State Consumer Disputes Redressal Commission
Siddhesh R. S. Amonkar vs Caculo Automotive Pvt. Ltd. Caculo ... on 28 December, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
C.C. No. 35/2014
Siddhesh R.S. Amonkar
S/o Ravlu Amonkar
Major in age,
R/o Amonkar Sadan
opp. Prarthana Hall,
Gokulwadi, Sanquelim
Goa, Pincode No-403505 .........Complainant
V/s.
Caculo Automotive Pvt. Ltd
Caculo Enclave,
St, Inez, Panjim
Goa, Pincode-403001 .......Opposite Party
C.C. No. 15/2015
Dr. Suyog Samuel Arawattigi,
Son of late Dr. Samuel Arawattigi,
Major of age, married,
Indian National,
having office at Nagzarkar hospital,
Palvem, Chinchinim,
Salcete, Goa. .....Complainant
v/s.
Caculo Automotive Pvt. Ltd
Through the Manager
Caculo Enclave,
St, Inez, Panjim
Goa, Pincode-403001 .......Opposite Party
Complainants are represented by Adv. Shri. J.J. Mulgaonkar.
OP is represented by Adv. Shri. A.R. Kantak.
Coram: Shri Justice N.A. Britto, President
Shri. Jagdish G. Prabhudessai, Member
Dated:- 28/12/2015
2
ORDER
[Per Shri. Justice N. A. Britto, President] These complaints can be conveniently disposed off by this common order, as the facts are interconnected.
2. The complainants in both the cases purchased from the OP Volkswagen Jetta cars of the same model and the same colour for Rs. 16,38,251/- each.
3. Complainant Dr. Arawattigi purchased the car on 23/11/09 and registered the same under No. GA-08-F-0557 in the office of RTO, Margao.
4. Complainant Mr. Amonkar purchased the car on 25/11/09 and registered the same under No. GA-04-C-3993 in the office of the RTO, Bicholim.
5. Admittedly, in view of the mistake made in the sale certificate in Form-21 given by the OP to the complainant Shri. Amonkar, the Engine and Chassis number of the car sold to Dr. Arawattigi came to be mentioned. Likewise, in the sale certificate in Form-21, given by the OP to Dr. Arawattigi, the Engine number and the chassis number of the car sold to complainant Shri. Amonkar came to be mentioned. In other words, the chassis numbers and the engine numbers of the cars sold to the said complainants were swapped. The car sold to complainant Mr. Amonkar has chassis number and engine number of the car sold to the complainant Dr. Arawattigi and vice versa.
6. Complainant Mr. Amonkar realized the mistake made by the OP in the year 2013, when his vehicle had to be inspected because 3 complainant Mr. Amonkar was late in paying the insurance premium. This fact has been corroborated by the insurance agent Shri. S.S. Govenkar as well as complainant's friend Shri. Yogesh A. Lawande who have filed their affidavits in support of the case of the complainant Shri. Amonkar.
7. Complainant Dr. Arawattigi came to know about the said mistake in October 2014, on being informed by Complainant Mr. Amonkar, and later on or about 5/5/15, on being informed by the advocate of the OP, when he was requested to give an affidavit conveying his no objection for exchanging the chassis and engine numbers, so as to rectify the errors.
8. The OP by their letter dated 16/10/13 informed the Asst. Director of Transport, Bicholim, that the chassis and engine numbers of the cars sold to complainant Shri. Amonkar and complainant Dr. Arawattigi were inter changed, and requested the said Asst. Director of Transport, to issue fresh R.C. books to complainant Shri. Amonkar and further informed him that they were making a similar request to the Asst. Director of Transport, Margao. However, by letter dated 13/3/14, the Asst. Director of Transport, Bicholim, informed the OP, with copy of letter to complainant Shri. Amonkar as well as to Asst. Director of Transport, Margao, that the vehicles were properly registered with them on the basis of applications (in Form 20) and Form 21 issued by the OP in the name of respective owners and further informed that no corrections in the Registration Certificate could be made in the circumstances surrounding the sale, registration and delivery of the vehicle as there was no error in the process of registration of the vehicle. The Asst. Director of Transport, Bicholim, suggested to the OP that they advise their customers to transfer the registration certificate mutually and exchange the number plates of 4 the vehicle to correct the present error on their part as well of their customers. The Asst. Director of Transport, Bicholim, also mentioned that vehicles detected with engine and chassis numbers different from those mentioned in the Registration Certificates were liable for detention and their customers may face difficulties for insurance claims, etc. as well as future transfer of registration of vehicles whenever the vehicle is sold by them as second sale.
