FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
It is the case filed by the complainant U/s 12 of CP Act, 1986 against the OPs.
The fact of the case in brief is that the complainant in the month of June, 2015 was searching for a second hand Honda car with different dealer of the OP-1 then the OP-2 approached the complainant stating that one car of 2 years old being Honda Brio is available in their store which is in a very good condition. The complainant after examining the car in question gave his consent for the same. On 27.07.2015 the complainant purchased the said Honda Brio car being vehicle no. WB02 AB 7258 from the OP-2 being an authorised dealer of the OP-1 on a consideration of Rs. 3,35,000/- only. The car was delivered to the complainant on the same self day. At the time of selling the car the OP-2 handed over all the relevant document to the complainant but the formality of name transfer has not been done on that day. The OP-2 informed the complainant that the name transferred is time taken matter and the complainant on good faith wait for few months to get it done as a result the name of the owner kept Raj Kumar Mitra being first owner of the car in question.
But the previous owner clearly refused to co-operate the petitioner on some filthy ground. The representative of the OP-1 at Kolkata assured the petitioner that they would get it done within 03 months and the petitioner follow up the matter with the authorised representative of the OP-1 after one month but he did not receive the call. then the complainant made contact with the higher official of the OP-1 Mahindra first choice for transferring name of the car in question who assured the complainant that they will settle the matter and assigned the work with Mrs. Debarati Ghosh and one Mr. Amit initially they tried to resolve the issue and they also admitted the same vide email dated 20.06.2017 which is annexed herewith as annexure “A”.
It is further stated by the complainant that in the month of November 2016, the authorised employees of OPs informed the complainant that in order to change and or to transfer the name of the complainant need to pay additional charge of Rs. 10,000/- only which was not mentioned with the OPs at the time of purchasing the car. Having no other alternative, the complainant issued a cheque to that effect being cheque No. 00000089 on HDFC bank in favour of the OPs -2 and the said cheque was encashed on 03.01.2017. The photocopy of bank statement is annexed herewith as annexure “B”. Again in the middle of March, 2017 one of the authorised employee of OPs informed the complainant that the insurance of the car has already been expired and it is required to be renewed and asked the complainant to pay the tax of the insurance for coming period and also stated that no action could be taken on their part until the payment of insurance would be done. The complainant denied to pay the insurance charge until the transfer his name because he has already incurred monetary loss and requested the OPs for transferring the name. As and when the name of the previous owner has not been transferred in respect of car in question. The tax invoice was issued in the name of previous owner. An email was sent to that effect dated 20.01.2018 which is annexed as annexure “C”.
The complainant further stated that in spite of purchasing the car he is unable to use the same because the car has not yet been transferred in his name and the insurance has also not be paid which is the gross deficiency in service of the OPs and which caused harassment mental pain and agony to the complainant. The OPs denied to transfer the name until the tax and insurance amount is transferred through their email dated 20.01.2018. Hence, having no other alternative, the complainant has filed the case against the OPs with a prayer to give direction to the OPs to refund the purchase amount of Rs. 3,35,000/- only to the complainant of the Brio car being vehicle No. WB 02 AB 7258 to the complainant either jointly or severally and also prayed for given direction to the OPs to refund the amount of Rs. 10,000/- also to the complainant which is paid by him for the purpose of transfer of name and also prayed for compensation of Rs.7,00,000/- for harassment, mental pain and agony and damages along with litigation cost of Rs.1,00,000/-.
The OP-1 did not appear before this forum even on receipt of the notice and the case do run ex parte against the OP-1 vide order dated 05.07.2018 passed by this forum.
The OPs 2 and 3 have contested this claim application by filing separate WVs denying all the materials allegation levelled against them. The OP-2 in his WV alleged that the complainant has filed this case with false plea and suppressing the material facts. The allegation of the complainant are misconceived, speculative, harassing, motivated, misleading and malafide so, they are not maintainable in law.
The OP-2 further stated that the complainant did not disclose any cause of action against the OP-2. Thus, the petition of complaint is liable to be rejected.
He further alleged that the petition of complaint is suffered from mis joinder and non joinder of necessary parties.
It is further stated by the OP-2 that the complainant did not purchase the subject car from the OP-2. The OP-2 has no idea from where did the complainant purchased the car and most probably he himself purchasesd the car from the owner and he approached the OP-2 to transfer the name of ownership, the OP-2 immediately process the required document and deposited the same to the RTA department, Govt of WB but thereafter, neither the complainant nor the previous owner of the car in question appeared before the RTA authority. By that time the road tax of the subject car was due. The OP-2 asked the complainant to pay the road tax but the complainant with an intention to evade the lawful due of the government ex checker has taken the shelter of the forum.
It is also stated by the OP-2 in the concerned WV that the OP-2 is mere dealer and has no authority to transfer the ownership of the car. The instant dispute in the parties is not a consumer dispute and there is neither any unfair trade practice nor any deficiency in service on the part of the OP-2. Hence, the content of petition of complainant is baseless and is liable to be dismissed with cost.
The OP-3 has also contested the petition of complaint by filing a separate WV. It is stated by the OP-3 that the petition of complaint as filed by the complainant is not tenable in the eye of law. The OP-3 further stated that he was the owner of a car bearing No. WB 02 AB 7258 by way of purchase after obtaining financial strength i.e. car loan from the SBI, Jeevan Deep Branch, Kolkata-71 and after completion of all the formalities and he incorporated his name before the concerned authorities and peacefully enjoyed the said car without any interference from any corner.
