SHYAMAL KUMAR GHOSH, PRESIDING MEMBER

The instant Appeal has been preferred challenging the order impugned dated 04/04/2022 passed by the ld DCDRC, North 24-Parganas, Barasat in connection with consumer case being no – CC/264/2018 wherein the ld Trial Commission has been pleased to allow the consumer case on contest against the opposite party. Being aggrieved and dissatisfied with such order impugned, the appellant/opposite party (Lexus Motors Pvt Ltd) has filed the instant appeal before this Commission praying for setting aside the same with costs.

The factual matrix of the case is that the complainant has booked one Sumo Gold Ex CR 4 manufactured by Tata Motors at the show room of the opposite party in the month of January 2018 at a consideration amount of Rs.7,81,981/- and accordingly the opposite party has received Rs.35,000/- by cash from the complainant on 10/01/2018. The OP has received further Rs. 1,50,000/- on 17/01/2018 and also received Rs.1,15,000/- by cheque and thus the complainant has paid total amount of Rs. 3,00,000/- only to the opposite party.

The complainant has obtained a car loan amounting to Rs.4,81,981/- only from Tata Motors Finance Ltd Kolkata and the same is repayable by the complainant in 60 instalments. The amount for each instalment has been fixed for Rs.11,272/- only per month. The complainant hardly has paid 4 to 5 instalments to the said Financer.

When the complainant visited the show room of the opposite party for taking his car, utterly he has found that the colour of the door of the aforesaid vehicle was otherwise. Actually the colour of the door of the car was totally different from the colour of the whole body of the said car.

The matter has been informed to the OP forthwith. The opposite party has assured the complainant to remove the defect as early as possible.

On 23/02/2018 when the complainant has visited the service centre, the authorized service centre of Tata Motors (Rakshit Enterprise) has refused to provide any service as the car was one year old car. Upon enquiry the complainant has found that the aforesaid car has been sold out on 31/07/2017 but in details of customer column, the name of the complainant has been recorded as a purchaser.

Actually the car has been registered in the name of one Mr. Suraj Mishra of Serampur, Hooghly and the Finance company has received Rs.15,310/- from him for the same car and lastly he has obtained the instalment for the month of April 2018. The complainant has been cheated by the opposite party by selling the same vehicle having the same engine number and same chassis number which was primarily in the name of Suraj Mishra and thereafter in the name of the complainant. Actually after receiving the entire consideration amount, the second hand car has been sold out to the complainant with a pretention causing clear gross negligence and deficiency in service on the part of the opposite party.

Having no other alternative the complainant has knocked at the door of the ld. Trial Commission for getting relief/reliefs as prayed for against the opposite party.

The opposite party has contested this case by filing written version stating inter alia that the car in question has been used for commercial purpose which should not come within the purview of the Consumer Protection Act. The instant complaint has been suffered from non-joinder of necessary party as required under the law for the just and proper adjudication of the case. It is stated that the complainant has purchased a new car on 31/01/2018 at a consideration price of Rs 7,40,000/- as per tax invoice. The subject car has been delivered to the complainant from Barasat branch not from the branch of Krishnanagar, Nadia. The OP has also stated that a brand new car has been delivered to the complainant. The story of second hand car is totally baseless and concocted. All relevant documents and papers in respect of subject car have already been handed over to the complainant at time of delivery of the aforesaid car in question. At the service centre the car has been checked up carefully and all necessary services have been given to the complainant. The complainant has received the subject car after signing on delivery memo on 31/01/2018 along with all relevant documents and papers. Actually there was an error in the computer recording system but it has already been rectified. There is no fault or gross negligence on the part of the opposite party and accordingly, the opposite party has prayed for dismissal of the consumer case.

The ld advocate appearing for the appellant/opposite party has pointed out the error and mistake in passing the judgment/Final order dated 04/04/2022  passed by the ld Trial Commission and argued that the complaint case is not maintainable. The complainant is not a consumer as the vehicle is used for commercial purpose. The brand new car has been delivered to the complainant. The complainant has wrongly stated that the second hand car has been delivered to him. Though an error has been occurred in the computer recording system from the end of financier, yet the said mistake has already been rectified. A complaint has been lodged on frivolous ground and accordingly the ld advocate has prayed for setting aside the order impugned dated 04/04/2022 passed by the ld Concerned Trial commission.

The ld advocate appearing for the respondent/complainant has argued that the complainant has intended to purchase a new car from the end of opposite party and paid consideration amount of Rs.7,81,981/- only to the opposite party. The complainant has been cheated by the opposite party as the second hand car has been delivered to him. On earlier occasion the aforesaid vehicle has already been delivered to one Suraj Mishra. There is clear gross negligence and deficiency in service on the part of the opposite party. Not only that unfair trade practice has been involved and this type of practice has  been occurred from the end of opposite party in order to cheat the complainant. There is no such error or mistake in passing the judgment/final order passed by the ld Trial commission and accordingly, the ld advocate has prayed for dismissal of the instant appeal with exemplary costs.

