BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 05^th DAY OF MARCH 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs Standard Chartered Bank to pay her a sum of Rs.6,05,000/- with interest @ 12% p.a from the date of complaint till the date of realization and cost.

2. The brief averments made in the complaint are as under:

One Mr.Prasad B.R had taken auto loan from OPs in respect of Qualis vehicle bearing registration No.KA-09-A-2823 and it was reported that the said Prasad B.R was irregular in paying the EMI to the OPs consequently, the OPs had decided to auction the said vehicle accordingly public auction was conducted by the OPs on 03.11.2005.  The complainant participated in the said auction and being the highest bidder in the auction paid the bid amount of Rs.3,50,000/- to the OPs on 03.11.2005 and the OPs handed over the said vehicle to the custody of the complainant.  At the time of handing over the possession of the vehicle, the complainant was assured and promised by the OPs that, the original documents pertaining to the said vehicle i.e., R.C Book, insurance cover note, tax book and form No.KMV 42 would be handed over within a month.  Even after lapse of one month, the documents were not handed over to the complainant.  Therefore, the complainant approached the OPs number of times however the OPs failed to handover the original documents.  That the original documents which are very much necessary to transfer the records in the name of the complainant, he could not use and ply the vehicle.

Thereafter, the OPs informed the complainant that the original owner of the said vehicle Mr.Prasad B.R had filed a civil suit on the file of Principal Civil Judge, Junior Division, Mysore challenging the auction of the vehicle by making them as defendants and thereby prolonged the delivery of the documents for 8 years under the guise of pendency of suit.  On verification of the court records, the complainant found that, the suit filed by Prasad B.R came to be dismissed for non prosecution on 21.07.2011 itself and immediately the complainant approached the OPs and requested them to handover the original documents.  However, the OPs failed to hand over the documents.  Thereafter, the complainant got issued legal notice dated 14.05.2014 calling upon the OPs to return the documents or pay the complainant a sum of Rs.5,00,000/- towards loss caused to the complainant due to deficiency of service.

Despite service of legal notice, the OPs neither replied the notice nor complied the same.  The OPs are liable to pay a sum of Rs.5,00,000/- towards the loss caused to the complainant as he could not utilize the vehicle for a period of 7 years and the same is lying in the shed till today.  Therefore, the complainant prays for an order directing the OPs to pay him a sum of Rs.6,05,000/- together with interest @ 12% p.a from the date of the complaint till the date of realization with costs.   

3. In response to the notice issued, the OPs appeared through their advocate and filed their objections contending in brief as under:

The complaint is barred by limitation since the same has been filed after delay of 9 years therefore the same is liable to be dismissed as barred by limitation.  That there is no any deficiency on the part of OPs as alleged in the complaint.  It is true that, the complainant being the successful bidder in the auction held for the sale of Qualis vehicle bearing No.KA-09-A-2823 was handed over the said vehicle on her depositing bid amount of Rs.3,50,000/-.  Thus, auction of the said vehicle was conducted on the condition of disposing the asset on “AS IS WHERE IS BASIS” and the complainant accepted the bid and participated in the auction and was a successful bidder.  At the time of the auction, the complainant was informed that, the OP Bank will be issuing NOC for cancellation of hypothecation and for transferring the vehicle and the original documents pertaining to the vehicle are in the custody of the borrower.  After receipt of the bid amount, the OP Bank has issued cash receipt for the said amount, Form No.26, Form No.29, Form No.30, Form No.35 NOC while delivering the vehicle to the complainant.  The OP Bank never promised the complainant that they would hand over the original R.C book and permit, tax book and insurance cover etc., to the complainant as the vehicle was auctioned “AS IS WHERE IS BASIS”.  The complainant has purchased the said vehicle knowing very well that the original documents are in possession of the borrower and now she is making false statement before this Forum alleging that the OPs agreed to hand over the original documents within a month from the date of delivery of the vehicle.  The filing of the suit by the original borrower Mr.Prasad B.R in O.S No.696/2005 on the file of Principal Civil Judge, Junior Division, Mysore is nothing to do with the delivery of documents.  However, the complainant has suppressed about a suit filed by her against the said Mr.Prasad B.R.  The OP contested the suit filed by the original borrower.

