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 purchased one two wheeler vehicle whose model name is Suzuki Burgman St being chasis no. MB8EA11AKK8233034 engine no. AF212212731 BS4 model from the op no. 1 on 6.1.2020 and at the time of purchase the op assured the complainant that all the registration procedure will be completed within 45 days from the date of purchase of the said vehicle and also assured that the op handed over blue book/ registration card and other vehicular documents. But till date op no. 1 did not handed over any vehicular particulars or any registration number except insurance policy. On several occasion the complainant went to op no. 1 show room and requested the op no. 1 to provide registration number, registration certificate, tax token etc but there were no fruitful result. As the op no. 2 is main dealer of Suzuki motor cycle in the Hooghly district, the op no. 2 has also the responsibility to look after the registration procedure but they neglected to do so. The complainant also went to op no. 2 show room but they did not pay heed upon the complainant.

Complainant filed the complaint petition praying direction upon the opposite parties to take necessary action for registration of the said vehicle in question before the concerned RTO and provide all the vehicular particulars and registration number or replace the said BS4 vehicle with bs6 same standard vehicle and registered the same in the complainant  s name and to pay a sum of Rs. 92,190/- along with interest of Rs. 12% per annum and to pay a sum of Rs. 1,00,000/- for mental agony and pain and to pay a sum of Rs. 30,000/- for litigation cost.

Defense Case:-The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that due to in surge of Covid entire communication system was paralyzed and the op no. 1 have tried his level best to settled the problem but owing to Supreme Court verdict on BS IV, the job was become tough for the op no. 1. Although he is not liable to registration of the vehicles as the same is under the shoulder of the dealer, who was supposed to perform his obligation towards registration tax and disclaimer and dealer is the competent person to provide all the necessary papers to the Sub-Dealer and subsequently Sub-Dealer hand over the said papers to the purchaser but all those works were suspended due to the order issued by the Supreme Court of India. The op no. 1 always guided by the norms of the motor vehicles department as well as the parent organization (Hooghly Suzuki) and it is well settled exposer of the Supreme Court allows registration of BS4 vehicles sold during lockdown, but the said order was withdrawn within a short period for which the distributor, authorized agent has/ have failed to execute the necessary paper work in favour of the purchaser and the joint effort made by the op no. 1 and purchaser who have urged the Hooghly Suzuki. So it is not fact the op no. 1 has not performed his obligation towards the purchaser and the complainant has motivatedly suppressed that his vehicle is characterized as BS IV and to perplex the Consumer Forum on suppressing the fact.

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 party no. 1 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 opposite party no. 1 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 opposite party no. 1 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 first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.        All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant purchased one two wheeler vehicle from op no. 1 on 6.1.2020.
2. It is also admitted fact that the name of the said vehicle is Suzuki Burgman St being chasis no. MB8EA11AKK8233034 engine no. AF212212731 BS4 model.
3. There is no controversy over the issue that at the time of purchase the ops assured the complainant that all the registration procedure would be completed within 45 days from the date of purchase of the above noted vehicle.
4. There is no dispute over the issue that at the time of purchase the ops also assured that they would hand over blue book/ registration card and other documents.
5. It is admitted fact that the ops after purchase has only supplied the insurance policy.
6. It is also admitted fact that the op no. 1 has not yet handed over any vehicle particulars or registration number to the complainant.
7. There is no controversy over the issue that op no. 2 is the main dealer of Suzuki Motor Cycle in the Hooghly District.
8. There is no dispute over the issue that the complainant thereafter went to the office of ops for the purpose of getting the vehicle particulars and registration number but it has not yet been supplied.
9. It is admitted fact that the complainant has paid consideration money at the time of purchasing the said vehicle.
10. It is also admitted fact that the said vehicle is BS4 vehicle.
11. There is no controversy over the issue that the RTO Hooghly had not taken any steps in the matter of registration of the said vehicle as it is BS4 vehicle and as per direction of the Supreme Court the registration work of such vehicle has been suspended.
12. There is no dispute over the issue that RTO, Hooghly has not been made party in this case.  

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted facts and circumstances the parties of this case are deferring on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that ops have not taken any steps in the matter of registration of the vehicle of the complainant although assurance was given for registration of the same within 45 days from the date of purchase but on the other hand the ops have adopted the defence alibi that due to COVID situation the entire communication system was paralyzed and op no. 1 had tried his level best to settle the problem but due to the verdict of Hon  ble Apex Court in respect of BS4 vehicle the registration work of the vehicle purchased by the complainant has not been done and it indicates that the ops have no fault, negligence or deficiency of service in their part.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords and also for the purpose of deciding the fate of the points of consideration nos. 4 and 5 adopted in this case, this District Commission after going through the evidence on record finds that the ops cannot deny the fact of selling the Suzuki Burgman St being chasis no. MB8EA11AKK8233034 engine no. AF212212731 BS4 model to the complainant and for that reason they received the consideration money of the said vehicle and so it is duty of the ops to take steps for registration of the above noted vehicle but it has not been done by the ops. In this regard the ops adopted the plea that the verdict of Hon  ble Apex Court has suspended the registration work of vehicle of BS4. In this connection it is very important to note that the ops at the time of selling the above noted vehicle had not disclosed the matter that the registration work of such type of vehicle has been suspended on account of the order issued by the Hon  ble Apex Court. The ops also have adopted the plea that due to COVID situation they were not in a position to complete the registration work. But facts remain that the above noted point of contention of the ops is self-contradictory. As the ops have not taken any steps in the matter of registration work of the above noted vehicle in favour of complainant, the ops have committed the deficiency of service. Moreso, over this issue the definition of expression “service” in Section 2 (O) of Consumer Protection Act, 1986 was wide enough to comprehend services of every description and the District Forum has the jurisdiction to entertain and try such compliant. This legal principle laid down by the Hon  ble Apex Court and it is reported in 2022(2) CPR 249 (SC). Thus, it is crystal clear that the ops have their fault, negligence and deficiency of service on their part. So, the points of consideration nos. 4 and 5 are decided in favour of the complainant of this case.

In the result it is accordingly

ordered

that the complaint case being no. 155 of 2021 be and the same is allowed on contest but in part.

Ops are directed either to replace the vehicle namely Suzuki Burgman St being chasis no. MB8EA11AKK8233034 engine no. AF212212731 BS4 model and to hand over any other vehicle of other model to the complainant subject to payment of extra charges by the complainant, within 45 days from the date of this order and also to take steps for registration work of the said replaced vehicle or to repay the consideration money along with interest at the rate of 9% per annum from the date of filling of this case. Otherwise complainant is given liberty to execute this order as per law.

It is also held that complainant is also entitled to get compensation of Rs. 20,000/- for deficiency of service and litigation cost of Rs. 5000/- from the ops. Ops are directed to pay the said amount of Rs. 25,000/- equally within 45 days from the date of this judgement otherwise complainant is given liberty of executing this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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.