ABHIJIT NANDY vs NEW INDIA ASSURANCE CO.LTD

THE instant appeal has been directed against the Judgment and order dated 18.3.96 passed by the District Forum, Calcutta in CDF Case No. 2068/ 93. THE District Forum, Calcutta has dismissed the complaint petition without any cost inter alia upon observation that on anxious examination of the facts and circumstances of this case, the learned Forum holds that the dispute raised by the complainant/appellant is not a consumer as per decided principle and so he is not entitled to get any reliefs claimed.

THE facts of the case in nutshell is that by virtue of an advertisement published in the "Statesman" dated 21st November, 1988 inviting tender for disposal of one Taxi (Ambassador of 1987 Model) on "as is where is basis" for which the complainant/appellant submitted its tender at Rs. 41,000/- which was paid by the complainant/appellant by way of earnest money and final payment of the same and the said Taxi was delivered by the opposite party /Insurance Company on 11.1.89. THE complainant/Appellant received the said Taxi by issuing a receipt to the opposite party. After taking delivery, the complainant/appellant caused it to repair by spend ing about Rs. 61,000/- at the garage of Nahar Singh of 15, Lock Gate Road, Calcutta 2. THE taxi was repaired thoroughly time and again and was ready finally for delivery in March, 1992. THE said Nahar Singh the repairer of the Taxi claimed garage rent and protection charge from May 1989 considering 3 months repairing time and cost of repairing as Rs. 61,000/- after repairing for the Taxi cab. THE complainant/appellant several times requested the opposite party to issue a sale letter and handed over all other relevant documents for mutation of his name with the R.T.A. Calcutta but no reply was given by the opposite party. Again the complainant/ appellant wrote a letter on 13.11.92 to the Assistant General Manager, of the Insurance Company and afterwards the Divisional Manager issued a letter dated 26.2.93 and sent a certificate but neither the sale letter nor the related documents in connection with the taxi was given to the complainant/appellant for which he could not mutate his name as owner with the R.T.A. Calcutta and to put it in use. As the complainant/ appellant could not take the delivery of the Taxi from the garage of the Nahar Singh the repairer, he started to charge garage rent and protection charge grom May 1989 and till filing the complaint petition he charged Rs. 33,750/- from May, 1989 to April, 1993 at the rate of Rs. 750/- per month as alleged by the complainant/appellant. In the aforesaid circumstances, the complainant/appellant lodged a complaint before the District Forum, Calcutta claiming Rs. 3,50,200/- on account of alleged garage rent and protection charges from May, 1989 and for loss of income at the rate of Rs. 200/- per day from May, 1989 to August, 1993 and on account of cost of incidental charges for the proceeding.

The case was decided exparte in favour of the appellant for non-appearance of the respondents inspite of good service of notice and in appeal against exparte order the case was remanded for fresh trial after setting aside the exparte order dated 13/14.12.93. Then the case was disposed of by dismissing the complaint hence this appeal.

