The petitioners Agnee Modak and Ashim Modak filed a petition u/s.12 of the Consumer Protection Act for seeking relief.
The fact of the case as revealed from the petition as well as from the evidence is that the petitioner No.1 who happens to be the son of petitioner No.2. They jointly purchased a car (Tata Indigo CS ELX) vide Registration TCR No.WB-00-001-0001 from the O.P./K.B.Motors Pvt. Ltd. As per agreement the value of the car was fixed at Rs.6,41,188/-. From the petition and evidence it is found that for purchasing the car the complainants paid Rs.5000/- as advance money by cheque vide No.00361 of UBI, Kaliaganj Branch and O.P received the same by issuing a receipt to that effect. It has been further stated in the petition that the petitioner/complainant had one car Toyota bearing No.WB-6B-0264 before purchasing the new vehicle. At the time of purchasing the new car Tata Indigo, the complainant exchange the old car bearing No.WB-6B-0264 with O.P and the value of the said car was fixed at Rs.1,35,000/- and that exchange amount was adjusted with the amount of Rs.6,41,188/- i.e the amount comes to Rs.5,01,188/- ( including the advance money of Rs.5,000/-). The complainant paid the amount vide cheque No.46885 of Rs.5,01,188/- through SBI, Kaliaganj Branch for purchasing the new car and after receiving the amount the O.P handed over the vehicle to the complainants without any objection and the complainants registered the said vehicle with a new registration No.WB-60M-0264 and that vehicle is in possession of the complainants.
The main dispute in this case is that the O.P/ K.B.Motors Pvt. Ltd. took Rs.19,992/- as insurance of the vehicle and the petitioner paid the said amount and O.P received the same. But after getting the paper the petitioner came to know that Rs.11,699/- was realized as Insurance Policy. So the complainants are entitled to get back of the amount of Rs.8,323/-. The complainants wrote several letters to the O.P to refund the same but there was no fruitful result. The intention of K.B.Motors was never to refund the money and it has comes within the meaning of unfair trade practice.
After receiving the written complaint the O.P remains silent regarding the payment. Hence, the petitioner has been compelled to file the instant case before the Consumer Forum. The complainant has faced irreparable financial loss, mental and physical pain and agony. The petitioner has prayed for payment of Rs.8,323/-as realized the excess amount for the insurance of the vehicle in question of that period and claimed Rs.2,00,000/- as compensation along with 10.2% interest per annum and litigation cost of Rs.5,000/- .
The petition has been contested by the O.P by filing the written version denying all the material allegations leveled against them contending inter alia that the complainants are not consumer within the meaning of Consumer Protection Act 1986. The further contention of the O.P is that this Forum has got no territorial jurisdiction to try this case. The complainants’ case lacks territorial jurisdiction.
Further defence case is that there was no deficiency in service on the part of the O.P and the O.P is not in any way liable to pay compensation. As such the instant petition is liable to be dismissed with cost.
In this case the petitioner No.1 Agnee Modak has been examined as p.w.1. He has filed the documents and he has been cross examined by the O.P. The O.P did not adduce any evidence in his defence.
During the argument the complainants have submitted the case laws 1. Citation of National Commission (Division Bench) reported on 2004 Law suit (CO) page 1304, 2.Citation of National Commission in respect of case No.51/2006, 3. Citation of National Commission (Division Bench) reported on2004 Law suit (CO) page 469, 4. Citation of National Commission (Division Bench) reported on 2007 Law suit (CO) page 753. O.P also submitted two judgements reported in 1. 017 CJ page 604 (N.C.) and 2. 2017 CJ page 744 (N.C.)
