For the Complainant                       -  Sk. Ata Huzur, Advocate

For the OP-1                                     - Mr. Varun Prasad, Advocate

For the OP-2                                     -Miss. Punam Choudhury, Advocate

For the OP-3                                     -  Mr. Avik Nandi, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

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

The case of the complainant is that the booked a two wheeler against booking No. H/07384 dated 07.02.2017 with the OP-1 and the said two wheeler was delivered to the complainant against road challan date 09.02.2017 on payment of Rs 41,632/- the OP-1 issued retail invoice dated 10.02.2017. The subject two wheeler was insured with OP-3. Complainant has been paying EMI of Rs. 2,876/- to the financer/ OP-2.  The OP-1 did not supply registration No. of the subject two wheeler of which the complainant is unable to ply the two wheeler on road. Despite several request, the OP-1 failed to register the two wheeler in the M.V. Department, Govt. of West Bengal. Finding no other alternative, the complainant issued legal noticed dated 30.05.2018 to the OPs 1 and 2  requesting to provide registration No. of the two wheeler within 15 days from the date of receipt thereof. Such legal notice was unattended. Thus, the OP-1 has adopted unfair trade practice. Hence, the instant consumer complaint.  

The OP-1 has contested the case by filing WV denying the material allegations of the complainant. According to him, the complaint is bad for non- joinder and mis-joinder of necessary parties. The complainant is not a consumer within the purview of CP Act, 1986. The specific case of the OP-1 is that complainant purchased one CB Hornet 160 STD (CBF 160 MHH), Engine No. KC 23 E80129501, Chassis No. ME4KC 237AH8015189, Colour Mat Axis Gray Metal Motor Cycle after payment Rs. 82,278/- and the said motor cycle was delivered to the complainant with good condition. The OP-1 arranged registration of the said motor cycle from Alipore Motor Vehicle but unfortunately, RTO Alipore did not issue registration certificate of the said motor cycle in spite of several reminder. Thus, there is no negligence act on the part of the OP-1. The RTO, Alipore with hold the registration No. of the motor cycle.  The RTO, Alipore MV Department is a necessary party to the instant consumer case but the complainant did not implicate the RTO Alipore. Thus, the complainant is not entitled to get any relief against the OP-1 and the complaint is liable to be dismissed.

The OP-2 HDFC Bank Ltd. has also contested the case by filing WV contending inter alia the consumer case is not maintainable either in law or in fact and the complainant is not a consumer within the purview the CP Act, 1986. The specific case of the OP-2 is that the complainant approached the bank for financial assistance to purchase a two wheeler (Honda Hornet 160 R) and the OP-2 bank sanctioned Rs. 56,486/- against the execution of loan agreement with a condition to liquidate the loan amount in 24 equal monthly installments of Rs. 2,876/-. The subject motor cycle is hypothecated to the OP Bank. The complainant selected the dealer and the OP Bank had no role in this regard. Complainant has already paid 21 EMIs and is still liable to pay 03 EMIs. There is no deficiency in service on the part of the OP-2. As such, the complainant is liable to be dismissed.

The OP-3 has also contested the case by filing Written Version wherein they have challenged the maintainability of the case. The positive case of the OP-3 is that complainant had purchased one two wheeler (Honda CB Hornet 160R) having chassis No.ME4KC237AH8015189, Engine No.KC23E80129510 from OP-1 and the said motor cycle was insured with them. The OP-3 issued policy certificate for the period from 11.02.2017 to 10.02.2018 against the said two wheeler. The complainant failed to renew the said policy after its expiry. There is no further contract with the insurer and the complainant. There is no allegation against the insurer in the consumer complaint and there is also no deficiency in service on the part of the OP-3. Thus, the complaint is liable to be dismissed.

In this context, it is pertinent to mention here that the name of OP-3 has been expunged vide order dated 07.02.2019.

Points for Determination

In the light of the above pleadings, the following points necessarily came up for determination.

1) Whether the complainant is a consumer under section 2 (1) (d) of the Consumer Protection Act, 1986.

2) Whether the OP-1 is deficient in rendering proper service to the complainant?
            3)  Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Parties led their evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries.  Besides the same, the parties have relied upon several documents in support of their respective cases. In course of hearing of argument, both parties have filed their brief notes of arguments.

Fact remains that the complainant purchased a two wheeler being No. CB Hornet 160 STD (CBF 160 MHH), Engine No. KC 23 E80129501, Chassis No. ME4KC 237AH8015189, Colour Mat Axis Gray Metal Motor Cycle from OP-1 after obtaining loan of Rs.56,486/- from OP-2 Bank. It also true that complainant paid Rs.82,278/- to the OP-1 against Retail Invoice dated 10.02.2017 to the OP-1. Out of Rs.82,278/-, complainant paid Rs.41,632/- to the OP-1 on 09.02.2017 including Registration Charges, Insurance Premium and Hypothecation fees. The two wheeler was delivered to the complainant on 09.02.2017. The specific plea of the OP-1 is that they arranged registration of the two wheeler from RTO, Alipore MV Department but the MV Department kept the matter pending  and the OP-1 has no fault or negligence in this regard. We do not accept  such plea of  OP-1 on the ground that the OP-1 received the registration fees and road tax from the complainant and it is the liability of the OP-1 to register the two wheeler in the MV Department. There is no contract between the complainant and the RTO, Alipore MV Department regarding registration of the two wheeler. It is the sole responsibility of the OP-1 to register the two wheeler in the name of the complainant. The OP-1 shifted their liabilities on the shoulder of RTO, Alipore MV Department. In our opinion, the OP-1 is solely responsible for registration of the two wheeler in the name of the complainant when they accepted registration fees and road tax from the complainant. The RTO, Alipore MV Department is not a necessary party to the instant consumer case. On account of non registration of said two wheeler, the complainant is unable to ply the said two wheeler on road. Complainant purchased said two wheeler from the OP-1 against payment of consideration.  Thus, the complainant is a consumer and the OP-1 is the service provider. Therefore, we hold that complainant is a consumer U/s 2 (1) (d) of the CP Act, 1986. In our considered view, there is deficiency in service on the part of the OP-1 regarding non-registration of the two wheeler. Thus, the complainant is entitled to get relief against the OP-1.

The OP-2 cannot be held responsible for non-registration of the two wheeler in the name of the complainant as they are only financer of the two wheeler. Thus, the consumer case is liable to be dismissed against the OP-2.

Accordingly, all the points under determination are answered in the affirmative.

In result, the case merit succeeds.

Hence,

Ordered

That the consumer case be and the same is allowed on contest against the OP-1 with litigation cost of Rs. 5,000/- (Rupees five thousand) only and also dismissed on contest against the OP-2 but without any cost.

OP-1 is directed to complete the registration of CB Hornet 160 STD (CBF 160 MHH), Engine No. KC 23 E80129501, Chassis No. ME4KC 237AH8015189, Colour Mat Axis Gray Metal motor cycle from the RTO, Alipore MV Department of Govt. of West Bengal within 60 days from today.

OP-1 is further directed to pay Rs. 5,000/- (Rupees five thousand) only as compensation for mental agony, pain and harassment within the stipulated period.

Complainant may put the order in execution if the OP-1 transgresses to comply the order by filing application U/ss. 25/27 of CP Act, 1986.