OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI-03
C.C.46/2015
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Md Jamatul Islam - Member
Sri Prakash Rupani -Complainant
S/O- Sri K.C.Rupani
R/O- H.No-38, Bye Lane No-4,
Tarun Nagar, ABC,Guwahati-03,
P.O-Dispur,P.S- Bhangagarh,Dist-Kamrup(M),Assam
-VS-
1) Bengal Speed Automobiles Pvt Ltd. -Opp.party
(Bengal Harley Davidson,M.A.R-1111)
New Town,Rajarhat,Jatragachi,Kolkata-700157
2) Mr Augustin Anthony (the Sales Head)
North East Region, C/O- Bengal Speed Automobiles Pvt Ltd.
(Bengal Harley Davidson,M.A.R-1111)
New Town,Rajarhat,Jatragachi,Kolkata-700157
3) Mr Shom Shubhra Sen (the Business Head )
C/O- Bengal Speed Automobiles Pvt Ltd.
(Bengal Harley Davidson,M.A.R-1111)
New Town,Rajarhat,Jatragachi,Kolkata-700157
4) Ms Papiya Das (the Customer Relationship Manager)
C/O- Bengal Speed Automobiles Pvt Ltd.
(Bengal Harley Davidson,M.A.R-1111)
New Town,Rajarhat,Jatragachi,Kolkata-700157
Appearance:
Ld advocate Mr B .Nath for the complainant and Ld advocate Mr K.K.Dutta
for the opp. parties.
Date of argument - 11/10/2018
Date of judgment - 29/11/2018
JUDGMENT
This is a proceeding U/S- 12 of the Consumer Protection Act, 1986
1. The complaint filed by Sri Prakash Rupani against Bengal Speed Automobiles Pvt Ltd , Kolkata and three others was admitted on 30/06/2015 and notices were issued to all the opp. parties and they filed joint written statement on 05/12/2015 . The complainant filed his evidence on 31/05/2016 and he was cross-examined by the opp. party side. The opp. parties did not adduce evidence even after giving several adjournments to them and finally , this forum vide order dtd. 15/05/2018 closed the stage of hearing of evidence of opp. party side. Ld advocate Mr Bhaskar Nath files written argument for the complainant on 24/08/2018 and Ld advocate Mr Kishore Kr Dutta filed written argument for the opp. parties . Thereafter, on 31/10/2018, we heard oral argument of Ld advocate Mr B.Nath for the complainant and of Ld advocate Mr K.K.Dutta for the opp. parties and today, we deliver the judgment which is as below:
2. The pleading of the complainant is that he booked a “Harley Davidson Street 750” bike with Opp.Party No-1 (Bengal Speed Automobile Pvt Ltd , Kolkata ) on 20/09/2014 on being demonstrated by its official at Guwahati on 19/09/2014 and accordingly he deposited Rs.30,000/- in the account of the opp. parties vide A/C No-00282790000033 (HDFC Bank) as booking amount . At the time of booking the price of the motor-cycle was Rs. 4,36,251/- including insurance premium and registration charge and Opp.Party No-2 assured him to deliver the bike within one week from the date of booking. As the opp. parties has tie up with HDFC Bank, G.S.Road , Guwahati, he approached the said bank to finance him to buy the said motor-cycle and deposited all required documents to the said bank and they also sanctioned a loan to him but in-spite of that loan , Opp.Party No-2 demanded another amount of Rs.1,76,669/- from him and he deposited the said amount in HDFC Bank and the same was got transferred by the opp. parties to their account number through R.T.G.S. , but the amount was not credited in their account due to technical failure of the transaction . In the meantime , the stipulated period elapsed and the opp. parties could not deliver the said motorcycle to him in-spite of his repeated requests rather they demanded more Rs.20,000/- saying that the price of the said motorcycle has escalated and also said that the change of registration and insurance premium would also be increased . He, then, by sending e-mails to the opp. parties raised objection against demanding additional amount of Rs.20,000/- but they did not heed to his objection and then he, being compelled , cancelled the booking and asked the opp. parties to return the advance amount of Rs. 30,000/- but they showed to him that they would refund only Rs.15,000/- against the advance amount of Rs.30,000/- (booking amount) . Thereafter, he sent advocate notice to the opp. parties vide notice dtd. 20/05/2015 demanding refund of entire Rs.30,000/- and they received the notice on 20/05/2015, but withheld the amount and thereby committed deficiency of service towards him. He is a consumer under the opp. parties in respect of said transaction. So, he prays to this forum to direct the opp. parties to refund said Rs.30,000/- and to pay him compensation of Rs.1,00,000/- for causing harassment to him with interest @18% per annum as well as Rs.2,000/- as cost of the proceeding.
