IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Monday the 02^nd day of March, 2020

Filed on 13.03. 2013

Present

1. Smt. Sholy P.R, B.A.L,LLB (President-in-charge)
2. Smt.C.K.Lekhamma, B.A, LLB (Member)

                                                                  in                                                                 

CC/No.100/2013

 Between

Complainant:-                                             Opposite party:-

Sri.Manoj A.N                                         1.     Sri.Sony Augustine

S/o T.Natesan,                                                 Branch Manager, M/s Indus Ind Bank

Residing at E.W.S. No.720                              Alappuzha Branch, C.S.N. Building

Gandhi Nagar, Kadavanthra P.O.                     Oppo. S.D.V.H.S, Dist. Court Road,

Kochi-682020                                                 Alappuzha- 688013

(By Adv.Pramod Kumar)                    

                                                       2.     The Regional Manager

                                                              M/s Indus Ind Bank,

                                                              Corporate Office- Retail,

                                                              Sudarsan  Building, 92 (Old No.86)

                                                              Chamiers Road, Chennai- 600018

                                                       3.     The Vice President

                                                              M/s Indus Ind Bank, Regd.Office 2401

                                                              Gen. Thimmayya Road (East street)

                                                              Cantonment, Pune- 411001

                                                                        (By Adv.G.Sunil Kumar for oppo.parties

                                                                          1 to 3)

ORDER

SMT.C.K. LEKHAMMA (MEMBER)

          This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act, 1986.

2.       The averments in the complaint in short, are as follows:-

had purchased the above said vehicle as per the advertisement in the Malayala Manorama daily inviting tenders/offers of price for purchasing vehicles attached and sold by the 1^st opposite party from defaulters.  The 2^nd opposite party is the Regional Manager in the Corporate Office of the 1^st opposite party.  The 3^rd opposite party is the Vice President in the Registered Office of the 1^st opposite party.  The complainant tendered his offer in sealed cover quoting of Rs.1,02,000/- (Rupees one lakhs two thousand only) in January 2008 and from the office of the 1^st opposite party he was telephonically intimated on 4^th and 5^th of February 2008 to report to the office of the 1^st opposite party with the offer price of Rs.1,02,000/-and take possession of the 3 wheeler autorickshaw by make APE diesel bearing reg.No.KL 32-5716 registered in the name of Sri.Devassia John, Park view Bunglow, CMC-14, Cherthala.  The complainant as per the above information reported at the office of the 1^st opposite party on 08.02.2008 and tendered the offered price  of Rs.1,02,000/-.  After receiving the said amount the 1^st opposite party handed over the keys of the said vehicle and a letter addressed to M/s Saranas yard, Alappuzha to release the said vehicle to the complainant who was carrying the said letter dated 08.02.2008.   The complainant delivered the above said letter to the person in charge of the yard and consequently the above said vehicle APE Diesel Piaggio (passenger) bearing registration No. KL 32 5716 was delivered to the complainant and that the office of the 1^st opposite party had handed over the original R.C and permit of the vehicle to the complainant on the same day before delivery of the vehicle.  Further the office of the 1^st opposite party intimated the complainant that the papers relating to the RTO clearance would be sent to him within a week.  The complainant brought the above vehicle to his residence on the same day  (08.02.2008) and subsequently renewed the full cover insurance in the name of the previous owner on 14.03.2008 with M/s Oriental Insurance Co. Ltd., Kochi since the complainant's ownership was not registered.  The complainant approached the Joint RTO Office, Cherthala to remit road tax of the vehicle subsequently along with the necessary demand draft and that the Joint RTO refused to accept the road tax for the reason that there was an attachment order on the said vehicle from the Revenue Authorities, since legal heirs of the registered owner had raised certain claims on the vehicle.  The opposite parties had not informed the complainant about the above stated attachment order on the vehicle in deliberately to cheat the complainant.  The complainant intimated  the office of the 1^st opposite party regarding the refusal to  accept  the road tax and transfer of ownership of the vehicle  in the name of the complaint by the joint RTO and when he approached the office of the 1^st opposite party, they assured the complainant that they would take necessary steps to transfer the vehicle and apply for fresh registration certificate.  Unfortunately no action was initiated on the part of the 1^st opposite party till now in the above matter.  The complainant approached the office of the Ernakulam RTO to get a certificate of registration but it was known from the office that the said letter is already sent by RTO, Ernakulam to Joint RTO, Cherthala.  Hence the complainant was forced to send a legal notice on 18.02.2010 calling upon the 1^st opposite party to affect the transfer of the ownership of the said vehicle in the complainant's name.  The complainant has not been able to ply the vehicle on the road for the reason that the ownership was not transferred to  the  name of the complainant. 

