FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant filed this petition of complaint U/s 12 read with section 13 and 14 of the CP Act, 1986.
The fact of the case in brief is that the OP-1 is the Pvt. Ltd. Co. and the authorised dealer of Intentional Cars and Motors Ltd. having head office at Pankaj Plaza -1, Pot No. 2, Karkardooma Community Center, Commercial Complex, Delhi-110092 and OP-1 Baby Auto Mobiles and OPs 2 to 4 are running their business situated within PS Karaya ie within the jurisdiction of this forum. It is further stated by the complainant that OPs 4 and 5 are the manufacturer of the subject vehicle and the OPs 2 and 3 are the directors of OP-1 who is used to look after and control the day to day business of the OP-1. The OP 6 is the financial institution who is financier of the subject vehicle.
The complainant further stated that in view to meet his livelihood he intends to purchase one four wheeler and made contact with the OPs 2 and 3 at the office of the OP-1. As per suggestion of the OPs 2 and 3 the complainant initially booked the subject vehicle and subsequently purchased one four wheeler from the shop of OP-1 on 17.10.2014 being model “EXTREME variant cardfi BS-IV” being engine No. G2408514G02409, being VIN No. NCLSACHXPRH009098 manufactured by International Cars And Motors Ltd. with the financial help of the OP-6 at a consideration of Rs. 9,05,722/- and the said car was purchased though financial assistance of Canara Bank.
It is further case of the complainant that the OPs ie dealer of the subject vehicle duly received the consideration amount of the subject vehicle and acknowledged the same with putting the stamp of the OP-1 and one “Form No. 22” (ie initial certificate of compliance with pollution standard, safety standard of component and road worthiness certificate) through the OPs 5 and 6 but they did not mention the date in the said Form No. 22. The OP-1 also issued one “sale certificate“ in favour of the complainant and also issued one “Tax- Invoice and road challan”.
It is also alleged by the complainant that the OP-1 did not handover the certificate of the “inbuilt speed governor meter” which is essential for certificate of fitness for any commercial vehicle wherein at present it is mandatory rule for all commercial vehicle that it should have in built speed governor meter.
It is alleged by the complainant that due to non-supply of that certificate the complainant did not ply the car in question on road for which the OPs 1 to 6 are responsible and liable. The OPs 5 and 6 has already stopped to manufacture of the said vehicle in 2014 and the OPs 1, 2 and 3 suppressing the material all facts sold the absolute subject car to the complainant which is amounts to unfair trade practice and which caused suffering to the complainants financial, physical and mental. The OPs deliberately failed to handover the said certificate to the complainant which is deficiency on their part for giving service to the complainant as well as unfair trade practice on their part. Hence, the instant petition of complaint is filed by the complainant against the OPs with a prayer to give direction to the OPs to refund the price of subject vehicle amounting to Rs. 9,05,722/- along with interest @ 9 % p.a. till actual realization and also prayed for giving direction to the OPs to pay the penalty and interest @ bank rate till actual realization along with compensation of Rs. 1,00,000/- and litigation cost of Rs. 35,000/-.
The OPs 1 to 6 have contested the petition of complaint by fling separate WVs denying all the materials allegations leveled against it.
The OPs 1 and 2 ie Boby Auto Mobiles, authorized dealer of International Cars and Motors Ltd. and Syed Abdul Sahi have stated in their WV that they have travers only those portions of petition of complaint which are material and/or relevant for the purpose of proper adjudication of this case.
It is further stated in WV by OPs 1 and 2 that the OP-2 was running a business in sole propertieship under the trade name and style of Boby Automobiles one of the authorized dealers of International Car and Motors Ltd. as mentioned in the cause title of petition of complaint.
Admittedly the complainant purchased one four wheeler being model “EXTEREME Variant Cardfi BS-IV” being engine No. G2408514G02409, being Vin No. NCLSAC8XPRH009098 manufactured by International Car and Motors Ltd. through the distributor on 17.10.2014.
The OPs 1 and 2 in their WV categorically stated that the Central Vehicle Rules, 1989 and the Motors Vehicles Act, 1988 and every Rules and Regulations on July 2018 a notification to this effect was issued by the transport commissioners on behalf of the Lt. Governor in Delhi. It is alleged by the OPs 1 and 2 the petition of complaint is filed by the complainant before this forum is malafide one.