9. On 31/08/15 by consent of all parties (consent terms at page 93) an Order was passed by this State Commission and the Asst. Director, Bicholim was directed to correct the registration certificate and/or the record maintained by them (Form 24) in respect of the car No. GA-04- C-3993 in the name of the complainant Mr. Amonkar with Chassis No. xxx304 and Engine No. xxx462 instead of existing chassis and engine numbers in the said certificate, and, likewise the Asst. Director, Margao, was directed to change the registration certificate and/or the record maintained by them (Form 24) in respect of car No. GA-08-F-0557 in the name of complainant Dr. Arawattigi with Chassis No. xxx301 and Engine No. xxx464 instead of the existing chassis and engine numbers. (we have reproduced only last 3 digits)
10. The Asst. Director, Bicholim, has filed a reply on 23/9/15 and the Asst. Director, Margao, has filed a review application and both have shown their inability to correct the errors stating that it is not within their powers or control to correct the same. They have also stated that their offices are computerized in respect of registration and licensing as per the software "Vahan" and "Sarathi" prescribed by the Government of India and the data was being controlled by National Informatics Centre, Porvorim-Goa which was appointed as a Nodal agency by the Government of India for the said purpose. They also say that the National Informatics Centre, Porvorim, has transferred 5 the entire data to the National Server and therefore no Registering Authority can intervene for the purpose of any corrections in the documents issued through the computerized system.
11. As already stated, the Asst. Director of Transport, Margao, has also filed a formal review application for reviewing/modifying the order dated 31/08/15 enclosing a copy of memo received from the Director of Transport dated 14/5/15. Both the Asst. Directors of Transport, Bicholim and Margao have suggested that the complainants be advised to transfer the vehicles in their possession and swap the number plates without actually changing the vehicle since otherwise the complainants could be liable for punishment for offences under the Motor Vehicle Act and also may have difficulty in case any insurance claims are made. The Asst. Director, Bicholim, has also a grievance that he was not made a party in the complaint and that this State Commission has indirectly placed responsibility on the Registering Authority for the errors committed by the complainant Mr. Amonkar and the OP. The stance taken by the Asst. Directors of Transport, Bicholim and Margao is not different from the stance taken by the Asst. Director of Transport, Bicholim, earlier, in his letter dated 13/3/14 addressed to the OP with copy to complainant Mr. Amonkar and for that reason, we had passed the consent Order dated 31/08/2015, without notice to either of them, inter alia, observing that:
"6. One may tend to argue that there is no provision in the M.V. Act to correct the registration certificate with wrong chassis and engine numbers. We may say that there is no prohibition either. A mistake made cannot be perpetuated. It needs to be corrected. The solution suggested by the Asst. Director, Bicholim may not be acceptable to both the parties 6 nor is it an ideal and correct solution to correct the mistakes. Admittedly, there is a mistake in the registration certificate issued to complainant Shri. Amonkar. It shows the chassis and engine numbers of the car sold to the complainant Dr. S.S. Arawattigi. Likewise, there is also a mistake in the registration certificate given to complainant Dr. S.S. Arawattigi. All the parties agree that the mistakes made in the registration certificates and/or the records of the RTO at Bicholim and Margao need to be corrected."
12. We have perused the records and heard the lr. advocates on behalf of the parties. We will deal first, with the review application. Lr. Adv. Shri. Kantak on behalf of the OP would submit, and, in our view rightly, that the State Commission has not been conferred with the power of review and that it is not the case of the Asst. Directors that it is impossible to do necessary corrections.
13. At the same time, Lr. Adv. Shri. Kantak submits that corrections can be made as suggested by the Asst. Director of Transport by filing applications in Form 29 and Form 30. The complainants are opposed to the suggestions made in para 12 of the reply filed by Asst. Director of Transport, Bicholim, and so also in para 11 of the Review Application filed by Asst. Director of Transport, Margao, as according to them, any step in that direction will make their vehicle second hand and come in the way of its value at the time of its resale. Lr. Adv. Shri. Mulgaonkar also submits that the car of complainant Mr. Amonkar is under hypothecation because of a loan taken, which he will have to clear for transferring the vehicle to complainant Arawattigi but is not in a position to do so.
