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2008 DIGILAW 48 (UTT)

INDER SINGH v. VERMA AUTOMOBILES

2008-02-06

C.C.PANT, IRSHAD HUSSAIN

body2008
ORDER (Per: Justice Irshad Hussain, President): This is complainant’s appeal against the order dated 03.11.2006 passed by the District Forum, Hardwar in consumer complaint No.14 of 2006. 2. Complainant had purchased an Eicher tractor in the month of February, 2004 from authorized dealer – respondent No. 1. The loan for the purchase of the tractor had been advanced by respondent No. 2, Punjab National Bank. Complainant alleged that he had paid Rs.20,000/- to respondent No. 1 to meet the expenses in arranging the bank loan, registration of the tractor and insurance of the same; that the cash memo/bill of the tractor purchase had not been given to him either by the authorized dealer or the bank; that the insurance certificate/policy and the registration certificate of the tractor had also not been given to him by the respondent No. 1, who had to be ultimately served with a notice dated 07.07.2005 for making compliance thereof; that on 08.08.2005, he went to respondent No. 1 along with his son Sher Singh and on that day, respondent No.1 gave him registration certificate dated 30.06.2005, although the tractor had been purchased in the month of February , 2004; that for want of the registration certificate of the tractor, he could not utilize the tractor in ploughing his 35 bigha of agricultural land and suffered considerable financial loss, beside being put to harassment, both mental and physical; that he had also been forced to give his land on batai basis for cultivation purposes, putting him to loss of about Rs. 5,000/- per bigha and instead of earning sum of about Rs. 2,80,000/- during a period of 18 months, he could earn only about Rs. 1,40,000/- by cultivation of the land on batai basis; that both the respondents were responsible for not giving him the documents pertaining to the tractor and their conduct not only tantamount to unfair trade practice, but also amounted to serious deficiency in service and that the respondents have made themselves liable to pay proper and reasonable compensation to him. 3. Complainant prayed for award of compensation of Rs. 1,40,000/- by reason of loss of earning by cultivation and raring of the crops in his agricultural land, besides damages of Rs. 50,000/- and Rs. 3,000/- towards litigation expenses. 4. Respondent No. 1 in his written statement refuted the allegation about payment of sum of Rs. 3. Complainant prayed for award of compensation of Rs. 1,40,000/- by reason of loss of earning by cultivation and raring of the crops in his agricultural land, besides damages of Rs. 50,000/- and Rs. 3,000/- towards litigation expenses. 4. Respondent No. 1 in his written statement refuted the allegation about payment of sum of Rs. 20,000/- to him for miscellaneous expenses as stated above and pleaded that the complainant was informed in reply to the notice that the agent through whom the registration of the tractor was got done, had left the certificate in his office and the same had not been collected by the complainant, who himself was highly negligent and failed to turn up despite repeated reminders. He also gave out that second insurance of the tractor was got done on 27.02.2005 and the cash memo/bill of the tractor had been retained by the bank, with which the tractor purchased had been hypothecated. It was next submitted that the complainant had regularly utilized his tractor in his agricultural work, besides letting out the tractor to others for additional earning. He claimed that neither any unfair trade practice, nor any deficiency in service has been made in relation to the above transaction with the complainant. 5. Respondent No. 2, Punjab National Bank pleaded that the responsibility to have the tractor registered and insured after the purchase by the complainant, was that of respondent No. 1, the authorized dealer; that the cash memo/bill of the purchase of the tractor is retained by the bank till the loan advanced is repaid and that no deficiency in service has been made in the matter of grant of loan as well as in relation to the purchase and subsequent registration etc. of the tractor. 6. In the evidence in the case, the parties besides their affidavits, also placed on record relevant documents. 7. On an appreciation of the material on record, the President of the District Forum by his order dated 03.11.2006 awarded compensation of Rs. 40,000/- against respondent No. 1, besides damages of Rs. 10,000/- against respondent No. 2 and litigation expenses of Rs. In the evidence in the case, the parties besides their affidavits, also placed on record relevant documents. 