It is further stated that the procedure and guidelines to be followed for treatment of SLV has communicated by Ministry of Road Transport and Highways, Govt. of India , vide No. RT-11017/13/2005-MVL dated 16.10.2016 and the provisions regarding treatment of SLV confirming to the standard AIS 018/2001 in transport vehicles as lead down in Central Motors Vehicle Rules, 1989 be strictly followed along with the provisions lead down under this Department notification No 2-WT/3N-75-2013 dated 04.01.2016 with effect from 31.10.2016.
It is further stated by the OPs 1 and 2 that the complainant had purchased the subject car as mentioned above not later the date of Central Government Notification so the relation of the complainant regarding suppression the material facts or selling absolute care to the complainant is baseless and the question of unfair trade practice on the parts of the OPs 1 and 2 does not arise at all.
It is stated by the OPs 1 and 2 the petition of complaint has filed by complainant is baseless and liable to be dismissed with cost.
The OP-3 ie Farhad Jahan stated in her WV that she is/was no way connected regarding the transaction or dealing of the subject car being sold to the complainant and practically she has no knowledge about the same.
It is the claim of the OP-3 that the petition of complaint is malafide and concocted one and the same is liable to be dismissed.
The OP-4 Syed Abdul Shakir stated in WV that admittedly the complainant purchased the subject car from the OP-2 who is/was running a business in sole proprietorship being one of the authorized dealer of OPs 5 and 6 and the OP-4 is in no way connected regarding the transaction and dealing of the care being sold to the complainant by the OP-2.
The OP-4 further stated that he is nothing but a relating as well as staff of the OP-2 at that relevant point of time. The OP-4 further stated that the OPs 1 and 2 sold out the subject vehicle to the complainant after observing the Rules and Regulations of the Central Vehicle Rules, 1989 and Motors Vehicle Act, 1998 keeping in mind the government notification regarding the speed limit device (SLV).
The OP-4 denying the material allegation leveled against them and stated the petition of complaint is filed by the complainant for wrong full gain and the same is liable to be dismissed.
The OPs 5 and 6 ie the International Car and Motors Ltd. have stated in their WV that a petition of complaint is wrong and denied thereafter, the OPs 5 and 6 in their WV admittedly the fact that the complainant using the subject vehicle for commercial purpose ie as taxi purpose. So , he is not a consumer. It is also stated by them that there is/was no privity of contract by and between the complainant and the OPs 5 and 6. So, the complainant is not a consumer and the OPs 5 and 6 is not a service provider. it is also admitted fact that the OP-1 is authorized dealer of the OPs 5 and 6 and they used to appoint their dealers on principal to principal basis ie dealers purchase vehicles from the OPs 5 and 6 on payment basis and then self the same to their customers under their own invoice.
The OPs 5 and 6 being manufacturer never dealers with any customer directing or dealer any vehicle directly to any customer. At the time of sale of vehicle to the dealer, form No. 22 is sent along with the vehicle. The dealer supplied all documents in form No. 22, invoice and form No. 21 (sale certificate to the customer ). Thus, the relationship in between the OPs 5 and 6 and OP- 1 is that of seller and buyer. It is denied by the OPs 5 and 6 that the OPs 1 to 4 look after the business of OPs 5 and 6.
It is further stated by the OPs 5 and 6 that the subject vehicle was purchased by the complainant on 09.10.2014 and no such certificate was demanded, since then the complainant issued to subject choice for commercial purpose and now he is trying to turn clock backward. The complainant himself wants said vehicle registered for used only invoice which is commercial purpose for which the OPs 5 and 6 are no way responsible. It is alleged by the OPs 5 and 6 that the vehicle was manufactured by them was not a transport or commercial vehicle. Hence, there is no need to issue certificate regarding SLV not the same was demand by the complainant. It is the duty of the complainant to comply the provisions of Government Notification in this regard. So, there is no deficiency in service on the part of the OPs 5 and 6 and they were not at all the service provider. so, the question of illegal unfair trade practice on the part of them does not arise at all and the petition of complaint as filed by the complainant is baseless one and also liable to dismissed with default.
In view of above stated pleadings the point of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
In view of the above facts and circumstances of this case and also keeping in view the evidence and position of law of this case, it appears that it is nobody’s case that this forum has no jurisdiction either territorial or pecuniary to try this case. Moreover, it is the duty of this forum to look into the matter of position of law. Considering the same, it appears that this commission has got territorial as well as pecuniary jurisdiction to try this case.
