BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. DCFR. 47/11.
THIS THE 11th DAY OF APRIL 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- Sri. T.K. Mahamood S/o. Ibrahim Haji T.K. Age:
50 years, Occ; Business R/o. Karnataka General Store & Choice Novalities, Opp: Bus-stand, Lingasugur, Dist: Raichur.
//VERSUS//
RESPONDENT :- Shri. M.D. Jahanger S/o. M.D. Jamaluddin, Auto
Work (Car Consultancy) # 1-8-30/5/4, beside Classic Point Hotel, Opp: KIMS Hospital, Minister Road, Secunderabad- 500 003(AP)
CLAIM :- Hence the complainant claims the earnest money
of Rs. 4,50,000/- with interest at the rate of 18% p.a. from 30-04-2010 to till realization and also claims compensation and Rs. 50,000/- towards cost of litigation.
Date of institution :- 25-06-11.
Notice served :- 27-07-11.
Date of disposal :- 11-04-12.
Complainant represented by Sri. Vishwanath Pattanashetty, Advocate.
Respondent represented by Sri.T.M. Swamy, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
By Sri. Gururaj, Member
JUDGEMENT
This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant T.K. Mahmood S/o. Ibrahim Haji. T.K., against the Respondent M.D. Jahangir S/o. M.D. Jamaluddin Auto Work, (Car Consultancy) Secunderabad. The brief facts of the complaint are as under:
The complainant has purchased the car Innova Vehicle bearing No. AP-10/AG-8586 from opposite for an amount of Rs. 6,35,000/- by paying Rs. 3,50,000/- as a token advance and agreeing to repay the remaining amount within 45 days from the date of delivery and also as and when the opposite demands. The opposite is the proprietor of Auto World (Car Consultancy) Secunderabad, AP and performing the business in respect of selling of second hand cars and other vehicles. The opposite has advertised his business to the different places and offering the persons to purchase the second hand car i.e, vehicle in question similarly he has advertised at Lingasugur and explained their business of second hand vehicles. By seeing the advertisement the complainant inspired and went to the opposite along with complainant friend by name Kuppanna R/o. Kasba Lingasugur and met the Respondent in his office at Secunderabad and agreed to purchase the above said Innova Car for his personal use. After seeing the said car, negotiated and fixed the price of car in question on 26-04-2010 with a condition that, the said payment will be made in part. According to the agreement the vehicle has to be delivered at Lingasugur on 30-04-2010 and advanced amount of Rs. 3,50,000/- is to be paid on the same day and it is agreed that, the balance amount is to be paid on installments basis as and when sought by the opposite within 45 days from the date of delivery of the vehicle. Accordingly the vehicle has been delivered at Lingasugur on 30-04-2010 and Rs. 3,50,000/- has been paid on the same day by the complainant to the opposite as a token advance. Further, it is the case of the complainant that, when he is at his native place of Kerala, opposite requested through phone to pay Rs. 1,00,000/- accordingly the complainant after making the adjustments of amount has paid Rs. 1,00,000/- through SBI Chekiad also called as Parkavadu of Kerala State The said amount was paid through four different vouchers of 25,000/- each to the A/c. No. 10092182817 of opposite on 03-05-2010 (25000+25000), on 05-05-2010 (Rs. 25,000) and on 06-05-2010 (Rs.25,000). But even after receipt of the said Rs. 1,00,000/- the opposite has not taken any steps to issue clearance certificate even after the complainant has made several requests. Further, it is also case of the complainant that, he was contacted through phone to the opposite on 25-05-2010 showed his willingness to pay balance amount of Rs. 1,85,000/- and requested to issue clearance certificate. Further he went to Secunderabad along with his friends Kuppanna on 04-06-2010 and 13-06-2010 respectively for giving balance amount, but the opposite has prolonged the matter one way or the other pretext for getting the transfer of the vehicle in favour of the complainant. The opposite has also not taken the No Objection Certificate from the actual owner. Complainant has made requests in this regard and requested for to accept the balance amount and to hand over the necessary documents like clearance certificate etc., but all went in vain.
