DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                   Consumer Complaint No.292 of 2012

                                         Date of institution:  20.07.2012       

22.07.2016

                                        Date of decision   :  27.11.2017

Avtar Singh s/o Sh.Bhag Singh, resident of H.No.1904, Phase-V, Mohali.

…….Complainant

Versus

1.     M/s. Swami Auto Care Pvt. Ltd., village Singhpura, (Ambala- Chandigarh Highway), Zirakpur, Tehsil Derabassi, Distt. SAS Nagar, Mohali through its Director.

2.     State Bank of Patiala, Phase VII, Mohali through its Branch Manager.

3.     State Bank of Patiala, SARC-R-I, Chandigarh, Zonal office, Sector-8 C, Chandigarh through its Authorized officer.

4.     The Registration Authority, Deptt. of Motor Vehicles, O/o District Transport officer, Phase-I, SAS Nagar, Mohali.

…..…Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Mrs. Natasha Chopra, Member.

Present:    Shri Sunil Narang, counsel for the complainant.

None for OP No.1.

Shri Ammish Goel, cl. for OP No.2 and 3.

None for OP No.4.

ORDER

By Ajit Pal Singh Rajput, President

                This complaint was earlier decided by this Forum  vide order dated 27.06.2013 by holding that as the complainant was using the vehicle for commercial purposes, thus he was not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act. The complainant preferred an appeal before the Hon’ble State Commission and the Hon’ble State Commission vide order dated 22.04.2016 has remanded back the complaint for fresh decision of the case on merits in accordance with law.  In pursuance to the order of the Hon’ble State Commission counsels for the complainant and OP No.2 and 3 appeared. None appeared for OP No.1 and 4.

2.             Complainant Avtar Singh has filed the complaint under Section 12 of the Consumer Protection Act, 1986 against OPs on the averments that he was interested in purchasing a heavy commercial vehicle for the transport business. OP No.1 showed a six cylinder heavy commercial vehicle of Eicher Motors Ltd. with 174 H.P. diesel engine alongwith 10 Nos. nylon tyres and with 1 spare wheel and standard accessories. On the recommendation of OP No.1, he decided to purchase the above said vehicle. Complainant purchased the vehicle from OP No.1 on 16.09.2008 and it was financed by OP No.2-State Bank of Patiala on personal guarantee of the complainant. The Sale certificate form No.21 and form No.22 were taken by representatives of OP No.2 directly from OP No.1 and the complainant was directed to sign the documents required for registration of the vehicle by the representatives of OP No.2. Registration certificate was issued by OP No.4, wherein registration number of the vehicle was No.PB65-H-0625. Complainant started to ply the vehicle to earn his livelihood being sole bread earner of his family. The police at the time of the inspection impounded the vehicle on the ground that engine number and chassis number of the vehicle did not match with their details, as mentioned in the registration certificate of the vehicle. Complainant felt helpless to ply the vehicle in some other states. The vehicle of the complainant was loaded with consignment of perishable goods of a consumer and delivery thereof was time bound. Complainant suffered loss as OPs No.1, 2 and 4 tried to shift burden upon each others, when the vehicle of the complainant was impounded. The engine number was wrong in the registration certificate of the vehicle. OP No.3 issued notice under Section 13(2) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest, Act 2002 (in short Act 2002) to the complainant asking him to pay a sum of Rs.12,21,195.60 within a period of 60 days and in default thereof OP No.3 threatened an action under Section 13(4) of the above Act against the complainant. The complainant was left with no other alternative, but to park the vehicle. Complainant has thus filed the complaint that he could not ply the vehicle and lost his livelihood due to defective documentations nor he could pay the road tax of the said vehicle till date. All the documents of the vehicle including insurance cover and engine number of vehicle were found wrong. OP No.1 might have changed the original engine with some old/damaged/repaired engine and intentionally mentioned wrong engine in paper book too. Thus, complainant filed the complaint against OPs by directing them to pay Rs.18 lac as compensation to the complainant for the loss suffered by him due to their above deficient act.

3.             OP No.1 filed a separate written reply and contested the complaint of the complainant vehemently. It was pleaded in the preliminary objections that this Forum has not territorial jurisdiction to try this case, as the vehicle involved was purchased for commercial purpose by complainant. The complainant is not a consumer under the Consumer Protection Act, 1986. The complainant never plied the vehicle as per FIR on road himself but his driver Naresh plied the same. The complainant has not purchased the vehicle for earning his livelihood by means of self-employment but rather purchased it to earn profits only and as such is not a consumer. The pecuniary jurisdiction of the District Forum to try the complaint has been questioned by OP No.1. It was further averred that complainant has not been paying the installments and bank has filed case against him before the Debt Recovery Tribunal Chandigarh. The intricate questions of facts and law are involved in this case, which cannot be adjudicated without recording of elaborate evidence by the Forum. OP No.1 issued all the documents pertaining to vehicle and there was only bonafide mistake in issuing them, which could be rectified at the time when the registration certificate was issued by registering office. On merits, OP no.1 controverted the averments of the complainant to the effect that he purchased the vehicle for self-employment exclusively to earn his livelihood and hence, prayed for dismissal of the complaint.

