Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

Order No.16

The instant Appeal U/s. 15 of the Consumer Protection Act, 1986 has been filed on behalf of the Appellant/Opposite Party No.1 to impeach the Order dated 17-05-2018 vide order No.23 passed by the Ld. DCDRF Kolkata, Unit-I in connection  with the Consumer Compliant case being No.CC/350/2015 whereby the said complaint case was allowed ex-parte with a direction to the Complainant to pay the dues to the financer and with further direction to the Opposite Parties to handover the registration certificate as well as other documents for running the vehicle without any hindrance that may be faced by the Complainant.

The brief fact of the case is that the Complainant/Respondent No.1 Baidyanath Sadhukhan approached and purchased second hand Maruti Wagnor car on 06-08-2014 at the price of 2,20,000/-(Two lakh twenty thousand) from the Respondent No.2/Opposite Party No.2 Swagata Mukhopadhyay.  The Complainant/Respondent No.1 made payment of Rs.5,000/-(Five thousand), 35,000/-(Thirty Five thousand) and Rs.38,400/-(Thirty eight thousand four hundred) by cash to Opposite Party/Respondent No.3 Mukesh Yadav.  The Complainant/Respondent No.1 paid the said amount for the purpose of name transfer, for blue book/registration certificate and insurance.  The Complainant availed financial assistance of Rs.1,64,000/-(One lakh sixty four thousand) from the present Appellant/Respondent No.1.  As per the terms and condition mentioned therein the Complainant/Respondent No.1 paid four (4) installments of Rs. 4,882/- (Four thousand eight hundred & eighty two) per month.  But in spite of that Opposite Party No.3 failed to comply his liability by not providing proper documents i.e. registration certificate along with original smart card of the former owner due to which the Complainant/Respondent No.1 had to bear the demurrage charges as the Complainant/Respondent No.1 could not drive the vehicle on road without having proper documents and sustaining depreciations of the car and battery due to idle position of the car.  The Opposite Party No.1/present Appellant, finance company did not cooperate with the Complainant for which the Complainant/Respondent No.1 has to sustain loss and the Complainant/Respondent No.1 compelled to appear before the Forum below with a prayer for delivery of the car registration certificate as well as compensation along with other reliefs.  After hearing, the Ld. Forum below allowed the case ex-parte against the Opposite Parties with the direction to the Complainant/Respondent No.1 to pay the dues to the financer with further direction to the Opposite Parties including the present Appellant to hand over the car registration certificate as well as other documents for running the vehicle without any hindrance that may be faced by the Complainant.

Being aggrieved and dissatisfied with the above order of the Ld. District Forum below the present Appellant/Opposite Party No.1 Family Credit Ltd., L& T Finance has approached before this Commission on various grounds.  It has been categorically contended in the memorandum of Appeal that the Ld. Forum below wrongfully allowed the complaint petition against all the Opposite Parties including the present Appellant and thereby directing to hand over the car registration certificate as well as the other related documents to all Opposite Parties.  They have further categorically submitted that the present Appellant/Opposite Party No.1 already filed one Written Version on 17-05-2016.  Moreover, Opposite Party No.2 also filed one Written Version on 06-01-2017 before the Ld. Forum below.  But the Ld. Forum below did not consider those Written Version and passed an ex-parte Judgment without considering Written Versions filed by Opposite Party Nos.1 & 2.  The present Appellant/Opposite Party No.1 contested the case by filing Written Version but subsequently due to negligent conduct of the Ld. Advocate could not remain present at the time of argument.  The present Appellant also attached a copy of Written Version filed by Opposite Party No.2/Respondent No.2 Swagata Mukhopadhyay with the present Appeal and categorically argued that Ld. Forum below should have considered the same at the time of passing impugned order.  The Ld. Counsel of the Appellant further agreed that the Ld. Forum below has failed to appreciate the facts and circumstances of the case and passed the order without proper application of the judicial mind.  Non-consideration of Written Version is the violation of natural justice and the impugned order therefore not tenable in the eye of law. 

Considering all aspects from all angles and after hearing the submissions made by both parties we have no hesitation to conclude that the Ld. Forum below has committed gross error and mistakes and passed an ex-parte order without considering the Written Versions filed by the present Appellant/Opposite Party No.1 and Opposite Party No.2 Mr. Swagata Mukhopadhyay who is the Respondent No.2 in Appeal case.

Therefore, considering the proposition of law and in view of the above discussion, the Judgment/Final order passed in CC/350/2015 dated 17-05-2018 by DCDRF, Kolkata, Unit-I is not sustainable in the eye of law and liable to set aside and the Appeal is allowed on contest. However, there will be no order as to costs.

The case is remitted on remand to the Ld. DCDRC, Kolkata, Unit-I with request to consider the Written Versions filed and give an opportunity to the Opposite Parties for filing evidence and to dispose the complaint case as early as possible in accordance with law. 

Both parties are directed to appear before the Ld. DCDRC, Kolkata, Unit-I on 25-07-2023 for receiving further order/orders. 

Thus, the Appeal stands disposed of.

Let a copy of this judgment be transmitted to the Ld. Form below forthwith for information and taking necessary action.

Interim order, if any, be vacated forthwith.

Note accordingly.