KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEALNO. 35/2010
JUDGMENT DATED 30.12.2010
PRESENT:-
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI. M.V. VISWANATAN : JUDICIAL MEMBER
APPELLANT
James,
Proprietor,
Athical T.V.S,
Vengallore,
Thodupuzha, Idukki District.
(Rep. by Adv. Sri. P.M. Johny )
Vs
RESPONDENT
Shaji George,
Panalal House, Vazhithala P.O.,
Thodupuzha, Idukki District.
(Rep. by Adv. Sri. Prince J. Panalal)
JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the opposite party and respondent was the complainant in C.C. No. 188/2008 on the file of CDRF, Idukki. The complainant therein was filed alleging deficiency of service on the part of the opposite party with respect to sale transaction of the Motor Cycle bearing registration No. KL 6 A 4076 which was owned by the complainant and sold in the Exchange Mela conducted by the opposite party. It was alleged that the opposite party sold the aforesaid motorcycle to one Tom Joseph through one Safeer Muhammad without transferring the ownership of the vehicle. It is also alleged that the opposite party was given all the necessary papers for transferring the ownership of the vehicle in the registration certificate and the opposite party had given the assurance that the vehicle will be handed over to the prospective purchaser only after getting the vehicle transferred into the name of the purchaser; but the opposite party sold the vehicle to Tom Joseph without transferring the ownership of the vehicle in the registration certificate; that due to the said failure the complainant suffered an award passed by MACT, Palai making the complainant liable to pay Rs. 1,51,576/- and another sum of Rs. 19,643/- and that on getting the Revenue Recovery Notice on 19th July 2008, the complainant came to know about the aforesaid awards passed by MACT, Palai. Thus the complaint was filed to get the R.R. proceedings initiated against the complainant set aside and to pay compensation of Rs. 50,000/- for the mental agony and inconvenience suffered by the complainant.
2. The opposite party entered appearance and filed written version denying the alleged deficiency of service. It was further contented that there was no role on the part of the opposite party in effecting purchase and sale of the used motorcycle of the complainant; that the said purchase was by one Tom Joseph and the transaction was entered into between the complainant and the aforesaid purchaser of the old bike. The opposite party had only conducted the Exchange Mela, for promotion of sale of the new vehicles; that the complainant has no cause of action against the opposite party and that the opposite party is not liable to pay any compensation to the complainant. Thus, the opposite party prayed for dismissal of the complainant.
3. Before the Forum below the complainant was examined as Pw1 and witness on his side was examined as Pw2. P1 to P9 documents were also marked on the side of the complainant. From the side of the opposite party DWs 1 and 2 were examined. No documentary evidence was adduced from the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 26th August, 2009 directing the opposite party to pay Rs. 50,000/- to the complainant as compensation for unfair trade practice with cost of Rs. 2,000/- Hence the present appeal.
4. We heard both sides.
The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the complaint itself is not maintainable as the same was barred by limitation. It is further submitted that there was no role on the part of the opposite party in effecting sale of the old vehicle owned by the complainant and that the opposite party as the dealer of new vehicles conducted Exchange Mela for his sales promotion and the parties who participated in the Exchange Mela effected purchase and sale of the old vehicles in their capacity as the buyer and seller. Thus, the appellant/opposite party prayed for setting aside the impugned order passed by the Forum below.
5. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below and prayed for dismissal of the present appeal. He much relied on P8 Agreement dated 14.11.2001 entered into between the opposite party and one Saffeer Muhammed and argued for the position that the opposite party himself effected the sale of the used vehicle, which was sold by the complainant in the exchange Mela conducted on 11.11.2001.
6. During the course of arguments, both the counsel for the appellant/opposite party and respondent/complainant admitted the fact that the award passed by the M A C T, Palai in O.P. Nos. 197/2002 and 383/2002 passed against the respondent/complainant were set aside. And thereby the complainant has been exonerated from the liability to pay compensation to the victims (claimants) in the above said O.P. (MV) numbers 197/2002 and 383/2002 .
7. The learned counsel for the appellant/opposite party vehemently argued for the position that the complaint in C.C. No. 188/08 was barred by limitation and that the Forum below failed to consider the aforesaid relevant aspect regarding the question of limitation. He also relied on the decision rendered by the Hon’ble Supreme Court in State Bank of India Vs B S Agricultural Industries(I) reported in JT 2009(4) SC 191 and submitted that it was incumbent upon the Forum below to consider the question regarding limitation by virtue of the provisions of Section 24(A) of the Consumer Protection Act, 1986.
