Orissa

Dhenkanal

CC/14/2016

Debasis Mohapatra - Complainant(s)

Versus

Sky Automobiles , Dhenkanal & Others - Opp.Party(s)

13 Nov 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

 

C.C.Case No.14 of 2016

 

Debasis Mohapatra, aged about 35 years,

S/o-Basanta Kumar Mohapatra, of Gudianali,

Teachers Colony, P.s – Town, P.o / Dist – Dhenkanal                …….Complainant

 

Versus

 

1. Sky Automobiles, Maruti Authorised Dealer,

Plot No. 136 / 1103, Kathagada, Near Assam Oil,

Dhenkanal – 759001

 

2. Maruti Suzuki India Limited,

Palam Gurgaon Road,

Gurgaon – 122015, Haryana                                     …….Opposite Parties

 

Present : Miss Bijayalaxmi Satapathy, Member

               Sri Purna Chandra Mishra, Member

 

Counsel for the Complainant : - Mr.S.R Sathpathy and Associate, Advocates

             For the O.P No.1: - Mr B Gadhei and Associate, Advocate

             For     O.P NO. 2: - Self

 

Date of Hearing Argument : 7.11.2017

 

Date of Order ; 13.11.2017

 

JUDGEMENT

 

Sri Purna Chandra Mishra, Member

 

The complainant has filed this petition against the opposite parties U/s 12 of the C.P Act 1986 alleging deficiency in service and unfair trade practice on their part and claiming a sum of Rs 2,619.00 as the differential road tax collected in excess from him and a sum of Rs 17,010.00 paid toward the cost of insurance with interest @ 12% p.a from the date of purchase till its realization alongwith compensation of Rs 50,000.00 for harassment and compensation and a sum of Rs 10,000.00 towards cost of litigation.

 

1. The brief fact of the complainant’s case is that he has purchased one Maruti Wagon R car on dt. 9.9.14 financed by Union Bank of India Dhenkanal Branch for a consideration of Rs 3,47,403.00. The O.P No. 1 who happens to be the dealer at Dhenkanal received the cost of insurance, cost of registration and road tax and the vehicle was registered with RTA Dhenkanal. Even though the O.P No. 1 received a sum of Rs 22,516.00 towards road tax registration etc. he actually deposited a sum of Rs 19,897.00 towards the said cost and did not refund the differential amount of Rs 2619.00. Further the petitioner paid a sum of Rs 17,010.00 towards the cost of insurance of the said vehicle. The O.P No. 1 issued an insurance policy on dt. 9.9.14 bearing policy no. 35101031146135406725 which covered the period from 10.9.14 to 9.9.15. Subsequently on dt. 26.9.14 another insurance policy was issued with the same number covering the period from 26.9.14 to 25.9.15. Both the policies have been issued from National Insuarance Company and contains the details of the vehicle. Even though the policy number was one and the same the dates were different which has created a doubt in the mind of the complainant for which he issued a legal notice to the O.P No. 1 claiming therein compensation for Rs 50,000.00 and refund of the cost of insurance and the differential amount relating to registration etc. As the O.Ps did not respond to the legal notice he was compelled to file this petition before this Forum for the reliefs prayed for in the complaint petition.

 

2. After receipt of notice the opposite parties appeared and filed their written statement. The O.P No. 1 filed his written statement through his Advocate and the O.P No. 2 filed his written version by post.

 

3. The O.P No. 1 in his written statement did not admit the charges brought against him and denied the allegation of deficiency in service. The O.P No. 1 admitted the fact of sale of the vehicle and also admitted that they have refunded a sum of Rs 2619.00 to the complainant which he received in shape of accessories and therefore this allegation is incorrect. So far as insurance policy is concerned it is stated that temporary insurance policy was given to the petitioner for his benefit and the same continued from the date of registration onwards as a permanent one. So they deny the charge of deficiency in service and pray for dismissal of the complaint petition with costs.

