Date of Filing:  09.01.2019                                                       Date of Disposal:   09.06.2022. 

Complainant                : Tapas Chakrabortty, S/O Bholanath Chakrabortty, Vill.& P.O. Paratal,      P.S. Jamalpur, Dist. Purba Barddhaman, Pin 713408.

-VERSUS -

Opposite Party            :1.Sumita Roychowdhury, W/O Aniruddha Roychowdhury, residing at       N. Basu Road, Barddhaman (Sadar), P.O. & P.S. Burdwan, Dist. Purba Barddhaman,  Pin-713101.

2. Auto Style,  Rep.by its Proprietor having its office at G.T. Road, Ghourdourchatti (Near United Bank), Town & P.S. Burdwan, P.O. Sirpally, Dist. Purba Bardhaman, Pin-713103.

Present                                   : Mohammad Muizzuddeen             -Hon’ble President.

                                                : Mrs. Lipika Ghosh                         - Hon’ble Member.

Appeared for the Complainant           : Sri Suvro Chakraborty                      Ld. Advocate.

Appeared for the Opposite Party        : Sri Sri Santi Ranjan Hazra                Ld. Advocate.

FINAL ORDER

            On 09.01.2019 the complainant Tapas Chakrabortty lodged this complaint u/S 12 of the Consumer Protection Act, 1986 against the Opposite Parties (OPs).

            The case of the complainant, in brief, is that on 06.04.2018 the complainant, after inspecting a vehicle bearing No. WB41G 4036, paid Rs.1,39,300/- to the OPs  and it was agreed between the parties that at the time of transferring the name in registration certificate, tax token, insurance policy and permit etc, the complainant will pay remaining amount of Rs.24,700/- as both the parties agreed that the value of the vehicle was Rs.1, 64,700/- . OP No.1 is the actual owner of the said vehicle. After payment of such amount, the OPs delivered the vehicle to the complainant and assured that within one month they would do necessary official works,  as the name of the OP No.1 will transfer into the name of the complainant. Since, delivering the said vehicle the OPs never took any step to transfer the name from its old owner to the name of the complainant and the complainant was compelled to pay the premium amount of insurance, certificate for fitness and tax of the vehicle. As and when he contacted with the OPs, they only gave some false assurance to the complainant by stating that they would do in respect of the transfer of the name in short interval but they did nothing. In such circumstances, the complainant is neither able to ply the vehicle nor got the usufruct of the vehicle. These conducts of the OPs are deficiency in service and unfair trade practice.

            Upon this background, the complainant prayed for passing necessary order by directing the OPs to take appropriate steps to transfer the name from the OP No.1 to the name of the complainant in the registration certificate, permit, tax token, and insurance policy. He also prayed for compensation of Rs.1, 00,000/- towards mental pain, agony and harassment along with litigation cost of Rs.20, 000/-.

            OP Nos. 1 & 2 have  contested the case by filing two separate written versions denying all the material allegations contending inter alia that the complainant has no cause of action for the case and that the case is defective due to  non-joinder and mis-joinder of parties and that the case is not maintainable in law and that there is no relationship of ‘consumer’  between the complainant and  the OP No.1 and that the OP No.1 is not service provider u/S 2(1)(d) &(o) of the Consumer Protection Act, 1986.

