SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The complainant has filed this complaint petition, U/s 12 of the Consumer Protection Act, 1986 (here-in-after called as the “Act”) alleging deficiency in service against the OP claiming compensation.
2. The case of the complainant, in short, is that OP No.1 is the proprietor of overdrive stock yard under the OP No.2 to sell the repossessed/ seized vehicles of OP No.2 to different persons and the OP No.2 also used to assisting loans to persons for purchase of vehicles on hypothecation agreement. Accordingly, on 28.7.2009, the complainant had purchased one repossessed second hand NR Yamaha Libero G-5 motor cycle bearing Engine No.5TS4113091, Chassis No.06J5TS4112091 from OP No.1 paying cash of Rs.24,000/- and obtained money receipts thereof. At the time of delivery of vehicle, OP No.1 was unable to hand over the documents in respect of the said vehicle to him and assured to hand over the same within 15 days. After 15 days, the complainant visited the OP No.1 and requested to deliver the documents in respect of the vehicle, but the OP No.1, with a discussion with OP No.2, requested him another 15 days for delivery of the documents. Since 28.7.2009 till date, the complainant used to visit the Ops premises and approached them in several times for delivery of the documents, but the Ops intentionally and knowingly avoided to hand over the documents in respect of the vehicle in question. Finding no other alternative, the complainant served legal notice against the OP No.1 on 17.9.2012 which was returned. Then the complainant served legal notice against OP No.2 on 4.10.2012, but in vain. For want of documents, neither the complainant transferred the ownership of the vehicle into his name nor ply the vehicle for which the vehicle became idle. It is further stated that on 20.10.2012 when the complainant met the Ops and requested them to hand over the documents in respect of his vehicle, at that time the Ops blatantly refused to give the same. Hence, this case.
3. In the present case, the OP No.1 appeared and filed his version stating, inter alia, that he is dealing with spare parts of auto mobiles. This OP had simply purchased the vehicle in question on auction from the OP No.2 without any documents and the complainant purchase the same on “as is where is basis” and no way concerned with any other documents of the vehicle and also there was no agreement between the parties for the purpose. Further, the complainant was well aware about the non-availability of documents of the vehicle, still then he has purchased the vehicle at a very low price.
4. OP No.2 appeared and filed written version admitting the fact of purchasing the vehicle in question by the complainant from OP No.1, who is indulged in the business of advancing loans/ credit facilities to various persons/ business legal entities for meeting their various types of financial needs as a part of their business activities. Their Bank has no knowledge about the transaction between the complainant and OP No.1 and there was no agreement between their Bank with the complainant. Further, on receipt of legal notice from the complainant, the Bank has duly replied to the complainant stating that in absence of sufficient information, the Bank was unable to respond to his grievances, but the complainant has not submitted any documents.
5. In the present case, the following points for determination are casted for proper adjudication of the case -
(i) Whether the complainant has cause of action to file this case?
(ii) Whether this consumer case is maintainable?
(iii) Whether there is any deficiency in service on the part of the OPs?
(iv) Whether the complainant is entitled to get the relief, as sought for?
(v) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
6. Perused the documents filed on behalf of the complainant. It reveals from the photocopy of the Note of the OP No.2-Bank vide Sr/No.1454/08 dated 30.12.2008, the Yamaha Libero G5 bearing Engine No.5TS4113091, Chassis No.06J5TS4113091 has been handed over to Bijendra Kumar Sahoo. From the photocopy of the Money Receipt dated 28.7.2009 issued by OP No.1, it reveals that OP No.1 on receipt of full sale value of the vehicle @ Rs.24,000/- from the complainant in cash delivered the motor cycle in question bearing Engine No.5TS4113091, Chassis No.06J5TS4113091 to him on that day. It also reveals from the said money receipt that the vehicle belongs to the repossess stock of ICICI Bank limited. From the photocopy of the envelop sent by Registered post with AD in the address of the OP No.1, purported to have been contained with legal notice, it is found that the same was returned with an endorsement LEFT. From the photocopy of the legal notice dated 3.10.2012, it reveals that the complainant has sent it against the Ops. On the other hand, the Ops have not filed any document in support of their stand.
