Date of Filing: 18-06-2013 Date of Final Order: 31-08-2016
Smt. Runa Ganguly, Member.
The gist of the complaint as culled out from the record is that the Complainant, Amal Modak intended to purchase a Tata 407 P.U from the OSL Automotive Pvt. Ltd. (Tata Motors), Cooch Behar for commercial purpose and for earning his livelihood. Accordingly the Complainant went to the office of the O.P. No.1 i.e. OSL Automotive Pvt. Ltd. (Tata Motors), Cooch Behar on 28-02-2013 for booking the said vehicle. The O.P. No.1 issued a proforma Invoice cum Quotation dated 28-02-2013 which reveals that the cost of the vehicle was estimated of Rs.6,23,531/-.
On the following day the Complainant had paid a sum of Rs.93,531/- as booking amount out of Rs.6,23,531/- but because of paucity of fund the Complainant approached to the Proforma O.P. No.3, The Branch Manager, Bank of India, Cooch Behar Branch through their local representative for financial assistance of Rs.5,30,000/-. Both the parties came to mutual agreement and the O.P. No.3 has decided to disburse the loan amount of Rs.5,30,000/- to the Complainant for purchasing the said Vehicle and O.P. No.1 assured the Complainant that they would deliver the said vehicle within 07-03-2013.
Thereafter on 07-03-2013 the Complainant contacted to the O.P. No.1, for delivery the said vehicle along with Demand Draft No.278807 dated 07-03-2013 of Rs.5,30,000/- drawn on Siliguri, but the O.P No.1, failed deliver the said vehicle to the Complainant. Inspite of repeated request and as per assurance and promise the opposite party failed to deliver the said vehicle to the Complainant. Thereafter, the Complainant went to the showroom of the O.P. No.1, for refunding the booking amount of Rs.93,531/- which was paid by the Complainant on 28-02-2013, but the O.P. No.1 did not pay the said amount to the Complainant. By not getting any response from the O.Ps, the Complainant made several contact orally and over telephone No.9800003400 dated 14-05-2013 to the O.P. No.1 & 2 for narrating the incident with the request to refund the booking amount of Rs.93,531/- but all efforts were in vain.
Due to such activities of the O.Ps, the Complainant suffering from acute mental pain and agony, pecuniary Loss, unnecessary harassments and financial problem. The O.Ps also adopted their deficiency in service and unfair trade practice.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to pay (i) Rs.93,531/- as booking amount with interest paid by the Complainant to the O.Ps, (ii) Rs.25,000/- as compensation for mental pain and agony and unnecessary harassment, (iii) Rs.50,000/- for deficiency in service and unfair trade practice, (iv) Rs.5,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, The Manager, OSL Automotive Pvt. Ltd. (Tata Motors), Cooch Behar and the O.P. No.2, The General Manager, OSL Automotive Pvt. Ltd. (Tata Motors), Siliguri have contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.Ps is that the Complainant came to the office of the O.P No.1 with the intention of purchasing a Tata 407 P.U from the O.P No.1 and the O.P No.1 has also issued a proforma Invoice cum Quotation amounting the cost of the said vehicle of Rs.6,23,523/- to the Complainant but no payment was made by the Complainant to the O.P No.1 as booking amount. The Complainant did not come to the office of the O.P No.1 on the following day and the copy of Money Receipt being No.1670 dated 28-02-2013 which filed by the Complainant is manipulated one. It is originally belonged to Sri Gangadhar Roy, son of Lakshmi Nath Roy. The same was procured by the Complainant himself to derive the wrongful gain. The original money receipt bearing No.1670 was issued to one Gangadhar Roy, for an amount of Rs.3,000/-. A copy of the said money receipt has been filed along with the petition for addition of party dated 29-09-2013 and the money receipt filed by the Complainant does not match with the official record of the O.P. No.1 as the said money receipt actually belongs to said Gangadhar Roy, Son of Sri Lakshmi Nath Roy. Though the Complainant has also stated about the loan procedure between him and the O.P. No.3, but the O.P. No.1 & 2 has no relation with the O.P No.3 regarding this matter.
The O.P. No.1 further contended that no payment was made by the Complainant to the O.P. No.1 on 28/02/2013 amounting to Rs.93,531/- and hence no question of refund may arise from the O.P No.1 to the Complainant in this regard. The Complainant has not sent any letter of demand or demand notice to this answering O.Ps. Therefore, there was no deficiency in service and unfair trade practice adopted by the O.Ps and also the Complainant is not entitled to get any relief as prayed for against the O.P. No.1 & 2.
