BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case is that the Complainant is the permanent resident of above mentioned address and he is also a bonafide consumer in relation with the Opposite Parties. The Opposite Party No. 1 is the showroom for sale of the new car i.e. the product of the O.P. No.3 which is a new car product company and O.P. No.2 is a servicing center under the O.P. No.1. The Complainant went to the showroom of O.P. No.1 for purchasing a brand new car and as such the O.P. No.1 had shown the complainant the disputed car as new car and looking the outlook of the car the complainant booked the car for purchase on 13.03.2013 and accordingly the car has been delivered to the complainant on 16.03.2013 against the total amount paying through the IndusInd Bank of Rs. 6,99,568/- only. (Annex 1 & 5). After purchasing the new car the complainant registered the car under W.B. Govt. on 28.03.2013 as W.B.32D3600 through the District Magistrate Purba Medinipur at Tamluk, which is under Jurisdiction of this Commission (Annex-8). Within a few days the car met with various types of disturbance and naturally complainant went to the servicing center under O.P. No.1 i.e. O.P. no.2 for solving the disturbance. There the complainant was shown by the servicing center that the car has many problems (Annex-2). As the condition of selling of the new car the free servicing is availed of by the purchaser for two years or upto 100000 K.M.s run. The complainant told the servicing center to solve all the disturbance with free of cost but the servicing center disclosed that the free servicing period of that car has been already expired. Being astonished the complainant enquired the matter and came to know that the car was previously sold to one Mr. B. Dayanithi of Netajinagar under P.S.-Egra that was firstly registered on 31.07.2012 ; beyond the knowledge of the complainant O.P. No.1 sold a second hand disturbed car to the complainant against taking the full consideration money of a new car. (Annex-3) .As the car was previously sold and the warranty period had been expired, the complainant was bound to pay the full amount of service for the disturbance i.e. the amount of Rs. 17,151/- only (Annex07). Not only those disturbance after the servicing one by one various types of disturbance were gradually shown in the car and as such now the car at present not in condition for driving. (Annex-4). The complainant again and again contacted with the O.P. No. 1 & 2 for that type of cheating. Yet they assured the complainant to settle the matter but no result has come till now. The complainant at last sent an Advocate letter on 18.12.2014 through his engaged Advocate Mr. Arit Maity to O.P. No.1 & 3 to take return of the disturbed car and return the total amount of the car to the complainant which the complainant paid to the O.P. No.1 with interest and also the servicing fees but the Opposite Parties did not send any reply or did not sit with the complainant for settlement. So the complainant further sent an Advocate letter to get a reply on 06.01.2015 through Mr. Arit Maity but all in vain. (Annex- 9 & 10). Owing to failure from all the efforts the complainant prays for reliefs against the opposite parties as follows:-
An order for to take return of the disturbed car and for payment of the total amount of the car i.e. Rs. 6,99,568/- only with interest and also the servicing charge of Rs. 17,151/- with interest to the complainant. Alternatively an order to supply a fully new undisturbed car instead of disturbed car to the complainant with payment of total servicing charge with interest. An order of payment of cost of Rs. 20,000/- only for the harassment. An order of payment of cost of Rs. 50,000/- only as litigation cost and other reliefs.
The ops received the notices of the case. Firstly, ops filed an inter-locatory petition challenging the territorial jurisdiction of this Forum to try the case and accordingly the said petitioner was disposed of by this “Forum vide Order No.9 dated 26.06.2015 decided in favour of the complainant. Being aggrieved and dissatisfied by the order No.9, dated 26.06.2015 the Opp. Party preferred a Revision Petition in the Hon’ble State Consumer Dispute Redressal Commission, West Bengal and the said Revision petition was registered as Revision Petition No. RP/94/2015 and the complainant petitioner contested the said Revision petition and the said matter was finally disposed of by an order on the 30th day of June, 2016 being the final order and judgement passed in aforesaid Revision Petition. The O.Ps being aggrieved and dissatisfied by the said final order and jugement of Revision Petition No. RP/94/2015 dated: 30.09.2016 preferred a Revision Petition in the Hon’ble National Consumer Dispute Redressal Commission vide Revision Petition No. 2717 of 2016 along with an inter-locator application praying for staying further proceeding of this proceeding being inter-locator application no. IA-8919/2016 and the said matter was taken up for hearing and the national Commission was graciously pleased to pass an order direction the opp. Parties to pay the sum of Rs. 10,000/- to the complainant by way of a Demand Draft drawn in favour of the Complainant petitioner being Respondent No.1 to meet the traveling and sundry expenses in connection with the said proceeding before the Hon’ble National Consumer Dispute Redressal Commission, New Delhi within four weeks of the passing of the order and such order was passed on 5th day of October, 2016 and the Hon’ble National Commission stayed the operation of the impugned order passed by the Hon’ble State Commission dated 30.08.2016 in Appeal No. 94/2015. The Hon’ble National Commission passed an order directing the opp. Parties to deposit a sum of Rs. 1,00,000/- before the District Forum concern directing the District Forum that upon receipt of such amount the District Forum shall put the same in Fixed Deposit Account in a Nationalized Bank for a period of one year and the same shall be renewed from time to time till the disposal of the Revision Petition. Then on 29.11.2018 the Hon’ble NCDRC has been pleased to dismiss revision petition filed by the ops observing that …cause of action arisen at Purba Medinipur…..the amount of Rs.1,00,000/-,deposited by the petitioners be refunded alongwith accrued interest.
