Karnataka

Gadag

CC/26/2014

Manjunath.B.Hiremath - Complainant(s)

Versus

Proprietor, Channamma Automobiles. - Opp.Party(s)

M.V Mudgol

21 Sep 2015

ORDER

JUDGEMENT DELIVERED BY SMT.SAMIUNNIS.C.H., PRESIDENT:

The complainant has filed this complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service on the part of OP and praying for direction to the OP to pay of Rs.95,000/- towards physical and mental agony, deficiency in service, untrade practice, damages occurred to the complainant and cost of this proceeding and to order for the handover to Original Documents of the vehicle.

 

2.    The brief facts of the case are that the Complainant filed a case against the OP which had been withdrawn from the complainant for technical reason again the complainant has filed this complaint. That on 13.03.2013, he had purchased a Motor Cycle (Bajaj Discover) for which complainant had paid of Rs.56,521/- (Rupees fifty six thousand five hundred and twenty one) and received the  Photocopy of Cash Receipts and all other documents. The OP promised to send by Original Documents by post in a week. But, the OP did not send the same to the complainant. When the complainant asked OP about the documents, the OP replied that the documents had been kept somewhere and it will be send at an earliest. But, the OP failed to do so. As per the MACT Act, 1988 Section 134 (2) vehicle cannot be registered without the original documents. Hence, vehicle had not been registered the complainant is not riding the vehicle because Complainant ride the vehicle, it is oppose to law. By which the vehicle ruined and moreover he is facing so many problems and it effects to his daily routine work as well as professional, he has working as an Agent in Borewell Company. So that he has sent that legal notice on 23.10.2013 to the OP through his Counsel. OP is not replied by the same. Therefore, the complainant filed this complaint and pray to order for the handover the Original Documents along with the compensation towards physical and mental agony, deficiency in service, unfair trade practice and loss incurred to the complainant and Court Expenses in total as Rs.95,000/-.

 

3.      On issuance of the Notice, counsel for the OP appeared and filed his Version contending that the complaint is not maintainable in law and not come under the purview of Consumer Protection Act, 1986. The fact is that complaint filed by the complainant is partially true and he had stated that the previous case had dismissed by this Forum. The complainant purchase the vehicle from OP on 13.03.2013 and OP denied that the complainant had not paid Rs.56,521/- and other allegation made against the OP had been denied.

4.      The OP further stated that on 12.03.2013, the complainant had purchased Bajaj Two Wheeler from the OP, out of total amount of the vehicle the complainant had paid at Rs.50,000/-. Further, OP stated that the complainant is agree to pay balance amount of Rs.9,361/- and collected the Original Documents from the OP. Again OP stated that he had call the complainant several times to pay the balance amount, but the complainant had drag the time and he filed false case against the OP. With a malafide intension to gain unlawful profit of Rs.9,364/- and OP had not made any deficiency in service and he is not made any unfair trade practice. Hence, case may be dismissed and order for to pay balance amount of Rs.10,000/- along with the costs.

 

5.      To substantiate their respective cases, both the parties have filed their respective affidavits along with the documents, we heard the arguments.

 

6.      On the basis of the pleadings and evidence placed before us, the following points are arises for our consideration:

A. B. C.	Whether the complaint is maintainable?   Whether the complainant proves that the deficiency in service on the part of the OP? Whether the complainant is entitled to relief prayed in the complaint?
D.	What Order?

                                                Our Answer to the above Points are:-

Point No.A in the affirmative

Point No.B in the affirmative,

Point No.C in the partially affirmative,

Point No.D as per the final Order.

                          R E A S O N S

 

 7.  POINT NO.A:  The complainant had filed a complaint before this Forum, previously complainant had filed the same complaint in the same fact before this Forum and complainant contended that it had been withdrawn by the Complainant by technical ground, but OP in his Written Version stated that the above complaint was dismissed. But, he had not objects the same and he is not come forward to file the previous Order Sheet to show that the complaint is dismissed. As per the “Consumer Protection Act, second complaint is maintainable if the previous case is dismissed for technical ground, a fresh complaint is entitled”. Hence, the above Point No.A is affirmative.   

 

8. POINT NO.B: On perusing the pleading of both the parties and material placed before us, it is undisputed fact that the complainant had purchased a two wheeler Bajaj Discovery from OP. The complainant had filed six numbers of documents in support of his case which has not been disputed by the OP. It shows that the Photocopies of the documents are the Photocopies of the original which has been handover by OP to the complainant and OP himself agreed in his Written Version as well as in Chief Affidavit the complaint taken the photocopy of the documents from the OP. The OP had filed the Written Version and affidavit and a file cover of his Office Document to consider the same behalf of him which belong to OP-Showroom. Considering these documents, the Photocopy of the documents produced by the complainant in which Cash Receipt dated: 13.03.2013 as Document No.4 bearing No.21IV1202986 for Rs.56,521/-. It clearly speaks that the complainant had purchased the vehicle remitting the full amount in cash. While the OP states that in his Written Version, he had issued a Receipt bearing No.DPRT 21RC1204076. But, the OP had not produced the copy of the same. Moreover, OP had only produced File Cover which does not carry any Serial Numbers and also it had prepared on 12.03.2013 by the representative of OP which had not duly signed by him. The documents produced by the OP had been prepared on 12.03.2013, the OP argued that on 12.03.2013, complainant had signed on the File Cover which is produced before the Forum. On perusing the file which has been produced by the OP, the complainant had signed on the cover (file) for the delivery of the vehicle, but not agreeing to pay the balance amount and where the complainant is signed the complainant has agreed that the vehicle has received in a well condition. Hence, documents produced by the OP cannot be considered, hence we hold that Point No.B in the affirmative.

 

9. POINT NO.C: The complainant had produced the Photocopies of the documents Serially in numbered as documents No.1 to 6 which stands in the name of the complainant, that Tax Invoice issued by the OP itself disclosed that the complainant had paid to the full amount to the OP and taken delivery of the vehicle. It is bounden duty of the OP to deliver (handover) the Original Documents to the complainant. Hence, the document in question amounts to deficiency in service. Further, when the complainant had paid full amount to the OP, OP’s duty to the handover the Original Documents to the complainant and hence in the absence of the document, the complainant has suffered some agony, though the complainant prays for Rs.95,000/- as a compensation for not handing over the documents. The complainant did not produced cogent evidence to establish that he had earn Rs.8,000/- per month and what he has loss incurred by him in absence of the documents. Under these circumstances, we deemed it proper award a compensation of Rs.40,000/- to the complainant. Also, direct the OP to deliver (handover) all the Original Documents to the complainant along with cost of proceedings. Accordingly we hold Point No.C as partially affirmatively.

10.  POINT NO.D: On the basis of the reasons assigned above while answering the Point NO.(B) and (C) accordingly, we proceed to pass the following:  

//ORDER//

          The complaint is allowed in partial with costs.

2. The OP is directed to handover all the original documents to the complainant.

3. The OP is directed to pay of Rs.40,000/- (Rupees forty thousand) to the complainant towards compensation.

4. OP is directed to pay of Rs.2,000/- (Rupees two thousand) towards cost of the proceedings.

5. OP is directed to comply the above order within 30 days from the date of receipt of this Order, failing which OP had to pay 18% p.a. from the filing of this complaint.

6. Send a copy of this Order to both parties free of cost.   

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 21^st day of September, 2015)