Date of Filing : 23-08-2016 Date of Final Order : 27-11-2017
Sri Debangshu Bhattacharjee, Member
The present complaint has been filed by the Complainant U/S 12 of C.P. Act 1986. The factual matrix of the case as can be gathered from the case record is that the Complainant intended to purchase one resell vehicle i.e. Tata Magic from the O.P. No.1, Car Vatica (Bidhan Automobiles) by seeing an advertisement from the O.Ps. But paucity of fund, the Complainant went to the O.P. No.2, Sales Representative, Smt. Sukla Dey Sarkar (Modak) for financial assistance. Both parties came to mutual agreement and disbursed loan to the Complainant for purchasing the said vehicle. Total price of the said vehicle was Rs.2,00,000/- and also advised the Complainant to deposit of Rs.80,000/- as booking amount. Thereafter, the Complainant deposited Rs.80,000/- through S.B.I., Balarampur Branch to Sales Representative’s account vide A/c No.31886657547 in four occasions i.e. (i) Rs.10,000/- date 09/03/2016, (ii) Rs.20,000/- dated 09/03/2016, (iii) Rs.20,000/- dated 11/03/2016 & (iv) Rs.30,000/- dated 14/03/2016 respectively. After receiving such amount from the Complainant, the O.P. No.2 assured that the said vehicle would be delivered within 15 days. But after 15 days the O.P. No.1 & 2 failed to deliver the said vehicle to the Complainant, in spite of repeated requests.
Afterwards, the Complainant went to Siliguri, Showroom of the O.P. No.1 for taking refund of the said booking amount of Rs.80,000/- but the O.Ps did not pay the same till date.
Finding no other alternative, the Complainant sent a legal notice on 11/04/2016 through his Lawyer Mr. Rabindra Dey for refunding the said booking amount of Rs.80, 000/-. But all efforts were in vain. Due to such activities of the O.Ps, the Complainant also suffers from mental pain & agony pecuniary loss and unnecessary harassment. There was also deficiency in service and unfair trade practice adopted by the O.Ps.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to refund of Rs.80,000/- as booking amount and also to pay (i) Rs.50,000/- as compensation for mental pain & agony, business loss and unnecessary harassment, (ii) Rs.25,000/- for deficiency in service and unfair trade practice and (iii) Rs.10,000/- towards litigation costs, besides other relief(s) as the Forum deems fit, as per law & equity.
The OP No.1&2 put their appearance through Ld. Agents. The Ops filed w/v on 07/06/2017 and evidence on affidavit on 27/07/2017 inter-alia denying the material allegations of the Complainant contending that the Complaint case is not maintainable against the OPs on the ground that this forum has no jurisdiction to try this case. It is the version of the OPs admitted the fact that they received Rs. 500/-as advance and also Rs. 80.000/- in SBI account of OP-No-2 in four occasions from the complainants account at SBI, Balarampur Branch as advance for supply of a Second hand Maruti Car to the complainant. After receiving the said advance amount from the complainant they spent Rs.40.000/- for reconditioning the said vehicle and they notified the complainant to take the delivery of the second hand car after payment of the rest amount which was agreed upon between the two parties. Under such circumstances Ops prayed for the dismissal of the case.
In the light of the contention of both parties, the following moot points necessarily came up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service/unfair trade practice, as alleged by the Complainant? If so, are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs, as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, perused the documents of the Complainant and other materials on record and heard the argument advanced by the agent of the parties at a length. Perused the Evidence on affidavit, written argument of the Complainant. Ld Agent for the OP-1 by filing a petition prayed for treating his evidence as written argument.
Point No.1.
The Ld. Agent for the Complainant submits that Complainant is a consumer under the Ops as defined under Section 2(1) (d) (ii) of the C.P. Act, 1986 as he deposited a sum of Rs.80,000/- in the bank account of OP No.2 to OP No- 1 for purchase a second hand vehicle “TATA MAGIC” from OP-No-1 on certain terms and conditions. On perusal of the complaint petition, w/v of OPs, documents, evidence and on a careful consideration over the submission of both sides, this Forum is of the opinion that the Complainant is a consumer under the OPs in the light of provision under Section 2(1) (d)(ii) of the C.P. Act, 1986.
Point No.2.
On 13/01/2017 the Ops filed a petition under section 11 of CP act 1986 before this forum alleging that instant case is not maintainable on the ground that this forum has no jurisdiction to try this case. The forum observes that the complainant deposited Rs.80,000/- in the account of the local seals manager of OP-1, viz. Smt. Sukla Dey Sarkar (OP-2) through SBI, Balarampur Branch, Cooch Behar, which is under the jurisdiction of this forum. So, the forum rejected the petition of the OPs by holding that this Forum had jurisdiction to try this Case. On a careful consideration, we are of the view that this Forum has both pecuniary and territorial jurisdiction to entertain the complaint.
Point No.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The O.Ps admitted the fact that they received Rs. 80.000/- in SBI account of OP-No-2 in four occasions i.e. Rs. 10,000/- on 09/03/2016, Rs.20,000/- on the same date, Rs.20,000/- on 11/03/2016 and Rs.30,000/- on 14/03/2016 from the Complainant’s account at SBI, Balarampur Branch as advance for supply of Second hand Maruti Car to the complainant. The OPs are unable to produce any document that after receiving the said advance amount from the complainant they spent Rs.40,000/- for reconditioning the said vehicle or they notified the complainant to take the delivery of the second hand car after payment of the rest amount which was agreed upon between the two parties.
On 11/04/2016 the complainant sent a lawyer’s notice to the OPs (Anx-3). In the Notice the complainant gave seven days time to the OPs to solve the problem, but the OPs were kept silent and did not make any reply to the complainant. In between the time of sending notice and payment of Rs.80,000/- to the OPs by the complainant, the complainant also never made any contact with the Ops to take delivery of the second hand car. So, the negligence on the part of the complainant could not be ruled out.
It is proved that the Ops received Rs.80,000/- from the complainant to sell a second hand car, but till date they did not supply the car to the complainant nor thy refunded the amount to the complainant. So the complainant has been able to prove his allegations against the OPs, but in part. The Ops adopted unfair trade practices by not taking any initiatives even after receiving a lawyer’s notice from the complainant.
In our considered opinion, the Complainant is entitled to get back his advanced amount of Rs. 80,000/- with interest @ 6% p.a. w.e.f. 23.08.16 (date of filing of the case).
Hence ,
it is Ordered,
That the complain case CC/81/2016 be and the same is hereby allowed in part on contest against OP Nos.1&2 with cost of Rs.2,000/-. The OP Nos.1&2 are directed to pay Rs.80,000/- along with interest @6% per annum with effect from 23.08.2016 till realization of the entire amount.
The Nos.1&2 are directed to comply the aforesaid order jointly and severally by 45 days from the date of Final Order, failing which the Nos.1&2 are to pay Rs.100/- for each day’s delay and the accumulated amount is to be deposited in the State Consumer Welfare Fund.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