7. On an appreciation of the material on record, the President of the District Forum by his order dated 03.11.2006 awarded compensation of Rs. 40,000/- against respondent No. 1, besides damages of Rs. 10,000/- against respondent No. 2 and litigation expenses of Rs. 1,500/- with interest @ 12% p.a. to the complainant, on the premise that the complainant has suffered financial loss as well as harassment and mental agony by reason of the registration of the tractor having not been made within reasonable time and, as such, deficiency in service has been made apart from the unfair trade practice exhibited by respondent No. 1 in regard to his obligation in getting the registration certificate of the vehicle. The complaint was, however, dismissed with cost of Rs. 500/- by the majority order of the other two Members of the District Forum by the impugned order dated 03.11.2006, on the findings that there was no reliable evidence to prove that the complainant paid Rs. 20,000/- to the respondent No. 1 for the purposes as mentioned above and that the material on record prove beyond doubt that the delay in getting the registration of the tractor done, was on account of the fact that the complainant got the tractor insured after about 16-17 months and further that as is evident from the job card (Paper No. 59 filed as annexure of the affidavit of the respondent No. 1), the tractor was shown to have been used for 796 hours till 14.12.2004 at the time of the fifth service and, as such, the claim that the complainant failed to make use of his tractor for agricultural purposes for want of registration certificate, proved false and baseless. In the opinion of the Members of the District Forum, the complainant has not suffered any financial loss due to delay in getting the tractor registered with the registration authority. Aggrieved by the impugned order, the appeal has been preferred and the complainant reiterated his allegations for grant of compensation and damages as prayed for in the consumer complaint. 8. We have heard the learned counsel for the parties and have carefully perused the evidence on record in the light of the legal aspects of the case. Aggrieved by the impugned order, the appeal has been preferred and the complainant reiterated his allegations for grant of compensation and damages as prayed for in the consumer complaint. 8. We have heard the learned counsel for the parties and have carefully perused the evidence on record in the light of the legal aspects of the case. The submissions of the learned counsel may be divided into following points for determination of this appeal : (i) Whether respondent No. 1 had undertaken to get first insurance cover of the tractor as well as the registration of the vehicle and to deliver relevant documents to the complainant? (ii) Whether sum of Rs. 20,000/- had been paid by the complainant to respondent No. 1 to meet the expenses in arranging the bank loan for purchasing the tractor and getting the vehicle insured and its registration certificate? (iii) Whether the respondents and either of them made deficiency in service as alleged by the complainant? If so, the complainant was entitled to any amount of compensation/damages from the respondents or any of them? 9. Point No. (i) – The gist of the allegations of the complaint was that respondent No. 1, an authorized dealer of Eicher tractor, had undertaken and assured that the complainant would be provided loan facility for purchase of the tractor and the same shall be handed over to the complainant after getting the tractor duly registered and insured. Although, many of the allegations of the complaint have not as such been admitted by the respondent No. 1, but the averment made in paragraph No. 4 of the written statement of respondent no. 1 amply prove that respondent no. 1 had undertaken the responsibility for sanctioning of loan for purchase of tractor by the complainant and have it duly transferred together with its insurance cover. Learned counsel for the complainant – appellant rightly argued that the assurance to have the tractor transferred to the complainant after sanctioning of loan from the bank, clearly meant that the registration of the vehicle was got to be done on behalf of the complainant by the respondent No. 1. Learned counsel for the complainant – appellant rightly argued that the assurance to have the tractor transferred to the complainant after sanctioning of loan from the bank, clearly meant that the registration of the vehicle was got to be done on behalf of the complainant by the respondent No. 1. It is of significance that though the respondent No. 1 made no averment in the written statement about any scheme floated by him to enhance and augment the sale of tractors keeping in view the prevailing competition among the various dealers, but went on to make a positive assertion to this effect in his affidavit dated 24.08.2006 and precisely in paragraph no. 20 of the same coupled with the assertion that benefit of the scheme was extended to the complainant in the matter of sale of the tractor and under the scheme, he was only obliged to get the registration of the tractor done at his cost and to give the same to the complainant. Normally, when any scheme for promotion of sale is floated by any authorized dealer, pamphlets or printed material is being prepared and distributed so that the interested parties may be made aware of promotional scheme for sale of the vehicle/tractor. Respondent No. 1 could not place on record any such printed material in support of the averment that the complainant opted to avail the benefit of the promotional scheme and under it, only the registration certificate of the tractor was to be procured and to be delivered to the complainant by respondent No. 1. In the absence of any such material having been placed on record, we are not inclined to accept as to the averment of the affidavit and it appear that the respondent No. 1 had tried to make an improvement to his stand in order to controvert the claim made by the complainant and in the totality of the circumstances of the case, we feel it safe to reject the contention that the tractor was purchased under any promotional scheme floated by the respondent No. 1. 