It is further case of the complainant that, on 25-07-2010 the complainant went to his native place Thalassery (Kerala) in the above said car with their relatives and when they were proceedings via Mysore near Maisandra Turvikera Tq. at about 2:30 hours the complainant car right side tyre brusted and the complainant lost control of the car and dashed to the side mile stones and tree as a result of this the complainant vehicle completely damaged, since no damage has been caused to the inmates of the car. No police complaint has been lodged. The vehicle was shifted to Nandi Toyota, Hulsur Road, Mysore for repair on 26-07-2010 and thereafter intimated to the Reliance Insurance Company with which the vehicle got insured and thereafter surveyor has assessed the vehicle damaged. Further they have also taken affidavit of the complainant and claim form for to settle the claim but instead of settling the claim the Insurance Company rejected the claim through letter to the actual owner Mr. Satyanarayana Reddy. Hence the complainant not claimed vehicle damage since he is not the owner of above said vehicle as on the date of the accident. Due to this complainant put in mental torture and incurred lot of expenses in wandering to the accident place and to the insurance company. It is the case of the complainant that, the vehicle which was met with an accident is at Nandi Toyota and it is also became useless due to accident and it cannot be repaired. If the vehicle has got transferred by the opposite before the date of accident the complainant could have been claimed insurance amount. But due to the negligence on the part of the opposite even inspite of letters dt. 28-08-2010 and 31-03-2011 the opposite has not made any efforts to clear of the documents and insurance amount for the damaged caused to the vehicle. This itself shows that, there is a deficiency in service on the part of the opposite in discharging his duties for not giving No objection Certificate to transfer the vehicle in the name of the complainant. The complainant has also got issued legal notice on 21-01-2011 to the opposite but there was no reply for the same. The opposite has committed, fraud, undue influence to purchase the vehicle, unfair trade practice against he innocent complainant who has put in loss which is hard earned money of complainant. Hence the complainant claims the earnest money of Rs. 4,50,000/- with interest at the rate of 18% p.a. from 30-04-2010 to till realization and also claims compensation and Rs. 50,000/- towards cost of litigation.
2. The Respondent No. 1 has appeared through his counsel and filed his written version admitting about the purchase of the Innova Car bearing No. AP-10AG-8586
by the complainant and for a consideration amount of Rs. 6,35,000/- and made token advance payment of Rs. 3,55,000/- and agreed to repay remaining balance payment within 45 days from the date of delivery of the vehicle etc., as contended in Para-2 of the complaint and denying the rest of the allegations made in the complainant. Further it is specifically contended that, the allegations of the complainant made in respect of fraud, undue influence against the opposite requires full fledged trial for verification of various documents and evidence which is not permissible under C.P. Act as which is in summary nature. Therefore this Forum has no jurisdiction try and adjudicate complaint, the complaint filed by the complainant is against the provisions of section 2(1)(d) of C.P. Act because the complainant is not a consumer and he has no interest in respect of said vehicle or transaction so as to file this complaint and more over no transactions were taken place within the jurisdiction limits of this Forum and no cause of action taken place to file the present complaint. The complaint of the complainant is to be fit to be dismissed as it is an abuse of process of the forum and hence complaint is fit to be dismissed with heavy costs.
3. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief he has noted as PW-1 and also filed affidavit-evidence of one Kuppanna he noted as PW-2. Documents Ex.P-1 to Ex.P-11 are marked. In-rebuttal sworn-affidavit of opposite has been field and he has noted as RW-1. Similarly the affidavit-evidence of one J. Satyanarayana Reddy, owner of the vehicle in question has been filed, he has noted as RW-2. Documents Ex.R-1 to Ex.R-5 are marked.
4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:
1. Whether the complainant proves deficiency in service by the Respondent , as alleged.?
2. Whether the complainant is entitled for the reliefs sought
for?
5. Our finding on the above points are as under:-
1. In the negative.
2. As per final order for the following.
REASONS
POINT NO.1:-
6. There is no dispute about the purchase of the Innova Car bearing No. AP-10AG-8586 by the complainant for a consideration amount of Rs. 6,35,000/- and made token advance payment of Rs. 3,55,000/- and agreed to repay remaining balance payment within 45 days from the date of delivery of the vehicle. The Respondent in his version mainly contended that, there is no jurisdiction to entertain the complaint as the cause of action was not arise within the jurisdiction of this Hon’ble Forum. Further, he is also contended that, the complainant is not a consumer as defined U/sec. 2(1)(d) of C.P. Act.
