Tamil Nadu

Nagapattinam

CC/2/2014

A.Rajarathinam - Complainant(s)

Versus

The Manager, Shriram City Union Finance Ltd and One anther. - Opp.Party(s)

In Person

31 Jul 2014

ORDER

Date of Filing       : 22.07.2013

                                                                                       Date of Disposal: 31.07.2014

                                                                   

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com.,   ….  MEMBER I

               Tmt. R.GEETHA, B.A.,                             …. MEMER II

 

 

CC. No.02/2014

 

DECIDED ON THIS   31^st   DAY OF JULY  2014.

 

 

            A.Rajarathinam,

            S/o N.Appasami

            No.40, Pillaiyar Koil street,

            Kadambadi,

            Nagapattinam  District.                                               …..      Complainant

                                                                                                  

                                                                /versus/

                                   

1.   The Manager,

Sri Ram City Union Finance Ltd.,

          Surya Tiles Backside,

           Neela South Street,

            Nagapattinam .

2. The Manager,                                                            

Dealer - Hero Motor Cycle,

Bharathiyar  Road,

Karaikal.                                                                     ….. Opposite parties

   

 

            This complaint having come up for final hearing before us on 14.07.2014, on perusal of the material records and on hearing the arguments of Thiru.Rajarathinam, the complainant  in person, Thiru.Balaji counsel for the 1^st opposite party and 2^nd opposite party having been set parte and having stood for consideration, till this day the Forum  passed the following

 

      ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection  Act 1986. 

                        2. The gist of the complaint filed by the complainant is that the complainant having purchased two wheeler Motor Cycle from the 2^nd opposite party availing a loan of Rs.28000/- from the 1^st opposite party, discharged the entire loan due to the latter and when asked for the return of the Registration Certificate, duplicate key and other documents relating to the vehicle, the 1^st opposite party failed to return the said documents and hence he filed a complaint in CC.No.32/13 on the file of this Forum, and as  the 1^st opposite party took the defence that he was bound to issue only the loan clearance certificate and the other documents such as the registration certificate, etc. were with  the 2^nd opposite party and the complaint was not maintainable, based on his defence this Hon’ble Forum dismissed  the said complaint on 23.12.2013 with a direction to the complainant to proceed against the 2^nd opposite party to file a fresh complaint within 45 days from the said date of dismissal of the earlier complaint.  When the complainant approached the 2^nd opposite party, the latter told him that no documents were available with them and all the documents including the registration certificate, insurance certificate, etc., where already received by the 1^st opposite party and the 2^nd opposite party also gave a copy of the extract from the Register maintained by them to evidence the receipt of said documents by the 1^st opposite party from them and hence this complaint is filed against the 1^st opposite party again impleading the 2^nd opposite party to have a binding adjudication. The 1^st opposite party is bound to deliver the duplicate key, registration certificate, insurance certificate and other documents related to the two wheeler vehicle and to pay Rs.30000/- towards compensation for the mental agony, hardship and the expenses caused to the complainant owing to the deficiency of service of the 1^st opposite party.

                        3. The gist of the written version filed by the 1^st opposite party is that the complaint is not maintainable u/s 11 of the Code of Civil Procedure i.e. the doctrine of resjudicata, since the earlier complaint filed by the complainant against the opposite party in CC.32/13 on the file of this Forum had been dismissed and as the Forum has already given a finding that this opposite party is not in possession of the RC Book, original key and other documents relating to the vehicle.  However after the dismissal of the said earlier complaint the opposite party’s staff  out of humanity approached the 2^nd opposite party and found that RC Book had not been taken delivery   by the complainant and  the same was handed over to the 1^st opposite party staff for the delivery of the same to the   complainant and the 1^st opposite party has produced the RC Book, no objection certificate, etc., before this Hon’ble Forum and entrusted  the same to the complainant and he is ready and willing to help the complainant to cancel the hire purchase endorsement in the RC Book.  Therefore the complaint is liable to be dismissed against the 1^st opposite party with the exemplary cost.

