BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION : : TINSUKIA : : ASSAM
District: Tinsukia
Present: Sri D. Bora,
President,
District Consumer Disputes
Redressal Commission, Tinsukia
Smti J. Gogoi,
Member,
District Consumer Disputes
Redressal Commission, Tinsukia
Sri V Kumar L,
Member,
District Consumer Disputes
Redressal Commission, Tinsukia
Consumer Protection Case No.12 of 2020
Smti Mayuri Paul,
W/o Sri Amit Das,
D/o Sri Mihir Paul,
R/o Mission Para, Tinsukia Town,
P.O., P.S. & Dist. Tinsukia, Assam
……………………Complainant
- Versus –
- M/s . Borah Hyundai, Tinsukia,
A unit of Borah Agencies Pvt. Ltd.,
A.T. Road, Laipuli, Tinsukia,
P.O., P.S. & Dist. Tinsukia, Assam.
…………Opposite Party
2. United Bank of India, Tinsukia,
Represented by Chief Manager/Manager,
Tinsukia Branch, Chirwapatty, Tinsukia Town,
P.O., P.S. & Dist. Tinsukia, Assam.
….……Proforma Opposite Party
Appearance:
Sri N.K. Das,
Advocate ………………………. For the Complainant
Sri S. Chutia,
Advocate ………………. For the Opposite Party
Smti M.G. Biswas,
Advocate…………………. For the Proforma Opposite Party
Date of Argument: 27.09.2022
Date of Judgment: 03.11.2022
J U D G M E N T
1. The instant complaint petition is filed by the above named complainant u/s.35, read with Section 2(11) and Section 34 of the Consumer Protection Act, 2019 (as amended), praying for directing the opposite party to make payment of Rs.50,000/- being the booking amount of the car along with interest @ 12% p.a. from 31.10.2019, an amount of Rs.3,000/- being travelling expenses incurred for visiting the office of the opposite party and Rs.50,000/- for mental pain and agony and financial loss with cost of the proceeding.
2. The case of the complainant briefly, is that on 31.10.2019, the complainant along with her husband Sri Amit Das visited the opposite party’s showroom for purchasing a four wheeler and accordingly, she opted to purchase a new car of Hyundai XCENT(S) variant, colour – silver, year of manufacturing – 2019. Accordingly, the opposite party had issued a quotation to the complainant bearing No.BH/TSK/046 (Sl. No.3626) dated 31.10.2019 and requested the complainant to pay booking amount to them. Accordingly, the complainant paid an amount of Rs.50,000/- to the opposite party by an Account Payee Cheque bearing No.777126 dated 31.10.2019, drawn on State Bank of India, Tinsukia Bazar Branch and the rest of the amount was agreed to be paid to the opposite party through bank finance at the time of delivery of the said vehicle. Accordingly, the complainant booked one new Hyundai XCENT (S) variant vehicle. After that, the complainant and the opposite party completed the necessary formalities by filling up the order booking form etc. and the opposite party issued a copy of the said order booking form to the complainant and assured her to deliver the car within 15 days. On being assured by the opposite party, the complainant went to the office of the proforma opposite party for obtaining loan to purchase the car on hypothecation and accordingly, a loan of Rs.5,50,000/- was sanctioned in favour of the complainant by the proforma opposite party vide sanction letter dated 1.11.2019 (original of the sanction letter is kept in the custody of the proforma opposite party). But to the utter surprise of the complainant, till date the opposite party has failed and neglected to deliver the car to the complainant, though on various occasions, the complainant visited the opposite party’s showroom and requested them to deliver the car as soon as possible for which the complainant was always ready to pay the balance amount of the car through bank finance. The opposite party has failed and neglected to deliver of the car to the complainant in spite of repeated requests to them and as such, finding no other alternative, the complainant on 18.3.2020 sent a legal notice through her lawyer N.K. Das, Advocate, Tinsukia, whereby she demanded refund of the booking amount of Rs.50,000/- along with compensation of Rs.50,000/- for mental harassment caused to the complainant. The opposite party received the aforesaid legal notice on 21.4.2020, but in spite of receipt of the same, till date the opposite party neither contacted the complainant nor made any payment to her towards the refund of the booking amount or towards compensation. Hence, finding no other alternative, the complainant filed the instant case with the reliefs, as aforesaid along with compensation of Rs. 3,000/- for travelling expenses incurred while visiting the office of the opposite party and cost of litigation.
3. On receipt of notice of the case, the opposite party duly contested the case by filing written statement. The opposite party contended inter alia that the complaint petition is not maintainable against the opposite party in law and in facts. The opposite party denied all the averments made in the complaint petition, save and except which one specifically admitted therein. It is stated by the opposite party that on the day of booking, it was specifically informed to the complainant that the vehicle will be delivered within 15 days and if he fails to take delivery within two months, then the booking will be automatically cancelled and the booking amount will be returned. Accordingly, from 15.11.2019 to first week of March, 2020, the sales representatives of the opposite party, namely, Sri Sumanjit Bordoloi and Sri Deep Ranjan Chetia repeatedly requested the complainant to take delivery of the vehicle. So many times Sri Sumanjit Bordoloi from his mobile No.9954226060 called the complainant to take delivery of the vehicle, but in reply to the every request, the complainant always differed to take delivery of the vehicle by showing some unseen reason. From the day of booking of the vehicle to till third week of March, 2020, the complainant never visited the showroom of the opposite party. Therefore, vide email dated 17.3.2020, the complainant was specifically informed that the booking of the complainant was already passed and the opposite party is ready to provide another vehicle of BS-VI standard or otherwise to refund the booking amount. However the complainant, who failed neither to take the delivery of the vehicle nor taken the refund of the booking amount even after repeated requests of the opposite party and lingering the delivery of the vehicle unnecessarily and negligently and thereafter filed the instant case on flimsy grounds with concoction and malafide and therefore the delay in delivery of the vehicle is not caused by the opposite party and there is no deficiency in service on the part of the opposite party. Hence, the opposite party prayed to dismiss the complaint with cost.
