West Bengal

South 24 Parganas

CC/340/2014

MRS. SUPRITI DEBNATH, Wife of Sri Sanjay Debnath. - Complainant(s)

Versus

1.MR. GOPINATH BHOWMICK , the General Manager ( Operation) TOPSEL TOYOTA. - Opp.Party(s)

Pijush Mallick.

25 Mar 2015

ORDER

     DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _340_ OF ___2014_____

 

DATE OF FILING : 1.8.2014_     DATE OF PASSING JUDGEMENT:_25.3.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :         Dr. (Mrs.)  Shibani Chakraborty

                                                                             

COMPLAINANT             :   Mrs. Supriti Debnath, w/o Sri Sanjay Debnath of Thakurpukur 2 No.

Bacharpara Road, P.S. Thakurpukur , Kolkata – 63.

 

-VERSUS  -

 

O.P/O.Ps                           :    1. Mr. Gopinath Bhowmick, the General Manager (Operation).

                                                TOPSEL TOYOTA 522/524, Budge Budge Trank Road, Maheshtala,

                                                P.S. Maheshtala, Kolkata – 41.

                                                2.     TOPSEL TOYOTA (A unit of Topsel Pvt. Ltd.)

25, Ganesh Chandra Avenue, Kolkata – 13.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President

             The case of the complainant, in short, is that he purchased on “Innova Car” from the O.P-1 on 28.3.2013. On the date of purchase i.e. on 28.3.2013 the O.p-1 assured the complainant that she will get a smart card for refund of excise duty amounting to Rs.36000/- very soon. But on different plea the O.P-1 made continuous false representation regarding issuance of Smart Card, for which complainant sent a letter on 14.1.2014 asking the said smart card. In reply the O.P-1 confessed with regret that the claim of refund of excise duty has been rejected by the manufacturers M/s Toyota Kirloskar Motors ,since the claim was submitted after the expiry of the stipulated time frame of 180 days from the date of clearance of the vehicle from the factory, which is a deficiency in service and hence the case.

            The O.Ps contested the case filing written version denying all material allegations.

            It is the positive case of the O.ps that this case is not maintainable in law and facts. They have denied all the allegations leveled against the O.Ps. It is the case of the O.Ps that the Smart Card already is in possession of the complainant . It has further claimed that the vehicle is purchased for commercial purpose. So, the complainant is not a consumer. Apart from that, the contesting O.Ps had or has no room to play in the refund of the excise duty and the said refund only can be available from Toyota Kirloskar Motors Pvt. Ltd. who are manufacturer of the vehicle, and it has not been made party to the proceedings. It has strongly claimed that from the Smart Card it will be clear that the vehicle purchased by the complainant for running as Taxi/Motor Car cannot be considered exclusively for the purpose of her livelihood by means of self employment as there is no averment or supporting documents in that respect. So, the complainant is not a consumer.

            It is the further case of the O.P that when customer purchases a passenger car for use as a Taxi, he/she is entitled to refund of excise duty which in the case of a complainant would have been to the extend of Rs.36000/- approximately subject to , the complainant has lodged her claim in that respect with the manufacturer of the vehicle within six months from the date of clearance of the vehicle from the factory. Since the complainant failed to lodge her claim with the manufacturer of the vehicle due to her own laches, the O.P cannot be held responsible for the said loss ,if any, suffered by the complainant.

            Points for decision in this case is whether there is deficiency in service on the part of the O.Ps and whether the complainant is a consumer under the C.P Act, 1986.

                                                            Decision with reasons

            From the record we find that complainant’s profession is a business and for which he purchased the Innova Car which is a Taxi/Motor Car. We also perused each and every line of the complaint and did not find any averment that the complainant has purchased this car for his livelihood. It is true that at the time of filing evidence complainant has claimed that he has purchased a passenger car, used as a Taxi now, but not regularly only to maintain the cost of her treatment of serious disease . But that averment has not been mentioned in the petition of complaint.

            Apart from that he demanded to refund excise duty from the manufacturer through O.P-2 ,since the passenger car has already been registered for use as a Taxi. So, the vital thing i.e. purpose of use of commercial vehicle has not been mentioned in the written complaint filed by the complainant  . It is very difficult to believe that the vehicle was purchased only for her livelihood. Since the complainant’s occupation is business and vehicle has been registered as Taxi which is a commercial purpose and profit  making , the complainant is not a consumer within the meaning of Section 2(d)(i) of the C.P Act strictly because he has purchased the vehicle for commercial purpose not exclusively for the purpose of earning her livelihood by means of self employment.

 

 

 

 

 

            Hence,

                                                            Ordered

That the application under section 12 of the C.P Act is dismissed on contest but in the sorry state of affairs, no order of cost is awarded .

Let a plain copy of the judgement be sent to the O.Ps through this Forum for expedite payment and to the complainant for his information and a copy of this judgement be also handed over the complainant free of cost .

 

                                                Member                                               President

 

 

Dictated and corrected by me

 

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

                                                            Ordered

That the application under section 12 of the C.P Act is dismissed on contest but in the sorry state of affairs, no order of cost is awarded .

Let a plain copy of the judgement be sent to the O.Ps through this Forum for expedite payment and to the complainant for his information and a copy of this judgement be also handed over the complainant free of cost .

 

                                                Member                                               President