INDO Shell Auto Agency
This is a discussion on INDO Shell Auto Agency within the Judgments forums, part of the General Discussions category; Mr. R.Selvaraj, S/o. Rangasamy No.7/2, Manikavasakar Street, Bharathipuram, Pallapalayam (PO) Ondipudur, Coimbatore – 43. --- Complainant Vs. INDO Shell Auto ...
- 09-12-2009, 09:29 AM #1
INDO Shell Auto Agency
Mr. R.Selvaraj, S/o. Rangasamy
No.7/2, Manikavasakar Street,
Ondipudur, Coimbatore – 43. --- Complainant
INDO Shell Auto Agency (P) Ltd.,
No. 1663, Trichy Road,
Sungam, Coimbatore – 641 045. --- Opposite Party.
This case coming on for final hearing before us on 13.2.09, 3.3.09, 12.3.09, 26.3.09,1.4.09, 1.4.09, 9.04.09, 15.4.09, 22.4.09, 29.4.09 and 4.5.09 in the presence of Mr.V.NandaKumar and Mr.A.Gunasekar Advocates for complainant and of Mr.T.S.Krishnamoorthy & Mrs. Rajarajeswari Janaki, Advocates for opposite party and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:
Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay Rs.2,00,000/- as compensation and damages due to the unfair trade practice and to pay Rs.5,000/- towards cost of the proceedings.
The case of the complaint are as follows:
1. The Complainant on 18.5.07 had paid a sum of Rs.16,474/- by cash to the opposite party towards the purchase of TVS Scooty Pep, purple colour, Out of the said amount on the same day the opposite party has adjusted a sum of Rs.2,500/- towards Life time Road Tax, a sum of Rs.942/- towards Insurance charges, a sum of Rs.750/- towards miscellaneous expenses, Rs.18/-towards SC Kicker Boot, Rs.110.22/- towards floor mat, a sum of Rs.333/13 towards Pep bumper and a sum of Rs.3,809/89 towards VAT tax. On the same day Indus Ind Bank Ltd., Avinashi Road, Coimbatore has approved and disbursed in favour of the opposite party a sum of Rs.22,008/- towards the balance amount for the purchase of TVS Scooty Pep+. On 18.5.07 the opposite party has sold a TVS Scooty Pep+ vehicle, purple colour, bearing chassis No. MD626BG3X72D69011 and Engine No. 0G3D72370554 to the complainant.
2. On 27.5.07 the complainant along with the said vehicle met
With a road accident. Due to the road accident the complainant and one Ayyasamy sustained injuries and the said Ayyasamy subsequently on 4.6.07 died. The complainant was admitted in K.G.Hospital, Coimbatore and on 7.6.07 discharged from the hospital. The complainant on 20.6.07 he has approached the staffs of the opposite party and sought a copy of the insurance policy. The complainant was shocked and surprised to note that even after receiving the money for insurance on 18.5.07 the opposite party has not taken the insurance policy on 18.5.07. The opposite party has taken the insurance policy only on 28.5.07 with IFFCO TOKIO general Insurance. The opposite party’s action amounts to unfair trade practice.
3. The complainant on 20.6.07 itself he handed over a letter to the Manager and sought for explanation and damages for a sum of Rs.2,00,000/- the legal-heirs of the deceased Ayyasamy have filed a M.C.O.P.No.25 of 2008, claiming a sum of Rs.4,50,000/- as compensation for the death of Ayyasamy, against the complainant before the Chief Judicial Magistrate, Coimbatore. The said case is still pending. In the said case, the opposite party and IFFCO-TOKIO General Insurance has not been impleaded as respondents. Inspite of repeated demands and efforts made by the complainant, the opposite party has failed and neglected to pay the damages amount. The complainant estimates the damages as Rs.2,00,000/-. On 25.7.08 he has sent a legal notice to the opposite party and thereby demanded a sum of Rs.2,00,000/- as compensation. The opposite party after the receipt of the legal notice on 26.7.08 has failed and neglected to pay the amount. Hence this complaint.