8. Admittedly the Exchange Mela conducted by the appellant/opposite party was on 11.11.2001. The vehicle, the used motorcycle bearing registration No. KL 6A 4076 owned by the respondent/complainant was sold in the said Exchange Mela. According to the opposite party the cause of action for the complaint had arisen on 11.11.2001. It is the further case of the appellant/opposite party that respondent/complainant received the notices from MACT, Palai in O.P(MV) 197/02 and O.P(MV) 383/2002 in June 2002. It is the case of the complainant that he was aggrieved by the failure of the opposite party in taking necessary steps to get the ownership of the said vehicle transferred from the name of the complainant to the new purchaser and that the opposite party violated assurance given to the complainant that the vehicle will be handed over to the new purchaser only after getting the ownership of the vehicle transferred. It is true that on getting notice in the aforesaid O.P(MV)s, the complainant had the knowledge about the alleged deficiency of service on the part of the opposite party. If that be so, the cause of action had arisen during June 2002. Admittedly the complaint in C.C. 188/08 was filed only on 5.11.2008. If that be so, the complainant can be treated as barred by limitation.
9. The definite case of the respondent/complainant is that on getting the aforesaid notices in OP(MV) 197/2002 and OP(MV) 383/2002, he approached the opposite party and that the opposite party had given the assurance that he will take all the necessary steps to get the name of the complainant removed in the said OP(MV) 197/2002 and OP(MV) 383/2002. It is also averred in the complaint that the opposite party had also obtained the signature of the complainant in two blank papers for taking necessary steps in the matter. It is the case of the complainant that he believed the aforesaid assurance given by the opposite party; but he realized violation of the assurance by the opposite party on getting the revenue recovery notices in the matter on 19nth July 2008. Then he immediately filed the complaint in C.C. 188/2008.
10. The complainant as Pw1 has also deposed about assurance given by the opposite party on getting the notices from MACT Palai. The evidence given by Pw1 would show that he realized the alleged deficiency of service and unfair trade practice on the part of the opposite party only on getting the revenue recovery notices on 19.7.2008. There is no reason to disbelieve the testimony of the complainant as Pw1 on this aspect.
11. The complainant approached the Forum below to get his grievances redressed. He suffered mental agony and inconvenience on getting the revenue recovery notices on 19.7.2008. The complainant was actually aggrieved on getting the intimation that awards have been passed against him making him liable to pay compensation of Rs. 1,51,576/- and Rs. 19,643/- in the aforesaid claim petitions on the file of MACT, Palai. It is to be noted that the complainant immediately moved the CDRF, Idukki by filing the complaint in C.C. No. 188/2008. Thus, as far as the complainant is concerned, the cause of action for the said complaint has arisen only on 19.7.2008 when he got the actual knowledge and information about the awards passed by the MACT, Palai in O.P.(MV) 197/2002, 383/2002. In such a situation, it can be concluded that the complaint in C.C. 188/2008 was filed within the stipulated time as provide under Section 24(A) of the Consumer Protection Act. 1986. So, it can very safely be held that the said complaint is not barred by limitation. Hence the aforesaid ground urged by the appellant/opposite party regarding bar of limitation is negatived.
12. There is no dispute that the appellant/opposite party conducted an Exchange Mela on 11.11.01 and that the respondent/complainant approached the opposite party for effecting sale of his used motorcycle bearing registration No. KL6A4076. It is not disputed that the complainant sold his used motorcycle bearing registration number KL 6 A 4076 in the Exchange Mela conducted by the opposite party on 11.11.2001. It is also an admitted fact that a new motorcycle was purchased by the brother of the complainant by name Tomy George by paying Rs. 27,000/- towards the balance of sale consideration after adjusting Rs. 17,000/- as the sale price of the second hand motorcycle No. KL6(A)4076 owned by the complainant. The complainant has also deposed about the aforesaid sale of his used motorcycle in the Exchange Mela conducted by the opposite party. The evidence of Pw1 is supported by the oral testimony of Pw2 who accompanied the complainant to the Exchange Mela conducted on 11.11.2001. There is no reason to doubt the testimony of Pws 1 and 2.
