In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/05/2021.

Date of filing: 08/01/2021.                     Date of Final Order: 01/07/2024.

1. Sri Mihirlal Chakraborty,

s/o Sri Manilal Chakraborty,

2. Smt. Purnima Chakraborty,

w/o Sri Mihirlal Chakraborty,

both are residents of 12/1/11

Sadgope para Lane, Baidyabati,

P.O. Baidyabati, P.S. Shrirampur,

Dist. Hooghly, Pin. 712222.…..complainants

1. The Proprietor,

S.N. Motors Private Limited,

Showroom-cum Workshop,

Situated at NH 34, Post. Narayanpur,

P.O. Dumadighi, P.S. English Bazar

(opposite Jubilee Petrol Pump),

Dist. Malda, Pin. 732101.

2. The Proprietor,

Maya Auto Mobile (Authorised dealer of Mahindra and Mahindr Limited) show room and work-shop at Hospital, G.T. Road,

P.O. & P.S. Mogra, Dist. Hooghly, PIN. 712148.

3. Managing Director,

Mahindra and Mahindra Limited,

Having its office at Marketing automotive sector

Mahindra Towers Akuril Road,

P.O. & P.S. Kandivil (E), Mumbai 400101

And having its registered office at Gateway Building,

Apollo Bunder, Mumbai 400001.

4. The Branch Manager,

INDUSIND Bank Limited,

Having its branch office at Ghosh Market,

P.O. Sheoraphuly, P.S. Srirampur,

Dist. Hooghly, PIN. 712222.

5. The Managing Director,

Cholamandal MS General Insurance Company Ltd.

Having its branch office at Chhabildass Towers,

P.S. Park street, Kolkata. 700071...…..opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant no.1 purchased a Supro Maxi Truck Highdec T2  WD a vehicle from the OP-2 on 25.9.2019  for a sum of Rs.549441/- including tax and the OP-2 had issued invoice to the complainant no-1 for the purpose of purchasing the said Goods carrier.  The goods carrier having its chassis no.MA1FH2 HLWK6G54047 and its registration no. is WB17/4506.  The OP-5 have also issued the insurance certificate through OP-2 as the OP-2 have made every arrangement for purchasing the said vehicle from showroom.   The OP-5 also registered and insured the said vehicle of complainant-1 on and from 25.9.2019 which was valid upto 24.9.2020 being certificate no.3379/02501946/000/00.  The OP-2 is the authorized dealer of OP-3.  The OP-4 INDUSIND Bank has also granted a loan for a sum of Rs.509441/- and have received a sum of Rs.40000/- at the time of booking of the said vehicle from the complainant no-1 by the OP-2.  The OP-2 had received Rs.40000/- cash on 25.9.2019 at the time of delivery of the said vehicle from the complainant no.1 and the rest amount of Rs.509441/- was received from OP-4 Indusind Bank and therefore the complainant have paid in full against the said goods carrier.  The OP-4 had granted a loan for a period of 60 months against an EMI of Rs.13377/- approximately which also includes the amount of Rs.24083/- which was paid to the OP-5 the insurance company for insurance.  The registration of the said vehicle is WB-17/4506 though it was registered on 25.9.2019 but the OP-2 handed over the original documents i.e  invoice insurance paper to complainant no.1 alongwith blue book and other related papers of the said goods carrier on 15.10.2019 and the vehicle started to run from 19.11.2019.  The said vehicle was booked for loading and unloading of Kai(fish) from Baidyabati to Swarupnagar, malda at Malda Fish Market.  The vehicle started running on 19.11.2019 at 1 p.m and due to technical fault of a newly purchased vehicle it met with an accident at Katihar, Malda on 20.11.2019 at 6 a.m.  As per rules the nearest automobile show room of the Mahindra the OP no.1 received the said vehicle of the complainant from the spot and as usual it is liability of the company, the OP-3 to look after the said vehicle.

The surveyor was sent from the OP-3&5 to enquire the quantum of damage and make report thereof of the said vehicle and the said vehicle was kept lying with the OP-1 in the work shop till date.  The OP-1 had sent a notice to the complainant no.1 on 20.11.2020 stating that the vehicle bearing no.WB-17/4506 is presently standing in its work shop for 271 days vide repair order no.R020A009431 dated 19.2.2020.  The OP -1 stated that the vehicle is ready since 24.2.2020.  The OP-5 the Insurance company sent a notice on 6.1.2020 vide ref. no.3379288920/Kolkata/Closure as the complainant had claimed the Insurance against him vehicle vide claim no.3379288920.  The OP -5 neither gave a notice after 20.11.2019 nor have sent the survey report to the complainant or have given any intimation in the month of December 2019 regarding the present status of the claim and of the vehicle lying with the op-1.  The Op-1 did not even make any intimation to the complainant no.1 regarding starting of the repair or of make any correspondence between OP-1 and OP-4 regarding the present status of the vehicle no. intimation was sent till 6.1.2020 regarding repair of the said vehicle to the complainant.

