The complainant filed this complaint u/S 12 of the C.P. Act, 1986. The case has been running ex parte as per Order dated 18.05.2016 against the OP from the Ld. District Forum, North 24 Parganas which was upheld by the Hon’ble SCDRC,WB vide Order dated 09.04.2018. Subsequently on 06.08.2019 the Ld. District Forum, North 24 Parganas viewed having regard to other Judgements of the Hon’ble SCDRC, that they are inclined to give chance to the OP for filing Questionnaire. The case has been transferred from Barasat Commission to Rajarhat Commission as per Order of the State Commission dated 24.12.2021 at the stage of Arguments that were heard in full on 16.11.2022 when both sides filed BNA and pleaded orally, as well.
The factual matrix of the case in hand is that the complainant Smt. Swati Chowdhury of Netaji Nagar, Kolkata – 700047 purchased a vehicle from M/S Speed Chevrolet (a unit of Speed Autotech Pvt. Ltd.) P.S - Baguiati, Kolkata – 700059 being the sole OP and authorized dealer of the vehicle company. The complainant booked the car in exchange of her one number of old Sumo Victa Vehicle and purchased the new car for giving rent to office/business firm to earn her livelihood, as averred. The complainant booked the Chevrolet Enjoy Diesel under exchange of her old Sumo Victa CX and the OP issued vehicle delivery receipt of the old vehicle. The exchange price of the old vehicle was assessed at Rs. 1,33,000/- as per Vehicle Delivery Receipt issued by the OP and the balance amount of Rs. 20,000/- is due from the OP as claimed by the complainant. As the complainant decided to purchase the said new vehicle for giving on rent to earn her livelihood, she required commercial registration of the said vehicle to obtain Permit of Contract Carriage issued by the authorities and accordingly got the provisional papers from the State Transport Authority, who vide letter dated 18.08.2014 asked for further documents within 30 days from the complainant that are necessary for sanction of the said permit. The complainant claimed having handed over these documents to the OP. The complainant required the vehicle particulars issued by the Regional Transport Officer for onward submission to State Transport Authorities within 30 days from 18.08.2014. Upon enquiry from the OP as to when she would be getting the “Vehicle particulars” issued by the RTO, the Complainant got the document month in January 2015. After going through the documents, the complainant discovered that the requisite fees of Rs. 200/- was deposited by the OP for obtaining the said document only on 15.12.2014 as per invoice no. DP 2120243 dated 15.12.2014. Such delay on the part of the OP to submit requisite document to the RTO for obtaining the vehicle particulars attracted a penalty of Rs. 7,000/-. The complainant had to further cough up a sum of Rs. 54,507/- towards the OP on 16.09.2014 as logistic charges (registration/road tax/smart card) and insurance charge which were collected by the OP against money receipts. The complainant found that the OP collected a sum of Rs. 11,753/- in addition to Rs. 42,754/- on account of various statutory charges like insurance, vehicle registration fee (RTO), HSRP Fee and fees to RTO. The complainant claimed refund of the excess amount that she had paid as Rs. 11,753/- but the OPs denied refund. Hence this application. The complainant in support of her claim has exhibited annexure numbered as A, B1, B2, C, D, E, F, G, H(1) and H(2), H(3), H(4), H(5), I(1), I(2), I(3), I(4), I(5), I(6), J, K (1) and K(2) alongwith her complaint petition. Prayer is filed by the complainant for directing OP to pay Rs 38,753- on account of Rs 11,753/- as excess payment received by OP, Rs 20,000/- which remains unpaid against exchange value and Rs. 7,000/- as reimbursement to the penalty that she had to pay to the Government authorities for delayed production of documents to obtain All Bengal Permit fee, alongwith a compensation to the tune of Rs. 2,00,000/- for mental agony etc. and Rs. 25,000/- as litigation cost.
