IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 15^th day of September, 2021.

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R.  Member 

Sri. K.M. Anto, Member

C C No. 125/2018 (Filed on 23-06-2018)

Petitioner                                 :         A.N. Shivakumar,

                                                          S/o. M.A. Narayanan,

                                                          Sivanivas, Kottayam P.O.

                                                          Veloor Kara, Kottayam Village.

                                                          (Adv. Vinu Jacob Mathew)

                                                                     Vs.

Opposite parties                      :  1)   M/s. Malayalam Motors,

                                                          9,17/539, Highway,

                                                          NH 47, Edappally North,

                                                          Opposite Milma, Kochi – 686 024.

                                                          (Adv. Prinson Philip, Adv. V. Krishna

Menon and Adv. M.K. Jose)

                                                     2)  Rajesh Raja,

                                                          S/o. A Raja,

                                                          Thattumpuram House,

                                                          Pothy Kara, Vadayar Village,

                                                          Vaikom Taluk.

                                                      3)  Arun Kumar A.

                                                          S/o. A.K. Arjunan,

                                                          Arun Nivas, S.H. Mount P.O.

                                                          Nattassery Kara, Kottayam.

                                                      4) Regional Transport Office,

                                                          R.T. Office, Collectorate P.O. Kottayam.

                                                      5) Deputy Thahasildar (Revenue Recovery)

                                                          Kottayam, Mini Civil Station

                                                          Kottayam  -  686001.

O  R  D  E  R

Smt.  Bindhu R.  Member 

          The complainant’s case is as follows.

          The complainant was the owner of KL-05 D1858, 1996 model TATA 407 Mini Lorry for which he was regularly paying the tax and insurance.  The 1^st opposite party is the dealer of Ashok Leyland Light Vehicles.  The 3^rd opposite party was the Marketing Executive of the 1^st opposite party.  In 2013, the 1^st opposite party came with an exchange offer for the purchase of Ashok Leyland Mini Commercial Vehicle “Dosth” exchanging the old commercial vehicle.  The 3^rd opposite party approached the complainant with an exchange offer.  The 1^st and 3^rd opposite parties agreed to take the complainant old vehicle Tata 407 for a sum of Rs.80,000/- and supply “Dosth LT” and complainant had to be paid by the complainant.  The 1^st and 3^rd opposite parties introduced the 2^nd opposite party as an agent of the 1^st opposite party and as the proposed purchaser of the vehicle through 1^st opposite party.  It was also assured that the ownership of the vehicle would be transferred to the 2^nd opposite party by the 1^st opposite party.  Believing the words of the opposite parties 1 to 3 the complainant entered into an agreement with the 2^nd opposite party on 22-10-2013 were the name of the 1^st opposite party is stated and the 3^rd opposite party is shown as witness,.  The opposite parties took possession of the old vehicle and obtained necessary forms signed by the complainant to be submitted before the 4^th opposite party.  The complainant paid Rs.5,000/- to the 3^rd opposite party towards the advance amount booking of Dosth.  The 1^st opposite party issued a receipt for Rs.84,500/- for the sale price.  The complainant also personally intimated the matter of the transfer of vehicle to the 4^th opposite party.

          On 21-04-2018, the complainant received an attachment notice from the 5^th opposite party with regard to revenue recovery of Rs.28,168/- as arrears of motor vehicle tax of KL-05-D1858.  On enquiry, the complainant came to know that the opposite parties 1 to 3 have no transferred the vehicle to the name of the transferee as agreed.  The complainant had no knowledge about it.  When the complainant contacted the opposite parties 1 to 3, they are no properly responding and trying to escape from their liability.  The opposite parties 1 to 3 are liable to transfer the vehicle in the name of the 2^nd opposite party and they are liable to pay the tax arrears from 22-10-2013 which fell due.  The complaint is not liable to pay any further dues after the sale of the said vehicle to the 2^nd opposite party through the 1^st and 3^rd opposite parties.  The complainant sustained mental agony and financial loss due to the unfair trade practice and deficiency in service from the part of opposite parties 1 to 3.  The 4^th and 5^th opposite parties are impleaded as necessary parties and no reliefs are claimed against them.

          Upon receiving notice from this Commission, the 1^st, 4^th and 5^th opposite parties appeared before this Commission and filed version.  Opposite party 2 and 3 have not appeared and hence set exparte.

