A.  K. Bhattacharyya

Brief facts of the instant case, as submitted by the complainant, are that he agreed to purchase a Tata Sumo (second hand) bearing no. WB-02J/8756 (Engine No. 483 DL 45 EQQ 736661 and Chassis No. 385 013 EQQ 910 617) from OP no. 1, being the owner of the said vehicle at a consideration of Rs. 1,35,000/- and executed a Deed of Agreement with OP no. 1 on 31-08-2011.  It is stated by the complainant that he paid Rs. 1,20,000/-  as advance on different dates to OP no. 1 against money receipts.  However, when OP nos. 1 & 2 (husband of OP no. 1) came to hand over the vehicle to him, to his utter surprise, he discovered that the vehicle in question was not at all roadworthy and he also came to know that a huge amount stood outstanding in respect of the vehicle toward Road Tax, Insurance etc.  It is alleged by the complainant that on seeing the poor condition of the vehicle in question, he refused to accept the vehicle.  After that OP no. 1 assured to hand over the same to complainant after due repairing of the same.  It is stated by the complainant that on 05-08-2011 OP no. 1 given an undertaking to handover the vehicle in good running condition else return the entire money which the complainant paid to her.  However, neither the OP no. 1took any step to handover the vehicle in working condition nor returned the money paid by the complainant despite severe perseverance of the matter by the complainant, hence the case.

One Sri Bhutunath Mukherjee filed his Affidavit-of-Evidence and deposed before the forum on behalf of the complainant..

In support of his claim, complainant submitted photocopies of one Deed of Agreement dt. 03-08-2011, some money receipts, one declaration of OP no. 1 dt. 05-08-2011 etc.  Be it mentioned here that Complainant has not filed original copy of any of the documents.

Despite service of notice upon all the OPs, only OP no. 3 appeared before this forum to contest the case by filing written version and by taking a positive part in the entire proceeding.  By his written version, OP no. 3 denied any laches/deficiency in service on his part.  It is further stated by this OP that he has been falsely implicated in the case by the complainant.  Therefore, this OP prayed for dismissal of the instant case against him.

Points for consideration

We have perused the materials on record which includes deposition of Sri Bhutunath Mukherjee, photocopies of documents submitted by the complainant,  heard and considered the averments of ld. lawyers of the parties.  On the basis of such averments, we frame the following points to arrive at a decision.

1. Whether there is any deficiency in service on the part of the OPs?
2. Whether the complainant is entitled to get any relief as sought for?

Decisions with reasons

Point nos. 1&2:

Both these points are taken up together for the sake of convenience of discussion.  Moreover, they are inter-connected.

Complainant has filed the instant complaint case with the allegation that the OPs, after taking lion’s share of the total agreed amount as advance, offered a defective vehicle to him which was not acceptable to him.  In so far as the OPs neither handed over the vehicle in roadworthy condition nor returned the advance amount which they had received from the complainant, he filed the instant case for relief. 

Although both OP nos. 1&2 received Notice along with petition of complaint personally - as it is ascertained from the endorsement on postal acknowledgement cards - yet none of them turned up before this forum to articulate their views as regards the allegations of complainant.  Therefore, it can reasonably be presumed that they have nothing to say in this regard. 

Be that as it may, let us discuss the issues at stake on the basis of materials on record to come to a conclusion.

It is stated by the complainant that he had entered into an agreement with OP no. 1 whereby the latter offered to sell a second hand Tata Sumo car to him at a consideration of Rs. 1,35,000/-.  It is further stated by the complainant that in terms of the said agreement, he made an initial advance of Rs. 1,00,000/- and thereafter, he paid further Rs. 20,000/- to OP no. 1.  It is alleged by the complainant that, taking advantage of his good faith on the sincerity of purpose of the OP no. 1, the latter after taking lion’s share of the agreed sales consideration, offered a decrepit vehicle to him.  As the said vehicle was not at all roadworthy, he refused to accept the vehicle in question.  When OP no. 1 repeatedly faltered in making the vehicle in question defect free, complainant asked them for refunding the advance amount but to no avail.

It bears no emphasis that as a consumer/prospective buyer, one enjoys certain privileges those are sacrosanct viz Right to Choice, Right to Quality, Right to Information and one cannot be compelled to buy something against one’s wishes under any circumstances.  It is the bounden duty of every seller to ensure that the product he/she intends to sell conforms to basic quality standards and in case of any lapses/deviation/deficiency thereof, a prospective buyer/consumer is always at liberty to reject it and get refund of the advance, if so paid.

In the case in hand we find that the complainant agreed to buy the vehicle in question after executing an Agreement for Sale with OP no. 1 and paid a substantial amount as advance.  There is nothing on the Sale Agreement – executed between OP no. 1 and complainant – that the latter would take delivery of the vehicle in question on AS IS WHERE IS basis, rather it transpires from the declaration of OP no. 1 that she could not provide the Fitness Certificate in respect of the vehicle in question .  Such self-confession on the part of the seller certainly gives credence to complainant’s claim as stated in the petition of complaint.

In absence of any credible evidence/document to the contrary, we do not find any ground to disbelieve the claim of complainant as stated in his petition of complaint.  Thus, there is deficiency in service on the part of OP no. 1.  We, however, find no materials on record against OP nos. 2 & 3 as to any deficiency in service.

Therefore, in the light of our foregoing discussion we hold that complainant is entitled to get relief in the form of getting either a defect free roadworthy Tata Sumo Vehicle as per the agreement in question else get refund of total advance money to the tune of Rs. 1,20,000/-  together with 10% interest p.a. over the aforesaid amount along with litigation cost Rs. 1,000/- from OP no. 1. 

Accordingly, both these points are disposed of in favour of the complainant.

Hence, it is

ORDERED

that the instant consumer case no. 43/2012 be and the same is allowed ex-parte against OP nos. 1 and dismissed ex-parte against OP no. 2 and the instant case be and the same is also dismissed on contest against OP no. 3.  OP no. 1 is liable to either handover a defect free roadworthy Tata Sumo as per agreement in question together with Fitness Certificate in respect of the vehicle and all requisite car related papers viz Blue Book, updated insurance certificate and Tax Token to the complainant else refund Rs. 1,20,000/- together with interest @ 10% p.a. over the aforesaid amount from the date of first advance till realization and litigation cost Rs. 1,000/-  to the complainant within 45 days from the date of communication of this order i.d. complainant is at liberty to execute this order in accordance with law.

                                                            S.S. Ali                                                A.K. Bhattacharyya

                                                            Member                                               President