Delhi

East Delhi

CC/406/2017

RIPU DAMAN - Complainant(s)

Versus

SHIVANI AUTOMOBILE - Opp.Party(s)

14 Feb 2023

ORDER

             DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,   

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.406/2017    

 

	RIPU DAMAN S/O SH. AJAY KUMAR SINGH R/O 829, FIRST FLOOR, NITI KHAND-I, INDIRAPURAM, GHAZIABAD, UTTAR PRADESH	….Complainant
Versus
1	SHIVANI AUTOMOBILES, PLOT NO. 133, VILLAGE KHORA, NEAR NANAK PULIA, OPP. SECTOR-62, KHORA COLONY, GHAZIABAD,	……OP1
2	NATIONAL INSURANCE COMPANY LTD. 2ND FLOOR, CORE III, SCOPE MINAR, LAXMI NAGAR, DISTRICT CENTRE, DELHI – 110092	……OP2
3	HERO FINCORP LTD. 09, BASANT LOK, VASANT VIHAR, NEW DELHI – 110057	……OP3

 

Date of Institution: 25.09.2017

Judgment Reserved on: 11.01.2023

Judgment Passed on: 14.02.2023

QUORUM:

 

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member)

 

Order By: Shri S.S. Malhotra (President)

JUDGEMENT

 

By this Order the Commission shall dispose off the complaint filed by the complainant against the OPs w.r.t deficiency of service against OP1 who sold the vehicle, OP2 the Insurance Co. and OP3 the financer of the vehicle.  OP4 was also added as a party but subsequently was deleted.  Originally, there were 4 OPs but subsequently OP2 (Hero Moto Corp) was deleted and therefore, number of parties as mentioned in amended Memo of parties are being reflected in the cause title. 

1. Brief facts as stated by the complainant in the complaint are that the complainant purchased a Motorcycle, Hero-Passion Pro vide its Engine No. HA10ACHHEA4514 and Chasis No. MBLHAR180HHE-32919, Color B/G from OP1 for a sum of Rs.63,770/- on 02.08.2017 and paid Rs.23,600/- from his own pocket as down payment and rest of the amount was got financed from OP3.   
2. OP1 also got the said vehicle insured through OP2 (Initially OP3) and delivery of the vehicle was given by OP1 on 02.08.2017 by assuring that the vehicle number and papers/ documents pertaining to the insurance and loan etc. would be provided in one or two days but these documents were not provided.  However, the registration number of the vehicle UP-14-DH-4548 dated 14.08.2017 was provided by OP subsequent as it was assigned by Transport Department, Uttar Pradesh.        
3. Complainant approached the OP1 time and again on 03.08.2017, 04.08.2017 and 05.08.2017 for getting the above documents along with Number Plate but it was not provided but unfortunately on 06.08.2017 the said vehicle of the complainant was stolen by some person from East Vinod Nagar and an e-FIR No.02503 dated 06.08.2017 itself was got lodged in the e-Police Station, Kalyan Puri and also intimation to this incidence was given to OP1 on 06.08.2017 itself and he was requested to provide the insurance and other documents.  The complainant again visited the office of OP1 on 09.08.2017 and then he was provided documents pertaining to the finance and the loan, as well as insurance policy of OP3 but insurance of vehicle has been shown with effect from 08.08.2017.   
4. It is further submitted that when the said vehicle had already been stolen on 06.08.2017, then getting the insurance done by OP1, through OP3 was quite surprising for him which shows the connivance of all the opposite parties.  It is further stated that he kept on calling OP1 for getting the insurance amount due but for one reason or the other OP1 never paid any amount nor helped the complainant and complainant accordingly sent a legal notice to the OPs but of no consequence and as such he has filed the present complaint claiming that OPs be directed as follows:       

• The cost of the total price of the vehicle i.e. Rs.63,770/- in terms of challan and receipt of the money along with the interest @18% p.a. recoverable from the OPs jointly and severally in favour of the complainant.
• To Stay any act / proceedings taken against complainant by OP3 for recovery the financed amount;
• Pay a sum of Rs.50,000/- towards mental agony, harassment, damages, compensation and loss caused to the complainants by the OPs.     
• This Hon’ble Forum may also pass an award of Rs.25000/- as a cost of litigation and other legal expenses and also pass such other order/s as this Hon’ble Forum may deem just and proper.    