3. The pleading of the opp. parties is that there is no cause of action , the complainant is not a consumer under them . The dispute doesnot fall within the purview of Consumer Protection Act,1986. The complaint is baseless , it is barred by limitation ; this forum has also no territorial jurisdiction to dispose of the dispute ; it is frivolous and vexatious . The price of the vehicle is subject to change at the time of delivery of vehicle and therefore , demanding excess amount is not unfair trade practice. Due to delay in submission of all the documents by the complainant , sanction of loan got delayed and meanwhile the price of the said motorcycle increased from 01/10/2014 and they informed the complainant about that matter . The complainant was unable to pay the required amounts to the opp. parties for the motorbike to deliver it to him and hence there is no malafide intention on their part. The price of the said motorbike increased by Rs.21,000/- from 01/10/2014 but the petitioner’s loan was approved on 27/10/2014 and therefore , there is delay on the part of the complainant for purchasing the said motorbike. The petitioner himself cancelled the booking of the motorcycle as its price increased by Rs.21,000/- from 01/10/2014 and the loan was approved on 27/10/2014. So, there was delay on the part of the complainant for purchasing the motorcycle .Opp.Party No-4 through e-mail inform the complainant about cancellation of the booking against the model- XG750 Motorcycle “ HARLEY DAVIDSON STREET 750” and informed him to collect the refund cheque amounting to Rs.15,000/- from their showroom and to give bank details of his accounts so that they can transfer the amount . As per terms of the agreement they could claim additional amount as the complainant was unable to fulfill the terms and conditions of the sale contract. It is not fact that they are waiting for increase of price of the said motorcycle to extract some additional amount from the complainant , but the complainant himself delayed in procuring the loan by not filing relevant documents in due time and he also failed to pay the incresed amount (Rs.21,000/-) . They never intended to refund entire amount of Rs. 30,000/- . The complainant failed to give proper bank details to them till date . They never cheated the complainant nor caused mental agony to him and nor committed deficiency of service and that is why they are not liable to pay compensation to the complainant . The complainant had not paid due court fees . The complainant is not consumer under them within the meaning of Consumer Protection Act ,1986 . The complaint is barred by limitations . As a good gesture they are prepared to refund entire booking amount of Rs.30,000/- to the complainant and they asked the complainant to give bank details but he fails to give bank details to them and hence the complainant has no cause of action for filing this complaint and hence , the complaint is liable to be dismissed .
4. After perusing the pleading and evidence of the parties , it transpires to us that , it is both sides’ admitted fact that i) the complainant had booked a “Harley Davidson Street 750” bike with the Opp.Party No-1 on 20/09/2014 and deposited the booking amount of Rs.30,000/- to them vide A/C No-00282790000033 -HDFC Bank ,Kolkata branch ,ii) at the time of booking the price of the said motorcycle was Rs.4,36,251/- including insurance premium and temporary registration charge ,iii) the complainant approached HDFC Bank , Sixmile branch,Guwahati to finance him to purchase the said motorcycle and the loan was sanctioned on 27/10/2014.
5. The complainant in his evidence , states that due to sudden raise of the price of the bike , he cancelled the booking . Thus , it is established that the complainant wilfully cancelled the booking due to sudden rise of the price of the said bike.
6. The complainant in his cross-examination admits that he wilfully booked the bike and nobody put pressure on him to book the said bike . Thus , it is established that the opp. parties never induced or pressurised him to purchase the said bike but he wilfully booked the bike.
7. The complainant states that the opp. party was to help him to procure the loan from HDFC Bank to purchase the said bike as they have tie-up with HDFC Bank to provide finance to purchase the said bike and he had deposited Rs. 1,76,669/- through cheque to the bank as down-payment on the direction of the opp. parties but said amount was not credited in the account of the opp. parties due to technical failure of the transaction . From this version of the complainant , it is clear that the down-payment as said by the complainant was not credited to the account of the opp. parties and he knew it well and after that also he is found not attempted to deposit the down payment in due time. Thus, it is established that due to negligence of the complainant , the loan was not got sanctioned in due time, but it was got sanctioned on 27/10/2014 i.e.after rise of the price of the said bike by Rs.21,000/- from 01/10/2014.
8. The opp. party side states that as per agreement between the parties , the price of the bike is subject to rise of price of the bike on the date of delivery . We have perused the agreement of sale entered into by the parties, which is filed by the opp. party side as Ext-A , and found that as Term No-4 of the said agreement, the price of the vehicle is subject to change at the time of delivery shall be applicable .Hence, it is found that the opp. party has right to claim the changed of price of the said bike at the time of delivery . Admittedly , the price of the bike was raised by the manufacturer by Rs.21,000/- from 01/10/2014 .Hence, we hold that the opp. parties rightly demanded an additional amount of Rs.21,000/- from the complainant as the price of the bike was raised by Rs.21,000/- from 01/10/2014.
9. It is already found that due to negligence of the complainant , the loan was sanctioned by HDFC Bank on 27/10/2017 i.e. after rise of the price of the bike by Rs.21,000/- from 01/10/2014 ; and he also wilfully denied to pay the price on change of price on 01/10/2014, he is hence not entitled to get the bike at the price on the date of booking . Hence, he will be entitled to get back the booking amount after due deduction as per terms of the agreement; but now the opp. party is willingly to refund the entire booking amount that had been deposited at the time of booking (i.e.Rs.30,000/-) as a good gesture . Therefore , we hold that the complainant would not get more than Rs.30,000/-.
10. It is seen that , the complainant has not given details of his bank account although he was asked to do so . Therefore , he is not entitled to get any compensation as well as cost of the proceeding.
11. Summing up our discussion as above , we partially allow the complaint against the opp. parties on contest and accordingly they are directed to refund Rs.30,000/- to the complainant which the complainant had deposited to them as booking amount, to-which , they are jointly and severally liable . They are directed to pay the awarded amount within 45 days , in default, the amount shall carry interest @12% per annum from today till full satisfaction of the award.
Given under our hands and seals today on this 29th November ,2018.
( Md Jamatul Islam) ( Md Sahadat Hussain)
Member President
