THE DISTRICT CONSUMAR DISPUTES REDRESSAL FORUM No.419, Ist Floor,. H.N. Gowda Building, M.B.Road, Kolar-563101 consumer case(CC) No. CC/08/87
Mr.Anand kumar
...........Appellant(s)
Vs.
The Asst. General Manager The Managing Director
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 22.10.2008 Disposed on 22.07.2009 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 22nd day of July 2009 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 87/2008 Between: Mr. Anand Kumar, S/o. Bache Reddy, Marasanahalli Village, Gundlagurki Post, Chikkaballapur Taluk. (By Advocate Sri. Sama Rangappa and Others ) .Complainant V/S 1. The Managing Director, Bharat Earth Movers Ltd., 2. The Asst. General Manager, Bharat Earth Movers Ltd., Marketing Division, BEML Soudha, 23/1, 4th Main S.R. Nagar, Bangalore 560 027. Advocate (N. Sreenath and Others) .Opposite Parties ORDERS This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to pay Rs.4,00,000/- towards special and general damages and to pay Rs.1,00,000/- towards loss of profit and to pay Rs.2,26,767/- towards the amount retained by it with costs, interest, etc., 2. The material facts of complainants case may be stated as follows: That the complainant purchased one BEML Model BL 9H Backhoe Loader with all accessories for Rs.16,02,890/-. He took delivery of it on 12.02.2007. The complainant had raised loan of Rs.13,50,000/- at ING Vysya Bank, Chikkaballapur Branch, repayable with monthly installment of Rs.37,000/- for payment of the price of Loader purchased from OP. The complainant has alleged that after receipt of the Loader it worked for 5-6 days and thereafter problems arouse in it and the complainant returned the Loader to OP as there was warranty to the said Loader for 12 months. Complainant kept quiet for sometime as he had returned the Loader to OP. Further that thereafter the complainant approached the OP for return of the price paid by him, but the OP kept quiet for long time. It has alleged that finally a legal notice was got issued on 24.03.2007 demanding return of Rs.16,02,890/-. The complainant has alleged that there were manufacturing defects in the Loader and even for a single day it could not be used therefore the complainant had returned the Loader to OP. He alleged that the OP returned Rs.12,59,600/- by way of cheque on 15.10.2007 and returned Rs.1,66,240/- by way of another cheque on 17.10.2007 and has not paid the remaining amount. It is alleged that the OP has assured to pay Rs.50,000/- on cancellation of registration certificate. Accordingly the complainant visited RTO Office, Chikkaballapur and he was told that the Loader should be produced for cancellation of registration and on intimation the OP failed to produce the Loader before R.T.O. It is alleged that the OP has obtained a letter of settlement from complainant in respect of transaction of Loader, but the same is not binding as OP has failed to settle the amount in time. Therefore the complainant filed the present complaint. The OP appeared and filed its version. The sale of Loader for Rs.16,02,890/- to complainant is not disputed. It is denied that the Loader worked only for 5-6 days and thereafter it stopped working and that there was manufacturing defect in the Loader. It is admitted that the Loader was brought to it on 12.03.2007 with complaints of minor problems. But those problems were immediately attended and the equipment was kept ready on 18.03.2007 and accordingly an intimation dated 21.03.2007 was sent to complainant to take back the equipment, but the complainant failed to take back the said equipment. It is contended that the Loader worked for 218 hours between 14.02.2007 to 12.03.2007. It is contended that the equipment was supplied on good condition and it was also working efficiently and that the complainant left the equipment to OP Company for minor repairs and subsequently started insisting that he was not interested to take back the equipment and requested to return the amount. It is contended that on humanitarian grounds the OP agreed to refund an amount of Rs.14,75,840/- after deducting Rs.65,400/- towards rent (calculated rent at Rs.300/- per hour X 218 working hours) and Rs.61,650/- being the amount paid to Government towards sales tax. It is contended that this was explained to complainant and he agreed for it. It is contended that the OP handedover the cheque for Rs.12,59,600/- dated 15.10.2007 and another cheque for Rs.1,66,240/- dated 17.10.2007 totally for Rs.14,25,840/- and thereupon complainant accepted the said amount and executed the letter dated 17.10.2007 agreeing to receive Rs.14,75,840/- towards full and final settlement of his claim for returning the equipment and had agreed to receive the balance of Rs.50,000/- after furnishing documents for cancellation of registration certificate standing in his name. It is contended that the OP is ready to pay Rs.50,000/- on production of certificate for having cancelled the registration certificate. Therefore the OP contended that the complaint is to be dismissed. 3. The parties filed affidavits in support of their respective contentions and also filed the documents. 4. We heard the arguments of Learned Counsel for the parties. The OP has also filed the written arguments. 5. From the rival contentions the following points arise for our consideration. 1. Whether the complainant has proved that the Loader in question was suffering with manufacturing defects of various parts alleged in the complaint. 2. Whether the OP has proved that the complainant had agreed to receive Rs.14,75,840/- towards return of Loader purchased earlier from it. 3. Whether OP can withhold Rs.50,000/- till the Registration Certificate of the Loader is cancelled. 4. To what order? 