Delhi

North East

CC/283/2015

Shri Hemant Joshi - Complainant(s)

Versus

Shiva Motors - Opp.Party(s)

24 Jul 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 283/15

 

In the matter of:

	Shri Hemant Joshi S/o Late J.C. Joshi R/o:- H.No.N-219, Street no. 15 Sadatpur Extn. Karawal Nagar, Gokalpuri Delhi-110094	Complainant
	Versus
	Shiva Motors E-11, Main 100 Ft. Road, West Jyoti  Nagar, Delhi-110094	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

11.08.2015 24.07.2020 24.07.2020

 

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed byMs. Sonica Mehrotra, Member

 

ORDER

1.  Brief facts recapitulated for disposal of the present complaint are that the complainant had purchased a Yamaha Solo Motor Cycle model no. FZ-16 FI bearing Chassis no. ME1RG071CE0029099 and Engine no. G3C8E0081590 on 14.06.2015 from OP for a total sum of Rs. 1,00,350/- out of which complainant made a down payment of Rs. 50,350/- to OP acknowledged by OP vide receipt no. 26067 dated 15.06.2015 and the complainant in addition to the said amount, under the exchange offer, handed over his old bike valued at about Rs. 9,500/- to OP on 14.06.2015 itself and therefore in total paid a sum of Rs. 59,850/- to OP on 14.06.2015 towards part payment of the sale consideration. For the rest of the amount, the vehicle was got financed from Bussan Auto Finance India Pvt. Ltd. (BAF) through one of its staff sitting in OP’s showroom but OP never provided complainant with any documents related to the finance and instead handed over the cash receipt dated 15.06.2015 and gave delivery of the subject vehicle on 14.06.2015 to complainant through gate pass no. 12947 and asked the complainant to come a day later to collect the other documents of the said vehicle i.e. Registration Certificate (RC), insurance policy, finance documents, guarantee card etc. The complainant in good faith took possession of the vehicle on 14.06.2015 and left the showroom of the OP though he was surprised to find the cash receipt bearing date of 15.06.2015. However, despite two successive visits made by complainant to OP on 15.06.2015 and 16.06.2015, the OP did not hand over the above mentioned documents of subject vehicle and instead asked the complainant to come on 17.06.2015 and complainant’s protest in this regard was ignored by OP. In the intervening night of 16.06.2015 and 17.06.2015, the subject vehicle which was parked near complainant’s house was stolen by some identified person and could not be found despite frantic search by the complainant. Even the police refused to register any complaint of theft owing to non-availability of RC and Insurance Certificate of the said bike. The complainant again went to OP on 17.06.2015 to collect the RC, insurance certificate, guarantee booklet and invoice of the subject vehicle but was surprised to discover that his vehicle had not been insured till 17.06.2015 and after request made by him to OP’s manager, a Two Wheeler Package Policy no. 064001/0120013678/000000/00 from TATA AIG General Insurance Co. Ltd. was generated by OP but instead of insuring the same from 14.06.2015 i.e. the date of its purchase, the policy period in the cover note was from 17.06.2015 post noon till 16.06.2016. The complainant strongly protested against the carelessness and illegal act of OP amounting to deficiency in service but to no avail. The complainant then handed over the documents to the local police and after lot of persuasion, the police registered FIR bearing no. 004851 dated 18.06.2015 u/s 379 IPC but the subject vehicle could not be recovered or traced and due to vehicle being uninsured, the complainant was not even in a position to recover its value from insurance company as the OP had delivered it without RC and insurance certificate despite being under legal obligation to provide the requisite documents at the time of its delivery. The complainant had alleged that OP has been negligent and indulgent in unfair trade practice which has caused financial loss and mental harassment to the complainant for which the complainant had visited the OP on 19.06.2015 asking for refund of the cost of the vehicle i.e. Rs. 1,00,350/- but OP refused to entertain any such plea. The complainant had stated that he has legal right to recover the paid sum of Rs. 59,850/- as well as the finance amount of  Rs. 40,500/- from OP alongwith compensation of Rs. 1,00,000/- towards mental harassment and agony and therefore had served a legal notice dated 13.07.2015 through his counsel to OP seeking recovery of the said amount but OP despite in receipt of the said notice failed to reply / respond or act upon the same. Therefore, as a last resort the complainant was constrained to file the present complaint praying for issuance of direction against OP to pay the cost of the stolen vehicle i.e. Rs. 1,00,350/- with interest @18% p.a. from the date of its purchase alongwith compensation of Rs. 1,00,000/- for mental harassment and agony and Rs. 25,000/- towards litigation cost.
2. Complainant has attached copy of gate pass, copy of cash receipt, copy of insurance certificate, copy of FIR and copy of legal notice.
3. Notice was issued to the OP on 13.08.2015.However non appeared on its behalf despite service affected on 25.08.2015 and therefore was proceeded against ex-parte vide order dated 02.12.2015 on which date the complainant filed two applications, one for impleading finance company i.e. BAF and the other for ad-interim stay against BAF from collection any further EMI of Rs. 2,651/- as per the loan agreement from the complainant till the pendency of the complainant but later complainant stated that he did not wish to press both applications and they were accordingly dismissed as not pressed.
4. Ex parte evidence by way of affidavit was filed by the complainant exhibiting the documents relied / filed alongwith the complainant as Ex CW1/1 to CW1/7.
5. Written arguments were filed by the complainant in reassertion / reiteration of his grievance against OP and complainant filed alongwith it copy of welcome letter dated 10.07.2015 by BAF approving the loan of Rs. 42,000/- vide loan agreement no. TW0041NR00378105 with repayment schedule of 18 EMIs @ Rs. 2,617/- each payable from 08.07.2015 to 08.12.2016 (amounting to Rs. 47,106/-) in addition to the loan / principal amount of Rs. 42,000/-. The complainant, in addition to the grievance made out in the complaint and evidence urged in the written arguments that OP had acted in contravention to Rule 42 of Central Motor Vehicle Rule (CMVR) 1989 which Rule stipulated that “no holder of a trade certificate shall deliver a motor vehicle to a purchaser without registration, whether temporary or permanent”. The complainant also argued that his case was further strengthened by Notice dated 23.11.2015 issued by the Motor Licensing Officer and Registering Authority (MLO & RA) Transport Department, GNCTD Delhi whereby the said office notified that as per direction of Hon'ble Supreme Court in the matter of M/s Real Mazon India Ltd. Vs. State of M.P., new vehicle will not be delivered by the dealer / showroom to the buyer, until affixation of HSRP is done on the said vehicle.

