Haryana

Karnal

458/2012

Harbhajan Singh S/o Sardara Singh - Complainant(s)

Versus

M/s Malwa Automobile Pvt.Ltd - Opp.Party(s)

Sh. S.S. Sivia

27 Feb 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.458 of 2012

                                                             Date of instt.:20.09.2012

                                                              Date of decision:27.02.2017

 

Harbhajan Singh son of Shri Sardara Singh, resident of village Sheikhpura, near Gurdwara, tehsil and District Karnal.

                                                                   ……..Complainant.

                                      Vs.

1. M/s Malwa Automobiles Pvt. Ltd. G.T. Road, Karnal through its Authorized Signatory.

2. M/s Tata Motors Ltd. Ogilvy one Worldwide, ATn. Tata Safari Trade Centre, Senapati Bapat Marg, Lower Parel, Mumbai-400013, through its Authorized Signatory.

3. M/s United India Insurance Company Ltd. G.T. Road, Karnal through its Branch Manager.

4. M/s Tata Motors Finance Ltd. TMFL Karnal Branch, 1^st floor, SCO 223, Sector-12, City Centre, Karnal through its authorized signatory.

 

                                                                        ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. S.S.Sivia Advocate for the complainant.

                    Sh. C.J.wadhwa Advocate for the Opposite party no.1

                    Sh. A.K.Vohra Advocate for opposite party no.2

                    Sh. Sudhakar Mittal Advocate for opposite party no.3.

                    Sh.J.B.Rohilla Advocate for opposite party no.4.

 

 ORDER:

 

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that on persuation of the representative of opposite party no.1, he purchased Safari LX, Model 2010, 1200cc, chasis no.ANN 12153, Engine no.2YJ21544, Temporary no.HR-99HR-TP-9569 for a sum of Rs.4,00,000/- on 3.12.2010, from opposite party no.1. A sum of Rs.4,00,000/- was got financed from opposite party no.4 by representative of opposite party no.1 and the remaining amount was paid by him. The paper formalities were got completed by opposite parties no.1 and 4 in all respects and all the required documents were handed over to them. Opposite party no.1 got insured the vehicle from opposite party no.3, vide policy no.02090031100110026612 for the period of 3.12.2010 to 2.12.2011. However, the representative of opposite party no.1 did not supply the bill, sale letter and other documents of the vehicle and assured that the same would be supplied within 2/3 days after completing the office formalities. Again after 2/3 days when he approached opposite party no.1 for supply of sale latter and other documents, the opposite parties no.1 and 4 asked to him to pay Rs.20,000/- as commission charges for financing the vehicle, whereas no such condition was told to him at the time of purchase and financing the vehicle. He requested the opposite party no.1 time and again to give him the sale letter for registration certificate, but to no effect. The registration certificate could not be applied by him as the opposite party no.1 did not handover to him the bill/sale letter of the vehicle.

                   It has further been pleaded that he was feeling from the very beginning that there was some problem in the brakes of the vehicle. Therefore, he approached the opposite party no.1 and narrated the said defect, but the representatives of opposite party no.1 told that the brakes would be set within few days. On 31.01.2011 while he was driving the vehicle, he had to apply brakes, but the brakes got jammed, due to which vehicle turned turtle and as a result of that the vehicle damaged. He intimated the opposite party no.1 as well as opposite party no.3 about the said accident. Opposite party no.1 asked him to bring the vehicle to the company. After inspection by the representative of opposite party no.3, he brought the vehicle to the premises of opposite party no.1, who after inspection intimated that the vehicle was totally damaged and in order to get new vehicle he was required to deposit Rs.10,000/- as advance. Therefore, he deposited a sum of Rs.10,000/- on the same day i.e.31.1.2011 with the opposite party no.1, vide receipt no.Malwa-KR-RCT-1011-006465. Since then, he had running from pillar to post and approaching opposite parties no.1,2 and 3 for getting replacement of his vehicle, but to no result. Opposite party no.3 demanded copies of Registration Certificate and Driving Licence, vide letter dated 7.3.2012. He supplied the copy of driving licence, but the registration certificate was not available with him, because he could not apply for registration as the sale letter/bill was not given by opposite party no.1. In this way there was deficiency in service on the part of the opposite parties due to which he suffered harassment and mental agony apart from financial loss.

