This complaint is filed by the Complainant under Section 35 of the CP Act, 2019 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not take any step to refund the paid amount to her till filing of this complaint.

The brief fact of the case of the Complainant is that the OP is carrying on business in automotives regarding new and pre-owned car and the address of the OP lies under the jurisdiction of this Ld. Commission. The Complainant is residing at Jadavpur. The Complainant and her husband felt the necessity of a car and went to the shop room of the OP on 23.09.2017. The representative of the OP had presented one pre-owned car being model no-Hyundai Creta, registration no-WB58AJ8552, in silver colour at a price of Rs. 8,68,000/- inclusive of the name TRF charges. Complainant and her husband being agreed with the said car paid a sum of Rs.75,000/- in cash towards advance money with a view to purchase the same. The Complainant again visited the showroom of the OP on 10.10.2017 and further paid of Rs. 1,15,000/- regarding the consideration amount of the said car. Therefore, the Complainant totally paid Rs.1,90,000/- to the OP for the subject car and against such payment the OP issued money receipts with appropriate seal and stamp. The Complainant due to paucity of fund approached before the finance company for taking loan on account of purchasing the said car. As such, the OP supplied the details of previous owner of the car to the Complainant. Thereafter, the Complainant placed those documents before the concerned authority from where the Complainant was supposed to take loan. But after perusal of the documents, the concerned authority became surprised to see that the previous owner of the car died without issuing NOC in respect of the OP. Naturally the loan was not sanctioned by the authority. The Complainant asked the matter to the OP, who assured that after getting NOC in favour of the OP from the wife of the deceased owner the subject car will be ready to deliver to the Complainant. After two months the Complainant asked the OP in respect of the delivery of the subject car, but the OP did not assure the Complainant by giving any suitable answer and told that there are documentation problem arose and finding no other alternative along with financial stringency, the Complainant asked the OP for cancellation of the booking and to refund the total amount of Rs.1,90,000/- in writing on 19.01.2018, which was duly received by the OP on the same day. Inspite of such written correspondence as the OP did not pay any heed to the request of the Complainant regarding refund of the booking money, the Complainant became very shocked and surprised and subsequently he filed a written complaint to the Hon’ble Minister-in-Charge, Consumer Affairs Department on 24.09.2018. Mediation process was initiated against the OP. On 10.04.2019, the Assistant Director, Central Consumer Grievance Cell asked the OP to file written statement, but the OP did not bother to adhere to the said direction and as such, the Complainant was directed to file specific complaint before the Appropriate Forum/Commission. According to the Complainant she is a consumer of the OP as she has hired service of the OP by making payment of consideration amount. But the action of the OP suffers from deficiency in service on the ground that the OP did not disclose her as to why the car was not delivered to her inspite of advance payment made by her as per the demand of the OP. So the Complainant is very much entitled to get refund of the paid amount along with interest and she is also entitled to get compensation and litigation cost from the OP. As the OP did not take any step to refund her the paid amount till filing of this complaint inspite of several request, hence finding no other alternative the Complainant has approached before this Ld. Commission by filing this complaint praying for direction upon the OP to refund her Rs.1,90,000/- , to pay compensation to the tune of Rs.50,000/- due to harassment, mental agony and litigation cost of Rs.20,000/- to her.  

 The petition of complaint has been contested by the OP by filing written version contending that the OP had never received a sum of Rs.1,90,000/- from the complainant. It is also noteworthy to mention that why such huge amount was paid in cash and not by cheque/bank transfer or otherwise. The OP has stated that the Complainant did not take any legal action against the person to whom the amount was paid and with a view to harass the OP this complaint has been filed by the Complainant. This complaint is hopelessly barred by the Law of Limitation in view of Section 69 of the Consumer Protection Act, 2019. The cause of action arose on 23.09.2017 when the amount was paid by the Complainant for the first time, but this complaint was filed by the Complainant on 12.10.2020 without annexing any separate application praying for condonation of delay. The OP has mentioned that the Complainant has made out allegation against one Mr. Anal Sarkar and Mr. Mainak Banga, but they are not made parties in this complaint. The OP has initiated one criminal case against the said persons before Baguiati Police Station, Case no-101/2028 dated 09.03.2018. The said case is pending before the Ld. Magistrate Court, Barasat. Subsequently the OP lodged another criminal case with Airport Police Station Case No-129/2018, dated 13.06.2018 against the same accused persons which is also pending before the Ld. Magistrate Court, Barrackpore. The FIR reports of the said two cases are annexed by the OP along with this written version. The OP has also filed application before the Hon’ble High Court in connection with the said two police cases. The OP has further submitted that in this complaint question of fact as well as law is involved i.e. as to whether any money was paid at all and the principal can be held vicariously liable where the agent/employ has committed a criminal action. The second question would arise only if the first is proved. The OP has mentioned that the instant complaint involves complexity and evidence is required to be obtained from several persons, so through this Ld. Commission under the Consumer Protection Act it is not possible. The claim of the Complainant is not tenable in the eye of law and the same does not fall within the ambit of the Consumer Protection Act, rather it falls within the purview of the Criminal Court. According to the OP this complaint is liable to be dismissed with exemplary cost.

Both parties have adduced evidence on affidavit and both are cross-examined by each other by way of filing questionnaire and replies. Both parties have submitted BNA with a copy to the other side.

