Sri Partha Kumar Basu, Hon’ble Member.
The instant complaint is filed u/s 35 of the Consumer Protection Act, 2019 for negligence and deficiency in services against the OP1 vehicle dealer and OP2 financier with a prayer for a direction on OP1 to refund the total amount paid by the complainant in respect of the purchased vehicle along with a compensation of Rs.2,00,000/- and a litigation cost of Rs.20,000/-. The complainant also prays for a direction on the OP 1 to refund the loan amount for repayment to the Bank along with interest.
The brief fact of the case is that the complainant wanted to start a business for maintaining his livelihood through self-employment and accordingly availed financial assistance in the form of loan for purchase of a commercial vehicle which was booked on 17.10.2019 with a full payment of Rs.8,05,745/- to OP1 dealer through bank loan. The said vehicle was delivered to the petitioner on 06.03.2020 after realising its full value. It is alleged by the complainant that at the time of booking of the said car, the OP-1 dealer took responsibility to provide all necessary documents in respect of the vehicle by agreeing to provide the registration certificate of the vehicle, but failed, although the OP1 accepted Rs.22,500/- from the complainant on account of registration charges. No payment receipt for the registration amount was supplied by the OP1 as alleged. It is also alleged that due to not having road registration certificate, the vehicle is lying unused, while the complainant has to regularly pay off the EMI. The complainant communicated by letter dated 10.11.2020 to OP1 stating the difficulties, but the OP did not take any step. It was followed by a letter from the advocate of the Complainant dated 05.04.2022 seeking either the Registration Certificate or refund of the price of Rs.8,05,745/- that was advanced to the OP1. The complainant allegedly suffered due to deficiency in service and negligence of the OP-1 dealer and the said car is still lying unused though full value of it was already paid off.
In support of his contention the complainant files exhibits as per running page No.5 to 20 along with complaint petition that includes Bank EMI document for Rs.16,104/- with interest @14.25% and statement form for a loan of Rs.5,82,490/-. The complainant also annexed delivery challan dated 06.03.2020, proforma invoice from dealer dated 05.02.2020 for a total amount of Rs.8,05,745/- which includes vehicle ex-showroom price, road tax, registration cost for Rs.22,500/-, insurance certificate, temporary registration, handling, fastag, hypothecation charges etc..
On the other hand, the OP-1 contested the case by filing W/V and BNA which states inter alia that the complainant himself took out the vehicle from the show room of the OP1 dealer at his own risk, without registration and there has been no lapse and deficiency on the part of the OP1. The OP1 claimed that an undertaking dated 06.03.2020 from the complainant cum purchaser has been annexed wherein complainant took liability and responsibility for any consequences for taking out the car on road without registration. The OP1 denied any liability for non-registration of the vehicle as the authorities stopped registration of the particular diesel driven BS IV model from 01.05.2020 leading to non-registration of the vehicle on which there is no control of the OP1. The OP-1 filed defence exhibits in support of their contention (non serialized) which includes voters card (ex-A), delivery certificate dated 16.06.2020 (ex-B), sale invoice (ex-C), Application for Registration of Motor Vehicle cum Form-20 (ex-D) Aadhaar Card, delivery checklist dated 06.03.2020 (ex-E), letter of undertaking by the complainant dated 06.03.2020 (ex-F) accepting that the purchaser cum complainant would be responsible for registration of the vehicle, advocate’s letter from complainant dated 05.04.2022 (ex-G) and the reply of the OP-1 dealer dated 05.05.2022 (ex-H) to the complainant on the advocate’s notice.
The OP1 dealer contested the case which had been running ex-parte against OP2 financier as per order dated 20.09.2022. Both sides filed BNA. Arguments were heard in full on 07.12.2023. The submissions so put forth by both sides were gone through and the materials on records were examined along with pleading of both the parties with rival contentions.
The complainant booked a new vehicle and paid full consideration money in advance. The complainant in support of his case adduced evidence on affidavit alongwith a number of documents. The payment and purchase proofs, delivery note, proforma invoice etc. were issued by the OP1 to the complainant which were gone through alongwith other records of the case. The documents and exhibits carries impeccable evidentiary value that were never contested by the either side. As per the evidence on affidavit, the complainant as a purchaser of the said commercial vehicle wanted to avail loan for his livelihood, hence the complainant is a consumer of the OP Company, u/s 2(7)(i) and (ii) : ‘explanation note (a)’ of the Consumer Protection Act 2019.
