Judgment : Dt.21.9.2017

Shri S. K. Verma, President.

            This is a complaint made by Smt. Debashree Paul, wife of Sri Sukhendu Lodh residing at 1/109, Sree Colony, P.O. & P.S.-Jadavpur, Kolkata-700 092 against (1) M/s Shivam Auto, sole Proprietorship Firm of Sri Suvankar Acharjee, son of Sri Tapan Acharjee, at A/51, Baghajatin, Near I Block More, P.O.& P.S.-Jadavpur, Kolkata-700 092, OP No.1, (2) Sri Suvankar Acharjee, son of Sri Tapan Acharjee, at A/51, Baghajatin, Near I Block More, P.O.& P.S.-Jadavpur, Kolkata-700 092, OP No.2 and (3) M/s Busan Auto Finance India Pvt. Ltd., having its registered office at P-255, CIT Road, Scheme-VI (M), Kankurgachi, Kolkata-700 054, P.S.-Phoolbagan, OP No.3, praying for a direction upon OP No.1 & 2 issue the registration certificate and valid insurance certificate so that Complainant could ply the vehicle on road. Alternatively, to pay the price of the vehicle amounting to Rs.64,952/- together with interest @ 10% p.a. from 23.12.2015 till realization and direction upon the OP No.3 to furnish the detailed particulars of Registration Certificate and Insurance Certificate of the vehicle when the same was registered in the transport dept. and to forgo overdue interest of the loan for the time, the date of registration and a direction upon OP No.1 & 2 to pay damages to the tune of Rs.1,00,000/- and also to pay Rs.10,000/- per month from the date of taking delivery of the vehicle till the date of order and to pay litigation cost of Rs.10,000/-.

            Facts in brief are that OP No.1 is a sole proprietorship firm carrying on business and OP No.2 is the proprietor. OP No.2 represented himself as the dealer of two wheeler vehicle and OP No.1 & 2 assured that they shall arrange for finance of the two wheeler motor cycle through OP No.3 who finances intending purchaser by extending loan facilities. Complainant intended to purchase two wheeler motor cycle for the purpose of own use and visited the showroom of OP No.1, where she met OP No.2 who represented himself as the sole proprietor of OP No.1 and the OP No.2 wanted to know from the Complainant as to whether she is interested to purchase two wheeler motorcycle by taking loan from any nationalized bank. On this OP No.2 introduced Complainant with OP No.3 who induced Complainant to take loan. OP No.3 told Complainant that she will have to sign certain papers. On 23.12.2015 Complainant purchased the motor cycle from OP No.1 by paying a sum of Rs.22,000/- through cheque No.172528 dt.23.12.2015 drawn on Allahabad Bank and executed several documents. She was offered loan of Rs.42,952/- because the total amount of Rs.64,952/- included 1 year insurance charge, registration charge and road permit charge. Complainant paid the total money to OP No.1 and OP No.1 delivered the  vehicle to the Complainant but without any temporary registration No. of permanent registration No. or any insurance certificate.

            As per law, the dealer cannot deliver unregistered vehicle to the customers. Complainant submits that on 23.12.2015, she executed many blank documents for taking loan. Complainant has further stated that there was a collusion in between OPs to deprive the Complainant and to cheat her. Complainant has stated that since the date of taking delivery, the said vehicle is lying idle. It is the duty of OPs to get the vehicle registered and get it insured but they did not do it. So, Complainant filed this case.

            OP No.3 files written version and has denied the allegations of the Complainant. Further, OP No.3 has stated that he is not liable for issuance of either registration certificate of insurance certificate of said vehicle.

            OP No.1 & 2 did not contest the case and so, the case is heard ex-parte against OP No.1 & 2.

Decision with reasons

            Complainant filed affidavit-in-chief wherein she has reiterated the facts mentioned in the complaint petition, against this OP No.3 has filed questionnaire to which Complainant has filed affidavit-in- reply. Similarly, OP No.3 filed evidence against which Complainant filed questionnaire to which OP No.3 filed affidavit-in-reply.

            Main point for determination is whether Complainant is entitled to the relief as prayed for.

            On perusal of the prayer portion, it appears that Complainant has prayed for issuance of registration certificate and insurance policy in respect of the purchased vehicle. Alternatively, refund of Rs.64,952/- together with interest @ 10% p.a. till realization, from 23.12.2015. Since OP No.1 & 2 did not appear and contest the case, and so the allegations of complaint remained unrebutted and unchallenged. Complainant appears to be entitled for a direction upon OP No.1 & 2 to refund Rs.64,952/-. It is because the vehicle was purchased in December, 2015 and as per Complainant’s allegation, the vehicle could not ply due to non-supply of registration certificate and insurance policy. It is well known that insurance policy is issued for one year. Since December, 2015 now it is more than two and half years. So, the question of supply of insurance policy at this stage does not arise. Similarly, since the vehicle remained idle, the question of its registration at this stage does not appear appropriate. As such, the Complainant is entitled to refund of Rs.64,952/-.

            Second prayer of Complainant is for a direction upon OP No.3to furnish the detailed particulars of registration and insurance certificate. OP No.3 is a financer, so such direction cannot be given to OP No.3. Accordingly, the Complainant is not entitled to this relief. Complainant has also prayed damages to the tune of Rs.1,00,000/- for harassment and mental agony against OP No.1 & 2. No doubt, OP No.1 & 2 have not challenged the allegation, but damage appears to be excessive and so we are of the view that if a damage to the tune of Rs.25,000/- and a litigation cost of Rs.5,000/- is awarded justice would be served. Complainant has also prayed Rs.10,000/- per month as hiring charges from the date of taking delivery to the date of realization because complainant failed to ply the vehicle.

            In this regard, we are of the view that this prayer is not justiciable.

            Hence,

ordered

            CC/53/2017 and the same is allowed in part ex-parte against OP No.1 & 2 and dismissed on contest against OP No.3. OP No.2 (Proprietor of OP No.1) is directed to pay Rs.64,952/- provided the vehicle is returned to OP No.2 within two months of this order, in default the amount shall carry interest of 10% p.a. from the date of this order till realization OP No.2 is also directed to pay Rs.30,000/- to the Complainant within this period as compensation and litigation cost, in default this amount shall also carry interest @ 10% p.a. from the date of this order till realization.