 

4. The O.P No.2 in his written statement has raised preliminary objection regarding status of the petitioner as a consumer in relation to O.P No. 2. They further raised the objection that there is no privity of contract between O.P No. 2 and petitioner and the case is bad for non joinder and mis joinder of necessary parties and further plead that the case is not maintainable as because he is a manufacturer not a dealer. The O.P No. 2 admitted the fact of sale and stated that he has not received any consideration from the complainant towards registration, insurance etc. He further asserted that National Insurance Company is a necessary party as the whole allegation revolves round him and in his absence the case cannot be adjudicated properly. In the present case they are not liable to render any service to the complainant and the complainant has no cause of action against the O.P No. 2 to file this case against him and therefore pray for dismissal of the complaint with costs.

 

5. The petitioner in support of his case has filed the quotation dt. 9.9.2014 issued by the O.P No. 1, delivery order issued by Branch Manager Union Bank of India to O.P No. 1, payment receipt from the website of Odisha Motor Vehicle Dept by Sky Automobiles on 26.9.14, sale certificate dt. 26.9.14 issued by O.P No. 1 to RTO Dhenkanal in form 21, tax / vehicle and charge invoice dt. 26.9.14, tax / vehicle and charge invoice dt 9.9.14, copy of registration certificate, copy of the certificate cum policy schedule in respect of the vehicle issued on 10.9.2014, copy of the insurance policy dt. 26.9.2014, copy of legal notice issued by the petitioner through his Advocate and has filed his affidavit in chief in support of his case. The O.P No. 1 has filed no documents. The O.P No. 2 has filed the copy of the dealership agreement, copy of the order passed by the Hon’ble National Commission in Revision Petition no. 674 / 2004, copy of the order in Revision Petition no. 3677 / 2006 and copy of the order passed in Civil Appeal no. 708 / 2007 by the Hon’ble Supreme Court of India.

 

6. That, after filing of the written statement both the O.Ps remained absent continuously and did not participate in the hearing. After affording several chances to the opposite parties the Forum proceeded to dispose of the case on the basis of the documents available on record and written statement filed by the O.Ps.

 

7. The prime question relating to this case whether the O.Ps have caused deficiency in service and have practiced unfair trade practice with the petitioner or not?

 

It is seen from the documents on record that the O.P No. 1 in his quotation dt. 9.9.2014 has mentioned the road tax amount as Rs 22,516.36. On perusal of the payment receipt generated by O.P No. 1 it is seen that a sum of Rs 19,897.00 has been paid to the Odisha Motor Vehicle Department towards the cost of registration fees, road tax, postal delivery charge and hypothecation fees. The O.P No. 1 in Para - 9 of the written statement has stated that he has refunded this amount to the complainant in shape of accessories. Even though the O.P No. 1 has stated to have annexed the bill regarding supply of accessories to the petitioner which he has marked as Annexure A/1. But actually no such annexure has been made in the written statement filed by them. In the absence of any document to this effect it cannot be construed that the differential amount collected by the O.P No.1 has been refunded in shape of accessories to the petitioner. So we are of the opinion that the O.P No. 1 is liable to refund this amount to the petitioner.

 

8. So far as issue of insurance of policy is concerned it is seen from the documents on record that the insurance policy was once issued on dt. 9.9.14 covering the period from 10.9.14 to 9.9.15 bearing policy no. 35101031146135406725 issued by National Insurance Company Ltd. The second policy also has been issued against the same vehicle from 26.9.2014 to 25.9.15 by National Insurance Company. Since the matter relates to issue of policies on two different dates by the insurer this question would have been properly adjudicated if National Insurance Company and Maruti Insurance Broking Pvt. Ltd. would have been impleaded as parties in this case. The petitioner in the complaint petition has clearly pleaded that he had been to the branch office of the insurance company at Dhenkanal to ascertain which one of the policies is correct but the Branch Manager could not tell them anything regarding the authenticities of the policies as these policies are online policies. It is seen from the insurance documents on record that both the policies have been issued from Division No. 10 of National Insurance Company New Delhi through Maruti Insurance Broking Pvt. Ltd. The petitioner knowing fully well that the policies have not been issued from Dhenkanal Branch made an application to call for a status report from the Branch Manager, Dhenkanal Branch, National Insurance Company Ltd. to provide a status of report regarding the authenticity of the policies even though in the face of both the policies the address of the issuing office has been clearly mentioned. It remains in mystery as to why the petitioner avoided to implead the policy issuing office of the company and the brokers through whom the policies has been sold and serviced as a necessary parties and why he avoided to make a prayer to the Forum to call for the report from the both of them rather preferred to make a prayer to call for the report from Dhenkanal Branch being fully aware of the fact that it is not available with him. In absence of National Insurance Company and the issuing and servicing agency the Forum is in complete darkness regarding the exact state of affairs leading to issue of insurance certificate of the same number on two dates.