6. After considering the records and the evidence and the submissions of parties our findings on the above points are as under: Point No.1: The complainant purchased Loader on 08.02.2007. He took delivery of it on 12.02.2007. The equipment was duly commissioned and handed over for operation by the Service Engineer of OP on 14.02.2007. The OP attended some minor defects on 18.02.2007. Thereafter the Loader was left with OP on 12.03.2007. The OP has contended that there were some minor problems and it was attended and the equipment was kept ready on 18.03.2007 and that the equipment was put to use for more than 200 working hours. In para.4 of the complaint the complainant has stated that there were so many defective parts in the equipment, even for a single day the Loader was not working. According to him for this reason the complainant had returned the Loader to OP. For proving manufacturing defects no expert evidence is produced by complainant. His version that even for a single day the Loader had not worked appears to be not true. Admittedly there was warranty for 12 months, therefore the complainant could not claim for price of the equipment unless it was shown that the equipment could not be repaired. The evidence of OP shows that within 2-3 days the minor defects were attended and the complainant was duly intimated to take back the equipment. The claim of complainant that there were several mechanical and manufacturing defects in the equipment is not established by any proper evidence. The complainant states that he came to know the said manufacturing defects from his mechanic. But the evidence of the said mechanic is not produced. Therefore we hold that the complainant has failed to prove the alleged manufacturing and mechanical defects in the equipment. Hence Point No.1 is held in negative. Point No. 2: The complainant admitted the execution of letter dated 17.10.2007. In his complaint he stated that as the OP has failed to pay the remaining Rs.50,000/-, the terms agreed in that letter is not binding on him. The OP has stated that the amount of Rs.50,000/- was agreed to be paid after production of documentary proof confirming cancellation of Registration Certificate. The complainant does not dispute the receipt of two cheques totally amounting to Rs.14,25,840/-. The complainant does not say in which circumstances those two cheques were received and what was the understanding between parties before receiving those cheques. One can presume that before issuing those cheques there must have been some understanding between parties regarding the transaction. Considering the above facts we hold that the defence of the OP that it had agreed to return Rs.14,75,840/- after deducting the remaining amount towards rent and payment of sales tax, out of the consideration received appears to be true and correct. The execution of the letter dated 17.10.2007 is not in dispute. The contention of the complainant that it was not binding on him as he did not receive Rs.50,000/- appears to be not correct. It can be seen that the said letter dated 17.10.2007 does not speak regarding amount Rs.50,000/- payable on furnishing proof for cancellation of Registration Certificate of the equipment. However the averment of complainant itself shows that there was such oral understanding between parties. Hence point No.2 is held in affirmative. Point No.3: From the facts we can say that there was an understanding between the parties that the OP shall return Rs.50,000/- to complainant on production of documents confirming cancellation of Registration Certificate. In the complaint, the complainant had not averred anything regarding this fact. The OP has pleaded that Rs.50,000/- was retained by it as per the understanding between parties till the production of documentary proof for having cancelled the Registration Certificate. In the affidavit filed by complainant he stated that it is the duty of the OP to arrange for cancellation of the Registration Certificate from R.T.O and without producing the vehicle the R.T.O Authority will not cancel the hypothecation/registration and the OP has failed to produce the vehicle. The complainant has not stated whether he made an application to R.T.O for cancellation of Registration Certificate and the reply given by the R.T.O. The records disclose that on 17.10.2007 the OP had addressed a letter to R.T.O Chikkaballapur where the equipment is registered narrating that the equipment (loader) was sold to complainant and due to certain reasons the complainant has returned the equipment and the OP had also agreed to return the amount as agreed between parties and has further stated that the equipment is registered in the name of complainant and the equipment has been returned to it (manufacturer), therefore requested the R.T.O to cancel the Registration Certificate standing in the name of complainant and to hand over a letter to complainant for having cancelled the Registration Certificate. It is not known what happened to this letter addressed to R.T.O Chikkaballapur. The Learned Counsel for complainant submitted that along with this letter he made a representation to R.T.O Chikkaballapur and he insisted for production of the equipment for inspection and the same was intimated to OP, but the OP failed to produce it before R.T.O on the date fixed by him. This allegation is not supported by any documentary evidence. Chapter IV of the Motor Vehicles Act, 1988 deals with Registration of Motor Vehicles. Section 39 of the said Act is as follows: Necessity for Registration No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate or registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner: PROVIDED that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. The other sections from Section 40 to Section 65 deal with the procedure for Registration of Motor Vehicle in different circumstances and its cancellation, etc., The reading of Section 39 makes it clear that the possession of motor vehicle by a Dealer, Registration Certificate is not necessary. The same principle will apply to manufacturer of Motor Vehicles also. In the present case there was a sale of new motor vehicle by manufacturer to complainant and the R.C. was effected in the name of complainant. But soon thereafter for one or other reason the sale transaction was treated as cancelled by mutual agreement and the motor vehicle in question (Loader) was returned to manufacturer. The letter dated 17.10.2007 issued by manufacturer addressed to A.R.T.O, Chikkaballapur makes this fact clear. The exact reason for not canceling the Registration Certificate of the Loader standing in the name of complainant, is not forthcoming. The Learned Counsel for complainant submitted that the complainant is ready to give his consent for cancellation of Registration Certificate and he will do all necessary acts for it. Under such circumstances we think that withholding of amount of Rs.50,000/- by OP is not warranted. The complainant as well as the OP should make necessary representation to convince the R.T.O for cancellation of Registration Certificate. Hence point No. 3 is held in negative. Point No. 4: For the above reasons we pass the following: O R D E R The complaint is partly allowed. OPs are directed to pay Rs.50,000/- (Rupees Fifty Thousand only) withheld by them to complainant within 30 days from the date of this order, with costs of Rs.1,000/-. The complainant shall co-operate and take all necessary steps for getting the Registration Certificate cancelled along with OP. Dictated to the Stenographer, corrected and pronounced in open Forum this the 22nd day of July 2009. MEMBER MEMBER PRESIDENT
Consumer Court Lawyer
Best Law Firm for all your Consumer Court related cases.
