C.F. CASE No. : CC/10/67
COMPLAINANT : Bhaduram Mondal @ Bhadu Mondal
S/o Kshyapachand Mondal,
Vill. Nrisinghapur,
P.O. Bishnupur,
P.S. Kotwali, Dist. Nadia
OPPOSITE PARTIES/OPs : 1) The Proprietor,
Garai Auto Mart,
30/1, M.M. Ghosh Street,
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
2) The Branch Manager
The IndusInd Bank Ltd.,
53-B, Bidhan Park, Barasat,
24 Parganas (North)
3) The Proprietor,
USG Automobiles Pvt. Ltd.,
74 B, A.J.C. Bose Road,
“Shrachi Centre”
Kolkata – 16
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 25th January, 2011
: J U D G M E N T :
In brief, the case of the complainant is that he purchased a 3 wheeler vehicle being model No. “Minidor Soft Top – D-1, colour red, engine No. D36005086 from Garai Auto Mart, Krishnagar, Nadia to earn his bread at a price of Rs. 1,87,251/- on 21.01.05. The said vehicle was financed by the Indus Ind Bank Ltd., Barasat Branch. The said vehicle was delivered by the Garai Auto Mart through USG Automobiles Pvt. Ltd. 74 B, AJC Bose Road, Kolkata – 16 and the USG Automobiles issued a delivery challan on 07.02.06. The said vehicle was registered under the RTO, Nadia, Krishnagar on 15.03.06. It is his further case that after one and a half month since the date of purchase problem arose in the head, piston and block of the said vehicle. So he contacted with the Garai Automobiles and requested him to change those parts as those were defective. OP No. 1 issued a road challan dtd. 20.03.06 for repairing those parts in the workshop of OP No. 3. Again the said vehicle became defective and for its repairing he had to pay Rs. 1830/- to USG Automobiles. On the first occasion USG Automobiles repaired the same. In spite of this repairing within a short time the vehicle became again defective and it was not possible for the complainant to run the vehicle. The vehicle was supplied with defective parts by the OP No. 1 at the time of purchase. So he requested the OP No. 1 to change the defective parts of the vehicle but the OP No. 1 did not pay any heed to his request. Thereafter on 15.06.07 the financier seized the vehicle though 10 instalments were paid by this complainant to him. At the time of seizure the OP No. 2 declared that he would not claim any amount in future regarding other instalments. But all on a sudden the OP No. 2 issued a letter for appearing before the arbitration board on 29.10.09. Due to illness the complainant sent a letter on 23.10.09 to the OP No. 2 by speed post that he would not be able to appear before the arbitration board. The OP No. 2 did not send any demand notice to this complainant regarding the due instalment and loan. Again the OP No. 2 sent a letter to him asking the complainant to appear before the arbitration board, but due to illness he could not attend before the board. The arbitration board heard exparte about the claim of the OP No. 2 and passed an order in favour of OP No. 2 against this complaint. An amount of Rs. 27,000/- from sale proceed of the vehicle has been deducted in the arbitration exprte order. This order of the arbitration is not binding upon him. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP No. 1 has contested this case by filing a written statement, inter alia, stating that the case is not maintainable in its present form and nature. He has denied all the material allegations made by the complainant. It is his submission that the complainant purchased the vehicle as stated in this case from USG Automobiles Pvt. Ltd., 74 B, AJC Bose Road, Shrachi Centre, Kolkata – 16, i.e., the OP No. 3 and the delivery challan shows that he received the said vehicle on good condition on 07.02.06. The complainant never raised any complaint against the OP No. 1. From the documents filed by the complainant it is available that he intentionally did not appear before the arbitration board as a result of which an exparte order was passed against him. He did not intentionally pay the instalment amount to the OP No. 2 and accordingly the vehicle was seized by the OP No. 2. So this OP No. 1 has no liability in this manner and therefore, the complainant has no cause of action to file this case against him. Hence, the case is liable to be dismissed.
