Kotak Mahindra Bank vs C.H.Abdullah Kunhi

BY way of the present revision petition, there is challenge to order dated 1st November, 2010 passed by State Consumer Disputes Redressal Commission, Kerala (in short, SCDRC).

THE brief facts of this case are that respondent No.1-complainant, purchased a confiscated vehicle bearing registration No.KA 19-B 8978 for Rs.6,75,000/- from the branch office of petitioner at Mangalore. Petitioner delivered all the original documents pertaining to the vehicle to the complainant. Consideration for the vehicle was fixed after perusal and inspection of the documents as well as the vehicle. But on verification it was found that insurance policy issued by 2nd opposite party was inactive one as no premium was paid at all. Thus, there is no insurance coverage for the said vehicle on the date of purchase. So, complainant had to buy a fresh policy for the said vehicle on paying Rs.25,844/- from 2nd opposite party on 1.6.2009. According to the complainant, he fixed the price and purchased the vehicle solely on the basis of documents given to him by petitioner. In fact, had there been no insurance coverage for the said vehicle, complainant would not have come forward to buy the vehicle in question. Hence, complainant sustained a loss of Rs.25,844/- in view of the fake assurance offered by the petitioner. Accordingly, complainant filed a complaint before District Forum, Kasaragod. Before District Forum petitioner remained absent in spite of receipt of notice sent by registered post.

District Forum allowed the complaint and directed the petitioner to pay a sum of Rs.25,844/- with cost of Rs.2,000/-.

AGAINST order of the District Forum, petitioner filed an appeal before SCDRC. Vide impugned order, appeal of the petitioner was dismissed, being time barred. It is contended by learned counsel for the petitioner that this finding of the District Fora that Exhibit A-1, the 1st insurance policy with regard to the vehicle is a fake document, is perverse and defective, as respondent No.2 never said that Exhibit A-1 is a fake one. Rather their liability is only based upon the insurance policy.

FURTHER, respondent/complainant himself admits that he was delivered with all the original documents pertaining to the vehicle and the confiscated vehicle was sold on as is where is condition. Moreover, the condition of auction reads as follows: - I fully understand that I am solely responsible for all past and future RTO liabilities, State Permit, National Permit, Tourist Permit, Insurance Premium etc. or any other statutory dues unpaid at the time of taking delivery of the vehicle.

Other contention is that, since petitioner could not participate before the District Forum, all these aspects could not be brought by cross-examining the respondents. There are no willful laches or negligence on the part of the petitioner in not appearing before the District Forum and petitioner may be given opportunity to contest the matter on merits. It is well settled that before seeking condonation of delay, petitioner has to explain for each days delay. The affidavit filed by the petitioner before the State Fora seeking condonation of delay is absolutely vague and the same reads as under: - The appellants were set ex-parte in the above matter. The notice in the complaint had been received by the appellant company in its office at Bangalore and the branch office at Palakkad. The Manager of Palakkad branch of the appellant company was directed to take action in the matter by entrusting the notice, give instructions and vakalath to the counsel. For the above purpose, the notice and copy of the complaint received at Bangalore address of the appellant company also was sent to the above Manager of the appellant company. Unfortunately, the Manager of Palakkad branch of the complainant company to whom the matter was entrusted was transferred from Palakkad and during this mess-up of transfer of earlier person and taking charge of new person, the above notice and complaint copies were misplaced and hence the appellant could not follow up the matter. Subsequently, the appellant was reminded of the issue only when they obtained the copy of the order dated 20.4.2010 of the Honble Consumer Disputes Redressal Forum, Kasargode. The above copy was received by the appellants on 31.5.2010. As the whole files were misplaced as afore mentioned, the appellant could not trace out the original complaint so as to instruct the counsel and for tracing out the necessary documents pertaining to the transactions. The complaint copy could be traced out only on 4.9.2010. When the complaint copy and the copy of the order were handed over to the counsel, he found it necessary that all the copies of the policies, receipts issued by the insurance company, the agreement executed in between the complainant and the appellant while resale of the vehicle, and the valuation report of the vehicle, be perused for filing the appeal. As except two documents i.e. the agreement executed in between the complainant and the appellant while resale of the vehicle, were not under the custody of the appellant, but with third parties, it took some more time to obtain copies of these documents. The appellant could obtain the copies of the above documents only after three weeks. After obtaining the copies of the above documents, the matter was entrusted to the counsel and this appeal is filed. The laches were not willful. The appellant has got a very good case and serious contest in the matter. If the appeal is not accepted by condoning the above mentioned delay in filing this appeal, the appellant will be put in to much hardship and loss.

THE relevant portion of the impugned order reads as under: - THE petitioner/appellant has sought for condoning the delay of 103 days. THE reason mentioned in the affidavit filed by the Deputy Manager-Recovery, Kotak Maruti Bank Ltd. is that the notice was received by the company in its office at Bangalore and at the branch office at Palakkad. THE Manager of the Palakkad branch was directed to take action in the matter. THE Manager of the branch office at Palakkad was transferred and the above notice and the complaint copies were misplaced. We find that the delay is of 103 days. Further, it is seen that the appellant was ex-parte in the proceedings before the Forum. THE petitioner/appellant is a financial institution having branches all over India. It is expected that department of the appellant is functioning properly especially being a financial institution. THE Forum and the complainant could not be burdened for the inefficiency on the part of the appellant. We find that the reasons mentioned for condoning the delay are hardly sufficient. In the result, the delay condonation petition is dismissed. Hence, the appeal is also dismissed.

AS per the affidavit filed before State Fora, copy of the order dated 20th April, 2010 of District Forum was received by the petitioner on 31st May, 2010, whereas appeal before SCDRC was filed after 103 days, after expiry of period of limitation. It is well settled that each days delay has to be explained. No date has been mentioned in the entire affidavit, as to on which date the notice of the complaint was received by the petitioner-company, in its office at Bangalore and the branch office at Palakkad nor the affidavit of Manager of Palakkad branch of petitioner-company to whom the matter was entrusted and who was stated to have been transferred from Palakkad, has been placed on record.

So, no sufficient ground has been shown by the petitioner as to why there was delay in challenging the order of the District Fora before the State Commission. Moreover the affidavit filed by the petitioners official, is absolutely vague and does not lead this Commission anywhere.

EVEN on the merits, petitioner has no case since the basic document i.e. the insurance policy in question, has not been placed on record before this Commission. Moreover, there is no rebuttal of these findings of the District Forum that; We find the insurance policy No.441602/31/2009 /1288 dated 21.8.2009 marked as Ext. A1 issued in the name of a third party which does not contain any premium amount paid. Therefore, it is said to be a fake document on account of it being inactive. This fraudulent act by itself reveals the ulterior motive on the part of 1st opposite party which tantamounts to contradicting all canons of trade practice.

Under these circumstances, there is no illegality or jurisdictional error in the impugned order passed by SCDRC warranting interference in revisional jurisdiction under Section 21(b) of Consumer Protection Act, 1986.

ACCORDINGLY, present petition is dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). Cost be deposited with Consumer Legal Aid Account of this Commission within thirty days from today. In case petitioner fails to deposit the cost within prescribed period, it shall be liable for interest at the rate of 9% p.a. from the date of this order, till realization. List for compliance on 24th May, 2011.