IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the   7^th    Day of  August  2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                        CC No.29/16

Sanukumar                                        :         Complainant

S/o  Sri.Pathmajan

Cherumannel, Cheriyazheekkal P.O

Alappad Village, Karunagappally Taluk

Kollam.

[By Adv.M.P.Sugathan Chittumala]

V/s

1. The Excise Inspector                :         Opposite parties

Excise Range Office

Chinnakkada, Kollam-1

2. The Deputy Excise Commissioner

Excise Division Office

Chinnakada, Kollam-1

3. The Excise Commissioner

Excise Department

Kerala Government,Thiruvananthapuram.

4. The Chief Secretary

Kerala Government

Secretariat, Thiruvananthapuram.

FAIR  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

          This  is a consumer complaint filed under Section 12 of the Consumer Protection Act.

The averments in the complaint in short are as follows:-

          The complainant is a Fisherman by profession.  On 26.03.2015 the complainant  take part in the public auction conducted at the office of the 2^nd opposite party   and    bid in auction Santro car for Rs.69,852/- including VAT.  On

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the same day the 1^st opposite party issued a receipt evidencing the payment  of the bid amount.  He has also issued a certificate dated 07.04.15 evidencing the transfer of car in the name of the complainant.  However after 07.04.2015 the complaint approached the opposite party demanding the key of the vehicle.  But they informed that  vehicle has been come under their possession without any key.  Thereafter when the complainant verified the vehicle it was found that the entire electrical wiring broken due to the bite of  Bandicota(Peruchazhi) and the entire vehicle has been filled with sand and therefore it was not possible to move the vehicle from the spot where it was parked.  The top of the vehicle has been filled with dust and dry leaves.  As the entire glass has been affixed with  film the complainant could not verify inside the car before conducting auction.  Furthermore the opposite parties have not given sufficient opportunity to the complainant to verify the car properly.  As the opposite party insisted to remove the vehicle from the premises  urgently  the complainant  removed it by toying  the same towards the workshop at Karunagappally.  Thereafter it was understood that the vehicle is not in a roadworthy condition.  By knowing all these facts the complainant became annoyed and he never expected such type of cheating from the opposite party No.1&2.  However the complainant repaired the vehicle at the workshop by spending Rs.32,000/- and made it in a roadworthy condition.  The workshop authorities informed that the vehicle will not get mileage and  it is not safe for journey.  Hence the complainant has been keeping the vehicle at the premises of  his residence.  In the meanwhile the complainant changed the RC in the name of the complainant and he has spend amount of Rs.50,000/- for the repair and changing of RC book.  The complainant has also  loss of time apart from monitory loss and also sustained mental agony.  According to the complainant he is a consumer of  the opposite party No.1&2  who mislead and cheated him and the

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act  of the opposite parties amounts to unfair trade practice.  There is also deficiency in service on the part of the opposite parties and the above act of the opposite parties caused much mental agony  and irreparable loss to the complainant.  Hence the complainant seeks compensation  of Rs.1,00,000/- and costs Rs.10,000/- from opposite party No.1&2.

          1^st opposite party filed a version of his  own behalf and also on behalf of opposite party No.2 to 4.  The contention in the above version are as follows.

          The car bid in auction by the complainant is involved in Crime No.133/13 of Kollam Excise Range Office alleging transportation of illicit spirit in the said car.  In view of Section 67(b) of the Abkari Act the car has been entrusted to Assistant Excise Commissioner, Kollam who in turn has entrusted the car to Excise Range Inspector for keeping the car in safe custody.  Thereafter the vehicle has been duly confiscated to the Government on 21.11.14.  The Excise Mechanical Engineer has verified the car and     issued     certificate on    10.07.14    stating that the market price of the car is Rs.60,000/-.  Accordingly auction was scheduled to be conducted on 26.03.15.  Notice has been published as early on 09.03.15.  During the auction the complainant bid the vehicle in  auction.  He has also paid Rs.69852/- being the auction amount including VAT, cess etc.  As  all the legal formalities has been  completed with the auctioned vehicle has been released on 07.04.15.  The opposite parties have given sufficient opportunities to the complainant to verify the vehicle which was sold in  the public auction.  It is made clear in the sale notice that the intending purchaser can verify the  vehicle with the permission of the Excise Officials and can participate in the auction if they are  satisfied with the vehicle and the opposite party have given sufficient opportunity to  verify   the   vehicle.  At  the   time of conducting auction or thereafter  or at any

