Date of filing: 31-03-2016 Date of disposal: 14-03-2017.
Present :
Sri Asoke Kr. Mandal Hon’ble President,
Sm. Silpi Majumder Hon’ble L. Member,
Sri Pankaj Kr. Sinha Hon’ble Member,
Sri Tarun Kundu, S/o. Shambhu Charan Kundu,
Vill. Amadpur, P.S. Memari, Dist.-Burdwan, Complainant.
VERSUS
- M/S Gati Motors Pvt. Ltd.
represented by its Branch Manager,
having its registered Office at Nachan Road,
Bhiringi, Benachity, P.S. Durgapur, Dist. Burdwan,
PIN- 713213.
- Sri Tushar Roy,
Branch Manager, M/S Gati Motors Pvt. Ltd.
having its Show room cum Warkshop at
Fagupur, N.H. -2, Opposite Belkos Gram Panchayet Office,
P.S. & Dist. Burdwan, PIN- 713104. Opposite Parties.
Appeared for the complainant : Shovan Kumar.
Appeared for the O. P. No. 1 : Dewan Basiruddin Ahamed.
Appeared for the O. P. No. 2 : Pravat Kumar Roy.
JUDGMENT
This is a case U/s. 12 of C.P. Act for an award directing the O.Ps. to pay Rs. 7,50,000/-as cost of procurement of the vehicle in question, to pay Rs. 2,00,000/- as compensation for mental pain, agony and harassment and to pay Rs.50,000/- as litigation cost, to the complainant.
The complainant’s case in short is that the complainant being an unemployed youth for his livelihood, decided to purchase a ‘Tata’ make small passenger vehicle called “Tata Magic” and to use the same as contract carriage in the route between Amadpur to Masagram via Jamalpur after obtaining necessary route permit from R.T.A. Burdwan. He contracted the local show-room of the O.P. No. 1 in the month of October, 2014. The O.P. No.2 being the Branch Head of the local Show-room of the O.P. No. 1 assured the complainant that they
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would arrange the route permit if he would purchase the required vehicle from them. Being assured by the O.Ps., the complainant agreed to purchase the vehicle ‘Tata-Magic’. The O.Ps. accordingly issued a quotation being No.0226 for Rs.4,41,771/- agreeing that they would deliver the vehicle within a week and they would arrange the route permit for said vehicle. The complainant relying upon the O.Ps. arranged for a loan from the local branch of UCO Bank in order to purchase the said vehicle. The complainant paid Rs. 4,00,000/- by a cheque being No. 834806 dated 30.10.2014 drawn on UCO Bank, Amadpur Branch and also he paid the rest amount in cash to the O.Ps. The Ex-show-room price of said vehicle was Rs.3,98,496/-, the insurance policy was Rs.19,775/- and cost towards registration and other charges was Rs.23,500/- total Rs.4,41,771/-. On receipt of said amount the O.Ps. issued a payment receipt being No.GATI/BWN/0616 dated 31.10.2014 for the aforesaid cheque amount and another receipt being No.GATI/BWN/0617 dated 31.10.2014 for a sum of Rs.7,917/- to the complainant but being asked by the complainant the O.Ps. did not issue any receipt in respect of balance amount of Rs.38,554/- saying that the balance amount was towards the registration and insurance charges. On receipt of total amount of Rs.4,41,771/- a Tata-Magic Vehicle (BS-III) bearing chassis No.MAT 445117EVD 18284 and Engine No. 275IDI06DVYS 41941 under delivery challan No. 1767 to the complainant . At the time of delivery of said vehicle the O.Ps. again assured that they shall arrange for route permit within a short period. Fifteen days after said occurrence the complainant again requested the O.Ps. On said date the O.Ps. handed over the insurance paper of Tata A.I.G General Insurance Co. Ltd. only with further assurance that within a short period the route permit would be available. For want of route permit said vehicle has kept idle. In the month of December, 2014 the complainant again requested the O.P. No.2 to hand over the route permit. On said date the O.P. no.2 handed over the Tax Token and Smart Card (RC Book) in respect of the said vehicle. On said date the complainant got registration No. WB43-1105 in respect of the vehicle but did not get the route permit. On perusing the Tax Token, the complainant