West Bengal

South 24 Parganas

CC/434/2014

SRI SUMANTA KUMAR KHAN - Complainant(s)

Versus

SRI RANJIT SINGH Proprietor of Venus Motor Works. - Opp.Party(s)

11 Jul 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _434_ OF ___2014__

 

DATE OF FILING : _11.9.2014__               DATE OF PASSING JUDGEMENT:  11/07/2016.

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Subrata Sarker

                                                                             

COMPLAINANT             :     Sri Sumanta Kumar Khan,s/o late Joykrishna Khan of Village Dakshin Gouripur, P.O Paschim Chamni, P.S. Bishnupur, Dist. South 24-Parganas.

 

-VERSUS  -

 

O.P/O.Ps                            :  1. Sri Ranjit Singh,Prop. Of Venus Motor Works,1-E, Natore Park, 1^st Road, P.S. Kasba, Kolkata – 39.

                                              2.   Branch Manager, Canara Bank, Amtala Branch, Dist. South 24-Parganas.

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Subrata Sarker, Member          

 

This is an application under section 12 of the C.P Act 1986 filed by the complainant on the ground that complainant got an offer letter of Bus Route No.SD-19 and took loan in his name for making Semi Luxury Bus Body under a hypothecation agreement with Canara bank, Amtola Branch with Ashoke Leyland Viking Chassis being Chassis No.MBI PBEYC 2DPTJ0998 and Engineer No.DTPZ 115988. It has stated that O.P is the owner and Proprietor of Body Builders having its shop at 1-E, Notore park, 1^st Road, P.S. Kasba, Kolkata – 39 . It has further stated that complainant contacted with the O.P who is a renowned Luxury Bus Builder for making the body of Semi Luxury Bus with Ashoke Leyland Viking Chassis being Chassis No.MBI PBEYC 2DPTJ0998 , on 28.12.2013   and upon discussion with the cost of the materials, labour and other charges the O.P submits a quotation vide Ref. No. Quotation/07/12/13-14 dated 21.12.2013 addressed to Canara Bank, Amtala Branch in the account of the complainant . As per quotation O.P was agreed to deliver and complete the body of Semi Luxury Bus as per conditions and specification mentioned in the quotation within 6/8 weeks from the date of receipt of the Chassis of Ashoke Leyland. In terms of the said quotation O.Ps have received Rs.5,40,000/- which was transferred through Canara Bank vide account no. 913020051010421  dated 13.1. 2014 ,out of total contact of Rs.6 lacs. The bank statement and photocopy of money receipts are annexed herewith. It has claimed that complainant frequently contacted the O.P for finishing the body of the Luxury Bus to ply the same in the permitted route as early as possible because EMI of hypothecation has already been started and the earning of the bus is the only bread and butter as well as livelihood of the complainant and also other staff attached with the service of the bus route. It has claimed that complainant had to pay Rs.1000/- pr day to the staff who have already been engaged for the said Bus. In the 1^st week of February complainant visited the workshop and requested the O.P to deliver the bus on completion of the  body as per quotation within 28^th February, 2014 and also intimated him to pay the balance money of Rs.60,000/- at the time of delivery. Hearing the same, the O.P assured that he will deliver the same within the stipulated period as per quotation. It has stated that when on 28.2.2014 complainant went to take delivery of his Bus , he observed that body of the bus has not yet been completed ,for which complainant compelled to allow 7 days more for completion of the body but unfortunately the same was not completed till the month of March, 2014 intentionally and deliberately to harass the complainant. Thereafter complainant started to stay most of the days in the 1^st week of April 2014 at the workshop of the O.P to complete the job of the body of the bus. But the O.P did not bother his request by showing various flimsy pretext that body of other bus is pending and told the complainant that to complete the body of the luxury bus some time is required. It has alleged that when the complainant visited the workshop of the O.P he found that body of other buses have already been completed and delivered in time ,wherein the chassis was received by the O .P later. Accordingly complainant lodged a complaint to the Kasba P.S. in the middle of April 2014 and the O.P also assured to the Police station that he will deliver the bus within 25.4.2014. But despite assurance he did not do the same. Again complainant lodged a complaint to the Kasba P.S. on 28./5.2014. It has alleged that due to delay of delivery of the bus the permit of RTA was over and the same was renewed by paying late fine . It has also stated that due to delay the complainant had to loss more that Rs.5,48,500/- for such unfair and deceptive practice by false representation of service to the complainant. It has further stated that the bus was delivered on 30.5.2014  after making balance payment of Rs.60,000/- . But after taking delivery of the bus complainant found that there are number of defects i.e. seats, selling, wiring and gate and the complainant had to repair the said works by expending Rs.1,08,500/- . Hence, this complaint praying for making payment of Rs.9,68,500/- by the O.P.

