C.F. CASE No. : CC/10/111
COMPLAINANT : Nripendra Kumar Bhowmick,
S/o Late Provat Chandra Bhowmick
Vill. & P.O. Palashi, P.S. Bizpur,
Dist. North 24 Parganas
OPPOSITE PARTY/OP : Assistant Registrar–II,
Bidhan Chandra Krishi Viswa Vidyalaya,
Mohanpur, P.S. Kalyani, Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 25th February, 2011
: J U D G M E N T :
In brief, the case of the complainant is that the OP issued a notice dtd. 06.11.07 inviting applications from the intending purchasers for the University’s ambulance van No. WGE 876 on the condition that as it is where is basis which was opened for inspection in any working day and the successful tenderer must take delivery of the vehicle within seven days from the deposit of the final payment. Accordingly, the complainant participated at the tender by making a formal application for the said ambulance van and his quotation was accepted by the OP. So he deposited an amount of Rs. 46,291 under receipt of money and the van was also delivered to him. Thereafter, he submitted form No. 29 & 30 before the registering authority, Nadia for transferring of the ownership of the motor vehicle purchased by him. As the registering authority did not take any step towards his application, so he moved before the Hon'ble High Court by filing a writ petition under article 226 of the Constitution of India being No. WP 16367(W) 2008. The Hon'ble High Court ordered the Motor Vehicle Department to take a decision on the petition filed by the complainant within a period of six weeks from the date of communication of the order. He intimated the order of the Hon'ble Court before the Registering Authority, Motor Vehicle Department. Thereafter, on 01.03.09 the complainant appeared before the Motor Vehicle Department for hearing his case which was heard also. By a letter dtd. 09.03.09, the R.T.A. Nadia intimated him that a condemnation certificate was issued by him vide memo No. 428/MV dtd. 26.06.07 in favour of the vehicle No. WGE-876 belonging to the OP which was sold to the complainant. As the vehicle was declared condemned, so the registering authority (RTA) did not make it registered in his name. Then this complainant sent a letter to the OP on 13.04.09 with a request to return back the entire amount paid by him for the vehicle, but to no effect. Finally, he sent a lawyer’s letter on 23.07.09 asking the OP to return the entire amount received by him from this complainant along with other costs. On receipt of this letter no action was taken by the OP. The complainant further submits that he purchased the said vehicle for the purpose of earning his livelihood by means of self-employment and for his personal use also. As the vehicle was not registered and the OP did not intimate him regarding condemnation of this vehicle, so there is a unfair trade practice on the part of the OP. Hence, the case is filed by him having no other alternative with the prayers as stated in the petition of complaint.
The OP has contested this case by filing a written version, inter alia, stating that the case is not maintainable in its present form and nature. It is his submission that as per his notice this complainant submitted tender with the intention to purchase the ambulance van. Being the highest tenderer his tender was accepted and the ambulance van was duly delivered to him after payment of the price money. But his specific contention is that prior to purchase of the van the complainant had the opportunity to inspect the van as well as all the relevant documents and after being satisfied he submitted tender. He has also submitted that his van was declared condemned by the motor vehicle department vide memo No. 428/M.V. dtd. 28.06.07 and that was also verified by the complainant before submitting his tender. He has also submitted that the complainant is not a consumer and he purchased the vehicle for commercial purpose. Besides this, for change of ownership one is to submit all the relevant papers along with the fitness certificate of this vehicle. But in the instant case, it is not clear whether the complainant submitted any fitness certificate of this van. So he has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Is the complainant a consumer?
Point No.2: Has the complainant any cause of action to file this case?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written version filed by the OP along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that as per notice dtd. 06.11.07 for inviting tender from interested persons to purchase the ambulance van No. WGE 876 on the condition that as it is where is basis, the complainant submitted tender which was accepted by the OP being the highest one and the van was also delivered to him on payment of Rs. 51,291/-. There is no denial by the OP regarding purchase of the van by the complainant through open tender. The complainant thereafter, applied before the registering authority, Nadia by submitting form No. 29 and 30 with a prayer to change the ownership of the vehicle in his name, but no step was taken by the registering authority, Nadia. So he moved before the Hon'ble High Court, under article 226 of the constitution of India and the Hon'ble Court directed the registering authority, Nadia to take a decision on the petitioner’s application within a period of six weeks from the date of communication. The complainant submitted a copy of the order of the Hon'ble Court and thereafter, his petition was heard by the registering authority. Finally, the registering authority by a letter dtd. 09.03.09 intimated that as the vehicle was declared condemned by the RTO, Nadia vide his office Memo No. 428/MV dtd. 26.06.07, so the condemned vehicle could be made road worthy again owing to safety reason and due to this the registration of transfer of ownership of the vehicle in favour of the complainant was not allowed. The complainant’s specific allegation is that in the notice issued by the OP dtd. 06.11.07 inviting tender there is no whisper to the extent that the ambulance van was declared condemned by the RTO Nadia vide its Memo No. 428/MV dtd. 26.06.07. OP has categorically stated in the written version as well as in the written argument that all the documents were put before the intending purchaser for inspection prior to submission of the tender. We have carefully gone through the notice dtd. 06.11.07 issued by the OP from which we find that there is no whisper in the said notice regarding declaring of the vehicle as condemned by the RTO, Nadia on 26.06.07. Even in this document no list of the relevant documents of the vehicle is mentioned for inspection by the desiring candidates, only the ambulance van number is mentioned. The OP has not filed any other document to show that he duly intimated the complainant at the time of filing tender that the condemned certificate of the vehicle was produced before him at that time. The registering authority has categorically stated that as they declared the vehicle as condemned vide order No. 428/MV dtd. 26.06.07 so it was not registered in the name of the complainant after his purchase. It was the duty of the OP to intimate the fact of declaring condemned of the vehicle by the registering authority to this complainant at the time of purchase which he did not do at all, so it is unfair trade practice on the part of the OP undoubtedly. So we hold that the complainant is entitled to get back the money which he paid the OP for purchase of the ambulance van.
OP agitates that the complainant is not a consumer as he purchased the van for commercial purpose. Admittedly, the van was not used for commercial purpose, rather it was used for the benefit of the university students. The complainant has categorically stated in his petition of complaint at ‘Para-10’ that he wanted to purchase the said vehicle for the purpose of earning his livelihood by means of self-employment and for his personal use.
Section 2(d)(1) of the CP Act clearly speaks that “Commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.” In the instant case we have already discussed that in the petition of complaint, the complainant has categorically stated his purpose to purchase the ambulance van for earning his livelihood by means of self-employment and for his personal use purpose. So considering the provision of law, we hold that the complainant is a consumer and he is competent to file this case also.
In view of above discussions and considering the facts of this case our considered view is that the complainant has become able to prove his case and so he is entitled to get the reliefs as prayed for. In result the case succeeds.
Hence,
Ordered,
That the case, CC/10/111 be and the same is decreed on contest against the OP. The complainant is entitled to get back Rs. 51,291/- which is the price of the ambulance van No. WGE 876 paid by him. The complainant is also entitled to get Rs. 3,000/- as compensation for harassment caused to him along with Rs. 1,000/- as litigation cost. The OP is also directed to make the payment of the decretal dues of Rs. 55,291/- after taking back the ambulance van from the complainant within a period of one month since this date of passing this judgment, in default, the decretal amount will carry interest @10% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
