Mrs. Neena Sandhu, Member:
1. By this order of ours, we are disposing of 2 appeals bearing No. 2311 of 2008 (filed by the complainant) and the appeal No. 44 of 2009 (filed by OPs No. 1 and 2) arising out of the order dated 5.12.2008 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) in complaint case No. 625 of 2008.
2. The brief facts of the case are that the OPs No. 1 and 2 informed the complainant that a car meeting his requirements was available with them; whereupon the said OPs showed the complainant TATA Indigo Car bearing registration No. HR-03-E-6252 lying with them for sale, having been put to sale by the OP No. 5. The complainant was offered a test drive by the OPs No. 1 and 2 of the car in question and thereafter a deal was stuck for the sale of the said car, to the complainant for a total consideration amount of Rs. 2,65,000 (including all commissions) only. The OPs No. 1 and 2 assured the complainant that the title of the car was clear and that the necessary documents pertaining to the ownership of the car were in their possession. In pursuance of the said undertaking between the complainant as well as the OPs No. 1 and 2, he paid a sum of Rs. 10,000 to OPs No. 1 and 2 on 17.6.2007 and a receipt of the said date bearing No. 453 was issued. Subsequently the complainant made another payment of Rs.90,000 to OPs No. 1 and 2 on 21.6.2007 vide their receipt No. 456. It was submitted by the complainant that after having made the payment of Rs. 1,00,000 out of the total amount of Rs. 2,65,000 for the car in question, which on the date of the said deal showed an Odometer reading of 56074 Kms run only. The complainant informed the OPs No. 1 and 2 that the balance amount had to be arranged via a car loan so that car could be delivered to the complainant at the earliest. The OPs No. 1 and 2 made an offer to arrange the car loan from OP No. 3 who claimed itself to be the franchisee of the ICICI Bank Ltd. The OP No. 4 offered a car loan for a sum of Rs. 1,50,000 to the complainant @ 11.90% interest which was quite agreeable to the complainant and he consented to allow the OP No. 3 to process his papers for the car loan with the OP No. 4. It was submitted that the complainant was shocked to know from OP No. 3 that his loan has been approved for a sum of Rs. 1,50,000 and the same was directly delivered to the OPs No. 1 and 2 in their name. It was further submitted by the complainant that OPs No. 1 and 2 received another sum of Rs. 5,000 in cash from the complainant as their commission without issuing any receipt thereof on 21.6.2007 at the time of delivery of the possession of the car in question. Since the majority of the amount i.e. Rs. 2,55,000 stood paid to OPs No. 1 and 2 , the complainant was well within his right to demand the ownership papers so that the same could be transferred into his name as already assured by OPs No. 1 and 2. The complainant was informed by OPs No. 1 and 2 that the relevant registration papers of the car in question were lying with the Registering Authority, Panchkula for some entries and they would be delivering the same within a week. However a coloured Xerox of the Certificate of Registration of the car was handed over to the complainant which clearly revealed that the vehicle was already hypothecated with the ICICI Bank Ltd, OP No. 4. The complainant took the possession of the car in question from OPs No. 1 and 2 and promised to pay the balance amount of Rs. 10,000 to them as and when the registration papers of the car, free from all encumbrances were delivered to him along with the forms required to be signed by the OP No. 5 for the transfer of the ownership in the name of the complainant. It was further submitted that when nothing was forthcoming after a period of a week as promised, the complainant approached them again on 11.7.2007 and the said OPs flatly refused to hand over the documents to the complainant and even failed to entertain the complainant. The complainant was shocked by the rude behaviour of the OPs in question, got very suspicious and immediately tried to contact OP No. 5 being the owner of the car in question, who deliberately refused to meet the complainant and the complainant was compelled to write a letter dated 16.7.2007 under registered cover to him seeking clarification with regard to the status of the car in question. Thereafter the complainant sent a letter to the S.S.P. of Chandigarh vide his complaint dated 16.7.2007 but no action was taken by the Police Authority on the said complaint. The complainant filed a Criminal Complaint before the Court of the Learned Chief Judicial Magistrate at Chandigarh against OP Nos. 1 to 4 on 15.11.2007 under Sections 406/420/467/468/471 and120-B of the