ORDER

Date of order:    18-05-2017

Upendra Jha, Member       

1.                       This appeal is preferred against the order dated 05-11-2015 passed by District Consumer Forum, Sitamarhi in Complaint Case No.26 of 2015 by which the complaint has been dismissed.

2.                    Brief facts of this case is that the complainant purchased a vehicle Ertiga ZDI model from the respondent on payment of  Rs. 8,90,000/- (Rupees eight lacs and ninety thousand only) after taking loan from HDFC Bank on 21-05-2015 on getting registration paper, he found that the vehicle was registered on 31-01-2013 in the name of  Prabhu Prasad Gupta. He requested the O.P.-respondent to replace with a new vehicle instead of this 2^nd hand vehicle or to return the cost of vehicle Rs. 8, 90,000/- pleader’s notice was also sent but no action was taken by the O.P.-respondent. Then, he filed a complaint before the District Forum, Sitamarhi. The District Forum without hearing the complainant without adducing any evidence dismissed the complaint stating that this complaint is not maintainable against which this appeal is preferred.

3.                          Respective written notes of arguments have been filed by the parties. Heard and perused the District Forum order.

4.                          The counsel for the appellant submits that he has been cheated by the respondent and unfair trade practice has been conducted against him. He paid the price of a new vehicle ERTIGA ZDI but the O.ps.-respondents have delivered him a 2^nd hand vehicle. Annexing receipt of Rs. 2271 as annexure-1 Gate pass as annexure-2,the counsel submits that there is no mentioning in the receipt or in the gat pass that a 2^nd hand vehicle has been sold to the appellant and delivered to him. The Screen Report annexed with Memo of Appeal clearly shows that this vehicle BROIPB-2049 was firstly registered by D.T.O. Patna on 30-01-2013 in the name of Prabhu Prasad Gupta and it was sold to the appellant on 30-05-2015.  It was insured from 30-01-2013 to 30-05-2015 in the name of Prabhu Prasad Gupta this vehicle was insured from 21-05-2015 to 20-05-2016 name of  Prabhu Prasad Gupta again which is on the record. So, the appellant-complainant had prayed before the District Forum to direct the O.ps. to deliver him a new Car or to refund the entire amount. But the District Forum has not considered these points and has dismissed the complaint at admission stage itself, which is not sustainable and fit to be set aside. The appeal be admitted and be remanded to the District Forum to harass the matter on merit and to pas order.

5.                          The counsel for the respondent No.- 1,2 and 3 in separate written arguments have submitted that the appellant has purchased a 2^nd hand  Ertiga ZDI vehicle from the respondent No.-1 after verification of all documents and full satisfaction. The value of this second hand Car was mutually finalized for Rs. 8,90,000/-. So, there is no cheating or mischief. The complaint is false. The HDFC Bank has sanctioned a loan to the complainant for a 2^nd hand car for Rs.4,92,129/-.The car was delivered on 21-05-2015 from true value section. The District Forum has rightly dismissed the complaint at the point of admission as the complaint is not maintainable in District Forum. It needs no interference by the Appellate Authority.

6.                                  We have considered the submissions of parties and perused the order passed by the District Forum. As the appellant has purchased a car on consideration of Rs. 8,90,000/- from the O.P.- respondent No.-1 on 21-05-2005,hence, the complainant- appellant is a ‘ Consumer’ under section 2 (1) (d) (i) of the Consumer Protection Act,1986 and it is ‘ Consumer dispute’ under section 2 (1) (a) (e) of this act. The car was purchased after taking loan from the HDFC Bank but the Bank has not been made a necessary party, whether the loan was sanctioned for a second hand car or for a new car. It has to be ascertained. The money receipt for Rs. 2,271/- dated 21-05-2015 does not indicate that a second hand car is sold to the complainant. Similarly, gat pass dated 21-05-2015 there is no indication, whether a new car or a second hand car has been delivered to the appellant’ Sale Certificate’ has not been produced by either of the parties. It needs a fresh hearing on merit to sustainable the allegation. The complaint is maintainable. It is admitted setting aside and District Forum order and reasoned to the  District Forum, Sitamarhi for fresh hearing, for taking evidence if any and for passing a reasoned order within three months from the receipt of this order.

7.                          The appeal is allowed.

S.K.Sinha                                                                        Upendra Jha

President                                                                           Member

Anita