24.06.2016
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The instant Appeal bearing No. FA/129/2014 filed by the OPs before the Ld. District Forum below and the connected Appeal bearing No. FA/80/2014 filed by the Complainant before the Ld. Forum below are heard analogously.
Both the Appeals u/s 15 of the Consumer Protection Act, 1986 are directed against the judgment and order dated 10.12.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C.No. 95 of 2013, directing the OPs to refund to the Complainant Rs. 2,00,001/- and also to pay to the Complainant Rs. 40,000/- as ‘composite compensation’ for the financial loss and harassment caused to the Complainant and Rs. 10,000/- as litigation cost within 15 days from the date of the order, failing which the penal interest of Rs. 200/- for each day of delay shall be payable by the OPs. The OPs were also directed to deposit with the Forum concerned Rs. 10,000/- as punitive damages within the aforesaid period.
Facts of the case, as emerging from the materials on records, are, in short, that the Complainant before the Ld. District Forum sometime in the month of August, 2010 approached the OPs for purchase of an old ‘public taxi’ in his name, which was to be replaced on the strength of the replacement order by the Regional Transport Authority (hereinafter referred to as RTA) concerned, and accordingly, the Appellant/Complainant paid Rs. 2,00,001/- to the Respondents/OPs during the period from 1.9.2010 to 15.6.2011 as averred in the Petition of Complaint. Thereafter upon waiting for a long time for getting delivery of the taxi in question and its documents when the Complainant visited the office of the OPs on 17.12.2012, the OPs handed over to the Complainant the ‘original’ letter dated 17.3.2011 of the RTA with ‘Smart Card’ together with other documents of the taxi bearing No. WMT 3069 with the assurance that ‘new taxi’ by way of replacement would be delivered shortly as averred in the Petition of Complaint. After such delivery of the letter of the RTA when the Complainant enquired into the status of replacement of the taxi in question from the RTA, the Complainant came to know that the order dated 17.3.2011 for replacement of the taxi in question expired on 30.6.2011 as revealed from the aforesaid letter of the RTA, and that the RTA was not in a position to extend the date of replacement because of change of policy of the Government of West Bengal. Disheartened the Complainant, by a letter dated 21.12.2012, requested the OPs either to deliver the taxi or to refund Rs. 2,00,001/- as advanced with interest and also to pay compensation of Rs. 2,70,000/-, but the OPs did not respond to positively showing the negligence in the transaction on the part of the Complainant. With this factual background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner. Dissatisfied with such order the Complainant preferred the Appeal bearing No. FA/80/2014 before this Commission praying for enhancement of compensation awarded by the Ld. District Forum.
The Ld. Advocate for the Appellant in Appeal No. FA/80/2014, who was the Complainant before the Ld. District Forum, submits that the order impugned is improper and unjust as the Ld. District Forum passed the order without properly appreciating the financial loss of the Appellant/Complainant, who embarked on the transaction in question to earn his livelihood by means of self-employment.
The Ld. Advocate continues that the Ld. District Forum failed to consider that the amount of compensation should be determined to recompense the financial loss caused to the Appellant/Complainant as also to bring about the qualitative change in the manner of poor performance of service by the Respondents/OPs as in the case on hand.
The Ld. Advocate further submits that handing over the documents of the RTA to the Appellant/Complainant on 17.12.2012 knowing fully well that the date of replacement of the taxi in question already expired on 30.6.2011, which cannot be extended further because of the policy of the Government, conspicuously indicates the gross deficiency in service on the part of the Respondents/OPs and such gross deficiency in service on the part of the Respondents/OPs resulted in financial loss of Rs. 2,70,000/- of the Appellant/Complainant because of being deprived of earning his livelihood of Rs. 15,000/- per month.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be allowed and the amount of compensation as awarded by the Ld. District Forum be enhanced to the amount as prayed for by the Appellant/Complainant to recompense the substantial financial loss of the Appellant/Complainant and also to bring about a qualitative change in the manner of performance of service by the Respondents/OPs.
On the other hand, the Ld. Advocate for the Respondents in Appeal No. FA/80/2014, who were the OPs before the Ld. District Forum below, submits that the transaction in question having been connected with ‘commercial purpose’ the Appellant/Complainant does not fall within the definition of ‘Consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986 and hence, the Appeal should be dismissed, the impugned judgment and order be set aside and the Complaint be dismissed.
The Ld. Advocate also submits that the delay, if any, in handing over the documents of the taxi in question to the Appellant/Complainant was due to the negligence on the part of the Appellant/Complainant in contacting the Respondents/OPs in time.
We have heard both the sides, considered their respective submission and perused the materials on records.
The Petition of Complaint reveals the averment to the effect “….. the Complainant to maintain his livelihood by way of self-employment decided to have a public taxi in his name”, which indicates that the Appellant/Complainant is covered by the inclusive Explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986 and hence, a ‘Consumer’.
The reply by the Respondent No. 2/OP No. 2, being one of the partners of the Respondent No. 1/OP No. 1, to the question to the effect “I issued a letter dated 17.12.12 to the Complainant to collect the paper issued by the Regional Transport Authority”, which also included the letter dated 17.3.2011 of the RTA recording the replacement date of the taxi in question as 30.6.2011, clearly establishes that the documents of the RTA, which were under the custody of the Respondents/OPs, were handed over to the Appellant/Complainant after expiry of the extended date of replacement of the taxi in question, which undisputedly constitutes deficiency in service on the part of the Respondents/OPs.
Materials on records also indicate that the amount of compensation as prayed for by the Appellant/Complainant was not controverted by the Respondents/OPs in course of cross-examination and hence, the same stands unchallenged and thus undisputed.
The aforesaid documents, evidence on records and submission on behalf of the Ld. Advocate for the Appellant/Complainant establish the great magnitude of the deficiency in service as well as negligence on the part of the Respondents/OPs and the compensation awarded by the Ld. District Forum appears to be unreasonably meagre compared to the degree of deficiency in service and negligence on the part of the Respondents/OPs.
Therefore, we are inclined to modify the impugned judgment and order to the following extent :
- The Respondents/OPs are directed jointly and severally to refund the amount of Rs. 2,00,001/- as advanced to the Appellant/Complainant within 45 days from the date of this order;
- The Respondents/OPs are also directed to pay to the Appellant/Complainant Rs. 2,00,000/- as compensation, which appears to be just and reasonable to recompense the financial loss and mental agony and harassment of the sufferer, the Appellant/Complainant herein, as also to bring about a qualitative change in the attitude of the Respondents/OPs in the case of proven deficiency in service.
- The Respondents/Ops are also directed to pay to the Appellant/Complainant Rs. 10,000/- as litigation cost.
- The other directions in the impugned judgment and order are hereby set aside.
In the result, the impugned judgment and order is modified to the above extent. Both the Appeals are disposed of.
This judgment will govern both the Appeals bearing No. FA/80/2014 and FA/129/2014.