5. OP1 has filed its WRITTEN STATEMENT taking preliminary objections that complaint is liable to be dismissed on various grounds inter alia that complainant has not come to Forum with clean hands, he has concealed the material facts, and in fact, no theft of vehicle as alleged had taken place on 06.08.2017, as OP1 had delivered the possession of the vehicle  to complainant only on 08.08.2017 after approval of loan along with  necessary documents.  The Complainant on 09.08.2017 had also signed in the delivery register and he has lodged the false e-FIR even before getting the delivery of the Motorcycle on the fake registration No.  UP-14-TC-085 whereas actual registration No. was No.UP-14-DH-4548 which was signed by complainant only on 12.08.2017 that too after depositing the registration fee etc. on 12.08.2017.  The said e-FIR lodged at Police Station Kalyan Puri is false.  The Complainant has not filed any untraced report along with the complaint, and the complainant has given his two different identities i.e. sometime he writes himself as student and sometimes as lab technician.  Present complaint has been filed to extort money from the OPs and it is settled law that nobody is allowed to drive the vehicle on road without registration number or without insurance policy.  Therefore complaint of the complainant be dismissed. 
6. On merits it is denied that complainant is a student as alleged rather it is stated that he described himself sometime as a student and some time as an employee being technician.  It is denied that complaint purchased Motorcycle No.UP-14-DH-4548, Engine No. HA10ACHHEA4514 and Chasis No. MBLHAR180HHE-32919 or delivery was given on 02.08.2017 by OP1 as alleged.          
7. However, it is admitted by the OP1 that he had issued a Challan for the purpose of loan approval vide his diary number 281 and cash receipt number 286 both dated 02.08.2017.  It is further submitted that OP1, on the request of complainant provided the finance facility from OP3 but it is denied that the said vehicle was stolen on 06.08.2017 as alleged and rest of the contents of the complaint are denied by stating that contents of preliminary objection be read as part and parcel of the reply.  The insurance company (initially OP3) has filed its reply taking preliminary objection that complaint is not maintainable against insurance company as there is no deficiency of service on the part of OP2 (initially OP3) by stating that the insurance policy is effective from 08.08.2017 whereas Motorcycle has allegedly been stolen on 06.08.2017 and on the date 06.08.2017 there was no insurance policy in existence towards the vehicle of complainant.  It is specifically denied that the vehicle was insured on 02.08.2017 as alleged and it is inter alia prayed that complaint of the complainant against insurance company be dismissed.     
8. Despite giving sufficient number of opportunities, OP3 (The Financer) did not file Written Statement and its opportunity to file Written Statement was closed vide order dated 28.03.2019. 
9. Complainant then filed Rejoinder to the Written Statement of OP1 and OP2 and in Rejoinder to the Written Statement of OP1, it is stated that the complainant has come to Forum with clean hands rather it is OP1 who is concealing the material facts and it is submitted that Motorcycle was delivered by OP1 to the complainant on 02.08.2017 and not on 08.08.2017.      
10. It is further submitted that the said register signed by the complainant on 09.08.2017 is not a delivery register as alleged as complainant has signed the said register on 09.08.2017 on the request of OP1 for the purpose of giving receipt of the documents which was related to insurance of the Bike.  Mere perusal of the said Register further reveals that OP1 has malafidely fabricated this Register claiming the date of delivery as 08.08.2017 which has been over written as entry No.2 and even otherwise wording of the OP1 is not believable as entry No.4 of the alleged delivery register shows that one Motorcycle was delivered to Sh. Devender Kushwaha on 12.08.2017 but receipt was given to him on 08.08.2017 which is not feasible.  Difference of bill number also shows that the said register is manipulated for which OP1 is liable to be prosecuted and punished under law for filing forged and fabricated register.  It is denied that no theft has taken place on 06.08.2017 or online FIR can be done easily or that it was done on the basis of fake registration as alleged.  The delivery challan filed by the complainant reveals that Motorcycle was delivered on 02.08.2012 and Chasis numbers and Engine number was already entered in the delivery Challan and it is prevalent that at the time of delivery of the vehicle, dealer use to give temporary number of the  Motorcycle to the purchaser to be used by him till the purchaser gets original registration number from the Transport Department.     
11. It is further submitted that there is detailed conversation recording in between complainant and OP1, where the OP1 has admitted all the facts and the transcript of the same is  attached here with.  It is denied that the e-FIR is false one or has been lodged with intention to hide its own wrong, All other allegations of the Written Statement of OP1 are denied and it is reasserted that bike was given to him on 02.08.2017 which got stolen on 06.08.2017 for which an e-FIR was registered. 
12. The Complainant has also filed Rejoinder to the Written Statement of OP2 (National Insurance Company) thereby denying that the claim is not maintainable on account of no deficiency in service and it is reiterated that complainant has deposited the charges of insurance of Rs.2126/- vide Challan No.281 with OP1 on 02.08.2017 and since OP1 is in collusion with OP2, the Insurance Company, he got the policy done with effect from 08.08.2017 whereas OP1 had already taken charges from the Complainant on 02.08.2017 and therefore the deficiency of service on the part of OP2 in not insuring the vehicle same day stands established. 
13. Complainant has filed his evidence and exhibited the following documents: 