The OP contested whether the instant complaint is maintainable before this Commission on the ground of territorial jurisdiction or not. Since the complainant has filed a self attested KYC document in the form of Aadhaar card (different enrolment no., in support of his current residential address as per complaint petition, hence the petition in hand, qualifies for adjudication before this commission as per exhibit on affidavit, although the OP1 exhibited one more copy of Aadhaar card which depicts a different address, that might be older document. Hence the consumer gets the benefit of doubt and objection of the OP1 on maintainability ground becomes untenable.
In their W/V, the OP also contested maintainability of the complaint petition on the ground of limitation act contesting that the instant petition had been filed after more than 2 years. But a careful scrutiny of documents shall reveal that the vehicle was delivered as per delivery note dated 06-03-2020 which was followed by cancellation letter dated 10.11.2020 issued by the purchaser cum complainant. Since the grievance of the complainant is ongoing, hence filing of this complaint case in hand on 31-05-2022 is falling well within the span of 2 years which includes continuous cause of action. Hence the objection of the OP1 on the ground under Limitation Act is not tenable.
We have given our thoughtful consideration to the contentions raised by the ld. counsel for the parties. Admittedly, the said vehicle was purchased by complainant from the OP 1. The said vehicle also got insured. OP 1 has not denied this fact. It is the plea of the complainant that though OP1 had received amount for preparing registration of the said vehicle from the complainant but did not provide the same. Perusal of record shows that there is proforma invoice dated 05.02.2020 and payment proof vide receipts dated 17.10.2019 and financier bank statement dated 27.02.2020 from complainant for sale value, insurance and registration. Perusal of ‘sale certificate’ dated 16.06.2020 issued by OP1 dealer (ex-B) shows that the vehicle in question was purchased by the complainant as a ‘Luxury Cab’ as mentioned in the item Sl (1) : “Class of vehicle” i.e. commercial vehicle and OP1 dealer by issuing the said ‘Sale certificate’ dated 16.06.2020 was aware of it. The OP1 also failed to produce on record to rebut this evidence as well as the proforma invoice dated 05.02.2020 wherein amount for both temporary and road tax + registration charges has been shown. Though it is mentioned in the proforma invoice that the issue of registration is at the sole discretion of the Registering authority but no cogent evidence proving that the dealer applied for the said registration before the competent authorities within the allowed timeframe has been cited by OP1.
Therefore we are inclined to hold that OP1 was liable for applying for registration or would have refunded the entire amount to purchaser/financier by taking back the vehicle. Perusal of record shows that it is the case of OP 1 that dealer took money but failed to apply for permanent commercial registration certificate, though dealer issued sale certificate dated 16.06.2020 of the vehicle as ‘Luxury Cab” If the registration of this particular vehicle was pending or in process or became redundant due to BS norms with effect from 01.04.2020 (not 01.05.2020 as envisaged in W/V), then the sales invoice should have been cancelled. Failure to apply for the registration and road Tax in time, just after delivery of vehicle on 06.03.2020 and before the deadline of 31.03.2020 as per prevailing BS norms therefore tantamount to imposing a too harsh loss upon the buyer.
Complainant faced financial loss after paying for buying the goods. But the OP1 did not supply or refund the cost. Being a seller of the products and a service provider, the OP failed to extend proper services. Hence the complainant is entitled to get relief as prayed for deficiency in services.
Hence, it is
ORDERED
That the instant complaint case be and the same is allowed ex-parte against the OP with cost.
- The OP1 is directed to refund Rs 8,05,745/- within 60 days from the date of this order after deducting the cancellation charges of Rs 5,000/- + GST and the Complainant will return the vehicle to the OP1 on as is where is basis simultaneously,
- The OP 1 is also directed to pay to the complainant a compensation in the form of simple interest @ 9 % per annum from the date of the payment till the date of final realization of all the payments.
- Further, the OP 1 is directed to pay the litigation cost of Rs.5,000/- (Rupees Five thousand) only within 60 days from the date of passing this order.
All the above said payments in terms of this order will be made by the OP1 to the complainant within Sixty days from the date of this order I/D a simple interest @ 12% per annum will get accrued till the date of final realisation.
The complainant will be liable for return of the entire amount of loan taken till date from the OP2 financier bank, at once, after receipt of the vehicle refund amount from OP1 dealer.
If the Opposite Party no 1 fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.
Ld. Member Smt. Shampa Ghosh joined on 12.12.2023 and did not take part in the hearing of argument of this case and as such, she did not sign the Judgement.
Let a plain copy of this Order be provided to both the parties free of cost as per CPR.
The Final Order to be hosted in the public domain at www.confonet.nic.in.
Dictated and corrected by me.
Member
