BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 30/2008 Filed on 11.02.2008

Dated : 30.06.2010

Complainant:

Sasikumar. P, S/o Appakunhi, Latha Nivas, Palakkunnu P.O, Bekkal, Kasargode District.

(By adv. G. Bhuvananchandran Nair)

Opposite parties:

1. The Manager, Century Bank of Punjab, P.M.G. Junction, Law College Road, Thiruvananthapuram, now HDFC Bank.

    

   (By adv. T. Rajesh)

Addl. 2^nd opposite party:

2. Chacko Joseph, Korathara, Veedu, Kurisummoodu P.O, Changanassery.

(By adv. S. Premkumar)

This O.P having been heard on 14.06.2010, the Forum on 30.06.2010 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The facts which gave rise to the filing of the complaint are briefly stated as under: The 2^nd opposite party had purchased a JCB 3D Excavator with registration No. 05T 2987 from India Techs Ltd. with the financial assistance of 1^st opposite party. The cost of the excavator was Rs. 17,33,488/- for which value added tax of 12.5% to the tune of Rs. 2,16,686/- also collected by vendor. The excavator stands hypothecated with the 1^st opposite party. Mr. Chacko Joseph, original purchaser committed default in payment of loan due to which 1^st opposite party repossessed the excavator to recover dues. Thereafter to satisfy the outstanding, the bank sold the excavator to the complainant collecting a total sum of Rs. 14,15,000/-. Accepting the sum, the opposite party issued payment receipt to the complainant. Thereafter 1^st opposite party gave delivery of the excavator on 20.01.2007. At the time of delivery the 1^st opposite party has not chosen to give at least a photocopy of the R.C book. Legally, the bank is to keep the R.C Book with them and same is to be handed over to the purchaser. The complainant purchased the excavator as the only source of his and his family's livelihood. And there is no other source or income to pull on his family and the complainant had spent all his and his family's earnings for purchasing the vehicle. Against the assurance of transferring of registration of JCB in one month inspite of collecting the expenses for the same, registration was not transferred. As a matter of fact, 2^nd opposite party filed a complaint before Consumer Disputes Redressal Forum, Kottayam as C.C. 16/07 and obtained interim injunction order on 19.01.2007 against the 1^st opposite party abstaining them from transferring the registration. This has been deliberately suppressed by the 1^st opposite party and sold the vehicle on 20.01.2007 to this complainant. The intention of the 1^st opposite party is to get unfair advantage by misrepresenting the fact. Due to the order of injunction this complainant was not in a position to get it transfer the vehicle, due to which complainant had to experience manifold inconveniences and financial loss. Since the taxation authority had detained the vehicle, the complainant had to pay an amount of Rs. 3,53,750/-. After paying that amount, complainant had approached the Hon'ble High Court as WP(C) No. 4397/07. Following judgement passed therein, the enquiry concluded by CTO Kasaragod had ordered to return Rs. 2,2,8,940/-. As double the tax, in the form of penalty, a sum of Rs. 1,24,810/- is detained by the department. This complainant is entitled to get that amount from the 1^st opposite party. For prosecuting alone, this complainant had spent an amount of Rs. 50,000/-. The 1^st opposite party is liable to pay that amount also to the complainant. The 1^st opposite party had sold the excavator by suppressing the interim order passed by Consumer Redressal Forum, Kottayam in C.C 16/07 and even after receiving the communication the 1^st opposite party has not chosen to get the order vacated. It had caused great mental panic to this complainant. The complainant could not use the vehicle even for a single day and earn a rupee due to non-delivery of R.C Book as the said JCB cannot be run on the road without valid R.C Book as per the provisions of the statute and thus the vehicle is being kept idle in the compound of the complainant for the last 24 months even without moving, which causes untold sufferings and damages not only to the complainant but also to the members of his family. The aforesaid act of the 1^st opposite party amounts to unfair trade practice as well as dereliction of duty. Hence this complaint for refund of the price of the vehicle along with compensation and costs.