7. From the above documentary evidence, it is crystal clear that the complainant had purchased the vehicle in question on 28.7.2009 from the OP No.1 on payment of Rs.24,000/- in cash and obtained valid money receipt and became the owner. Further, the vehicle so purchased by the complainant was belong to the repossess stock of OP No.2-Bank. In this connection, the submission raised by the learned counsel for the OP No.2-Bank with regard to the fact that their Bank was not aware of the affair between the complainant and OP No.1 is not at all believable because, in the Money Receipt, it shows that the vehicle in question was in the repossess stock of OP No.2-Bank. In the above premises, the OP No.2-Bank has not offered any satisfactory explanation as to how and under what circumstances OP No.1 sold it to the complainant without obtaining permission from the Bank. On the other hand, OP No.1 has claimed that he has simply purchased the vehicle in question on auction from the OP No.2-Bank on “as is where is basis” without any documents thereof. To substantiate this stand, OP No.1 has not proved any document to show that he had actually purchased the vehicle in question from the OP No.2-Bank on auction sale. Further, the OP No.1 has mentioned in his written version that the complainant has not mentioned in the complaint petition regarding the nature and type of documents which he requires. It is out of place to mention here that when the OP No.1 deals with the spare parts of the auto mobiles and indulged in the business activities of OP No.2-Bank, how far it can safely be said that OP No.1 has no sufficient knowledge about the documents of the vehicle and non-mention of the specific documents in the complaint petition cannot by itself fatal to its case.
8. On the other hand, OP No.2-Bank is a public limited company incorporated under the Companies Act, a banking company under the provisions of the Banking Regulation Act & also a scheduled Bank according to the RBI, as stated in their written version. Over all, the OP No.2-Bank is also a responsible Bank situated at Januganj under Industrial Area Police Station in the district of Balasore. In Para-19(c) of his written version, it is stated by the OP No.2-Bank as follows –
“That, the complainant had sent one legal notice dated October 03, 2012 addressed to this O.P. Bank through his advocate Mr. Nirmal Kumar Nayak. On receipt of said notice the O.P. bank had duly replied to the complainant that, due to insufficient/ inadequate information been furnished by the complainant, the O.P. Bank was unable to respond to his grievances. Therefore, requested the complainant vide letter dated November 07, 2012 to provide necessary information and documents for further inquiry by O.P. Bank. One copy of letter dated November 07, 20112 was also sent to complainant’s advocate Mr. Nirmal Kumar Nayak. A copy of said letter is attached and produced herewith as Annexure-A.”
9. On perusal of the afore-stated letter dated November 07, 2012, the said letter in question has been issued by the Authorized Signatory Mr. Sambit Parida, Manager, Bhubaneswar in favour of the complainant and the copy of its was also issued to the concerned Advocate of the complainant. In this connection, the OP No.2-Bank has not stated a single word in their version that the alleged matter has been referred to the ICICI Bank Limited, Commercial Banking, Janpath, Bhubaneswar for further follow up action in the matter, rather, it is claimed that the OP No.2-Bank itself has issued that letter in favour of the complainant and sent copy to the concerned Advocate. Nowhere in the said letter, the seal and signature of the OP No.2-Bank is found to have been affixed, rather, it is visible in the naked eye that the seal of ICICI Bank Ltd, Bhubaneswar is affixed. It is seen that one Ajay Kumar Kar, the then Area Debt Manager, ICICI Bank Ltd. 2nd Floor, Umang Plaza, Bajrakabati Road, Cuttack has verified the contents of the written version to be true to his knowledge. Interestingly, the complainant has filed the present case against the ICICI Bank limited situated at Januganj under Industrial Area in the district of Balasore (OP No.2), the Area Debt Manager, ICICI Bank Limited, Bajrakabati Road, Cuttack had verified the written version and the reply to the Advocate’s notice was sent by Mr. Sambit Parida, Manager, ICICI Bank ltd., Bhubaneswar.