            The specific case of the OP No.1 is that the complainant stated that he may contact with the OP no.2 in the first week of April, 2018 for the purpose of purchasing the vehicle but from the documents furnished by him,  it would be transparent that the complainant submitted documents before the R.T.A. on 29.12.2017. Actually, the OP No.1 purchased the vehicle by taking loan from Allahabad Bank, Nutunganj Branch by way of hypothecation agreement.   As she could not ply the vehicle in profitable manner, she decided to sell out the said vehicle for purpose of repayment of loan and one Shankar Ghosh, S/O Late Ananda Prosad Ghosh, resident of Katwa, Madhabitala , P.S. Katwa , Dist. Purba Bardhaman agreed to purchase the said vehicle from her and on 04.05.2017  she took Rs. 2,50,000/- from him as the price of the said vehicle and on the same day she repaid the loan and obtained NOC from the  concerned Bank. On the same day, the OP No.1 handed over the said vehicle along with all papers in favour of said Shankar Prosad Ghosh. That after some days, said Shankar Prosad Ghosh approached the OP No.1 that it is not required to perform the necessary formalities and to execute documents towards transferring  the vehicle in his name as he desired to exchange the vehicle with a concerned namely Auto Style  i. e the OP No.2. Thereafter, all on a sudden, on 27.06.2018 said Shankar Ghosh again approached to the OP No.1 that the said Auto Style is going to sell the   vehicle to Tapas Chakrabortty and requested her to sign on a non-judicial stamp paper of Rs.20/- . This OP No.1 after going through the papers objected to sign over the same as there were some discrepancies and ultimately the OP No.1 put her signature on the paper on several requests on the part of the said Shankar Prosad Ghosh. Said Shankar Prosad Ghosh requested the OP No.1 to be present before the R.T.A office and signed on papers as per instruction of the staff of the said office and finally discharged the duties towards transfer of vehicle in the name of the complainant. Therefore, there were no previty of contract in between the complainant and the OP No.1and the OP No.1 never took any money from the complainant and that will be transparent from the documents filed by the complainant himself.

            Upon this background, she prayed for dismissal of the case.

            The case of the OP No.2 is that the value of the disputed vehicle was assessed                     Rs.1, 64,700/- including the charges of transfer of ownership i.e Rs. 3,700/- and Rs.11,000/- towards surrender of permit. The complainant only paid Rs.1, 30,000/- to the OP No.2 and acknowledged receipt was issued and the OP No. 2 told the complainant that unless and until the remaining due amount of Rs.34,700/- was paid by the complainant, it was not possible for this OP to complete the official formalities of transfer of ownership in favour of the complainant from the previous owner and to surrender the permit within the validity period and if it was delayed and due to such reasons if the validity of the permit of the said vehicle has been expired , then it was not possible for this OP to complete the official formalities to surrender the permit. He further submitted that after several requests, the complainant issued a cheque bearing No. 880000 dt. 20.05.2018 amounting to Rs.26,000/- to this OP No.2 on condition not to deposit the said cheque before the Bank for encashment because the complainant offered to pay the said amount of Rs.26,000/- to this OP by cash in favour of making payment of the said amount , he would take return of the said cheque  from this OP and ultimately the validity  of the said cheque was almost going to expire and then this OP asked the complainant that if he would not pay the said amount of Rs.26,000/- by cash as early as possible then the OP No.2 would not have no other alternative but to deposit the said cheque before the Bank for encashment but that time also the complainant told this OP that there was no available balance in the said account of the complainant to pay Rs.26,000/- within 2 or 3 days . But he did not pay the said amount and ultimately the validity date of the cheque was expired on 22.05.2018 and the complainant did not pay the due of Rs.34, 700/- to the OP and as such the OP could not complete the paper works to transfer the ownership. There is no question of deficiency in service and unfair trade practice on the part of the OP.

            Upon this background, this OP prayed for dismissal of the case.

                                                  Decision with Reasons.

            In order to prove the case, the complainant himself filed evidence-on-affidavit. The OPs did not file any questionnaire to the evidence of the complainant.

            In order to prove their case and to disprove the case of the complainant, the OP No.1 has filed evidence-on-affidavit and the Written Version filed by the OP No.2 has been treated as evidence-on-affidavit and the complainant filed two separate questionnaires against the evidence of OP No.1 and OP No.2.  OP No.2 submitted reply against the questionnaire filed by the complainant to him but the OP 1 did not file any reply to the questionnaire filed by the complainant against the OP No.1.

            On perusal of the oral evidence of both sides, it is found that the complainant purchased the vehicle in question from Auto Style (OP No.2) as per the Xerox copy of the Pad of OP No.2, seller is one Sayedul Siddique and Rs.26,000/- was due. It was issued on 06.06.2018 and from the papers issued by M.V. Department, Burdwan, it appears that they received papers and file from the complainant which was valid up to 31.08.2018 and 31.12.2018. Again from the Xerox copies of the non-judicial stamp paper it is found that the OP No.1 Sumita Roychowdhury made an agreement with the complainant to the effect that she was selling the said vehicle in question after receiving the whole purchased money but permit was valid up to 02.12.2018 and she was also agreed that after due discussions she will arrange papers and permit in favour of the complainant. One Shankar Ghosh also put his signature there. From the Xerox copy of another non-judicial stamp paper,  it is found that on 04.05.2019 the OP No.1 sold away the vehicle in question to one Shankar Ghosh but Shankar Ghosh could not produce any paper deposited to the M.V. Department, Burdwan. From another Xerox copy of Central Motor Vehicles Rules, 1989 2[FROM 30] [see rule 55(2) and (3)] , it is found that OP No.1 Sumita Roychowdhury sold away the vehicle in question to Tapas Chakraborty i.e Tapas Chakraortty is the transferee and Sumita Roychowdhury is the transferor; but the date of transfer of the vehicle has not been mentioned  and there is no paper to show as to whether the said transfer had been effected or not. But the Xerox copy of the non-judicial stamp paper dt. 27.06.2018 disclosed that Sumita Roychowdhury sold away the vehicle in question to Tapas Chakrabortty . Therefore, the subsequent documents i.e. Xerox copy of the non-judicial stamp paper shows that on 04.05.2019 she sold away the vehicle to Shankar Ghosh cannot be believable as the said non-judicial stamp paper was purchased on 18.10. 2006 and once the vehicle is sold away earlier to the complainant cannot be sold away subsequently to Shankar Ghosh (other person) as the OP No.1 has already sold away the same and lost her right to sold the same again. But no paper is forthcoming to show that the OP No.1 Sumita Roychowdhury was the owner of the said vehicle at the time of transferring the same. According to the complaint and the Written Notes of Argument of the complainant, it is found that the complainant had purchased the vehicle in question for earning his livelihood which vehicle is a luxury taxi and it was purchased for the commercial purpose. In this connection, the Ld. Advocate for the OPs submitted that the vehicle was purchased for commercial purpose and provisions of the Consumer Protection Act i.e as per Section 2(d), the consumer is not a ‘Consumer’ at all. But according to the explanation of Section 2(d) ‘commercial purpose’  does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

            In the instant case, the complainant could not produce any documents that he purchased the commercial vehicle for the purpose of earning his livelihood by means of self-employment. Even he could not produce any driving license of himself or any other person to show that he engaged a person to drive the vehicle on his behalf with a valid driving license of the said person to earn his livelihood.

Ld. Advocate for the OP cites some decisions reported in 2015 O Supreme (SC)1121, 1995 0 Supreme(SC) 502. 1993 2CPR 531, 1995 0 Supreme (SC) 1134. Perused those documents.

Furthermore, the evidence of both sides regarding dues of huge money is oathed vs. oathed and the question raised whom do we believe , as because the OP No.2 stated that he sold away the vehicle to the complainant and huge money was due to him. In this case, the OP No.2 once sold away the vehicle and the OP No.1 then again sold away the said vehicle to the complainant and there is no paper to show, who is the actual owner of the vehicle in question for the purpose of transferring the same to the complainant.

Under the above facts and circumstances, we are of opinion that the provisions of Consumer Protection cannot be attracted in the present case. Furthermore, no paper is forthcoming to us to show that the vehicle in question was sold away according to either Sale of Goods Act or Law of Contract and M.V. Act . Therefore, the case must fail.

Hence, it is

                                                  ORDERED

That the Consumer Complaint No. 5/2019 be and the same is hereby dismissed on contest against the OPs.

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

     Dictated & corrected by me.

                      President

     D.C.D.R.C , Purba Bardhaman.

                   Member                                                              President

     D.C.D.R.C , Purba Bardhaman.                        D.C.D.R.C , Purba Bardhaman.