THE opposite party contested the case by filing written statement alia contending that the case is time barred and that the complainant/ appellant is not a consumer and it is not a consumer dispute and that the complainant/ appellant has no right to approach the forum and the learned Forum has also no right to entertain the complaint for adjudication and the case is liable to be dismissed with exemplary cost. Further specific allegation of the opposite party is that the present complainant of Government Industrial Housing Estate Employees Quarter, 87B, Cossipore Road, Calcutta 2 is not the same person who purchased the salvage on as is where is basis from the opposite party and the said salvage was sold to Abhijit Nandy of AE-412, Salt Lake City, Calcutta 700064 and the signature of Abhijit of Salt Lake is totally different from the signature of the complainant/appellant and that the confidential report of the Secret Investigation Bureau conducted at the instance of the opposite party respondents and the report of the handwriting expert Mr. A. Chowdhury would go to show that the complaint lodged by the present complaint is not maintainable at all on the above grounds. THE opposite parties/respondents further alleged that the taxi was sold to the com plainant/appellant on 11.1.89 whereas the com plaint was filed on 20.8.93 i.e. after the expiry of more than 4 years, thus the case is hit by Section 24A of the Consumer Protection Act and that the opposite parties respondents at no point of time was the owner of the vehicle nor they became transferee of the agent of the registered owner Paramjit Singh with whom the opposite parties/ Insurance Company have settled the claim as total loss to the Taxi and took possession of the. Taxi and acquired the right over the Taxi by doctrine of abandonment and the salvage was sold "as is where is basis" and that the purchaser had free access to inspect the same including the documents pertaining to it before he made the final payment and only after being satisfied in all respects Abhijit Singh of Salt Lake took the delivery from the insured Paramjit Singh and that the opposite parties respondents sold salvage and not a motor vehicle and the salvage cannot have the character of a Motor Vehicle. Only for identification, the registration number of the Taxi had been used. THE sale of salvage of a Motor Vehicle is guided by the sale of goods act and no provisions of Motor Vehicle Act is applicable, so the opposite parties is not duty bound to provide transfer form, for the transfer of the Motor Vehicle and the opposite parties respondents did not undertake to provide any service to the purchaser of salvage. It is further alleged by the opposite parties that the complainant/ appellant had not come before the learned Forum with clean hands and he practised fraud by mis-representing him as the buyer of the salvage, as the matters involve by virtue of mis-representation and complicated question of facts in law, as much as identity of the purchaser is a turning point, such dispute cannot be adjudicated by consumer Forum in summary trial as such the complaint is not entitled to any relief as sought for. In the aforesaid facts, the learned District Forum, Calcutta had travelled all around far beyond the scope and ambit to the complaint to come to the final conclusion even making it a more complicated that it is usual character as simplicator. In the objection petition filed in the appeal by the opposite parties respondents are more or less same to that filed before District Forum, Calcutta in addition of some new points.

IT is contended by the opposite party respondents that the complaint petition filed before the District Forum, Calcutta was against the officials of the Insurance Company but not against the Company as such it is not maintainable on that score also. Looking to the angle of the advertisement dated 21.11.88 in Statesmen Patrika inviting tender from the prospective buyer for sale of a Taxi (Ambassador 1987 Model) on as is where is basis indicates that it is a sale of a taxi to the prospective buyer. Accordingly, the complainant/appellant after inspection purchased the taxi on payment of consideration of Rs. 41,000/- in total and took delivery of the Taxi. That nowhere in four corners in the said advertisement, it is mentioned as salvage or damaged taxi. It is not intelligible thus how the District Forum has come to the conclusion that the opposite party has sold the salvage of the Taxi. As the sale of a Taxi was advertised it is presumed that the seller has sold the taxi not salvage of taxi and must furnish all the requisite documents in respect of taxi and /or sale letter must be issued to the prospective buyer. It is also evident from the records of the R.T.A. Calcutta that the Taxi is registered as No. WMT 2634 standing in name of Paramjit Singh and is hypothecated to Punjab & Sind Bank, Kalakar Street Branch and that the registration has not been cancelled as yet. The easiest course in this context that the opposite party/Insurance Company should have persuaded said Paramjit Singh to issue sale letter in favour of the complainant/appellant, in view that Paramjit singh was fully paid his insured claim of the Taxi as a total loss caused by the accident or the respondent/Insurance Company should have procured a sale letter from said Paramjit Singh after obtaining clearance from Punjab & Sind Bank, Kalakar Street Branch and in turn it could have issued a sale letter to the complainant / appellant for mutation of his name with the R.T.A., Calcutta. By that way, the entire problem of the case would have been solved. But without going through the easy process, the opposite party/Insurance Company has resorted to various devices causing extreme harassment and mental agony to the complainant/appellant over last few years, although the sale conducted in this regard is a sale of a taxi as per language of advertisement made in Statesman Patrika. The observation of the District Forum, Calcutta in this regard making so many inferences on surmise and conjectures are not at all relevant in the context of the case. The appellant never asked for free sale service or any services for the damages vehicle nor he wanted any warranty for the damage vehicle nor he made any claim for compensation or any other things as he purchased the taxi on "as is where is basis". The complainant/appellant simply asked the Insurance Company to issue a sale letter of a taxi in terms of the sale made to him as per advertisement. So all the discussions on that score made by the District Forum are irrelevant and out of scope of the complaint petition.