10. In the above facts and circumstances, if it is to be believed that OP No.2-Bank has not authorized the OP No.1 to sale the vehicle in question, then it is to be believed that the OP No.1 has sold a stolen motor cycle to the complainant and the stolen vehicle has no paper. But it is clearly mentioned in the Money Receipt dated 28.7.2009 that the vehicle belongs to the repossess stock of ICICI Bank limited i.e. OP No.3-Bank. Further, when the OP No.1 has denied to have any relation with the OP No.2-Bank, OP No.2-Bank has admitted that OP No.1 is indulged in their business. Further, the plea of alibi as taken by a reputed financial institution is not at all expected. Therefore, it is held that both the Ops have nexus with each other and when the burden lies on them, they have cunningly managed to escape themselves from the legal liabilities.
11. Now a days, the sellers frequently subject the consumers to unethical commercial tactics and consumers fall victim to their ruthless economic rivalry. Due to customers learning about their rights under the Consumer Protection Act and pursuing recourse against unfair business practices, consumers in today's modernized world are paying more attention. Given the options available in Indian statutes and legislation and the numerous proactive policies and programme being implemented by the government, the future of the system of consumer justice in our nation appears promising. The cluster of uneducated consumer needs to be made aware of their rights so they can protect themselves from monopolists' unjust business activities. That apart, for non-providing the vehicular papers relating to the vehicle of the complainant by the Ops, the complainant could not able to transfer the ownership of the vehicle into his name and the vehicle has not been insured till date for which the complainant could not ply his purchased vehicle and thus, became idle. In the above circumstances, sustaining of financial loss and suffering of mental agony cannot be ignored.
12. Learned counsels for the Ops submitted that this case has been filed in delay and the complainant has not satisfactorily explained delay in filing of this complaint, hence, this case is barred by limitation. Refuting the submission advanced on behalf of the Ops, learned counsel for the complainant submitted that the complainant had purchased the alleged vehicle on 28.7.2009 under valid money receipt and the OP No.1 has not provided any paper concerning to the vehicle purchased. It is further submitted that the OP No.1 took time to provide the relating paper once within a fortnight and again within a fortnight on the consultation with the OP No.2. Hence, the complainant served legal notice against the Ops on 3.10.2012 and lastly on 20.10.2012, the complainant had been to the premises of the Ops and requested to hand over the documents relating to the vehicle in question, but the Ops blatantly refused to provide the same. In this premises, on a bare perusal of the written version submitted on behalf of the Ops, it is seen that nowhere they have made any challenge to the fact that the complainant has approached them for providing the papers in respect of his vehicle. Therefore, it is held that the case of the complainant is not barred by limitation.
13. From the above discussions made in the foregoing paragraphs, this Commission is of the considered opinion that the complainant has cause of action to file the case and the case is maintainable in the eye of law. Consequently, both the Ops are held to be deficient in rendering their service towards the complainant and hence, they are jointly and severally liable for the compensation, as claimed by the complainant.
Hence, it is ordered -
O R D E R
Having regard to the judgement reflected above, the case of the complainant be and the same is allowed on contest against the O.Ps. The O.P No.1 is hereby directed to:-
- refund Rs.24,000/- to the complainant with interest @ 9% per annum, from 28.07.2009 till its actual realization.
Further, each of the O.Ps are directed to:-
- pay a sum of Rs.50,000/-, to the complainant, towards compensation for suffering of financial loss, mental agony and litigation cost.
All the aforesaid awarded amounts shall be paid by the O.Ps No.1 & 2 to the complainant within 45 days from the date of receipt of this order, failing which the complainant is at liberty to realize the same through the process of law.
Pronounced in the open court of this Commission, this the 25th day of November, 2024 under my signature & seal of the Commission.