• Copy of Challan bearing No 281 dated 02 08 2017 (Exhibit-CW1/1),
• Copy of receipt bearing No 286 dated 02.08.2017 (Exhibit-CW1/2),
•  Colored photographs (2 in numbers) dated 03.08.2017 of the said Motor Bike (Exhibit-CW1/3) (Colly),
• Colored photo of both the keys of the said Motor Cycle (Exhibit-CW1/4),
• Copy of Registration Certificate dated 12.08.2017 issued by Transport Dept UP (Exhibit-CW1/5),
• Copy of FIR bearing number 025030 dated 06.08.2017, e- police station, Kalaynpuri, East District. Delhi (Exhibit-CW1/6),
• Copy of order dated 18.12.2017 passed by the Court of Sh Amit Arora, Ld. ACMM (East). Karkardooma Court, Delhi, accepting the final report as 'UNTRACED' regarding the said stolen Motor Bike (Exhibit-CW1/7),
• Copy of Insurance Paper of the vehicle supplied to the deponent by OP No.1 on 09.08.2017 (Exhibit-CW1/8),
• Copy of audio CD of the said conversation alongwith its hard copy and certificate under Section 65B of Indian Evidence act (Exhibit-CW1/9).
• Copy of complaint dated 21.08.2017 by the deponient to S.SP GZB (Exhibit-CW1/10),
• Copy of legal notice dated 26.08.2017 sent to OPs. (Exhibit-CW1/11),
• Copy of speed post receipts (4 in numbers) (Exhibit-CW1/12, Colly). 

14. OP1 has filed his evidence and exhibited the following documents: 

• Copy of delivery register dated 08.08.2017 is exhibited as Ex.OPW-1/1,
• Copy of vehicle information slip dated 12.08.2017 is exhibited as Ex. OPW-1/2,
• Copy of certificate of registration dated 12.08.2017 is exhibited as Ex.OPW-1/3,
• Copy of e-FIR No.025030 dated 06.08.2017 is exhibited as Ex.OPW-1/4,
• Copy of delivery order report dated 08.08.2017 is exhibited as Ex.OPW-1/5,   
• Copy of loan application form dated 04.08.2017 is exhibited as Ex.OPW-1/6,
• Copy of receipt of fee & tax transport Deptt. Dated 12.08.2017 is exhibited as Ex.OPW-1/7,
• Copy of tax invoice/bill dated 08.08.2017 is exhibited as Ex.OPW-1/8,
• Copy of Insurance policy dated 08.08.2017 is exhibited as Ex.OPW-1/9,
• Copy of complaint made by the deponent is exhibited as Ex.OPW-1/10, and some other documents. 