There was a Pandemic Covid-19 from the last week of March, 2020 and is still in force.  The situation is not within the control of human being to take any initiative against receiving of the said vehicle from the OP-1 by arriving at Malda from Hooghly.  The OP-1 had sent a notice on 20.11.2020 claiming a sum of Rs.240888/- for repairing of the said vehicle and have also charged a parking fee for parking of the said vehicle since 20.11.2019 but from 20.11.2019 to 19.11.2020 the OP-1 have not sent any notice to the complainant regarding this status of the repair of the said vehicle though the pandemic COVID-19 and the lockdown throughout the country starts from the end of March 2020 and continued till June 2020 and situation started to become quite normal on and from the August, 2020 as we all know about the consequences of the COVID-19.

The OP-4 never sent the amount of claim sanctioned to the complainants for the repairing of the said vehicle.  No  statement of accounts and the cost of damage alongwith repair details were sent to the complainants till now.  But the OP-1 have claimed such a huge amount without any basis in connivance with the other OP.  The OP-1 have also received a sum of Rs.20000/- on 4.12.2020  from the complainant without any reason.  The OP-1 have also stated that the claim of liability is Rs.188762/- and the invoice amount is Rs.24088/-.  The complainant know that the said vehicle met with an accident not for rash and negligent act of driver but for technical fault was suppressed by OP-1&5 and also by OP-2&3 wherefrom the said vehicle was purchased.  The OPs are therefore severally and jointly liable for the said technical fault for which the damage was caused to the said vehicle and the OPs are charging the extra amount for some oblique purpose from the complainant. 

It was necessary to produce and supply the details of damage claim and surveyor report from insurer and other necessary forms and correspondence in between OP-1,4&5 during the period of repair and parking wherefrom the complainants would have a transparent view of the actual position of the said vehicle and its nature of damage.  In failure of supply of documents aforesaid the OPs are severally and jointly liable for the cause of damage of the vehicle of the complainant-1 and if delay in delivering the same the complainants have requested the OPs to deliver a new vehicle of a similar nature within 15 days from the receipt of the said notice and failing to deliver the new vehicle will compel the complainants to take appropriate legal steps against the OP alongwith appropriate compensation and damage for loss incurred by the complainants during the period from 20.11.2019 till date.  The OP-4 Indusind Bank failed to give any detail regarding the EMI as the complainant had already paid one EMI but as the said vehicle met with an accident and the same is lying with the OP-1 at Malda and due to such situation the complainant could not be able to ply the said goods carrier due to Pandemic Covid-19 and therefore the complainant could not able to earn from the said vehicle.  The OP-4 having the knowledge of moratorium period and other options issued by the Government of India regarding the loan accounts during COVID-19 has acted illegally and sent a notice of resale to the complainant though no financial institution can act illegally by sending such impugned notice during the COVID-19 period.

The complainants sent a notice to the OP on 24.12.2020 and the same was received by the OP on or before 30.12.2020 but the OP -1 S.N. Motors were the impugned vehicle is lying illegally had refused to receive the notice and therefore it tantamount to good service.  Receiving the said notice of the complainants as aforesaid, the Op-4 Indusind Bank sent a notice for sale and repossess of the vehicle to the complainant on 28.12.2020 though the OP-4 received the notice on 28.12.2020 and the complainant received the said notice on 31.12.2020 and therefore the OP-4 had knowledge of the said notice dated 24.12.2020.  The OP-4 also sent a legal notice through their advocate dated 28.12.2020 which was also received by the complainant on 31.12.2020 though the same was posted on 29.12.2020 and therefore the legal notice were also sent after receiving the notice sent by the complainant dated 24.12.2020.

Complainant filed the complaint petition praying direction upon the opposite party to issue Rule calling upon the OP by show causing as to why the prayer of the complainant shall not be allowed and to submit the documents relating to repair and directing the OP-5 to produce the documents of Insurance claim and surveyor report and to reschedule the EMI of the loan account of the complainants after getting the vehicle from the OP-1 to 3 and to hand over the vehicle to the complainant in a good and running condition failing which further directing the OP-2&3 to deliver a new vehicle of similar nature if dissatisfied with the surveyor report and after considering the acts  and to pay the compensation and damage of Rs.500000/- for causing mental pain, agony , loss of business and prolonged harassment and to pay a sum of Rs. 50000/- for litigation cost.