4. The complainant filed his proof affidavit in proof of his claim and has filed two documents which are marked as Exhibits A1 to A2.  The 1^st opposite party has filed his proof affidavit as well as his written arguments.  The 2^nd opposite party had sent his written version by post and hence it was returned to him by this Forum under registered post with acknowledgement card due, with instructions to him to file it either in person or through an Advocate, failing which he shall be set expate on the subsequent hearing date.  As he did not file the written version either in person of through an Advocate he was set exparte on 05.05.2014.  Subsequently the 2^nd opposite party’s official appeared before this Forum in person on 03.06.2014 and wanted to file objections in writing. As the 2^nd opposite party was already set exparte this Forum instructed the official to file his written version with a petition to set aside the exparte, order passed against him.  But the said official did not follow the instructions of this Forum and the 2^nd opposite party has continued to remain exparte.

5. Points for determination in this case are:-

           1)  Whether the complaint is barred by the doctrine of resjudicata?

                       2) Whether there is deficiency of service on the part of the opposite parties?

                       3) Whether the complainant is entitled to any relief? If so to what?

 

6. Point 1: The learned counsel for the 1^st opposite party argued that the complaint filed by the complainant seeking the very same relief claimed in this complaint  as against this opposite party in CC.32/13 had been dismissed by this Forum on merits on 23.12.2013 and therefore the complaint filed for the very same relief is not maintainable as it is hit by the doctrine of resjudicate as per section 11 of the Code of Civil Procedure.  The said contention is not at all acceptable by this Forum for the reason that the 2^nd opposite party was not a party in the earlier complaint in CC 32/2013 and therefore the issue decided therein cannot be said to be directly and substantially in issue between the same parties and therefore the order of dismissal of the earlier complaint, would not be binding on this complaint, which is filed against the 2^nd opposite party as well as per the direction given in the order of the said CC.32/2013. Therefore this complaint is not barred by the doctrine of resjudicata.

                        7. Point 2:  The another argument put forth by the learned counsel for the 1^st opposite party is that this Forum has already given a finding in the 7^th paragraph of its order passed in the said CC.32/2013, that the 1^st opposite party is not in possession of the RC Book and original key and dismissed the complaint.  While so another complaint for the very same relief would definitely cause utter miscarriage of justice.  The said contention is also not at all acceptable for the reason in the order passed in the said CC.32/13, the finding that the 1^st opposite party was not in possession of the registration certificate and the key of the Motor Cycle was  given based on the unilateral defence taken by the 1^st opposite party who was the sole opposite party in that complaint.  But the said defence taken by the 1^st opposite party in the said CC 32/13 is totally  a false and misleading one stands proved in this complaint on the following grounds:-

                        a). The complainant has filed Exhibit A2, the copy of the extract given by the 2^nd opposite party from the Register maintained by him, and it is brought to light that the 1^st opposite party has received the RC Book and Insurance certificate from the 2^nd opposite party as early as on 24.11.2012.  The said Exhibit A2 has been filed by the complainant along with the complaint itself as document no.2 at the time of filing of the complaint itself. In the proof affidavit of the 1^st opposite party at the last but one paragraph he has affirmed as follows “even after the perusal of documents filed by the complainant it will be apparent that the RC Book has been received after passing of the order in CC.32/2013, therefore the complaint as against the opposite party is not maintainable and same as to be dismissed in limine”.  But the scrutiny of Exhibit A2 reveals that the official of the 1^st opposite party has subscribed his initial in the said Register on 24.11.2012 in evidence of his receipt of the registration certificate and the insurance certificate from this 2^nd opposite party.  The order passed by this Forum in CC 32/2013 is filed as Exhibit A1and that order was pronounced on 23.12.2013.  Therefore it is in evidence that the 1^st opposite had been in possession of the registration certificate and the insurance certificate, even at the time of the inquiry on the said complaint in CC.32/2013 and he has wantonly taken a totally false and misleading defence contending that the RC Book and the insurance certificate were not at all in his possession.

                        b). Another circumstance which establishes that the registration certificate of the Two Wheeler had been in possession of the 1^st opposite party is that on 21.04.2014, the registration certificate, the clearance certificate and Form no.35 had been filed along with the written version of the 1^st opposite party and they had been received by the complainant through this Forum on his filing the memo to that effect.  The complainant having received the registration certificate and the insurance have waived his claim for the said documents, but has restricted his claim only for compensation of Rs.30000/- from the 1^st opposite party with interest.  Had the 1^st opposite party been not in possession of the registration certificate and the insurance certificate of the vehicle he need not have filed them along with his  written version but instead ought to have resisted the claim of the complainant as against him with tooth and nail.