The case of the Counter Statement are as follows:
4. The complaint is not maintainable in law and on facts. The complainant being a party to the judicial proceedings in MCOP 25/2008 and having submitted to the said jurisdiction, he should seek any relief, in the said Forum and this court may not have jurisdiction to adjudicate the above matter. On 18.5.07, the complainant approached the opposite party with a view to purchase a TVS Scooty Pep+ Purple colour on loan basis. On 18.5.07, the complainant paid a booking advance of Rs.16,474/- to the opposite party which, did not include the charges towards insuring the scooter against third party risk or the other items.
5. The booking advance is decided on the basis of the initial amount paid by the purchaser and the amount of loan applied for by him and expected to be sanctioned to him by his banker. The various items mentioned by the complainant in Para III of the complaint like life time road tax, insurance etc., would arise only when the above mentioned loan is sanctioned and the payment for the scooter is made in full. This is because, in the event of the rejection of loan the opposite party would be compelled to cancel the allotment. On the complainant making the booking advance, he was issued the Vehicle allotment letter immediately. On the completion of the above formalities on 18.05.07, pleaded with it to permit him to take the scooter for a demonstration ride to the temple as it was an auspicious of the same without insurance and registration of the scooter cautioned by the opposite party.
6. However, as the complainant was an existing customer and because of his vehement pleas, the opposite party raised what is called the Temporary Certificate for Registration in respect of the scooter. The TCR appended with the temporary registration form of the Transport Department is also filed. Therefore, no question of insuring the complaint vehicle arose at all either on 18.05.07 or on the date of the accident viz 27.5.07 in the above case.
The complainant, after he took the scooter for demonstration ride on 18.5.07 on the ground of its being an auspicious day, wrongfully and unauthorisedly retained the same and reported to the dealer again only on 15.10.07. thus, the complainant, due to his own wrong, lost the benefit of the said TCR facility which covered the risk of accident to the tune of Rs.1,00,000/- during the period from delivery of the scooter viz., 18.05.07 till date of order of payment of balance of sale price and the insurance of the vehicle on 28.05.07.
7. The complainant caused an accident on 27.5.07 due to rash and negligent driving as a result of which a third party died. The opposite party learns that charges of commission of several offences under the MV Act and its rules were made against the complainant including (a) driving the scooter rashly and negligently and causing the death of the third party, (b) driving the scooter without permit (S.86) , (c) liability for special compensation in case of vexatious claim or defence (rule 172), (d) driving the scooter, at the time of the occurrence of the accident, without license (Ss.5 and 15), (e) driving without valid third party insurance (S.146 read with Rule 196) and (f) driving the scooter without valid emission certificate (S.190 read with Rule 115).
8. The opposite party learns that five criminal cases in STC 1240/2007, STC 1241/2007, STC 1242/2007, STC 1243/2007 and STC 1244/2007 were filed against the complainant in the court of the Judicial Magistrate II Coimbatore and that the complainant admitted the commission of all the offences covered by the said five cases on 6.09.07 and paid a find of Rs.3,300/-. The Invoice in the name of the complainant was raised on 28.05.07. The scooter was insured on 28.5.07 for the period from 28.5.07 to 27.5.08 the loan amount was actually disbursed by the Indus Ind Bank on 5.6.07 for which the receipt was issued by the opposite party for the same together with payment for other vehicles by the Bank. The complainant brought the scooter for registration as late as on 15.10.07 and the registration certificate for such vehicle with Registration No. TN37AW6843, was obtained on the said day. The complaint suffers from latches and is speculative and has been filed by the complainant with ulterior motive to attempt to make wrongful gain for himself at the cost of the opposite party.
10. The complainant and opposite party have filed Proof Affidavits along with documents Ex.A1 to A10 was marked on the side of the complainant and Ex.B1 to B14 was marked on the side of the opposite party.
