FILED ON: 27.01.2009<br /> DISPOED ON: 23.07.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 23RD JULY 2010<br /> <br /> PRESENT:- SRI. B. S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT No.226/2009<br /> <br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. Ganesh Shastri,<br /> S/o Late Nataraja Shastri,<br /> Aged about 53 years,<br /> R/at C-13-5, Platinum City,<br /> Tumkur Road,<br /> Bangalore – 560 034.<br /> <br /> Advocate: <br /> Sri. M. Shankaranarayana Bhat<br /> <br /> <br /> V/s.<br /> <br /> <br /> M/s Standard Automobiles Consultants,<br /> No.6, Bishop Cottons Boys High School,<br /> Near Bangalore Club,<br /> Bangalore – 560 023.<br /> <br /> Rep: by its Proprietor <br /> Sri. Sharieff<br /> <br /> Advocate: Sri. S.A. Sami<br /> <br /> <br /> O R D E R<br /> <br /> SRI. B.S. REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint under section 12 of CP Act 1986, seeking direction against Opposite Party (herein after called as O.P) to make payment of depreciation amount of Rs.2,43,750/- with interest at 18% p.a. and to award Rs.1,00,000/- towards compensation of mental agony, hardship, inconvenience with litigation cost on the allegations of deficiency in service on the part of the OP. <br /> <br /> 2. In the complaint it is stated that the complainant had purchased 2005 Model Skoda Superb Car bearing registration No.KA-53 N-7 through OP. At the time of sale of the car, OP represented that the said car belongs to M/s Straits Arcolab Limited and the same is unencumbered. OP also stated that the liability of M/s Straits Arcolab Limited has been cleared and their charge over the vehicle by way of hypothecation was cancelled. Basing on the statement of OP, the complainant purchased the said car on 29.03.2008 for Rs.16,25,000/-, while purchasing the above car the complainant also sold two vehicles one for Rs.1,80,000/- and another for Rs.2,40,000/- which belonged to him through the OP. The sale proceeds of the said two vehicles were adjusted towards the amount payable towards purchase of Skoda Superb Car. The balance of Rs.12,05,000/- was paid to OP. OP had undertaken to arrange for transfer of vehicle in the name of the complainant in the RC book and received amount towards meeting expenditure relating to it, he has not so far done the needful. The complainant who was pursuing with the OP, came to know that the vehicle purchased though the OP is in fact hypothecated to ICICI bank ltd., After release of charge by ICICI bank ltd., in favour of M/s Straits Arcolab Limited, it was sold to one Mr. Mudabir Sharieff and he in turn had created charge in favour of ICICI Bank Ltd., and that charge is continuing. The fact of selling car to Mr. Mudabir Sharieff and he creating charge in favour of ICICI Bank Ltd., was no revealed by the OP to the complainant at the time of sale; suppressing information and misrepresenting that car was unencumbered, he had arranged for sale of the same to the complainant. Though the complainant purchased the car on 29.03.2008 itself; he could not get the benefit of annual depreciation of 15% which was otherwise available to him if the RC ownership of the car was transferred in his name as on 31.03.2008. The annual depreciation at 15% on Rs.16,25,000/- the price at which the complainant had purchased the car amounts to Rs.2,43,750/-. Due to lapse on the part of OP; the complainant had incurred loss to that extent as he was deprived of claiming that depreciation. OP a dealer in used cars, being a service provider was deficient in providing services. Had he disclosed that the car offered for sale was hypothecated; the complainant would have chosen not to purchase that car. The mis-representation on the part of the OP that the car is unencumbered has caused loss to the complainant. The complainant being a businessman would have got the benefit of depreciation of 15% on the price paid for purchase of the car; had his name been entered in the RC book as owner of the vehicle. OP who acted as agent for sale of the car has not arranged for handing over the extra key and get the charge of ICICI Bank over the vehicle released arranged to transfer of RC in the name of complainant as owner of the vehicle. At least after the sale of the vehicle, OP should have immediately arranged for cancellation of lien over the vehicle and transfer of the vehicle in the name of the complainant in the RC book. Hence the complainant claiming the reliefs stated above. <br /> <br /> 3. On appearance, OP filed version admitting that the complainant had purchased the car bearing No.KA-53 N-7 through OP. It is denied that OP represented that the said car belongs to M/s Straits Arcolab Limited and the same is unencumbered it is admitted that the complainant has sold his two vehicles to OP and the sale proceeds of the said two cars was adjusted towards the sale consideration of the car purchased by the complainant. The balance sale consideration of Rs.12,05,000/- was paid. It is stated that there is no loan amount due to the ICICI Bank in respect of the car purchased by the complainant. After releasing the charge of ICICI Bank Ltd., in favour of M/s Straits Arcolab Limited; this OP had taken