7. We have perused documents filed by the complainant under Ex.P-1 toEx.P-6 i.e, Advance Receipt and Delivery Note Cum Intermediater Receipt issued by opposite which are marked at Ex.P-1 & Ex.P-2, and Four Bank vouchers produced which are marked at Ex.P-3 to Ex.P-6, these documents speaks that, the transaction and payment in respect of purchase of the car through opposite are taken place other than the jurisdiction of this Hon’ble Forum. The above said documents particularly Ex.P-1 & Ex.P-2 are clearly speaks that, the entire transaction has been held at Secunderabad and no where in the said document it has been mentioned that, the transactions where held at Lingasgur, further it is also very clear that, the vehicle has been delivered at Secunderabad only and not in Lingasugur as contended by the complainant in his complaint. Ex.P-3 to Ex.P-6 are the Bank Vouncers which are clearly speaks that, the amount has been paid by the complainant through Bank from Chekkaid of Kerala State. Except these no other documents have been made available before this Forum from the complainant to show that, the transaction has been held within the jurisdiction of this Hon’ble Forum. It is worthwhile to note here that, all these documents were filed by the complainant when his own documents are clearly speaks about the transactions held in some other place other than the jurisdiction of this Hon’ble Forum the complainant cannot say that, the jurisdiction of this Forum has got entertain this complaint as contended in this complaint. He cannot go against his own documents by filing affidavit-evidence of PW-2. Hence we have not accepted his plea in this regard.
8. The complainant in his complaint further contended that, the advertisement has been made by the opposite in various part and similarly same has been made available at Lingasguur. The place at where the complainant at resides. But on perusal of the entire documents filed by the complainant in this complaint and other documents no piece of evidence is found regarding to prove the version of the complainant. Neither he has produced any documents, pamphlets or paper cuttings to show that, the opposite has advertised his business in the locality of the Lingasugur or the jurisdiction of this Hon’ble Forum. Under such circumstances, version of the complainant and affidavit-evidence of PW-2 cannot be believed. Hence we have rejected his plea in this regard also.
9. The opposite in his complaint contended that complainant is not a consumer as per C.P. Act. This fact is admitted by the complainant-himself. No doubt the opposite might have acted as a middle man or a broaker. The receipts produced under Ex.P-1 & Ex.P-2 and the evidence of the opposite are clearly speaks about this fact. Further, it clearly shows that, the opposite is neither trader nor a service provider, he is only a broaker who is dealing his business on commission basis. There is no direct relationship in between opposite and complainant as the vendor and purchaser. Under such circumstances, it cannot said that, the transaction held in between the opposite and the complainant is the transaction as consumer and trader or service provider as contended in U/sec. 2(1)(d) & 2(1)(0) of C.P. Act. Hence, we have accepted the contention of the opposite in this regard.
10. The complainant in his complaint contended that, the opposite has committed fraud, undue influence to purchase the vehicle, unfair trade practice etc., and also contended that, the opposite has compensate the loss and repay the advanced amount which has been paid by him as the opposite has failed to hand over the documents within time even after he offered for to accept the balance amount and to hand over the documents regarding clearance of the vehicle. These are all the points which are required to be proved by proper evidence and also same are to be required detail trial before the competent court of law. In this regard civil court is the proper court to decide the matter.
11. No doubt, the Insurance Company has repudiated the claim in respect of the damages of the vehicle and same has been intimated to the actual owner of the car Mr. Satyanarayana Reddy as per Ex.P-11. Under such circumstances, if at all loss sustained by the complainant he has to approach competent court to get his loss but not by this Forum. Because the repudiation letter clearly speaks some legal matters which are required some evidence. Under the above circumstances, by looking into any angle the complainant has failed to prove his case against the opposite apart from that, the case of the complainant is not within the jurisdiction as stated supra and the complainant is not a consumer and opposite is not a trader or a service provider. Hence we have come to conclusion that, there is no deficiency in service on the part of the opposite and jurisdiction to entertain the complaint, therefore rejected the claim of the complainant Accordingly we answered this point in negative.
POINT NO.2:-
12. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in this complaint.
POINT NO.3:-
13. In view of our findings on Point Nos- 1 & 2, we proceed to pass the following order:
ORDER
This complaint filed by the complainant is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on11-04-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer ForumRaichur District Consumer Forum Raichur.
