IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    31^st  Day of  August 2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.21/2017

Ahammed Kabeer                              :         Complainant

S/o Thangal Bava

Puthenvila Veedu

Panayam P.O

Piravanthoor.

[By Adv.Pallimon.S.Sreekumar&Adv.Asha Sreekumar]

V/s

1. Raj Kannan                              :         Opposite parties

        Sales Manager

         Daiwik Motors

        Mangalodayam Building

        Chemmannoor

        Punalur.

2. Deepak

         Branch Manager

        Daiwik Motors

         Karikkakam, Kottarakkara.

3. Ajith

         Managing Director

         Daiwik Motors

        Karikkakam,

        Kottarakkara.

          [By Adv.S.Riyas]

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          The complainant during  the month of September 2014  when he came on leave from abroad decided to purchase a Reno model car for which he approached to the office of the 1^st opposite party at Chemmanthoor, Punalur and enquired about the price and other details of the car.  On 10.09.2014 the 1^st and 2^nd opposite party arrived at the residence of the complainant and made the complainant to believe that Reno Model  seven seater LMV is having a price of  Rs.11,70,000/-   and the complainant has to pay Rs.2,30,000/- as down payment and remaining amount has to be paid by way of DD at the 1^st and 2^nd opposite party at their office.  They have also made the complainant to believe that the vehicle will be delivered three months after booking and it is having 2 years warranty from the date of delivery.  On the basis of the above representation the complainant on 19.09.2014 paid Rs.30,000/- to opposite party No.1&2 and booked the car.  Thereafter the complainant arranged CC from Central Bank of India, Pathanapuram branch were he has been maintaining account.  Thereafter the 1^st and 2^nd opposite party contacted the complainant on 22.09.2014 and assured that he can take delivery of the vehicle within 3 months.  Later on 29.09.2014 the 1^st opposite party approached the complainant and informed that if DD is handover to opposite party No.1&2 vehicle will be delivered on that day itself.  On the basis of the above assurance the complainant from his account transferred Rs.2,00,000/- to the account  of the 3^rd opposite party by way of bank transfer and also arranges a bank loan and taken  a DD for Rs.9,40,000/- for the remaining amount in the name of the 3^rd opposite party and entrusted the same to the 3^rd opposite party.  More over the complainant paid Rs.83,000/- directly to the opposite parties as road tax, insurance etc.  On the assured date the complainant arrived at the showroom of the 2^nd opposite party and taken delivery of the vehicle that they have also handed over the documents consisting of  copy of insurance and temporary registration and also made the complainant to believe that the original of the insurance certificate will be handed over to the complainant later.  Thereafter the complainant got registered the vehicle at the RT Office, Punalur and obtained Registration Number  KL.25G 1493.  When the complainant verified the dash board of the vehicle he obtained two cash receipts from Muthoot Finance, Kundara Hospital branch and when enquired about receipts the opposite party told that it happened to be kept at the dash board inadvertently .  On 18.12.2014 the complainant returned to gulf country till then the complainant continuously enquired about the insurance certificate.  But the opposite parties made the complainant to believe that it will be given shortly.

