District Consumer Disputes Redressal Commission 

NORTH 24 Pgs., BARASAT.

C.C. No. 264/2018

Date of Filing              Date of Admission                        Date of Disposal

25.06.2018                    03.07.2018                                       04.04.2022

Complainant/s :- Sri Bhola Ghosh, S/o. Upendra Ghosh,

                               Shimulpur, Thakur Nagar, P.S. Gaighata,

                               Pin-743287, Dist- North 24 Parganas.

=Vs=

O.P/s :-              Lexus Motors Pv. Ltd, Head Office at 209, AJC Bose Road,

                             Kolkata- 700017, also its branch office at Kalopur,

                             P.O. and P.S. Bongaon, Dist- North 24 Parganas.

P R E S E N T      :-  Shri Debasis Mukhopadhyay………..President.

                             :- Smt. Monisha Shaw ………………… Member.

Judgment

This is a complaint under Section 12 of the C.P. Act, 1986.

The case of the complainant is as follows:-

          The complainant stated that the complainant to earn bread for himself and his family members purchased one Sumo Gold vehicle from the O.P and the price was fixed at Rs. 7,81,981/- and the O.P at the time received part payment from the complainant. The complainant took delivery of the car from Krishnanagar as asked by the O.P. The complainant obtained car loan amounting Rs. 4,81,981/- from Tata Motor Finance and the complainant himself paid total amount of Rs. 3,00,000/- to the O.P. The complainant went to Krishnanagar to receive the car and was surprised that the doors of the vehicle was coloured differently and when he pointed out the same to the Manager of the O.P he assured to remove the same as early as possible. On 23.02.2018 the complainant went for servicing the car. The service centre refused to service the car as the same was one year old car. The complainant went to Tata Motors Finance to obtain the particulars of the car and found that this car was registered in the name of Suraj Mishra and the Finance Company received Rs. 15,310/- from said Suraj Mishra for the same car and lastly received the instalment for the month of April, 2018. The complainant found that he was cheated by the O.P by selling the same vehicle to the complainant and Sri Suraj Mishra. The complainant spent Rs. 1,65,000/- for obtaining permit and other service charges and other expenses. The complainant stated that the O.P supplied second-hand car to the complainant in place of new car though consideration was received for a new car. Hence the complainant files this case praying for direction upon the O.P to replace the

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scheduled car and to deliver new car to the complainant or in the alternative return the consideration of the amounting Rs. 7,81,981/- with interest and also for damages and compensation and litigation cost.

          The O.P appeared to contest the case by filing written version. The O.P denied the allegations of the complainant and stated that the complaint was not maintainable and the complainant was not a consumer as the car was purchased for commercial purpose. The O.P also stated that the subject car was sold to the complainant for the first time as a brand new car and the complainant received the car signing delivery memo on 31.03.2018 with all relevant documents. The O.P denied that the car was earlier in the register in the name of Suraj Mishra and finance was made by Tata Motors through the O.P for said customer. The O.P submitted that if there arose any error in the record of the O.P and the said financer in the computer recording system operation of O.P and Tata Motors Ltd in respect of any entry of subject car the said error was rectified and the O.P categorically stated that the subject car was never sold to any other customer.

          The O.P stated that the complaint was lodged on frivolous ground and therefore it should be dismissed with cost.

          From the contentions of the parties it appears that the points for consideration in this case are whether the case is maintainable and whether the complainant is entitled to get any relief as prayed for.   

Decision with reasons

                    Ld. Advocate for the complainant filed brief notes of argument and submitted that the complainant intended to purchase a new car from the O.P and paid consideration of Rs. 7,81,981/-. But the O.P cheated and supplied a second-hand car. The complainant submitted that as per record of the Tata Motors Finance as obtained by the complainant the car is registered in the name of Suraj Mishra and therefore it is a clear case that the complainant was cheated and a second- hand car was supplied to him. He, therefore, prayed for reliefs as per prayer made in the complaint.

          O.P by submitting written argument submitted that the case was not maintainable as the complainant was not a consumer as the car was purchased for commercial purpose. The O.P also submitted that the complaint was made on frivolous ground taking advantage of some mistake in the computer record and therefore the case is liable to be dismissed with cost.

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          We have considered the complaint, the written version, evidence and documents and written argument by both sides.

          Regarding the issue of maintainability we find that the complainant stated that he purchased the car for earning bread for himself and for family members and therefore, we find that the complainant is a consumer within the meaning of C.P. Act and the case is, therefore, maintainable.

          We find that the complainant contended that he intended to purchase a brand new car from the O.P but he was supplied with a second hand car. The complainant submitted that he found that previously it was recorded in the name of one Suraj Mishra and therefore the car was earlier sold to one Suraj Mishra and therefore, it was clearly proved that the complainant was given a second- hand car instead of a brand new car. We find from the contention of the O.P that the O.P admitted that there was an error in the record of the O.P and the financer in the computer recording system in respect of the subject car but the said error was rectified. Thus, it is an admitted fact that the car was recorded in the computer system of the O.P and Tata Motors finance in the name of Suraj Mishra. The O.P did not clarify how such mistake occurred or how the mistake could be rectified. Accordingly we find substance in the contention of the complainant that the complainant was supplied with second-hand car instead of brand new car. When the complainant has paid consideration for a brand new car he has right to demand a brand new car and not a second-hand car.

          We find that the O.P has obligation to supply a brand new car to the complainant and not a second-hand car when the O.P had taken full consideration for a brand new car.

          Thus, we find that the complainant’s case is proved that he was supplied with a second-hand car instead of a brand new car. Accordingly, we find that the O.P is liable to supply a brand new car to the complainant or else return the purchase money to the complainant as prayed for.

          In the result the case succeeds.

Hence,

                             Ordered

that the complaint case being No. 264/2018 is allowed on contest against the O.P.

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The O.P is to supply a brand new car of the same brand as purchased by the complainant taking back the second-hand car as supplied to the complainant within two months from this date or alternatively return the purchase money of Rs. 7,81,981/- to the complainant with interest of 6% p.a. from the date of filing of this case till payment of the same within 2 months from this date, failing which the complainant shall have the liberty to execute the decree according to law.

          Let plain copy of this order be given to the parties free of cost. 

Dictated & Corrected by                

       President

Member                                                                                    President