Kundan Kumar Kumai (Judicial Member)

This is a case under Section 12, of the Consumer Protection Act 1986.

Brief facts of the complainant’s case are that, the complainant had for purchased a Tata truck in the year 2015, for Rs. 23,28,421/- (Twenty-three lakhs twenty thousand four hundred) only, without accessories and with accessories the cost was Rs. 40,00,000/- (Forty Lakhs) only from M/S OSL Automotive Pvt. Ltd and after registration the vehicle No. was WB 65 C 0486.

Thereafter, the vehicle was financed by Tata Motors Finance Limited, for forty Lakhs and the vehicle was insured by National Insurance Company Limited, Raiganj (UD) Branch, against policy No. 150701/31/6300003047, in the name of the complainant, with IDV value of the vehicle at Rs. 23,28,421/- (Twenty-three lakhs twenty thousand four hundred) only.

The complainant had requested the respondents, to hand over the documents, being agreement copy, brochure and documents related to the vehicle, but the respondents had failed to do so.

After purchase of the vehicle, the complainant found, that the vehicle was not performing at the expected level and he had informed the matter to the seller, including the insurance company, to take necessary inspection, by engaging experts to locate the reason, but the respondents had assured him, that the vehicle was performing with the efficacy level with the vehicles manufactured in 2015. The respondents had not acknowledged the written complaints, made by the complainant. On 12/01/2019 the Tata Motors Finance Limited, submitted a document of termination to the RTO, Malda, on receipt of the entire sum payable by the complainant.

The complainant after obtaining the NOC, was contemplating transferring the vehicle to Mr. Debasis Biswas, and had approached Sriram Vehicle Finance Company Limited, Malda Branch, as the prospective customers did not possess, sufficient funds. The above finance company, prior to financing, inspected the vehicle and found that the vehicle was manufactured in the year 2012, and not 2015.

Later, on it was found that the vehicle model, in the RC book was LB 3723, but the respondents had mentioned LB 3118TC, and in collusion with the transfer department had manipulated the model No. and the complainant became aware that he had been misled. 

Therefore, such unfair trade practices, by the respondents resulted in the acute financial crises, being unable to ply the vehicle, affecting the livelihood of the complainant and his family. Hence, this case.

The Ops No. 1 and 2 have appeared to contest this claim by filing written version, wherein they have denied the material claims made by the complainant. They have stated that, at the time of delivery of the said vehicle, all the documents had been handed over to the complainant, for which the complainant was able to complete the registration. They have also stated that, the complainant had full knowledge regarding the year of manufacture of the vehicle in 2012, for which he availed huge discounts. In this regard the Sale Certificate had also been sent to RTO, who in turn might have committed the error. The Sale certificate also reflected the Model No. as LPT 3723 TC and the same was reflected in the RC book. Hence, no unfair trade practice, had been done by the Ops.

The OP No. 3, 4 and 5, have also entered appearance and contested the claim made by the complainant by filing written version. They have categorically mentioned in the written version, that the complainant was the owner of 15 (fifteen) vehicles, apart from the one purchased in this case. The vehicle, purchased in this case, was for commercial purpose and also bore a commercial registration number, and therefore the complainant was not a Consumer, under the Consumer Protection Act, 1986. They therefore pray for dismissal of this case.  

In support of his case, the complainant has examined himself and another witness on affidavit and furnished certain documents, which have been marked as Annexure 1-7. On the other hand, on behalf of OP No.1 and 2, one of the OPs has been examined on oath and has also filed certain documents. On behalf of OP No. 3, 4 and 5, one of the OPs has been examined on oath and has filed certain documents, which have been marked Annexure A(collectively).