came to know that a sum of Rs.3,840/- was paid vide receipt No. 0011333 towards the tax for the period 2.12.2014 to 1.3.2015 and a sum of Rs. 18,893/- was premium amount of the insurance policy for the period from 31.10.2014 to 30.10.2015. Even after expiry of one month the route permit was not handed over and accordingly in the month of January, 2015 the complainant met with the O.P. No.2 and asked for route permit. The O.P. No.2 assured that within two weeks the necessary route permit would be handed over. Then in the first week of February, 2015 the complainant tried to contact the O.Ps. over phone but failed. As such the complainant visited the office of the O.Ps. at Burdwan and at that time the O.Ps. disclosed their inability to arrange the route permit. The complainant demanded for refund of the entire cost he incurred from the O.Ps. Then the O.Ps. undertook to pay and to refund the entire cost of procuring said Tata-Magic vehicle together with loss the petitioner suffered failing to arrange the route permit within 15 days from 19.2.2015. In that connection the O.P. No.2 executed a document. But within the period as mentioned in said document, the O.Ps. failed to arrange said route permit. As the O.P.s have failed to arrange route permit from the appropriate authority the complainant failed to ply the vehicle. As such the complainant is entitled to get the cost procured for vehicle. The complainant demanded such amount with interest from the O.Ps. but they did not pay the same. Lastly the complainant by serving a legal notice dt. 05.05.2015 demanded total amount of Rs 7,50,000/- from the O.Ps. but the O.Ps.
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did not pay any heed to such notice. For the illegal acts of the O.P.s the complainant suffered loss of money and he has been harassed and also he has been forced to come before this Forum. So the complainant is entitled to get an amount as compensation and further an amount as litigation cost. Hence, this case with the prayer as mentioned above.
The O.P. No. 1 contested the case by filing W.V. while stating interalia that the complainant has no cause of action to file this case, the case is not maintainable, this Forum has no jurisdiction to try this case and there was no deficiency in service on the part of this O.P. It has been further stated by this O.P. that Gati Motors Pvt. Ltd. is a reputed company with sound goodwill in the market for its efficient service, it is engaged in the sales and service of various kinds of motor vehicles, it provides careful and efficient after sales service to its patrons, the O.Ps. do not make any promise or assurance to their patrons to arrange any route permit, it is not the business policy of the O.Ps. to engage in other activities like arrangement of route permits for commercial vehicle sold by them other than selling of vehicles of various makes and models and rendering after sales service, the O.Ps. do not sell any vehicle with any express or implied promise to provide with route permit, the route permits are issued by the Regional Transport Authority through its Motor Vehicle Department under the Govt. of West Bengal, in this connection these O.Ps. have no control, the question of giving any assurance to arrange route permit to the complainant does not arise, the complainant has purchased a Tata Magic vehicle from the O.P. No. 1 and the O.P. No. 1 has issued appropriate receipts for the money it has received from the complainant, it is the obligation of the complainant to obtain necessary route permit for his commercial vehicle from the concerned R.T.A., the complainant being unsuccessful in his efforts to obtain necessary route permit from the R.T.A., Burdwan, has adopted the method of putting the blame upon the O.Ps. and the complainant is not a consumer as he has admitted that the vehicle in question is his only source of income. It is therefore claimed by this O.P. that the case is liable to be dismissed.
