SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s. 12 of the C.P. Act, 1986.

            The case of the complainant, in brief; is that being an unemployed youth he purchased a Maruti Swift Dzire Tour Diesel Vehicle bearing No. WB 04G-5281 from OP-2 Sanei Motors Pvt. Ltd. at a price of Rs. 6,02,326/- after obtaining financial assistance from OP-3 IndusInd Bank. Before purchasing the Maruti Swift Dzire Tour Diesel vehicle the OP-1 M/s. Maruti Suzuki India Ltd. given assurance to refund of excise duty. In spite of several request the OP-1 failed and neglected to refund the excise duty to the complainant. Hence, the complainant has approached this Forum by way of consumer complaint seeking reliefs as per prayer.

            The OP-2 has contested the case by filing W.V. contending inter-alia that the complaint is not maintainable in law and bad for mis-joinder and/ or non-joinder of necessary parties. The allegation made out in the consumer complaint is frivolous and vexatious. The specific case of the answering OP is that they are not aware about any assurance to refund of excise duty to the complainant by the OP-1. The complainant has not furnished any scrap of document to show payment of Rs. 25,000/- as excise duty. Thus, the complainant is not entitled to get any relief and the complaint is liable to be dismissed with exemplary cost.

            The proforma OP-3 IndusInd Bank has also contested the case by filing W.V. challenging the maintainability of the case on the ground that under Section 5 of the Arbitration & Conciliation Act, 1996 there is a bar to institute of any suit and/ or proceeding in connection with any matter which are governed by agreement of arbitration. The complainant has no claim against the answering OP and they have no objection, if the consumer complaint is allowed. In this context, it is pertinent to mention here that after filing W.V. the OP-3 did not take part in the proceeding.

            In spite of service of notice the OP-1 Maruti Suzuki India Ltd. did not turn up to contest the case. As such, the case has proceeded ex parte against the OP-1.

            In the light of the above pleadings the following points, necessary came up for determination:-

1) Is the complainant consumer U/s 2 (1) (d) of the CP Act?

2) Are the OPs 1 & 2 deficient in rendering services to the complainant?

3) Are the OPs 1 & 2 indulged in unfair trade practice?

4) Is the complainant entitled to get any relief or reliefs as prayed for?

Decision with Reasons

Points No. 1 to 4

            All the points are taken up together for the sake of convenience and brevity in discussion.

            Complainant and OP-2 have tendered E/chief through affidavit. Complainant has also filed Brief Notes of Argument. We have examined the evidence and material on record and also given a thoughtful consideration to the argument advanced by the Ld. Advocate for the complainant.

            Fact remains that the complaint purchased a Swift Dzire Tour Diesel Vehicle bearing No. WB 04G-5281 for self employment from OP-2 Senei Motors Pvt. Ltd. an authorized dealer of OP-1 Maruti Suzuki India Ltd. at a total consideration of Rs. 6,02,326/-. It is also true that OP-3 IndusInd Bank, Chowrangee Branch, Kolkata granted loan to the complainant in respect of the vehicle bearing registration No. WB 04G-5281.

            The grievance of the complainant is that at the time of purchasing Swift Dzire Tour Diesel Vehicle the OPs assured to refund excise duty of Rs.  25,000/- which is usually given to the purchaser in general on payment of full price of the vehicle. In spite of full payment of the vehicle the OPs 1 & 2 did not refund Rs. 25,000/- though the Excise Department has already refunded the excise duty to the OP-1 Maruti Suzuki India Ltd. The OP-2 denied such grievance of the complainant and stated that they are not aware about any promise and assurance made by OP-1 regarding refund of excise duty of Rs. 25,000/-.

            We have gone through the photocopy of Tax Invoice dated 28.09.2015 carefully. This Tax invoice goes to show the total price of the Maruti Swift  Dzire Tour Diesel Vehicle. The relevant portion of the said tax invoice reads as under.

            From the Tax invoice dated 28.09.2015 it is undisputed fact that no excise duty was paid to the OP-2 in respect of the vehicle bearing No. WB 04G-5281. Complainant has failed to produce any scrap of paper to establish that he has paid Rs. 25,000/- to the OP-2 towards excise duty. Except the word of mouth there is no documentary evidence on the part of the complainant to prove his case of refund of excise duty against vehicle No. WB 04G-5281. Even the complainant has failed to prove that the Excise Department has already refunded the excise duty to the OP-1.

 For the sake of argument, if is assumed that the OP-1 assured to refund Rs. 25,000/- to the complainant as excise duty but no binding contract has come into existing between the OPs 1 & 2 and the complainant. Now, the question arises for consideration is as to whether in the absence of a binding contract between the complainant and OPs 1 and 2, the complainant can be said to be consumer of the OP 1 and 2 or any one of them? In the matter of Puda & Another vs. Krishan Pal Chander i (2010) CPJ 99 (NC), the Hon’ble National Commission also took the view that complainant in whose favour no allotment has been made, is not a consumer. Similar view was taken by the Hon’ble NCDRC in the matter of DDA vs. Sandeep Khatri, Revision petition No. 710 of 2014 decided on 25.08.2014 as also judgment of Hon’ble NCDRC in revision petition No. 3649 of 2014 decided on 29.01.2015.

 In the light of the above  noted settled position in law when we consider the facts of this case wherein the offer of the OPs 1 and 2 has not culminated into any contract, the complainant cannot be termed as consumer. As such, he has no locus standi to maintain the consumer complaint.

In the view of the discussion above, we are of the opinion that the complainant not being the consumer has no locus standi to maintain this complaint.  The complaint is found frivolous and vexatious. Therefore, the complainant is not entitled to get any relief as prayed for. All the points under determination answered in the negative.

            In the result, the case merit fails.

Hence,

ORDERED

That the complaint case be and the same is dismissed on contest against the OP-2 and also dismissed ex parte against the OPs 1 & 3.

The complainant is attempting to misuse the statutory process provided for better protection of the interest of consumers. Thus, the complainant is directed to deposit cost of Rs. 5,000/- (Rupees Five thousand) only to the State Consumer Welfare Fund, W.B. within Four weeks, failing which, interest  at the rate of 6  percent per annum has to be paid by the complainant till realization.