10. Having held so, the things stand reverted back to the above stated averment made in paragraph No. 4 of the written statement, which being an admission of the respondent No. 1, prove to the tilt that it was respondent no. 10. Having held so, the things stand reverted back to the above stated averment made in paragraph No. 4 of the written statement, which being an admission of the respondent No. 1, prove to the tilt that it was respondent no. 1, who had undertaken and assured to the complainant that he will have the loan sanctioned for purchase of the tractor, shall obtain insurance cover of the tractor and shall have the same duly transferred to the complainant. There can be no doubt that transfer of the vehicle purchased from loan, referred to getting the registration certificate obtained in the name of the purchaser, the complainant in this case. It shall also be advantageous to refer to the stand taken by the respondent No. 2, the bank. In its written statement, it has been clearly stated that it was the responsibility of the dealer, respondent No. 1 to have the tractor insured for the first time and also to have its registration certificate from the authority concerned. The averment of the written statement was not later on specifically questioned or disputed by the respondent No. 1 in his affidavit and in the totality of the facts of the case, the stand of the bank also fortify our above inference that the respondent No. 1 had undertaken to have the first insurance of the tractor, besides registration certificate of the same and to deliver the relevant documents to the complainant. 11. From above, it is evident that the Members of the District Forum have not considered the material on record in proper perspective and returned an incorrect finding in that regard. The point is answered accordingly. 12. Point No. (ii) – In the complaint, the allegation regarding payment of Rs. 20,000/- to respondent No. 1 has been made, but the same is vague inasmuch as neither any date, nor any month, in which the sum of Rs. 20,000/- was paid, has been mentioned. Complainant has also not mentioned as to before whom and in whose presence. Sum of Rs. 20,000/- had been paid. No receipt of payment of the amount has also been filed and in the totality of the circumstances of the case, we see no cogent reason to differ with the conclusion of the Members of the District Forum that the complainant failed to prove by cogent evidence that sum of Rs. Sum of Rs. 20,000/- had been paid. No receipt of payment of the amount has also been filed and in the totality of the circumstances of the case, we see no cogent reason to differ with the conclusion of the Members of the District Forum that the complainant failed to prove by cogent evidence that sum of Rs. 20,000/- has been paid by the complainant to respondent No. 1 to meet the expenses in arranging the bank loan for tractor etc. Here it need to be mentioned that even otherwise, failure of prove of payment of Rs. 20,000/- has had no bearing on the controversy regarding the undertaking and assurance given by the respondent No. 1 to the complainant in the matter of getting the first insurance cover of the tractor and also to have the registration of the vehicle done for the benefit of the complainant. The evidence of the parties in that regard had been taken note of and duly considered in coming to a definite conclusion as referred thereto under point No. (i), which stand decided in favour of the complainant. The point is answered accordingly. 13. Point No. (iii) – At the outset, we would like to refer to the job card dated 14.12.2004 (Paper No. 59), prepared at the time of fifth service of the tractor purchased by the complainant and which sufficiently prove that till that date, the tractor had run and used for 796 hours after its purchase on 28.02.2004. This document indicate that in less than ten months, the tractor had been utilized by the complainant for 796 hours and in all probability, for agricultural purposes. Therefore, we are not inclined to accept the claim made by the complainant that he could not use his tractor for about 17 months for want of registration certificate and that he was even forced to let out his agricultural land for ploughing and raring of crop on batai basis. Significantly enough, the complainant has not disclosed the name of his bataidar, what to think of any agreement of the same, being placed on record. In the absence of credible material and