Ld. Advocate(s)
For Complainant: Subhasis Roy
For OP/OPs : Raja Bhattacharya
Date of filing of the case :07.03.2017
Date of Disposal of the case :01.06.2023
Final Order / Judgment dtd.01.06.2023
Complainant above name filed present complainant u/s 12 of Consumer Protection Act 1986 praying for direction to the OP to pay sum of Rs. 4,72,458/- being a excessive amount taken by the OP from complainant interest @ 6% per annum over the said amount, compensation amount of Rs. 5,00,000/- and cost of the case.
He alleged that he purchased one new vehicle for his own from the OP no. 1, authorised dealer of OP no. 2. OP no. 1 used to look after the business of OP no. 2 for the district of Nadia. Complainant had two private vehicles namely Maruti A Star ZXI Model and another Maruti Alto LXI model. Complainant decided to purchase one Scorpio.
Thereafter, he talked with OP no. 2, the reprehensive of OP no. 1. It was decided by the OP o. 1 and 2 that new vehicle would be sold in exchange of aforesaid 2 old vehicles belonged to complainant.
OP no. 1 gave one pro forma in voice where total on road price including insurance road tax and registration was mentioned as Rs.15,34,511/-
OP no.2 told that value of 2 old vehicles amounting to of Rs. 2, 70,000/- would be refunded by the OP no.1. or would be adjusted against the value of new vehicle to be purchased by the complainant. OP no. 2 being representative of OP no. 1 gave one written consent in the Letter Head of OP no. 1 on 26.08.2016.
Complainant applied for loan for purchase of vehicle with SBI and Bank authority sanctioned loan of Rs. 13,00,000/- in favour of the complainant.
After getting sanctioned of that load, complainant paid sum of Rs. 2,34,297/- on 29.08.2016 to the OP no. 2 and also gave one cheque for Rs. 78,000/- in favour of the OP no. 1.
He got two money receipts dtd. 29.08.2016 of which one was duly signed by OP no. 2 and another was duly signed by OP no. 1. On that date bank authorized deposited sum of Rs. 13,00,000/- in favour of the OP no. 1 from the loan account.
By this way complainant paid total sum of Rs. 16,12,297 to the OP for the new Scorpio Vehicle apart from that he handed over two old vehicles.
Complainant was entitled to get Rs. 2, 70,000/- from the OPs.
OP no. 1 delivered the vehicle to the complainant OP no. 2 issued one tax invoice on 29.08.2006 showing the value of the vehicle is Rs. 13,60,677/-.
Subsequently, registration certificate of the new vehicle vide no. WB 52 AD 4654 together with tax receipt value of Rs. 82,362, insurance certificate showing premium Rs. 66,500/- were handed over to the complainant. In the form of invoice estimated value of on road price of the vehicle was mentioned as Rs. 15,34, 511/-.
Complainant paid total sum Rs.18,82,297 of which 2,70,000/-as exchange value of old 2 vehicles, value was paid by complainant partly in cash and through bank.
But OP give receipt including tax in voice, road tax and insurance for 15, 09,839/-.
OP no. 1 contested the case by filing written version. He denied the entire allegations of the petition of complain. He contended that claim is not maintainable, claimed is barred by section 2(d) of CPA1986. Complainant has no locus standi to file the case, claim is mala fide and misconceived. He further contended that complainant paid Rs. 13,00,000/- through SBI and Rs. 78,000/- through cheque.
But no extra payment made by the complainant till date. He denied the fact that OP no. 1 sold vehicle Scorpio S-10 BS 4 in exchange of two old vehicles of the complainant.
Complainant paid Rs. 16,12,297/- to the OP no. 1 . OP no. 1 provided one Scorpio S-10 BS 4 value of Rs. 13,60,677/- + TCS TCR value of Rs. 13,606/- + Rs. 5,500/- = Rs. 19,106/- i.e total Rs. 13,79,783/-.
After taking the entire amount of Rs. 13, 78,000/- OP no. 1 delivered vehicle Scorpio S 10 BS 4 to the complainant along with tax in voice and TCS TCR dtd. 29.08.2016. He prays for dismissal of the cost.
TRIAL
During trial complainant did not file any affidavit-in-chief. He also filed certain documents through firisti.
DOCUMENTS.
Complainant files following documents such as:
- Documents issued by OP no. 1 dtd. 25.08.2016 one sheet.
- Declaration dtd. 26.08.2016 issued by Alauddin Dafadar one sheet original.
- Tax paid in voice dtd. 29.08.2016 on sheet orginal
- Money receipt dtd. 29.08.2016 amount to Rs. 1,34,297/-. One sheet original.
- One money receipt dtd. 28.08.2006 amounting to 98,000/- one sheet original .
- DELIVERY ORDER OF SCORPIO S 10 BS4 issued by Bank Manger SBI Betai dtd. 29.08.2016.
- Statement of loan amount for the period of 01.08.2016 to 31.08.2016.
- Xerox copy of documents dtd. 26.08.2016 by Alauddin Dafadar.
- Xerox copy of documents dtd.29.08.2016
- Xerox copy of money receipt dtd. 29.08.2016 amounting to Rs. 2,34,297/-.
- Xerox copy of money receipt dtd. 29.08.2016 amounting to Rs. 98,000/-.
- Xerox copy of bank statement.
- Xerox copy of Bank in voice.
- Xerox copy of certificate of registration.
- Xerox copy of tax token.
- Amounting Rs.
- Xerox copy of insurance policy amounting to Rs. 66,800/-.
BNA
Complainant not yet filed BNA and OP no. 1 filed BNA.