The O.P contested the case by filing written statement and has denied all the allegations leveled against him. It is the positive case of the O.P that this case is not maintainable because complainant purchased the bus to run the same for commercial motive and complainant did not approach with  clean hand. It is the positive case of the O.P that complainant did not comply and/or obey the terms and conditions of the quotation ,specially the points of quotation for windows painting and miscellaneous charges and more specifically payment schedule. It has stated that in terms of the quotation the window would be made of H & F section along with glass and will be vertically sliding. After making ready of the glass channel and section as per quotation the 1^st party requested the O.P to fix Mazda U.V Channel replacing the aforesaid channel and section and the O.P started changing the same by fixing the Mazda U.V channel as per the request of the complainant. Suddenly after 7-8 days the complainant rushed to the O.P and further requested him to replace the Mazda U.V Channel with previous H & F glass channel and accordingly the O.P again started the same. This type of changing request is going for a long time and at that time the O.P informed the complainant that if these things are going on then it will take more time to complete the bus but complainant did not pay heed to that and requested the O.P to do the same as per his request and again lastly the O.P started painting the bus with green colour as per choice of the complainant But after completion of the painting the complainant came to the O.P with a request to change the colour of the bus from green to blue and white as per new rules of STA, which caused further delay in completion of the job. Again it has stated that the O.P completed two side box as per direction of the complainant but after completion complainant compelled the O.P to change the said two sides box with one big size box after the gate which caused further delay. It has further stated that O.P was compelled to do some extra works like TV, Video box etc. It has claimed that complainant supplied the TV and VCD for the actual measurement of such TV and VCD box and at that time O.P was compelled to change the panel of the partition of drive cabin along with the electric wiring which caused further delay and in this way complainant delay to deliver the complete bus in time. It has claimed that as per quotation dated 21.12.2013 it was stated that 50% advance along with the chassis and order 40% after the panel . Balance before delivery. But the complainant paid Rs.1 lac only after two days of delivery of chassis on 30.12.2013 , Rs. 2 lacs on 13.1.2014 i.e. after 15 days . So, the complainant completed the payment of 50% after 15 days of the schedule time. It has been further stated by the O.P that 40% of total amount just be paid after fixing panel structure as per quotation just after 25 days from the date of delivery of the chassis. But the complainant made payment 40% amount delayed in making payment for more or less two months. Thus the delay was caused due to the act of the complainant. It has claimed that O.P gave five years warranty to the complainant regarding the said body of the bus but the complainant never made any report regarding the body of the bus and further claimed that bus was ready to ply on road on 26.4.2014 and on the same day the O.P asked the complainant to take delivery of his bus after making final payment over telephone and thereafter the complainant rushed at the place of the O.P and told that he would pay the balance amount after 20 days and requested to deliver the bus but the O.P refused to deliver the same . Thereafter complainant made a complaint to the Kasba P.S where police man also  told the complainant to make payment and take delivery of the bus . This case is concocted ,motivated to squeeze money from the O.P. Hence, the O.P prays for dismissal of the case.

            The O.P-2 Canara Bank filed written version and stated that complainant has no grievance and no claim whatsoever against this answering O.P. It has further stated that complainant availed a term loan amounting to Rs.17,48000/- from the O.P-2 for purchase of Model Ashok Leyland Lynx vehicle and he has executed all the necessary documents before the Bank to secure the loan. The vehicle is still hypothecated to the bank and the same is covered under CGTSME. It has claimed that save and except what are matters of records and save and except what is expressly admitted by the O.P-2, all other allegations are denied and disputes . O.P-2 also prays for dismissal of the case .  

                                                                       

Points for decision in this case is whether there is any deficiency in service or unfair trade practice adopted by the O.Ps or not.

                                                            Decision with reasons

            Admittedly complainant approached the O.P for making a Semi Luxury Bus Body on Ashok Leyland Chassis ,for which O.P handed over a quotation dated 21.12.2013 to the complainant. It should be mentioned here that normally in this type of business quotation is mandatory and the quotation usually be treated  as an Agreement. Needless to say that it is not a dispute regarding housing. So, agreement for sale or agreement for other matters need not strictly require when there is a quotation in the Letter Head of the O.P, wherefrom we find that there is a terms of payment as well as delivery date and total cost which are mostly mandatory apart from other points namely structure, channel, doors, windows, seats paints ,lights as well as miscellaneous items.

