KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 722/2016

JUDGMENT DATED: 15.06.2023

(Against the Order in C.C. 268/2015 of CDRF, Kottayam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SMT. BEENA KUMARY. A                                                          : MEMBER

APPELLANT:

Sajith V., Sub Regional Transport Officer, Sub Regional Transport Office, Municipal Building, Vaikam, Kottayam-686 141 now working at Joint R.T.O., R.T.O Office, Attingal.

                             (By Adv. Sreevaraham N.G. Mahesh)

                                                Vs.

RESPONDENTS:

1. Rajagopal S., S/o Sekharan Nair, Rajagiri, Kaduthuruthy P.O., Kottayam-686 604.

(By Adv. D. Arun)

2. Deputy General Manager, M/s E.V.M. Automotive India Pvt. Ltd., Opp: St. Mary’s Chapel, M.C. Road, Thellakam-686 016.

3. Managing Director, M/s Nissan Motors India Pvt. Ltd., ASV Ramana Towers, 37038, Venkatnarayan RD, T. Nagar, Chennai-600 017.

(By Adv. Jani P.)

4. General Manager, M/s EVM Automotive India Pvt. Ltd., Angel Plazas, TVS Junction, South Kalamassery, Kochi-682 022.

     (By Advs. Sajeevu Mathew & A. Sagunaraj for R2 & R4)

JUDGMENT

SMT. BEENAKUMARY A. : MEMBER

The appellant is the 4^th opposite party in C.C. No. 268/2015 before the District Consumer Disputes Redressal Forum, Kottayam (District Forum for short).  The 1^st respondent is the complainant and the respondents 2 to 4 are the opposite parties 1 to 3.

2.  Brief facts of the case are as follows:

The complainant, on 25.03.2014 purchased a car named Nissan Sunny having diesel engine, manufactured by the 2^nd opposite party from the 1^st opposite party.  According to the complainant, at the time of purchase, 1^st opposite party had assured that the vehicle was a brand new one, manufactured in the year 2014.  But in the R.C. Book issued by the 4^th opposite party, the manufacturing year was mentioned as 2013 and the month was not mentioned.  So immediately the complainant contacted the DGM of the 1^st opposite party and intimated the matter.  The DGM informed that as per the Regional Transport Officer Rules, Kerala, the complainant would require a certificate from the Transport Commissioner, Kerala approving the chassis number as mentioned in RC for changing the vehicle manufacturing model year.  He also promised that they will take necessary steps for changing the model year.  And on 18.04.2015, 1^st opposite party provided some documents except the certificate from Transport Commissioner and it was rejected by the 4^th opposite party stating that without the certificate from Transport Commissioner it was not possible to change the year of manufacture and the 1^st opposite party was responsible to give the said certificate to the complainant.  Later the complainant made several requests to the 1^st opposite party for the said certificate.  But there was no response.  The sale certificate issued by the 1^st opposite party showed the month and year of manufacture as January 2014.  Then the complainant issued notice to the opposite parties demanding them to rectify the defect.  But there was no response from the part of the opposite parties.  According to the complainant, the above said act of the opposite parties amounts to deficiency in service and unfair trade practice.  Hence this complaint.

3.  The 2^nd opposite party in this case had not appeared before the District Forum.

4.  1^st and 3^rd opposite parties jointly filed version contending that the complaint was not maintainable.  According to them, manufacturing date of the complainant’s vehicle is January, 2014 and it was clearly mentioned in the sale certificate issued by them.  All the records issued by the opposite parties 1 to 3 clearly show that the vehicle was manufactured in the year January 2014 and it was marked in various parts of the vehicle.  According to them, opposite parties 1 to 3 had helped the complainant at all levels to resolve the problem with the 4^th opposite party and there is no deficiency in service or unfair trade practice on their part and they prayed for dismissal of the complaint with their costs.