 On 15.05.2015 the complainant arrived at the native place on leave and enquired about insurance certificate at the office of the 2^nd opposite party.  There upon the 2^nd opposite party returned the insurance certificate.  On verification it was understood that the insurance certificate was standing in the name of yet another person from 28.04.2014 till 17.12.2014 and it  was transferred to the name of the complainant from 18.12.2014 till 27.04.2015.  The vehicle was having insurance coverage in his name only for 4 months.  When he enquired about the above anomaly the 2^nd opposite party  misguided the complainant.  In the above insurance certificate it was recorded that  the said vehicle  was registered under the registering authority at RTO, Kottarakkara and the vehicle was hypothecated.  The said vehicle was found registered in the name of one Vysak, Ushus Veedu, Kuzhimathikkadu, Kundara and the vehicle was registered in the RTO, Kottarakkara and on 28.04.2016 and after 5 months of the sale of the vehicle to Vysak it was sold to the complainant by opposite party No.1 to 3 concealing the above facts.  By knowing  this fact the complainant approached the opposite party and demanded  to take back the vehicle and return the amount but the opposite parties were not amenable for the same.   Hence the complainant filed a private complaint before the Judicial First Class Magistrate Court, Punalur and got forwarded it under Punalur Police Station.  The Punalur Police has registered Crime No.1623/2015 under Section 420 r/w 34 IPC and the opposite parties have obtained bail in the above crime and case has been pending before the Magistrate Court, Punalur.  The opposite parties offered to give back the amount to the complainant on several occasions but they have not returned the same till date and hence there is delay in filing the complaint.  Later the vehicle was taken over by the finance company who granted loan as  the complainant failed to pay the loan installment amount.  Proceedings under Surfacie Act is pending and the complainant has approached the Hon’ble High Court and obtained a temporary stay.  It is further alleged that the opposite parties have initially sold the vehicle to Vyshak for Rs.9,10,000/- and sold similar vehicle to several other persons for lesser amount than Rs.9,10,000/-.  But the opposite party sold the  second hand  vehicle to the complainant by charging Rs.2,00,000/- more than the price charged to the 1^st owner and thereby cheated the complainant.  In connection with the above case the complainant was constrained to came to his native place on several occasions and thereby sustained a loss of Rs.3,00,000/- on this count.  The complainant is also entitled to get the amount paid by way of loan installment and defaulted amount to the bank.  The above act of the opposite parties No.1 to 3 amounts to deficiency in service.  Therefore the complainant prays to allow him to recover Rs.12,48,000/- being the price paid by him for purchasing the above vehicle and also the loan installment of Rs.1,23,500/- paid by him along with interest @ 12% p.a and also allowed to recover Rs.2,00,000/- being compensation for mental agony and financial loss along with Rs.3,00,000/- spend by him for his journey from gulf country to his native place along with costs of the proceedings.

          The 1^st opposite party remain exparte.  Opposite party No.2&3 filed joint version raising the following contentions.  The complaint is not maintainable either in law or on facts.  The 2^nd opposite party is not a necessary party as he has no connection with the sale of the vehicle to the complainant.  The 2^nd opposite party is having  any connection what so ever with the complainant nor involved in any business.  The 3^rd opposite party is the Managing Director of Daiwik Motors.  The 1^st opposite party has been carrying out all business transactions.  The complainant during the 1^st week of September 2014 went to Daiwik Motors functioning at Punalur wherein 1^st opposite party has been working and demanded one ICML company making Extreme Model SUV.  Thereupon the 1^st opposite party informed the complainant that the vehicle has to be booked and it will be released after 3 months strictly on priority basis.  Thereupon the complainant  insisted to deliver such a vehicle immediately and demanded to deliver the vehicle within the booking period and paid Rs.30,000/- on 10.09.2014 and booked the vehicle.  Two days after the booking date  the complainant approached the 2^nd opposite party and demanded to deliver the booked vehicle immediately as he has to return to gulf country which was a difficult task and that fact was informed to the complainant.  Thereupon  the complainant insisted the staff of the 1^st opposite party to deliver the vehicle at any rate.  In view of the above urgency expressed by the complainant the staff members of the 1^st opposite party institution informed that the same model vehicle was prepared for sale to one Vysakh  and insurance was taken in the name of Vysakh and bank finance was also arranged.  Later Vysakh expressed that  he need not require the vehicle and closed the loan at the bank and that vehicle has been kept at garage of the 1^st opposite party.  This fact was intimated to the complainant and thereupon the complainant told that he is satisfied with the vehicle.  The 1^st opposite party caused to inspect the vehicle by the complainant who has conducted trial run and verified the odometer and convinced that it was not driven by anybody else.  As he was fully satisfied he purchased the vehicle by availing loan from the Central Bank of India, Pathanapuram branch and the other averments contrary to this real fact are false and incorrect.  The 1^st and 2^nd opposite party are having no need to visit the house of the complainant.