At this final stage of proceedings, OP entered appearance through counsel on 06.01.2016 and apprised the Forum of having preferred Revision Petition before Hon’ble SCDRC Delhi against order dated 02.12.2015 passed by this Forum and subsequently on hearing held on 04.07.2016, OP placed on record copy of order dated 07.04.2016 pass by Hon’ble SCDRC Delhi in RP no. 19/2016 vide which the order dated 02.12.2015 passed by this Forum was set aside, reinstating the defence of OP subject to payment of cost of Rs. 2,500/- payable to complainant with liberty to file written statement. The OP filed its written statement vide which while admitting the factum of purchase of the subject vehicle by the complainant from its showroom on 14.06.2015, took the preliminary objection that the complainant has been negligent in driving an uninsured and unregistered vehicle for which act he cannot prosecute the OP. OP took the defence that it is an authorized dealer of Yamaha Motor Pvt. Ltd. and only sells motor cycles to prospective buyer from its showroom and does not undertake insurance policy certificate work which even otherwise every customer has a right to get done through any company and the OP delivers the motor cycles to customers who takes delivery at their own risk. OP submitted that the complainant had told its manager at the time of taking delivery of the subject vehicle that since his friend is an insurance agent, he would not want to insure the subject vehicle through OP’s showroom. Moreover, the subject vehicle was taken under the finance scheme availed from BAF and the OP released the vehicle on oral direction of BAF but complainant did not make BAF party to the present complaint and therefore urged that the complaint suffer from non-joinder of parties. The OP, while admitting that complainant had visited its showroom on 17.06.2015 for taking RC of the subject motor cycle and also on the said date the insurance policy (since the quote given by his friend was higher than that of OP) to which the manager of the OP told the complainant that all the documents of the subject vehicle were in possession of BAF and not OP and the complainant then collected the paper from BAF and got insurance done from TATA AIG Co. and OP had no role to play in issuance of insurance certificate. The OP alleged that the complainant drove the subject vehicle from 14.06.2015 to 17.06.2015 without insurance and also parked it carelessly on an unguarded street and despite insurance coverage starting from 17.06.2015 post noon onwards and the subject bike having been stolen on the same date, the complainant did not make insurance company party to the complaint. The OP further alleged that the complainant had himself admitted to have driven the subject bike without insurance policy from 14.06.2015 to 17.06.2015 which act is a contravention to Motor Vehicles Act 1988 and he himself is responsible for act of negligence and not OP. On merits, OP took the plea that the date on cash receipt no. 26067 was mistakenly written as 15.06.2015 instead of 14.06.2015 and denied complainant having visited its showroom on 15.06.2015 or 16.06.2015 or 19.06.2015. OP alleged that owing to complainant’s mistake of parking vehicle in a street without any security guard and taking delivery of vehicle without getting insurance done, for such acts of negligence, OP cannot be liable. Since it is not mandatory / legal obligation of the dealer (OP herein) to issue motor insurance policy and therefore for any consequent loss OP cannot be liable to pay anything to the complainant and even otherwise OP had no relation with either insurance company or finance company. For the defence so taken, OP prayed for dismissal of the complaint.