4.             OPs No.2 & 3 filed their joint written reply and contested the complaint of the complainant vehemently. It was pleaded in preliminary objections that complaint is not maintainable because OP No.3 has proceeded under SAFRAESI Act, 2002 and notice under section 13(4) has already been issued to the complainant in this regard. The matter is congnizable by Debt Recovery Tribunal only and jurisdiction of the consumer Forum is ousted under Section 34, 35 of the Act, 2002 from perusal of the documents annexed with the complaint specifically FIR vide No. 135 dated 30.06.2010 under Section 379 of IPC registered with Police Station Industrial Area, Chandigarh. The above FIR was got registered by Naresh Kumar S/o Sh.Rai Singh R/o H.No.½, village Raipur, Khurd, U.T., Chandigarh, who introduced himself as driver of the complainant. Naresh Kumar had been working as a driver of the complainant for the last 6 months with him. Complainant is not a consumer of OPs because he purchased the vehicle for commercial purpose with sole aim of earning profits only. It was specifically denied that OP No.1 had joined hands with OPs No.2 & 3 and later manipulated to get some mistake registered with OP No.4 It was also averred that OPs No. 2 & 3 have no hand in impounding of vehicle. Further a guarantee was also executed at the time of disbursement of the loan to the complainant which was got signed by Smt. Swaran Kaur W/o Sh.Bhag Singh R/o H.No.1904, Phase-V, Mohali (Punjab). Accordingly, for the purchase of the said vehicle, the loan amount was paid by the answering OPs to OP No.1 being the seller/dealer of the vehicle in question at the instance of the complainant. The vehicle was hypothecated with answering OPs and it was the duty of the complainant to get the vehicle registered and deliver the copy of registration certificate with endorsement of hypothecation of vehicle to OPs. OPs No.2 & 3 prayed for dismissal of the complaint.

5.             OP No.4 filed its separate written reply by raising preliminary objections that registration certificate of the new vehicle prepared by it on the basis of sale certificate in Form No.21 issued by OP No.1 and particulars mentioned in RC as per the sale certificate. As such, OP No.4 cannot be held responsible for any lapse whatsoever. The answering OP controverted the averments of the complainant regarding any deficiency in service on its part and prayed for dismissal of the complaint.

6.             Complainant tendered in evidence his affidavit Ex.CW1/1 alongwith documents Ex.C-1 to Ex.C-18. On the other hand, OP No.1 tendered in evidence affidavit of its Executive Director Harish Sharma Ex.RW1/1 alongwith documents Ex.R-1 to Ex.R-8. OPs No.2&3 tendered in evidence affidavit of Chief Manager Brijinder Singh Pari Ex.RW2/1 and document Ex.R-9.

7.             We have heard learned counsel for the complainant and learned counsel for OP No.2 and 3. None appeared on behalf of OP No.1 and OP No.4.

8.             The Hon’ble State Commission while remanding the case back to this Forum has held that the complainant is a consumer of the OPs.  The grievance of the complainant is that in the RC and insurance cover of the vehicle in question, wrong engine number was mentioned because of which the vehicle was impounded by the Rajasthan Police when it was being plied on the roads of Rajasthan. When the fact of mentioning of wrong engine number in the RC and insurance cover was brought to the notice of the OPs they have refused to replace the wrong engine number with the actual engine number.  In Para No.8 of preliminary objections, OP No.1 has admitted that it had issued all the documents pertaining to the vehicle and there is bonafide mistake in issuing the documents. OP No.1 has further stated in Para No.8 that this is only a bonafide mistake which could be rectified at any point of time.  The RC of the vehicle was issued by OP No.4 on the basis of documents issued by OP No.1.  The complainant has taken loan from OP No.2 and 3 for purchasing this vehicle. Thus, there is no role of OP No.2 and 3 in issuing the documents of the vehicle by OP No.1 wherein wrong engine number of the vehicle was mentioned.  In view of the own admission of OP No.1 that in the documents issued by it, wrong engine number of the vehicle was mentioned and because of wrong engine number of the vehicle in the documents, the vehicle of the complainant was impounded by the Rajasthan Police, the complainant has suffered loss as he could not ply the vehicle. The OP No.4 has simply issued the RC of the vehicle on the basis of documents issued by OP No.1.  Thus, we hold that there is no deficiency in service on the part of OP No.2, 3, and 4.  We further hold that OP No.1 is deficient in providing service to the complainant as it was OP No.1 only who issued documents of the vehicle wherein wrong engine number was mentioned.   Thus, the complainant has suffered loss due to deficiency in service on the part of OP No.1 in issuing documents wherein wrong engine number was mentioned. The complaint against OP No.2, 3, 4 is dismissed as no deficiency in service on the part of these OPs is proved.

9.             Accordingly, in view of our aforesaid discussion, we direct OP No.1 to pay to the complainant Rs.25,000/-      (Rs. Twenty Five Thousand only) for deficiency in service on its part. We also find that complainant is entitled to compensation of Rs.10,000/- (Rs. Ten thousand only) on account of litigation cost

                OP No.1 further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 9% per annum from the date of this order till realisation.

                The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 27.11.2017    

                                           (A.P.S.Rajput)                 

         President

        (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member