- (1.) THIS appeal is directed against order dated 16.03.2011 of District Consumer Disputes Redressal Forum, Durg (C.G.) (hereinafter referred for short as District Forum ) in Complaint Case No.217/2007, whereby the complaint of complainant was allowed and the OPs were directed to return the vehicle No.C.G. -15 A/3646 to the complainant in running condition failing which to pay the value of the vehicle Rs.3,40,000/ - along with interest @ 7% p.a. from 08.05.2007 till final payment, also Rs.1,000/ - towards compensation for mental agony with cost of litigation Rs.2,000/ -. OPs, having been aggrieved by the impugned order, have filed this appeal.
(2.) BRIEFLY stated, facts of the case as averred in the complaint are that the complainant had made a sale agreement on 29.10.2005 with OPs in respect of two repossessed Swaraj Mazda vehicles having registration Nos.C.G.15 -A -3646 and C.G.07 -C -2210. Complainant averred that he had deposited with OPs Rs.2,00,000/ - by way of cheque and Rs.3,40,000/ - in cash. Complainant alleged that O.P.No.2 had credited the amount deposited by him in the account of different persons namely Sachin Tiwari, Rajendra Prasad Sahu, Shri Kumar, Ram Kumar Sahu, Sandip Kumar Gupta, and on raising objection for the same, O.P. no.2 informed that on the direction of the company only, registration no. of two vehicles had been mentioned in the receipts. Complainant averred that O.P.No.2 subsequently promised to deliver vehicles No.C.G.07 -C -2210 and vehicle No.CG.15 -A/3646. Complainant further averred that it had intended to purchase a vehicle No.C.G.15 -A/3646 of 2005 model having run 21000 km whereas the vehicle which was provided to him was of 2004 model and was in bad condition. The cost of the delivered vehicle was agreed for Rs.3,40,000/ - whereas another undelivered vehicle was told to be of cost of Rs.3,00,000/ -. Complainant averred that the sale agreement was done through agent Vijay Singh of the company. Complainant further averred that for taking delivery of the second vehicle, he had contacted many times at the branch offices of O.Ps at Raipur and Bhilai and having got no response from them, an Advocate notice was sent on 31.03.2007 but even then the said vehicle was not provided. Complainant averred that prior to purchase of vehicle No.C.G.07 -C - 2210 another vehicle No.C.G.15 -A -3566 was purchased on 30.09.2005. Complainant further averred that by way of aforesaid vehicles, he used to earn his livelihood by transporting vegetables, grocery material and other goods. Complainant averred that his one son is unemployed and another son is student of Engineering and also that along with his unemployed son Rajneesh Yadav, he was earning income for the livelihood of his family. Complainant averred that in lieu of the undelivered vehicle, if as an alternative its cost of Rs.3,40,000/ - is provided to him, then in such situation he prayed for compensation for the delay and financial loss, also Rs.50,000/ - for mental agony and other expenses with cost Rs.10,000/ -.
(3.) O .P.No.1 in its reply averred that it had not entered into any sale agreement with the complainant. It averred that the complainant had neither mentioned the facts correctly nor had submitted copy of the agreement. It further averred that the complainant had not provided details as to under which head the amount was deposited and with what terms and conditions etc.? O.P.No.1 has averred that whatsoever vehicle comes to it for disposal, its valuation is done and by way of its contractor no. or original hirer and also if first EMI is deposited, then finally the amount is decided. O.P.No.1 further averred that as per version of the complainant, he had made sale agreement through Vijay Singh and company had provided vehicles to Vijay Singh in lot who had deposited EMI of five vehicles. The cost of those five vehicles was more than Rs.10,00,000/ - and if the complainant claimed to have purchased the vehicles then it was totally false. O.P.No.1 averred that the complainant was required to pay cost of all the five vehicles and if he had done so then he could have filed receipts thereof and besides this after the sale of such vehicles, the purchaser was also required to issue No objection certificate? for the purpose of transfer of the vehicles. The complainant could not be provided No Objection Certificate? since he did not deposit the complete amount. O.P.No.1 averred that Vijay Singh was not his agent, as alleged by the complainant and if there was any agreement between Vijay Singh and the complainant then it had no connection with such agreement.OP no.1 while denying other averments of the complainant, prayed for dismissal of the complaint. O.P.No.2 in its reply averred that it had not entered into any sale agreement with the complainant. O.P.No.2 also averred that the complainant could have deposited outstanding loan dues in respects of those defaulters from whom he had purchased the vehicles, collect NOC and use the same. O.P.No.2 further averred that it had no connection with the complainant and another person Vijay Singh had filed tenders after issue of sale advertisement by the company and the complainant wanted to get vehicles under some agreement. OP.2 further averred that it had to issue receipts to the depositor of amount in respect of the defaulting persons from whom vehicle was proposed to be purchased, so receipts were issued accordingly to the complainant thus it was not a deficiency in service. O.P. No.2 has also averred that the complainant deals in the business of sale and purchase of vehicles so it was for commercial purpose as such he did not come in the category of consumer? as per definition u/s 2(1)(d) of Consumer Protection Act, 1986 therefore the complaint was liable to be dismissed.;