6. Rejoinder in rebuttal to the defence taken by OP was filed by the complainant vide which in addition to averments already made by the complainant in the complaint, complainant submitted that OP had acted in violation of Rules and Regulations of Motor Vehicle Act, CMVR  and directions of Hon'ble Supreme Court by selling the subject vehicle without providing it with temporary / permanent registration number for which the complainant reserves his right to approach the competent authority against OP. Further complainant urged that the OP has been silent on the issue of registration in the written statement filed by it and has only taken the defence of not being legally bound to provide insurance certificate which itself is an act of unfair trade practice. Complainant submitted that the financer BAF was arranged by OP itself and not by complainant and OP is trying to drag the financier to shift its liability without disclosing identity of the alleged authorized person of BAF on whose behest the OP had released the subject vehicle to the complainant whereas it was the legal obligation of OP to provide registration as well as insurance of the vehicle at the time of delivering it but OP failed to do so for which act of omission, the complainant had to suffer loss of his brand new vehicle apart from harassment and monetary loss. Complainant denied that insurance company or finance company were necessary parties to the present complaint as also to OP’s defence that it had no role to play while issuing insurance and that the complainant was negligent in driving the unregistered / uninsured vehicle and parking it carelessly on an unguarded road. Complainant alleged that OP was taking unnecessary defence and raising different issues having no concerned with the present case or issue involved therein. Complainant reiterated that OP has been silent about the aspect of registration of the vehicle and is rather raising false and frivolous plea without any evidence. Therefore complainant prayed for relief claimed.
7. OP filed an application under Order 1 (2) Rule 10 of CPC for impleadment of BAF and TATA AIG insurance Co. to the present proceeding. Complainant filed reply thereto opposing the said application on grounds that his main grievance is against OP for deficiency in service and unfair trade practice and not against finance company or insurance company as both are unnecessary parties to the complainant and no purpose would be served by impleading them and therefore prayed for dismissal of the application. The arguments on the said application were heard and the application was dismissed vide order dated 15.05.2017 with cost. In hearing held on 01.12.2017, OP submitted that it did not wish to file evidence and instead filed an application for disposal of the complaint in view of the subject stolen vehicle having been traced / recovered by the complainant with police assistance and therefore urged that the present complaint was rendered in-fructuous and the same may be disposed of.
8. Written arguments were filed by the OP and additional written arguments were filed by the complainant in reassertion / reiteration of their respective defence / grievance. The complainant submitted / admitted the recovery of the stolen vehicle from Aligarh, U.P. sometime in July 2017 in furtherance to the application of the OP to the effect of trace of the subject vehicle but submitted that he was entitled to compensation for act of deficiency in service and unfair trade practice on part of OP for not providing registration and insurance of the subject vehicle due to which he suffered obstacle in getting FIR registered for its theft and could not even lodge a theft claim before the insurance company and therefore suffered trauma and loss due to theft of new vehicle and also incurred heavy amount in getting the vehicle released on superdari and getting it transported to his address post recovery apart from incurring expenditure on its repair to get it in running condition and therefore submitted that he was entitled to the compensation for mental harassment and litigation cost as prayed for in the complaint. Additionally, complainant filed amended written arguments urging that when the vehicle was handed over by the police to him on 04.08.2017 on superdari, it was in a bad shape and needed servicing apart from transportation to the complainant’s Delhi address and therefore he claimed an additional sum of Rs. 20,000/- towards transportation charges and Rs. 10,000/- towards repair of the vehicle.