We have carefully perused the record, documents as available in the record and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that the Complainant and her husband went to the shop room of the OP on 23.09.2017. The representative of the OP had presented one pre-owned car being model no-Hyundai Creta, registration no-WB58AJ8552, in silver colour at a price of Rs. 8,68,000/- inclusive of the name TRF charges. Complainant and her husband being agreed with the said car paid a sum of Rs.75,000/- in cash towards advance money with a view to purchase the same. The Complainant again visited the showroom of the OP on 10.10.2017 and further paid of Rs. 1,15,000/- towards consideration amount of the said car in part. Therefore, the Complainant had totally paid Rs.1,90,000/- to the OP for the subject car and against such payment the OP issued money receipts with appropriate seal and stamp. The Complainant due to paucity of fund approached before the finance company for taking loan on account of purchasing the said car. As such, the OP supplied the details of previous owner of the car to the Complainant. Thereafter, the Complainant placed those documents before the concerned authority from where the Complainant was supposed to take loan. But after perusal of the documents, the concerned authority became surprised to see that the previous owner of the car died without issuing NOC in respect of the OP. Naturally the loan was not sanctioned by the authority. The Complainant asked the matter to the OP, who assured that after getting NOC in favour of the OP from the wife of the deceased owner the subject car will be ready to deliver to the Complainant. After two months the Complainant asked the OP in respect of the delivery of the subject car, but the OP did not assure the Complainant by giving any suitable answer and told that there are documentation problem arose and finding no other alternative along with financial stringency, the Complainant asked the OP for cancellation of the booking and to refund the total amount of Rs.1,90,000/- in writing on 19.01.2018, which was duly received by the OP on the same day. Inspite of such written correspondence as the OP did not pay any heed to the request of the Complainant regarding refund of the booking money. The Complainant being very shocked and surprised filed a written complaint to the State administration on 24.09.2018. Mediation process was initiated against the OP by the Department of Consumer affairs. On 10.04.2019, the Assistant Director, Central Consumer Grievance Cell asked the OP to file written statement, but the OP did not bother to adhere to the said direction and as such, the Complainant was directed to file specific complaint before the Appropriate Forum/Commission and hence this complaint is initiated by the Complainant.

The case of the OP is that the OP did not receive any amount from the Complainant and the person who received the said amount was an employee of the OP-Company, but subsequently after detection of misappropriation of money by the said employee, the OP had terminated the said employee and lodged criminal complaint against him before the Criminal Court. According to the OP the said employee had grab the entire amount personally without depositing the same in the Company’s account. Therefore at present the Company is not in a position to refund the same as the alleged amount was not credited in the account of the Company. According to the OP the concerned person who received the amount from the Complainant is solely under the obligation to refund the amount, liability to refund the paid amount cannot be not be casted on the shoulder of the OP-Company. Further point is taken by the OP is that this complaint is barred by limitation as within two years this complaint is not filed from the date of making payment for the first time. Further plea is taken by the OP that before this Ld. Commission this complaint is not maintainable on the ground that extensive evidence is required and hence the Complainant is liable to approach before the Criminal Court. The OP has prayed for dismissal of the complaint.

We have noticed that the Complainant paid a sum of Rs.75,000/- on 23.09.2017 and Rs.1,15,000/- on 10.10.2017 from the Complainant by issuing two money receipts along with signature, date and seal. The total consideration of the questioned car was scheduled for Rs.8,68,000/- and out of which the Complainant paid a sum of Rs.1,90,000/-. It was settled that the balance amount will be paid by the Complainant by taking financial loan. In respect of non-receipt of the amount of Rs.1,90,000/- as alleged by the OP, we are to say that an employee of the OP-Company had received the said amount from the Complainant. The said person was deputed at the said post to receive money and deal with the customer by the Company. He was very much entrusted to do the same on behalf of the Company. It is not possible for the Complainant to know as to whether that the person who received the amount from her is an honest person or not, moreover it is not at all the duty of the Complainant. If the said employee has misappropriated money, liability casts upon the shoulder of the Company. It is seen by us after making payment by the Complainant the said person was in that post for a long period. If the person is a dishonest or cheated the Company, this is the relationship by and between the Company and its employee, liability/responsibility is not on the shoulder of the Complainant. As the OP has failed to provide the car to the Complainant after taking of the due amount, hence the OP is very much liable to refund the said amount to the Complainant and similarly the Complainant is very much entitled to get refund of the paid amount from the OP. The Complainant had to run from pillar to post for getting refund of the paid amount, but to no effect. Admittedly the Complainant has approached before this Ld. Commission by filing this complaint due to failure on behalf of the OP to resolve the dispute and for this proceedings the Complainant has to incur some expenses, for which in our considered opinion the Complainant is entitled to get litigation cost and due to prolonged harassment and deficiency in service on the part of the OP the Complainant is entitled to get compensation from the OP.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint no-260/2020 is hereby allowed on contest with cost.

The OP shall refund of the paid amount of Rs.1,90,000/- to the Complainant within 45 days from the date of passing this judgment, in default to make payment, the amount of Rs.1,90,000/- shall carry interest @7% p.a. for the period from the date of last payment i.e. 10.10.2017 till its entire realization.

The OP is further directed to pay a sum of Rs.5000/- as compensation to the Complainant on account of harassment, mental agony and pain and Rs.3,000/- as litigation cost to the Complainant within a period of 45 days from the date of passing of this judgment, in default the Complainant will be at liberty to put the entire decree in execution as per provisions of Law.

Let plain copy of this judgment be given to the parties free of cost as per CPR.    

Dictated and corrected by

 [HON'BLE MRS. Silpi Majumder]
MEMBER