3.       The complainant was then constrained to file a complaint bearing No.CMP No. 3465/2010 before this Hon’ble Court under Sec.156 (3) of the Cr.P.C to forward the matter for investigation and report on the matter to the office of the Station House Officer, Alappuzha Town North Police Station, Alappuzha on 13.08.2010 which was numbered as Crime No.770/2010 of Alappuzha Town North Police Station.  Unfortunately even after 2 ½ years had elapsed the police had neither filed any charge sheet or any report in this matter that it is referred back. 

4.       The complainant was not able to operate the vehicle since 5 years due to lack of proper records with him which has to be arranged by the opposite parties as per the terms and conditions of the sale of the above stated vehicle.  This had caused the complainant huge financial liability and losses by all means.  The complainant had taken loans at high rates of interest to find the money to purchase the vehicle from the opposite party.  The complainant was again constrained to file CMP No.2182 of 2012 on 17.02.2012 before the Hon’ble CJM Court seeking a direction to direct the Station House Officer, Alappuzha Town North Police Station, Alappuzha to file a charge sheet or a refer report in this matter.  Now the Station House Officer had filed a refer report on 12.10.2012 before this Hon’ble Court on frivolous, baseless and untenable grounds after 2 ½ years the matter is referred back.   The above matter was referred by the Station House Officer, Alappuzha town North Police Station without properly investigating the complainant.  The complainant is put to great hardships and inconveniences all these years due to the reason of not getting the appropriate legal documents to run the vehicle which is the only source of his lively hood.  The complainant is also not able to payback the huge financial liability which he had incurred at high rates of interest for the purchase of the vehicle.  The complainant has also suffered great financial loses due to the reason of not able to operate the vehicle for since 5 years.  Even now the vehicle is lying without use in the residence of the complainant.  The opposite party 1 to 3 had cheated the complainant by accepting the above stated amount for the vehicle and without arranging the proper documents to ply the vehicle on road.  This is a clear case of unfair trade practice, cheating, negligence, breach of trust.  The opposite parties have suppressed the fact that the above stated vehicle is subject to an attachment order from the Hon’ble High Court and it cannot be transferred in his name.  Hence the complainant approaches this Forum for the following directions against the opposite party:-

(a)      To direct the opposite parties to return back the sum of Rs.1,02,000/- to the complainant with 18% interest from 08.02.2008 ie, the date on which the vehicle was sold by the opposite parties to the complainant and the above stated amount was collected and to take back the vehicle.

(b)     To direct the opposite parties to pay a sum of Rs.5,00,000/- (five lakhs only) as compensation for the loss of income due to the complainant not able to operate the vehicle since 5 years due to lack of proper records with him which had to the arranged by the opposite parties as per the terms and conditions of sale of the above stated vehicle which the opposite parties have not done till date to the complainant.

(c)      To direct the opposite parties to pay a sum of Rs.1,00,000/- (one lakhs only) as damages for the mental agony suffered by the complainant.

(d)     To grant the costs of these proceedings to the complainant.