            So, we have to investigate firstly how the delay was occurred ,where the same was due to the negligence of O.P alone or in compelling circumstances.

            Secondly, we have to further investigate from the records that payment was made in time or not. All these things i.e. payment is the vital thing which is required for maintaining the delivery date of the bus, particularly until and unless payment is made as per quotation then how the O.P will purchase the assessories which are required for the body of the Bus as well as to meet out the day to day labour charges.

            Admittedly, payment was made not in time ,i.e. in terms of the quotation 50% of advance payment was required along with the chassis but the same was not made and instead of that Rs.1 lac was paid. Thereafter, 40% payment was also not made in time and lastly there was dispute regarding balance payment.

            It should be mentioned here that total payment was fixed Rs.6 lacs above. Be that as it may, prima facie we find that complainant rushed up to the police station to get delivery of the Bus. But we find that there is no positive action from the Police Station in respect of the complaint.

            It appears from the questionnaire filed by the O.P that the O.P asked the complainant whether the Bus is still plying in the road of Route no.SD-19. Complainant admitted the same by saying “Yes”.

            From question no.5 we find that complainant has admitted that quotation was given by the O.P. From question no.12 which is a vital one ,because it was asked to the complainant that did he make payment from to time to the O.P as per payment schedule of the quotation and in reply complainant cleverly without denying the same have stated that he paid Rs.1 lac on 30.12.2013, Rs.2 lacs on 13.1.2014, Rs.1 lac on 27.12.2014 and Rs.40,000/- on 31.3.2014 and balance at the time of delivery of Bus.

            This answer suggests clear violation of the terms and conditions of the quotation. So, at this stage it can be said that it is a case of contributory negligence on the part of the complainant also. If that be so, then definitely other terms and conditions automatically fell down one after one. For example, it can be said if the plinth area of a building is not properly made then the upper structure of the building automatically will be cracked or fallen down.

            Here, in the instant case the date of delivery depends upon the payment schedule and if the payment was not made in time, then how the O.P will arrange assessories and labour payment. So, there is a departure from the payment schedule and following the same delivery of the Bus. So, it is a case of contributory negligence . It is true that O.P failed to prove the allegation that this case is not maintainable because Bus is a commercial vehicle but we are aware that complainant has categorically stated that earning from the Bus is only his livelihood. So, in that score O.P failed to prove by further document that there are other buses of commercial categories belong to the complainant and thereby case is maintainable in this Forum and complainant is a consumer and O.P is a service provider.

            In reply to question no.13 complainant has stated that he is aware regarding the payment schedule of the quotation but he has paid the agreed money as per sanction of loan and also with the consent of the O.P . So, one thing is clear from the answer of the complainant that many things were done between the parties with their consent which were not expressly written in the quotation. Herein the answer no.13 of the complainant indicates and similarly complainant also has given consent to the O.P which are not written in the quotation. Sitting in a Court of Law we cannot shut our eyes on the realities. This was normally happening in case of this type of dispute regarding verbal consent between the parties, because it was not the mindset of the parties to sue in future at that stage but when dispute arises and relationship goes ,then all these verbal things were relied by the parties one after another.

            Question no.18 regarding the windows of the Bus was agreed by the complainant. Again answer of the question no.19 in this regard is really surprising because complainant has stated that O.P fitted glass channel in the window of the bus as per his choice to save money and labour but not at his instance. We have already stated that when all these things are not written ,it is very safe and easy to deny the same. But our considered view is that what prompted the O.P to change the window by fixing Mazda U.V channel until and unless there was instruction to change the design. Since, the O.P was aware regarding the window of the Bus which would be made H & F Section along with toughened glass and vertically sliding in terms of the quotation and the same was made, definitely it was as per the complainant’s instruction taking into consideration the reply of question no.13 by the complainant regarding the consent of the O.P.

            Now question no.28 should be mentioned  along with answer , otherwise it would be very difficult to asses the same.

            Question no.28:-    You never turned up and/or inform to the O.P for any repairing work of the body or bus inspite of having fiver years warranty of the body of the bus. Due you admit?

            Reply to question no.28:-  “Yes”  Informed the matter of incomplete works and defective works to the O.P at the time of delivery of the Bus but the O.P did not care to repair the defective works or complete the incomplete works on the date of delivery of the Bus.