Defense Case:-  The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that it is stated that the vehicle manufactured by the Op-3 was sold to the complainant by the OP-2 with no technical issue and the same was tested by the complainant no-1 at the time of delivery.  The case of accident is wrongly alleged by the complainant as technical issue.  As per the records made available to us, date of accident of the vehicle of the complainant no.1 is 20.10.2019 and not 20.11.2019 and it is stated that the vehicle was received at the service centre on 25.10.2019 and was surveyed by Mr. Sanatan Sikdar who was from the Insurance Company and not OP-3.  The quantum is assessed by the insurance company, and such the process is not within the scope of the manufacturer.  Thus the answering OP-3 does not admit anything which may appear contrary to the matters of record.

It is stated that the movement of public was allowed in the month of July 2020.  Further it is stated that vide letter dated 20.11.2020 the OP-2 has clearly stated the complainant that the mobile of the complainant no-1 was not reachable and had thereby asked the client to get in touch with the body shop manager and there was no mentioning of any parking charge being charged.  The total invoice amount is Rs.240888/- out of which Insurance company has approved an amount of Rs.188762.99/- .  It becomes pertinent to mention here that the complainant in his declaration to the insurance authority had made very clear with a narrative, clearly mentioning that it is an event of accident, wherein a truck had overtook the running vehicle driven by the driver of the complainant no.1, and the truck collided with a culvert and the driver to save himself and the co-passengers had applied brakes, leading to the ramification of the vehicle, which can be termed as simply a typical incident of accident, but the complainant no.1 is exposing his crafty talent to misrepresent the fact in a calculative manner under the garb of ‘technical fault’ just in order to benefit himself, for the unwanted event to which the subjected vehicle was subjected to on the date of accident.  Furthermore, the complainant had not provided any report from any technical expert to substantiate that the accident had happened due to the technical fault of the vehicle.

The complainant is not at all maintainable and this complainant no-1 is not entitled to any of the relief or reliefs as prayed for as against the answering OP-3.  It is very clear and palpable to establish th financial crisis of the complainant no.1 to take delivery of the subject vehicle from the service station and paying the EMI’s and only in order purchase time and achieve a wrongful gain, such misleading complaint and a greedy prayer has been made over before the Hon’ble Commission, in order to fulfill the short comings of the complainant-1.  In the circumstances, since the case is not maintainable as against answering OP-3 it is just and proper that the name of answering OP-3 be deleted from the records and all references to the answering OP-3 be ordered to be expunged in toto and directed to be taken off the file and records of this complaint, which is liable to be summarily dismissed as against answering OP-3 by this Hon’ble Forum with costs.

The opposite party No. 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainants approached the answering OP at its office situated within the jurisdiction of this ld. Forum and expressed that their intention to obtain financial assistance for the purpose of purchasing a commercial vehicle.  The complainant made over copies of their voters identity card and other documents showing their identity and address in favour of the answering Op duly signed by them.  The answering Op craves leave to produce copies of such documents at the time of hearing if necessary.  The complainants were therefore explained the terms and conditions on the basis of which loan may be advanced to the complainants and was made over a copy of the agreement which would be entered into by and between the parties.  After going through the said agreement, the complainants agreed to obtain the financial assistance from the OPs on the terms and conditions mentioned in the said agreement.  The personnel of the answering OP also informed the complainant in detail the various clauses of the said agreement and after being satisfied with the same the complainants agreed to enter into the agreement for obtaining financial assistance from the OPs.

An agreement dated September 25 2019 was entered into by and between the parties at the office of the Ops within the jurisdiction of this Ld. Court.  In accordance with the said agreement, the OP-2 lent and advanced a sum of Rs.484000/- to the complainant for the purpose of purchasing a commercial vehicle bearing registration no.WB174506, engine no.6F29954 and chasis no.K6G54047 respectively.  The answering OP had no role whatsoever in selection of the said vehicle or the dealership thereof.  The said vehicle was selected by the complainant.  The OP-2 lent and advanced a total sum of Rs.484000/- in favour of the complainant and the said loan was repayable in 59 monthly installments in accordance with the schedule to the said agreement.  After the financed amount was sent and advanced by the answering OP to the complainants, the complainants purchased the said vehicle and started making over the monthly installments in favour of the answering OP in terms of the schedule to the said agreement which was made over to the complainants by the answering OP.

The said vehicle was hypothecated and charged in favour of the answering Op as security towards repayment of the outstanding dues of the complainants in terms of the said agreement and by way of first and paramount charge over the said vehicle.  The complainants have till date made over only few installments in favour of the respondent in accordance with the said agreement which would be evident from a statement of account.