loan from the ICICI Bank Ltd., in respect of the said car and there was a charge of ICICI Bank Ltd., in the name of OP at the time of selling the vehicle to the complainant. The loan amount due to the Bank is fully cleared by this OP and there is no charge of the bank in respect of the said car and as such there is no deficiency of service on the part of the OP. The annual depreciation at 15% on Rs.16,25,000/- the price at which the complainant had purchased the car amounts to Rs.2,43,750/- and due to lapse on the part of OP the complainant had incurred loss to that extent is denied as false. The complainant would have purchased the car only after verifying the RC book of the car and as such the allegations that he had no knowledge of hypothecation of the car cannot be believed. The complainant after verifying the documents and after having full knowledge of the hypothecation purchased the car. There is no latches and deficiency in service on the part of the OP in selling the car to the complainant. The other allegations made in the complaint are denied; hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The proprietor Mudabir Sharieff of OP filed affidavit evidence in support of the defence version and produced documents. <br /> <br /> 5. Both the parties filed written arguments, arguments heard. Points for our consideration are: <br /> <br /> Point No.1:- Whether the complainant proved the <br /> deficiency in service on the part of <br /> the OP?<br /> <br /> Point No.2:- Whether the complainant is entitled for<br /> the relief’s now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. We record over findings on the above points: <br /> <br /> Point No.1:- Affirmative. <br /> <br /> Point No.2:- Affirmative in part. <br /> <br /> Point No.3:- As per final Order. <br /> <br /> R E A S O N S<br /> <br /> 7. At the outset it is not at dispute that the complainant purchased 2005 Model Skoda Super Car bearing registration No.KA-53 N-7 through the OP on 29.03.2008 for a sum of Rs.16,25,000/-. While purchasing the said car the complainant sold his two vehicles Esteem Car bearing registration No.KA-02 P-2810 for Rs.1,80,000/- and Santro Car bearing registration No.KA-02 Z-1372 for Rs.2,40,000/- through the OP and after adjusting the sale proceeds of the said two cars in the total amount payable for the car purchased, the balance amount of Rs.12,05,000/- was paid by the complainant to the OP. <br /> <br /> 8. The complainant claims that OP being a dealer in used cars and also service provider falsely represented that the said car purchased belongs to M/s Straits Arcolab Lit., and same is unencumbered, the ICICI bank’s charge on the said vehicle has been cleared and hypothecation was cancelled. But in fact the vehicle was hypothecated to ICICI bank by one Mudabir Sharief in whose name the RC was standing. OP by suppressing these material facts made the complainant to purchase the vehicle. OP has denied the said fact of suppressing any material facts; it is stated that OP had taken loan from ICICI bank and there was a charge on the said vehicle; at the time of selling the same to the complainant now that loan amount has been cleared by OP and the name of the complainant has been entered in the registration certificate of the vehicle as purchaser. Further the main defence is the complainant after verifying the documents of the vehicle and with knowledge of hypothecation purchased the car. <br /> <br /> 9. It may be noted that along with the complaint, the complainant has produced the copy of the registration certificate of the vehicle purchased. After pursuing the entries in the certificate it becomes clear that earlier, the vehicle was standing in the name of M/s Straits Arcolab Lit., and the same was hypothecated to the ICICI bank and the said hypothecation was cancelled. The registration certificate was transferred to Mr. Mudabir Sharief with effect from 06.03.2008 and fresh hypothecation agreement is noted with ICICI bank Ltd., with effect from 06.03.2008. The complainant while purchasing the vehicle must have verified the registration certificate document and the document was clearly mentioning about the hypothecation agreement with ICICI bank and the name of Mudabir Sharief as owner of the vehicle. We are unable to accept the contention that without verifying the records; the complainant purchased the vehicle believing that the vehicle stands in the name of M/s Straits Arcolab Ltd., and ICICI bank encumbrance has been cleared. When the complainant has purchased the vehicle by paying huge amount of Rs.16,00,000/- and odd, he would not have failed to verify the documents of the vehicle. The transaction had taken place on 29.03.2008; the entry in the name of Mudabir Sharief and hypothecation agreement with ICICI bank is made with effect from 06.03.2008, as such as on the date of transaction the vehicle was standing in the name of Mudabir Sharief and there was hypothecation agreement with ICICI bank, the complainant knowing fully well about all these facts has purchased the vehicle. Though in the temporary receipt dated 31.03.2008 there is a printed matter to the effect that there are no encumbrance on the vehicle