D.O.F:20/12/2019
D.O.O:09/12/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.256/2019
Dated this, the 9th day of December 2022
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Satheesan.S
S/o Sundareshan.R,
“Pranavam” Mavinakkatta : Complainant
Kumbala.P.O,
Kasaragod
And
- The Senior Branch Manager
Syndicate Bank,
Kumbala Branch,
Madhava Pai Building,
Kumbala- Badiadka Road,
Kumbala 671321
(Adv: Sadanada Kamath & Rahul Das)
: Opposite Parties
- The Central Manager,
APCO Vehicles India Private Ltd,
Indiranagar,
P.O.Chengala
Kasaragod 671154
(Adv. K. Shenzad)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 (as amended ) The facts of the case in brief is that the complainant purchased a Hundai Grand i 10 car bearing No.KL 14 P 9681 from Opposite Party No.2 with finance of Rs.2,00,000/- from Opposite Party No.1. At the time of delivery of the Vehicle the Opposite Party No.1 issued one key only and it was told that the spare key would be given to the Opposite Party No.1 the financer and the same would be kept with them till the repayment of the loan. The key would be handed over to the complainant at the time of closing of the loan. The complainant went to the Opposite Party No.1, for closing the loan and taking the spare key and on enquiry it was told that the key was not there. The Opposite Party No.1 assured that they would do the necessary enquiry to get the key and on that assurance the complainant returned after remitting a substantial amount towards loan. The Opposite Party No.2 told that the key was sent to Opposite Party No.1, through DTDC courier Service. But the same could not be traced out and the complaint has been approaching the Opposite Parties for that, all along the long period since 2016. In the mean while the complainant cleared the entire loan amount to avoid legal action and obtained no due certificate. But the spare key is not made available to him so far, due to negligence of the Opposite Party No.1 and 2. The complainant is suffering with great mental agony and fear, as the spare key of his car is at some other's hand. He is unable to keep the vehicle at public parking areas, due to the apprehension of theft. Missing of the spare key affect the resale prospects of the vehicle also. Hence this complaint is filed for a direction to the Opposite Party No.1 and 2 to pay a compensation of Rs.4,00,000/- for mental agony and costs. The Opposite Parties entered appearance through their counsels, who filed written Version. As per the version of the Opposite Party No.1, the complaint is false, frivolous, vexations and not maintainable either at law. The Opposite Party No.1 admits the taking of car loan and repayment entire amount by the complainant. But the allegation that the complainant had approached the Bank several times for spare key is denied. No spare key is handed over to Opposite Party No.1 either by complainant or by Opposite Party No.2, nor received any key through any Courier Service. Keeping the spare key of the car by the credit bank is not mandatory. There is no service deficiency on the part of Opposite Party No.1 and the complaint is Iiable to be dismissed.
As per the version of Opposite Party No.2, the complaint is not maintainable. The Opposite Party No.2 states that they had sent the spare key to the Opposite Party No.1 in time, through DTDC courier service vide Ref. No. R 1530499 and the said courier was delivered to the Opposite Party No.1. It was sent as per the request of the complainant and Opposite Party No.1 and the same was a gratuitous service and no consideration was received. The Opposite Party No.1 has not raised any claim with Opposite Party No.2 that they have not received the key of the vehicle till October 2019. There is no service deficiency on the part of Opposite Party No.2 and the complaint is liable to be dismissed.
The Complainant filed proof affidavit in Iieu of chief examination and documents Ext.A1 to Ext.A8 are marked. He is Cross examined as PW 1The Ext. A1 is the invoice dated 11-07-2014 issued by Opposite Party No. 2Ext A 2 is the a copy of RC, Ext.A3 is the Copy of letter dated 07-08-2019 issued by complainant to Opposite Party No.1, Ext.A4 is the copy of e-mail issued by Opposite Party No.2 to the complainant demand notice, Ext A5 is copy of the notice of termination of HP agreement, Ext.A6 is the letter issued by Opposite Party No.1, Ext.A7 is the No dues certificate Ext.A8 is the copy of letter dated 01-10-2019 issued by Opposite Party No.1 to Opposite Party No.2.
From the side of Opposite Parties, two witnesses are examined. One Mr. Siraj P.T, the Dealership Head of the Opposite Party No.2 is examined as DW1, who filed proof affidavit in Iieu of chief examination and documents Ext.B1 to Ext.B3 are marked and was cross examined. Mr. Shreyanshu Saswot Shebhan, the Sr.Branch Manager of the Opposite Party No.1 is examined as DW2, who filed proof affidavit in lieu of chief examination and was cross examined. Ext. B1 is the Copy of Page 88 of outward Register dated 06.08.2014 of Opposite Party No.2, Ext.B2 is the copy of email Communication of Opposite Party No.2 with DTDC Couriers. Ext.B3 is the copy of Delivery Receipt & Gate pass dated 11.07.2014.
Based on the pleadings of the rival parties in this case, the following issues are framed for consideration.