14. May be, we could have modified or reviewed the order dated 31/8/15, in case the parties had consented to the same but the said 7 order dated 31/8/15 cannot be modified or reviewed by this State Commission, in view of the objection of the complainants and in view of law laid down by the Apex Court in the case of Rajeev Hitendra Pathak and ors., 2012(1) CPR 78. And why should the complainants make false statements by filling Form 29 to a public authority when they are not actually selling and delivering the cars to one another and for no fault of theirs? We leave it at that. In our view, the Asst. Directors of Bicholim and Margao have no option but to comply with the said order dated 31/8/15 in letter and spirit or file an appeal against the same. The Asst. Directors, Bicholim and Margao shall therefore correct the Registration Certificates of the complainants in Form 23 and the Register of Motor Vehicles in Form 24 as ordered to do so by Order dated 31/8/15.
15. We will deal next as to who is responsible for the errors? The complainants say that the OP has been negligent in not entering the correct engine and chassis numbers in the sales certificate issued to the complainants at the time of the purchase and handing over the cars to them which amounts to deficiency in service. The OP admits that there was an error in mentioning the engine number and chassis number in the sales certificates, but contends that the complainants also did not bother to check the same. The OP also says that an error can happen at any time with any human being but because of the said error it cannot be said that there has been negligence on their part. The Asst. Director, Bicholim, seems to say that the complainants as well as the OP have neglected to verify the engine and chassis numbers of the vehicles at the time of delivery and thus both have been negligent. The said Asst. Director also seems to say that this State Commission has indirectly placed the responsibility on the Registering Authority for the errors of the registered owner Mr. Amonkar and the dealer M/s. Caculo Automotive Pvt. Ltd.
816. Lr. Adv. Shri. Kantak on behalf of OP, relying on Commissioner of Customs (Preventive) vs. AAFloat Textiles, 2009 (11) SCC 18, has invoked the maxim of "caveat emptor" and has submitted that the complainants also ought to have verified the sale certificates in relation to engine and chassis numbers of the vehicles.
17. Firstly, we are inclined to accept the complainants' allegations that the complainants are facing the problems on account of the negligence of the OP in not mentioning the correct engine and chassis numbers on the invoices and sale certificates in Form No. 21 issued to the complainants. The fault, therefore, was primarily of the OP (or its servants). The OP is deficient in service which they were to provide while selling the vehicles. The OP says that the complainants also did not bother to check the engine and chassis numbers as mentioned on sale certificates with the cars handed over to them and in fact genuinely believed the same to be correct. The OP is right in this regard. Complainants, as customers were not expected to verify the chassis and engine numbers with the cars sold to them. In fact most of the customers would not even know where exactly the said numbers are punched/engraved in a car. Most would take the sale certificate issued by the seller of the car and proceed to register the same on the basis of such certificates. Caveat emptor - let the purchaser beware - is not a maxim to be invoked in consumer jurisdiction under C.P. Act, 1986 and which is meant to give better protection to the interests of consumers. Moreover, the error committed by the OP is not as regards nature or quality of goods sold. In fact this is a case to invoke the maxim "Caveat Venditor" - let the seller beware. For the same reason, were are unable to accept the contention of the Asst. Directors of Transport that the Complainants were expected to verify that correct vehicles were delivered to them.
9Did the Asst. Directors of Transport had no duty to be performed? Or they were blindly to register the vehicles as per applications in Form 20 based on sale certificates in Form 21?
18. The Asst. Director, Bicholim, seems to say that this State Commission has indirectly placed responsibility on him - Registering Authority - for the errors committed by complainant Mr. Amonkar and the OP. So far, we had not blamed the Asst. Director of Transport, Bicholim either directly or indirectly but it is time to call a spade, a spade. We are of the firm view that both the Asst. Directors have compounded the errors committed by the OP by not verifying the particulars given in applications in Form 20 were true, as required of them by Section 44 of the M.V. Act, 1988 read with Rule 48 of the M.V. Rules 1989. Had the procedure of Section 44 of the M.V. Act r/w Rule 48 of the said Rules was followed, the errors/mistakes committed by OP would have been detected and could have been corrected before the Registration Certificates were issued under Rule 48 of the Central M.V. Rules, 1989. Both the Asst. Directors or for that matter the officers entrusted by them, to verify the particulars in the application forms failed in their duty in verifying the particulars contained in the applications in Form 20 that they were true and that could be done only by verification of the actual chassis and engine numbers of respective vehicles. Therefore, they cannot now be heard to say that there was no error/s on their part in the process of registration of vehicles.
