Shri Debasish Bandyopadhyay, Hon’ble President.
Brief fact of this case:- This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant purchased one second hand Tata Indigo CS of Rs. 1,10,000/- vide car no. WB06 C8069 and another TATA Sumo Victa LX of Rs. 1,40,000/- vide car no. WB30 C7732 on and about April 2018 where the opposite party nos. 1 and 2were the mediator of those transaction and the complainant issued cheque in favour of opposite parties vide cheque no. 000011, Rs. 55,000/- dt. 16.4.2018 and vide cheque no. 000012, Rs. 50,000/- dt. 23.4.2018 through Bandhan Bank Savings A/c 50160014104873 and rest of the amount Rs. 5000/- was paid in cash to the opposite parties and the complainant issued cheque no. 000025 of Rs. 60,000/- in the month June 2018, and another Rs. 10,000/- in cash in the month October 2018 and two cheques 1. Cheque no. 000030 of Rs. 50,000/- and 2. Cheque no. 000031 of Rs. 10,000/- in the month January 2019 in favour of opposite parties for purchasing Tata Sumo Victa LX and the complainant intended to sale out the said Tata Indigo CS of Rs. 1,10,000/- vide car no. WB06 C8069 and approached to the opposite parties to sale it in a satisfactory price and they accept the offer of the complainant and assured them to return a satisfactory price against the said car within 3 months but after several reminders and request the opposite parties did not sale out the said car and on 30.3.2019 the opposite parties return the said car to the complainant where the complainant observed that the car is not fit for run and the complainant asked the opposite parties to fit the car for run and then the opposite parties requested to the complainant with folded hand that he is not able to carry expenses for this car from his own pocket if the complainant provide the money he will return it immediately and the complainant agreed with the proposal and gave him Rs. 40,000/- as initial payment for repair the car but the opposite parties have not yet repaired the body of the car and not done any paint on the car and when the opposite parties handed over the car for sale out in the month September 2018 and return the same on 30.3.2019 during that period the said car had run on about 7000k.m. and a case has been pending and the blue book has been seized by the police on 28.3.2019 and till to date the documents and the car are remaining in same condition and the another car which was purchased through the same mediator of Rs. 1,40,000/- and the whole payment has been made to the opposite party no. 2 but handed over a disputed car which was not fit for run and for that reason he requested the opposite parties to give a written declaration along with documents and opposite party no. 1 made a declaration on 20.3.2019 to return the car within 45 days but till date the opposite party returned only Rs. 70,000/- in cash.
Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs. 2,20,000/- and to pay a sum of Rs. 1,50,00/- as compensation for harassment, mental agony and negligence act and deficiency in service and to pay all cost of the proceedings and to give any other relief/ reliefs as deem fit and proper.
Defense Case:- The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them. These opposite parties submit that the opposite party no. 1 is a driver and deals with business car on hire and the complainant and the opposite party no. 1 are close friend and the complainant used to go here and there with family by hiring car from the opposite party no. 1 and being the wife of the opposite party no. 1 the opposite party no. 2 has no link with the said business and the complainant intended to purchase a second hand car and as such the opposite party no. 1 informed the complainant and sent to the original owner and after being satisfied with the conditions of the said two cars the complainant purchased the said cars and the complainant used to keep his car in the garage of opposite party no. 1 and after using the car, complainant put the same to the garage of opposite party no. 1 and after some months the complainant requested the opposite party no. 1 to send his car to the garage for some repairing works and an amount of Rs. 40,000/- was incurred for repairing the said car but on demand the complainant expressed that he is not in a position to pay off the said amount and requested the opposite party no. 1 to pay off the said amount to the mechanic and on this request the opposite party no. 1 do the same and there is no relation in between the complainant and opposite parties as seller and purchaser or any other relation as mediator or the opposite parties never worked as mediator to purchase the car and as such opposite parties are not liable for any offences and after being dissatisfied of the car condition the owner returned Rs. 70,000/- after using it for 3-4 months through opposite party no. 1 and opposite party no. 1 deposited the amount in the account of mother of the complainant.
For all these reasons opposite party side has prayed for dismissing this case with heaver cost.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
Argument highlighted by the ld. Lawyer of the complainant
Complainant filed written notes of argument. Argument as advanced by the agents of the complainant heard in full. The evidence on affidavit and written notes of argument of complainant are taken into consideration for passing final order.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not contested this case due to the reason best known to them. Under this position this District Commission has passed the order of ex parte hearing of this case. On this background it is also mentionworthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Mankundu, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to this provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.
All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is connected with the question as to whether there is any deficiency in service on the part of the opposite parties or not and the point no. 5 is related with the question whether the complainant is entitled to get any relief in this case or not? These two points of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of the above noted two points of consideration, there is necessity of making scrutiny of the evidence on affidavit filed by the complainant and there is also urgency to examine the documents which have been filed by the complainant. In this matter this District Commission after going through the evidence on affidavit filed by the complainant finds that the complainant has categorically described his case in the evidence on affidavit and he has not left any stone unturned. Moreover, the evidence on affidavit filed by the complainant has not been challenged and/ or interrogated by the opposite parties by filing questionnaires or interrogatories. In other words it can be said that the evidence given by the complainant remains unchallenged and uncontroverted. There is nothing to disbelieve the unchallenged and uncontroverted evidence given by the complainant. In this regard it is also very important to mention that the opposite parties have not filed any evidence on affidavit in support of their case and/ or to disprove the case of the complainant side. This factor is also reflecting that the evidence given by the complainant has not been shakened in any way. The evidence given by the complainant goes to show that there is deficiency in service on the part of the opposite parties and the complainant is entitled to get the remedies which she has prayed in this case. Thus, the above noted two points of consideration are also decided in favour of the complainant side.
In the result it is accordingly,
Ordered
that this complaint case being no. 139 of 2019 be and the same is allowed ex parte against opposite party nos. 1 and 2 but in part.
It is held that the complainant is entitled to get the claim amount of Rs. 20,000/- from the opposite parties and the complainant is also entitled to get Rs. 50,000/- as compensation for harassment, mental agony and for deficiency in the service. The complainant is further entitled to get litigation cost of Rs. 5000/-.
So, the opposite party nos. 1 and 2 are directed to pay the said amount of Rs. 75,000/- to the complainant within 2 months from the date of this final order. Otherwise the complainant is given liberty to execute this order as per law.
In the event of failure to comply with the order the opposite parties shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 60 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties or their ld. Advocates/Agents on record by hand under proper acknowledgement or sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