5.       The opposite party resisted the complainant by filing detailed version raising the following contentions.

          Complaint is not maintainable either in law or in facts.  Complainant is hopelessly barred by limitation u/s 24(A) of the CP Act 1986.  The complainant is engaged catering business and also engaged in purchase and sales of used vehicle.  However the opposite party would admit that the complainant had purchased an Autorikshaw bearing No.KL 32- 5716 from the opposite party bank on an auction sale.  But the opposite party bank given advertisement in the newspaper for the sale of reposed and asset  “on as is where condition is”.  The complainant is not seeing the advertisement  approach the opposite party bank  if the same  the quotation expressing its willingness to purchase the vehicle on as is where condition.  Complainant has tendered his quotation dated 7/2/2008 stating offer price of Rs.1,00,000/- and the same was accepted by the bank on 8/2/2008. Accordingly complainant paid quotation  price one lakh towards purchase amount and also paid Rs. 2000/- towards documentation and handling charges.  At the time of auction in the  vehicle the registered owner was late Devasya John, Park view Banglow , CMC-14, Cherthala.  After remitting the auction price the vehicle was handed over the complainant in as is where is condition  with the original RC and permit of the vehicle. The opposite party bank has not intimated the complainant that it should transmit papers  relating to RTO  clearance  within one week.   In the quotation the complainant has agreed and stated that he is willing to purchase the vehicle in as is where is condition an also  under took to do all formalities  the transfer of the vehicle on his own cost.  The complainant had also given an indemnity bond  stating that   he is taking delivery of the vehicle as it is own risk and also undertook to get ownership transferred his name within 30 days from the date of the purchase of the vehicle.  The opposite party bank has no knowledge regarding  the renewal of the insurance of the vehicle by the complainant nor regarding the existence of any attachment passed by civil court in respect of the  Autorikshaw. After the death of the owner the said vehicle was surrendered  by the legal heirs of the deceased  and the opposite party bank fail to understand the reason for legal heirs objecting the transfer of the vehicle in the name of the complainant.  At the time of auctioning the vehicle  opposite party bank was not aware of the existence of overall attachment / injunction restrained the selling of the vehicle.   During the month of June 2008 the complainant approached the opposite party bank alleging the issues related with in the name of transfer of the vehicle.  Accordingly the opposite party bank has on 26/6/2008 filed application before the RTO,Cherthala to issue fresh RC infavour of financer (opposite party bank) of the vehicle.  As there was an inordinate delay  on the part of the RTO in fresh RC the opposite party bank approached the Hon’ble High Court of getting transfer of the RC in the name of the opposite party bank and directed by the Hon’ble High Court to the RTO, considered the application  more with inspection of the vehicle was  necessary but the complainant did not produce the vehicle.  Otherwise fresh RC would have been issued by  this time in favour of the opposite party bank, who had arranged for due transfer of the vehicle in the name of the complainant.  It is  not the responsibility of the bank to carry out transfer relating auction when the complainant that purchased an autorikshow in as is where is  basis and agreed to get the ownership transferred in its name at his expense and costs.  The opposite party bank had taken on necessary steps to and rendered all kinds of assistance  in redressing his grievance. The opposite party bank had no knowledge  regarding the alleged issuance of lawyer notice dated. 12/12/2010 at the instance of the complainant.  Opposite party bank was not having any knowledge regarding the CMP-3465/2010  and also regarding the crime No. 770/2010.  It is reliable understood that as directed to Chief Judicial Magistrate, Alappuzha and SHO, North police station has registered crime alleging cheating and after investigation  referred the complaint and closed the matter by finding no cheating  involved in the transaction.  The opposite party bank is not responsible for the financial liability incurred to the complainant.  The opposite party bank has never cheated  the complainant by accepting the sale consideration of the vehicle  without arranging the documents for plying the vehicle.  Complainant has purchased the vehicle in auction only after verifying the available documents of the vehicle and also checked the condition of the vehicle at the time of auction sale.  The opposite party bank has no knowledge regarding the court attachment/injunction order passed in respect of the vehicle.  The opposite party bank  has not committed any unfair trade practice  cheating, negligence or breach of trust.  Complainant has no cause of action against the opposite party bank and he has filed the complaint an afterthought to overcome the refer/caution report filed by the police, who investigated the complaint filed by him.  The complaint is not entitled to get relief sought for.

6. Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.A1 to A15 documents.  Evidence on the side of opposite party bank consists of  oral evidence of RW1 and Ext.B1 to B5 documents.
7. On the basis of the above pleadings the points that arose  for the consideration are:-

1. Whether the complainant is a consumer within the scope of Consumer Protection Act?
2. Whether the complaint is barred by limitation?
3. Whether the complainant is entitled to get price of autorickshaw together with interest at 12% per annum?
4. Whether opposite parties liable to pay compensation and costs?

8       Point No.1

          The opposite party contented that the complainant is conducting catering service and also dealing with the sale and purchase of used vehicle.  The complainant has stated that he has auctioned the autorickshaw for plying the same to earn his liveli hood.  Apart from the oral testimony of RW1nothing is on records to show that the complainant has auction purchased the disputed autorickshaw for commercial purpose.  In the absence of such evidence we are only to hold that the complainant has purchased the autorickshaw for earning his livelihood by means of self employment.  Moreover the complainant is conducting catering service, for earning his livelihood, which is also a form of self employment.   In that view of the matter we are of the firm opinion that the complainant is a consumer within the ambit of the Consumer Protection Act. 

9. Point No.2

          The opposite parties vehemently contented that the complaint is hopelessly barred by limitation since the complainant had opted to file the complaint after a lapse of 5 years, on contra the complainant contented that he was running  pillar to post to get his grievances ventilated and since the opposite party turned a blind eye towards the lawful demand of the complainant, had to knock at the doors of this forum.

10.     We are not to delve into the averments raised by both parties as regards the question of limitation raised by opposite parties, especially when the Hon’ble High Court vide order dated 22.05.2019 in WPC No.147106/2015 has categorically held that complainant has filed the complaint in time in continuation of the cause of action which has arisen in 8/2/2008 subsequent to the auction purchase of the autorickshaw.  In view of the categorical pronouncement of the Hon’ble High Court we have no hesitation to hold that the argument of the opposite party is only to be rejected.

11.     Point No.3 

          Admittedly the complainant had purchased the ape diesel 3 wheeler autorickshaw bearing register No. KL 32-5716 vehicle on auction from the opposite parties at price of Rs.1,02,000/-  (One lakhs two thousand only). It is also admitted that complainant remitted the said amount which was accepted by the opposite party.

12.     According to the complainant when he approached Joint RTO Office Cherthala to remit the road tax and change the ownership in his favour, it was informed that the previous owner of the autorickshaw is no more, that the legal heirs of the registered owner has raised certain claim on the vehicle.  Further he contented that due to above reason the authorities did not change the ownership of the vehicle in his favour.  However the opposite party refuted the allegation and contented that they were not aware of the previous attachment passed by Civil Court and the vehicle was sold “as is where is condition”

13.     It appears that the disputed vehicle has been seized by the opposite party from the possession of the previous owner of the vehicle probably there was an outstanding amount in loan account of the previous owner.    It is to be noted that the opposite party did not furnish the details of the loan transaction between them and the previous owner.  During the cross examination RW1 deposed that “ta¸Sn tIknse hml-\w, CXnsâ ap³ DS-a-س Devasia John sâ A\-´cmh-Im-in-IÄ default h¶ kml-N-cy-¯n \n§-fpsS Øm]-\-¯n sIm­p-h¶v kd-­À sNbvX-Xm-sW¶v ImWn-¡m³ Fs´-¦nepw sXfnhv lmP-cm-¡n-bn-«p-t­m. CÔ.

14.     During the proceedings a strange contention has been raised by the opposite parties to the effect that the complainant had taken possession of the vehicle “as is where is condition” which means according to opposite parties, they are not liable for the previous liability if any on the vehicle.  We cannot accept the above contention, because the literal meaning of “as is where is condition” is that, it pertains to the mechanical condition of the  vehicle and not with regard to the financial status of the vehicle.   RW1 deposed that “\n§-fpsS proof affidavit 1^st page 2^nd para bn opposite party bank given advertisement in the newspaper for sale of reposed asset on “as is where is condition is” ? F¶p \n§Ä ]d-ªn-«p-­-tÃm. ]d-ªn-«p-­v. Ext.B1 ]{X ]ckyw BW-tÃm. AsX.   Advertisement   AXv Fhn-sS-bmWv ]d-ªn-cn-¡p-¶-Xv. Advertisement  AXv ]d-ªn-«n-Ô.             

