DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. __63_ _ OF ___2016

DATE OF FILING : 23.6.2016         DATE OF PASSING JUDGEMENT:  11.12.2018

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT   :             Smt. Shyamali Mondal, wife of Anup Mondal of 3, Dr. Surendra Nath Ghosh Road, P.O & P.S Budge Budge, Pin-743319.

•  VERSUS  -

O.P/O.Ps                    : 1.  The Manager, M/s Shree Automotive (P) Ltd. Showroom: Ved Bhumi, Koyal Vihar, VIP Road, (Next to Haldiram), Kolkata-59.

                                  2.   The Director, M/s Shree Automotive (P) Limited, Shantiniketan Building, 10^th Floor, Suit no.8, Premises no.8, Camac Street, Kolkata – 17.

                                  3. Mr. Sharad Kedia, Managing Director, M/s Shree Automotive (P) Ltd. Showroom: Ved Bhumi, Koyal Vihar, VIP Road, (Next to Haldiram), Kolkata-59.

                                  4.   The Director, Mahindra & Mahindra Limited, no.7, 4^th Floor, Dr. Ishaque Road, (Old Kyd Street), Near MLA Hostel, Kolkata-16.

                                  5.   The Director, M/s Mahindra & Mahindra Finance Services Limited, at Nirmal Apartment, Opposite to AXIS Bank, at premises no.48, Baruipur Kulpi Road, Kolkata – 144, Dist. South 24-Parganas.

                                  6.   The Director, M/s Mahindra & Mahindra Finance Services Limited, at 4^th floor, Mahindra Towers, Dr. G.M Bhosale Marg. P.K Kurne Chowk, Worli, Mumbai- 400 018.

_______________________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

              The complainant was provided with false and fabricated papers including registration certificate and ,therefore, alleging deficiency in service and unfair trade practice, she has filed the instant case under section 12, C.P Act, 1986 , praying for the following reliefs:

1. To direct the O.Ps to provide the original valid registration, tax and insurance papers of the vehicle being GIO CAB BS-III, Engine number-13F9182050 , Chassis no. D5G28069 to the complainant and/or alternatively to refund the value of the said vehicle as of Rs.2,50,000/- only to the complainant.
2. To direct the O.Ps to pay a sum of Rs. 1 lac as compensation for harassment, loss of money and mental agony of the complainant.
3. To grant the cost of proceedings.

Written statement is filed by the O.P nos. 1,2 and 3 ,wherein it is stated inter alia that they have no intention to damage the goodwill of them in the market and that they fell a prey to criminal conspiracy hatched by two persons, namely, 1) Sekhar Patra and 2) Sk. Yasmin who were appointed for facilitating the registration certificate and other papers for the vehicle sold. Those two persons were perpetrators of the crime for which FIR has been lodged before the Baguihati P.S and Baguihati P.S Case no.115 dated 12.9.2014 under section 467/468/469/471 I.P.C has been started against them. They asked the complainant to approach them with documents for providing proper registration certificate etc. But the complainant did not approach them. There is no deficiency in service ,nor any unfair trade practice on their part.

           Upon the averments of the parties, the following points are formulated for consideration.

POINT FOR DETERMINATION

1. Are the O.P nos. 1,2 and 3 guilty of any deficiency in service as alleged by the complainant?
2. Are the O.P nos. 1,2 and 3 guilty of unfair trade practice as alleged by the complainant.
3. Is the complainant  entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

           Petition of complaint is treated as evidence of the complainant vide her petition dated 11.4.2017. O.Ps have also field evidence on affidavit which are kept in the record. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.

DECISION WITH REASONS

Point no.1 & 2 :

              In the instant case, it is admitted by the O.P no.s 1,2 and 3 in their written version of statement that false documents including registration certificate have been supplied to the complainant at the time of sale of the vehicle and the reason attributed by them is that the two persons namely Sekhar Patra and Sk. Yasmin who were entrusted with the job of arranging those documents for the complainant have resorted to criminal conspiracy and that it is they who have committed forgery by supplying fabricated documents to the complainant. It is further stated by those O.Ps that they have lodged FIR before the concerned P.S against those two miscreants and the concerned P.S has also started a criminal case against them. It is all the right so far. But the question which arises for consideration is whether the blame can be given to the O.P nos. 1,2 and 3 for the acts for which the complainant has suffered. It is admitted by those O.Ps that the said two miscreants acted on their behalf. So, we may say emphatically that those miscreants are none but the agents of the O.P nos. 1,2 and 3. If the agent commits any misconduct, the principal will have to take the liability of it. The principal cannot escape his liability by saying that it was the agent engaged by him, who committed the mistake. Upon this logic of us, we do hold that it is O.P nos. 1,2 and 3 who are liable for the loss caused to the complainant.

             The fraud has been detected by the complainant only on 12.1.2016 when the vehicle was intercepted by the Kolkata Police. Prior to that day, it was not known to the complainant that the certificate and other related papers issued by the O.Ps were all false and fictitious. Now, it transpires that the registration certificate and other documents of the complainant relating to her vehicle are all fictitious. The complainant has certainly been debarred from plying her vehicle , because the vehicle cannot be run without valid papers. Since 2016, till now, the complainant has not been able to run his vehicle and for this reason he has certainly suffered a huge quantity of loss. The aforesaid O.Ps will have to compensate the loss.

            It has been submitted on behalf of those O.Ps that they informed the complainant by letter dated 31.3.2016 to approach them with proper documents and that they would make arrangement for providing genuine documents. It is true that the complainant was so informed by the O.Ps. But that was only on 31.3.2016. The fact that the complainant has been deceived by their men has come to the notice of the O.Ps in the year 2014, because P.S case no.115 was started on 12.3.2014 against the miscreants on the FIR of the O.Ps. If there was no negligence on the part of O.Ps, if the O.Ps were really repentant for the above act, they could have sent the genuine papers to the complainant suo moto in the meantime.  But, they have not done that thing. They have slept over the matter. Non-taking of remedial step by the O.Ps suo moto after discovery of the fraud on their part is a deficiency in service and also an unfair trade practice on their part and, therefore, the complainant is entitled to get compensation from the said O.Ps.

             It has been argued on behalf of the O.Ps that the instant case is not maintainable as the vehicle is used for commercial purpose by the complainant. It has been averred in the petition  of complaint by the complainant that the vehicle is run by her son for making livelihood of herself and her family. There is no reason to disbelieve this version of the complainant and having regard to this averment of the complainant, we are of the opinion that the instant case is quite maintainable in law.

            There is no cause of action against the rest of the O.Ps i.e O.P nos. 4,5 and 6 and, therefore, the case deserves to be dismissed against them.

              In the result, the case succeeds.

            Hence,

ORDERED

             That the complaint case be and the same is decreed  on contest against the O.P nos.1,2 and 3  with cost of Rs.5000/- and dismissed on contest  against O.P nos.4,5 and 6  without any cost.

              The O.P nos. 1,2 and 3 ,who shall remain jointly and severally liable for compliance of the decree, are directed to provide genuine documents of the complainant’s vehicle including registration certificate, insurance certificate etc. within a month of this order  along with payment of Rs.50,000/- as compensation for the loss sustained by the complainant, failing which, the compensation amount will be enhanced from Rs.50,000/- to Rs.1 lac to be paid by the above O.Ps to the complainant in addition to their liability to furnish the above documents to the complainant.

         Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                   President

I / We agree

                          Member                                      Member

          Dictated and corrected by me

                                    President