DECISION WITH REASONS
We have carefully gone through the petition of complainant, W/V of OP no. 1 and documents on record. We have considered same.
It is the allegations of the complaint that he handed over one Maruti A Star model car ( manufacturing in the year 2009) another Maruti Alto LXI Model( Manufacturing in the year 2002) to the hand of the OP no. 1 and 2.
On that time OP no. 2 issued one declaration dtd. 26.08.2016.
We have carefully gone through said document dtd . 26.08.2016 issued by OP no. 2.
He contended therein that he is the staff of OP no. 1, he took one Maruti A Star. Engine no. K 10 BN 1083274 chachis no. MA 3EPDEIS00183772 and he also took another car i.e Maruti Alto LXI (2002) Engine no. F8DN3008987, Chachis no. MA3EYD81500 165364 WB 66B4074 value of aforesaid 2 cars is Rs. 2, 70,000/-.
OP no.1 and 2 through cheque till date not yet refunded the aforesaid amount in favour of the complainant as per the aforesaid assurance dtd. 26.08.2016.
On perusal of tax invoice dtd.29.08.2016 we find that OP no. 1 sold MAHINDRA SCORPIO S10 2.2 MHAWK IH 2WD 7S vehicle to the complainant amounting to Rs. 13,60,677/- and also from money receipt dtd. 29.08.2016 that complaint paid Rs. 2,34,297/- we also find from money receipt dtd. 29.08.2016 that complainant paid Rs. 78,000/- in favour of the OP no. 1.
On perusal of Letter of SBI dtd. 29.08.2016 we find that they by the said letter informed OP no. 1 that they sanctioned loan of Rs. 13,00,000/- in f avour of the complainant.
On perusal of loan account dtd. 29.08.2016 of SBI i.e OP no. 3 we find that they paid Rs. 13,00,000/- in favour of the OP no. 1.
Accordingly, we find that Rs.16,32,297/- has been paid in favour of OP no. 1.
OP no. 1 in his W/V stated that complainant only paid Rs. 13,00,000/- through SBI and Rs. 78,000/- through cheque. He denied receipt of Rs. 2,34,297/- but copy of said receipt was produced before this Commission at the time of filing this case.
It is clear before us that he did not state in his W/V that aforesaid document is forged or manufactured documents.
He is remain silent. He did not make any specific statement regarding the said money receipt.
In the situation we have no other alternative but to believe the aforesaid receipt. Accordingly, we are of the firm view that said receipt was duly issued by OP no. 1.
Accordingly, we are of the firm view that complainant paid cash of Rs. 2,34,297/- in favour of the OP no. 1.
Accordingly, we find that complainant paid Rs.16,12,297/-.
On perusal of the aforesaid vehicle and payment of road tax of the said vehicle we find that complainant produced Xerox copy of road tax amounting to Rs. 82,362/- insurance premium amounting to Rs. 66,800/-.
On perusal of estimated dtd. 25.08.2016 of the aforesaid vehicle we find that complainant mentioned value of the said vehicle is Rs. 13,60,677/- insurance premium is Rs. 74,398/- road tax and registration Rs. 80,330/- TCS Rs. 13,606/- and T.C.R 5,500/- i.e total 5,34,511/-
Accordingly, we find that OP no. 1 claimed value of the car is Rs. 13,60,677/- and other charges Rs 1,73,834/-.
We find from the record that OP no. 1 gave registration certificate, payment of tax and payment of insurance premium to the complainant.
Accordingly, we find that hs is entitled to Rs. 15,34,511/-.
But we find from the record that OP No. 1 took in total amount of Rs. 16,12,297/- .
Accordingly, OP no. 1 took extra amount of (Rs. 16,12,297- Rs15,34,511/- )= Rs. 77,786/-.
In view of the aforesaid discussion we are of the firm view that complainant took excessive amount of Rs. 77,786/- from the complainant.
OP no. 1 failed to give any satisfactory explanation in his W/V as to why he took aforesaid extra amount from complainant.
Accordingly, we are of the firm view that complainant is entitled to refund of the said amount from the OP no. 1.
On perusal of the documents issued by OP no. 1 dtd. 26.08.2016 we find that he stated that he received the two vehicles from the complainant and Rs. 2,70,000/- as value of aforesaid 2 vehicle would be paid to the complainant but OP no. 1 failed to give any documents in support of the fact that they paid aforesaid amount of Rs. 2,70,000/- in favour of the complainant.
Accordingly, we are of the firm view that complainant is entitled to Rs. 2,70,000/-, the value by aforesaid two vehicles from the OP no. 1 and 2.
Having regard to the aforesaid discussion we are of the firmed view that complainant has established his grievance.
We find from the record that complainant is a consumer and OP no. 1,2 and 3 are service provider.
In the result present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against OP no.1 and allowed ex-parte against OP No. 2 and dismissed ex-parte against OP no. 3 with cost of the 5,000/- to be paid by OP no. 1 in favour of the complainant.
OP no. 1 is directed to refund Rs. 77,786/- in favour of the complainant within 30 days from this date of order failing which aforesaid amount shall carry interest @ 9 % per annum from this date to till the date of actual payment.
OP no. 1 and 2 are further directed to pay Rs. 2,70,000/- in favour of the complainant within one month from this date failing which aforesaid amount shall carry interest @ 9 % interest from this date to till the date of actual payment.
OP no. 1 and 2 are directed to comply the aforesaid order within one month from this date of order failing which the complainant shall have liberty to put this order into execution.
Let a copy of this order be supplied to both the parties as free of cost.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) .................................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
WE concur,
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MEMBER MEMBER
(NIROD BARAN ROY CHOWDHURY) SMT MILLIKA SAMADDAR