The point for consideration is
1. Whether the opposite party has committed deficiency in service? If so to what relief the complainant is entitled to?
11. The case of the complainant is that he has paid a sum of Rs.16474 on 18.5.07 by cash to the opposite party towards the purchase of TVS Scooty, out of the said amount the opposite party on the same day adjusted a sum of Rs.942 towards insurance charges. On 27.5.07 the said vehicle met with an accident, due to that the complainant and one Ayyasamy sustained injuries and the said Ayyasamy subsequently died on 4.6.07 . The opposite party after receiving the money for insurance on 18.5.07 has not taken the insurance policy on 18.5.07 but has taken the insurance only on 28.5.07 with Ifco Tokya General Insurance. The opposite party’s action amounts to unfair trade practice.
12. The case of the opposite party is, the complainant approached the opposite party to purchase a TVS Scooty and paid a Booking advance of Rs.16474 on 18.7.07, the various items mentioned by the complainant in para 3 of the complaint like lifetime road tax, insurance etc. would arise only when the above mentioned loan is sanctioned and the payment for the scooter was made in full.
Therefore no question of insuring the complainant’s vehicle arose at all either on 18.5.07 or on the date of accident namely 27.5.07 in this case. At the request of the complainant the opposite party handed over the vehicle along with a Temporary Certificate for Registration called TCR in respect of the scooter, this will cover the period till the date the balance purchased money for the scooter is sanctioned by the lending bank of the complainant. In this case it was on 28.5.07 the money was paid. Moreover since MCOP 25/08, invoking the jurisdiction of the tribunal under Motor Vehicles Act has been filed the complainant should seek any relief in the said MCOP proceedings only.
13. The contention of the complainant is that on 18.5.07 he has paid a sum of Rs.16474 by cash which includes a sum of Rs.942 towards insurance charges. But he has not filed any document for the payment of insurance charges. Ex.B1 is the receipt for the payment of 16474 on 18.5.07 towards booking advance. This payment did not include the charges towards insuring the scooter against 3rd party risks or the other items. Moreover the booking advance is decided based on the amount of loan applied by the complainant to his banker. The remaining balance alone is collected as booking advance.
In the present case as per Ex.B7 the bank has sanctioned the loan only on 28.5.07 and Ex.B8 is the invoice raised in the name of the complainant on 28.5.07 only, in that invoice insurance charge Rs.942 is mentioned. Ex.B9 is the insurance certificate in respect of the TVS scooty dated 28.5.07 for the period from 28.5.07 05.30a.m. to midnight on 27.05.08 05.30a.m. and Ex.B10 is the receipt issued by the opposite party for the disbursement of the loan to them by the bank for purchase of scooter which is dated 5.6.07.The above said document clearly shows that the loan was sanctioned on 28.5.07 and only on 28.5.07 the insurance charges are paid and the certificate issued on the same date. Hence on 18.6.2007 the complainant has not paid any amount towards Insurance charges.
14. Moreover in the present case as per Ex.B3, pending registration and insurance in respect of the said vehicle to cover risk during demonstration rides, the Temporary Certificate for registration was also issued in the name of the complainant on 18.5.07 itself. Therefore no question of insuring the complainant vehicle arose at all either on 18.5.07 or on the date of accident namely 27.5.07.
15. The complainant has taken the vehicle on 18.5.07 after giving a letter of assurance which is marked as Ex.B4 accepting the responsibility for any unforeseen consequences as a result of taking delivery of the scooter from the opposite party. The complainant caused an on accident on 27.5.07 and an FIR was registered and the complainant was prosecuted by the Judicial Magistrate No.2 and paid fine as per Ex.B6.
16. Moreover the MCOP 25/08 invoking the jurisdiction of the Tribunal under Motor Vehicles Act has been filed and the complainant is a party to the said proceedings before the Chief Judicial Magistrate, Coimbatore. Hence the complainant should seek any relief before that proceeding only. So the complainant has not paid insurance charges on 18.5.07. The complainant has not proved his case and he is not entitled to any relief as prayed for.
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