13. Another important document available on record is Ext. P8 sale agreement entered in to between the opposite party and one Safeer Muhammed. P8, Agreement is dated 14.11.2001. As per P8, Agreement the opposite party sold vehicles including the motorcycle bearing Registration No. KL6 A 4076 to one Safeer Muhammed on 14.11.2001. It is to be noted that the complainant is not a party to P8, Sale Agreement. The execution of P8, agreement is admitted by the opposite party and the aforesaid Safeer Muhammed. It is also to be noted Safeer Muhammed was examined as Pw2. The evidence of Pw2 would strengthen the case of the complainant that he entrusted his second hand motorcycle bearing registration No. KL 6 A 4076 with the opposite party and that the necessary papers were also signed by the complainant and entrusted those papers including the necessary forms along with the vehicle documents to the opposite party. This would in turn establish the case of the complainant that the entrustment of the vehicle with the necessary papers was effected on 11.11.2001 and thereby the opposite party assured the complainant that the vehicle will be handed over to the purchaser only after getting the ownership of the vehicle transferred in the registration certificate. Ext. P8, Sale Agreement and the testimony of Pw2 are sufficient enough to come to a just and proper conclusion that there was transaction between the complainant and opposite party with respect to sale of the second hand motorcycle with registration No. KL6A4076. It would also make it clear that it was the duty of the opposite party to take necessary steps to get the ownership of the vehicle transferred from the name of the complainant in to the name of the purchaser and that the vehicle ought to have been handed over to the new purchaser only on getting the ownership transferred. But it is evidenced by the awards passed by MACT Palai in OP(MV)197/2002 and OP(MV) 383/2002 that the ownership of the said motorcycle was not transferred as assured by the opposite party and the said failure on the part of the opposite party resulted in causing mental agony and inconveniences to the complainant. It would also show that the said failure on the part of the opposite party resulted in passing awards by MACT, Palai in OP(MV) 197/2002 and OP(MV) 383/2002 treating the complainant as the registered owner of the vehicle KL6 A 4076 which was involved in the motor vehicle accident. It can very safely be concluded that the aforesaid default and violation on the part of the opposite party would amount to unfair trade practice and deficiency of service. It can also be held that there was a consumer and service provider relationship between the complainant and the opposite party. The Forum below is perfectly justified in finding the unfair trade practice on the part of the opposite party.
14. The complainant claimed compensation of Rs. 50,000/- The Forum below allowed compensation of Rs. 50,000/- with cost of Rs. 2,000/-. It is to be noted that the aforesaid compensation of Rs. 50,000/- was awarded by considering the fact that the complainant suffered awards passed by MACT, Palai in OP(MV) 197/2002 and 383/2002 making the complainant liable to pay compensation of Rs. 1,51,576/- and Rs. 19,643/- respectively. Admittedly the complainant has been absolved from the liability to pay the aforesaid compensation awarded in the aforesaid OP(MV) No. 197/2002 and OP(MV) 383/2002. Thus, at present the respondent/complainant has no liability to pay any compensation to the claimants in the aforesaid OP(MV) numbers 197/2002 and 383/2002. It is true that the respondent/complainant had to approach the MACT, Palai to get the aforesaid awards passed against him set aside. Thereby, the complainant had suffered mental agony and inconvenience and also financial loss. Considering all these aspects a sum of Rs. 15,000/- can be treated as just and reasonable compensation due to the complainant. The available circumstances would show that the compensation of Rs. 50,000/- awarded by the Forum is on higher side. So, this Commission is pleased to reduce the compensation from Rs. 50,000/- to Rs. 15,000/- The cost Rs. 2,000/- awarded by the Forum below can be considered as reasonable and so the same is confirmed. Thus, the impugned order passed by the Forum below is modified to such an extent.
In the result the appeal is allowed partly. The impugned order dated 26.8.2009 passed by CDRF, Idukki in C.C. No. 188/2008 is modified and thereby the appellant/opposite party is directed to pay Rs. 15,000/- to the respondent/complainant as compensation with cost of Rs. 2,000/- The aforesaid compensation of Rs. 15,000/- is to be paid within one month from the date of receipt of copy of this judgment. Failing which the said amount will carry interest @ 9% per annum from the date of the impugned order (26.8.2009) passed by the Forum below in C.C. 188/2008 till the date of realization or payment.
M.V.VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN : MEMBER