and the sale is bonafide, but there is also mention that the registration book and the necessary documents have been handed over to him (purchaser) along with the vehicle, as such only on the basis of this statement that there are no encumbrances on the vehicle, it cannot be said that the complainant has purchased the vehicle. In the receipt itself it is clearly mentioned the registration book and the necessary documents have been handed over to the complainant. In the registration book there was clear entry regarding the hypothecation agreement with ICICI bank, therefore it cannot be said that the complainant without knowing the fact of the hypothecation agreement with ICICI bank and the vehicle standing in the name of Mudabir Sharief, purchase the same. <br /> <br /> 10. Further the case of the complainant is at the time of said transaction OP has under taken to arrange for transfer of the vehicle in the name of the complainant in the RC book and received amount towards meeting expenditure relating to it, but he had failed to do the needful. Only during the pendency of these proceedings the ICICI bank charge was cleared on 28.02.2009 and the vehicle was transferred in the name of the complainant on 13.03.2009 nearly after lapse of about one year from the date of purchase. The complainant to get the benefit of rebate of the income tax at 15% of the value of the car purchased, purchased the vehicle, but on account of the vehicle being not transferred in the RC on or before 31.03.2008; the complainant was deprived of the income tax rebate. <br /> <br /> 11. It may be noted that in the receipt dated 29.03.2008 issued by OP, while acknowledging the receipt of entire sale consideration of Rs.16,20,000/- OP has under taken that the transfer of document will be done soon as possible. The temporary receipt in respect of the sale transaction is dated 31.03.2008. In the said receipt it is shown that the vehicle KA-53 N-7 is sold for Rs.5,00,000/- and OP has acknowledged the receipt of the said amount. On the reverse side of the said receipt it is shown that the cash of Rs.5,00,000/- received on 31.03.2008 and with further cash of Rs.1,00,000/-, a cheque for Rs.4,00,000/- was received. From this document it becomes clear that the sale transaction is completed on 31.03.2008. When the sale transaction itself had completed on 31.03.2008, it is difficult to accept the contention of complainant that OP should have taken steps to transfer the ownership of the vehicle in the name of the complainant in the registration certificate on or before 31.03.2008 to claim the rebate benefit under the Income Tax Act. <br /> <br /> 12. OP as a dealer in used cars and service provider ought to have taken steps for transfer of ownership of the complainant in the registration certificate within a reasonable time. OP having received the entire sale consideration of the vehicle, failed to clear the amount due towards hypothecation agreement of ICICI bank and he has cleared the dues only on 28.02.2009 nearly after 11 months of receipt of the sale consideration. This act on the part of the OP in is nothing, but deficiency in service. There is no merit in the contention that the complainant is not a consumer and the dispute arisen is not a consumer dispute. OP as a dealer in used cars and service provider has received the amount towards sale consideration and also service charges for effecting transfer of ownership of the vehicle in the name of the complainant. Under these circumstances we are of the view that the complainant proved deficiency in service on the part of the OP. <br /> <br /> 13. The complainant produced the income tax returns copies and the provisions of the Act in support of his claim for compensation towards income tax rebate at 15% of the sale consideration which works out at Rs.2,47,750/-, if the RC was changed in his name on or before 31.03.2008. As already observed the entire sale consideration has been paid on 31.03.2008, in view of the same, it is difficult to accept that OP ought to have taken steps to transfer the ownership of the vehicle in the name of the complainant on or before 31.03.2008. However OP by receiving the entire sale consideration failed to discharge the amount due to the ICICI bank and get transfer of the vehicle in the RC in the name of the complainant within a reasonable period. He has retained the amount for about 11 months and then cleared the dues of ICICI bank. Taking into consideration of the delay on the part of the OP in discharging his obligations and the complainant having suffered mental agony, hardship and inconvenience it would meet hands of justice by awarding compensation of Rs.50,000/-. Accordingly we proceed to pass the following order. <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. OP is directed to pay an amount of Rs.50,000/- as compensation with litigation cost of Rs.3,000/- to the complainant within four weeks from the date of this order. <br /> <br /> Send the copy of this order to both the parties free of cost.<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 23rd day of July 2010) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> s.n.m. <br /> <br /> <br />