1. Whether there is any service deficiency or negligence on the part of any of the opposite party
2. If so, what is the relief?
For convenience, both the above issues are discussed together.
The specific case of the complainant is that the spare key of his car is not made available to him and the complaint has been approaching the Opposite Parties for that, all along the long period since 2016. Even though the complainant cleared the entire loan amount and obtained no due certificate the Opposite Parties failed to give proper service to him .The spare key of his car is not made available to him so far, due to negligence of the Opposite Party No.1 and 2.The complainant is suffering with great mental agony and fear, as the spare key of his car is at some other's hand. He is unable to keep the vehicle at public parking areas, due to the apprehension of theft. Missing of the spare key affect the resale prospects of the vehicle also.
Here both the Opposite Party No.1 the financer and the Opposite Party No.2 have no case that they have made the spare key available to the complainant. The Opposite Party No.2 states that they had sent the spare key to the Opposite Party No.1 in time, through DTDC courier service vide Ref.No.R 1530499 and the said courier was delivered to the Opposite Party No.1.
It was sent as per the request of the complainant and Opposite Party No.1 and the same was a gratuitous service and no consideration was received. The Opposite Party No.1 has not raised any claim with Opposite Party No.2 that they had not received the key of the vehicle till October 2019.
The Opposite Party No.1 argue that no spare key is handed over to them either by complainant or by Opposite Party No.2 nor received any key through any Courier Service. The Opposite Party No.1 further argue that keeping the spare key of the car by the credit bank is not mandatory. The Document Ext.B3, the Delivery Receipt & Gate pass dated 11.07.2014, would show that the purchaser complainant was issued with only one key and the spare key was not issued to him.
Here the Opposite Party No.2 argue that they have sent the spare key to the Opposite Party No.1 through the Courier service. They produced Ext. B1 copy of some Page 88 of outward Register dated 06.08.2014 and Ext.B2, the copy of email Communication of Opposite Party No.2 with DTDC Couriers to show that some articles have been sent to Opposite Party No.1 through Courier Service. But they didn't take steps to prove that aspect by Ieading evidence. They didn't examine the Courier service personal. The argument of the Opposite Party No.1 to the effect that keeping the spare key of the car by the credit bank is not mandatory is not acceptable. Even though the Opposite Party No.1 examined their Sr.Branch Manager as DW2, he could not improve their case. He deposed that there is no records regarding the spare keys of vehicles. He admitted that “in old times there was a custom of keeping key of the hypothecated vehicles by the financiers”.
Further it is clear that if there was no such practice, the document Ext. A8, which is the copy of letter dated 01-10 -2019 issued by the Opposite Party No.1 to the Opposite Party No. 2 would not have been issued. In that letter Ext. A8, the Opposite Party No.1 states that "According to available records with us it is clear that you have not delivered the duplicate Car key to the bank. We request you to please deliver the duplicate car key to us in the under mentioned address at the earliest. "
So it is implied that even though it was not mandatory, there was such practice of keeping the spare key with the credit bank and the Car dealers used to send the spare key to the financers or credit bank, without giving the same to the Car purchaser. They were totally negligent in that aspect.
Here it is pertinent to note that the Opposite Party No.1 didn't care to take necessary steps to ensure that the spare key is obtained from the Dealer and it is kept in their safe custody. The Opposite Party No.1 sent a letter as Ext.A8 to the Opposite Party No.2, in connection with the spare key, only on 01-10-2019, even though the complainant was approaching them for the same since 2016.
Therefore considering the facts and circumstances of the case this commission is of the view that there is negligence and service deficiency on the part of the Opposite Parties. It is needless to say that due to the acts and omissions of the Opposite Parties, the complainant suffered great hardship and mental agony. The complainant states that since the spare key of his car is not with him but at some other's hand he is at fear and unable to keep the vehicle at public parking areas, due to the apprehension of theft. The complainant also apprehends that missing of the spare key may affect the resale prospects of the vehicle.
The complainant estimates his damages to a tune of Rs.4,00,000/- for mental agony, for which there is no reliable evidence. This commission is of the view that Rs.40,000/- would be a reasonable compensation.
In the result the complaint is allowed in part and the Opposite Party No.1 and 2 are jointly and severally directed to pay Rs.40,000/-(Rupees Forty Thousand only) as compensation and Rs.5,000/-(Rupees Five Thousand only) towards costs to the complainant.
The time for compliance is 30 days from receipt of the copy of this judgment.
A1: The invoice dtd.11-07-2014
A2: Copy of RC
A3: Copy of letter dtd.07-08-2019
A4: Copy of e-mail
A5: Copy of the notice of termination of HP agreement
A6: Letter issued by Opposite Party No.1
A7: No dues certificate
A8: Copy of letter dtd.01-10-2019
B1- Copy of page 88 of outward Register Dt: 6/08/2014
B2- E-mail communication
B3- copy of delivery receipt and gate pass
Witness Examined
Pw1- Satheesan.S
Dw1- Siraj.P.T
Dw2- Shreyanshu Saswot Shebhan
Forwarded by Order
Ps/ Assistant Registrar