2.                Notice of the complaint was given to the opposite parties. Opposite party no.1 filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has no locus standi and cause of action to file the complaint; that the complaint is an abuse of process of law; that the complainant is estopped from filing the complaint by its own acts and conduct and that the complaint is false and frivolous and has been filed just to extort the money from the opposite parties.

                   On merits, it has been submitted that the complainant has putforward a false and concocted story.  A sum of Rs.1,19,029/- is still due against the complainant and the same has not been paid by him despite repeated requests. It has further been pleaded that the accident took place due to rash and negligence driving of the vehicle by the complainant. It has been denied that the opposite party no.1 refused to give the sale letter and the documents and raised demand of Rs.20,000/- as commission charges for financing the vehicle from opposite party no.4. It has also been denied that the accident took place as the brakes of the vehicle jammed when the complainant applied brakes. It has also been denied that there was any manufacturing defect in the vehicle. The other allegations made in the complaint have been specifically denied.

3.                Opposite party no.2 also filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is an abuse of process of law; that the complainant suppressed the material facts from this forum; that the complaint is not legally maintainable; and that the complicated questions of law and facts are involved, therefore, this forum has no jurisdiction to entertain and adjudicate the complaint.

                   On merits, it has been denied that there was any manufacturing defect in the vehicle. It has been averred that the complainant has not produced any documentary evidence in support of his plea that there was any manufacturing defect in the vehicle and that the accident took place due to such defect. Accidental repairs are not covered under the warranty. The complainant never approached opposite party no.2 and there is no allegation against the opposite party no.2, who had no role to play in the present controversy. The other allegations have been denied.

3.                Opposite party no.3 filed separate written statement disputing the claim of the complainant. Objections have been raised that the complainant has suppressed the true and material facts from this forum; that the complainant is estopped from filing the complaint by his own acts and conduct; that the complainant has no cause of action and that there was no deficiency in service on the part of the opposite party no.3.

                   On merits, it has been alleged that the opposite party no.3 demanded copy of registration certificate of the insured vehicle as the same was required for processing the claim, but the complainant failed to produce the same, because he had never applied for registration of the vehicle for the reasons best known to hm. Thus, he violated the mandatory provisions of the Motor Vehicle Act. It has further been pleaded that after getting intimation regarding the accident, surveyor was deputed, who submitted his report dated 2.11.2011 and assessed the loss to the tune of Rs.2,55,326/-. It has been denied that the vehicle was totally damaged and the complainant was asked to deposit Rs.10,000/- in advance in order to get a new vehicle. The dispute is between the complainant and opposite parties no.1,2 and 4, but opposite party no.3 has been unnecessarily impleaded in the present complaint.

4.                Opposite party no.4 also filed separate written statement disputing the claim of the complaint. It has been averred that the opposite party no.4 had advanced loan of Rs.4,00,000/- to the complainant and Loan-cum-Hypothecation Agreement dated 27.12.2010 was executed in that regard. The said loan amount alongwith financing charges of Rs.93,200/- was to be repaid in 36 monthly installments of Rs.13,700/- each. An amount of Rs.6,81,686/- was due against the complainant as on 20.01.2014. The complainant has concealed the true and material fact and his complaint is vague and misconceived, therefore, the same is liable to be dismissed.

5.                In evidence of the complainant, his affidavit Ex.CW1/A  and documents Ex.C1 to Ex.C4 have been tendered.

6.                On the other hand, in evidence of the opposite parties, affidavit of Rahul Sharma Body Shop Manager Ex.OP1/1, affidavit of M.K.Bipin Dass Ex.O1and document Ex.OP1/2 have been tendered.

7.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

8.                The complainant had purchased one TATA Safari vehicle from opposite party no.1 on 3.12.2010. The said vehicle was financed by opposite party no.4 and insured by opposite party no.3. The vehicle was delivered by opposite party no.1 to the complainant on 3.12.2010 and Temporary registration no.HR-99HR-TP-9569 was issued. The said vehicle met with an accident on 31.1.2011 and damaged in the said accident. Intimation was given to opposite party no.3. Surveyor was appointed to assess the loss. Thereafter, the vehicle was shifted to the premises of opposite party no.1 and an amount of Rs.10,000/- was deposited by the complainant. As per allegations of the complainant the vehicle had totally damaged, but the opposite party no.3 demanded copy of registration certificate, which was not available with him, because he could not apply for registration as sale letter/bill was not given by opposite party no.1. On the other hand, the opposite party no.1 has submitted that a sum of Rs.1,19,029/- was due towards the complainant and the same was not paid by him despite repeated demands. It has been denied that the opposite party no.1 refused to give him sale letter and documents and raised demand of Rs.20,000/- as commission charges for getting financed the vehicle from opposite party no.4, as alleged by the complainant.