The learned counsel for the petitioner vehemently opposed the move and contended that the complainant is not qualified for being considered as consumer under the Consumer Protection Act 1986 alleging deficiency of service being the subject vehicle as commercial one. The OP pleaded in their Brief Note of Arguments that being the vehicle registered as a commercial one and having usage for commercial purposes, complainant fails to be covered under the Consumer Protection Act 1986. The OP further contended that it is the decision of the complainant herself, to let out the vehicle on hire and the relevant paper works for such commercialisation like issuance of Permit for contract carriage by the authorities are issued on complainant herself. The letter of the State Transport Authority dated 18.08.2014 requisitioning documents is addressed to the complainant seeking necessary documents within 30 days for issuing Permit. The OP contested that being the RTO of the Motor Vehicle authorities for processing documents and they being the statutory authorities, the responsibility of the car dealer is limited to delivery of unregistered vehicle and they are not liable as per Motor Vehicle Act 1988. Transfer of ownership is the responsibility of the owner where dealer is only a facilitator which they took up to mitigate the sufferings of the buyer of the vehicle while going through the registration process. The complainant has not made the authorities a party in this case and the dealer being agent of the authorities held responsible. In this respect, the Learned Advocate of the OP cited where it has been held by the Hon’ble NCDRC in the matter of Lords Polymer (I) Pvt. Ltd. Vs Oriental Insurance Co. Ltd. & Ors in 2015 (3) C.P.R. 348 : 2015 (3) CLT 10 stating inter alia that a contract can not be enforced against only the Agent, without the principal, as per Sec 230 of Indian Contracts Act 1872 (excluding exceptions).
The OP Advocate also pleaded that since no consideration money is received by them for hiring the particular service, hence the Motor vehicle authorities should have been made party in this case regarding the disputes on logistics charges raised by complainant against OP, who is mere an agent. Judgement of SCDRC, Orissa in the matter of Secretary, Council of Higher Secondary Education Vs Sachidananda Das [1998(3) C.P.J 176] and Judgement by SCDRC Punjab in the matter of Nita Singhla Vs Dr. Karnail Singh [1998(3) C.P.J 39] were cited in support of their case.
The submissions so put forth by both sides were gone through and the materials on records were examined along with pleading of both the parties with rival contentions. Also heard the Complainant and Opposite parties and perused BNAs of both sides.
The points that arise for determination in this case are :-
- Whether the complaint is maintainable before this Commission ? If yes, the complainant is consumer of whom ?
- Whether there was any deficiency in service from the part of the opposite parties as alleged ?
- Reliefs and Costs, if any.
Decisions with reasons
- First of all, for just and proper adjudication of the case, Sec 2 (d) (ii) of the Consumer Protection Act, 1986 are extracted hereunder:
‘consumer’ means any person who : -
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; (but does not include a person who avails of such services of any commercial purpose;
[Explanation.- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment].
As per the documents and exhibits, the complainant is the sole owner of the purchased vehicle and as per the evidence adduced by the complainant stating that the earning from the said vehicle is for the purpose of earning livelihood. This carries an impeccable evidentiary value which could not be contested by OP with any cogent reason.
In order to satisfy the requirement of definition of "Consumer" as contemplated under Consumer Protection Act, 1986, there must be transaction for a consideration amount u/S 2(1)(d)(ii) of the said Act. The prime consideration here is whether the petitioner is a "consumer" within the meaning of Sec. 2(1)(d)(ii) of the Consumer Protection Act 1986 so as to attract the provisions of the said Act, otherwise not. In view of the statutory provisions mentioned above, it is clear that the Act is made to deal with the rights of the consumers wherein good or ‘services’ have been defined under the said Act. In the case in hand, the debit note cum receipt no. SAPL/DN/133A/14-15 dated 16.09.2014 was issued by the OP on the complainant for Rs. 54,507/- which includes Rs. 28,500/- as logistic charges (registration/road tax/smart card) and Rs. 26,007/- as Insurance charge.
Hence the complainant is very much a consumer of the OP Company, under the scopes and meaning of Consumer Protection Act 1986.
- From the application dated 18.2.2015 by the complainant before the State Transport Authorities (running page 15) it is evident that the same was made by complainant herself. From the letter from the State Transport Authority dated 18.08.2014 it is evident that the same is issued in favour of the complainant for the Vehicle with registration no. WB-19-G 4390 (vehicle class: Omni Bus; Make: General Motors India Ltd.) seeking documents within 30 days for ‘grant of permit in respect of a particular contract carriage to be regularly used’ (running page 9 and 10). The delivery check list dated 29.09.2014 from the OP is found issued in favour of the complainant, which is signed and accepted by complainant showing that the delivery of promised vehicle was completed (running page 11). The document namely ‘vehicle particular’ is issued by the Registration Authorities (Registration date 22.09.2014) as per running page 13, wherein it is mentioned that the registration fee was paid by challan dated 15.12.2014. Hence in all fairness, the complainant was dealing with the statutory authorities for her permit for contract carriage.