          As the complainant was in dire need of the vehicle he was ready and willing to purchase the said vehicle by paying the sale price.  The complainant has not raised any allegation for about 1 year.  The complainant has brought the vehicle to the  opposite party service centre and carried out the periodical service and the opposite parties have assisted the complainant to change the name of the insurer  from the insurance certificate.  The complainant initially understood the fact that the vehicle was insured in the name of  Vysak and in such circumstances there is no merit in the allegation that the opposite parties have cheated the complainant.  While delivering the vehicle all records relating to the vehicle such as insurance certificate, temporary registration etc were entrusted by the 1^st opposite party to the complainant and the allegation that the original insurance certificate was not given to the complainant is incorrect.  The 2^nd opposite party has not involved in any type of business transaction with the complainant.  The 1^st opposite party has entrusted the insurance policy after changing the name of  Vysak and details of insurance has been clearly stated in the policy certificate.  The allegation that the insurance certificate was hand over to the 1^st opposite party within 1 month is incorrect.  All the details of the vehicle has been narrated to the 1^st opposite party and after fully convincing the fact that the complainant has purchased the vehicle.  After purchasing the vehicle the complainant made default in paying the installment to the financier bank.  Therefore the bank has proceeded against the complainant and seized  the vehicle and thereafter the complainant has raised such allegation and  filed the present complaint.  The opposite parties are not responsible for the act of seizure of the vehicle by the bank authorities.  On 19.06.2015 the complainant has brought the vehicle for the 3^rd service and till that date the complainant has plyed the vehicle for about 24691 km.  The complainant has never approached the 2^nd and 3^rd opposite party and demanded to refund the amount and there is no reason for  that.  On 19.06.2015 the complainant brought the vehicle to the 3^rd opposite party service station and after service he picked up quarrel with the Service Manager and attempted to came out from the service station without paying the service charge of Rs.5167/-.  At that time the 2^nd opposite party who was available at that service station has told the complainant that he has to pay the service charge and by convincing that the complainant paid the service charge.  As the 2^nd opposite party directed the complainant to pay the service charge the complainant was on enemical terms with 2^nd opposite  party and hence he impleaded the 2^nd opposite party in the criminal complaint filed before the JFMC, Punalur.  The 2^nd opposite party never contacted the complainant in connection with the vehicle transaction alleged in the complaint.  After availing bank loan the complainant failed to pay the installment for which opposite parties are not responsible at all.

          The price of the vehicle sold by the opposite parties has been decided by its manufacturers.  There is chance for having difference in the price.  According to the model of the vehicle the price of each vehicle can be ascertained through internet.  The opposite parties have not obtained any excess amount from the complainant and there is no chance for the same.  The opposite parties are not responsible for the expenses of Rs.3,00,000/- met by the complainant in connection with the journey from abroad to his native place.  The complainant alone is responsible for clearing  the loan availed from the bank.  There is no deficiency in service or any unfair trade practice on the side of the opposite parties.  The complainant is not entitled to get any relief from the opposite parties.  As  the bank has initiated revenue recovery proceedings against the complainant for non payment of the loan amount the complainant foisted this case and criminal case against the opposite parties without any bonafides and there is no merit in this case and criminal case.  The opposite parties 2&3 further pray to dismiss the complaint with costs.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties No. 1 to3 in connection with sale of vehicle to the complainant?
2. Whether the complainant is entitled to get the reliefs including compensation sought for in this case?
3. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 to 4 and Ext.P1 to P12 documents.Evidence on the side of the opposite parties consists ofDW1 and 2 and Ext.D1 and D2 documents.

Both sides have filed notes of argument.Heard both sides.

Point No.1

          The  following are the admitted and proved facts in this case.  On 19.09.2014 the complainant booked one Remo model car by paying Rs.30,000/- to the 1^st and 2^nd opposite party.  The opposite parties have issued quotation for Rs.11,70,000/- for the car involved in this case and out of which the complainant has paid  Rs.2,00,000/- as down payment by way of bank transfer.  Balance amount of Rs.9,40,000/- was paid through bank draft by availing a vehicle loan from the Central Bank, Pathanapuram Branch.  The time agreed for delivering the car was 3 months from the date of booking.  It is also clear from the available materials that the complainant has given an amount of Rs.83,000/- as road tax and insurance to the opposite parties.  But the RC book and insurance certificate was not handed over to the complainant along with the car but assured that the same will be handed over within a week.  There after the complainant  got registered the car at the RTO, Punalur and obtained  Registration No.KL 29/1493.