15. Written Arguments have also been filed by all the parties. 
16. The Commission has heard the arguments and perused the records.    
17. The Complainant has alleged the deficiency in service on the part of OP1 by stating that OP1 sold the bike to the complainant, he took money from the complainant, he was to get the remaining amount financed from OP4 (Now OP3), he was to get the vehicle insured from the Insurance Company and since it was claimed that it will take some time he delivered the possession of the bike to complainant on 02.08.2017 which vehicle was stolen on 06.08.2017 and therefore deficiency on the part of OP1 is proved.    
18. OP1 basically has denied that he has delivered the possession/delivery of the vehicle on 02.08.2017 and subsequently all the facts stated by the complainant are denied and have been denied to the extent that no vehicle was stolen on 06.08.2017 and the e-FIR is fake and fabricated.               
19. The only issue therefore which would be relevant is to decide as to whether bike has been delivered by the OP1 to the complainant on 02.08.2017 and it has been stolen or whether vehicle at all has not been stolen as it was delivered to the complainant only on 08.08.2017.  The parties may lie but document would not, is general principal. 
20. OP1 has placed one document (One page only) on record that his register of delivery OPW1/1, in this matter.  This register starts from S.N.1 and on this page, date is mentioned as 02.08.2017, Name of the customer is written as Ajay Kumar, Address of Noida, then particulars of Chasis Number and Engine Number, amount received, Bill Number, Modal and then details of the finance, if any, and the Registration Number.  At Item number 2 name of the complainant appears and it starts with the date 08.08.2017 as alleged.  Down to this at S.N.3 again the date 03.08.2017 is written with respect to one Sh. Balraj residence of Ghaziabad and at S.N.04 again the date 02.08.2017 or 12.08.2017 (not legible) is written with respect to another person namely Devender Kushwaha to whom another vehicle was sold.  Then at S.N.5 the date is written as 03.08.2017 or 13.08.2017 similarly at S.N. 6 date 03.08.2017 or 13.08.2017 is written.  In the backdrop of such particulars the particulars mentioned at Sr. No.3 and Sr. No. 4 are quite important, although all are necessary to be looked into.      
21. At S.No.4 which pertains to one Sh. Devendra Kushwaha the date of delivery and bill number is written/ signed as of dated 08.08.2017.  This cannot happen as if a person has come on 12.08.2017 he cannot sign with the date 08.08.2017 and therefore if we revert back the date from S.N.4, date 12.08.2017 is written and just above the date 03.08.2017 is written.  Above it at S.N,o.2 the date 08.08.2017 is written and  if it would have been, the date 03.08.2017 would not have come just below the date 08.08.2017.  It further explains that how the entries are in jumbled nature, the entry at S.N.1 is 02.08.2017, entry at S.No.2 is 08.08.2017, entry at S.No.3 is 03.08.2017 and entry at S.N.4 is 12.08.2017.  Apparently by observing the date 08.08.2017 at S.N.2 it is getting reflected that some tempering has been done by the OP1 and he has made 02.08.2017 to appears as 08.08.2017, and even a bare eye can make out the difference. This document therefore appears to be not a genuine document.  The OP1 has not produced the original of the document meaning thereby, he has withheld the best evidence and the reason is that if it would have been filed in original, the difference could have been easily noticed and then it would have gone against OP1 himself.  Thus presumption goes against OP1 that if a person is not producing the document in its/his possession, then the such document if would have been produced might have gone against the person who is with-holding it.  Therefore, the document as filed by OP1 does not appear to be genuine one and cannot be relied upon to appreciate the contention of OP1.  Therefore, OP1 had forged this document and filed the same before this Commission knowing it that it is a false one and trying to make the Commission believe that it is the genuine one.  This document therefore holds no ground.  Further, why a person who has no enmity either with OP1, OP2 and OP3 would lodge a false FIR, has not been explained at all and once the untraced report as has been filed is accepted by the court of Ld. MM concerned, then there cannot any ground to contend this, the e-FIR is false.  It appears that In the opinion of the OP1, everyone on the universe relating to this incident is speaking false except him.     
22. Ld. Counsel for OP1 has argued that e-FIR can be registered by any one which fact cannot be appreciated.  There cannot be any malafide attributed to the complainant who had purchased a new bike from OP1 by paying some amount in court and by asking some more amount to be financed and such person would try to lodge a false FIR.  It also cannot be believed as argued by OP1 that no investigation has been done by the Police.  This fact also gets falsified as there is an untraced report filed on the record believing the version of the complainant to be true.  The Contention of the OP1 that even the untraced report can also be obtained falsely by the complainant cannot be believed at all rather it appears that OP1 is trying to mislead the Commission by leveling allegation against the complainant, against the Police and even against the Court of Ld. MM concerned and accordingly, it appear that apart from OP1, everyone on the universe can manipulate any thing.  Denial may be of some substance but mere denial with no other defence, is of no consequences.  Further, even if he has dared to level such allegation then he has not been able to file any evidence to prove that the e-FIR was false.  There are specific provision under the Indian Penal Code itself that if an FIR is found to be false one, proceedings against such complainant can be initiated by falsely putting the police force into motions (Under Section 182 IPC) on the basis of incorrect facts.  Therefore this contention of OP is not well found and in these circumstances the fact that the vehicle has been delivered by OP1 to the complainant on 02.08.2017 that too without insurance despite having taken the amount of insurance, without registration, without number plate and without handing over all the necessary documents to the complainant stands proved.  The detailed conversation as were held in between the complainant and OP1 also shows that OP1 is trying to win over the complainant for the purpose of getting him the insurance and once the complainant is under his influence for the purpose of getting the insurance he would abide by the assurance given by the OP and in such situation OP is in position to dominate the will/ mind of the complainant and complainant in order to minimize his loss, may fall into the trick of such OP1.  There is some fault on the part of the complainant also in this regard, but nevertheless the deficiency on the part of OP1 is writ large.   
23. As far as Insurance Company is concerned, how the insurance company has insured the vehicle on 08.08.2017 once a vehicle has already been stolen on 06.08.2017 is a matter of concern.  Insurance Company has done the insurance on submission of document by OP1 and OP1 is aware of the fact that vehicle has been stolen.   It is not disputed that complainant has not chosen insurance company from which it has to get the vehicle insured.  It is chosen by the OP1: Prima facie the business of insurance is done by agents, who used to be in touch with dealers, who are selling vehicles, and the insurance is generally obtained by the dealer on the spot.  What OP1 told to insurance agent is not known, but OP1 has managed to get the insurance of a vehicle, on 08.08.2017, which has been stolen on 06.08.2017.  This inter alia means that OP2 has never interacted with the complainant while issuing the policy in the name of complainant and then the stand taken by the Insurance Company in the Written Statement is quite stunning.  In the Written Statement of OP2 Insurance Company it is stating that there was no Insurance of the vehicle on 06.08.2017 that is the day on which the vehicle was stolen and as such it has no liability.  It inter alia amount to an admission by OP2 that the vehicle was in possession of complainant on 06.08.2017 and this admission is directly going against the OP1 and make his defence nullify the false.    
24. This inter alia means that Insurance Company was aware of the fact that the vehicle in fact has been stolen on 06.08.2017 and despite that it had insured the vehicle under the influence of OP1 on 08.08.2017.  This aspect is required to be investigated by the Police and the Police officials would do the needful if the complainant would lodge any formal complaint against the Insurance Company or against the OP1 but this Commission is refraining itself from initiating any criminal action against OP1 or OP2 (Insurance Co.) as no formal complaint was lodged by the complainant before this Commission. 
25. As far as indemnification is concerned OP2’s contention is right that as on 06.08.2017 i.e. date when vehicle was stolen it has no Insurance Policy and therefore under the consumer Protection Act it cannot be said that OP2 is liable for any indemnification to the complainant except for the return of the premium amount.  It is inter alia argued by counsel for the OP1 that complainant has already made payment to the financer and matter which was filed by the financer against the complainant has been settled and complainant has paid Rs.45,000/- to the Finance Company in full and final settlement of the loan taken by him.          