9.                It is not in dispute that the vehicle was delivered by opposite party no.1 to the complainant on 3.12.2010 and the same had met with an accident on 31.1.2011. Temporary registration number issued at the time of delivery of the vehicle was to remain valid for 30 days, but the complainant did not get the vehicle registered from Registration Authority within the prescribed period of 30 days. Thus, it is emphatically clear that the vehicle was not got registered from the office of Registration Authority as per provisions of Motor Vehicles Act till the date of accident. The Insurance Company asked the complainant for depositing the Registration Certificate, which was necessary for processing the claim, but the complainant could note deposit the Registration Certificate on the ground that the vehicle was not got registered as the opposite party no.1 had not issued sale letter/invoice. Thus, the material question which arises for consideration is whether the opposite party no.1 had issued the sale letter/invoice to the complainant at the time of delivery of the vehicle on 3.12.2010 or withheld the sale letter/invoice for any reason.

10.              The opposite party no.1 has produced only the affidavit of Rahul Sharma Body Shop Manager Ex.OP1/1 and ledger account of the complainant Ex.OP1/2. According to Ex.OP1/2 an amount of Rs.1,39,029/-was outstanding against the complainant. However, no document worth the name has been produced by opposite party no.1 to prove that the sale letter/invoice was issued to the complainant at the time of delivery of the vehicle. Had the opposite party no.1 issued sale letter/invoice, the copy on the record thereof must be in its possession. Non-production of such record amounts to withholding of material evidence available with it. Therefore, an adverse inference is to be drawn against the opposite party no.1. It is also important to point out that even in the written statement, the opposite party no.1 has not specifically pleaded that the sale letter/invoice was given to the complainant at the time of delivery of the vehicle. The complainant has alleged that no sale letter/invoice was given to him by opposite party no.1. He has also reiterated such allegation in his affidavit Ex.CW1/A. Under such circumstances, we have no hesitation in observing that the opposite party no.1 has failed to establish that sale letter/invoice was given to the complainant at the time of delivery of the vehicle. The complainant could apply for getting the vehicle registered with the Registration Certificate after producing the sale letter/invoice, but when no such sale letter/invoice was issued to him by the opposite party no.1, it could not be possible for him to get the vehicle registered from Registration Authority. Plying of the vehicle on the road without any registration is not only an offence punishable under section 192 of Motor Vehicles Act, but also a fundamental breach of policy contract. Therefore, without Registration Certificate the opposite party no.3 i.e. Insurance Company cannot be fastened with any liability. In this context reference with advantage may be made to the judgment of Hon’ble Supreme Court in Narender Singh Versus New India Assurance Co. Ltd. 2014 (3) Apex Court Judgment 218.   However, the complainant cannot be made to suffer on account of not issuing the sale letter/invoice by opposite party no.1, which was necessary for getting the vehicle registered.

11.              The opposite party no.1 has alleged that an amount of Rs.1,19,029/- was due towards the complainant. Even if, it is accepted that the said amount was due towards the complainant, then also the opposite party no.1 had no right to withhold the sale letter/invoice. The opposite party no.1 could take separate legal action against the complainant for recovery of the amount due, but once the vehicle was delivered by opposite party no.1 to the complainant, it was incumbent upon the opposite party no.1 to issue the sale letter/invoice at the time of delivery of the vehicle. Non-issuance of the sale letter/invoice by opposite party no.1 to the complainant at the time of delivery of the vehicle certainly amounted to deficiency in service as well as unfair trade practice. Therefore, opposite party no.1 is to bear the loss suffered by the complainant on account of non-issuance of sale letter/invoice by it at the time of delivery of the vehicle to the complainant.

12               As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party no.1 to repair the vehicle of complainant free of costs. We further direct the opposite party no.1 to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:27.02.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member