The 1^st opposite party has filed their version contending as follows: The averment that the JCB hired by one Mr. Chacko Joseph was repossessed and put to auction by this opposite party and the same was agreed to be purchased by the complainant are true. The averment that while the excavator was being transported the Sale Tax Officer intercepted and subsequently issued notice to recover Rs. 3,53,750/- which the complainant had paid are denied. All the prospective buyers were required not to take the excavator out of the parking yard without all the papers pertaining to the same. The averment that the opposite party assured the transfer of registration of JCB would be effected within one month and additional amounts were collected for the same is not correct. The purchasers were appraised of the fact that the original of the R.C Book is with the hirer and transfer of ownership could be effected only after getting fresh R.C Book from the authorities. The averment that Chacko Joseph filed a complaint before the Consumer Redressal Forum Kottayam as C.C. 16/07 and obtained an interim order of injunction on 19.01.2007 is true. The order of the injunction which had been obtained by Chacko Joseph on 19.01.2007 was communicated to this opposite party only after the sale of the vehicle had been made to the complainant herein. The complainant cannot be heard on the complaint that he was forced to keep the vehicle idle for 10 months and the same is due to proceedings initiated by the hirer. The sale of the vehicle was done after appraising all the purchasers about the fact that the vehicle is a repossessed one which resupposes all the litigations the hirer would initiate. The averment that opposite party had sold the excavator by suppressing the interim order in C.C 16/2007 and even after receiving the communication not chosen to vacate the order are not correct. The complainant is not a consumer as defined under the Consumer Protection Act as he purchased the excavator for reselling the same anticipating that he could procure the second hand JCB which had been repossessed by the bank for a faulty sum as the sale is couped with all the risks involved in it. The complainant is not entitled to any amount as compensation as he is not a consumer as defined under the Act. The excavator has been purchased for commercial purpose. The averment that the complainant had spent Rs. 14,15,000/- as the price of the vehicle and total sum of Rs. 15,39,810/- for the vehicle and could not use the same for a single day is not correct and hence denied. The contention that since R.C book is not obtained the JCB can run on road is not correct as the complainant was fully aware that the machinery is repossessed one and there is every chance that the defaulter moving against the bank. The contention that this opposite party is not the registered owner of the vehicle and as such have no right to dispose of the same is not correct as this matter was well within the knowledge of the complainant when he participated in the auction and got the machinery for a walkway persay. The contention that the act of the opposite party amounts to unfair trade practice and dereliction of duty which comes under the purview of the Consumer Act is not correct and hence denied. The complainant is not a consumer and as such he is not entitled to move this Forum because the purchase of the machinery was for the commercial purpose which is outside the purview of the Consumer Protection Act.

The 2^nd opposite party was subsequently impleaded and he has filed his version contending as follows: The statement that the 1^st opposite party had repossessed the JCB as the 2^nd opposite party had defaulted the instalment is not true. The 1^st opposite party had collected the instalments through their agent. In furtherance to the non-issuance of receipt by the agent for the payment of Rs. 25,000/- by the complainant in September 2006, certain installments were defaulted and it was under this circumstance the 1^st opposite party unilaterally repossessed the JCB. Subsequently the 1^st opposite party in collusion with the complainant had transferred the JCB to the complainant and fabricated documents regarding the same. The 2^nd opposite party came to know that the 1^st opposite party Bank has applied for a duplicate Registration Certificate from the transport authorities. So, the malicious intention of the 1^st opposite party became clear. Immediately, the 2^nd opposite party filed a complaint vide C.C 16/07 before the Consumer Disputes Redressal Forum, Kottayam, seeking a direction to the 1^st opposite party not to transfer the JCB excavator to anybody, till the disposal of the complaint. The CDRF, Kottayam passed an interim order restraining the 1^st opposite party from transferring the JCB-excavator to anybody, till the disposal of the complaint. The 1^st opposite party wilfully did not accept the said order of the Kottayam CDRF. The 1^st opposite party colluded with the complainant and made fraudulent documents and transferred and handed over the JCB-excavator to the complainant in this complaint illegally. Subsequently, this complainant was arrayed as the 2^nd opposite party in the complaint before the CDRF, Kottayam. The complaint pending before the C.D.R.F Kottayam is at its final stage. Even then, the complainant in this complaint filed this complaint before this Hon'ble Forum. This opposite party has no objection to this complainant securing any compensation from the 1^st opposite party. Hence the 2^nd opposite party prays that no liability be fastened upon the 2^nd opposite party and to dismiss the complaint against 2^nd opposite party with costs.