SIMILARLY, the discussion on the point of limitation by the District Forum, Calcutta, it has also gone beyond its scope in as much as that the cause of action arose as soon as the complainant / appellant wrote a letter dated 18.8.92 in addition to oral representations to the opposite party/ Insurance Company and it ought to have furnished the sale letter in respect of Taxi No. WMT 2634 in place of the certificate dated 26.2.93 which was issued stating inter alia that the salvage of the vehicle No. WMT 2634 was disposed of to the complainant/appellant of AE412, Salt Lake, Calcutta 64 instead of issuance of the sale letter of a taxi and that also after exchange of several correspondences in between the said period and without raising any point of objection regarding the allegations of the complainant/appellant about delay, the opposite party/Insurance Company issued a certificate lately as they failed to obtain ownership of the Taxi under purview and as such the deal was also not closed.

SO on this point of limitation, we are of opinion that the complaint petition filed on 20.8.93 from the date of issuance of the alleged certificate dated 26.2.93 which was not suitable for the purpose of the complainant/appellant was not at all time barred. Limitation runs from the date of refusal or from the date of final decision not from the date of transaction. It is similarly ridiculous to note that about the identity of the complainant/ appellant much water has been mudded by the District Forum, Calcutta and that even the report of Secret Investigation Bureau and the report of the hand writing expert were required to decide a very plain and simple question on the issue of the identity of the complainant/appellant, when the complainant/appellant has himself sworn an affidavit that sometime he had signed some of the correspondences and sometimes under his authority and power his friend Sri Sisir Sarkhel signed his name on some correspondences and documents on his behalf and this was corroborated by Sri Sisir Sarkhel by swearing another affidavit. Even after such frank admission of the complainant/appellant how this point can be agitated, thereafter, it is very difficult for us to understand. Moreover the pay-in-slip for purchasing the pay order No. 4014/MRW/1722 dated 5.12.88 for Rs 4,500/- was signed by the complainant/appellant himself and the same pay order was furnished as earnest money with the offer letter for purchasing the taxi under purview. Particularly, in the face of no adversary is there in this regard claiming the ownership of the taxi purchased by the complainant/appellant and such lengthy discussion consisting pages after pages about identity of the complainant/ appellant on the part of the District Forum, Calcutta is most unfortunate and does not serve any fruitfull purpose. It may be the fact that the complainant/ appellant intitally applied for purchase of the taxi from the address of the Salt Lake City, thereafter the might have changed his address from Salt Lake to Cossipore, as it appears from the correspondences itself. The District Forum, Calcutta without going through the easy mode to decide the controversial question it has gone through various cumbersome processes for identity of the complainant/appellant, it could have only enquired at the address of Salt Lake if there was any adverse claimant of the taxi in same name. So far it has come to our knowledge that there is no such adverse claimant of the taxi in same name of the complainant/appellant with same name of his father at the Salt Lake Address. So, same and one complainant/appellant only is in existence.

That the contention of the opposite party/Insurance Company that the salvage is not goods within the meaning of Section 2(1)(i) of the Consumer Protection Act, 1986 and as de fined in the Sales of Goods Act 1930. It is not known wherefrom do they get such concept that salvage when as such sold is not goods. Further the basis concept of the opposite party/Insurance Company never sold salvage of a taxi to the complainant/appellant in terms of the advertisement dated21.11.88 in the Statesman Patrika. So, the language salvage is repeatedly used by the opposite party/Insurance Company with malafide intention and to subterfuge the real question in controversy. Had it been really salvage on the taxi it would not have fetched the price of 41,000/- when a second hand Ambassador car is still available to-day within range of Rs. 30,000/- to Rs. 35,000/-", in that case the offer of Rs. 41,000/- for a taxi after looking to its condition cannot be termed as salvage of a taxi. Further it is to be noted that in the record of the R.T.A., Calcutta the registration of the taxi is still maintained as Taxi. Had it really been salvage of taxi, the first and foremost duty or the respondent, and Paramjit Singh to cancel the registration with R.T.A. instantly before publication of sale of taxi as such salvage as alleged. So it is disbelieved that salvage of Taxi was sold.