Now, in the matters under the Motor Vehicle Act, 1988 and Rules framed thereunder, granting of permit is a statutory function conferred upon the statutory authority under the said Act and Rules. Consequentially, if any tax has been deposited, in that case, the permit holder is obliged under law to deposit the same. Therefore, any person aggrieved by any omission or commission on the part of the permit granting authority can prefer appeal/revision before the specified authority under the statute. The M.V. Act is a self contained code and provides appealable and revisable forums under the statute. If for any reason, the petitioner is not able to ply the vehicle after having complied all formalities, he/she has to approach the competent forum under the M.V. Act and Rules framed thereunder. The permit granting authority is not a service provider and, therefore, the person, who makes an application to the said authority for permit, is not a consumer. Motor vehicle documents etc. are governed by the provisions of MV Act/MV Taxation Act. As such, granting of permit and collection of tax from motor vehicle are all statutory in nature and the said functions are not discharged for consideration. If the statutory authority would have acted so, it could not be said that the same would come within the meaning of the provisions contained under the provisions of Consumer Protection Act, 1986, nor can it be said that there was deficiency of service. In the case of S.P.Goel mentioned supra, the Apex Court considered the provisions contained under the Registration Act and Stamp Act vis-à-vis Consumer Protection Act and, while construing the provisions contained under Section 2(1)(d)(i) of the Consumer Protection Act held that the officers appointed under Registration Act and Stamp Act do not render any service within the meaning of the Act because they perform statutory duties which are quasi-judicial, consequentially, the Consumer Protection Act is not applicable to the authorities. In Jagmittar Sain Bhagat mentioned supra, the Apex Court held that transaction with State or its instrumentalities, the government servant is not covered by definition of "consumer" within the meaning of Section 2(1)(d). In view of this, in the instant case, the contention of the Ld. Advocate of the OP that the complainant should have added the statutory authorities as party, is hence not sustainable.
Further, the OP issued receipts vide no. SAPL/DN/133A/14-15 dated 16.09.2014 to the complainant for Rs. 54,507/- which includes Rs. 28,500/- as logistic charges. From the supporting documents, the claim of the complainant about charging additional Rs 11,753/- gets established to which there was no reply from the ld. Advocate of the OP. Also the OP has admittedly failed to discharge their duties to extend the promised services, since the requisite fees of Rs. 200/- was deposited by the OP in delayed manner vide no. DP 2120243 only on 15.12.2014 and consequentially a penalty of Rs 7,000/- was levied for delayed receipt of documents which gets established. As they have taken money as logistic charges for extending such services to facilitate the same as per the exhibited documents and as taking excess charges gets established from the break up of receipts, hence the complainant is the consumer of the OP independently and the charges against the OP also gets substantiated.
The object of Consumer Protection Act, 1986 is to provide better protection of interest of consumers relating to goods, unfair trade practices, redressal against unscrupulous exploitation etc. The claim of the complainant about outstanding balance of Rs 20,000/- on account of vehicle purchase after old vehicle exchange got established as an outstanding dues as per exhibit in running page (14), which has not been denied by the OP.
Hence the deficiency in extending services by OP gets established. The OP has failed to render satisfactory services which caused harassment of the complainant due to deficiency in services. (3) (3) Thus the point no 2 and 3 are also decided in favour of the Complainant and against the OP. The Judgements cited by the Ld. Advocate of the OP is not much of any relevance in the subject matter of dispute.
In the result, the complaint case succeeds.
ORDERED
That the instant case be and the same is allowed on contest.The OP is liable and hence directed to pay a refund of Rs. 38,753/- (Rupees Thirty Eight Thousand Seven Hundred and Fifty Three Four only) within 45 days from the date of passing this Final Order.
The OP is also liable and directed to pay a compensation to the tune of Rs. 30,000/- (Rupees Thirty Thousand only) for the mental pain and agony that the complainant suffered since 2014 and a litigation cost of Rs. 10,000/- (Rupees Ten Thousand only) within 45 days from the date of passing the Final Order otherwise a simple interest @ 9% per annum will be levied on the entire decretal amount from the date of this order.
The complainant is at liberty to put this order into execution after expiry of 45 days from the date of this Final Order, in case the Order is not complied with by the OP within 45 days from the date of passing of this Final Order.
Let a copy be sent / supplied free of cost to both the parties. The Final Order shall be available in the website at
Dictated and corrected by
[HON'BLE MR. Partha Kumar Basu]
MEMBER