 The OP Bank had issued NOC for transferring the vehicle on two occasions as the validity of the NOC is for a period of six months from the date of issuance, the complainant was issued NOC at the time of delivering the vehicle as the borrower had filed a suit.  The concerned RTO had refused to transfer the vehicle in the name of complainant and the complainant was issued with a letter addressing to RTO Official to transfer the ownership and to issue DRC in favour of complainant somewhere in the month of September 2011.  The complainant has suppressed all these facts only with an intention to harass the OP Bank and has approached this Forum after lapse of more than 9 years by creating a new cause of action to file this frivolous complaint.  The complainant is not a ‘Consumer’ since the subject vehicle is a Maxi Cab which was intended to be used for commercial purpose.  The complainant is not at all entitled to claim relief as claimed by her as there is no deficiency in service on behalf of OPs.

For the aforesaid reasons, the OPs pray for dismissal of the complaint with exemplary costs.

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

5. The complainant to substantiate the allegations made in the complaint filed her affidavit evidence reiterating the allegations made in the complaint.  The OPs filed the affidavit evidence of their Authorized Signatory Mr.Senthil Kumar Murugesan in support of the averments made in the version.  Both the parties have submitted their written submissions apart from producing copies of certain documents in support of the respective contentions.

6. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of both the parties, written submissions of both sides and the documents relied upon by them.

7. Our answer to the above points are as under:

REASONS

8. Admittedly one Mr.Prasad B.R who had borrowed auto loan from the OPs for purchasing a Qualis vehicle bearing registration No.KA-09-A-2823 failed to repay the loan amount as a result the said vehicle was repossessed by OPs as the same was hypothecated in favour of OPs Bank.  The OPs Bank decided to auction the vehicle in a public auction on 03.11.2005.  It is not in dispute that, the complainant participated in the said auction and was highest bidder.  Accordingly, he paid the bid amount of Rs.3,50,000/- to the OPs on 03.11.2005 itself and on the same day the OPs handed over the custody of the said vehicle to the complainant. 

9. The complainant alleges that at the time of delivering the vehicle the OPs promised that they would deliver original documents of the said vehicle within a months time but they failed to do so as a result of which she could not make use of the vehicle for want of original RC book, insurance cover note, tax book and form number KMV-42.  However, OPs denied this allegation of the complainant and asserted that the said vehicle was sold on ‘AS IS WHERE IS BASIS’ informing the complainant that the original documents of the vehicle are with the original borrower and they would issue NOC and other relevant documents necessary for the transfer of the ownership in her favour.  It is further asserted by the OPs that, at the time of delivering the vehicle they handed over the true copy of RC book, form No.26, form No.29, form No.30, form No.35 duly signed by the original owner together with the NOC to enable the complainant to get the vehicle transferred in her name.  The OPs have also produced the true copies of the above mentioned documents to substantiate that, the copies of the same were handed over to the complainant.

10. Before entering into the merits of the case let us deal with preliminary objection raised by the OP.  The OPs in their version contended that the present complaint has been preferred by the complainant after delay of 9 years therefore the same is hit by section 24(A) of the C.P Act, 1986 and the complaint is liable to be dismissed as barred by limitation.  Admittedly, the subject vehicle was auctioned on 03.11.2005 and the bid amount was paid on the very same day and the vehicle was also delivered to the complainant on the same day.  The complainant alleges that, she was assured by the OPs that the original documents of the vehicle will be delivered within a period of one month from the date of delivery.  However, they failed to do so within a month and when she approached OPs repeatedly she was informed that they are unable to deliver the original documents because of a civil suit in O.S No.696/2005 filed by the borrower Mr.Prasad B.R on the file of Principal Civil Judge, Junior Division, Mysore challenging the auction and on the guise of the same the OPs delayed handing over of the documents about 8 years.  The complainant did not produce either documentary evidence or credible oral evidence to substantiate her contention that the OPs promised to deliver original documents.  Admittedly, the OPs issued no documents or letter promising her to deliver original documents.  On the other hand, it is contended by the OPs that they never promised to deliver the original documents to the complainant as the same were in possession of the original owner.  It is not the case of the complainant that, the ownership of the vehicle could not be transferred in her favour for want of original documents.  Moreover, the relief sought in this complaint is not for delivery of the said original documents but for payment of compensation only.  In view of the relief sought in the complaint it cannot be said that the ownership of the vehicle was not transferred in favour of the complainant for want of original documents.  The complainant also did not deny the receipt of the true copy of the RC book, form no.26, form no.29, form no.30 and form no.35 duly signed by the original owner.  The complainant also did not deny the issuance of NOC by the OP Bank with whom the said vehicle was hypothecated.  Admittedly, the above mentioned documents delivered to the complainant by the OPs at the time of delivery were sufficient for transfer the ownership of the vehicle in favour of the complainant.