On a close scrutiny of material on record, it appears that the cause of action firstly arose on 09.10.2014 when the complainant purchased the vehicle on payment of a sum of Rs. 9,05,722/- (Rupees nine lac five thousand seven hundred twenty two) only from the OP-1 and second it arose on 08.10.2017 when the time limit of the certificate of fitness was over and the instant petition of complaint is filed by the complainant on 22.01.2019. From which it is crystal clear that the complainant filed the case within the period of limitation and he has sufficient cause of action to file this case. So, it is held by this commission that the case is well maintainable in eye of law.
Admittedly the complainant purchased the subject vehicle form the OP-1 on 17.10.2014 at a consideration of Rs. 9,05,722/-. As per section 2 (d) of CP Act 1986 when the complainant purchased the vehicle from OP-1 on payment of consideration for getting service since then the complainant is a consumer and the OPs related to subject vehicle are the service provider.
Now it is to be considered whether there was any sort of deficiency in service on the part of the OPs or not as alleged by the complainant.
It is the case of the complainant that he purchased the subject vehicle from the OPs 1 and 2 on payment of Rs. 9,05,722/- through Canara Bank but at the time of handover the vehicle to the complainant the OPs 1 and 2did not handover the certificate of “in built speed governor meter” due to which the complainant was not able to ply the said car on road. As the complainant could not be able to ply the car on road. He was unable to repay the loan to the financer bank. As a result, the financer bank initiated a legal action against the complainant for which the OPs 1 and 2 are sole responsible.
From the evidence on record, it is revealed that the complainant requested the OPs 1 and 2 to handover the in built SLV certificate to the complainant but they did not pay any heed to his words rather the OPs. The OPs took the plea that the vehicle manufactured by OPs 5 and 6 was not transport or commercial vehicle. Hence, there was no need to issue certificate regarding SLV not the same was demanded by the complainant and the OP-1 being the dealer and Prop. sold the vehicle in question to the complainant as per rules and regulations lead down in the Central Vehicle Rules ,1989, Motor Vehicle Acts, 1998 and also as per Government Notification regarding speed limit device (SLV) but when the OPs 1 and 2 sold the subject vehicle being model “EXTREME variant BS-IV” being engine No. G2408514G02409, being chassis No. NCLSAC8XPRH009098 manufactured by International Car and Motor Ltd. They must brought to it notice of the complainant that they are not bound to handover the alleged speed limit governor meter to the complainant but they suppressed the fact and the manufactured Co. ie OPs 5 and 6 have closed the manufactured of the vehicle like the subject vehicle for which the complainant suffered financial loss as he could not be able to ply the subject vehicle on road and failed to pay the EMI to the financer bank. Moreover, from the material on record, it appears that the notification regarding the fitting SLV (Speed Limiting Device) bearing No. 2-WT/3M-75/2013 was issued on 04.01.2016 by the Government of West Bengal (annexure-A) and the complainant purchased the vehicle on 09.10.2014 and got the vehicle registered on 13.10.2014 but the OPs did not handover the certificate to the complainant which caused severe deficiency in service on the part of the OPs 1 and 2 and other OPs because due to their deficiency in service the complainant failed to ply the vehicle in question on road and sustained financial loss which made him defaulter to pay the premium of loan in time to the financer. So, the OPs 1 to 6 are all responsible for suffering of the complainant and due to their mis-conduct the complainant suffered a lot for which the OPs 1 to 6 would be held responsible to refund the price of the subject vehicle to the complainant along with interest and also to pay compensation and litigation cost.
In view of discussion made above, it is held by this commission that there is/was sufficient deficiency in service on the part of the OPs 1 to 6 and there is unfair trade practice also on their part which ignited this commission to hold the view that the complainant could be able to prove his case against the OPs 1 to 6 beyond all reasonable doubt and is entitled to get the relief as prayed for.
All the issues are considered and decided favorably to the complainant
The case is properly stamped.
Hence,
Ordered
that the case be and same is decreed on contest against the OPs with cost of Rs. 5,000/-.
The complainant do get the decree as prayed for.
OPs 1 to 6 are directed to refund the price of vehicle in question of a sum of Rs. 9,05,722/- (Rupees nine lac five thousand seven hundred twenty two) only either jointly or severally only along with interest @ 9 % p.a. from the date of filing of this case till realization within 45 days from this date of order.
The OPs 1 to 6 are further directed to pay compensation of Rs. 30,000/- (Rupees thirty thousand) only to the complainant along with litigation cost of Rs. 10,000/- (Rupees ten thousand) only either jointly or severally within 45 days from the date of this order id the complainant will be at liberty to execute the decree as per law in a separate proceedings.