Complainant has filed affidavit and has been examined as PW1, marked Exts. P1 to P12. Opposite parties had no evidence.

From the contentions raised, the following issues arise for consideration:

1. Whether the act of the 1^st opposite party amounts to deficiency in service or unfair trade practice?

2. Whether the complainant is entitled for compensation as claimed in the complaint?

3. Reliefs and costs.

Point (i):- Admittedly, the complainant had purchased the JCB in dispute from the 1^st opposite party in auction sale. The 1^st opposite party has taken out a contention in their version that, as the said JCB has been purchased for commercial purpose and for resale, the complaint will not come under the purview of Consumer Protection Act. Despite the said contention in the version, no evidence has been adduced by the 1^st opposite party to substantiate the same. The complainant has pleaded that the same has been purchased for earning his livelihood. The said pleading stands uncontroverted in the absence of any evidence from the side of the 1^st opposite party to prove otherwise. In Ext. P1 the complainant has declared that the vehicle has been purchased for his personal use. Moreover no evidence has been brought in to support their contention that the JCB in dispute has been purchased for resale. Considering the above, we find that the complaint is maintainable before the Forum and the complainant is a consumer as stipulated in the Consumer Protection Act.

The complainant has pleaded that he had spent Rs. 14,15,000/- towards the price of the vehicle and Rs. 1,24,810/- as sales tax and he could not use the vehicle even for a single day due to non-delivery of R.C Book and thus the vehicle has been kept idle in the compound of the complainant for the last 24 months even without moving. The complainant has further pleaded that the 1^st opposite party has sold the excavator by suppressing the interim order passed by the Consumer Disputes Redressal Forum, Kottayam in C.C 16/07, restraining the 1^st opposite party from selling the aforesaid vehicle. The 1^st opposite party has contended that the above referred interim order of injunction is true, but the same was communicated to this opposite party only after the sale of the vehicle to the complainant. Furthermore it has been contended in their version that the order of the Hon'ble High Court regarding refund of Rs. 2,28,940/- is not correct as the bank was not made a party in the proceedings.

We have gone through the documents on record. Exts. P1 & P2 evidences the payment of Rs. 14,15,000/- and the delivery of the vehicle to the complainant from Centurion Bank of Punjab Ltd. As per Ext. P3 it could be seen that Rs. 3,53,750/- has been paid by the complainant to the commercial taxes department for transport of JCB 3D Excavator without valid records. Furthermore the said amount of Rs. 3,53,750/- has been reconsidered and imposed penalty of Rs. 1,24,810/- which is to be adjusted from Rs. 3,53,750/- collected as per Ext. P3 and the balance of Rs. 2,28,940/- has been ordered to be refunded. From the above it is evident that the complainant had to pay Rs. 1,24,810/- towards sales tax as averred in the complaint. The 1^st opposite party has taken out a contention in their version that the injunction order was communicated to them only after the sale of the vehicle to the complainant. Ext. P8 is the order of the Kottayam C.D.R.F wherein, the interim order in I.A 30/07 has been extended till disposal of the original petition. But Ext. P8 order reads as “Petitioner represented. Opposite party absent. No representation. No objection filed against the interim order. Hence interim order extended till disposal of the original petition”. From the above it could be found that the opposite party never filed any objection to the interim application and there was no representation on their part also. Furthermore it has been stated as interim order in I.A 30/07 extended till disposal of the original petition, wherein it is implied that already there was an interim order and it has been further extended as the opposite party was absent and as there was no representation nor any objection filed by opposite party. From the foregoing discussions it is very hard to believe that the opposite party received the communication regarding interim injunction only after the sale of the vehicle as the opposite party has willfully not appeared before the Forum in the case referred supra though the 1^st opposite party had the knowledge of pendency of such an I.A.