5.  The 4^th opposite party filed version contending that 4^th opposite party is a public servant and government servant in Motor Vehicle Department, and acting as an Additional Registering Authority under Motor Vehicle Act 1988.  The complainant produced the vehicle after remitting the fees, cess and tax along with an application in Form 20, Form 21, sale letter issued by 1^st opposite party and Form 22 issued by 2^nd opposite party, temporary registration, insurance certificate, address proof and other necessary documents.  As per the certificate issued by AMVI the vehicle complies with chapter VII of Motor Vehicles Act and the requirement in this Act.  Then the 4^th opposite party registered the vehicle and issued a registration certificate.  As per G.S.R. 221 (E) dated 28/03/2001 the vehicle manufacturer shall intimate the certifying testing agency all details including chassis code for the year and month of production in respect of each model and such testing agency shall include these details in the certificate of compliance granted by that agency under Rule 126 of Central Motor Vehicle Rules.  Every new brand vehicle, before registration, a “type” approval is obtained from a testing agency like ARAI, Pune, which gives the details of vehicle with type and its testing certificate, which is to be presented before the Transport Commissioner and then he gives an approval certificate. Every year, the model of the vehicle is changed / upgraded as per approval certificate issued by Transport Commissioner.  Here the vehicle was produced for registration on 28^th March 2014, but the copy of approval of new model was not produced, so in RC the year of manufacture is fixed as 2013.  According to the 4^th opposite party if there was any complaint against the act of the 4^th opposite party, the public can approach the appellate authority, Deputy Transport Commissioner.  But the complainant has not preferred any complaint with the said appellate authority.  The 4^th opposite party has to provide the service of vehicle registration which does not come under the Consumer Redressal Forum.  The Motor Vehicle Act does not come under the Consumer Protection Act and hence prayed that the 4^th opposite party may be exempted.

6.  The complainant and one witness of the opposite parties 1 and 3 filed proof affidavits and examined them as PW1 and DW1.  Exts. A1 to A10 documents were marked from the side of the complainant.  Exts. B1 to B4 were marked from the side of the opposite parties 1 & 3. 

7.  On the basis of the evidence and pleadings of both the parties, the finding of the District Forum was that in the R.C. Book of the vehicle Nissan Sunny, manufactured by the 2^nd opposite party, purchased from the 1^st opposite party on 25.03.2014, the manufacturing date is noted as 2013 instead of 2014.  On inquiry the 4^th opposite party intimated that a certificate approving the chassis number from the Kerala Transport Commissioner was necessary for changing the same and the 1^st opposite party was responsible to provide the said certificate.  But despite several requests the opposite parties had not cared to provide the said certificate or take any steps for correcting the mistake in the RC regarding the year of manufacture.  As per the documents produced by the complainant, the manufacturing date of the disputed vehicle is January 2014.  It is also noted in various parts of the vehicle.  But in Ext. A1 (R.C. Certificate), the year of manufacture is noted as 2013.

8.  According to the 4^th opposite party, a testing certificate showing the chassis number code issued by ARAI, a testing agency is to be presented before the Transport Commissioner for their approval.  If the party fails to produce the same, the previous year model is endorsed in the R.C till the production of the new model chassis code approval certificate.  The vehicle was produced for registration on 28^th March 2014, but the copy of the approval of new model was not produced.  According to the 1^st and 3^rd opposite parties the said certificate was submitted before the Transport Commissioner in time by the 1^st opposite party and the same model of vehicle which was sold to another person was properly registered by noting the year of manufacture as 2014 by the 4^th opposite party.  They produced the copy of one R.C. Book and the same is marked as Ext. B4.  From this it can be seen that the contention taken by the 4^th opposite party that since the ARAI Certificate was not produced, they noted the year of manufacture as 2013 is not sustainable.  Hence the District Forum found that deficiency in service had not occurred from the side of opposite parties 1 to 3. 

9.  The other contention taken by the 4^th opposite party was that if there was any complaint against the act of the 4^th opposite party, the public could approach the appellate authority of the Motor Vehicles Department and the service provided by the 4^th opposite party does not come under the purview of Consumer Forum. 

