Orissa

Jajapur

CC/72/2015

Prabodh Kumar Mohanty - Complainant(s)

Versus

The Manager Bike Point(p) Ltd - Opp.Party(s)

17 Mar 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                                                                      

                                                    Dated the 17th day of March,2017.

                                                      C.C.Case No.72 of 2015

Probodh Kumar Mohanty , S/O Bansidhar Mohanty

Vill-Dandisahi (Mallikapur ) ,  P.S. Mangalpur

 Dist. Jajpur                                                                                                                       …………Complainant.       

   Versus.

1. The Tax Recovery Officer-cum-Regional Transport Officer, Cuttack,

    P.O/Dist. Cuttack

2. The Manager Mahindra Finance, Mahindra and Mahindra Financial Service Ltd.

    At. Patharpada (Panikoili) P.O./P.S. Panikoili, Dist. Jajpur.

                                                                                                                     ……………..Opp.Parties.                  

For the Complainant:                                            Sri M.K. Mohapatra, Mrs. P. Kar , Advocates.

For the OPP.Parties :No.1                                      Sri P.K.Panda, (A.G.P)

For the Other OPP.Parties:No.2.                            Sri B.K. Tripathy, Advocate.                                .

                                                                                                        Date of order: 17.03.2017.

SHRI JIBAN BALLAV DAS , PRESIDENT.    

            The petitioner asserting deficiency of service filed this case for redressal of his grievance.

                        On 22.02.06 the petitioner has purchased on Model Max Pick Up Van FBBS-11, colour white financed by Mahindra finance Service Ltd who is O.P no.2 in this case. For a consideration  amount Rs.93,194/- the cost of the vehicle being Rs.4,61,510/- . The  Max Pick Up Van was booked vide No.167/05 and cheque No.045738  which was financed by United Bank of India, Boulanga Branch P.S. Mangalpur Dist.Jajpur with an amount of Rs.3,47,000/- and finance charges Rs.1,14,510/-  total Rs.4,61,510/- cost of the vehicle.  The petitioner regularly paid the installment amounting to Rs.7,820/-to O.P.no.2( Mahendra and Mahendra Finance Company) as per agreement No.424437(27). The petitioner paid the installment amount from the period on 01.07.09 to 30.09.2009  to O.P.no.2 and subsequently surrendered the  Max Pick Up Van to Mahendra Finance Office, Panikoili ,Jajpur but no acknowledgement was given by O.P.no.2 after surrendered of the vehicle . On 05.01.10 the O.P.no.2 send a letter to the petitioner to pay Rs. 15,174/- as tax for the period of 01.01.14 to 30.09.15.  It is averred  by the petitioner that after surrender of the vehicle to O.P.no.2 the R.T.O, Cuttack  never issued any information and the O.P No.2 the financer sold the Pick Up Van to Narendra Nath Ojha ,Balasore  without the knowledge of the petitioner . Thus after 5 years back the surrender of the vehicle to O.P.no.2,  the petitioner  was pressurized  to pay the Tax amount to the R.T.O for which he is not liable to pay . It is  further contention of the  petitioner that at the time of surrender  neither the O.P.no.1 or O.P.no.2 ever inform to the petitioner about the pending tax 5 years back. As such the petitioner is not liable to pay the tax amount of Rs.15,174/- which is illegal and unlawful . Therefore, it is the plea of the petitioner that the O.P.no.2 who is liable to pay the tax amount and not the petitioner . Hence the prayer of the petitioner to waive the amount of Rs.15,174/- and the petitioner also sustained loss of Rs.50,000/- . Hence the case of the    petitioner which is supported by an affidavit.                  

           The contention of O.P.no.1 is that the petitioner  is not a consumer . He is a tax payer of Govt.Tax   but he is not entitled to any relief.  It is submitted by O.P.no.1  that the vehicle No.0R-05W-7405 was registered in the name of the petitioner of Sri Prabodh kumar Mohanty on 06.03.2006 with financial assistance of Mahindra and Mahindra Financial Service Ltd. Cuttack M.V Tax  and tax has been deposited till 30.12.13 .In response to the demand notice issued by O.P.no.1 to the petitioner, it was  informed that the vehicle was surrendered by the petitioner before the O.P.no.2 (the financer), on 22.12.09 vide Annexture-1 and enclosed the seizure letter vide Annexture-2 .After receipt of the reply from the petitioner the financer has been arrayed as Co.Cdr and accordingly notices were issued to financer under schedule-11 of O.M.V.T Act . It is also contention of O.p.no.1 that the O.P.no.2 who is financer of the vehicle have taken possession of the vehicle from the owner on 22.12.09  and never followed the procedure as per the provisions of U/S 51(5) of M.V.Act 1988. Now the ownership of the vehicle stands in the name of Sri prabodh kumar Mohanty which has not been transferred to any other name.