The learned counsel for the complainant had argued that the vehicle has not been registered in the name of the complainant and the R.C Book has also not been issued to the complainant. The complainant relied on Sec. 51 of the Motor Vehicles Act, 1988 which reads:- Special provisions regarding motor vehicle subject to hire purchase agreement etc. where Sec. 51(5) says “where the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement, satisfies the registering authority that he has taken possession of the vehicle from the registered owner owing to the default of the registered owner under the provisions of the said agreement and that the registered owner refuses to deliver the certificate of registration or has absconded, such authority may, after giving the registered owner an opportunity to make such representation as he may wish to make (by sending to him a notice by registered post acknowledgement due at his address entered in the certificate of registration) and notwithstanding that the certificate of registration is not produced before it, cancel the certificate and issue a fresh certificate of registration in the name of the person with whom the registered owner has entered into the said agreement”. The complainant has sworn that though the 1^st opposite party had assured the complainant that the registration would be transferred to his name within one month of its transfer after collecting the expenses for the same, the 1^st opposite party dragged the same and only on 18.04.2007 the 1^st opposite party had submitted the application to the R.T.O. From Ext. P4 it can be seen that only on 18.04.2007 the application from Centurion Bank of Punjab has been received by the joint R.T.O for the vehicle sold on 20.01.2007. the delay for the same has not been explained or substantiated with evidence by the 1^st opposite party. As per Ext. P4, it could be implied that, the 1^st opposite party has informed the R.T.O that the vehicle has been garaged at the yard of the Financier at Latha Nivas, Palakkunnu P.O, Bekkal, Kasargode. But it is very pertinent to note that the said address is the residential address of the complainant and not the yard of the financier as mentioned in Ext. P4. Hence we find that the above said act of the 1^st opposite party in selling the vehicle to the complainant pending interim order definitely amounts to unfair trade practice and deficiency in service on their part.

Point (ii):- It is a fact that JCB cannot be run on the road without proper papers including R.C Book. In this case the poor consumer has been harassed, burdened and handicapped with a JCB which could not be plied on road for want of documents and due to the dereliction of duty on the part of the 1^st opposite party. The agony of such consumers cannot be commuted in terms of money. A vehicle like JCB in dispute has been kept idle in the complainant's house. One can understand the practical difficulties faced by such consumers. The JCB purchased by the complainant for earning his livelihood could not even be plied for a single day, whereby he has been restrained from earning his livelihood solely due to the wilful negligence and dereliction of duty on the part of 1^st opposite party.

From the foregoing discussions we allow the complaint. The complainant is found entitled for refund of Rs. 14,15,000/- with 9% interest from 20.01.2007 till realisation along with refund of Rs. 1,24,810/- deposited towards sales tax with 9% interest from 26.01.2007 till realisation from the 1^st opposite party. This is a case wherein an innocent consumer has been knowingly deceived by the 1^st opposite party. This complainant has been harassed and still suffering for no fault on his part. For this wilful act of the 1^st opposite party the complainant has to be definitely compensated, even though interest has been ordered, for which we find an amount of Rs. 30,000/- as reasonable.

In the result, complaint is allowed. The 1^st opposite party shall refund Rs. 14,15,000/- with 9% interest from 20.01.2007, Rs. 1,24,810/- with 9% interest from 26.01.2007 along with a compensation of Rs. 30,000/- and cost of Rs. 5,000/- to the complainant within a period of one month from the date of receipt of the order failing which execution proceedings can be initiated. 2^nd opposite party is exempted from any liability. On payment of the entire amount to the complainant by the 1^st opposite party, the 1^st opposite party shall take back the JCB from the house of the complainant at the cost of the 1^st opposite party itself.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

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C.C. No. 30/2008

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Sasikumar

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of delivery receipt dated 20.01.2007

P2 - Photocopy of letter dated 20.01.2007.

P3 - Receipt for payment of money.

P4 - Photocopy of letter dated 17.05.2007.

P5 - Photocopy of judgement from the High Court of Kerala.

P6 - Photocopy of judgement from High Court of Kerala.

P7 - Photocopy of judgement from the High Court of Kerala.

P8 - Copy of judgement from Kottayam CDRF

P9 - Copy of payment receipt dated 20.01.2007.

P10 - Copy of payment receipt dated 22.01.2007.

P11 - Photocopy of proceedings of the Commercial Tax Officer.

P12 - Photocopy of letter dated 02.01.2007.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT