C.F. CASE No. : CC/10/20
COMPLAINANT : Sri Himadri Bhusan Ghosh,
S/O Late Himangshu Bh. Ghosh
Vill. Pritinagar, Road No. 2
P.O. Pritinagar,
P.S. Ranaghat, Dist. Nadia
OPPOSITE PARTIES/OPS: 1) Subhrangshu Sengupta
Ranaghat Auto Care
34 National Highway,
Ranaghat Mission Gate
2) Proprietor, M/S R D Motors Pvt. Ltd.
149 B.T. Road, Kolkata – 700058
3) The Regional Manager,
Tata Motors Regional Office,
Park Street, APG House,
2nd Building, 5th Floor,
Kolkata – 700015.
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 22nd September, 2010
: J U D G M E N T :
In brief, the case of the complainant is that he purchased a Tata Spacio Gold vehicle on the finance scheme from RD Motor Pvt. Ltd. (OP No. 2) and paid Rs. 15,000/- in cash on 29.09.07. He also handed over a cheque of Rs. 85,000/-. On 30.09.07 the car was delivered to him through their agent (OP No. 1) at Ranaghat, Nadia. After taking the car, he detected some defects in it and intimated this matter to the OP No. 1. Accordingly, as per advice of the OP No. 1 he returned the car on the next date to the delivery agent of the OP No. 2 and after the mechanical check up the car was actually found defective. OP No. 1 approached him to redeliver the car after repair which the complainant refused and asked the agent to replace this car by a fresh one. But no step was taken by the OPs for a long time. Thereafter he requested the OP No. 1 as well as the OP No. 2 either to replace the car by a fresh one or to refund the money amount of Rs. 15,000/-. But the OP No. 2 neither delivered a fresh car nor refunded the amount paid by him. As per his instruction, the cheque issued by him was not encashed by the SBI, Ranaghat Branch. As the OP did not take any step, so being despaired he moved the matter before Payradanga Kreta Suraksha & Janakalyan Samity who issued letter to the OPs to settle the matter with him by 30.02.09. The OP No. 2 by his letter dtd. 17.11.09 intimating the Samity that all the charges against him were baseless and remained silent about redeliver of the car or refund of the money. But the OP No. 1 in his letter dtd. 15.11.09 admitted the charges and expressed his inability to do anything in this matter on the ground that he was simply a delivery agent. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP No. 1 & 2 have not filed any written version in this case though notices were duly served upon them.
OP No. 3, Tata Motors Ltd. has filed a written statement in this case, inter alia, denying all the allegations made by the complainant. It is his submission that the case is not maintainable in its present form as there is no deficiency in service on the part of this OP and this is not a consumer dispute. He also submits that the case is barred by limitation as the complainant purchased the vehicle on 29.09.07, but the present case was filed in March, 2010, i.e., after a lapse of 2 years. The complainant purchased the vehicle after being satisfied and took delivery of the said vehicle also. This company is a ISO certified one and the cars produced by him are all free from quality defect. Without expert report the manufacturing defect cannot be agitated by this complainant and so this OP cannot be held liable for any independent act or omission, if any, committed by the other OPs. This OP was not involved in the transactions which happened between the complainant and the OP No. 2 and so the complainant has no cause of action to file this case against him. Hence, the case is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Is the case maintainable in its present form and nature?
Point No.2: Has the complainant any cause of action to file this case?
Point No.3: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint along with the annexed documents and the written version filed by the OP No. 3 and after hearing the arguments advanced by the ld. lawyer for the complainant and the written argument filed by the OP No. 3, it is available on record that this complainant purchased one Tata Spacio Gold car from the OP No. 2, RD Motors Pvt. Ltd. on 29.09.07 and paid Rs. 15,000/-. From another document it is available that the complainant requested the OP No. 1 & 2 to replace the vehicle on the next date of purchase as some defect was detected by him in the vehicle at which the OP declined for their not taking step in this matter. He moved the matter before Payradanga Kreta Suraksha & Janakalyan Samity. The said Samity on the basis of his representation sent a letter to the OP No. 2 & 3 on 26.09.09. In reply to that letter the OP No. 2, R.D. Motors Pvt. Ltd. intimated that the complainant paid Rs. 15,000/- in cash and 85,000/- by a cheque on 29.09.07, but subsequently the said cheque was dishonoured. The car was delivered to this complainant on 30.09.07 and on 01.10.07 the complainant met him at his workshop and intimated about the noise problem of the vehicle and asked him for replacement of the said vehicle and after repeated request this OP was agreed to deliver a new vehicle instead of the previous vehicle subject to full payment of the said vehicle at which the complainant declined. He did not even cancel his booking, as a result of which the OP No. 2 could not sell the car to any third party which caused financial loss also. So from this document we find that the complainant noticed some defect in the vehicle due to which he handed over it to the OP No. 2 with a request to deliver a new one. Admittedly, no new car was delivered by the OP No. 2 to this complainant, nor advance money of Rs. 15,000/- was returned. The OP No. 2 has not contested this case by filing any written version though notice was served upon him. On the side of the OP No. 3 it is argued that there is no expert report to that extent that the car had some manufacturing or mechanic defect. So no question of redeliver to fresh one in lieu of the original booked car does arise. But the fact is that as soon as the complainant intimated the noise problem of the car he handed over it on the next date to the OP No. 2 without making any delay with a request to redeliver a fresh one. So we don’t find any latches on the side of the complainant, rather the OP No. 2 demanded the entire money at the time of redelivery of a new car which was not at all included in the original contract. It is available on record that at the time of delivery only Rs. 15,000/- was paid in cash and a cheque of Rs. 85,000/- was handed over to the OP No. 2 by this complainant. Complainant’s prayer is very simple as we find from the petition of complaint that he has only prayed to the OP No. 2 to refund of Rs. 15,000/- at which the OP No. 2 did not comply at all. So we find a gross deficiency in service on the part of the OP No. 2 in not repaying the money or redelivering the new car to this complainant.
Ld. lawyer for the OP No. 3 has agitated in the written version as well as in the written argument that this case is barred by limitation on the ground that the car was delivered on 30.09.07, but the present case is filed on 16.02.10 and not within a period of two years. But from the documents filed by the complainant we find that this OP No. 2 intimated the Payradanga Kreta Suraksha & Janakalyan Samity vide its letter dtd. 17.11.09 that he was ready to hand over a new car to this complainant instead of previous vehicle subject to full payment of the said vehicle. As his term and condition regarding payment was not executed by the complainant, so the car was not redelivered by him nor he made repayment of the advance amount of Rs. 15,000/-. So we hold that the case is not barred by limitation as the actual cause of action arose after 17.11.09.
In view of the above discussions our considered view is that the complainant has become able to prove his case. So he is entitled to get the reliefs as prayed for. In result the case succeeds.
Hence,
Ordered,
That the case, CC/10/20 be and the same is allowed on contest against the OP No. 3 and exparte against the OP No. 1 & 2. The complainant is entitled to get refund of Rs. 15,000/- + Rs. 2,000/- for harassment and mental agony caused to him along with Rs. 1,000/- as litigation cost, i.e., in total Rs. 18,000/-. The OP No. 2 is directed to pay this decretal amount to this complainant within a period of one month since this date of passing this judgment, in default, the decretal amount will accrue interest @ 10% per annum since this date till the date of realization of the full amount. No order is passed against OP No. 1 & 3.
Let a copy of this judgment be delivered to the parties free of cost.
