BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 24^th July 2015          

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 82/2015  

Complainant/s:

Smt. Nagartna w/o. Gangappa @ Gangadhar Hugar, Age: 32 Years, Occ: Household work, R/o.No.107, G.Basavanakoppa, Tq. Kalaghatagi, Dist: Dharwad 580014.

                                (By Sri.R.G.Kotur, Adv.)

v/s

Respondent/s:

1. Tata Motors Finance Ltd., Bombay House, 24, Homi Mody Street, Mumbai 400910.
2. Tata Motors Finance Ltd., Bombay House, 50 Lee Park, Richmande, Opp.Canara Bank, Abba City Bank ATM Bangalore 560025
3. The Branch Manager, Tata Motors Finance Ltd., 1^st floor, Kalburgi Noolvi Majestice, New Cotton Market, Nilizen Road, Hubli 580029, Dist.Dharwad

(By Sri.J.M.Patil, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay all the cost of the damages caused to the complainant with interest @18% and to levy Rs.1 lakh penalty to the respondent and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, at the instance of R3 the complainant has purchased Highwa Tipper bearing registration No.TN 37/BT 5848 for Rs.10,50,000/- which was seized by the respondent from its previous owner for non payment of the borrowed amount which was hypothecated with the respondent as a security for loan. The complainant has paid Rs.9,95,000/- cash by crediting the same to the account of the respondent maintained at ICICI Bank Hubli branch. On the same day the complainant has paid balance of Rs.55000/- by way of cash to the respondent.3 at Hubli office. The R3 also collected  a sum of Rs.9775/- towards parking charges. At the time of taking delivery of the vehicle the complainant asked for all the concerned document. The R3 has given letters & RTO forms which were signed by previous owner for transfer of RC in the name of complainant. As per the instructions of R3 the complainant submitted application for transfer of the RC in the name of complainant which stood in the name of its previous owner Abdulgafoor K. by paying tax and insurance premium in the month of December before RTO Coimbatore through RTO agent. After verifying the documents by the RTO Authorities Coimbatore they advised and insist the complainant to keep present the previous owner. As per the instructions of the RTO complainant informed the respondent to secure the previous owner. But the respondents did not make any efforts in securing him and to assist in transferring the RC. Thereafter the complainant had wrote letters on 23.04.2014, 10.04.2014 and 16.04.2014 requesting the respondent to make arrangement to transfer the RC. Thereafter the R3 called the complainant to its office at Hubli and issued letter dt.03.04.2014 and Form No.36 & shifted entire responsibility on the complainant to get it transferred. At the time of purchase of the said vehicle the respondents have assured and undertaken to assist the complainant to get transfer the ownership, but failed to do which cause both physical and mental harassment to the complainant and also affects financial status of the complainant as complainant has to suffer due to non earnings out of the vehicle as the complainant had borrowed entire amount to purchase the same and as the vehicle remained idle due to non transfer of the ownership. So also the complainant could not able to do repayment of the borrowed amount and its interest. Finally the complainant got issued notice on 16.06.2014 to all the respondents. Thereafter the respondents alerted and got transferred the RC in the name of complainant on 21.07.2014. Due to idle of the vehicle for about 8 months the complainant ought to have suffer more than Rs.12 lakhs. The complainant estimates loss of income per month at Rs.1.50 lakhs. Hence, respondents are liable to pay the same. Non payment of the same inspite of repeated requests amounts to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the complaint as brought is not maintainable either in law or on facts. Complainant is not a consumer within the meaning of Sec.2(1)(d) of CP Act 1986. The purchase of Highway Tipper for carrying out transport business amounts to commercial transaction as such the complaint ousts the jurisdiction of the Forum for adjudication interalia liable to be dismissed. Among such other admissions and denials the respondents took contention that since the complainant had purchased the same in an auction purchase by entering into bidder enrolment and she has executed bidder/buyer undertaking letter as such the complainant is governed by the terms and conditions of the said bidder cum buyer undertaking and she has purchased the same with an undertaking and agreeing to purchase as is where is basis and on receipt of the entire sale consideration respondent company handed over all the RTO forms to complainant which were signed by the previous owner of the vehicle. Under those circumstances it is the responsibility of the complainant herself to get it transfer the RC at her own cost and risk. Hence, the allegation that the respondents have not assisted & have caused deficiency in service or that at the instance of respondents the complainant has sustained loss are all afterthoughts of complainant to overcome and to have wrongful gain from the respondent at the hands of the Forum and prays for dismissal of the complaint.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit, relied on documents.  Heard. Perused the records.

Finding on points is as under.

1. Affirmatively 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  the complainant had purchased the vehicle in question from the respondent by paying entire consideration.

6.     Now the question to be determined is, whether non assisting in get transferring the RC from its previous owner in the name of purchaser by the respondents amounts to a deficiency in service, if so, for what relief the complainant is entitled.