The O.P. No.2 also contested this case by filing separate written version adopting the W.V. filed by the O.P. No.1 and stating inter-alia that the complaint case is not maintainable, the complaint is barred by limitation, the contents of the complaint shows that the allegations brought by the complainant is of purely civil nature and accordingly this Forum has no jurisdiction to try this case. It has been further stated by this O.P. that the scrap of paper purported to be executed by this O.P. is fabricated, sham, fraudulent and the same is not binding upon the O.Ps. and also this O.P. is/was not a manager under the O.P. No.1 but he is a sales executive. It is therefore claimed that this case is liable to be dismissed against this O.P.
DECISION WITH REASONS
To prove his case the complainant has relied upon his evidence on affidavit, photocopies of two receipts dated 31.10.2014 showing payment of Rs. 4,00,000/- by cheque and showing payment of Rs. 7,917/- in cash, issued in favour of the complainant, two postal receipts, legal notice dated 5.5.2015 and one “ANGIKAR PATRA” dated 19.2.2015 allegedly executed by O.P. No. 2.
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On the other hand the contesting O.Ps. have relied upon their evidence on affidavit and they have submitted their separate written arguments. From the side of the O.Ps. no documentary has been adduced.
It is admitted by the contesting parties that the complainant purchased a commercial vehicle named Tata –Magic (BS-III) bearing chassis No.MAT 445117EVD 18284 and Engine No. 275IDI06DVYS 41941 under delivery challan No. 1767 from the O.P. No.1. It is also admitted that the O.P. No.1 received Rs. 4,00,000/- by cheque drawn on UCO Bank and another amount of Rs. 7,917/- in cash and in that connection the O.P No. 1 had issued two money receipts being Nos. GATI/BWN/0616 dated 31.10.2014 and GATI/BWN/0617 dated 31.10.2014 as cost of the vehicle etc. The complainant has brought a specific allegation that the O.P. No.1 received total Rs.4,41,771/- with the assurance that they would arrange the route permit connected with for such vehicle. But in spite of repeated requests the O.P. No.1 did not issue any money receipt in respect of the balance amount of Rs. 38,554/- and did not make any arrangement for said route permit. The contesting O.Ps. have denied this case of the complainant stating that Gati Motors Pvt. Ltd. is a reputed company with sound goodwill in the market for its efficient service, they are engaged in the sales and service of various kind of motor vehicles with assurance of careful and efficient after sale/service to their patrons but the O.Ps. do not make any promise or assurance to provide route permit for the commercial vehicle and also the O.Ps. never committed and gave assurance to the complainant to arrange the commercial route permit for the vehicle which the complainant has purchased. The contesting O.ps. have further stated that it is the obligation of the complainant to take initiative for obtaining route permit from the concerned R.T.A and the complainant being unsuccessful in his efforts to obtain necessary route permit from the R.T.A Burdwan, has adopted the method of putting the blame upon the O.Ps. The complainant’s further case is that the O.P. No.2 assured that he shall arrange for route permit for the vehicle in question and in that connection the O.Ps. have taken money. No money receipt in this connection has been produced from the side of the complainant. Except his evidence on affidavit, the complainant has adduced no corroborative oral evidence. Two money receipts being Nos. GATI/BWN/0616 dated 31.10.2014 and GATI/BWN/0617 dated 31.10.2014 do not support that the O.Ps. received money to arrange the route permit. The copy of the resolution of the concerned R.T.A. Board dt. 18.08.2014 which has been annexed with the evidence on affidavit of O.P. No. 1, shows that the complainant himself made application before the R.T.A. to obtain the route permit and subsequently the same was rejected in the meeting of the R.T.A. Board on 18.08.2014. This fact supports the case of the O.Ps. that the complainant being unsuccessful in his efforts to obtain necessary route permit from the R.T.A Burdwan, has adopted the method of putting the blame upon the O.Ps. In support of his case the complainant has relied upon the photo copy of one “ANGIKAR PATRA” dated 19.2.2015 alleging that failing to arrange the route permit, this document was executed by the O.P. No. 2 being the Manager of Fagupur Show-room of the O.P. No. 1. This document has been flatly denied by the O.Ps. stating that the same is fabricated, sham, fraudulent and the same is not binding upon the O.Ps. and also the O.P. No. 2 is/was not a manager under the O.P. No. 1. The complainant has adduced no evidence to prove that the O.P. No. 2 is/was the Fagupur Show-room manager under the