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time before filing the complaint the complaint has not raised any such allegations before any authority.

Points for  consideration:-

1.  Whether there  is  any deficiency in service or unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled to get compensation and costs as prayed for in the complaint?
3. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&2 and Ext.P1 to P5 and Ext.C1.Evidence on the side of the opposite party consists of the oral evidence of DW1&Ext.D1 to D15 documents.

Both sides have filed notes of argument.Heard both sides in detail.

Point No.1&2

          For avoiding repetition of discussion of materials these 2 points are considered together.  The following facts are admitted rather undisputed in this case.      The complainant    on     26.03.15      purchased  a secondhand car  bearing

Registration Number KL/5/S-7482 in a public auction sale conducted by the 2^nd opposite party by paying Rs.69,852/- including VAT as ready cash.  The 1^st opposite party on  07.04.15 has issued a sale certificate in the name of the complainant.  The key of the vehicle was not handed over to the complainant inspite of the request of the complainant  by stating that Excise Department seized  the vehicle 2 years back without any key.  According to the complainant  the said car is damaged too much due to the careless maintenance and keeping of it by the opposite parties.  According to the complainant he has actually not obtained sufficient opportunity to inspect and examine the vehicle before biding the car is  the public auction sale.  On   further verification of the car by the nearby workshop

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at Karunagappally  it was further understood that the said car is totally damaged and welded together with two vehicles.  The above allegations of the complainant has been vehemently resisted by the opposite parties.  It is clear from the available  materials that the vehicle got purchased by the complainant is a Santro  Xing car seized along with  contraband spirit and the excise officials have registered a crime for having  committed offence punishable under Section  55(a) 67(B) of the Abkari Act  and registered Crime No.133/13 of the Excise Range Office, Kollam.    After investigation of the case and after assessing the fitness of the vehicle by the Mechanical Engineer fixed the price of the vehicle as Rs.60,000/- as per Ext.D3 proceedings  dated 09.03.15.  It is also clear from Ext.D2 list  that the above vehicle also was placed for auction on 26.03.2015 and published the notice as per law in two local newspapers Ext.D4 and  D5 are copy of paper publications.  It  is an undisputed fact that the petitioner  took part in the auction sale and purchased the vehicle in auction by offering an amount of Rs.69,852/- including VAT and cess  and  the petitioner has taken the possession and custody  of the vehicle on 07.04.2015 after paying the auction price of the vehicle.  It is clear from the available materials that the   seized   vehicle      involved    in Abkari crime are kept in the range office premises and all the participants are permitted to inspect the vehicles  and to understand the present condition of the vehicle with the permission of the Excise Circle Inspector concerned and after convincing the then condition of the vehicle they are expected  to participate  in the public auction.  It is also clear from the available materials that nobody has restrained the  complainant or his authorized agent in inspecting the vehicle before the public auction.  The complainant  has also not raised any complaint before any authority  before  filing the present complaint regarding the alleged bad condition of the vehicle.  It is also brought out in  evidence   that the vehicle  was subjected to  thorough  examination

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by the Joint R.T.O, Karunagappally along with the documents issued by the respondents  and convinced  the conditions of the vehicle and thereafter the vehicle has been changed in the name of the complainant.  It is also clear from the available materials that the petitioner was having absolute right to participate in the auction  proceedings after understanding then condition of the vehicle.  It is also clear from the available materials that the petitioner along with other 16 persons participated in the auction proceedings and the petitioner bid the vehicle with highest bid price voluntarily and remitted the amount  and taken the vehicle in  his custody as per the terms and conditions of the auction. 

