Order No.  12                                                                                                                                                    Dated   :  06.02.2019              

                               FINAL ORDER/JUDGEMENT : 

Syed Nurul Hossain, Ld.President 

            This is a Consumer case under section 12 of Consumer Protection Act for

direction upon the opposite party nos. 1 to 4 for refunding a sum of Rs.4,25,000/- and to take back the vehicle and to pay compensation of Rs.10,000/-  for mental agony, pain and business loss suffered by the Complainant as well as litigation cost, but no relief has been claimed against the vehicle owner Pasang Lamu Sherpa, W/o. Dawa Lamu Sherpa, North View Apartment, P.O & P.S Bhaktinagar, District : Jalpaiguri.

                The case of the Complainant is that the complainant visited Hyundai Show-Room at Berlia Motors Private Limited on 4.4.2018 for purchasing new car, but the Sales Executive Mr. Brij Kishore Gupta influenced him to purchase a old Grand 110 Magna car bearing registration no. WB-74AL-0405, chassis no. MALA 851 CLGM 411310, Engine No. G4LAGM 935327.  The said car was stated to be in good condition and has all valid documents in the name of vehicle owner Pasang Lamu Sherpa, Darjeeling. The said cost of the vehicle includes registration of vehicle, name transfer cost along with insurance premium amounting to Rs.4,25,000/-. The complainant accepted  proposal of Sales Executive of Berlia Motors Private Limited, Siliguri and paid cash of Rs. 4,25,000/- to Berlia Motors Private Ltd. on 4.4.2018. Against four money receipts Employees of M/s. Berlia Motors Private Ltd. put the name of the complainant in blank authorization form which was signed by said vehicle owner Pasang Lamu Sherpa.  It was assured that change of ownership of the said vehicle would be completed within 14 days from the Regional Transport Authority, Siliguri. M/s. Berlia Motors Private Limited, Siliguri  printed a declaration with photo of the complainant on their official letter-head and compelled to put the signature of the complainant  thereon stating that the said vehicle was purchased on 4.4.2018 at 4.15 p.m.  The said vehicle was delivered to the complainant, but without any valid registra-tion, documents, insurance and without transferring of ownership. Said Berlia Motors Private Ltd. is authorized dealer of second-hand car.  After taking over possession of the said vehicle the complainant complained to the Sales Executive of Hyundai Show-room of Berlia Motors Private Limited, Siliguri, but to change the ownership of the said vehicle.  On 7.6.2018 at 5-30 p.m the complainant met a motor-accident at Gumanirhat, under Ghoksadanga P.S.  As a result of which said vehicle has been seized against Ghoksadanga P.S. case no. 70/18 dated 8.6.2018 under sections 279/338/304A I.P.C. The complainant was released on  bail from Mathabhanga Court, but the vehicle bearing registration no.WB-74AL-0405 is still under custody of Ghoksadanga P.S. After said motor accident the complainant communicated to Berlia Motors Private Ltd., Siliguri for getting release of the vehicle from Ghoksadanga P.S. Due to

 non-cooperation from the end of Berlia Motors Private Ltd the complainant was mentally upset and under depression and as such he has prayed for return of money paid by the complainant to Berlia Motors Private Ltd. Siliguri due to want of change of ownership by the vehicle owner at Regional Transport office, Siliguri. It is gross deficient in service and unfair trade practice by the O.Ps.  The complainant has suffered damage in his reputation and security.  So, he has prayed for direction upon the O.P Berlia Motors Private Ltd to refund a sum of Rs. 4,25,000/- which was paid by the complainant as well as claim of compensation of Rs.10 lac towards mental pain, agony and business loss suffered by the complainant.  Moreover, he has claimed interest on the actual amount paid by him and litigation cost thereof.

                The O.P Deepak Kumar Berlia and others being Directors of Berlia Motors Private Ltd.

have filed the Written Version stating, inter alia, that when the complainant visited the show-room of  answering opposite party no sales executive insisted the complainant to purchase his second-hand Grand 110 Magna car having registration no. WB -74AL-0405,  The complainant has purchased pre-owned car.  It is admitted that they have received the amount as stated by the complainant and as such the question of issuing four money receipts do not bear any relevance.  The opposite parties denied to have put the name of the complainant in blank authorization form already signed by the O.P. Passang Lamu Sherpa being the registered owner of the said vehicle.  The O.Ps communicated to the complainant regarding transfer and of change of ownership, but the complainant did not bother to turn up.  The O.P never compelled the complainant to put signature on declaration made in the letter-head of the O.P , but the complainant voluntarily made declaration and put his signature on the same.  Moreover, the O.P Berlia Motors  Private Ltd.  is an authorized dealer of second-hand car who has been duly authorized by Hyundai Motors Private Limited for dealing with used vehicle by way of letter with intent dated 11.11.16. The opposite party communicated to the complainant regarding change of ownership, but the complainant did not pay heed to it. It was the negligence on the part of the complainant for not changing the name of ownership. The O.Ps also requested the complainant to come to the office of Additional Regional Transport Officer, Siliguri. Even the complainant did not inform the expenditure of the vehicle and release of the vehicle from Police custody. The vehicle was purchased in April,2018, but the instant case has been filed in August, 2018.  The complainant was driving the vehicle comfortably and did not bother to change his name but the request was made in January, 2018 and thereafter need of transfer of ownership was filed by the complainant without which he could not get the vehicle released.  There is no deficiency of service on behalf of the O.P, but the complainant was negligent and gave no heed to the request of the O.P regarding transfer of the vehicle. So, it is not unfair trade practice as complained by the complainant.   The O.P is still ready to refund the money paid by the complainant, provided the said vehicle is returned to the O.P in same condition as it was handed over to the complainant on 4.4.18 after deduction of proportionate charges of registration and insurance for the period of usage and depreciation charges. So, it has been prayed for dismissal of the case.

