Judgment : Dt.21.3.2017
This is a complaint made by one Asok Kumar Bhowmik, son of Sri Arabinda Bhowmik, residing at 4/17/2A, Adarsha Nagar (E), Behala, P.S.- Parnasree, Kolkata-700 061 against (1) M/s Dewar’s Garage Limited, having office address at P 27/2, Taratala Road, P.S.-Taratala, Kolkata -700 088, OP No.1, (2) s. Anamika Chaudhury of 171/K/19 Picnic Garden Road, P.S.-Tiljala, Kolkata-700 039, OP No.2, (3) Royal Sundaram Alliance Insurance Company Ltd., Kharagpur Branch, near Inda Bazar, Paschim Midnapur, West Bengal, PIN-721 301, OP No.3 and (4) The Manager, HDFC Bank Ltd., Guillanders House, 8 N.S.Road, P.S.-Hare Street, Kolkata-700 001, OP No.4, praying for issuing show cause notice as to why the name of the Complainant was not entered into the Smart Card issued, by the RTO in favour of the Complainant and why OP No.3 did not transfer and included the Complainant’s name in the Insurance Policy despite receiving the premiums from the Complainant and why OP No.4 collected monthly installments of loan from the Complainant and a direction upon the OP to handover the Smart Card and the Insurance Policy within 30 days and also a direction upon the OP to pay damages to the Complainant to the tune of Rs.2,55,011/- towards the cost of the damages of the car with 12% interest till the date of payment of the amount and a direction to pay Rs.3,00,000/- by the OP to the Complainant by way of compensation and litigation cost.
Facts in brief are that Complainant is a consumer, OP No.1 is a car dealer, OP No.2 is owner of the car from whom Complainant purchased the car, OP No.3 is Insurance company to whom the insurance premium is paid by the Complainant, OP No.4 is the Bank from where a loan was taken by the Complainant to finance partly the cost of the car.
Complainant purchased a pre-owned Maruti Alto 800 Car through OP No.1 for a consideration of Rs.2,81,000/- including Rs.13,000/- as service charge towards RTO transfer. It also included a loan amount of Rs.2,00,000/- from HDFC Bank, OP No.4. In this connection, OP No.1 issued four cash memos in favour o the Complainant towards payment of the car made by the Complainant.
OP No.1 at the time of selling the said pre-owned car took a sum of Rs.13,000/- towards cost of RTO transfer and service charges to include the Complainant’s name in place of the existing owner, Anamika Chaudhury. The said car was taken delivery by the Complainant on 11.7.2015 and Anamina Chaudhury signed the form 29.
Complainant submits that on several occasions he made attempt to contact OP No.1 dealer and OP No.2, Anamika Chaudhury and reminded them to their deficiencies in services of not providing a Smart Card and Insurance Policy in time. Despite all the efforts of Complainant OP No.1 and OP No.2 did not intend to cooperate with the Complainant and did not pay any heed to the requests of the Complainant. Due to deficiency in services of OP No.1 and OP No.2, the name of the Complainant could not be incorporated in the Smart Card and Insurance, so also not transferred in the name of the Complainant. OP No.1 is bound to transfer the name of the Complainant into the Smart Card. It was also agreed that if Complainant paid Rs.13,000/- the name of the Complainant would be transferred to the Smart Card. Since the payment of total consideration money, including the Bank loan. Complainant made attempt to get the name transferred in the document. But of no use. Complainant persuaded the OP to transfer the name of the Complainant in the Smart Card, as well as in the Insurance Policy. But, it could not be done. So, Complainant filed this complainant for deficiency in service against OP No.1 & OP No.2, the previous owner of the car, OP No.3, Insurance Company and OP No.4, Manager, HDFC Bank Ltd. who granted advance of Rs.2,00,000/-.
OP No.2 filed written objection praying for her release. She has stated that the allegation of Complainant are baseless.
HDFC Bank filed written version and denied the allegations of the complaint. It is the positive case of OP No.4 that Complainant is a debtor and so he cannot be a consumer. There is no question of unfair trade practice by OP No.4. In or about June, 2015, the Complainant approached the OP Bank and represented that he is desirous of purchasing a second hand vehicle and so this OP agreed to finance a sum of Rs.2,04,443/- and Complainant has no locus standi to file this case against OP No.4. So, this OP has prayed for dismissal of the complaint.
OP No.3 has also filed written version denying the allegation of the complainant against it. This OP has denied that Complainant has no locus standi to this complaint and so prayed for dismissal of the complaint.
OP No.1 has also filed written version and denied the allegation of the complaint. She has admitted the fact that this complainant approached her for purchasing the car. He was well aware of the fact that the transfer of ownership, there is no record with the Motor Vehicle Dept. and so the Insurance Policy in the name of the Complainant was non-existence despite that Complainant took delivery of the vehicle and started using it. Complainant was aware that he will have to bear the expenses of repairing if he uses the vehicle. So, this OP has also prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint. Against the affidavit-in-chief OPs put questionnaires to which Complainant put filed affidavit-in-reply. Similarly, OPs filed evidence on oath to which Complainant put questionnaire and OPs filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for issuing show cause notice upon OP No.1 & 2 as to why the name of the Complainant could not be transferred in the Smart Card and why in the Insurance Policy the name of the Complainant was not inserted.
Since at this stage were at the finality of the decision of the dispute raised by the Complainant against the OPs the question of issuing notice of show cause in respect of the works entrusted to the OPs does not arise and hence this prayer appears to be infructuous and frivolous.
2nd prayer of Complainant is a direction upon the OPs to handover the Smart Card and the Insurance Policy within 30 days.
On perusal of the evidences of both the sides and questionnaire put by them, it appears that it is very surprising as to how Complainant could make such a prayer. It is because, the common prudence suggests that if a person purchases something it is his duty to examine the documents and unless the documents are not in order the question of using the car does not arise. Further, if such a duty is casted on the complainant cannot be shifted upon others. In the form of documents copy of commitment checklist has been filed which reveals that the Complainant booked the car through OP No.1 and as per the terms he was bound to take delivery of possession of car within seven days, no doubt Complainant took the possession he used to run the vehicle without having the name in the Smart Card which is owner’s book and also the insurance policy, which are mandatory for running the vehicle by any person.
So, it is clear that the Complainant himself remained deficient and negligent in using the vehicle and now he intends to make liable to insurer and the agent who mediated between the sale and the purchase of the vehicle, between the real owner and the Complainant.
If it is considered that OP No.1 took the burden of transferring the name of the Complainant in the Smart Card, it was the duty of the Complainant not to use the vehicle without having done so. Similarly, Complainant used to run the vehicle without having an insurance in favour of him. These acts and conducts of the Complainant make it clear that he did not approach this Forum with clean hands and the booking was made on 19.5.2015. Complainant filed this case on 15.4.2016 after about a year. There is no explanation forthcoming as to why after paying certain installments and not getting the name transferred in Smart Card and not taking insurance of the vehicle the Complainant used to run the vehicle.
As such, Complainant intends to shift his blame upon the OPs and in such circumstances, we do not fine any merit in this complaint.
Hence,
ordered
Cc/177/2016 is dismissed on contest.