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O.P. No. 1. The photo copy of the alleged ANGIKAR PATRA dated 19.2.2015 shows that the same was executed by one Tushar Roy S/O Late Amio Ranjan Roy of Baranilpur, Sripally within P.S. & Dist. Burdwan by putting his signature in Bengali scripts. No evidence has been adduced showing that this Tushar Roy and O.P. No2 (Tushar Roy) are identical and same person. The O.P. No. 2 has clearly stated that he never executed such document, ANGIKAR PATRA dated 19.2.2015 and he never received any amount from the complainant to arrange the route permit. The signatures as shown in the ANGIKAR PATRA dated 19.2.2015 were taken in Bengali Scripts but the signatures of O.P. No. 2 as shown in W.V. and other papers on record were taken in English Scripts. So there is no scope to compare such signatures by this Forum. The complainant has not taken any steps to bring the opinion of any Handwriting Expert in this connection. The witnesses who have put their signatures in this ANGIKAR PATRA dated 19.2.2, have not adduced their evidence on affidavit in this case. The evidence on affidavit submitted by the complainant has been denied by the O.Ps. by adducing their evidences on affidavit. So the evidences adduced by the parties in this connection, are nothing but oath versus oath. As complainant has brought the case that the O.P. No. 2 executed the document ANGIKAR PATRA dated 19.2.2015, the burden of proof is lying upon the complainant to prove the same by adducing better and corroborative evidence but the complainant has failed to discharge his liability. In the above premises we are of the opinion that the complainant has failed to prove that the O.Ps. sold the vehicle in question with promise to provide the route permit to the complainant and the O.Ps. received money to arrange the route permit for the complainant.
The complainant has stated in the complaint that the complainant being an unemployed youth for his livelihood, purchased the ‘Tata’ make small passenger vehicle called “Tata Magic” to use the same as contract carriage in the route between Amadpur to Masagram via Jamalpur after obtaining necessary route permit from R.T.A. Burdwan. So the burden of proof in the matter that the complainant purchased such vehicle to use the same for commercial purpose for his livelihood by means of self-employment, is lying upon the complainant. Section 2(1)(d) of the Act provides “Consumer means any person who – (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, or (ii) In this section the wards “Commercial purpose” have been explained as, for the purpose of this clause, ’commercial purpose’ does not include the use by a person of goods bought and used by him exclusively for the purposes of earning his livelihood by means of self-employment. The complainant to prove such self-employment, except his evidence on affidavit which has been challenged by adducing counter evidence on affidavit, has produced no documentary evidence nor corroborative evidence on affidavit. The complainant has not stated that he has obtained driving license to drive such vehicle and he has not filed the same in this case. So we hold that the complainant has failed to prove the alleged use for the purposes of
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earning his livelihood by means of self-employment and accordingly the complainant is not a consumer u/s 2(1)(d) of the Act.
In view of our above discussions we are of the opinion that the complainant has failed to prove that the O.Ps. sold the vehicle in question with promise to provide the route permit to the complainant and the O.Ps. received money to arrange the route permit for the complainant and also to prove that he is a consumer. Accordingly, the case fails.
Fees paid is correct. Hence, it is
Ordered
that the C.C. No. 51/2016 is dismissed on contest against the O.Ps. without any cost.
Let the copies of this order be supplied to the parties free of cost.
Dictated and corrected by me,
(Asoke Kr. Mandal)
(Asoke Kr.Mandal) President
President D.C.D.R.F., Burdwan
D.C.D.R.F., Burdwan
Silpi Majumder (Pankaj Kr. Sinha)
L. Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