                The O.P no.5 Pasang Lamu Sherpa in her Written Version supported by affidavit stating, inter alia, that on many occasions Employees of Berlia Hyundai Private Ltd. contacted and requested her to come to the concerned Additional Regional Transport office for transfer of  ownership of the vehicle, as the physical presence and her  signature was required for doing the same. Consequently, he visited the Regional Transport office for transfer of ownership of the vehicle to the complainant, but unfortunately the complainant did not turn up.  The allegation made against the vehicle owner is devoid of logic and as such the allegation made by the complainant does not stand.

POINTS FOR CONSIDERATION :-

1)        Whether the complainant Hmangaihsanga has purchased second-hand vehicle

               owned by Passang Lamu Sherpa from the Authorized dealer Berlia Motors

              Private Ltd. being the O.Ps herein on payment of Rs.4,25,000/- on 4.4.2018 ?

2)          Whether the authorization letter was issued in the name of the complainant

              With assurance of changing the name of ownership from concerned Regional

              Transport Authority, Siliguri, within 14 days from the date of purchase ?

3)          Whether the said vehicle was delivered to the complainant without any valid

              Registration document, insurance and without application of transfer of ownership ?

4)          Whether the said vehicle no. WB-74AL-0405 could not be released from the

              custody of Ghoksadanga P.S. in connection with Ghoksadanga P.S Case No.

              70/2018 dated 8.6.2018 u/s. 279/338/304 I.P.C ?

 5)         Whether the complainant suffered deficiency of service for not being able to

              transfer of ownership in his favour by the O.P Passang Lamu Sherpa

              at the instance of the O.Ps being directors of Berlia Motors Private Ltd ?

5)         Whether the complainant will get compensation of Rs.10,00,000/-(ten lacs) after

             returning of the motor-bike to the O.Ps due to remaining in

             Idle condition  of the same for want of permanent registration certificate ?

6)        Are there any documents from the O.Ps Berlia Motors Private Ltd.

             requesting the complainant Hmangaihsanga to attend Regional  Transport

             office, Siliguri for change of ownership of said vehicle as well to hand over

             Insurance certificate and permanent registration certificate of the vehicle ?

7)    To what other relief or reliefs the claimant is entitled to both in law and with equity?

                                                                DECISION  WITH REASONS :-

            All the points are taken up together for the sake of convenience and brevity.

            It is admitted by both the parties that the complainant has purchased a old Magna car bearing registration no.WB-74AL 0405, chassis no. MALA851CLGM411310,

Engine No. G4LAGM935327 against payment of Rs.4,25,000/- to the O.Ps Berlia Motors Private Limited on 4.4.2018. Also Berlia Motors Private Ltd. issued four money receipts against money receipt of Rs.4,25,000/-. Berlia Motors Private Ltd., Siliguri has issued one authorization letter in the name of the complainant. Also the complainant was assured that ownership of the vehicle would be changed from the concerned Regional Transport office, Siliguri, without any further delay.  Meanwhile, on 7.6.2018, at 5-30 p.m. the complainant met an accident at Gumanirhat, under Ghoksadanga P.S. Consequently said vehicle was seized in connection with Ghoksadanga P.S case no. 70/18 dated 8.7.18 u/s. 279/338/304 I.P.C. The complainant was bailed out from Mathabhanga Court.  But the vehicle bearing no. WB-74AL 0405 is still under Ghoksadanga P.S.

            The O.P Passang Lamu Sherpa though filed Written Version but stated that on many occasions the O.Ps Berlia Motors Private Ltd contacted with her and requested her to come to the office of the Additional Regional Transport officer for change of ownership, but no date has been mentioned about his attendance to the Regional Transport office for change of name of her vehicle in the name of the complainant. Therefore, there is no iota of document to show that she has received request from the end of Berlia Motors Private Ltd. for remaining present in the office of the Regional Transport officer for change of ownership of the vehicle in favour of the complainant. As a result, her version is subsequent thought and cannot be appreciated at this stage.