IPC. The said criminal complaint was pending before the Court of Sh. A.S. Shergill, JMIC, Chandigarh for consideration on summoning of the accused for 24.7.2008. It was alleged by the complainant that despite having paid the sum of Rs. 2,55,000 to the OPs No. 1 and 2 for the sale consideration of the car, owned by OP No. 5, the complainant did not receive the Registration Certificate of the car in original with the hypothecation clause removed from the previous owner and necessary forms for the transfer of the car to the complainant from the OP No. 5 and thus was constrained not to put to use the said vehicle on a regular basis without the fear of legal prosecution and traffic challans. As on 23.5.2008 the car of the complainant had clocked about 56556 Kms only which is about 482 Kms usage since its purchase in the month of June, 2007 till May, 2008. This fact by itself proves that the vehicle could not be put to any useful purpose by the complainant, since its purchase due to the lack of documentation, which were withheld by OPs No. 1 and 2 in connivance with the OP No. 5. The complainant on one hand not able to use the car in question since June, 2007 while on the other hand the complainant has been burdened with renewing the insurance cover of the vehicle which expired and was renewed on 20.10.2007 by the complainant after paying the premium of Rs. 8,280 and further burdened with high rate of interest which the complainant is paying to OP No. 4. The abovesaid act of OPs amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.
3. Reply was filed by OPs Nos. 1 and 2 and admitted the factual matrix of the case. It was pleaded that the complainant himself was deficient and had not made the entire payment of the car purchased by him. The complainant made a complaint to the Police, where answering OPs stated that the complainant was defaulter and he had not made payment of Rs. 16,500 being the balance sale consideration of the car. It was further pleaded that the answering OPs were always willing to handover the documents to the complainant after getting their balance payment but the complainant did not paid the balance amount. The Police had also asked the complainant to make the payment and get the documents. It was averred that even if the complainant paid the balance amount in the learned District Forum, the answering OPs would hand over all the papers without any hesitation to the complainant. All other material allegations levelled by the complainant in the complaint were controverted and pleaded that there was no deficiency in service on the part of answering OPs and prayed for dismissal of the complaint with exemplary costs.
4. Reply was filed by OP No. 3 and pleaded that there was no deficiency in service on the part of answering OP as the job of OP No. 3 was to arrange a car loan for the complainant from OP No. 4, which was duly arranged by it. It was admitted that the complainant had approached it for securing a loan of Rs. 1,50,000 from OP No. 4 for purchasing the car and as such, after preparing the loan documents, which were duly signed by the complainant, the loan of Rs. 1,50,000 was sanctioned from OP No. 4 in his name. It was further pleaded that it was not the duty of answering OP to supply the documents of ownership of the car to the complainant. Hence, the answering OP prayed for dismissal of the complaint with costs.
5. The OP No. 4 was ordered to be deleted from the array of OPs vide order dated 22.9.2008. OP No. 5 sent reply through post but thereafter none appeared on its behalf. Hence, OP No. 5 was proceeded against ex parte.
6. The parties led their evidence in support of their contentions.
7. The learned District Forum after going through the facts of the case allowed the complaint with the following directions:
(i)Â The OP Nos. 1, 2 and 5 were directed to hand over complete papers to the complainant within 15 days from the date of receipt of copy of the order.
(ii)Â The OP Nos. 1, 2 and 5 shall associate/cooperate with the complainant for the transfer of the vehicle and also appear before the Registrering/Motor Vehicles Authority or any other authority, if so required, for the prompt transfer of the vehicle in favour of the complainant.
(iii)Â The OP Nos. 1, 2 and 5 shall jointly and severally pay Rs. 25,000 to the complainant as compensation for the delay in the transfer of the vehicle and causing harassment to the complainant.
(iv)Â The amount of Rs. 16,500 due from the complainant shall be adjusted and the remaining amount of Rs. 8,500 shall be paid to the complainant within 30 days of the receipt of copy of the order.
(v)Â The OP Nos. 1, 2 and 5 shall jointly pay Rs. 1,100 to the complainant towards costs of litigation.