                        8. The reason given by the 1^st opposite party both in the written version as well as in his proof affidavit for handing over of the said documents to the complainant is that “ after the dismissal of the complaint this opposite party’s staff out of the humanity has approached the 2^nd opposite party and found that RC Book has not been taken delivery by the complainant and the same is handed over to this opposite party’s staff for the delivery of the same to the complainant”. 

                        9. While the 1^st opposite party has sent the staff in pursuit of the registration certificate and the other documents of the complainant with the 2^nd opposite party that too after dismissed of the earlier complaint in CC 32/2013 out of humanity, what prevented him to exercise his alleged humanitarianism to get back the said documents from the 2^nd opposite party and hand them over to the complainant even during the pendency of the said  earlier complaint in CC 32/2013 itself, is a billion dollar question to be answered by him.  It is pertinent to note that the 1^st opposite party has not disputed the genuineness of the Exhibit A2 in his written version though his learned counsel has made an attempt to challenge the genuineness of it, but in vein, in view of the fact that the said document had been filed along with the complaint itself for his scrutiny. 

                        10. Further the 1^st opposite party has not established  as to when exactly he approached the 2^nd opposite party and received  back the registration certificate and the insurance certificate as alleged by him, after the dismissal of the earlier complaint in CC.32/2013.  While the 1^st opposite party could neither disclose the date of his receipt of the registration certificate and insurance certificate from the 2^nd opposite party, nor disprove the genuineness of Exhibit A2,  it  stands proved that his staff has received the registration certificate and insurance certificate from the 2^nd opposite party as early as on 24.11.2012 itself and he had taken totally a false and misleading version in the earlier CC.32/2013 on the file of this Forum and has caused the dismissal of the said complaint in an unjust manner.  Therefore the 1^st opposite party having been already in possession of the registration certificate and the insurance certificate has wantonly failed to hand them over to the complainant, despite the discharge of the entire loan due to him.  It is also pertinent to note that the 1^st opposite party had not  issued the no objection certificate to the complainant, soon after the dismissal of the said complaint in CC.32/2013 in spite of the assurance given by the learned counsel for the opposite party therein to issue the said certificate to the complainant immediately and it is also field only along with his written version  in this complaint, to be handed over to the complainant on 21.04.2014. Therefore it is sheer deficiency of service on the part of the 1^st opposite party who has wantonly refrained from returning the registration Certificate and the insurance certificate to the complainant, unnecessarily and unjustifiably despite the discharge of the loan by him.

                        11. The 2^nd opposite party who ought to have appeared before this Forum either in person or through an Advocate and filed his written version and proof affidavit in support  of the claim of the complainant, who is his customer as well as consumer, has failed to do that and has remained exparte.  Therefore that is also deficiency of service on his part.

                        12. Point 3: In the result the complaint is allowed.  The 1^st opposite party is directed to pay the sum of Rs.30000/-(Rupees thirty thousand only) towards compensation for the mental agony, hardship and expenditure caused to the complainant owing to his deficiency of service, within 30 days from the date of this order, failing which the said amount shall carry an interest at the rate of 12% per annum.  The 2^nd opposite party is directed to pay the sum of Rs.5000/-(Rupees five thousand only) to the complainant towards compensation for his deficiency of service in this regard, within 30 days from the date of this order, failing which the said amount shall carry an interest also at the rate of 12% per annum from the date of this order, till the date of its realization.

This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this  31^st    day of  July 2014.

 

 

 

    MEMBER I                                    MEMER II                                   PRESIDENT

 

 

 

 

List  of document   filed by the complainant

 

Ex.A1/Dt.23.12.2013: Xerox copy of the order passed in CC 32/2013 on the file of this

    Forum.

Ex.A2/Dt.19.09.2011 :   The Xerox copy of the extract given by the 2^nd opposite party

to 09.02.2012 :     from the Register maintained  by him.

 

 

             

 

MEMBER I                                    MEMER II                                       PRESIDENT

 

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.02/ 2014

Order Dt:31.07.2014.