          In view of the oral evidence of PW1 and DW1 and Ext.D1 to D15 documents it is crystal clear that the vehicle  was seized in Abkari crime  No. 133/13    and confiscated in the crime as per law and duly auctioned.  No illegality or irregularity in the auction proceedings  has brought out in evidence. The petitioner is a auction purchaser who bid in auction by offering the highest price and taken  custody of the vehicle and also obtained Ext.D15 auction conformation letter in respect of the vehicle.  All the formalities in respect of the confirmation of  auction sale of the vehicle has been duly and legally done by the  opposite parties. 

          In  view of Ext.C1 report it is crystal clear that the allegation of the complainant that this vehicle has been constructed by welding parts of 2 vehicles is incorrect.  However PW2 has reported certain defects for the vehicle but it is to be pointed out that it is a 2^nd hand vehicle seized in connection with the transportation of illicit spirit.  The value of the said vehicle  has been fixed by competent authority at Rs.60,000/- and that price was duly published and also offered opportunity to the intenting auction purchaser to verify the present condition of the vehicle before conducting auction sale.  Thereafter it is crystal clear that the opposite parties has not concealed  anything but everything was transparent.  They

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have not fixed the price of a new Santro car is its price.  They have only estimated  less than one fifth of the price of a new Santo car which itself would indicate that it is an old and damaged vehicle.  If it was comparatively a new car or a vehicle having no much damage  the price of the vehicle would have been fixed at least one fourth of the market price of the same type of car.  By knowing all these facts  and after verifying the vehicle the complainant has bid the vehicle in auction and thereafter it cannot be held that there is any deficiency in service or unfair trade practice on the part of the opposite parties.  Therefore we find  no merit in the complaint and the same is only to be dismissed.  The points answered accordingly.

          In the result the complaint stands dismissed.

          No costs.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  7^th   day of  August 2019.   

E.M.Muhammed Ibrahim:Sd/-

            S.Sandhya Rani:Sd/-

             Forwarded/by Order

             Senior Superintendent

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INDEX

Witnesses Examined for the Complainant:-

PW1           :         Sanukumar

PW2           :         Kishor

Documents marked for the  complainant

Ext.P1         :         Copy of receipt

Ext.P2         :         Copy of Certificate dated 07.04.15

Ext.P3         :         Copy of Letter dated 08.05.15

Ext.P4         :         Copy of Letter dated 10.07.14

Ext.P5         :         Copy of RC Book

Ext.C1        :         Commission Report

Witness examined for the opposite party:-

DW1           :         K.Madhusudhanan

Documents marked for the opposite party

Ext.D1        :         Copy of  Proceedings of Deputy Excise Commissioner, Kollam

Ext.D2        :         Copy  of list of vehicles to be placed in public auction

Ext.D3        :         Copy of vehicle auction advertisement dated 09.03.2015

Ext.D4        :         Copy of newspaper  advertisement dated

                             22.03.2015(Janayugam)

Ext.D5        :         Copy of newspaper  advertisement(Rashtradeepika)

Ext.D6        :         Copy of proceedings of the Deputy Excise Commissioner,

 Kollam

Ext.D7        :         Copy of letter dated 10.07.14

Ext.D8        :         Copy of address  of the participants in the public auction

Ext.D9        :         Copy of letter dated 28.03.15

Ext.D10      :         Copy of Bid list of auction sale of Santro Xing Car

Ext.D11      :         Copy of list of thondy articles involved in CR No.133/13

Ext.D12      :         Copy  of proceedings of Deputy Excise Commissioner, Kollam.

Ext.D13      :         Copy of receipt

Ext.D14      :         Copy of letter dated 28.03.15

Ext.D15      :         Copy of letter dated 08.05.15

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Forwarded/by Order

           Senior Superintendent