(vi)Â The payment shall be made within 30 days of the date of receipt of copy of the order failing which the OPs would be liable to pay interest @ 12% p.a. since the date filing of the present complaint i.e. 4.6.2008 till realization.
(vii)Â In case the vehicle is not transferred in favour of the complainant within 60 days of the receipt of copy of the order, the complainant would return the vehicle and the OP Nos. 1, 2 and 5 refund the amount of Rs. 2,48,500 along with interest @ 9% p.a. w.e.f. today till realization along with litigation costs of Rs. 1,100.
8. Aggrieved with the order passed by the learned District Forum, two appeals were filed, one by the complainant i.e. Udai Veer Gupta (Appeal No. 2311 of 2008) and the second by OP Nos. 1 and 2 i.e. Balaji Car Point (Appeal No. 44 of 2009). Sh. Neeraj Sharma, Advocate has appeared on behalf of Sh. Udai Veer Gupta (complainant), Sh. T.N. Sarup, Advocate has appeared on behalf of Balaji Car Point (OPs No. 1 and 2), Sh. Vaneesh Khanna, Advocate has appeared on behalf of Cortes Financial Services Pvt. Ltd. (OP No. 3) and Sh. Ravi Sharma, Advocate has appeared on behalf of Sh. A.S. Anand (OP No. 5)
9. In appeal No. 2311 of 2008 filed by the complainant, the complainant alleged that
(1) The learned District Forum has grossly erred in concluding that the appellant had paid off a total sum of Rs. 1,48,500 only to the respondent Nos. 1 and 2 herein and a balance of Rs. 16,500 was still due and payable. It can be clearly inferred from the pleadings that the appellant had paid Rs. 10,000 in cash on 17.6.2007 against receipt Annexure C-1 and another sum of Rs. 90,000 in cash on 21.6.2007 against receipt Annexure C-2. The respondents No. 1 and 2 had received a demand draft of Rs. 1,50,000 from the respondent No. 3 herein as is evidenced by the reply filed by respondent No. 3. It is submitted by the appellant that this fact is also correlated by Annexure C-3 annexed with the complaint which states that the ICICI Bank Limited had disbursed a loan of Rs. 1,50,000 to the appellant. Thus it goes unrebutted that the respondents No. 1 and 2 had received a total sum of Rs. 1,00,000 in cash and another sum of Rs. 1,50,000 by way of demand draft from respondent No. 3 and thus the amount liable to be finally paid off by the appellant was not Rs. 16,500 but only Rs. 15,000 and that too as the learned District Forum had ignored the payment of Rs. 5,000 received in cash though without receipt by the respondent Nos. 1 and 2 on 21.6.2007. It is submitted by the appellant that the impugned order is liable to be modified and amended to that extent on this ground alone.
(2) The learned District Forum has grossly erred in concluding that the respondent Nos. 1 and 2 had indeed caused delay in the transfer of the papers/ownership of the car on one hand; while on the other hand while quantifying the damages and harassment suffered by the appellant herein being bona fide purchaser has failed to appreciate the following factors which effect the entire scenario and deserve rectification.
(i)Â The appellant herein had parted with a sum of Rs. 2,50,000 from his own pocket/by taking a loan; which was retained by respondents w.e.f. their respective dates of payments till the decision of the case on 5.12.2008. The disbursement of the car loan had been made in the month of June 2007 and the appellant herein was paying a colossal interest @ 17.77% p.a. on the said amount. It was imperative that the learned District Forum while allowing the complaint should have awarded interest at least @ 17.77% on this amount as the alternative relief in the order; the learned District Forum has merely allowed a lump sum compensation of Rs. 25,000 only which is grossly inadequate.
(ii)Â The appellant has suffered gross harassment and inability to utilize the asset so purchased w.e.f. July, 2007 till today. As per the odometer readings so recorded by the said car till date i.e.
| At the time of purchase | |
| (As on 21.6.2007) | 056074 Kms. |
| On filing of case before District Forum | |
| (as on 4.6.2008) | 056556 Kms |
| On filing of appeal | |
| (as on 25.12.2008) | 057282 Kms. |
(iii)Â It is submitted by the appellant that the appellant had spent a sum of Rs. 27,214 on instaling the accessories i.e. new battery, power windows and car stereo in the car and also paid off two annual insurance premiums amounting to Rs. 14,014 to the concerned insurer, which have not been considered by the learned District Forum. It was incumbent upon the learned District Forum to have awarded a suitable and adequate compensation to the appellant herein in the alternative relief so granted; which is grossly inadequate in the circumstances of the present controversy.