Thereafter, despite service of notice ops did not turn up resultantly the case was posted for ex-parte hearing. The ops again appeared before this forum on 18.102019. Subsequently, the case was posted for ex-parte hearing on 07.01.2020. On the prayers op on 06,02,2020 the said order of ex-parte hearing was vacated, written version filed by the ops was accepted. Ultimately, the ops preferred to see that the case be decided ex-parte against it, accordingly, the case was heard ex-parte finally on 21.06.2022 and today has been fixed for delivery of judgement.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused and assessed the affidavit of the complainant, ,examination In chief on affidavit filed by the complainant alongwith receipts and other documents.
Having regards had to the facts and circumstances of the case it is evident that the complainant being a consumer has alleged deficiency in service and unfair trade practice against the ops- ; the bundle of facts indicate that this case is maintainable in its present form and in law.
On careful analysis and evaluation of the examination-in chief on affidavit of the complainant it appears that the Complainant went to the showroom of O.P. No.1 for purchasing a brand new car and as such the O.P. No.1 had shown the complainant the disputed car as new car and looking the outlook of the car the complainant booked the car for purchase on 13.03.2013 and accordingly the car has been delivered to the complainant on 16.03.2013 against the total amount paying through the IndusInd Bank of Rs. 6,99,568/- only. (Annex 1 & 5). After purchasing the new car the complainant registered the car under W.B. Govt. on 28.03.2013 as W.B.32D3600 through the District Magistrate Purba Medinipur at Tamluk, which is under Jurisdiction of this Commission (Annex-8). Within a few days the car met with various types of disturbance and naturally complainant went to the servicing center under O.P. No.1 i.e. O.P. no.2 for solving the disturbance. There the complainant was shown by the servicing center that the car has many problems (Annex-2). As the condition of selling of the new car the free servicing is availed of by the purchaser for two years or upto 100000 K.M.s run. The complainant told the servicing center to solve all the disturbance with free of cost but the servicing center disclosed that the free servicing period of that car has been already expired. Being astonished the complainant enquired the matter and came to know that the car was previously sold to one Mr. B. Dayanithi of Netajinagar under P.S.-Egra that was firstly registered on 31.07.2012 ; beyond the knowledge of the complainant O.P. No.1 sold a second hand disturbed car to the complainant against taking the full consideration money of a new car. (Annex-3) .As the car was previously sold and the warranty period had been expired, the complainant was bound to pay the full amount of service for the disturbance i.e. the amount of Rs. 17,151/- only (Annex07). Above testimony on oath has remained unchallenged. The annexures submitted by the complainant have corroborated the version of the complainant. There is no evidence on behalf of the ops to demolish the case of the complainant.
The acts of the of ops 1and 3 indicate that there is something foul play in the matter of selling a second hand product. In the facts and circumstances of the case, it is clearly established that Ops 1 and 3 had caused deficiency in service and had set instances of unfair trade practice. The complainant suffered harassment and mental stress. Consequently, it would be just and proper if the ops 1 and 3 are jointly and severally asked to pay Rs.7,30,000/- ( Rs. 6,99,568/- purchase value of the car , Rs. 17,151/- servicing charge , Rs.8,281/-as compensation and Rs.5000/- as towards Litigation costs) to the complainant within one month from the date of order; in default the OPs 1 and 3 will have to pay Rs. 100/- per day till the date of actual payment in addition to the said amount for non compliance of the order.
Both the points are decided accordingly. Thus the complaint case succeeds.
Hence, it is
O R D E R E D
That the CC/14 of 2015 be and the same is allowed ex-parte against the OPs.
The Ops 1 and 3 , who are jointly and severally liable, are hereby directed to pay Rs.7,30,000/- ( Rs. 6,99,568/- purchase value of the car , Rs. 17,151/- servicing charge , Rs.8,281/-as compensation and Rs.5000/- as towards Litigation costs) to the complainant within one month from the date of this order; in default the OPs 1 and 3 will have to pay Rs. 100/- per day till the date of actual payment in addition to the said amount for non compliance of the order.
The complainant will return the vehicle in question to the Ops 1 and 3 as it is and where it is basis, if they want to take it return from the place of the complainant’s address at their own costs, within one month after full compliance of the above direction by them. After expiry of said one month complainant will stand discharged from his liability to return the vehicle.
The complainant will be at liberty to put the order into execution if it requires.
Let a copy of the judgment be supplied to each of the complainant and the OPs 1 and 3 free of cost.