          The  specific case of the complainant is that the vehicle purchased by him from the opposite parties was already sold to another person by name Vysak for an amount of Rs.9,10,000/-.  But after 5 months the opposite parties taken possession of the car and resold the same to the complainant for a higher price of Rs.11,70,000/- by illegally charging Rs.2,60,000/- more from the complainant and that is why the opposite parties have not given documents such as insurance and RC book along with the car.  They delayed the delivery of the insurance certificate for more than 6 months.  According to the complainant the above act of the opposite parties amounts to clear deficiency in service and unfair trade practice.  The opposite parties totally denied the above allegations of the complainant and would content that the price of the car has been decided by the manufacturers from time to time.  After two days of the booking the complainant approached the 2^nd opposite party and demanded to deliver the booked vehicle immediately as he has to return to gulf country which was a different task and that fact was informed to the complainant.  Thereupon the complainant insisted the staff of the 1^st opposite party to deliver the vehicle at any rate.  In view of the dire need and urgency explained by the complainant the staff  members of the 1^st opposite party informed the complainant that the same model of vehicle was with one Vysak who is prepared for sale of the said vehicle and that insurance was taken in the name of Vysak and bank finance was also arranged in the name of said Vysak.  Thereupon the complainant expressed his willingness to purchase the said vehicle and also inspected the vehicle and conducted  a trial run, verified the odometer at the instance of the 1^st opposite party and convinced that the vehicle was a brand new one and not driven by anybody else.  Hence the complainant by availing loan from Central Bank of India, Pathanapuram branch purchased the vehicle by paying the same price which was decided by the manufacturer and not by the opposite parties.  According to the opposite parties the complainant has not raised any allegation for one year though he has carried out periodical services and got charged his name in the insurance certificate and hence there is no deficiency in service or any unfair trade practice on the part of the opposite parties.  According to the opposite parties  the complainant has agreed to purchase the said vehicle due to his dire need by convincing the fact that it is pre owned and possessed by the said Vysak as he has to return to gulf country immediately. PW2 is the said Vysak who is admittedly the prior  owner of the vehicle sold to the complainant after realizing the value of new vehicle.  The oral evidence of PW2 would indicate that he booked one Remo car with opposite party No.1&2 and Ext.P5 is the quotation issued in his name and address by the opposite parties.  The on-road price including road tax, insurance, logistic handling charge etc is Rs.10,94,500/-.  It is further stated in Ext.P5 quotation that loan amount is Rs.9,10,000/-.  At the same time Ext.P2 retail invoice would indicate that  the very same vehicle was sold to the complainant for Rs.1109434/-.  But the case of the complainant is that he paid Rs.11,70,000/- including advance and down payment of totaling Rs.2,30,000/-.  If that be so the opposite parties have realized an excess amount of Rs.75500/- from the complainant after selling a second hand vehicle after 5 months of its first sale to the said Vysak which is definitely an unfair trade practice. 

          The oral evidence of PW2 to 5 would clearly indicate that the disputed vehicle was purchased by PW2 Vysak by availing bank loan from the Central  Bank and he defaulted the payment  4 installment and finally the 1^st opposite party has repaid the defaulted installments and the remaining loan amount, that the opposite parties have taken temporary registration and insured the vehicle in the name of the said Vysak and being the owner of the vehicle  PW2 has brought the said vehicle by driving to the Bank premises and PW5 has verified the said vehicle and  its documents and convinced that the said vehicle is the one purchased by the loanee Vysak and noted that fact in the loan records. 

