West Bengal

Paschim Midnapore

CC/42/2016

Jaydip Swarnakar - Complainant(s)

Versus

Star India Agencies Pvt.Ltd. - Opp.Party(s)

Joydeep Dey

22 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

and 

Pulak Kumar Singha, Member.

 

Complaint Case No.42/2016

 

             Jaydip Swarnakar, S/o Sri Dulal Chandra Swarnakar, Bhawanipur, Kali Mandir Road,

             P.O. Kharagpur, P.S. Kharagpur (Town), Dist. Paschim Medinipur, WB-721301             

                                                                                                           .………..……Complainant.

                                                                              Vs.

1)Star India Agencies Pvt. Ltd., Jhapatapur, P.O. Kharagpur, P.S. Kharagpur (Town), Dist. Paschim Medinipur, WB-721301 (Through its General Manager),

2)Mahindra & Mahindra Financial Services Ltd., Suchana Building, Civil Defence Road, P.S. Kharagpur (Town), Dist. Paschim Medinipur, WB-721305 (Through its General Manager),

3)Mahindra & Mahindra Ltd., 3^rd and 4^th floor, Kyd Street, Park Street, Kolkata-700016 (Through its General Manager)...……….….Opp. Parties.

                                                    

              For the Complainant: Mr.  Joydeep Dey, Advocate.

              For the O.P.               : Mr. Sankar Mohan Pal, Advocate.

                                                  : Mr. Subrata Bikash Das, Advocate.

 

 

 

Decided on: - 22/05/2017

                               

ORDER

                        Bibekananda Pramanik, President – This is the case u/s 12 of the C.P. Act, filed by the complainant, Jaydip Swarnakar against the O.P.-Star India Agencies Pvt. Ltd. and two others.

Contd……………P/2

 

 

                                                                     ( 2 )

                   Facts of the case, in brief, are that O.P. no.1 is an authorized dealer of Mahindra & Mahindra Company and the O.P. no.2 is the Financing authority for providing car loan.  The complainant went to the showroom of the O.P. no.1 in the month of December, 2015 for purchasing a commercial vehicle by which the complainant can run All India permit vehicle to earn his livelihood by means of self-employment and he intended to buy a white coloured commercial vehicle.  On 21/12/2015, the complainant paid advance Rs.2,000/-  for such vehicle.  Later, the O.P. no.1 advised the complainant to buy non A/C brown coloured Supro Vx8 on the ground that the said vehicle is in affordable price and can get necessary all India permit as commercial vehicle. Being asked, the O.P. no.1 assured that brown colour vehicle can get all India permit for commercial purpose and after getting such assurance, the complainant purchased Supro Vx8 8 seater from the said showroom of the O.P. no.1 by paying Rs.1,38,000/- out of total value of Rs.4,53,501/- and the rest amount of Rs.3,15,501/- was financed by O.P. no.2.  After purchasing the said vehicle, the complainant in his own initiative, registered the vehicle on 31/12/2015 vide registration no.WB 33C 8265C.  At the time of purchasing  the vehicle, the complainant was forced to sign on at least 30 places in various documents but the O.P. never translated the meaning of those document in Bengali language and they cleverly sold a non- complaint vehicle to the complainant.  When the complainant approached STA, Kolkata for giving him All India permit, then he came to know that the said vehicle did not fulfill the criteria of All India Permit because the said vehicle is brown coloured and pollution compliance is Bharat Stage-III.  It was reported by the RTI that BS-III vehicle will not be allowed to run on road from April 2017 as per Govt. of India’s notification.  The complainant then approached the O.P. no.1 to replace his vehicle with one BS-IV white coloured vehicle but the O.P. refused to do so.  On the contrary, the O.P. no.1 cleverly misguided the complainant by sending  e- mail that they will help him to register the vehicle from Balasore, Orissa, although the complainant is not a resident of the State of Orissa.  It is stated that the O.P. no.1 is guilty of doing unfair trade practice inconvenience with O.P. no.2. Hence the complaint, praying for directing the O.Ps. to pay the price of the vehicle in the present market price plus bank interest and for further direction to pay Rs.13,00,000/- as compensation for mental pain,  agony and sufferings and for other reliefs.

                     In spite of receipt of notice, O.P. no.3 did not appear to contest this case and hence the case was ordered to be heard ex- parte against O.P. no.3.  O.P. Nos. 1&2 have contested this case by filing two separate written objection.

Contd……………P/3

 

 

                                                                     ( 3 )

 

                     Denying and disputing the case of the complainant, it is a specific case of the O.P. no.1 that the petition of complaint is not maintainable, that there is no cause of action for filing the complaint, that the complaint is fictitious and frivolous and the petition of complaint is barred by other provisions of law.  It is admitted by the O.P. No.1 that the complainant purchased the vehicle from the O.P. no.1 as per his own choice and at no point of time it was stated by the complainant that the vehicle desired to be purchased should be in white coloured or for commercial use with All India permit.  The complainant was well aware about the vehicle and other paraphernalia and he accepted the same and signed on all necessary documents after going through the same.  The complainant is a owner of a three wheeler vehicle prior to purchase of the instant vehicle.  The complainant himself insisted for sale letter and other necessary documents to be handed over to him on the same day of delivery of the vehicle on the ground that the RTO is well known to him and since he was getting retired on 31/12/2015, so he wanted to complete the registration process by himself.  It is also stated that at no point of time, it was stated to the O.P. that the vehicle, to be registered by the complainant, will ply all over W.B or India.  It is alleged that the instant transaction being a commercial transaction, the present petition of complaint is not maintainable before this Forum.  The O.P. no.1 therefore claims  dismissal of the complaint with cost.

                     O.P. no.2 has also contested this case by filling a written objection.

                     Denying and disputing the case of the complainant, it is the specific case of the opposite party no.2 that the complainant has no cause of action to file this case against him, that the petition of complaint is not maintainable, that the petition of complaint is barred for mis-joinder of unnecessary party and that the petition of complaint is liable to be dismissed. O.P. no.2 therefore claims dismissal of the complaint.

                     To prove his case, the complainant has examined himself as PW-1 by tendering a written examination-in-chief and during his evidence, few documents were marked as exhibit 1 to 11 respectively.  During his cross-examination by the O.P. no.1, two documents were marked as exhibit 1 to 2D respectively on admission.  On the other hand, on prayer of the complainant few other documents were marked as exhibit 12- series. O.P. no.1 examined its’ manager Manas Das as OPW-1 by tendering a written examination –in-chief  and during his examination on oath, few documents were marked as Exhibit- E to I respectively. O.P. no.2 adduced no evidence.

Contd……………P/4

 

 

                                                                   

                                                                  ( 4 )

 

                                                                 Points for decision

1)Is the case maintainable in it’s present form and prayer?

2)Is the complainant is a consumer under the C.P. Act?

3)Are the O.Ps guilty for unfair trade practice ?

4)Is the complainant entitled to get the reliefs, as sought for?    

                   

Decision with reasons

For the sake of convenience and brevity, all the above points are taken up together for consideration.

Maintainability of the case has been questioned by the O.P. no.1 on the ground that the instant transaction being a commercial transaction, the present petition of complaint is not maintainable before this Forum under the Consumer Protection Act.  Admittedly, the complainant purchased the vehicle in question for commercial purpose with a view to run the said vehicle after obtaining All India Permit. According to the complainant he purchased the said vehicle for the purpose  of earning his livelihood by means of self-employment.  It is not denied and disputed that the registration of the vehicle was done for commercial purpose.  At the time of hearing of argument, Ld. Lawyer of the complainant submitted that the complainant being an uneducated and unemployed person purchased the said commercial vehicle for the purpose of earning his livelihood by means of self-employment and therefore in view of  explanation of Section 2(d) of the C.P. Act, he is a consumer under the Consumer Protection Act.  From the cross-examination of PW-1, we find that in his cross-examination the complainant himself has admitted that before purchasing the disputed vehicle, he purchased a three wheeler auto in the year 2013 and the number of the said vehicle is WB 33B 8730 and he use that vehicle for commercial purpose.  Nowhere in his evidence, the complainant has stated that after such purchase of the three wheeler auto in the year 2013, he sold the said vehicle and that he is not in possession of that vehicle. Since the complainant himself has admitted that before purchase of that vehicle, he purchased another vehicle for commercial purpose, so it cannot be said that the complainant is an unemployed youth.  The present disputed vehicle has allegedly been purchased for the purpose of earning his livelihood by means of self-employment.  When the complainant has admittedly purchased another vehicle for commercial purpose in the year 2013, so by no stretch of imagination it can be said that he could drive the said previously purchased vehicle along with the present commercial vehicle without employing driver.   It is also not the case

Contd……………P/5

 

 

                                                                     ( 5 )

of the complainant that any other member of his family was driving the previously purchased vehicle.  It is also not possible to imagine that the complainant could ply two commercial vehicles himself at a time.  In absence of such evidence, we are of the view that the complainant is neither a consumer nor the instant vehicle was purchased for self employment to cover it under the exclusion from the phrase commercial purpose.  The petition of complaint therefore must fail on this ground.

            All the points are accordingly disposed of.

            In the result, it is held that the petition of complaint is not maintainable as the complainant is not a consumer within the meaning of section 2(d) of the C.P. Act and the petition of complaint is therefore liable to be dismissed.

                                 Hence, it is,

                                                           Ordered,

                              that the complaint case no.42/2016  is hereby dismissed on contest but in the circumstances without cost.

                               Let plain copy of this order be given to the parties free of cost.

 

            Dictated & corrected by me

                    

                        President                                 Member                                    President 

                                                                                                                    District Forum

                                                                                                                 Paschim Medinipur