DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

       C.C. CASE  NO. _152 _ OF 2019

DATE OF FILING : 2.9.2019                              Date of Admission:17.9.2019

                                DATE OF JUDGEMENT:19.3.2019

Present                  :   President       :   Asish Kumar Senapati

                                 Member    :    Jagadish Chandra Barman

COMPLAINANT   :   Avik Kumar Saha, son of late Asit Kumar Saha of 19,Sambhunath Das Lane, P.O  Sinthi,P.S Barahanagar , Kolkata- 70050.

•  VERSUS  -

O.P/O.Ps                    :  Nandadebi Automobiles, Mega Two Wheeler Showroom at 345, Sonarpur Station Road, Opposite Power House WBSEDCL, Kolkata-150, P.O & P.S Sonarpur.

Lawyer for the complainant:               Sri  Pradip Kumar Palit

Lawyer for the O.P             :              Sri  Apurba Kumar Sauta

______________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Asish Kumar Sanapati , President

          This is a complaint under section 12  of the C.P Act, 1986.

                    One Avik Kumar Saha (hereinafter referred to as the complainant)  filed the instant case against Nandadebi Automobiles (hereinafter referred to as the O.P) , praying for compensation alleging deficiency in service.

          The sum and substance of the complaint is as follows:

          The complainant approached the O.P for purchase of a new motor bike of model Mahindra Centuro 01  Key no. 1647, Chasis no. MCDKGIB14EIK75644 Engine No. UPEEK061633 at a consideration price of Rs.56,500/- and the complainant paid a sum of Rs.50,000/- for purchase of the same against proper receipt. As the complainant had no driving  licence ,the vehicle was delivered to the residence of the complainant on 24.6.2017 with the help of a driver and the complainant took custody of the bike without Standard Tool Kit, Owners Hand Book, Free Service Coupon Book . The O.P.  assured the complainant to deliver the said items very soon. On 19.7.2019 the complainant paid the rest consideration amount , but the O.P did not deliver the Standard Tool Kit, Owners Hand Book, Free Service Coupon Book  to the complainant. Thereafter, the complainant went to the office of the R.T.O at Baruipur for registration of his bike and came to know that the same had been registered in the name of one Sambhu Kanu. Then, the complainant approached the O.P for removal of his doubt , but the O.P did not pay any heed to it. Ultimately, the complainant applied to the Assistant Director, Consumer Affairs and Fair Business Practice, South 24-Parganas Regional Office for resolving the dispute, when the representative of the O.P admitted the fault on their part but did not resolve the issue. The cause of action of this case arose on 22.6.2017. Hence, the complainant prayed for a direction upon the O.P for refund of the amount of Rs.56,500/- paid by the complainant for purchase of the bike and compensation of Rs. 1 lac.

          The O.P contested the case by filing written version on 27.11.2019 inter alia denying the materials allegations made out in the complaint, contending that the complaint is not maintainable as it is misconceived , malafide and fraudulent. It is the specific case of the O.P that the O.P has a 2 wheeler showroom and he is dealer of Mahindra & Mahindra. It is  further case of the O.P that the complainant requested the O.P for sale of a bike at lower price and requested the O.P to sell BS-3 bike with discount knowing that it is registered in dealer’s name with number plate as BS-3 bike registration could not be allowed after 31.3.2016. After delivery of the said bike the O.P requested the complainant several times for transfer of ownership and the complainant visited the showroom once and filled up the concerned form and promised to be present before the Motor Vehicle Authority for transfer of ownership but subsequently, the complainant did not keep his promise. There is no deficiency in service ,as the bike has been purchased by the complainant out of his free will and choice. The O.P has prayed for dismissal of the complaint with  cost.

          On the basis of the written complaint and written version following points are framed for proper adjudication of the case:-

1. Is the complainant a consumer under the C.P Act, 1986?
2. Has this Forum jurisdiction to entertain the complaint?
3. Has the  O.P.  any deficiency in service?
4. Is the complainant entitled to get any relief against the O.P?

DECISION WITH REASONS

Point no.1 :   

The Ld. Advocate for the complainant submits that the complainant purchased a bike on payment of consideration from the O.P and so the complainant is a consumer.

          In reply the Ld. Advocate for the O.P has not argued on this point.

                            We have gone through the written complaint, written version ,evidence on affidavit and documents filed by both sides. Admittedly the complainant purchased a motor bike from the O.P on payment of Rs.56,500/- . The complainant has alleged that there is deficiency in service.

          On a careful consideration we find that the complainant is a consumer in terms of Provision under C.P Act, 1986.

Point no.2 :   

          The ld. Advocate for the complainant contends that this Forum has both pecuniary and territorial jurisdiction to entertain the case. It is argued that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of the District Forum.

        The ld. Advocate for the O.P submits that the case is not maintainable.

         On perusal of the materials on record and on a careful consideration of submission of both sides, we hold that this Forum has both pecuniary and territorial jurisdiction to entertain the case.

Point no.3 & 4 :           

          Both the points are taken up together for the sake of brevity and convenience.

         The ld. Advocate for the complainant submits that the O.P sold out a second hand motor bike to the complainant which tantamounts to deficiency in service. It is further argued that the complainant is entitled to get refund of the entire paid amount of Rs.56,500/- and adequate compensation against the O.P.

