Kundan Kumar Kumai
This is an Appeal preferred against the order and judgement dated 11/05/2022, passed by the Ld. DCDRC, Dakshin Dinajpur, in CC no. 44/2020.
Brief facts of the Appellant’s case are that, the Respondent/Complainant had visited the Appellant’s store on 12/05/2020 and had paid Rs.5,000/- (Rupees five thousand) only for a new scooter of Activa 5G STD (BS VI Standard), against proper money receipt. It was verbally agreed that the new scooter would be delivered on 16/5/2020.
On 16/5/2020 the Respondent/Complainant had gone to the Appellant’s store and had received a new scooter against Ex-Showroom price Rs.58,143/- (Rupees fifty-eight thousand one hundred forty-three) only, insurance Rs.7794/- (Rupees seven thousand seven hundred ninety-four) only and registration amount of Rs.8859/-(Rupees eight thousand eight hundred fifty-nine) only and other amounts of Rs.1635/- (Rupees one thousand six hundred thirty-five) only. But the Appellant had charged Rs.6610.02 (Rupees six thousand six hundred ten and paise two) only as insurance fees whereas they had collected Rs.7794/- (Rupees seven thousand seven hundred ninety-four) only and the registration amount was also higher than the standard rate of Rs.5623/- (Rupees five thousand six hundred twenty-three) only.
That apart the Appellant had handed over an old model scooter being Honda Activa 5G STD (BS IV standard) with manufacturing date of 11/2019 and registration no. being WB 62M 2952. But the registration certificate of the new scooter, revealed that the scooter was registered in the name of the Appellant/store, being Geeta Motors, issued by the Registering Authority of Dakshin Dinajpur, RTO, Government of West Bengal. The Insurance Certificate also did not bear the registration no. of the vehicle. The manufacturing company Honda Motor Cycle and Scooter India Pvt. Ltd., had already stopped the sale of motor cycle and scooter of BS IV standard prior to 12/05/2020. But the Appellant/Store had deceived the Respondent/Complainant by selling out the Honda Activa 5G STD (BS IV standard) instead of a new scooter Honda Activa 5G STD (BS VI Standard). The Appellant/Store, also did not hand over the proper document to the Respondent/Complainant and furnished only one trade certificate (Form 17 under rule 35) which was not proper and valid. The Appellant/Store had knowingly sold the old model vehicle, for which the Respondent/Complainant faced many problems, to ply the vehicle and the battery of the vehicle had also been changed within three months, from the time of handing over the vehicle to the Respondent/Complainant and to suppress the matter had not handed over the documents, like purchase slip and warranty certificate of the replaced battery.The above acts of the Appellant/Store caused irreparable loss and injury both mental and physical frustrating the Respondent/Complainant.
In this regard, the Respondent/Complainant, requested the Appellant/Store verbally and by e-mail but the Appellant/Store did not respond, failing which the Respondent/Complainant lodged complaint in the customer care on several occasions and the same was registered on 29/06/2020, 09/07/2020, vide docket no.1-88114472013 and docket no.1-88114472085 respectively. The Respondent/Compliant even lodged a complaint, to the manufacturer on 01/08/2020 and 30/09/2020, through e-mail, but there was no response. The Respondent/Complainant even requested the Appellant to settle the dispute but on failure to do so, preferred an Application before the Authority of the District Consumer Affairs on 16/09/2020, but the same could not be solved as the Appellant/Store, failed to appear. Finding no alternative and because of the unfair trade practices committed by the Appellant/Store, the Respondent/Complainant filed the instant complaint before the Ld. Commission below with necessary prayers. Hence this case.
The Appellant/Store in order to contest the claim filed the written version wherein they had denied the Respondent/Complainant’s case. In fact, they had stated that the Respondent/Complainant had with full knowledge purchased the BS IV vehicle.
It is stated that she had intended to purchase Activa 6G, but considering the expense and high maintenance, she had opted for the vehicle which she had ultimately purchased. That apart, she had been intimated that the vehicle was in the name of the Appellant/Store and the Form 17 under rule 35, validity of the same was valid till 8th of October, 2020. Moreover, the difference amount of Rs.1190/- (Rupees one thousand one hundred ninety) only of the excess insurance amount charged had been refunded to her on 20/09/2020. It was therefore prayed for dismissal of the case.