The OP-3 further stated that due to his personal inconvenience he purchased another car in the year 2015 from the OP-2 by exchanging the previous car in question. He completed all the formalities required and on assurance given by the OP-2 he handed over all the related documents/papers of the car in question to the OP-2 and put his signature on all the required forms and papers as per direction of the OP-2 and still he is ready to perform his own obligation in respect to his subject car. The OP-3 has closed the loan A/c and also obtained the certificate to that effect from SBI, Jeevan Deep Branch, Kolkata-71 on 12.06.2015.
the OP-3 further alleged that the complainant did not serve the notice upon him and he is plying the subject car regularly on road without incorporating his name as owner in respect of the car in question before the Motor Vehicle Department.
It is further alleged by the OP-3 that the petition of complaint as filed by the complainant is false, misleading, motivated and baseless. The OP-3 denied that the complainant tried to take necessary steps to transfer the name and made contact with the previous owner Sri Raj Kumar Mitra for that purpose. But the previous owner flatly refused to cooperate with the complainant. The OP-3 stated that as per request of the complainant he could not be able to appear before the Motor Vehicle department for transfer the name in respect of the subject car because at that time he was admitted at Gleneagles Hospital for his treatment under Dr. Lalat Kumar Agarwal. He again alleged that the complainant has no cause of action to file the case thus the same is liable to be dismissed with cost.
In view of the fact and circumstances the points of consideration are as follows:-
- Is the petition of complaint is maintainable in its present form and in law?
- 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 complainant entitled to get?
Decision with Reason
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close security of the materials of record and position of law it appears that the case is well maintainable in the eye of law.
It is the case of the complainant that he purchased the subject car on 27th July, 2015 being Honda Brio Car being vehicle No. WB 02 AB 7258 from the OP-2 an authorised dealer of OP-1 at a consideration of Rs.3,35,000/- only paid on the same self date as the total consideration money and the OP-2 delivered the subject car to the complainant on the same date. It is also the case of the complainant that even on repeated request made by him to the OP-2 the OP-2 did not take any fruitful steps to transfer his name in respect of the subject car before the Motor vehicle Department as a result the complainant sent an email to the OP-2 on 20.01.2018 but the OP-2 did not response to him so cause of action arose on 20.01.2018 from which it can safely be held by this Commission that complainant has sufficient cause of action to file the case.
on careful perusal on materials and evidence on record it is revealed that it is admitted position that the complainant purchased the second hand Honda Brio subject car from the OP-2 on 27.07.2015 being vehicle No. WB 02 AB 7258 on payment of Rs.3,35,000/- the total consideration amount and got the delivery of the said car without transferring the name of the owner. So as and when the complainant purchased the car from the OP-2 who is the authorised dealer of the OP-1 on payment of the entire consideration amount of Rs.3,35,000/- and the OP-3 is the previous owner of the subject car then undoubtedly the complainant is the consumer and the OP-1, 2 and 3 are the service provider.
From the WV as filed by all the OPs it is also revealed that the name of the owner of the subject car has not been transferred before the Motor Vehicle authority even on payment of full consideration amount by the complainant to the OP-2 and the OPs by taking several plea have denied to transfer the name of the complainant as owner of the subject car before the Motor Vehicle authority. So when it is admitted position that the complainant paid the entire consideration money to the OP-2 and the OP-2 to take the responsibility to transfer the name of the owner in respect of the subject car before the Motor Vehicle authority but the OP-2 did not perform his responsibility till date rather his men have threatened the complainant that if the complainant did not pay the tax and insurance of the subject car they cannot take any steps for transferring the name of the ownership of the subject car. It is evident from the evidence on record that the complainant requested the OP-2 for transferring the name of the ownership of the subject car before the motor vehicle authority within the period of insurance and tax but the OP-2 intentionally and deliberately delayed the matter and burdened the complainant demanding more money which constrained the complainant for filing this complaint because the complainant purchased the vehicle with huge money of Rs.3,35,000/- but since purchase he could not be able to ply the vehicle on road which amounts to his financial loss, mental pain and agony due to action of OP-2 thus there is deficiency in service on the part of the OP-2.
It is alleged that the OP-3 being the previous owner of the subject car did not cooperate the complainant for transferring the name of the same in favour of the complainant before the motor vehicle authority. Though the OP-3 stated that at that time he was admitted in hospital for medical purpose but long after that he did not extend his hand of cooperation for transferring the ownership in respect of the car in question which is also one kind of deficiency in service in the consideration of this Forum. .
In view of the discussion made above, it is held by this Forum that there is / was sufficient deficiency in service on the part of the OPs and it is held that the complainant being a consumer could be able to prove his case beyond all reasonable doubt and entitled to get relief as prayed for.
All the points are thus considered and decided favourably to the complainant
The case is properly stamped.
Hence,
Ordered
that the case be and the same is decreed on contest against the OPs-2 and 3 and ex parte against OP-1 with cost of Rs. 2,000/-.
The complainant do get the decree as prayed for.
The OPs-1 and 2 are directed to refund the purchased amount of Rs.3,35,000/- to the complainant either jointly or severally along with Rs.10,000/- which was paid for transferring the name in favour of the complainant in respect the subject car by the complainant within 45 days from this date of order.
The OP-1 and 2 are further directed to pay compensation to the complainant either jointly or severally to the tune of Rs.50,000/- for damages, harassment, mental pain and agony along with litigation cost of Rs.10,000/- within 45 days from the date of this order.
If the OPs-1 and 2 failed to comply the decree within the stipulated period the complainant will be at liberty to execute the same as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