4. The proforma opposite party i.e. United Bank of India also filed the written statement, wherein the opposite party denied all the averments contended by the complainant in her complaint petition except the sanction letter of loan issued to the petitioner. It however contended that the complainant did not visit them for the purpose of loan disbursement. Hence, the proforma opposite party prayed to dismiss the complaint with cost.
5. Thereafter, the issues in the case were farmed on the basis of hearing and considering the pleadings of the parties as follows:
I S S U E S
- Whether the complainant is a consumer as per provisions of law?
- Whether there was any deficiency in service on the part of the opposite party?
- Whether the complainant is entitled to get the relief, as prayed for?
6. In the trial, the complainants adduced the evidence of two witnesses, including herself. CW1 Sri Amit Das supported the contentions of the complainant as stated by her in her complaint petition. The complainant as CW2 reiterated the same facts, which she had narrated in the complaint petition. She has exhibited the following documents, viz, Ext.A – customer copy of quotation bearing No.BH/TSK/046 (Sl. No.3626) dated 31.10.2019; Ext.B – Customer docket containing order booking form dated 31.10.2019; Ext.C – Loan sanction letter dated 01.11.2019 of United Bank of India, Tinsukia; Ext.D – Legal notice dated 18.3.2020 sent through her lawyer Sri N.K. Das, Advocate; Ext.E – Postal registration receipt bearing No.RS526108445IN of the legal notice dated 18.3.2020 sent to Hyundai Motor India Ltd., Guwahati; Ext.F - Postal registration receipt bearing No.RS526108445IN of the legal notice dated 18.3.2020 sent to M/s. Borah Hyundai, Tinsukia and Ext.G – Delivery report of the legal notice sent to M/s Borah Hyudai Tinsukia through Postal registration receipt bearing No.RS526108445IN.
7. The opposite party in support of its case adduced evidence of three witnesses, namely; Sri Robin Dutta as DW1, Sri Sumanjit Bordoloi as DW2 and Smti Daisy Gogoi as DW3 DW1, who reiterated the same facts, that have been contended by the opposite party in its written statement. DW1 exhibited some documents, such as; Ext.1 – Authority letter and Ext.2 – Copy of email dated 17.3.2020. DW2 and DW3 also supported the contentions of the opposite party, what the opposite party stated in its written statement.
8. The Commission heard the arguments from the learned counsels for both the sides at length and scrutinized the materials available with the record.
Decision and Reasons Thereof
Issue No. 1
9. When we go through the written statement of the opposite party, we find that the opposite party has not claimed therein that that the complainant is not a consumer as defined under the Act. Further the evidence as well as the various documents exhibited by both the sides go to show that the complainant acted as a consumer while dealing with the opposite party. We do not find anything on record that suggest that the complainant cannot be termed as a consumer. As such, this point is decided in the affirmative.
Issue No. 2
10. In the written statement it has been averred by the opposite party that it was specifically informed to the complainant that the vehicle will be delivered within 15 days and if he fails to take delivery within two months, then the booking will be automatically cancelled and the booking amount will be returned. To ascertain the said claim as we turn to the evidence of DW1, we find him testifying that it was specifically informed to the complainant that the vehicle will be delivered within 15 days and if he fails to take delivery within two months, then the booking will be automatically cancelled and the booking amount will be returned but we find no documentary evidence being placed showing that the complainant was notified by the opposite party about the said condition at the time of the booking of the vehicle. The opposite party is found to have exhibited two documents in support of their case, and those are- Ext.1 – Authority letter and Ext.2 – Copy of email dated 17.3.2020. As such the claim of the opposite party that it was incumbent upon the complainant to take delivery within two months from the date of booking was not proved. Under such circumstances, it can be held that the there was deficiency in service on the part of the opposite party in denying delivery of the vehicle booked by the complainant. This point too therefore is decided in the affirmative and against the opposite party.
Issue No. 3
11. Thus from the discussion made above, it can be held that the complainant is entitled to get compensation on account of deficiency in service of the opposite party.
12. For the deficiency in service on the part of the opposite party resulting in harassment and suffering caused to the consumer for such a long period of time, the opposite party is liable to pay compensation to the complainant. The complaint petition is allowed with following reliefs to the complainant: The Opposite party shall:
i) refund the booking amount of Rs.50,000/- to the complainant along with interest @ 9% per annum from the date of payment of the booking amount till the date of refund;
ii) Rs. 20,000/- towards deficiency in service;
iii) Rs. 50,000/- as compensation on the account of monetary loss and harassment caused to the complainant within a period of two months.
13. Further, it is provided that in case the opposite party fails to make the payment within the said stipulated period, the awarded amount shall attract an interest @ 12 % per annum with cost of Rs. 5,000/-. The case is disposed of accordingly.
Given under the hand and seal of this Commission on this the 3rd day of November, 2022.
Dictated & corrected by:
(D. Bora)
President, President,
District Consumer Disputes District Consumer Disputes
Redressal Commission,Tinsukia Redressal Commission, Tinsukia
We agree:
Member, Member,
District Consumer Disputes District Consumer Disputes
Redressal Commission,Tinsukia Redressal Commission, Tinsukia
Transcribed by:
Sri M.E. Rao, Stenographer-I