Decision With reason

At the time of final hearing, Ld. Advocate for the complainant has argued, that the complainant was self-employed driver and had purchased the truck bearing registration no. WB 65 C 0486, for maintaining his livelihood along with his family. He had purchased above truck in year 2015, with finance from Tata Motor Finance Ltd., and had insured the vehicle with the National Insurance Com. Ltd. But after the purchase of the vehicle, the complainant found that the vehicle was not performing as per the expected level and had informed the matter to the OP’s. On 12.01.2019, Tata Motor Finance Ltd., informed the RTO, Malda regarding receipt of the entire amount from the complainant. After obtaining the NOC, the complainant intended, to transfer the vehicle to one Mr. Debasis Biswas and had contacted Sri. Ram Vehicle Finance Ltd., as the person did not possess sufficient funds. But during inspection, it was revealed that the truck had been manufactured, in the year 2012 and not in the year 2015 and thereby committed unfair trade practice.

The OP’s have alleged, that the complainant had many trucks and therefore, the instant truck was meant for commercial use and not for personal livelihood. In this regard, he has relied in the Judgement of Vinod Kumar Kucchal V M/S TDI Infrastructure, NCDRC, Revision petition 610 of 2016 and Laxmi Engineering Works V P.S.G. Industrial Institute SC. He therefore, prayed for relief mentioned in the complaint.

Ld. Advocate for the OP No. 1 and 2 had challenged the complainant’s case, on the ground that the complainant had knowingly purchased the vehicle of 2012 make, after availing huge discount. Moreover, they Op No. 1 and 2 had issued a Sale Certificate wherein the year of manufacture had been clearly mentioned, as 2012. Furthermore, the complainant had plied the vehicle till year 2019, from 2015, the year of purchase, without any complaints and only raised the issue after clearing the dues. That apart the clerical mistake had been made by the transport department of Malda and the OP’s No. 1 and 2 had no role to play. He has relied in the judgement passed by the Hon’ble Supreme Court of India in Ludhiana improvement Trust, Ludhiana and another -Vs- Shakti Co-Operative Building Society Ltd./ reported in (2009) 12 SSC 369/II (2009) CPJ 40 (SC). In any case, the complainant ought to have made the transport dpt. Of Malda and the Sri. Ram Vehicle Finance Ltd., as necessary parties in order to prove his contention.

Ld. Advocate of the Op’s 3,4 and 5, had stated that the complainant was the owner of 15 numbers of commercial vehicles including the vehicle in question and therefore, was not a consumer as per Section 2(d) of the Consumer Protection Act, 1986. Moreover, he had stated that after the payment of the entire amount, the party had no fiduciary relation and therefore an unnecessary party whereas the transport dep. of Malda and Sri. Ram Vehicle Ltd. were the necessary parties. He has relied on the Judgement passed in First Appeal No. 888 of 2013 Sri. Jasobata Narayan Ram Vs. The Branch Manager, L&T; Finance before the National Consumer disputes Redressal Commission and in Laxmi engineering works Vs. PSG Industrial Institute (as reported in 1995 AIR SC 1428).

Ld. Advocate of the OP’s 6 and 7, had stated that they had issued insurance policy, on the basis of proposal, from the invoice of the vehicle and Registration Certificate of the vehicle, as furnished by the complainant and the RTO had specifically mentioned the model of the vehicle as Tata LPT 3723 and the year of manufacturing as 2015. Therefore, they had no role to play.  

The sale of the vehicle in question have not been disputed. It is also not disputed that the payment of the vehicle, financed by Tata Motors Finance Ltd. has been completed. It is only after about four years, that the complainant has raised the allegation that the vehicle sold to him on 05/08/2015 was of 2012 make and he had been misled in to believing that the vehicle was of 2015 make and the model sold to him was LPT 3723 TC but the documents reflected the model number as LB 3118 TC.  The Ops 1 and 2 in this regard has stated that at the time of sale, Sale Certificate being Annexure A had been handed over to the complainant, where in it was clearly mentioned that the year of manufacturing of the vehicle in question was 2012 and the model of the vehicle was also LPT 3723 TC and the RC book also reflected the model as LPT 3723 TC. Therefore, there appears to be no anomaly on the part of OP no. 1 and 2, with regard to the above allegation by the complainant. Even the Certificate of the Insurance, shows the model Number as LPT 3723 TC. As regards the year of manufacturing shown in the RC book as 2015, the RC book issuing authority is the RTO Malda, and the OP No. 1 and 2 of this case cannot be faulted for having committed such a mistake.