            On the other hand, the O.P nos.1 to 4 being the Directors of Berlia Motors Private Ltd. in paragraph-29 of the Written Version admitted that the opposite parties are still ready to refund the money paid by the complainant, provided such vehicle is returned to the said O.Ps in same condition as it was handed over to the complainant on 4.4.2018 after deduction of proportionate charges for registration and insurance, for the period of usage and depreciation charges. The O.Ps have negligence to get the vehicle registered in favour of the complainant.  Having regard to the evidence of the respective parties supported by documents it appears to the Forum that the complainant purchased second hand vehicle owned by the O.P Passang Lamu Sherpa from Berlia Motors Private Ltd. at Rs. 4,25,000/-. The O.Ps issued four receipts against payment of the said amount in favour of the complainant.  It is the duty and responsibility of the O.Ps Berlia Motors Private Ltd. to get the second hand vehicle registered in the name of the complainant from the name of O.P no.5 Passang Lamu Sherpa. There is no document  

From the end of Berlia Motors Private Ltd. that it has requested both the complainant and O.P No.5 Passang Lamu Sherpa to be present at the office of Regional Transport Authority, Siliguri for change of ownership of the vehicle in question. It is the fact that unless the complainant gets name transferred from the O.,P Passang Lamu Sherpa he cannot get ownership over the vehicle.  Consequently, he could not get release of the vehicle from the Police custody in connection with  Ghoksadanga P.S case no.70/18 dated 8.6.2018 u/ss. 279/338/304A I.P.C. He was released  on bail from Mathabhanga Court. Just after the accident the O.P Berlia Motors Private Ltd. should have taken initiative to get the vehicle released and to help the complainant for plying the vehicle, on road but they did not do so for the reason unknown to this Forum. This Forum is not convinced with the plea taken by the O.P that there is no deficiency of service from their end Rather. The O.Ps being the authorized second hand dealer of Hyundai Car should have taken all necessary steps to help the complainant so that the vehicle could be released from the custody of Ghoksadanga P.S. Resultant effect is that the car  lying under open sky is suffering damage during rainy season. Also it suffered damages the mechanical parts of the vehicle due to wear and tear. There was damage to the tyre. All such steps as alleged by the O.Ps were taken after institution of this case to save themselves from  the rigors of the punitive order but they would not be able to escape from liability and responsibility for their own fault in not registering ownership in favour of the complainant. Supported affidavit filed by the O.P Passang Lamu Sherpa is of no use in view of the fact that she has sold out the second hand car and delivered possession to the complainant through the authorized dealer Berlia Motors Private Ltd.  Statutory obligation remains on the shoulder of the O.Ps till ownership is being changed in the name of the complainant. Therefore, natural decay, loss, mental pain  agony and depreciation of the cost of car since sale by the O.P to the complainant shall borne by the O.Ps.  The O.P Berlia Motors Private Ltd. have direct control  over the vehicle-owner Passang Lamu Sherpa, but the complainant did not compel the vehicle owner Passang Lamu Sherpa to transfer the ownership of the  vehicle in the name of the complainant, as the consideration amount was paid to Berlia Motors Private Ltd. by complainant.  As per the Company Law Berlia Motors Private Ltd. is being controlled and owned by the Directors. Therefore, all three Directors named above are jointly and/or severally liable and accountable for the laches and negligence in  not transferring ownership of the vehicle in the name of the complainant from the name of the O.P. vehicle owner Passang Lamu Sherpa. There is deficiency of service from the end of the O.Ps being directors of Berlia Motors Private Ltd. for which the complainant has not been able to get the car released as yet from  the custody of Ghoksadanga P.S. It is clear that the complainant would suffer punishment for causing motor accident, but ownership of the vehicle if remained in the name of the complainant it could have got released the same from Mathabhanga Court. All the issues are, therefore, decided in favour of the complainant. Accordingly, it is

                                                                    O R D E R E D :-

That the case be and the same be allowed on contest.  The O.P nos. 1 to 4 are hereby directed to refund a sum of Rs.4,25,000/- towards cost of the vehicle paid by the complainant.

            All the relevant documents in possession of the complainant shall be returned therewith to the O.P Nos. 1 to 4. Interest of the said payment amount @ 9% be paid by the O.P nos. 1 to 4 to the complainant from the date of purchase as on 4.4.2018. Further they are directed to pay a sum of Rs. 1,00,000/-(one lac) towards compensation for mental agony, pain and loss by the complainant. They shall further pay litigation cost of  Rs. 15,000/- to the complainant. In addition to that, the O.P shall pay a sum of Rs.10,000/- in the bank account of Consumer Legal Aid Forum, Jalpaiguri against proper receipt.  There will be no order against the O.P no.5 Passang  Lamu Sherpa.

The complainant shall execute all relevant documents in respect of vehicle no. WB-74 AL-0405 in favour of O.P. nos. 1 to 4 so  that the O.Ps can take legal action for releasing vehicle in connection with Ghoksadanga P.S case no. 70/2018 dated 8.6.2018 u/s. 279/338/304A I.P.C.

 Let the original documents, if any, filed by the parties, be returned to them on proper receipt.            

Let a plain copy of this final order be handed over to each of the parties free of cost on proper acknowledgment or be sent by speed post, in terms of Rule 5(10) of West Bengal Consumers Protection Rules 1987.