I have heard the ld advocate for both sides at length and in full.

I  have meticulously perused all materials available on the record.

I  have considered the submissions of both sides.

The final hearing has been concluded.

Having heard the ld advocates and upon careful perusal of the relevant documents and papers, there is a moot question as to whether the second hand car or brand new car has been delivered to the complainant that should be decided by this Commission in order to meet proper justice to the parties.

It is admitted that on 10/01/2018 the complainant has booked one Sumo Gold Ex CR 4-2017 by payment of cash amount of Rs.35,000.00 which is clearly revealed from the quotation/proforma issued by op/Lexus Motors Limited.

The Demo/Display dated 31/01/2018 signed by both parties reveals that a new  car white in colour model Sumo Gold Ex CR 4 has been delivered to the complainant having chassis no – MAT446229GEJ07393 and Engine no – 30CR401HTY630224.

I have carefully perused PRE JOB CARD wherefrom it appears to me that on 07/04/2018 the aforesaid car (having chassis no – MAT446229GEJ07393 and Engine no – 30CR401HTY630224) has been presented for service at the authorised service centre of Tata Motors Ltd (admitted by the opposite party at the time of hearing). But from the said job card it is found that the car, details mentioned above, has been sold by Lexus Motors Ltd on 31/01/2017. Whereas the earlier document clearly shows that the complainant viz Bhola Ghosh has booked the aforesaid car on 10/01/2018. So, I find some discrepancies between the two documents. Not only that at the end of job card I find an endorsement dated 07/04/2018 which is “NEW/NOW CAR IS NOT COMING”. By showing this particular document, ld advocate appearing for the complainant/respondent has argued that no service has been provided as it was old/second hand car and without servicing, the car has been returned to the complainant. But I do not find anything wherefrom I am in a position to believe this argument at the behest of the complainant/respondent. Rather Ifind an endorsement at the end of this document wherein the complainant has certified that the work has been done in his satisfaction and he has taken the delivery of the aforesaid vehicle and thereafter the complainant has affixed his signature upon the said instrument.

Now, I have carefully perused another document issued by the Finance Limited (Formerly known as Sheba Properties Ltd) dated 08/05/2018 wherefrom it appears to me that the aforesaid car having chassis no – MAT446229GEJ07393 and Engine no – 30CR401HTY630224 has been recorded in the name of Suraj Mishra. At this juncture I am astonished that Sri Suraj Mishra has been paying the instalments against the loan disbursed by the financier company in respect of aforesaid car, though the said car subsequently has also been registered in the name of the complainant. Again the opposite party/Lexus Motors has filed a tax invoice dated 31/03/2017 (Anx-D) wherefrom it appears to me that another car having the engine no – 30CR401NTY641783 and chassis no – MAT446228HEA00026 has been transferred to one Suraj Mishra of Serampore, Uttarpara, Hooghly at a consideration amount of Rs.7,18,146.74 only.  

Having heard the ld advocate appearing for the complainant/respondent it appears to me that there is no such document regarding credit note when the car in the name of Suraj Mishra has been cancelled and returned.

Though the complainant viz Bhola Ghosh intended to purchase the car with the help of financier yet there is no such averment for his livelihood by means of self-employment in the petition of complaint and that should be cured by way of amendment. Be it mentioned here that the Consumer Protection Act has been enacted for the benefit of the consumer and as such it should not be defeated by any technical grounds.

In pursuant to the overall discussions, I find some discrepancies which should be cured in order to adjudicate the disputes between the parties. Be it mentioned here that the complainant has argued his matter relying upon the document issued by the Financier Company and the document relating to the job card issued by the service centre but the said financier company and the service centre have not yet been made the parties to the consumer case. I think that their presence should be very necessary for just and effective adjudication of the case.

Keeping in view of above observation and regard being had to the submissions of both sides I have no hesitation to hold that the order impugned dated 04/04/2022 suffers from irregularities/mistakes and as such the same should be set aside.

Hence,

It is

                                                     ORDERED

That the matter is remanded back to the Ld Trial Commission   to decide the case afresh.   All issues will be kept open when the aforesaid matter would be taken up for consideration.

Let the matter be restored in its original file and number  and accordingly I set aside the order impugned dated 04.04.2022.

Liberty is given to cure all  irregularities mentioned above   by the parties and Ld. Trial Commission is directed to afford an opportunity to that effect. After curing all defects and irregularities, the Ld Trial Commission concerned shall proceed with the case in accordance with law.  

Both parties are directed to appear before the Ld Trial Commission   on 16/10/2023 for receiving further order/orders from the concerned DCDRC.

The appeal stands allowed in part without any order as to costs.

Thus the instant appeal stands disposed of.

Note in the register.

Let a copy of this order be transmitted to the Ld Trial Commission   for compliance and for taking necessary action.