WE could not lose our sight of the fact that the complainant/Appellant is a very poor person having very little education and he left his service with a hope to run the taxi and to earn livelihood by way of self employment without having any financial Assistance from the Government and on that score also District Forum, Calcutta has discussed so many extraneous matters such as ability of the appellant to run the taxi, driving licence, number of dependents etc. which are all bogus and are discarded. Even assuming that the complainant/appellant does not know driving or he had no driving licence for taxi but would it be impossible to procure the same within a reasonable time after training in this regard from any Motor Training Centre. But that does not mean that the complainant/appellant is not a consumer or he purchased the taxi not for earning his livelihood by way of self employment. It is also useless to discuss that how the complainant/appellant being an unemployed youth procured sum of Rs. 41,000/- for purchase of the taxi from the opposite party/Insurance Company. WE hold that the complainant/appellant purchased the taxi for consideration from the opposite party/Insurance Company as he has got on other means of livelihood after his resignation from the Service as "D" group employees, he is a consumer and the dispute raised in this context is a consumer dispute. The further contention of the opposite party/Insurance Company is that the complaint was lodged against the officials of the Insurance Company and not against the company itself as such the complaint petition is not maintainable.

ON this score, we are of opinion that the complaint against the officials in designation with incorporation of the name of the Insurance Company indicates the complaint lodged against the Insurance Company itself and the complaint petition is maintainable. In so many decisions reported in various journals of Consumer Protection Act. It would be found that the complaints lodged against the official in designation with the name of the organisation are well maintainable and such complaints upto the stage of National Commission have been uphold without pointing out any defect in it. The impleading of the officials in designation with incorporation of the name of the organisation indicated that the result of the proceeding would bind the organisation not the official in designation, it should be noted that the complaint is not lodged in the personal name of the official in designation. So the contention of the opposite party/ Insurance Company is overruled. We are also of opinion that the transaction in question about sale of a taxi in terms of advertisement dated 21.11.88 is a purely question of sale and purchase of a taxi. So, there is no element of contract at all, in the transaction made between the parties and in the transaction of sale letter of cash memo is a mandate, according to general law of the land. The transaction of sale and purchase involves not only the transaction of the goods in question and it also involves some element of service because the sale and purchase are completed only when the perfect document such as cash memo and sale letter are handed over to the purchaser. In the instant case, as it involves a sale of a taxi governed under the Motor Vehicle Act, it also in furtherance to issu ance of the sale letter it requires to provide with certain documents in relation to the sale of a taxi and non-delivery of such sale leter or related documents about a sale of a taxi falls within the definition of deficiency in service. The opposite party/Insurance Company without taking it as a point of challenge could have sorted out the problem by negotiation with the previous owner of the taxi, Paramjit Singh and could have delivered the related documents through him and also could have issued the sale letter from him for regularisation and mutation of his name with the R.T.A., Calcutta. By that way, the opposite party/Insurance Company could have helped the complainant/appellant who is an unemployed youth having no source of his livelihood. On the principles of equity, Justice and good conscience the opposite party/respondent ought to have helped an unemployed appellant to enable him to put the taxi into use after procuring all necessary papers as per Motor Vehicle Act but without looking into the matter from the point of humanity the respondents have dealt the matter with severity.