10.  The District Forum stated that the contention taken by the 4^th opposite party was not sustainable because as per Sec. 3 of the Consumer Protection Act, 1986, provisions of the Consumer Protection Act is in addition and not in derogation of any other law for the time being in force.  So the District Forum found that the act of the 4^th opposite party in noting the year of manufacture of the vehicle as 2013 instead of 2014 amounted to deficiency in service.  Due to the act of the 4^th opposite party the complainant had suffered much mental agony, loss and sufferings.  Therefore the complainant is entitled to get compensation for his grievances.  Accordingly the District Forum allowed the complaint and directed the 4^th opposite party to pay Rs. 15,000/- as compensation and Rs. 5,000/- as costs to the complainant.  The District Forum further directed that on compliance of the order the 4^th opposite party shall file a report to the District Transport Officer (DTO) about the person who had committed deficiency in service and the DTO shall recover the amount paid by the 4^th opposite party to the complainant from the concerned officer.  Aggrieved by the impugned order the 4^th opposite party has filed this appeal. 

11.  The appellant argued that the District Forum failed to consider the fact that as per G.S.R. 221 (E) dated 28.03.2001 the vehicle manufacturer shall intimate the verifying testing agency all details including chassis code for the year and month of production in respect of each model and such testing agency shall include the details in the Certificate of compliance granted by the agency under Rule 126 of Central Motor Vehicle Rules.  This contention raised by the appellant is not correct.  Complainant had produced ARAI Certificate as Ext. B3.  From Ext. B3 it is found that the date of certificate is 21.03.2014 and the model of the vehicle is also noted. 

12.  Another contention raised by the appellant is that the appellant is a government official who is conducting the statutory function of the government.  Hence the appellant was not coming under the purview of the Consumer Protection Act as held by the National Consumer Commission in C.K. Mohan Sundaran Vs. K.V. Gopalakrishnan Nair in Judgment dated 11.01.2016 in Revision Petition No. 2698/2011.  The appellant produced the order of the Revision Petition No. 2698/2011.  As per this order Consumer Protection Act, 1986 is not applicable for the statutory functions of the State Government. 

13.  As per Sec. 2(o) of the Consumer Protection Act, 1986

“In respect of sovereign functions exercised by local bodies by way of collection of taxes like property tax, profession tax and other taxes, it cannot be said that local bodies are rendering any services in respect of which tax payer can maintain a complaint under the Act”.  

14.  In this case the matter is not regarding mere payment of land tax or property tax.  The appellant in this case negligently mentioned the year of manufacture of the vehicle as 2013 instead of 2014.  The act of the appellant caused mental agony and therefore the appellant/4^th opposite party is liable to pay compensation to the complainant.  In the case of Punjab Urban Planning and Development Authority Vs. Vidya Chetal and Anr. No. 4272 of 2015 with SLP(C) No. 5237/2015 decided on 16.09.2019 (Supreme Court) the Supreme Court held that

“where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then also direct recovery from those found responsible for such unpardonable behaviour”. 

Thus the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities.  Such authorities become liable to compensate for misfeasance in public office i.e; an act which is oppressive or capricious or arbitrary or negligence provided loss or injury is suffered by a citizen.  In view of the law as laid down by the Supreme Court we find no merit in the stand taken by the appellant that the appellant is a government official who is conducting statutory function of the government and hence the appellant is not coming under the purview of the Consumer Protection Act.  On the basis of sufficient proof the complainant has proved his case before the District Forum and the District Forum allowed the case. 

15.  This Commission also find that the finding of the District Commission is correct.  However we find that considering the agony suffered by the complainant the compensation ordered is found as excessive and we only modify the order of the District Forum by reducing the amount of compensation from Rs. 15,000/- to Rs. 10,000/-. 

In the result, the appeal is partly allowed.  The appellant has to pay Rs. 10,000/- to the complainant/1^st respondent.  The 1^st respondent has the right to withdraw the amount deposited by the appellant before this Commission at the time of filing the appeal along with its interest accrued, on proper application.  No order of costs.   

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                                                        BEENA KUMARY. A         : MEMBER  

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