7.     By looking into the pleadings, evidence coupled with the documents and as contended by the respondent it is evident that the complainant had purchased the impugned tipper from the respondents belongs to its previous RC owner Abdulgafur.K by entering into bidder enrolment form and has bid the same and governed by bidder/buyer undertakings. On perusal of Ex.R2 bidder enrolment form it bears the signature of the complainant. Further perusal of Ex.R3 bidder undertakings also bears the signature of the complainant. At the same time perusal of terms and conditions sl.no.5 of the bidder undertaking deed Ex.R3 the complainant had agreed to the condition, in case of any impediments in transfer of vehicle it shall be the sole responsibility of the bidder/buyer to arrange for transfer. In consonance to this agreed terms and conditions as per the own admission of the complainant in her pleadings and evidence the complainant admits the respondent.3 delivered letter and RTO forms which were signed by the previous owner of the said vehicle at the time of delivery of the vehicle after making full payment of the bid amount. Under those circumstances it is evident that it is the responsibility of the complainant to get it transferred at her cost.

8.     But the question lies in the instant case is that, though the complainant had admits the respondents have delivered all the documents and signed papers from its previous owner to facilitate to transfer the RC accordingly when the complainant approached the RTO Coimbatore they insist the complainant to keep in present of the previous owner in RTO office to get transfer the vehicle. It is also the case of the complainant that under those circumstances only she approached the respondents and requested to secure the previous owner and to assist her in transferring the RC. But respondent did not heed up and assist. This is evident by looking into the repeated requests made by the complainant to respondents calling upon them to assist her but, the requests of the complainant did not beat deaf ears of the respondents. It is also further case of the complainant that as a last resort she got issued legal notice to the respondents on 16.06.2014 calling upon them to assist, during that time only the respondents alerted & assisted and RC was transferred in the name of complainant on 21.07.2014. It is also the case of the complainant that though she had purchased the vehicle by paying entire payment out of the borrowed amount at the instance of respondent she could not able to get it transfer in her name & run the same. Since the vehicle remained idle for about more than 8 months she subjected to financial stringent apart from it she could not able to do repayment of the borrowed amount. Further it is also the case of the complainant that if she would have run the vehicle she could have earned Rs.1.50 lakh per month, accordingly she lost the said income.

9.     By looking into the letter of the complainant to the respondent Ex.C08, 13, 14, 16 & 19 it is evident that she made sincere repeated requests and approaches to the respondent to assist them but not yielded hence, she is subjected to physical harassment. This fact has been evidenced by looking into her letter Ex.C13 suffering from the mental torture she has wrote the said letter to the respondents.

10.   Though it is the case of the respondent that she has purchased the same in an auction by giving undertaking to bear all the responsibilities and consequences thereon at the risk of the bidder it is also bounden duty of the seller to secure NOC and to get it transfer the vehicle in the name of buyer. For mere sake the bidder has given undertaking the seller cannot severe risk and escape from the liability unless and until issuance of NOC it is the responsibility of the seller to take all the care in assisting and securing NOC.

11.   However the complainant claims loss Rs.17 lakhs in all including repair charges, loss of income, parking charges paid and penalties. She is not entitled for all those charges and expenses as she is auction purchaser. So also the complainant did not led any evidence to establish her case of financial loss due to idle of the vehicle instead baldly she estimates Rs.1.50 lakhs PM without any basis. Hence the said claim cannot be acceptable. In the absence of cogent evidence with regard to financial loss the claim of the complainant cannot be accepted in toto.

12.   However it is the case of the complainant that since the RC was not transferred and NOC was not delivered from the date of taking possession of the vehicle till RC was changed i.e. till 21.07.2014 she could not run the vehicle and earn out of it. For this also she has not produced any document to establish the said vehicle was kept in idle for all those days. However on perusal of Ex.C13 letter from the complainant to the respondent dtd.22.05.2014 she has stated that she had subjected to heavy financial loss if the respondent did not assist her in obtaining NOC she will run at the risk and responsibility of the respondents. By this it is evident that the complainant had kept the vehicle in idle position due to non transfer of the RC. Since the respondents have failed to assist and to secure NOC & get transfer the RC in the name of the complainant by securing the previous owner to the office of RTO authorities Coimbatore certainly the respondents are held responsible to make good of the loss.

13.   As discussed supra since the complainant did not putforth exact figures of loss sustained by complainant due to idle of the vehicle if this Forum works out the interest on the consideration amount as per admission of complainant paid to respondent while taking delivery of vehicle Rs.10.15 lakhs by taking into consideration of interest @12% P.A. till securing NOC & RC on 21.07.2014 it will work out Rs.85750/-. If this amount is ordered to pay it will suffice the purpose. To this extent i.e. non cooperation of the respondents to secure NOC & RC in the name of the complainant the respondents have committed deficiency in service. Hence they are liable to pay the damages. Interalia the complainant has established her case of deficiency in service of respondents, accordingly she is entitled for the relief.

14.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmative and accordingly.

15.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        Complaint is allowed in part. The respondents are jointly and severally directed to pay Rs.86,000/- in all to the complainant by way of interest towards the financial loss sustained by the complainant along with Rs.10,000/- as compensation and Rs.2,000/- towards cost of the proceedings within 30 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 24^th day of July 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR