FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

            The petition of complaint is filed by the complainant U/s 35 of CP Act, 2019.

            It is stated by the complainant that she made contact with the OP i.e. M/s Eastern Honda, BD Auto Mobile Pvt. Ltd. he is dealer of the Honda company at their office/showroom at Trinity Towers, 226/1, Acharya Jagadish Chandra Bose, Kolkata-700020  for purchasing  a new Honda Amaze (VMT) diesel motor car. The OP offered the final price of the new Honda amaze (VMT) diesel motor car of Rs. 8,28,000/- on road excluding insurance by the OPs. The OP was agreed to take the old Honda Amaze vehicle of the complainant vide registration No. WB 02AF7066 under exchange scheme for which the OP was agreed to pay and adjust Rs. 2,50,000/- only. It was decided and finalised that the insurance coverage for a new vehicle was arranged by the complainant and informed the same to the OP immediately so that there will be no problem for delivery the vehicle. Accordingly, the complainant paid Rs. 50,000/- as advance to the OP against receipt No. 13844 dated 25.06.2019 for the new vehicle which is annexed herewith as annexure “1” along with the petition of complaint. It is further stated by the complainant that she handover the old vehicle bearing registration No. WB 02AF7066 along with all original papers i.e. Smart Card (RC) Tax Token, Valid Insurance, Valid Pollution Paper i.e. 24.06.2019 to the OPs as agreed by the parties under exchange scheme at a final value  Rs. 2,50,000/-  which was adjusted with the price of new vehicle i.e. 8,28,000/- which has been annexed hereto as annexure “2”.  The complainant arranged for taking loan from bank of her own as advance of the OPs to pay the loan amount i.e.  5,28,000/- to the OP on 30.07.2019  for full and final payment of new vehicle i.e. Honda Amaze Diesel (VMT) through RTGS vide UTR No. CBIN52019073010010496 has annexed herewith as annexure “3”. It was assured by the OP that he will deliver the new vehicle to the complainant within 07 days from the date of  final payment. 

It is further stated by the complainant that she had handover all the required documents to the OPs on 30.07.2019 which have been annexed hereto as annexure “4”.  She also arranged insurance for the new vehicle and the same was forwarded to the OP vide mail dated 02.08.2019 which has been annexed as annexure “5”. 

It is alleged by the complainant that in spite of payment of full and final amount along with all sorts of required documents to the OP. The OP did not deliver the new vehicle Honda Amaze (VMT) diesel car to the complainant. Thereafter, the complainant then sent an email dated 09.08.2019 to the OP giving ultimatum either to deliver the vehicle immediately or refund the entire amount which has annexed hereto with annexure “6”. She also provided the copy of the passport as an additional valid POI/POA which is annexed here to as annexure “7”. Thereafter, on several occasion,  the complainant requested the OP to deliver the vehicle or to refund the amount paid by her but surprisingly, she received a mail dated  19.07.2019 which is annexure “9” from the OP wherein the OP intimating her due to spelling error Pan/Voter Id.  The OP was unable to get the vehicle registration from MVI.  It was also informed by the OP as per MVI should not be beyond 07 days as such the complainant do get the advice and the complainant advised by the OPs to get the insurance done again and to submit the same to MVI officials.

            It is stated by the complainant that the same was next to impossible to the complainant because she paid the entire amount on road value of new vehicle including MVI registration. MVI was the responsibility of the OP and lapse of stipulated time it was intimated to the complainant which is annexure “10” that there was no error in  PAN as  the complainant submitting her IT Return with this PAN.  Hence, she requested is no requested the OP to refund the amount immediately as failed the registration of vehicle but the OP did not take action to that effect. Hence, the instant case is filed by the complainant with a prayer to give direction the OPs for refund the entire amount of Rs. 8,25,000/- and accrued interest thereon and also direct the OP to pay Rs. 50,000/-  as compensation and as litigation  cost of Rs.  25,000/-.

The OP M/s Eastern Honda BD Automobiles Pvt. Ltd.  has contested the petition of complaint by  filing a WV denying all the material allegations levelled against him. It is the OPs case that the petition of complaint is motivated and fabricated one. It is bad for non-joinder for necessary parties. It is further stated by the OP that the complainant is not a consumer within the ambit of CP Act 2019.

It is the OPs case that the final price of new Honda Amaze (VMT) diesel motor car was at Rs. 8,95,776/- on road excluding insurance. Upon negotiation of dividing discount and exchange bonus, the on road price of the new vehicle was fixed at Rs. 7,93,000/-.

It is further case of the OP that the insurance coverage for the new vehicle at her own cost and it will be informed to the OPs immediately so that there will be no problem to deliver the vehicle. The OP further admitted that he agreed to take the old Honda Amaze bearing registration No. WB 02 AF7066 of the complainant under exchange scheme for which the OP agreed to pay the adjusted amount of Rs. 2,15,000/- with the final price of the new vehicle. It is also admitted fact that the complainant paid Rs. 50,000/- to the OPs as advance by a post dated cheque for new vehicle. The OP further stated that after adjustment the amount payable by the complainant against the new vehicle to the OPs is Rs. 5,78,000/- only.

It is denied by the OP that he agreed to take the old Honda Amaze of the complainant bearing No. WB02AF066 under Honda exchange scheme against payment of Rs. 2,50,000/- and it is also denied  that the final agreed price of new vehicle of Rs. 8,28,000/-.  It is also denied that after adumnet in exchange scheme of old vehicle the balance amount of Rs.  5,28,000/- is payable by the complainant  to the OP. Admittedly, the complainant handover all required documents and insurance paper of new vehicle to the OP and aforesaid papers were submitted by the OP to the RTO on 05.09.2019 for registration the vehicle in the name of the complainant. But On scrutiny of the paper, it was rejected by the RTO authority due to spelling mis-match between both the documents which resulted to return the application for registration. The OP informed the complainant.

It is further stated by the complainant that in spite of having fault on her part, the complainant sent a mail dated 09.08.2019 with ultimatum either to deliver the vehicle or refund the entire amount.  Thereafter on  13.08.2019, after receiving the passport of the complainant, it was submitted to RTO on  14.08.32019 and in the meantime more than  07 days elapsed of the insurance done by the complainant then RTO authority refused to receive the document of the new vehicle because i.e. beyond the statutory period.  The OP vide email dated 20.08.2019 requested the complainant to handover the insurance paper and also requested to accompany the representative of the OP at RTO office but the complainant did not co-operate.

            It is stated by the complainant that there was no delay on the part of the OP to take steps in registration of new vehicle of the complainant. So, question of refunding money or giving compensation does not arise at all. Rather, the petition of complaint is baseless and concocted and without any cause of action.  So, the case is liable to be dismissed.

In view of the above stated pleadings the points of consideration are as follows.

1. Whether the case is maintainable in its present form and law?

2. Has the complaint any cause of action to file the case?

3. Is the complainant a consumer as per CP Act, 2019?

4. Is there any deficiency in service on the part of the OPs?

5. Is the complaint entitled to get relief as prayed for?

6. To what other relief or reliefs is the complainant entitled to get?

Decision with Reasons.

All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.

After careful consideration of the facts and circumstances of the case and also considering the position of law. It is found that this commission has ample jurisdiction to try this case both on the point of pecuniary and territorial jurisdiction.

The case has been filed within the ambit of law and limitation.

It is the case of the complainant that she along with her husband made contact with the OP M/s Eastern Honda BD Auto Mobiles Pvt. Ltd. dealer of Honda Motor company at their show room at

Trinity Towers, 226/1, Acharya Jagadish Chandra Bose, Kolkata-700020 for purchasing  a new Honda Amaze (VMT) diesel Motor car at a price of Rs.  8,28,285/- rounded of Rs. 8,28,000/- on road price excluding insurance. The complainant further stated that the OPs also agreed to pay her old Honda Amaze vehicle bearing registration No. WB 02AF7066  under exchange scheme for which the OPs was agreed to pay and adjust Rs.  2,50,000/- with the price of new Honda Amaze car i.e. the price of the new Honda car would be Rs. 5,78,000/- after deducting the adjusted value of the old vehicle of Rs. 2,50,000/-.

Admittedly,  the complainant booked the Honda Amaze (VMT) diesel motor car making advance to the OPs of Rs. 50,000/- only vide receipt No. 13844 dated  25.06.2019.

It is alleged by the complainant that she handed over the old vehicle bearing registration No.  WB02AF 7066 along with all original papers i.e.  Smart card (RC), tax Token, Valid Insurance , Valid Pollution Paper dated  24.06.2019 to the OP at a final value of Rs. 2,50,000/- to be adjusted against the new vehicle.  Thereafter, the complainant have organised and arranged the fund of her own and paid the balance amount of valuation of new car to the tune of Rs.  5,28,000/- to the OP on  30.07.2019 and the OP assured her that the new vehicle Honda Amaze (VMT)  will be delivered to her within 07 days from the date of full and final payment.

 It is also admitted fact that the complainant will also handover all required document i.e. Id proof of address like Pan Card, Voter Card to the OP and in the mean time the complainant arranged the insurance for the new vehicle and the same is forwarded to the OP vide email dated 02.08.2019 but from the materials on record and also from the argument of the Ld. Advocate for both sides. It appears that the OP failed to handover the new Honda Amaze Vehicle to the complainant. As a result, vide email dated 09.08.2019 the complainant demanded the refund of money paid by her to the OP or to deliver the vehicle immediately.  Finally on 16.09.2019 the complainant requested the OP to refund the entire amount of advance payment with interest and other incidental cost.

Ld. Advocate for the OP submitted during the course of hearing argument and also submitted their Written Argument due to mis-match of spelling of the name of complainant in her documents the RTO Authority refused to accept the insurance document of new vehicle since more than 07 days passed when the document were registration of the new vehicle to  the RTO and the OP informed the matter to the complainant vide email dated 19.08.2019 but from which it is found that the OP agreed to the complainant to handover the new vehicle to her within  07 days from the date of full and final payment  of Rs. 8,28,285/-  and the OP issued the proforma invoice  wherefrom it appears that the OP has also agreed to take the old Honda Amaze vehicle of the complainant bearing registration No. WB 02AF7066 under exchange scheme at a price of Rs. 2,50,000/- which would be adjusted from the price money of Rs.  8,28,000/- of the new vehicle from receipt No. 1384 dated 25.06.2019. It appears that the complainant paid the booking advance of Rs. 50,000/- out of Rs 5,75,285/- as shown from the proforma invoice dated  24.06.2019 issued by the OP.  It is also admitted that the position that the complainant paid the full and final balance amount of Rs. 5,28,000/-  to the OP on  30.07.2019 through RTGS vide UTR No. CBIN520 190 730 10010496 and sales contract was also signed by the parties of the case. However, from the fact and circumstances as well as the submission of both the sides, it is crystal clear that the OP failed to register the vehicle in question in time and also failed to handover the vehicle to the complainant within stipulated period which compelled to the complainant to file the case before the commission for getting relief. Hence, the complainant has good cause of action to file the case and even on repeated request of the complainant as we got it from the materials on record. The OP neither could be able to deliver the vehicle in question to the complainant within the stipulated period nor refund the amount paid by the complainant towards the valuation of new Honda Amaze (VMT). Such conduct of the OP should be termed as deficiency in service and the OP for his mis-conduct is liable to give compensation to the complainant.

The OP is liable to be compensated to the consumer/complainant as and when they entered into the agreement for sale and the OP received the entire price money of Rs. 8,28,000/- from the complainant to give delivery of a  new Honda Amaze (VMT) diesel car.

Hence, in view of discussion made above, it is held by this commission that the complainant being a consumer could be able to prove the case against the service provider beyond all reasonable doubt and is entitled to get the relief as prayed for.

All the points are thus, decided favourably to the complainant.

The case is properly stamped.

Hence,

Ordered

That case be and the same is decreed on contest against the OP namely M/s Eastern Honda, BD Automobiles Pvt. Ltd.  

The complainant being a consumer has got the decree prayed for.

The OP M/s Eastern Honda, BD Automobiles Pvt. Ltd.   is directed to pay the entire amount of Rs.  8,28,000/- to the complainant with interest @ 9 % p.a. from the date of filing of the case till realisation.

The OP is also directed to pay compensation of Rs. 30,000/- to the complainant along with litigation cost of Rs. 5,000/-.

The OP is directed to comply the above mentioned direction within 45 days from the date of this order I.d. The complainant will be entitled to further interest @ 6 % p.a. from the date of default till realisation of entire amount.

If the OP failed to comply the decree within the stipulated period as mentioned above the complainant will be at liberty to comply 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.