The O.P No. 1 has stated that the first one was delivered for the benefit of the customer as a temporary one and on the date of submission of the documents for registration of the policy has been converted to a permanent one. It is seen from the documents filed by the petitioner that the complainant has put his signature in the column meant for “customer name and signatory” on the tax / vehicle and charges invoice on dt. 26.9.14 and so also in the same invoice dt. 9.9.14. The petitioner has remained silent in his complaint petition as to how and under what circumstances he has put his signature in the same document on two different dates. The registration certificate issued by RTO Dhenkanal does not reflect the date of sale of the vehicle. It is settled principle of law one who asserts has to prove. In the instant case the petitioner has failed to led evidence to the fact that the insurance certificates issued by the O.P No. 1 to him are fake..

The petitioner could have taken the assistance of the toll free number and email id of the issuing authority of the insurance policy and its broker to ascertain the authenticity of the policy. Anyway if the O.P No. 1 has issued two policies to the petitioner by receiving the cost of one policy then the petitioner is no way affected by that rather the loss incurred is on the part of O.P No. 1 if at all he has done it due to carelessness..

 

The petitioner has filed this case on dt. 11.3.16. The matter relates to the year 2014. The legal notice has been issued on dt. 4.11.14. There is nothing on record to show that the legal notice was duly sent to the O.P No. 1 and it has been delivered to the O.P No. 1 and to Maruti Insurance Broking Pvt. Ltd. The gap between filing of the case and the date of receipt of both the insurance policies is after a gap of 15 (fifteen) months. There was sufficient time in hand of the petitioner to verify all these things. But the petitioner has not done any thing at his level to ascertain the truth.

 

In the absence of any evidence we are unable to hold that the insurance certificates issued by the O.P No. 1 are not genuine. So the claim of the petitioner regarding refund of the insurance premium is not tenable in the eyes of law.

 

9. The O.P No. 1 by not refunding the differential amount to the petitioner soon after the registration has caused deficiency in service and is liable to refund the same with interest from the date of receipt till it is paid to him and is also liable to pay the cost of litigation for unnecessarily dragging him to a litigation as it is the duty of O.P No. 1 to refund the said amount immediately to the customer even if he had not applied for the same.

 

10. There is no allegation of manufacturing defect of the vehicle and the matter relates to non refund of the differential amount received towards tax, insurance and registration etc in which the O.P No. 2 has no involvement and he is no way connected with these affairs and we hold there is no deficiency on the part of O.P No. 2 in this case.

 

11. As a case of deficiency in service is made out against the O.P No. 1 hence the order.

 

 

ORDER

 

The complaint petition is allowed on contest in part against the O.P No. 1 and dismissed against O.P No. 2. The O.P No. 1 is directed to refund a sum of Rs 2619.00 ( Two Thousand Six Hundred Nineteen ) only to the petitioner with interest @ 8% p.a from 26.9.2014 till it is refunded to the petitioner. The O.P No.1 is further directed to pay a sum of Rs 1,000.00 (One Thousand) only to the petitioner towards cost of litigation. The order is to be complied within 30 days from the date of receipt of this order by O.P No. 1.

 

Pronounced in the open Forum on this 13^th day of November 2017.

 

 

 

(Miss Bijaylaxmi Satapathy)                                               ( Purna Chandra Mishra)

                  Member                                                                           Member