficiency in service and unfair trade practice on the part of the OP. Under the circumstances he is advised to file this complaint and sought for the reliefs accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the said Lorry was actually sold one Mrs.Parvati Majik on 10.01.2006 itself. Due to the failure of Mrs.Parvati Majik in repaying the loan the vehicle was repossessed and it was sold to the complainant. In the mean time without the knowledge of the OP their manager Mr.Sarvesh G.Govekar with a malafide intention retransferred the said vehicle and handed over the possession to Ms.Parvati Majik and to Mr.Kabir Ahmad. Under such circumstances OP is unable to deliver the actual and physical possession of the said vehicle to the complainant. There is a litigation with regard to the possession of the said Lorry and a complaint pertaining to forgery, misappropriation, criminal breach of trust and cheating. Due to the said legal hurdle OP is unable to handover the possession along with other relevant documents. There is no deficiency in service on the part of the OP. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. It is the case of the complainant that he intended to purchase a Lorry No.GOA-9/T-5278 from OP for a total cost of Rs.6,90,000/-. In that regard he paid Rs.10,000/- as earnest money then subsequently there to right up to 29.01.2007 he paid in all Rs.6,80,000/- to the OP on various dates both by way of demand draft and cash. OP acknowledged the receipt of Rs.6,90,000/-. Of course no where OP disputed this fact. Now the grievance of the complainant is that in spite of the payment of the entire cost of the Lorry OP failed to deliver the actual and physical possession of the said Lorry along with the connected relevant documents like R.C, form No.29 & 36 etc. The repeated requests and demands made by the complainant went in futile. Thus he felt deficiency in service on the part of the OP.<br /> <br /> 7. According to the complainant on enquiry he came to know that OP in collusion with its manager and some third party Smt.Parvati Majik handed over the possession of the said Lorry to the said Smt.Parvati Majik with a malafide intention. Thus he felt that he is cheated. Accordingly he caused legal notice to OP either to hand over the possession of the Lorry or refund whatever the amount that is paid. Copy of the legal notice is produced. Again there was no response. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. As against this unimpeachable evidence of the complainant the defence set out by the OP appears to be defence for defence sake.<br /> <br /> 8. We have gone through the defence of the OP, OP flatly admits the receipt of Rs.6,90,000/- from the complainant. According to OP the said Lorry was sold to one Parvati Majik in the year 2006 and she failed to repay the loan. Hence the vehicle was repossessed. Then it was sold to the complainant. It is further contended that OP is liable to hand over the R.C Book, I.C, F.C, other connected documents including handing over the physical possession of the Lorry. In the mean time their Manager Mr.Sarvesh G.Govekar with malafide intention handed over the possession of the said vehicle to Parvati Majik and to Mr.Kabir Ahmad now they are in possession of the same. OP has taken steps to prosecute them for the offences with regard to forgery, misappropriation, cheating etc. Under such circumstances OP is unable to hand over the possession of the vehicle and to deliver the documents with respect to the said vehicle.<br /> <br /> 9. If OP feels that its manager cheated it, it is the look out of the OP to initiate action against Manager as well as the party colluded with Manager namely Smt.Parvati Majik and Mr.Kabir Ahmad. Complainant has nothing to do with the said dispute. Complainant invested his hard earned money but unable to reap the fruits of his investment. It is all because of carelessness and negligence on the part of the OP. When OP admits its failure in non delivery of the vehicle as well as the documents that itself amounts to deficiency in service. When OP is not in a position to deliver the possession of the vehicle with all fairness it would have refunded the amount received from the complainant. It is not a small amount it runs to the tune of Rs.6,90,000/- but no such steps are taken. The approach of the OP does not appear to be bonafide, reasonable, fair and honest. As already observed by us due to the hostile attitude of the OP, complainant is put to greater prejudice and hardship.<br /> <br /> 10. Having considered the facts and circumstances of the case it appears there is no immediate possibility of OP handing over the physical and actual possession of the said Lorry in question in a nearest future may be because of some legal hurdles. Complainant can’t be kept waiting indefinitely. In our view justice will be met by directing the OP to refund Rs.6,90,000/- with interest and pay some nominal compensation with regard to mental agony along with litigation cost. With these reasons we answer point Nos.1 & 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP is directed to refund Rs.6,90,000/- together with interest at the rate of 12% p.a from 29.01.2007 till realization, pay a compensation of Rs.10,000/- and litigation cost of Rs.1,000/- to the complainant.<br /> <br /> This order is to be complied within four weeks from the date of its communication.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 18th day of April 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> Vln* <br /> <br /> <br />