The instant case has been initiated by the complainant U/S – 35 of C.P. Act, 2019 against the Opposite Parties claiming an amount of Rs. 9,00,000/- + Compensation Rs.1,00,000/- (Total Rs. 10,00,000).
The fact of the case, in brief, is that the Complainant purchased one TATA Truck of 14, Wheel, Model 3723, having registration no. WB- 23-C/7070.The Complainant purchased the said vehicle on finance from Opposite Party No.1 and run the same for business for few months. On 26.12.2019 the Complainant agreed to sale the said vehicle to Opposite Party No.2 and for the same the Complainant and the Opposite Party No.2 entered into an agreement. The Opposite Party No.2 agreed to purchase the vehicle at a sell price of Rs.14,00,000/- and out of which he made an advance of Rs.1,50,000/-. Again 0n 23.03.2020 he paid a sum of Rs.3,10,000/- but he deducted Rs.10,000/- as loan processing charge, even he finally paid a less amount of Rs.50,000/- from the advanced amount.. The Opposite Party No.2 told that he will re-finance the vehicle from the Opposite Party No.1 and the Opposite Party No.1 will directly pay this petitioner the balance amount of Rs.9,00,000/- by the Opposite Party No.2. But even after transfer of ownership, the Opposite Party No.2 has not paid any amount due against the sale of the vehicle to this Complainant till date. There has been lapse of more than one year after sale of the vehicle. The Opposite Party No.2 repeatedly assured the Complainant for payment of the due amount but with no result. The Complainant also complained before the Consumer Affairs but with no result. Having no alternative the Complainant filed the instant case for relief as prayed in the plaint.
Notice was duly served upon the opposite Party No.1 and after receiving the notice, the Opposite Party No.1 appeared before this Commission and filed his written version. The notice issued to the Opposite Party No.2 twice but returned with postal endorsement not Known. So, on the prayer of the Complainant, paper publication was made, still then the Opposite Party No.2 did
not appear within prescribed period. So, the case is proceeded ex parte against the Opposite Party No.2.
By filing written version, the Opposite Party No.1 has stated that there is no privities of contract between Complainant and the Opposite Party No.1 as he has not financed the said vehicle to the Complainant and the Complainant has no proof that he has taken the vehicle on finance from Opposite Party No.1. The Complainant himself has stated that Opposite Party No.2 has assured the Complainant for payment of the due amount with reference to the said transfer of vehicle to Opposite Party No.2 and received the mentioned amount from Opposite Party No.2. Therefore, prayer as made by the Complainant towards compensation against Opposite Party No.1 is false and baseless. The present case is misconceived and liable to be dismissed.
To prove his case, the complainant has filed photo copies of -
(i) Letter to the Branch Manager dated 07.10.2020
(ii) Application to the Consumer Affairs
(iii) Agreement for sale dated 23.02.2020
(iv) Agreement for sale dated 26.12.2019
(v) Smart card of vehicle
(vi) Letter of registration
(vii) Letter to Mahindra Finance
(viii) Another letter to Mahindra Finance.
On the other hand, the Opposite Party No.1 has filed some documents in support of his defense-
- Photo copy of R.C. Book in the name of Dilip Mohanta
- Photo copy of agreement for sale.
In view of the above mentioned facts, the following points are cropped up for consideration-
POINTS FOR CONSIDERATION
1. Whether the Complainant is a consumer to the Opposite Parties?
2. Whether there is any deficiency in service on the part of the Opposite parties?
3. Whether the Complainant is entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
We have heard argument by the Ld. advocate for the complainant and Ld. Advocate for the opposite partiy No.1 at length. We have also gone through the evidence and written argument filed by the parties. Perused the documents filed by the Complainant and O.P. No.1.
At the time of argument Ld. Advocate for the Complainant narrated the fact of the case as mentioned in the plaint. He further submitted that the Complainant is a consumer to the Opposite Parties and there is deficiency in service on the part of the Opposite Parties. The Complainant has successfully proved his case. So, the Complainant is entitled to get relief as prayed for.
On the other hand, Ld. Advocate for the Opposite Party No.1 also narrated his defense case as mentioned in the written version. Ld. advocates for the Opposite Party No1 submitted that there is no negligence or deficiency in service on his part. He further submitted that as per contention of the Complainant, the Opposite Party No.2 is liable to pay the due amount as per their agreement. Hence, the case is liable to be dismissed against him.
Now, let us discuss all the points one by one.
Point No. 1
On perusal of the materials on record, it appears that there has been an agreement for sale of a vehicle in between the Complainant and the Opposite Party No.2 and the Opposite Party No.2 has not paid the total agreed amount to the Complainant and the Opposite Party No.1 is a insurer. If that be the so, then it is clear that the Complainant is a consumer to the Opposite Parties according to section (2)(7) of Consumer Protection Act, 2019.
Accordingly, this point is decided in favour of the Complainant.
Point Nos. 2 & 3
Both these points are taken up together for discussion for the sake of convenience and brevity.
On perusal of the Certificate of Registration, it appears that the Complainant was the owner of the Vehicle no.WB23C7070. Again, from the agreement for Sale dated 23.02.2020 in between the Complainant and the Opposite Party No.2, it appears that the Complainant was agreed to sale the said vehicle to the Opposite Party No.2 at a consideration of Rs.14,00,000/- and the Opposite Party No.2 paid Rs.5,00,000/- as advance to the Complainant and a sum of Rs.9,00,000/- was due to be paid by the Opposite Party No.2. This agreement bears the signatures of the Complainant and the Opposite Party No.2. Further, on perusal of the loan approval letter of the Opposite Party No.1 in favour of the Opposite Party No.2, it appears that the Opposite Party No,1 was agree to finance Rs. 9,00,000/- as loan to the Opposite Party No.2 on the basis of which the said vehicle was handed over to the Opposite Party No.2 by the Complainant and the said vehicle is registered in the name of the Opposite Party No.2 and the vehicle is still in the possession of the Opposite Party No.2.
It is the contention of the Complainant the in spite of taking loan from the Opposite Party No.1, the Opposite Party No.2 has not paid the due amount to the Complainant. The Opposite Party No.2 did not appear before this Commission to challenge the allegation of the Complainant whereas the Opposite Party No.2 stated that there is no latches on the part of the Opposite Party No.1 and he has already provided loan of Rs.9,00,000/- to the Opposite Party No.2. Thus, it is clear that there is negligence on the part of the Opposite Party No.2 and he is bound to pay the due amount of Rs.9,00,000/- to the Complainant.
In view of the above mentioned discussions, it has been established that the Complainant is a bona fide consumer to the Opposite Parties No.1&2 and there is deficiency in service on the part of the Opposite Party No.2. We do not find any fault or deficiency in service on the part of the Opposite Party No.1.
Accordingly, both these points are decided in favour of the Complainant.
Hence, it is
O R D E R E D
That the Consumer Case No. 06 of 2021 is hereby dismissed on contest against the Opposite Party No.1 and allowed ex parte in part against the Opposite Party No.2 but with cost.
The Opposite Party No.2 is directed to pay a sum of Rs.9,00,000/- along with an interest @ 8% p.a. from 23.02.2020 till the full realization by issuing an account payee cheque in favour of the Complainant within 45 days from the date of passing of this order. The Opposite Party No. 2 is also directed to pay Rs. 5,000/- toward litigation cost and Rs.5,000/- towards compensation failing which the Complainant is at liberty to execute the order as per law.
Let a plain copy of this order be supplied to the parties free of cost.