19. The Asst. Directors of Transport, Bicholim and Margao shall therefore immediately correct the Registration Certificates of the complainants in Form 23 and the Register of Motor Vehicles in Form 24 as already ordered and shall request N.I.C. Porvorim and/or N.I.C., New Delhi to ensure that necessary changes are carried out in 10 the cloud server/portal at New Delhi. They are required to know that these changes are being carried out by them pursuant to a judicial Order of this State Commission and not on their own. They may not comply with these order at their own risk of being sent to prison for a period of upto 3 years under Section 27(1) of C.P. Act, 1986. We give them further time of 30 days for due compliance upon the complainants submitting the R.C. Books for corrections. The Director of Transport has issued circular dated 14/8/15 (copy at page 116) probably because in the past, the Asst. Directors were doing the changes/corrections as and when it suited them.
20. Now to compensation. Complainant Mr. Amonkar has sought compensation of Rs. 25,00,000/- while complainant Dr. Arawattigi has sought compensation of Rs. 30,00,000/-. On behalf of the complainants it is submitted by Shri. Mulgaonkar, lr. advocate that the complainants are not using the vehicles at present for want of insurance cover in as much as they have also been unable to dispose off the same because of the errors committed in the Registration Certificates. Lr. advocate submits that complainant Mr. Amonkar who's a businessman had to make endless visits both to the OP as well as to the Asst. Director of Transport at Bicholim with a view to get the RC books corrected for which the said complainant needs to be compensated.
21. On the other hand, Shri. Kantak, the lr. advocate of the OP would submit that at the request of complainant Mr. Amonkar, they had given letter dated 16/10/13 to carry out the necessary corrections, and that both the complainants have been driving their respective vehicles without any hassle. Lr. advocate would submit, referring to letter dated 24/7/14, addressed to the complainant Mr. Amonkar by Bajaj Allianz General Insurance Company that the same is tailor made 11 and there was no reason for the said Bajaj Allianz Insurance Company not to make good the cost of repairs, if there was any, on the basis of the letter dated 16/10/13 given by the OP to the complainant Mr. Amonkar. Lr. advocate submits that the complainant Mr. Amonkar has not been able to produce the estimate of repairs in connection with the alleged accident because letter dated 24/7/14 is tailor made. Lr. advocate would submit that the complainants renewed their insurance for almost seven years without any problems and therefore there was no question of the complainants being unable to drive their respective vehicles. Lr. advocate also submits that the complainant Mr. Amonkar has not even given the details of the visits made by him either to the OP or the Asst. Director of Transport, Bicholim.
22. We partly agree with the submissions made by lr. advocate Shri. Kantak. The complainant Mr. Amonkar has not given any details of any pecuniary losses suffered by him in connection with the efforts made by him to get the errors on the RC book corrected. The complainant Mr. Amonkar could have mentioned about the number of trips he made, how much he spent per trip etc., etc. However, there can be no dispute that the complainant Mr. Amonkar has undergone more hardships than the complainant Dr. Arawattigi, who had to be invited, so to say, to approach this Commission. Complainant Mr. Amonkar used his car without any hassle atleast till the year 2012 and so did the complainant Dr. Arawattigi till the year 2015. It is difficult to believe the complainant Shri. Amonkar, without any corroborative evidence, that he is not using his car from the time of discovery of the error or that the car is resting outside complainant's residence. Likewise, it is difficult to believe complainant Dr. Arawattigi that nobody is willing to buy his car. These are but self-serving statements made with a view to claim compensation. Both the complainants have filed inflated claims, and only because there are no court fees 12 payable in this consumer jurisdiction and the fees payable are nominal. Complainant Mr. Amonkar has undergone more hardship than complainant Mr. Arawattigi. Their problems have been noted by the Asst. Director of Transport, Bicholim in his letter dated 13/03/14. Considering the facts of the cases, therefore, ends of justice would be met by awarding compensation in the sum of Rs. 30,000/- to complainant Shri. Amonkar and Rs. 20,000/- to complainant Dr. Arawattigi for deficiency in service on the part of OP, to be paid by the OP. Both the complainants are held entitled to costs of complaints of Rs. 5000/- each. A copy of this Order shall be sent to the Asst. Directors of Transport, Bicholim and Margao for compliance. We expect the complainants to submit the R.C. Books to the respective Asst. Directors to carry out necessary changes/corrections, immediately without any further delay. The R.C. Books shall be returned to the complainants duly corrected within 30 days of their submission to the respective Asst. Directors of Transport.
[Shri. Jagdish G. Prabhudesai] [Justice Shri. N. A. Britto]
Member President
sp/-