        The ld. Advocate for the O.P submits that the complainant was aware of the fact that the vehicle was registered in the name of the proprietor of O.P and he purchased the vehicle knowing the fact that the vehicle is required to be transferred in the name of the complainant after observing necessary formalities. It is argued that the proprietor of the O.P issued letters dated 3.12.2019 and 24.12.2019 to the complainant by speed post and it was duly delivered but the complainant did not pay any heed to the request contained in the letters. It is urged that the O.P requested the complainant to appear before the Motor Vehicle Office for transfer of ownership of the vehicle but the complainant did not turn up in spite of receiving the letters. It is further argued that the Government has banned registration of BS-3 vehicle after 31.3.2017. it is contended that the proprietor of the O.P has filed an application today stating that he is ready and willing to take back his bike on payment of Rs.50,000/- to the complainant on condition that the complainant will return the vehicle on good condition with Standard Tool Kit, Owners Hand Book, Free Service Coupon Book , two sets of keys and accessories. It is contended that the O.P has no deficiency in service.

          The ld. Advocate for the complainant submits that the O.P sold out old model bike to the complainant when it was banned ,which tantamounts to unfair trade practice. He contends that the complainant has not been able to use the purchased vehicle due to latches on the part of the O.P. He has prayed for adequate compensation along with refund of price of the bike paid to the O.P.

          We have gone through the written complaint, written version , evidence and documents filed by both sides. The complainant alleged in his written complaint that the O.P did not deliver him Standard Tool Kit, Owners Hand Book, Free Service Coupon Book but it appears from the Xerox copy of delivery receipt dated 24.6.2017 filed by the complainant that the complainant  received Standard Tool Kit, Owners Hand Book, Free Service Coupon Book, two sets of keys, accessories , batteries and Barger  and it was duly signed by the complainant. The complainant also filed Xerox copy of a receipt dated 6.4.2017 from which it appears that the vehicle was registered in the name of Sambhu Kanu . Therefore, we find that the complainant was aware of the fact that he purchased the vehicle which was registered in the name of Sambhu Kanu ,the proprietor of O.P. The O.P has filed an application with an offer to pay Rs.50,000/- to the complainant for getting back the sold out motor bike along with Standard Tool Kit, Owners Hand Book, Free Service Coupon Book, two sets of keys, accessories , batteries and Barger. It also appears from the copy of  letters dated 3.12.2019 and 24.12.2019 written by the proprietor of the O.P to the complainant that the O.P requested the complainant to be present in the motor vehicle office for transfer of ownership of the vehicle, but the complainant did not turn up in spite of receipt of the letter.

          On a careful consideration ,we have no hesitation to say that the complainant has not come up before this Forum with clean hands. The complainant was aware of the fact that he purchased a vehicle which was registered in the name of Sambhu Kanu and he did not pay any heed to the request of the O.P for transfer of ownership in his name. At the same time we find that the O.P sold out a motor bike to the complainant when the vehicle could not be sold in view of order passed by the Hon’ble Supreme Court in Writ Petition (Civil) no. 13029 of 1985 dated 29.3.2017. Therefore, we find that the O.P has made unfair trade practice by selling the byke from its show room.

          In our considered view the O.P may be directed to refund the amount of Rs.56,500/- less 10% depreciation cost (Rs. 56,500/- - Rs. 5,600/-) amounting to Rs.50,900/-  on receiving Standard Tool Kit, Owners Hand Book, Free Service Coupon Book, two sets of keys, accessories , batteries and Barger and the sold out motor bike in good condition from the complainant. We also think that the  O.P may be directed to deposit Rs.5000/- in the Consumer Legal Aid Account of this Forum for unfair trade practice. We think that the Complainant is not entitled to get any compensation or litigation cost against the O.P , as he  has not come with clean hands,.

          Reasons for delay:  The case was filed on 2.9.2019 and admitted on 17.9.2019. This Forum tried its best to dispose of the case as expeditiously as possible in terms of Section 13(3A) of the C.P Act, 1986 and the delay has been explained in day to day orders.

          In the result, the case succeeds in part.

                     Hence,

ORDERED

             That the complaint case no. CC 152 of 2019  be and the same is hereby allowed in part on contest against the O.P without any cost.

The O.P is directed to pay  Rs.50,900/-  to the Complainant on receiving Standard Tool Kit, Owners Hand Book, Free Service Coupon Book, two sets of keys, accessories , batteries and Barger and the sold out motor bike in good condition from the complainant within 30 days from the date of this order.  The Complainant is directed to hand over Standard Tool Kit, Owner’s Hand Book, Free Service Coupon Book, two sets of keys, accessories , batteries and Barger and the sold out motor bike in good condition to the O.P. by 30 days from the date of this order.

The O.P is also directed to pay Rs.5000/- for unfair trade practice ,which shall be deposited  in the State Consumer welfare Fund  within 60 days from the date of this order. 

             Let Copy of Final order be supplied to both parties/ their Agents/ Ld. Advocates free of cost as per rules.

The Final  order also be made available in:  www.confonet.nic.in.