15.     Moreover it is the duty of the service provider to provide hassle free service and defect free goods to the consumer.   The opposite parties submitted the Decision by Hon’ble High Court of Kerala reported in KLT 1986 page 742 in which it is found that “We are therefore fortified in taking the view that the actual owner can be different from the registered owner, and if it is proved that the registered owner has transferred the ownership to a different person the tortuous liability will have to be borne by the transferee despite the non transfer of the registration”.  But the factual aspect of the said case and the complaint in hand is entirely different.  Here the opposite parties, themselves know that the liability to obtain registration certificate is their own duty.  In the undermentioned reasons we are not relying on the said decision.   In the instant case opposite parties ought to have placed autorickshaw for auction after obtaining the non liability certificate from the office concerned.   Under the Sale of Goods Act the purchaser should be made known of the liabilities fastened upon the commodity sold by the seller or his agent.  Here the opposite party is cast upon the duty and responsibility to reveal the flaws. In this aspect RW1 was thoroughly cross examined and he deposed that “re-possess sNbvXv hn¡p¶ hml-\-¯nsâ  liability, court orders, attachment F¶o Imcy-§Ä buyers  s\ \n§Ä Adn-bn-¡m-dp-t­m.  Bank sâ Adn-hn-epÅXmsW-¦n Sn tIknse hml-\w, CXnsâ ap³ DS-a-س Devasia John, Devasia John sâ A\-´cmh-Im-in-IÄ default h¶ kml-N-cy-¯n \n§-fpsS Øm]-\-¯n sIm­p-h¶v kd-­À sNbvX-Xm-sW¶v ImWn-¡m³ Fs´-¦nepw sXfnhv lmP-cm-¡n-bn-«p-t­m. CÔ.  On 21.07.2010 the opposite party approached the Regional officer, Cherthala for to get a duplicate registration certificate, it indicate they were aware of the previous liability over the vehicle, after the failure of said attempt, they obtained Ext.B4 order from the Hon’ble High Court.   Now they cannot content that they are not responsible and not liable for the previous liability of the vehicle.  Here the complainant is a bonafide purchaser he is a driver by profession and he has purchased vehicle for earning livelihood by means of self employment but his ambition shattered down when he approached the motor vehicle department to get the ownership transferred in his favour.  RW1 deposed in this aspect that “hmZn-bpsS taÂhn-emkw asämcp PnÃ-bn BsW¶v Adn-bmtam. Adn-bmw.  Cu hml\w At±lw D]-tbm-Kn-¡p-hm-\m-bn«v RC Transfer mandatory BsW¶ procedure \n§Ä¡v And-bm-tam. Ownership  transfer sN¿m-sXbpw h­n HmSn-¡mw.  Cu hml-\-¯n\v Be-¸pg PnÃ-bn am{Xsa HmSm-\pÅ permit DÅ-Xmbn \n§Ä¡-dn-bm-tam.   Permit Be-¸p-g-bn am{X-am-Wv.  Be-¸pg PnÃ-bnse permit h¨v RC ownership transfer sN¿msX Ernakulam corporation sâ limit  h­n HmSn-¡m-sa-¶mtWm \n§Ä ]d-bp-¶-Xv.  Passenger s\ Ib-ämsX kz´w Bh-iy-¯n\v HmSn-¡mw.  hmZn¡v hnä hml\w hmS-Ibv¡v HmSp¶ Hcp passenger Hmt«m-dn£ BsW¶v ]d-bp-¶p.  AsX. 