Moreover, the defence raised by the Ops 3,4,5,6 and 7, is that the instant vehicle, had not been purchased by the complainant for earning the livelihood of himself of his family, as because the complainant, was the owner of a number of vehicles, amounting to fifteen in numbers and were all commercial vehicles. In this regard the computer print outs Annexure A clearly show that number of vehicles had been owned by the complainant and the complainant had not even bothered to deny the existence of the same, even when he had an opportunity to do the same, while replying to the questions put to him by the Ops during questionnaires. That apart, there is no evidence forthcoming from the complainant’s side to prove, that the computer prints outs provided by the Ops were all fictitious and manufactured. Hence, as far as the question of the complainant owning a number of commercial vehicles, apart from the vehicle in question of the instant case, is concerned, it can be safely concluded that the complainant had failed to provide satisfactory answers to rebut the evidences, forthcoming against him. In other words, it can be presumed that the complainant is the owner of number of commercial vehicles apart from the vehicle in question in the instant case. Hence, the complainant’s case under the provision of this Act, as a Consumer U/S 2 (d) of the Consumer Protection Act, 1986, would fail following the principles percolating from the judgments passed in First Appeal No. 888 of 2013 Sri. Jasobata Narayan Ram Vs. The Branch Manager, L&T; Finance before the National Consumer disputes Redressal Commission and in Laxmi engineering works Vs. PSG Industrial Institute (as reported in 1995 AIR SC 1428).

Furthermore, the complainant’s allegation, that the OP No. 1 and 2, had been instrumental in misleading him with the manufacturing year as 2015 whereas the vehicle in question had been manufactured in on 2012, and had also manipulated the office of the RTO Malda, in to issuing the RC book showing the year of manufacture as 2015. But in this regard the complainant had not filed any evidence excepting his bald statements, even when the complainant had an opportunity to do so. The principles from the judgment passed by the Hon’ble Supreme Court of India in Ludhiana improvement Trust, Ludhiana and another -Vs- Shakti Co-Operative Building Society Ltd./ reported in (2009) 12 SSC 369/II (2009) CPJ 40 (SC), clearly matches with this case and the complainant’s case is also bound to fail, on this ground also.

Moreover, it cannot be believed that during the four years after the purchase of the vehicle in question, the complainant was not able to register his complaint against the inherent manufacturing defects of the vehicle, especially when the vehicle in question, was for commercial usage. It is also not believable, that the Ops No. 1 and 2 would have such an influence upon the RTO Malda, inducing him to issue a wrong date of manufacture in the RC book, as was done in this case. The Ops 1 and 2 by highlighting the year of manufacture as mentioned in the Sale Certificate as 2012, have absolved themselves from the allegation, made by the complainant against them. Therefore, in view of such observation, it transpires that the RC book issuing authority that is RTO, Malda could only have been involved in the Commission of the error of mentioning the year of manufacture in the RC book as 2015. Therefore, the explanation for such error could only have been forthcoming from the RTO Malda. Having thus arrived at such conclusion, the RTO Malda, appears to be a necessary party and therefore, the complainant ought to have impleaded the RTO Malda as a party and sought reliefs against them. But there is no reason ascribed as to why the RTO Malda, was not made a party in this case, whose mistake was either forced or accidental, which caused the birth of this case. The failure of the part of the complainant to implead the RTO Malda, as a necessary party, at this stage, thus proves to be fatal to the complainant’s case. Therefore, on this aspect also, the complainant’s case is bound to fail.

Hence, in view of the above observations arrived at, it can be safely concluded that the complainant had failed to prove the case in his favour. As a result, it is

Ordered

That the instant case be and the same is dismissed on contest, but without cost.

Copies of the judgment be handed over free of cost to both the parties.