In view of the above materials on record it is crystal clear that the vehicle sold to the complainant was a pre owned vehicle by Sri.Vysak who purchased it by availing bank loan from PW5 and insurance was also taken in the name of the said Vysak.   The opposite parties would content that the price of the car used to be fixed by the manufacturing company.  But the sale of the disputed vehicle is the second sale the manufacturing company may have fixed the price of the car before it was sold to PW2.    There is no chance of re-fixing the price of the car when it was sold to the complainant on the 2^nd occasion.  However it is seen from the available records that the very same car was sold to the complainant at an enhanced price by adding Rs.75,500/- than the on road price fixed while selling the car to PW2. 

According to the opposite parties the complainant demanded and insisted to get the booked car immediately as he has to return to gulf country.  Hence they sold the pre owned car as it was brand new one.   The above contention of the opposite parties are not believable.  No sensible men would come forward and purchase a second hand car by paying more price than its actual price even if he is having dire need.  It is further to be pointed out that the complainant has left India to gulf country only about 3 months after the date of booking the car.  In the circumstances there is no chance of complainant making undue haste in purchasing the vehicle as contented by the opposite parties.   Even according to the opposite parties the complainant insisted to get the booked car and not a second hand car.  In the circumstances we find merit in the allegations in the complaint that the opposite parties have sold a pre owned car by realizing  more amount than its actual price to which it was sold to the 1^st owner.  Ext.P2&P5 documents would indicate that the opposite parties have charged Rs.75,500/- in excess of the price realized from the prior owner Vysak,  even though the vehicle has become older by 5 months.  The  above conduct of the opposite parties would definitely amounts to deficiency in service and unfair trade practice. 

The materials available on record would establish that the opposite parties  have sold the pre owned  vehicle by canceling  material facts from the attention of the complainant and even without handing over insurance certificate of the vehicle.  According to the opposite parties when the complainant insisted to get the vehicle urgently at any rate the opposite parties have explained that the similar vehicle is readily available for  sale with PW2 Vysak. There after the complainant verified the vehicle and conducted a trial run and inspected its odometer and after convincing that it is a pre owned vehicle he purchased it and he has not raised any complaint for about one year and only at the time of 3^rd service when the service charges amounting to Rs.5167/- was demanded the complainant picked up quarrel and at the intervention of  2^nd opposite party he paid the amount and taken back the car after service.  The above contention is totally denied by the complainant when he was in the witness box as PW1.

          On evaluating the entire materials available on  record we come to the conclusion that the complainant has succeeded in establishing deficiency in service and unfair trade practice on the part of the opposite party No.1 to3 and also entitled to get the excess amount realized from the complainant than the actual  price of the car and a reasonable compensation and costs of the proceedings from opposite party No.1 to 3. The points answered accordingly

Point No.2

          The specific prayer of the complainant in his complaint is that in the relief portion of the complaint is that he shall be permitted to recover Rs.12,48,000/- being the amount realized by them from the complainant as the price of the vehicle and also allow him to recover Rs.1,23,500/- being the CC installments paid by the complainant.  He further prays to allow him to recover the above amount claimed in the two reliefs  along with interest @12% p.a from opposite party No.1 to3.  He further prays to allow him to recover Rs.2,00,000/- being compensation for the financial loss as well as mental agony and also prays to award Rs.3,00,000/- as expenses met by him for his journey from gulf country to his native place on several occasions in this connection and also prays Rs.50,000/- being the costs of the  proceedings.  In the proof affidavit in page No.5 last the complainant has sworn that the vehicle purchased from the opposite parties have been seized by the Central Bank of India which granted vehicle loan to the complainant under the Sarfaesi Act.  However the complainant has obtained stay order from the Hon’ble High Court against the bank in proceeding under the Sarfaesi Act.    It is also brought out during cross examination(last page) of PW1 that later he closed the loan and taken back the vehicle.  Therefore it is clear that now the vehicle is with the complainant.  He has no case that the vehicle is not in a road worthy condition and he has not been using the vehicle.  The complainant has also no case that the vehicle is having any major defect so that he cannot use the vehicle.  In short now the vehicle is with the complainant and has been using the same for the purpose for which it was purchased.  In this circumstances it is highly unfair to demand the entire price paid by him from opposite party No.1 to3.  Even though they have committed some foul play in selling a pre owned  vehicle to the complainant as if it is a new one by concealing materials facts.  However it is clear from the available materials that the opposite party has sold a second hand vehicle which was manufactured one year prior to the date of sale by realizing  excess price than the price realized from PW2 the previous owner.  Therefore the complainant is entitled to get back the amount paid in excess of its price as per Ext.P2 document and also entitled to get compensation for selling pre owned  vehicle manufactured during the previous year to the complainant by suppressing  material facts.    In view of the materials available on record including the price charged by the opposite parties from the complainant  we are of the view that Rs.3,00,000/- will be reasonable compensation on this count.