OP No. 3, USG Automobiles Pvt. Ltd. has filed a separate written version in this case. It is his contention that he supplied the vehicle as per order of the OP No. 1 and after full satisfaction OP No. 1 received the said vehicle from him and afterwards when OP No. 1 referred the vehicle to him he promptly did his duty by giving his service with full satisfaction of the parties. He was not aware about anything which happened between the petitioner and the OP No. 1 & 2 and practically this is not at all concerned to this OP No. 3. So the complainant has no cause of action to file this case and hence it is liable to be dismissed against him. OP No. 2 has not filed any written version in this case.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written versions filed by the OPs along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that this complainant purchased one minidor soft top 3 wheeler being model No. Minidor soft top – D-1 from the OP No. 3 through the OP No. 1 on 21.01.05 at a price of Rs. 1,87,251. It is also available that the OP No. 2 is the financier for purchasing the said vehicle from the OP No. 3. From the petition of complaint it is available that the petitioner paid 10 instalments to the OP No. 2 and thereafter, the vehicle was seized by the OP No. 2 on 15.06.07 due to nonpayment of balance instalment amount. But from the document filed by the OPs it is available that this complainant Bhaduram Mondal surrendered the vehicle before the OP No. 2 on 08.06.07 as he failed to pay the due instalments amount. It is also stated in writing that due to some reason he could not deliver R.C., key, Stepney and jug and he would handover those articles to the OP No. 2 within a period of 3 days and in default the OP No. 2 could take step against him. So from this letter, we find that the OP No. 2 did not seize the vehicle as alleged by this complainant on 15.06.07. Rather we find that on 08.06.07 he surrendered the vehicle to the OP No. 2 due to his failure to pay the instalment amount as per agreement executed between the OP No. 2 and the complainant. Thereafter, the OP No. 2 put the vehicle into auction and also sent his claim to an arbitrator as per terms of the agreement. The arbitrator duly served notice upon this complainant directing him to appear before him on 29.10.09. Due to his illness the complainant failed to appear before him and prayed for a time. At his prayer the arbitrator fixed the next date on 17.11.09 and on that date the complainant did not appear due to which the arbitrator passed his award exparte in favour of the OP No. 2. The award passed by the arbitrator is filed by the contesting OPs, from which we find that arrear instalments was due of Rs. 110440/- and delayed payment charges was Rs.33,125/-, the total amount being Rs. 143565/- out of which Rs. 27000/- as received from the sale proceed was deducted and the net amount due to this complainant was fixed at Rs. 1,16,565/-. This award was charged since 29.10.09. So considering the correspondences made by the arbitrator and the complainant, we find nothing erroneous in the award passed by the arbitrator.
It is the case of the complainant also that within a period of few days after purchase the vehicle became defective and specially head, piston and block created problem. He immediately met the OP No. 1 for repairing and replacing those defective parts. As per his demand the OP No. 1 sent those to the OP No. 3 along with the vehicle for repairing. OP No. 3 repaired the vehicle including the defective parts which is also available from the petition of complaint and the last date of repairing was 20.06.06 as it is available from the petition of complaint. Thereafter the complainant did not move before the OP No. 1 & 2 by writing any letter mentioning the defect of the vehicle though it is stated in the petition of complaint that after that repairing the vehicle became defective within a short period. No document is filed to that extent. On the other hand, from the document filed by the OPs it is available that on 08.06.07 the complainant voluntarily surrendered the vehicle before the OP No. 2 as he failed to pay the instalment amount.
Therefore, considering the facts of this case and after hearing both sides, we hold that this complainant has no cause of action to file this case against the OPs. We do further hold that the complainant has no cause of action to file this case against the OP No. 2 also as he himself voluntarily surrendered the vehicle before the OP No. 2.
In view of the above discussions our considered view is that the complainant has not become able to prove his case. So he is not entitled to get the reliefs as prayed for.
Hence,
Ordered,
That the case, CC/10/67 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