(3) The learned District Forum has grossly erred in directing the appellant herein to either receive the papers duly transferred in his name and with a clear title along with compensation of Rs. 25,000 minus the sum due wrongly quantified as Rs. 16,500 (actually being Rs. 15,000; without appreciating the sum of Rs. 5,000 paid without receipt) along with costs of litigation assessed at Rs. 1,100 only or respondents are directed to take back the vehicle and pay the sum of Rs. 2,50,000 to the appellant herein with interest @ 9% p.a. w.e.f. 5.12.2008 till realization along with costs of litigation as already assessed. While passing the impugned order, the learned District Forum has erred in fixing the time limit for transfer/return as 60 days (two months time) when it has already appreciated that the car has been in the custody of the appellant since July 2007 till date i.e. for over a period of 16 months now and the period of another 60 days time would unnecessarily augment the agony of the appellant herein while allowing the respondents to delay the transfer further. The learned District Forum has directed that in case the same is not accomplished, the respondent Nos. 1-2-4 shall pay back a sum of Rs. 2,48,500 (actually Rs. 2,50,000) to the appellant with interest @ 9% p.a. w.e.f. 5.12.2008 and not the dates when the same was paid to them, collectively being the month of July, 2007 and finally the rate of interest is a paltry 9% p.a. when it is established on the record that the appellant is paying 17.77% interest on the car loan amount which he has not been able to completely utilize on account of the deficient services of the respondents.
(i)Â The impugned order passed by the learned District Forum is liable to be modified on the ground of equity to the extent that either the ownership is transferred immediately by the active associationship of the respondents with the appellant well within a short period of time and the relief granted may be augmented on the basis of the expenses incurred by the appellant in the interim and the agony suffered or
(ii)Â The vehicle is returned to the respondents 1-2 with accessories/without accessories as the case may be; and the entire amount is liable to be refunded with interest @ 17.77% which the appellant herein is already paying of the ICICI Bank Ltd. for the car loan so taken along with costs of litigation etc.
Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be modified.
10. In the appeal bearing No. 44 of 2009 filed by OP Nos. 1 and 2 i.e. Balaji Car Point. It is averred that the impugned order is liable to set aside on the ground that the learned District Forum in para No. 9 of its order has opined that the contention of the OP Nos. 1 and 2 i.e. the appellants that a sum of Rs. 16,500 was due from the complainant i.e. respondent No. 1 is correct. Then in that case it is crystal clear that the deficiency or the default was actually on the part of respondent No. 1 who had not cleared his dues and unless and until he cleared the dues, the original documents could not be given to him as agreed. The order passed by the learned District Forum is illegal and the same cannot sustain in the eyes of law as the appellants even in their reply had clearly said that the fault is of the respondent No. 1/complainant who has not cleared his dues but the learned District Forum has not at all considered this aspect of the complaint and has passed a contradictory order which is liable to be set aside. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.
11. We have heard the learned Counsel for the parties and perused the record.
12. In appeal, the complainant assailed the impugned order dated 15.12.2008 passed by the learned District Forum-I, UT, Chandigarh and prayed for enhancement of the relief granted and for modification in the impugned order. It is submitted that complainant had suffered gross harassment and inability to utilize the asset/car so purchased w.e.f. July, 2007 till today. The learned District Forum while awarding the compensation for Rs. 25,000 in lump sum has not taken into consideration some of the following facts:
1. That when the complainant purchased this car, the car had run for 056074 Kms and at the time of filing the complaint i.e. 4.6.2008 the car had run for 056556 Kms and at the time of filing the appeal on 25.12.2008 the car had run only 057282 Kms as per Annexure A-4. So, the reading of the odometer, itself shows that the complainant had hardly used the car, therefore, the whole purpose of the complainant to purchase of car has been defeated because without the original documents the complainant as a lawful citizen could not ply his car on the road. It was further submitted that the complainant had spent a sum of Rs. 27,214 on the accessories installed in the car with this hope that the OPs will immediately handover the necessary documents to the complainant.