THE principle laid down in the case of Laxmichand Shah and Ors. v. Saherben Kanji Chandan & Ors., reported in I (1992) CPJ 3 (NC) by National Commission is not applicable in the instant case. THE question raised in the said case in question of landlord and tenant as such the principle laid down in the said case has no bearing upon the present case. THE ratio laid down in the case of M/s. Maruti Udyog Ltd. v. Shri J.D. Sharma, reported in I (1992) CPJ 86 (NC) where it has been held by the National Commission that imperfection in describing Engine number embossed on the identification plate was different to that in the sale invoice was imperfection which did not allow easy use of the product bought by the purchaser is fully applicable in the instant case, in view that the taxi bought by the complainant/ appellant could not be used in absence of the related document and sale letter. Accordingly, the National Commission held that such imperfection in the sale of a Maruti car falls within deficiency in service. It is to be remembered that the complainant/appellant has not alleged of any defect in the goods and did not claim any cost for the repair which is done through the repairer Nahar Singh. Because of the lapse on the part of the opposite party/ Insurance Company to issue the sale letter and to provide with all related documents he could not use the goods purchased from them since vehicle was ready after final repairing namely from April, 1992, in view that the repairing was completed by March, 1992. As per decisions pronounced by the National Commission that the dispute of Landlord and Tenant could not be entertained before the Consumer Dispute Redressal Forum, the decision in the case of Kalyan Kumar Dey v. Srite Narayan Chowdhury, reported in 1993 (1) CPR 420 is not longer good law and so we change our earlier views and do not taken into consideration the ratio in the said case.

THE principle laid down in the case of Mrs. Vinodini Bajpai v. Rajya Krishak Utpadan Mandi Parishad, Lucknow, reported in I (1991) CPJ 169 (NC), the National Commission has held that the contractor who has accepted the tender is not a consumer so he does not come within purview of the consumer Protection Act, but in the instant case, the complainant/appellant who submitted tender is not a contractor accepting the tender but the opposite party/ Insurance Company which accepted the tender is a contractor. THErefore the complainant/appellant is a consumer and he being a victim of the contractor namely opposite party/Insurance Company has got the right to agitate his grievance before the Consumer Forum. Similarly the decision in the case of Maruti Udyog Ltd. v. Vhubana Viswanathan, reported in 1993 (1) CPR 152, the National Commission has held that delay in delivery of vehicle booked by the complainant/appellant is failure and it was case of sale of goods simplicitor and does not involve rendering of service for consideration. THE contentions of the present case is not similar and akin to those of the said case Maruti Udyog Ltd. (Supra), because in the instant case, the transaction have been completed and the taxi has been delivered but the related documents have not been delivered to the complaint/appellant for which he could not put it into use and other decisions as discussed by the District Forum, Calcutta in its judgment have no application with the facts and circumstances of the present case, it view of that the facts and circumstances of the other decisions cited by the District Forum, Calcutta are entirely different in the context of the present case. Relying on the case of Smt. Anima Chowdhury v. S.G. Saha by the Insurance Company decided by this Commission reported in 1994 (1) CPR 527 argued that defect in the document can not be raised by the Consumer where the purchase is made on "as is where is" basis. We are of opinion that the ratio laid down in the case of Smt. Anima chowdhury is not applicable in the instant case where no document has been given at all so how does the question of defect in document comes in. At that material time of sale if the Insurance Company would have given the defective documents the complainant/Appellant would have to accept it.

In view of our aforesaid observation, we allow the appeal and set aside the judgment and order dated 18.3.96 passed by the District Forum Calcutta in C.D.F. Case No. 2068/93.

WE direct the opposite party/Insurance Company to furnish all related documents including sale letter in connection with Taxi No. WMT 2634 to the complainant/appellant even if necessary by pursuading the previous owner Paramjit Singh to deliver all those documents and to assist the complainant/appellant to mutate his name with the Record of R.T.A., Calcutta and also direct the opposite party/Insurance Company to pay Rs. 5,88,100/- only to the complainant/appellant under the following heads : (1) Damage for loss of income @ 200/- per day from May ''89 to June ''96 2618 days @ Rs. 200/- per day considering 3 months as reasonable repairing time. Rs. 5,23,600 (2) Cost of Garage rent & Protection charge from May 89 to June 96 86 months @ Rs. 750/- per month Rs. 64,500 Rs. 5,88,100

Compliance of the order stated supra need be made by the opposite party/Insurance Company with in one moth from the date of communication of this order failing which interest @ 18% per annum will have to be paid over and above the payable amount. The opposite party/Insurance Company is to suffer for the wrong doers who need be taken to task for such loss of Public exchequer. The complainant/ appellant is to communicate this order to the opposite party/Insurance Company at once forthwith. Considering the facts and circumstances of this case, we make no order as to the cost. Appeal allowed.