            Considering the answer and question ,one thing is clear that complainant has admitted the question no.28 by saying “Yes”. Thereafter it may be that complainant has informed the matter of incomplete works and defective works etc. to the O.P. But complainant did not deny the question no.28. Complainant ought to have said “No”.  Thereafter remaining part which complainant has stated in reply to question no. 28 is stated above. But truth has come out somehow inadvertently.

            This is a decency of cross-examination in the eye of Law.

            Again question no.30 which was admitted by the complainant regarding the O.P as a renowned Bus Builder. If that be so then definitely a renowned businessman never delayed intentionally or deliberately for the sake of his business since complainant is not one customer only. Thus, there was a delay of payment that is why all these things happened. Apart from that ,other connected matters i.e. out of the quotation TV, Video Box etc. were done and in that case it is the case of the O.P that same were supplied in delay, although complainant was not agreed regarding the delay in supply. It is true that payment was made in delay as the bus was hypothecated to Canara Bank, Amtala Branch and the payment was made by the bank in delay. So, our considerable view is that if the complainant had a motive to obtain loan from the bank, then all these things should be ventilated to the O.P and thereby the O.P  prepared the quotation in that manner after ascertaining from the said Bank. Once again, we have to consider that  there is provision to inform the police regarding the delay of delivery of bus instead of lodging such complaint before the competent authority i.e. Court of Law but complainant informed the police personnel admittedly, which is appearing from the case record and reply to question no.44 also. If that be so, what prompted the complainant not to inform the said police station at the time of delivery of the Bus which was incomplete one inspite of full payment. To that effect question no.46 is very much relevant, wherein complainant who has made a complaint before the police station has surprisingly made a reply “No” i.e. there was no such specific provision     in the Law except Court but I informed the matter to the O.P at the time of delivery of the Bus”.  The reply of question no.46 and reply of question no.44  of the complainant clearly suicidal in nature. Thus we find that there was delay due to non-maintaining the schedule of payment, wherein complainant took a loan from the Bank and thereby O.P was unable to purchase the assessories and make the labour payment from time to time and thereby delay was caused.

            Apart from that, change of decision of the complainant starting from the windows and painting etc, the delay was caused ,wherein we cannot accuse the O.P along and it is not the sole negligence of the O.P alone. It is a contributory negligence. Apart from that, since the complainant has miserably failed to prove that he was compelled to take delivery of the incomplete bus and cost of further repair of the bus amounting to Rs.1,08,000/- which has been claimed by the complainant cannot be believed since the proprietor did not file any authenticated bill and not put his signature and no revenue stamp was affixed in the said bill. Apart from that, signature of Nikhil Thanadar who is a Proprietor of M Kali Body Builders was obtained appears to be in a blank Letter Head and thereafter it was prepared ,that is why the official seal of Ma Kali Body Builders was affixed not in proper place which ought to have affixed after the signature along with revenue stamp and complainant ought to have filed supporting affidavit by that persons that he has received the said amount and how the amount of Rs.1,08,000/-  was paid i.e. mode of payment was not proved. 

            All these things clearly suggest needle of suspicious against the complainant ,that is why O.P has categorically denied the same in his written version in para 15.

            In fine, it should be mentioned here that in reply to question no.26 of the O.P clearly suggest that complainant received his own bus from the O.P’s  workshop  after discussion in presence of the Police. So, it is well aware to the complainant about the date of delivery of the bus. This reply clearly suggest the reason of non-informing the Police Station regarding the incomplete works of the bus.

            It is further interesting if we consider the question no. 14 ,15 and 16, wherein as per answer of the O.P , complainant admitted the visit of him but not to request to complete the incomplete body but to request him to change the nature and character of the body of the bus and also for repetition of the same work like windows , painting and also so  many extra works like video box and also request to take deferred payment. But the O.P has admitted regarding the Chassis received on 28.12.2013 and also admitted that it ought to have delivered within 8 weeks from the date of such quotation and simultaneously categorically stated the reason of delay in reply to question nos. 16 and 17 etc.  Thus, we find that although at the first flash having some merits  in the case of the complainant but if we enter into the merits of the case, the same is baseless.

            Accordingly, we find no deficiency of service and unfair trade practice on the part of the O.Ps since it is a case of contributory negligence which we have categorically discussed above.

            Accordingly,                                                                 

                                                                        Ordered

That the complaint case is dismissed on contest but in the sorry state of affairs we do not like to impose any cost.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                                   President

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

           

Ordered

That the complaint case is dismissed on contest but in the sorry state of affairs we do not like to impose any cost.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                                                                                                       President