2. The complainant had paid interest @ 17.77% p.a. on the loan amount whereas the learned District Forum has overlooked this fact and erred in awarding interest @ 9% p.a., wherein it has been established that the vehicle could not be put to any use by the complainant since its purchase due to lack of the necessary documents which were withheld by the OP Nos. 1 and 2.
3. It is very clear that the complainant on one hand has not been able to use the car in question since June, 2007 while on the other hand, the complainant has been burdened with renewing the insurance cover of the said car.
Therefore, the appellant/complainant prayed that the appeal may kindly be accepted by modifying the impugned order passed by the learned District Forum and compensation granted by the learned District Forum may kindly be enhanced.
13. The learned Counsel for the respondent No. 3 i.e. Cortes Financial Service Pvt. Ltd. (franchisee of ICICI Bank Ltd.) prayed that as there is no cause of action has arisen against the respondent No. 3, therefore, the appeal filed by the complainant against the respondent No. 3 be dismissed.
14. The learned Counsel for respondent No. 4 (OP No. 5 before the District Forum) who was ex parte before the learned District Forum submitted that there is no deficiency in service on the part of answering respondent. Hence, the appeal filed by the complainant may kindly be dismissed.
15. The learned Counsel for the appellant i.e. OP Nos. 1 and 2 in the cross appeal filed by them bearing No. 44 of 2009 against the impugned order dated 5.12.2008 argued that the relevant papers could not be delivered to the complainant because the complainant failed to pay an amount of Rs. 16,500. It is submitted that OP is still ready to hand over the above said papers to the complainant provided the complainant to make the payment of the due amount but while allowing the complaint, the learned District Forum has ignored this fact as mentioned above.
16. After going through the facts of the case and hearing the learned Counsel for the parties, we have come to the conclusion that definitely there is a deficiency in service on the part of OP Nos. 1, 2 and 5 and the learned District Forum has allowed the complaint by directing OP Nos. 1, 2 and 5 to pay compensation for a sum of Rs. 25,000 jointly and severally. But we are of the view that the compensation awarded for a sum of Rs. 25,000 seems to be on the lesser side as it is very clear that the respondent Nos. 1, 2 and 4 have failed to handover the necessary documents to the complainant even after the receipt of the order passed by the learned District Forum. Had the respondent Nos. 1, 2 and 4 had the intention to hand over the necessary documents to the appellant/complainant then the respondents after deducting the amount of Rs. 16,500 from the compensation i.e. Rs. 25,000 awarded by the learned District Forum would have immediately handed over the necessary documents to the appellant/complainant but the respondents failed to do so. We dont find any bona fide in submissions made by the respondents as mentioned above. Therefore, while keeping in mind this fact that inspite of spending a huge amount that too by taking a loan from the bank on such a high rate of interest the appellant/complainant since long could not drive his car. It shows that the whole effort made by the appellant/complainant to fulfil his purpose has been defeated. Therefore, we are of the view that the appellant/complainant should be compensated adequately.
17. In view of the foregoing discussions, we allow the appeal by modifying the impugned order passed by the learned District Forum and we direct respondent Nos. 1, 2 and 4.
(i)Â To handover complete papers of the said car to the appellant/complainant within 10 days from the date of receipt of copy of this order.
(ii)Â To cooperate with the appellant/complainant in the transfer of the vehicle and do the needful, if so required.
(iii)Â Not to demand Rs. 16,500 from the appellant/complainant and also pay a sum of Rs. 50,000 more jointly and severally as a compensation for delay in transfer of the car and causing harassment to the appellant/complainant.
(iv)Â To pay Rs. 2,500 as costs of litigation to the complainant jointly.
This order is directed to be complied with by respondents No. 1, 2 and 4 within 45 days from the date of receipt of copy of this order, failing which interest @ 9% will be charged.
18. The cross appeal filed by OPs No. 1 and 2 i.e. Balaji Car Point is dismissed as devoid of any merit without any order as to costs.
19. Copies of this order be sent to the parties, free of charge.