The complainants thereafter failed and neglected to repay the further installments in terms of the said agreement.  As a matter of fact, several cheque issued by the complainants have been dishonoured even after various letters, reminders and requests made by the answering OP through its Advocate.  In view of the default committed by the complainant the agreement, the answering OPs became entitled to the entire amount that was payable by the complainants in terms of the said agreement.  The complainants were under an obligation to return the possession and give specific delivery of the said vehicle to the answering OP.  Although the said agreement terminated ipso facto, however, the answering OP has issued a notice upon the complainants for payment of the dues by terminating the agreement dated September 25 2019.  Despite repeated demands, the complainants failed and neglected to make over any further amount to the answering OP.  The complainants failed and neglected to make repayment of the loan in accordance with the said agreement, the complainants committed material breach of the terms of the said agreement which the answering OP was constrained to accept.  It is pertinent to mention herein that the notices were sent at the address of the complainants mentioned in the agreement and the answering OP was never intimated of any change in the address by the complaints.  In fact in the cause title of the present complaint, the address of the complainant are identical to that provided in the agreement in which notices were sent and despite the same the complainant chose not to revert. 

Having no other option, answering OP has initiated proceeding under section 9 of the Arbitration and Conciliation Act, 996 before the Learned City Civil court at Calcutta being Misc. Case no.05 of 2021 and on January 02, 2021 the Learned VII Bench was pleased to pass an order appointing the Learned Receiver to take possession of the said vehicle.  In view of the order dated January 02 2021 the Learned Receiver took possession of the said vehicle through his agent on December 28^th 2020 which is still lying under the custody of the Learned Receiver.  It is pertinent to mention that the answering OP has also referred the dispute before the Learned Arbitrator for adjudication where the complainants chose not to appear and suppressed the same before this Learned Commission.

 The opposite party No. 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant has taken a goods carrying package policy bearing number for vehicle bearing number WB-17/4506 which is for the use of commercial vehicle only for which the petitioner is not at all a consumer as per definition of Section 2(i)(d) of the Consumer Protection Act and the op no. 5 has paid the claim to the garage i.e. S.N. Motors Pvt. Ltd. on 29.2.2020 as per the assessed damage mentioned in the survey report and the claim petition is totally misconceived and as no cause of action at all arose for filing the instant case and the claim is liable to be dismissed with costs.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and answering opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the answering opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The questions and / or issues involved in the above noted points of consideration are interlinked and / or inter- connected with one another and for that reason and also for the interest of convenience of discussion all the above noted points of consideration are clubbed together and taken up for discussion jointly.

For the purpose of arriving at just and proper decision and also for proper and complete adjudication of this complaint case there is urgent necessity of scanning the materials of this case record and also for examining the evidence on record.

In this connection this District Commission after going through the material of this case record finds that this complaint case has been instituted by two complainants jointly but it is very surprising to note that the complainants have not obtained any permission for institution of this case jointly although there is urgent necessity of obtaining such permission as per section 35(1) (C ) of the Consumer Protection Act 2019.  In this regard it  is important to note that this case has been filed by the complainants under section 35 of the Consumer Protection Act 2019 but no such permission has been obtained or sought for from this District Commission.  Thus it is crystal clear that this case is defective since the date of filing of this case and so this case is not maintainable in the eye of law.

From the papers and documents filed by the complainants it is reflected that the complainant has purchased the above noted vehicle for commercial purpose.  In this connection the complainant no.1 has taken the plea that he has purchased the commercial vehicle for leading his “livelihood”.  In this regard the complainant has adduced evidence but the said part of evidence has neither been corroborated nor been supported by supportive evidence.  In this regard it is very vital to note that no cogent document such as Income Tax return has been filed by the complainants to show that the said vehicle has been used for maintaining their “livelihood”.  In this connection it is settled principle of law that the commercial purpose is not coming under the purview of the definition of consumer.  In this connection the decision of Hon’ble Apex Court which is reported in II(2022)CPJ9(SC) is very important.  This factor is also clearly reflecting that the complainants have purchased the above noted vehicle for commercial purpose by taking loan.  Thus it is crystal clear that this complaint case is not maintainable in the eye of law.

Moreover, the complainants have adopted the plea that the above noted vehicle had come across with a road traffic accident and for that reason criminal case was initiated.  But fact remains that the complainant has failed to establish that damage of the above noted vehicle has been caused due to road traffic accident.  In this regard no expert opinion has been placed before this District Commission.  The complainants have also not prayed before this District Commission for appointment of expert for examination of the above noted vehicle and for passing opinion.  In the absence of expert opinion it is not possible for this District Commission to come to the decision that the damage of the above noted vehicle has been caused due to road traffic accident.

All the above noted factors are clearly highlighting that this case is not maintainable in its present form and in the eye of law and so this complaint case is liable to be dismissed.

In the result it is accordingly

ordered

that the complaint case being no. 5 of 2021 be and the same is dismissed on contest.

No order is passed as to cost.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.