This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Ms. Arpita Roy.

The case of the complainant’s in short is that complainant purchased a motor bike namely ‘Honda Aviator’ from the shop of the opposite party on 16.7.2017 by paying Rs.66,593/- (Rs.7000/- in cash, Rs.18,000/- in cheque of City Bank and Rs.41,593/- in cash totaling Rs.66,593/-).  But in this regard opposite party issued money receipt of Rs.63,761/- (Tax Invoice Rs.55,780/-, Tax Invoice [extended warranty] Rs.624/-, Insurance Rs.1,535/-, Vehicle registration receipt Rs.5,461/- and tax invoice for number plate 361/- i.e. totaling Rs.63,761/-.

The complainant on several times communicated with the opposite party and requested to refund of excess money but all the request gone in vain.  Thereafter the complainant sent lawyer’s notice through her advocate on 9.10.2017 & 13.9.2017 through email and speed post vide No.EW394917843IN on 10.10.2017 to the opposite party for refund of Rs.2,832/- within seven days from the date of receipt of notice. But there was no fruitful result comes out.

Finding no other alternative the complainant filed this case before this Forum for relief with a prayer to direct the opposite party to refund of Rs.2,832/- towards excess amount taken by him, to pay Rs.50,000/- as compensation towards harassment and to pay Rs.12,000/- as litigation cost.

The opposite party contested this case by filing written version denying inter-alia all the material allegations as leveled against him.  This opposite party submits that the complainant visited the showroom, selected the goods and agreed to the price offered by the opposite party and taken delivery of goods with full satisfaction.  Thus there is no deficiency in service from the part of the opposite party.  This opposite party also submits that he has not taken Rs.66,593/- towards the purchase of the relevant motor bike ‘Honda Aviator’ but the money which he has received its includes towards the cost of motor bike and others statutory duties and the money which the complainant has paid with complete satisfaction after receiving delivery of the same.  The complainant filed this case to harass the opposite party and also to damage the reputation of the opposite party. 

Complainant filed evidence on affidavit. Both sides filed written notes of argument which are taken into consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Ms. Arpita Roy is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Ms. Arpita Roy is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1) (d)(i) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the purchaser of a two wheeler paid money and possessing the said vehicle, so she is entitled to get service from the opposite party as consumer.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.64,832/- for refund of Rs.2832/-,litigation cost of Rs.12000/- and Rs.50000/-as compensation for harassment ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.            

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

The case of the complainant is that she purchased a motor bike namely Honda Aviator from the opposite party on 16.6.2017 by paying a sum of Rs.66,593/- including insurance, registration and tax invoice for number plate.  She paid a sum of Rs.7000/- in cash and issued a cheque of Rs.18,000/- on 16.6.2017. That on the date of delivery she paid a sum of Rs.41,593/- to the opposite party. Dispute cropped up when the opposite party provided money receipt of Rs.63,761/- in total.  Getting the money receipts & Tax In voice the complainant felt that a sum of Rs.2,832/- had paid in excess and enquired the opposite party regarding such excess payment and requested to refund the same. She sent messages on 9.10.2017 and sent a letter   on10.10.2017 through speed post requesting the opposite party for refunding the excess amount of Rs.2,832/- within seven days from the date of receipt of notice but the opposite party pit no bid at the utterance of this complainant for which the complainant compelled to prefer the recourse of this Forum praying directions upon the opposite party to refund of excess amount of Rs.2,832/- with litigation cost of Rs.12,000/- and compensation of Rs.50,000/- for harassment, mental pain and agony.

The case of the opposite party is that the complainant wanted to purchase a Honda Aviator two wheeler from the opposite party and she paid a sum of Rs.66,593/- with full satisfaction and took the delivery of the said two wheeler on 16.7.2017. After two months from the delivery of said two wheeler the petitioner felt that a sum of Rs.2,382/- has been taken more from her. The opposite party further assailed that after two months of taking delivery of the two wheeler she came before the opposite party to replace the same with a new one which is not possible.  Then the complainant threatened the opposite party to implicate falsely and the instant complaint case is nothing but the outcome of abnormal grudge of the petitioner. The opposite party further assailed that he being the owner of a legally owned business accepted the offer of the petitioner taken offered money from her and deliver the desired product and the petitioner never raised any questions about such but with the intention to harassing the opposite party she has fabricated a story to misled the Forum. The complaint petition is not maintainable as there is no deficiency in service or defect in goods or unfair trade practice or charging of excessive price from the part of the opposite party.

  The complainant relied the money receipt dated 28.06.2017 payment of sum of Rs.7000/- in cash, money receipt dated 28.06.2017 in respect of payment of Rs.18,000/- through cheque of Citi Bank being no.092627 dated 30.06.2017 another money receipt  dated 16.07.2017 in respect of balance payment of sum of Rs.41,593/- in cash. So from the above money receipts it  is evident that the complainant paid a sum of Rs.66,593/- to the opposite party for purchasing the two wheeler namely Honda Aviator. After perusing the Tax In voice of the opposite party it appears that cost of the vehicle including taxes is Rs.55,780/-, tax invoice (extended warranty) of Rs.624/-, insurance of Rs.1535/-, Vehicle Registration receipt of Rs.5461/- and Tax in voice for Number Plate is Rs.361/-. In total the opposite party paid receipt of Rs.63,761/-. But the complainant paid Rs.66,593/-. So a sum of Rs.2832/-(Rs.66,593.00-Rs.63,791.00) has paid in excess by the complainant. The opposite party received the money in excess without the consent of the complainant. The complainant requested the opposite party to refund the same but the request of the complainant being unaddressed for which the complainant filed the instant complainant before this Forum praying directions upon the opposite party as enumerated in the prayer portion of the complaint petition. The opposite party neither in his written version nor his evidence on affidavit clarified such excess payment. Nowhere the opposite party explained such excess payment. After hearing the argument and perusing the documents in record this Forum is in the opinion that the opposite party failed to give satisfactory explanation in receiving the excess amount from this complainant. The complainant proved his case by adducing evidence. So we may infer that the complainant is entitled to get refund the excess amount of Rs.2832/- from the opposite party including other reliefs as this Forum deems fit and proper. 

4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of  taking excess amount during the period of purchase of a two wheeler

ORDER

Hence it is ordered that the complaint case being No.221/2017 be and the same is allowed on contest against the Opposite Party with litigation cost of Rs.6,000/-.

The Opposite Party is directed to pay a sum of Rs.2832/- to this complainant which opposite party received in excess from this complainant during the period of sale of impugned two wheeler.

Opposite party is further directed to pay compensation of Rs.10,000/- for harassment and mental agony.

 All the payment are to be made within 45 days from the date of passing this Order.

At the event of failure to comply with the order the Opposite Party shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.