16.     According to the opposite parties in furtherance of the order of High Court inspite of repeated request and reminders, the complainant fails to produce the vehicle.  Had the opposite parties issued any letter or notice to the complainant, the same have been for part of the records.   The same did not see the light of the day for reason not stated or explained.  In this context deposition of RW1 is that Ext.B4 sslt¡m-S-Xn-bnse tIkn hmZnsb \n§Ä I£n tNÀ¯n-«p-t­m. CÃ. C§s\ Hcp hn[nsb Ipdnt¨m vehicle inspect sNt¿­ Bh-iy-s¯-Ip-dnt¨m hmZnsb tcJm-aqew \n§Ä Adn-bn-t¨m.  Telephone  IqSn Adn-bn-¨p.  Bb-Xn\v  call records hÃXpw Sn tImS-Xn-bn lmP-cm-¡n-bn-«p-t­m.  CÃ.                 

17.     For the reasons stated above we are of the considered opinion that there was deficiency in service on the part of the opposite parties, to its they are answerable.  Hence opposite parties are liable to refund the amount received from the complainant by way of price of the vehicle to the complainant with interest at the rate of 12 % per annum from the date of receipt of the amount till realization.

18.     We are of the view that the order in refund of the amount with interest the agony of the complainant is adequately compensated.  Therefore, we refrain from awarding compensation.

19.     Now comes the question of costs it is the duty of opposite parties to give prompt service to the customer.  Instead of that the opposite party had been taking untenable contentions to escape from their onus.  Seemingly the complainant had to suffer mental agony and unnecessary inconveniences for no fault of his own which goes to show that a consumer has been wronged which calls for costs of the proceedings.  We fix it as Rs.20,000/- (Rupees twenty thousand only).

20.     In the result we allow the complaint in part and direct that:-

1. The opposite parties shall jointly and severally refund Rs.1,02,000/- (One lakhs two thousand only) to the complainant with interest at the rate of 12% per annum from the date (08.02.2008) of payment of the said amount, in that event the complainant shall return the disputed autorickshaw to the opposite parties simultaneously.  The opposite parties shall take the disputed autorickshaw from the residence of the complainant on their own risk and cost.       
2. The opposite parties shall jointly and severally pay Rs.20,000/- (Twenty thousand only) by way of litigation costs to the complainant.   

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the  02^nd  day of March, 2020.

Sd/-Smt.C.K.Lekhamma (Member) :

Sd/-Smt. Sholy P.R (President-in-charge)     

Appendix:-

Evidence of the complainant:-

PW1                           -           Manoj A N (Witness)

Ext.A1                       -           Photocopy of Driving License

Ext.A2                       -           Original receipt issued by 1^st Opposite party dtd 8/2/2008.

Ext.A3                       -           Original certificate of registration

Ext.A4                       -           Original insurance policy dtd 16.03.2007

Ext.A5                       -           Original insurance policy dtd 14.03.2008

Ext.A6                       -           Original Contract carriage permit dtd 11.04.2007

Ext.A7                       -           Original certificate of fitness dtd 10.04.2007

Ext.A8                       -           Original endorsement cancellation dtd 13.03.2008

Ext.A9                       -           Original termination notice (Form 35)

Ext.A10                     -           Office copy of legal notice to the 1^st opposite party

Ext.A11                     -           Office copy of legal notice to the 1^st opposite party

Ext.A12                     -           Photocopy of the complaint

Ext.A13                     -           Photocopy of the notice

Ext.A14                     -           Photocopy of the protest complaint filed on 30.11.2012

Ext.A15                     -           Two original colour photographs of the vehicle

Evidence of the opposite parties:-

RW1                          -           Ajay. M (Witness)

Ext.B1                       -           Copy of paper publication

Ext.B2                       -           Quatation

Ext.B3                       -           Indemnity Bond

Ext.B4                       -           Copy of writ petition

Ext.B5                       -           Power of attorney

// True Copy //

To

            Complainant/Oppo. party/S.F.

                                                                                                                           By Order

                                                                                                                   Senior Superintendent

Typed by:- Sa/-

Compared by:-