Date of filing : 27.05.2019

Date of Judgment : 30.12.2020

Mrs. Sashi Kala Basu, Hon’ble President.

          This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Subhamoy Karmakar alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Suvankar Acharjee and (2) Tapan Acharjee.

            Case of the Complainant, in short, is that OP No.1 is the proprietor working for gain under the name and style M/S Suvankar Auto Centre and OP No.2 is also attached with the OP No.1. Complainant placed an order for a motorbike namely Yamaha FZS25 (Black in colour) on 21.11.2018 with the OPs for a total amount of Rs.1,55,134/- and made an advance of Rs.10,000/- in cash towards booking. A receipt was duly issued and the OPs assured that the motorbike will be delivered on 3.12.2018. Thereafter, again, Complainant paid a sum of Rs.80, 000/- through cheque dt.23.11.2018. Thus he paid total amount of Rs.90, 000/-. But the OP failed to supply the motorbike on the date as agreed. So, Complainant on 27.12.2018 served a letter upon the OPs cancelling the order. But OPs prayed for some time and ultimately on 29.1.2019 after receiving Rs.14, 679/- in cash they delivered the motorbike, but, without any document of insurance or registration. The Complainant was assured that the registration, insurance and other obligations of the motorbike will be completed by the OPs within February, 2019 and will hand over all the documents including helmet and leg guard. But, in spite of the said assurance no document relating to the insurance, registration, tax token, etc. were handed over to the Complainant by the OPs. Ultimately, on 4.4.2019 Complainant sent a legal notice asking the OPs to complete the entire process of registration and handing over the documents relating to tax token, insurance, number place, etc. But the OPs paid no heed. Thus this complaint is filed by the Complainant praying for direction upon the Ops to refund the sum of Rs.1,04,679/- to the Complainant along with total EMI amount of the bike loan, to pay compensation of Rs.3,0,000/- and litigation cost of Rs.25,000/-.

          Complainant has filed the documents i.e. money receipt dt.21.11.2018 showing the booking of the bike, bank statement showing payment of Rs.80,000/- through cheque, copy of letter dt.27.12.2018 sent by the Complainant to the OPs, challan dt.21.9.2019 regarding delivery of the motorbike. A money receipt dt.21.9.2018 showing further payment  of Rs.14,679/- and the legal notice dt.9.4.2019.

            On perusal of the record, it appears in spite of service of the notice OPs did not take any step. Thus, vide order dt.6.12.2019 the case was directed to be proceeded ex-parte.

            So, the following points require determination :-

            1) Whether there has been any deficiency in service or unfair trade practice on the part of the OPs.

            2) Whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

            Both the points are taken up together for a comprehensive discussion in order to avoid repetition.

            Complainant has claimed that he booked a motorbike namely Yamaha FZS25 (Black in colour) from the firm namely M/s Suvankar Auto Centre of which OP No.1 is the proprietor and OP No.2 is also associated with the OP No.1. A total amount of Rs.90,000/- was paid but the bike was not delivered on stipulated date i.e. on 3.12.2018. So, Complainant sent a letter cancelling the order and requested for the refund but OPs requested for time and ultimately on 29.01.2019 delivered the motorbike on receiving further amount of Rs.14,679/- in cash. But, did not handover any document such as Tax Token, insurance and registration etc.

            In order to substantiate his claims, Complainant has filed a receipt dt.21.11.2018 issued by Suvankar Auto Centre showing payment of Rs.10,000/-, a bank Statement showing further payment of Rs.80,000/- by cheque on 23.11.2018. However as the motorbike stated in the receipt dt. 21.11.2018  i.e.  FZS25 (Black) was not delivered, Complainant by sending a letter dt.27.12.2018 cancelled the order. Said letter is filed by the Complainant. In the said letter there is also an endorsement by Suvankar Acharjee/OP No.1 that he would return Rs.90, 000/- within 15 days from 27.12.2018. But, thereafter, on 29.01.2018 according to Complainant, OP delivered the motorbike. It is also evident from the challan dt.29.1.2019 that the motorbike FZS25 Yamaha, black in colour was delivered with remarks there in by OP that vehicle delivered with ‘OK’ condition without insurance or registration. So, it is very clear from the said document that no documents relating to the said motorbike was delivered excepting the challan. It is settled law that to ply a vehicle on the road, it has to be registered and insured. Even for a owner of the vehicle, to take step towards the process of registration, he needs sale certificate, road-worthiness certificate and insurance certificate. The OP was accountable to handover these documents. In the notice dt. 9.4.2019 sent by the Complainant to OPs, it is specifically stated that OPs assured to the Complainant that they will complete the tax token, registration, insurance, etc. and will handover those documents within February, 2019 and thereafter when it was not done, further promised to complete it within 15^th March, 2019, but, in spite of that no document was handed over to the Complainant. So, it is evident that OPs assured that they themselves would take the step towards process of registration of the motorbike but did not do it. It is also claimed by the Complainant that OP disconnected the digital display of the motorbike due to which it is not working properly. A money receipt dt.29.01.2019 is also filed disclosing that Complainant paid further sum of Rs.14, 679/- on the date of delivery of motorbike.

            Since Complainant could not ply the motorbike in the absence of the documents of registration as well as insurance, the vehicle is of no use. So, as apparent from the documents filed by the Complainant especially the notice dt.9.4.2019 that OPs would take step for registration and would handover the documents relating to the motorbike to the Complainant to ply it on the road but the same has not been handed over, there has been unfair trade practice on the part of OPs and thus Complainant is entitled to the refund of the sum paid by him along with interest (In the form of compensation) especially when no contrary material is forthcoming before this Commission to counter or rebut the claim of the Complainant.

            Hence

                                  Ordered

            CC/248/2019 is allowed ex-parte. Opposite parties are jointly and severally directed to pay Rs.1,04,679/- to the Complainant along with interest on the said sum @ 9% p.a. from 23.11.2018 to till this date within two months from this date failing which the sum shall carry interest @ 9% p.a. till realisation. On payment of said sum, Complainant shall return/handover the motorbike FZS25 Yamaha (Black) to the OPs on the same day.

            OPs are further directed to pay litigation cost of Rs.10, 000/- within the aforesaid period of two months.