          1^st opposite party attended in its version that the complainant is not a consumer as per Section 2 (1) (d) of the Consumer Protection Act 1986.  In the absence of any material the complainant cannot treated as a consumer.  No were in the complaint any statement of payment of consideration what so ever made by the complainant to the opposite party towards the alleged transaction has been made.  In the absence of any consideration being paid, the alleged deficiency in service will not in any manner constitute a “consumer dispute”.  This 1^st opposite party has unnecessarily been made a party to the proceedings.  Admittedly the complainant approach the opposite party with the intention of parties an Ashok Leyland Mini Commercial Vehicle “DOSTH”.  At that time based on the request made by the complainant the officers of the 1^st opposite party had introduced the complainant to the 2^nd opposite party who was an agent dealing with the old vehicles.  The 1^st opposite party substantially informed the complainant that there was no relationship between the 1^st opposite party and the 2^nd opposite party and they are in no way liable or responsible for the transaction between the complainant and the 2^nd opposite party.  Thereafter the complainant carried out discussions with the 2^nd opposite party on his own free will and volition.  The 1^st opposite party has no knowledge about the alleged transaction between the complainant and the 2^nd opposite party.  The statement that the officers of the 1^st opposite party had valued the old vehicles of the complainant at Rs.80,000/- is denied and incorrect.  The complainant had thereupon booked for an Ashok Leyland Mini Commercial Vehicle “Dosth” after paying the booking amount and subsequently taken delivery of the said vehicle after effecting full payment for the said vehicle.  The 1^st opposite party had no point of time agreed to transfer the old vehicle of the complainant to the name of the 2^nd opposite party.  The 1^st opposite party had not taken possession of the old vehicle of the complainant and in no way is liable or responsible for the alleged transactions and litigations.                    The complaint has been filed without any banafied but with ulterior motives and liable to be dismissed.  The 1^st opposite party has in any manner caused any loss mental agony or any hardship to the complainant.  The 4^th and 5^th opposite parties contented in their joint version that they are not necessary parties in this complaint.  As per central motor vehicle rule 55 while a transport vehicle is transferred, the transferor shall report the fact of the transfer in form 29 before the registering authority concerned in whose jurisdiction the transferor and transferees resides or have their place of business.  Also as per Kerala Motor vehicles manual the transferor should submit application for clearness certificate and transfer of ownership along with the originals of RC, IC and PUCC before the registering authorities concerned.  But, the complainant has not complied these two things so far.

          The dealer whom the vehicles was sold by the complainant had not submitted any application for transfer of ownership or clearance certificate before any of the registering authorities in the State with the originals of registration Certificate, insurance Certificate, Pollution Under Control Certificate together with the prescribed fees for the services concerned.  Since the defaulter had not cleared the arrears of tax, on 21-04-2018 RR was initiated for an amount of Rs.28,168/- by RR online process.

          It may be permitted to report that the allegations raised by the petitioner is not sustainable since this is against the basic principles laid down in the motor Vehicles Taxation Act 1976 enacted by the Legislature.  Hence the petition deserves no merit and this is absolutely a matter of payment of tax to the exchequer and hence the case may be disposed prima facie.

In the evidence part, the complainant has produced Exhibit A1 to A5 from the side of the complainant vide proof affidavit and the opposite party filed affidavit but no documents. Considering the pleadings and the evidence on record, we frame the following points:

Whether the complainant has succeeded to prove the deficiency on the part of the opposite parties and if so what are the reliefs he is entitled for?

1. The complainant’ case is that he had exchanged his vehicle KL05 D11858 1996 model TATA 407 Mini lorry against the purchase of Ashok Leyland Mini Commercial vehicle “Dosth”. He has produced the sale agreement

made between he and the purchaser as Exhibit A1 . Subsequently he obtained a Revenue recovery notice for the nonpayment of the vehicle tax of the said mini lorry of an amount of 28,168/-which was due from 22.10.13. The complainant filed this complaint as it was the duty of the 1^st opposite party to change the ownership of the vehicle to the purchaser as they acted as the middle men in the whole dealings. He had already cleared all the tax and other payments of the said vehicle and he had to face revenue recovery because of the non-transfer of the ownership of the vehicle by the 1^st opposite party and it is a gross deficiency in service.

2. The 1st opposite party in their version denied all the above allegations and stated that they had not assured any of such transfer to the complainant or had acted as an agent. The complainant had entered into an agreement of sale with a third party whom the 1^st opposite party has just introduced. In the arguments, the counsel for the 1^st opposite party put forward the argument that the complainant is not a consumer as there was no consideration proved to have been paid to the 1^st opposite party and also due to the absence of such a pleading that the vehicle purchased was solely for the use of his self-employment. So it is argued that the complainant has purchased the vehicle for commercial purpose and hence he is not a consumer. Moreover, the 1^st opposite party counsel has produced the judgement of the Hon’ble supreme court in Cheema Engineering services Vs Rajan Singh (1997) 1 SCC 131,Laxmi Engineering works Vs. PSG Industries Institute (1995 II CPJ I (SC).