DECISION WITH REASONS
At the time of argument the Ld.lawyer of the O.P argued that this Forum has got no jurisdiction to try this case. So the instant case is liable to be dismissed. In this regard the Ld. Lawyer for the O.P referred the case law reported in 2017 CJ 604 (N.C.) Gaziabad Development Authority Vs. Sri Krishna Singhania. By that case law the Ld.lawyer wants to impress upon the Forum that this Forum has no territorial jurisdiction. But we have gone through the record. On perusal of the record it is found that the O.P filed a petition before this Forum contending inter alia that this Forum has no territorial jurisdiction to try this case. Against the order the O.P/ K.B. Motors preferred a revision before the Hon’ble State Consumer Dispute Redressal Commission. But the Hon’ble State Commission has rejected the prayer for revision and hold that the Ld. District Forum has totally justified in rejecting the petition for maintainability of the case filed by the O.P. In this regard the Ld. Lawyer for the petitioner submitted that against the order the O.P did not move the higher Forum i.e before the Hon’ble National Consumer Disputes Redressal Forum. So the order of the State Consumer Disputes Redressal Forum is no force and that is binding upon the Forum. So, the Forum has nothing to do in this regard. But the Ld. Lawyer for the O.P by submitting the above case law reported in 2017 CJ 604 (N.C), this court has got no jurisdiction to try the case. But the fact of the instant case and the reported case is quite different as because there is a specific order of the Hon’ble State Consumer Disputes Redressal Forum that this Forum has got the territorial jurisdiction to try the case. Moreover, according to the Sec.11(2) of the C.P.Act 1986 “A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
- the opposite party or each of the opposite parties, where there are more than one. At the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
- any of the opposite parties, where there are more than one, at the time of the institution of the complaint , actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or that opposite parties who do not reside, or carry on business, or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
- The cause of action, wholly or part, arises “.
In this case the payment was made to the O.P/ K.B.Motors by the complainant though the complainant party situated at Uttar Dinajpur i.e. within the jurisdiction of this Forum. Moreover, the vehicle as well as the invoice was handed over to the complainant at Uttar Dinajpur. So, on considering such facts and circumstances the instant case is quite maintainable as this Forum has got the territorial jurisdiction.
Next point argued by the Ld. Lawyer for the O.P is that in the cross examination the petitioner/complainant has admitted that the vehicle in question is used for the business purpose. So, the instant case is not maintainable. In this regard a case law reported in 2017 CJ 744 (N.C) has been filed by the O.P. According to the argument as advanced by the Ld. Lawyer for the O.P that the complainant has to lead the evidence to show that the vehicle in question is not used for earning of their livelihood by means of self employment. But in the petition there is no averment that the complainants have completely suppressed such fact that the vehicle in question is used for their business purpose. Ld. Lawyer of the petitioners refers the case law of National Consumer Disputes Redressal Forum (Crompton Greaves Ltd. and others Vs. Daimar Chryslar India Ltd. And others). By that case law the Ld.lawyer wants to impress upon the forum that car is not used for hire purpose but for the personal use of the Director. Hence, it cannot be said that the complainant/Co. used the car for commercial purpose. The fact of the reported case is completely same with the instant case as because the car as purchased to look after the business. That does not means that the money is income from the vehicle in question. Moreover, in the cross examination the Forum does not find any specific question that any income is derived from the vehicle and that vehicle used for commercial purpose. In this regard the Ld. Lawyer place an argument that if an advocate used a vehicle for his profession, can it be said that it is used for commercial purpose for attending the court and returned back home. This Forum is in the same view with the submission of the Ld. Lawyer for the complainant that the vehicle in question is not used for the commercial purpose. So, the instant case is maintainable. There is no iota of evidence that any income is derived from the vehicle. So, considering the facts and circumstances the instant case is quite maintainable and the complainants are entitled to get relief as prayed for.
The Ld. Lawyer for the O.P submitted that all the case laws reported by the Ld. Lawyer are on the basis of law suit. This is not a reported case. This Forum find no merits of this argument advance by Ld. Lawyer of O.P that citation in the law suit have no force as because this is a decision of a competent Forum. Whether it is reported any journal or not it is immaterial as because it is a judgement passed by Hon’ble National Forum or other legal authorities.
On perusal of the documents it is found that the O.P realized Rs.19,992/- (Nineteen thousands nine hundred ninety two) for the insurance of the vehicle, but on perusal of the documents it is found that the insurance fee is actually Rs.11,669/-.
Fees paid are correct.
Hence, it is
ORDERED,
That the instant consumer complaint being No. CC - 48/2016 be and the same is allowed on contest against the O.P but without any cost.
The complainants/petitioners do get Rs.8323/- as excess amount realized for the insurance company. The complainants also entitled to get Rs.10,000/- as compensation with interest at the rate of 5% per annum on and from 18.06.15 till the payment and litigation cost of Rs.5000/-. The O.P is directed to make the payment within one month from the date of order failing which it will carry further interest at the rate of 5% per annum from the date of filing i.e 13.07.16 till the recovery. In the case of failure of payment the petitioners/ complainants are at liberty to execute the order for recovery of the amount as per provision of law.
Let a copy of this order be given to the parties free of cost.