11. The OP Bank has also stated that they issued NOC in favour the complainant on two occasions to enable her to get ownership of the vehicle in her favour.  The complainant did not deny the receipt of the NOC issued by the OP Bank subsequent to dismissal of the suit that was filed by borrower on the file of Civil Judge, Jr. Division, Mysore.  In the given circumstances of the case, the limitation has to be calculated from the date of second NOC issued by the OP Bank as well as their letter addressed to RTO Official to transfer the ownership and to issue DRC in favour of complainant.  It is stated by the OPs that they issued the second NOC as well as letter to RTO to transfer the vehicle and issue DRC in favour of complainant somewhere in the month of September 2011.  The complainant did not deny the issuance of the NOC and a letter by the OP Bank addressed to RTO for transfer of ownership in her favour in the month of September 2011. 

12. The complainant did not explain as to why she did not initiate necessary proceedings against OPs since from the date of issuance of NOC in the month of September 2011 as well as subsequent dismissal of the suit on 21.07.2011 filed by the original owner Mr.Prasad B.R.  Therefore, the limitation has to be calculated from the month of September 2011 during which the complainant was issued with NOC for transfer of the ownership in favour of the complainant.  The present complaint has been filed in the month of June 2014.  The complainant ought to have filed this complaint within two years from September 2011.  Section.24 (a) provides for limitation within which a complaint has to be preferred before a District Forum, State Commission or National Commission and the same reads as under:

(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.  

13. The complainant admittedly did not file the complaint within two years from the date of second NOC issued in her favour.  It is also not the case of the complainant that, despite issuance NOC in the month of September 2011 the concerned RTO refused to transfer the ownership in her favour.  Therefore, she ought to have filed this complaint within two years from the date of issuance of second NOC by the OPs.  The complainant has also not provided any satisfactory explanation for the delay in preferring this complaint.  Moreover, she has also not filed any application for condonation of delay.  Therefore, in absence of any acceptable reasons, we do not find any reasons to condone the delay of more than 9 months in preferring this complaint.  Therefore, the complaint is liable to be dismissed as the same is barred by limitation.

14. The OP took up a contention that, the complainant is not a ‘consumer’ as defined under the Consumer Protection Act, therefore, cannot invoke the provisions contained in Consumer Protection Act, 1986 to file this complaint.  The learned advocate for the complainant contended that, the vehicle in question is a Maxi Cab and the same has been purchased for commercial use.  Therefore, the complainant cannot be construed as a ‘consumer’ as defined under the Consumer Protection Act.  Against this, the learned advocate for the complainant contended that, the complainant has purchased the said vehicle for earning her livelihood therefore she falls in the definition of ‘Consumer’.  As provided in the explanation to the section 2 (1) (d) the complainant who has purchased the said vehicle exclusively for the purpose of earning her livelihood by means of self employment certainly would fall in the ambit of the definition of ‘Consumer’.  Therefore, we are of the opinion that, this Forum can entertain the present complaint.

15. As discussed in the above paragraphs, the complainant has purchased the vehicle in question on terms of ‘AS IS WHERE IS BASIS’.  Absolutely, there is no material on record to believe that the OPs at any point of time, either, before the auction or subsequent to auction promised the complainant to handover the original documents.  The complainant has been handed over with relevant documents which are necessary for transfer of ownership of the vehicle.  Therefore, we do not find any truth in the allegations of the complainant that, the OPs having promised to deliver the original documents have failed to do so thereby committed deficiency in service.  The complainant having purchased the vehicle to the terms and conditions set out prior to the auction, now cannot contend that she was promised original documents within a month.  Even on merits, we are of the opinion that, the present complaint is not maintainable.

16. The complaint apart from being barred by limitation is also not maintainable on merits.  Therefore, the complaint is liable to be dismissed.   

 17.  The order could not be passed within the stipulated time due to heavy pendency.

 18. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own cost.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 05^th day of March 2016)

MEMBER                           MEMBER                     PRESIDENT

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Witnesses examined on behalf of the complainant dated 04.12.2014.

1. Mrs. Zarina Syed

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 27.03.2015

1. Senthil Kumar Murugesan

Documents produced by the Opposite Party:

MEMBER                            MEMBER                    PRESIDENT

Vln*