  

26. This rather shows the bonafide of the complainant as his vehicle although has been stolen but there was a loan on his vehicle and he has the liability to pay it.  Therefore, this contention of the OP1 that complainant has settled the matter with Finance Company is of no avail to the OP1 nor it minimize the deficiency on the part of OP1 rather and falsifies the claim of OP1 that vehicle has not been stolen or the complainant lodged a false report in Police.        
27. Keeping in view all these facts and circumstances the Commission is of the opinion that OP1 was deficient in providing the services to the complainant with respect to delivery of Bike without proper  documents, without insurance and then by filing a false document on Commission’s record and as such OP1 is liable to indemnify and as such the Commission hereby directs the OP1 to pay the following: 

• OP1 would pay Rs.63,770/- along with interest @ 9% p.a. from the date of filing the complaint,
• OP1 to pay Rs.20,000/- towards mental harassment and agony and
• Rs.7,500/- towards legal expenses.           

 

28. As far as OP2 is concerned he is directed that he would return the premium amount to the complainant with interest  @  9%  p.a.

from the date of insurance upto the date of payment.  OPs would pay all the amount to the complainant within a period of one month from the date of receipt of this Order failing which they would pay interest @ 12% p.a. on the entire amount including the amount of compensation and legal expenses. 

This order be complied with within 30 days from the date of receipt of the order.      

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room 

Announced on 14.02.2023.