After hearing and ongoing through the evidence on record the Ld. DCDRC, Dakshin Dinajpur passed the impugned order directing the Appellant/Store to replace the existing Honda Activa 5G STD (BS IV standard) with a new scooter of Honda Activa 5G STD (BS VI Standard) within 30 days, subject to payment of excess amount of the scooter of Honda Activa 5G STD (BS VI Standard) after deducting the price already paid for Honda Activa 5G STD (BS IV Standard), along with cheque of Rs.10,000/- (Rupees ten thousand) only towards compensation and Rs.10,000/- (Rupees ten thousand) only towards litigation cost to the Respondent/Complainant.
Decisions with reasons
Ld. Advocate for the Appellant at the time of final hearing had submitted that the BS VI variant of the Activa was available as Activa 6G and the Appellant had accepted the advance amount against the booking of an Activa 5G STD. Hence the Appellant had committed no wrong while supplying the Activa 5G STD and assailed the impugned judgement on the ground, that the Ld. Commission below had erred in law and facts, while passing the impugned judgement. He therefore prayed for allowing the Appeal and setting aside the impugned order.
The Ld. Advocate for the Respondent/Complainant on the other hand had submitted that the Appellant since the very beginning was very keen to dispose of the Honda Activa 5G STD (BS IV Standard), as the manufacturer Honda Motor Cycle and Scooter India Pvt. Ltd., had stopped the sale of the said BS IV variant. He then submitted that inspite of having full knowledge, the Appellant by selling the Honda Activa 5G STD (BS IV Standard) committed unfair trade practice and therefore the impugned order be upheld.
As the sale of the Honda Activa 5G STD (BS IV Standard) is not disputed, the only point that needs to be decided is whether deception had been caused by the Appellant while selling the above vehicle to the Respondent/Complainant. In this regard, the Central Government had in compliance with the directions, passed by the Hon’ble Supreme Court in the IA Nos 45883/2020, 45912/2020 & 48113/2020, while disposing the Writ Petitions No.13029/1985, had passed the direction, to all States to stop selling BS IV variant vehicles and only BS VI variant vehicles would be allowed to be registered from 1st April, 2020. That apart the Form 17 Trade Certificate revealed that the said scooter was still in the name of the Appellant/Store. Under the circumstance, the Appellant had full knowledge of the above developments and despite having such knowledge, proceeded to sell the vehicle in question, to the Respondent/Complainant. Hence the intention of the Appellant to deceive the Respondent/Complainant appears to be quite palpable, knowing fully well that this variant of the vehicle would not be registered from 1/4/2020 onwards. As far as the Respondent/Complainant’s error, in wanting to purchase the Activa 5G STD (BS IV Standard), is concerned, she was a lay person and naturally she placed the order, for the model which she had seen on the streets or owned by her colleagues or relations. It was the duty of the Appellant to not only apprise, but educate her regarding the folly of her preference, but there is no evidence to that effect. Therefore, the Appellant has practiced unfair trade practice as defined in section 2(47)(i)(d) of the Consumer Protection Act, 2019. The Appeal thus lacks merits and is liable to be dismissed and the impugned order needs to be upheld with certain modifications. As a result, the Appeal fails.
It is therefore
ORDERED
That the Appeal be and the same is dismissed on contest, but without cost.
The impugned order is hereby upheld with only a cosmetic modification that in place of the model Honda Activa 5G STD (BS VI Standard), the same be replaced with Honda Activa 6G (BS VI) variant. The remaining portions of the order will remain the same and the order be complied within 45 days from the date of the receipt of the Copy of order.
Copy of the order be supplied free of cost to both the sides.
Copy of the order be sent to the Ld. DCDRC, Dakshin Dinajpur for necessary information.
Statutory fees deposited be returned from whom received. Joint- Registrar, WBSCDRC, Siliguri to do the needful.