9. We have heard the rival contention of both the parties and have perused the documents placed on record and given our thoughtful consideration to all aspect in the case. The main issue for consideration / adjudication is whether there has been any deficiency in service on the part of OP in handing over delivery of the subject vehicle to the complainant without temporary or permanent registration as well as insurance and relief, if any. It is an admitted fact that the subject vehicle was sold by OP to complainant on 14.06.2015 without any insurance certificate or registration certificate with respect thereto. Rule 42 of CMVR 1989 clearly bars any holder of a trade certificate i.e. dealer to deliver a vehicle without registration whether temporary or permanent. From the above rule it is evident that the OP has clearly violated this Rule and by acting in contravention to it was deficient in its services. A bald plea by OP of complainant having violated Motor Vehicle Act by plying unregistered bike is unsubstantiated and baseless. The OP, in our considered view should not have delivered the subject vehicle without RC and hence violation of Rule 42 on its part is amply proved by its own admission of act of omission to do so. The Hon'ble National Commission in Cargo Motors (Gujarat) Pvt. Ltd. Vs. Consumer Education and Research Society I (2017) CPJ 199 (NC) and N. Jothi Murugan Vs. Sri Kanthimathi Motors and Anr I (2018) CPJ 96 (NC) held in a similar case of vehicle having been delivered by the dealer without temporary or permanent number as violation of Rule 42 of CMVR and deficiency in service on the part of dealer and awarded compensation to the complainant. Conspicuously, the written statement filed by OP has maintained a studied silence on this issue of RC and is only harping on blaming the complainant for allegedly driving the subject vehicle without insurance cover. On this account therefore, OP is found guilty of deficiency in service. In so far as issue of non-provision of insurance certificate is concerned, on perusal of the insurance cover note issued by TATA AIG General Insurance Co. Ltd., the foot note of the said certificate clearly mentioned “For Renewal / Claims Assistance-please contact Ins. Co. & Broker through Shiva Motor Delhi” i.e. OP herein which amply proves that insurance was done at OP’s behest and this endorsement falsifies the plea taken by OP that it had no role to play in insurance policy issuance process. The act of providing insurance cover w.e.f. 17.06.2015 whereas the vehicle was sold by OP on 14.06.2015 is an act of unfair trade practice more so because OP had already known by this time of issuance of policy that the subject vehicle was already stolen in the intervening night of 16.06.2015 and 17.06.2015 and therefore time w.e.f. which policy was to be effected was given as post noon of 17.06.2015. During the pendency of the complaint the subject vehicle was traced / recovered sometime in July 2017 as submitted by both parties and was handed over to the complainant on 04.08.2017 by police on superdari vide order dated 04.08.2017 passed by Hon’ble court of ACMM Karkardooma Courts, Delhi in CC no. 4851/15. But the complainant did not file amended complaint for amended relief / prayed clause but instead merely added additional relief in amended written arguments which is untenable / inadmissible in law since he was legally bound to file amended complaint made under proper provision of law for seeking additional relief of repair cost and transportation cost and therefore the relief claimed in this manner by merely incorporating it in written arguments cannot be granted to the complainant. We therefore holding OP deficient in service and indulgent in unfair trade practice and for acting in violation of settled provision of law laid down in CMV Rules by delivering an unregistered vehicle to the complainant direct OP to pay a compensation of Rs. 20,000/- to the complainant for mental agony and harassment and Rs. 10,000/- towards cost of litigation. Let the order be complied with by OP within 30 days of receipt of copy of this order.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  24.07.2020

 

(Arun Kumar Arya) President

(Sonica Mehrotra)  Member