evidence, we agree with the finding of the Members of the District Forum that the complainant failed to prove that he had suffered considerable loss to the tune of Rs. 1,40,000/- on account of not utilizing his tractor for his agricultural purposes. In the absence of credible material and evidence, we agree with the finding of the Members of the District Forum that the complainant failed to prove that he had suffered considerable loss to the tune of Rs. 1,40,000/- on account of not utilizing his tractor for his agricultural purposes. Therefore, alleging deficiency in service on this account, the complainant was not entitled to compensation of Rs. 1,40,000/- claimed by him. 14. However, we cannot lose sight of the fact that despite the undertaking and assurance by respondent No. 1, the registration certificate of the tractor (Paper No. 22) was procured on 30.06.2005 by respondent No. 1 after about 16 months from the date of purchase and delivery of the tractor to the complainant. The explanation for delay that the complainant failed to have the tractor duly insured for the first time to facilitate the registration of the vehicle, has not been accepted in view of the discussion made under point No. (i) above. The reason, in short, being that the respondent No. 1 had also undertaken to have the tractor duly insured for the first time and if he had not done so, the explanation for delay in getting the registration certificate, was not at all acceptable. In view of the tractor not being insured for the first time and the registration certificate having been obtained after about 16 months from the purchase of the tractor, we have no alternative but to accept the claim of the complainant that the respondent no. 1 made deficiency in service in view of his not fulfilling the assurance and undertaking attached to the sale of the tractor to the complainant. In this connection, it is also of significance that the tractor was hypothecated with the bank, respondent No. 2, which was also obliged to see that the tractor did not remain without insurance coverage in the first year of its purchase and the bank only went to fulfill its obligation after a year, when the insurance cover of the tractor for the period 24.02.2005 to 23.02.2006 (Paper No. 23) was obtained and in all likelihood, on payment of the premium by it under a debit transaction of the loan account of the complainant. It need to be pointed out that the whole concept of getting a vehicle insured by an insurance company is to provide a mode of getting compensation to the owner in case the vehicle met with an accident or there is any untoward incident. If any such contingency were to happen during the first year of the purchase of the tractor, without any insurance coverage, the liability to meet the damage was to be that of the complainant alone and he would not have been entitled for reimbursement from either the bank or any other agency. Therefore, not only the respondent No. 1, but also the respondent No. 2 made deficiency in service in not having the insurance coverage of the tractor of the complainant of the very first year of its purchase and further that the respondent No. 1 also made deficiency in service in not getting the tractor registered within reasonable period, putting the complainant to lot of harassment and mental agony. Thus, both the respondents were liable to pay reasonable compensation to the complainant for their act of negligence and deficiency in service as stated above. So far as the quantum of compensation is concerned, the President of the District Forum in his minority judgment awarded compensation of Rs. 40,000/- against respondent No. 1 and damages of Rs. 10,000/- against respondent no. 2 with cost of Rs. 1,500/- with interest. To us, the quantum clearly appear to be on the higher side considering the deficiency in service made by these respondents and in the totality of the circumstances of the case, we are of the view that it will be just and proper to saddle the respondent No. 1 with the liability to pay compensation of Rs. 10,000/- and to saddle the respondent No. 2 with the liability to pay damages of Rs. 5,000/- only. The respondent No. 1 shall also pay a cost of Rs. 1,000/- and the respondent No. 2 shall pay a cost of Rs. 500/- to the complainant. Considering the facts of the case, we need not grant any interest on the amount of compensation and damages to be awarded to the complainant. The point is answered accordingly. 15. For the reasons aforesaid, this appeal succeed and is to be allowed accordingly. 16. Appeal is allowed. Order dated 03.11.2006 of the District Forum is set aside. The consumer complaint is partly allowed. The point is answered accordingly. 15. For the reasons aforesaid, this appeal succeed and is to be allowed accordingly. 16. Appeal is allowed. Order dated 03.11.2006 of the District Forum is set aside. The consumer complaint is partly allowed. The respondent No. 1 is directed to pay the compensation of Rs. 10,000/- and cost of Rs. 1,000/- to the complainant and the respondent no. 2 is directed to pay the damages of Rs. 5,000/- and cost of Rs. 500/- to the complainant.