                      The contention of O.P.no.2 is that out of 59 installments the petitioner paid 19 installments and became a defaulter in the year April-2008 and admitted that on 18.12.09  the petitioner surrendered the vehicle with O.P.no.2 and asked the petitioner to clear the loan amount

within 7 days. Due to inaction of the petitioner and being empowered as per the loan agreement the hypothecated  vehicle was  sold in public auction to Narendra Ojha  on 26.02.10  and this fact was also informed  to R.T.O ,Cuttack vide Annexture-E/2  and the  learned counsel for O.P.no.1 stated that the O.P.no.2 never inform about the Public Auction of  Hypothecated vehicle. It is also admitted by O.P.no.2 that the O.P.no.1 vide letter No.1008(2)(TRC) dt.07.08.15  as the petitioner as well as O.P.no.2 the financer demanding Rs.15,174/- as unpaid tax from the period 01.01.14 to 30.9.15               

           The grounds taken by the O.P.no.2 is that the petitioner is not a consumer and not entitled to any relief as per the decision of the Hon’ble Apex Court in Laxmi Engineering Works Versus PSG Industries Institute reported in (AIR-1995-SC-1428).

                   The O.P also contended that the petitioner has not clarified that as to how he suffered deficiency of service .Hence he is not entitled to any relief in view of the decision reported in Hon’ble National Commission in the case of RAM DESHLAHARA-VERSUS-MAGMA LEASING LTD,      (III (2006) CPJ-247 (NC) )

         It may be noted that the vehicle has been sold by O.P.no.2 to Narendra Nath Ojha through a public auction on 26.02.10 vide Annexture-E/2. The O.P.no.2 has informed the authorities about the sale of the vehicle on 26.02.10 .Hence no liabilities can be fastened  with O.P.no.2. The O.P.no.2 also placed reliance in a decision reported in Transport Commissioner-Versus-Ashok Ranjan Mohanty-2002(7)SBR 165 and Hon’ble High Court of Orissa Bachan Singh-Versus-The Road Transport Officer,Rourkela,Sundargarh and others reported in 2009(II) OLR-183. It is submitted that original owner is liable to pay the tax and not Naredra Nath Ojha  the auction purchaser.

                      On the above submission of the parties it is to be cristal clear whether the petitioner is a consumer and whether the petitioner is liable to pay Rs.15,174/-  as arrear tax as argued by the learned counsel for O.P.no.1.

Considering  the   allegation and counter allegation of the rival contesting parties ,   there is no dispute on the above fact that the petitioner has suffered  deficiency of service due to material irregularities and  inaction  of the O.P.no.2 (the financer) of the vehicle . The contesting O.P.no.2 admitted that the petitioner surrendered the vehicle on 22.12.09 with O.p.no.2 and on 26.02.10 the vehicle was put to auction by O.P.no.2 and was purchased by Narendra Nath Ojha on 26.02.10 ,there is no dispute about this fact. There is no scrap of paper to indicate that this matter was reported to O.p.no.1 (The R.T.O) Annexture-E/2 filed by O.P.no.2 dt.10.03.10. go to show that the

O.P.no.2 stated that they have no objection in cancellation of Hypothecated the endorsement of the above vehicle only .

                 After hearing the arguments of both the sides there is much force in the argument                     of the petitioner , who stated that demand notice for Rs.15,174/- was issued to owner of  vehicle.  The petitioner has  informed that he has surrendered the vehicle on 22.12.09 vide Anexture-2 to  the O.P no.2 . The O.P.no.2 has put the vehicle on  public auction taken   from the petitioner on 22.01.09 and not  followed the procedure  of M.V.Act-1988 nor the ownership have been changed from  Pramod  kumar  Mohanty to Narendranath Ojha as revealed from the letter dt.23.09.15 of the Tax recovery Officer-cum-Regional Transport Officer, Cuttack .         

   After meticulous examination, of the stand taken by both the parties and the letter dt.23.09.15 of Tax Recovery Officer-cum-Regional Transport Officer ,Cuttack,  the cloud wither away and it is made cristal clear that the O.P.no.2 though placed reliance to Annexture-D/2 dt.26.02.10 and Annexture-E/2 dt.10.03.10 the financer appears to be careless and grossly negligent by not informing the O.P.no.1 regarding the auction sale of the vehicle and change of name of the petitioner to Narendra nath Ojha which comes under the jurisdiction of O.P.no.2 and not the petitioner . Thus from the documents and arguments of the learned counsel  for O.P.no.1 it is cristal clear that the O.P.no.2  out of  negligence   proper service was not made to the petitioner resulting in filing of the present dispute and putting the petitioner to  harassment .

Thus mere cancellation of hypothecation by O.P.no.2 is not sufficient. It was the lawful duty of O.P no.2 to inform the O.P.no.1 about the auction sale of the vehicle in question and got the same registered  in the name of the auction purchaser. Therefore the O.Pno.2 utterly failed  to discharge its lawful duty.  Therefore  the petitioner is not held liable to pay the arrear tax.    

Hence this order

The prayer of the petitioner is allowed against the O.P.no.1 and 2.  No cost. The O.P.no.2 is directed to pay the arrear tax to the O.P.no.1 and also pay Rs.10,000/- (ten thousand) towards harassment, mental agony and litigation charges to the petitioner within one month after receipt of this order in view of the observation of Hon’ble Supreme Court reported in 2004(2) C.L.T-628-S.C, wherein it is held that :

“The C.P.Act has a wide reach and the commission/ Forum have jurisdiction even in     cases of service rendered by statutory and public authorities, such authorities became liable to compensate for misfeasance in public office i.e an act which is oppressive or capricious or arbitrary or negligent providing loss or injury is suffered by a citizen “.

failing which the complainant is at liberty to take shelter as per law.                                                                      

This order is pronounced in the open Forum on this the 17th day of March,2017. under my hand and seal of the Forum