Now the prayer regarding the return of  Rs.1,23,500/- paid by him to the bank loan towards hire purchase installment of the vehicle. The complainant himself has purchase the vehicle by availing loan and the said vehicle is now in the possession and use of the complainant.  Therefore it is the complainant who is to pay the loan installment and hence he is not entitled to get anything on this count.

          The further claim of the complainant is Rs.2,00,000/- as compensation for the mental agony and financial loss.  It is clear from available materials that   the opposite parties have  sold a pre owned vehicle to the complainant instead of a brand new vehicle booked by realizing more price than its actual price for which it was sold to PW2 Vysak.  Hence there is merit in the claim of the complainant that he has sustained mental agony apart from monitory loss.  Therefore we are inclined to award Rs.1,00,000/- as compensation for mental agony.

          Now regarding the claim of expenses met by the complainant on account of his to and fro journey from gulf country.  According to him he is entitled to get Rs.3,00,000/- on this count.  However apart from the ipsy dixit of the complainant  there is no reliable material such as plain ticket and other documentary evidence to show that he has travelled several occasions in connection with purchase of this vehicle.  He has also not appended in the details of the expenses met by him.  In the circumstances and also in view of the fact that he has been awarded compensation for mental agony,  we are of the view that the complainant is not entitled to get any amount on this count.

Point No.3

          In the result the complaint stands allowed in part in the following terms.

1. Opposite party No.1 to 3 are directed to pay Rs.3,00,000/- as compensation for selling second hand vehicle instead of  brand new vehicle booked by the complainant and also Rs.77,500/- being the excess price collected from the complainant as price of the vehicle with interest @ 9% p.a from the date of sale of vehicle till realization.
2. Opposite party No.1 to 3 are directed to pay Rs.1,00,000/- as compensation for mental agony along with interest @ 9% p.a from the date of complaint till realization.
3. Opposite parties No.1 to 3 are directed to pay Rs.10,000/- as costs of the proceedings.
4. The other reliefs sought for stands dismissed.
5. Opposite parties No.1 to 3 are directed to comply with the above directions within 45 days from today failing which the opposite parties are entitled to recover the amount covered under relief No.i to iii with  interest except for costs as ordered above from opposite party No.1 to 3 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the     31^st  day of  August 2022.

            E.M.Muhammed Ibrahim:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Ahammed Kabeer

PW2  :         Visakh

PW3  :         Bindhu.B

PW4  :         K.Sudhakaran Kutty

PW5  :         Sheeja.K.R

Documents marked for the  complainant

Ext P1:        Order booking form

Ext P2:        Copy of retail invoice dated 25.09.2014 from Daiwik Motors Pvt.Ltd.

Ext.P3:        Insurance policy

Ext.P4:        Copy of order from CJM, Kollam.

Ext.P5         :Copy of quotation from Daiwik Motors Pvt.Ltd.

Ext.P6         :Final report

Ext.P7         :Attested copy of passport.

Ext.P8         : User manual

Ext.P9         : Copy of notice issued by Canara Bank dated 01.09.2015.

Ext.P10       : Copy of notice issued by Canara Bank dated 01.09.2015.

Ext.P11       : Insurance policy from United India Insurance Co.Ltd.

Ext.P12       : Certificate and statement of account from Canara Bank

Witnesses Examined for the opposite party:-

DW1           :         Deepak

DW2           :         Geevarghese

Documents marked for the opposite party:-

Ext.D1        : True copy of appointment order

Ext.D2        :         Copy of  EPF member pass book.