3. The third and fourth opposite parties are the revenue officials and they filed version stating that it is the responsibility of the transferor to inform the registration authorities about the transfer and effect the transfer of ownership.

4. On a detailed perusal of the above pleadings and evidence on record we are inclined to evaluate the locus standi of the complainant. The complainant though alleges that he had purchased a Ashok Leyland Mini Vehicle Dosth in exchange of his TATA 407 Mini Lorry , he has not produced necessary documents in support this purchase and exchange. No invoice or documents of new vehicle registration has been produced before this commission. The complainant has stated that he paid only the balance amount of Rs.84,500/- towards the sale price of the new vehicle after deducting the exchange price of the old vehicle ie. Rs.80,000/- including the advance of Rs.5,000/- received by the 3^rd opposite party. For this also no document has been produced. But in the version the 1^st  opposite party has admitted that the complainant had purchased a brand new Ashok Leyland mini commercial vehicle DOSTH after effecting full payment. So admittedly the complainant is a consumer of the 1^st opposite party.

5. The 1^st opposite party has contended that even if the purchase of the vehicle is admitted, the complainant has not pleaded anywhere in the complaint or the affidavit that he had purchased the said vehicle for his own use to make his livelihood. The 1^st opposite party alleges that as it is not clear that whether the complainant had purchased the vehicle for his own use or he had any drivers to use the vehicle for any commercial purpose.

6. Taking into consideration all the above arguments, we see that though there is no such pleadings or evidence, as the 1^st opposite party themselves admitted that the complainant has purchased vehicle from him, it is evident that the complainant is a consumer of the opposite parties.

7. S.2(d) of the consumer protection Act, 1986 states

 “consumer” means any person who –

1. buys any goods for a consideration which has been paid or promised  or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.

8. Now, the question is whether the complainant purchased the vehicle for his own use or commercial purpose. As far as this case is concerned, we do not see the relevance of this point as the defendant also has not produced any cogent evidence to the contrary for proving that the complainant has purchased the vehicle for any commercial purpose. So it is doubtlessly clear that the complainant has a locus standi to file this complaint in the capacity of a consumer.

9. The 1^st opposite party counsel further argued that at any point of time they had not been in the possession of the complainant’s vehicle. They are not at all connected with the transfer of the vehicle except introducing an agent who was dealing with old vehicles. Only upon this introduction the 1^st  opposite party has no liability in the transfer of the vehicle.

10. The complainant has produced the sale agreement between the complainant and the 2^nd opposite party in which the 2^nd opposite party has clearly admitted that he undertook that he would be responsible for the transfer of the ownership and all the liabilities incurred after the date22.10.13 should be cleared by him.

11. In A1 agreement it is mentioned that the 2^nd party as “care of Malayalam motors”. So the involvement of the 1^st opposite party cannot be overlooked.                   The 1^st opposite party has admitted that they had introduced the 2^nd opposite party to the complainant for the sale of the old vehicle. Moreover, the name of the 1^st  opposite party also has been mentioned in the A1 agreement. As per A1 agreement, the burden of transferring the name and meeting all the subsequent liabilities are shifted to the 2^nd opposite party who was introduced by the 1^st  opposite party.

12. Hence in the light of above discussion we are in the view that all the points are found in favour of the complainant. The 1^st opposite party on its admission of receiving an advance amount of Rs5000/- and later the full amount for effecting the delivery of the vehicle to the complainant shows that the 1^st opposite party has acted as a facilitator in the transactions and the 2^nd opposite party who has acted on behalf of the 1^st opposite party has committed unfair trade practice. Hence the complaint is allowed and the 1^st and 2^nd opposite parties are directed

1. To transfer the vehicle to the name of the purchaser within 30 days from         

      the date of the order.

2. To pay Rs.28,168/- to the complainant with an interest at 9% from

23.6.18 the date of filing of the complaint.

The 1^st and 2^nd opposite parties are jointly and severally liable to pay the amounts.

The Order shall be complied with within a period of 30 days from the date of receipt of Order. 

      Pronounced in the Open Commission on this the 15^th day of September, 2021.

Smt.  Bindhu R.  Member               Sd/- 

Sri. Manulal V.S. President             Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Copy of the agreement dtd.22-10-13

A2 - Copy of RR notice dtd.21-04-2018

A3 – Copy of letter dtd.16-05-18 issued by Thahasildar (R.R)

A4 –Copy of petition dtd.09-06-18 by petitioner to the Transport Commissioner

A5- Copy of postal receipts

Exhibits marked from the side of opposite party

Nil

                                                                                                By Order

                                                                               Senior Superintendent