Ultimately, the O.P. No.1 & 2 prayed for dismissal of the case with costs.
It appears that inspite of due service of Notice upon the O.P. No.3, the Branch Manager, Bank of India, Cooch Behar Branch did not turn up before the Forum and accordingly the case is being proceeded in Ex-parte against them.
The O.P. No.4, Sri Gangadhar Roy, S/o. Laxmi Nath Roy has contested the case by filing Written Version denying all material allegations of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P. No.4 is that Sri Gangadhar Roy i.e. the O.P. No.4 booked a Tata ACE HT from the O.P. No.1 and in respect of that a Money Receipt for an amount of Rs.3,000/- bearing No.1670 dated 28-02-2013 has also been issued to him and the original Money Receipt is lying with the said Gangadhar Roy.
A photocopy of the said Money Receipt bearing No.1670 dated 28-02-2013 is filed herewith for the perusal of this Ld. Forum. The O.P. No.4 does not have any connection with the alleged occurrence and is not aware of any facts apart from the above stated facts.
In view of above statement, this answering O.P. No.4 is not liable to pay any compensation or replace the vehicle. Therefore it is prayed that on considering the above said fact and circumstances the present complaint petition of the Complainant be dismissed without any cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents which are lying with the record and also heard the argument as advanced by the parties at length.
Point No.1.
The facts of the Complaint go to show that the Complainant intended to purchase one vehicle Tata 407 P.U from the O.P. No.1 and deposited an amount of Rs.93,531/- as booking amount and the O.P. No. 1 issued a money receipt. Annexure “B” the document clearly shows the same. Further, the Complainant intended to purchase the said vehicle for commercial purpose only for earning his livelihood by means of self employment.
Thus, we have no hesitation to hold that the Complainant is a consumer as per provision u/s 2(1)(d)(ii) of C.P. Act, 1986.
Point No.2.
The Complainant in this case has claimed Rs.1,98,531/- in total under different heads which is less than the pecuniary limit of this Forum. The complainant has brought this case against the Opposite Parties from which O.P. No. 1&3 carry on their business under Kotwali P.S, Cooch Behar which is within the territorial jurisdiction of this Forum.
Therefore, in our considered view, this Forum has sufficient jurisdiction i.e. pecuniary as well as territorial jurisdiction to entertain the instant case.
Thus, both the points are decided in favour of the Complainant.
Point No.3 & 4.
The case of the Complainant is that the Complainant intended to purchase a Tata 407 P.U and contacted with the OSL Automotive Pvt. Ltd. (Tata Motors), Cooch Behar. On 28/02/2013 the O.P. No.1 issued a Proforma Invoice cum quotation. The estimated cost of the vehicle was Rs.6,23,531/- and accordingly the Complainant booked the said vehicle by depositing Rs.93,531/- to the O.P. No.1. Thereafter, the Complainant contacted with the Proforma O.P. No.3 for financial help and took loan of Rs.5,30,000/-. The O.P. No.1 failed to deliver the said vehicle even after receiving the booking amount and also Demand Draft bearing No.278807 dated 07/03/2013 of Rs.5,30,000/- issued by the Bank of India i.e. Proforma O.P. No.3. The Complainant made repeated contact for taking delivery of the vehicle but his all efforts were in vain. Finding no other alternative, he demanded to refund the deposited amount of Rs.93,531/-. The O.Ps did not refund the said amount for which this case is filed.
Besides, the case of the O.P. No.1 & 2 is that the Complainant is not a consumer and filed this case by filing a fake receipt that was not issued by the O.P. No.1. The Bill dated 28/02/2013 bearing No.1670 was issued in favour of one Gangadhar Roy of against booking of a Tata ACE HT. In W/V, the O.P. No.1 & 2 frankly stated that the Complainant did not make any payment of Rs.93,531/- on 28/02/2013 but admitted that the Complainant came to the office of the O.P. No.1 for purchasing a Tata 407 P.U and the O.P. No.1 issued a Proforma Invoice cum quotation amounting to the cost of the said vehicle of Rs.6,23,531/-. It is the denial of the O.Ps that the Bill seems to be manipulated one. According to the O.P the alleged Bill was issued by the O.P. No.1 in favour of one Gangadhar Roy and the Complainant manipulated the said receipt to gain illegally further more there is no deficiency in service.
The Ld. Agent for the O.P. No.1 & 2 argued that the Complainant is not a consumer as he approached the O.Ps for purchasing a vehicle for commercial purpose and for earning his livelihood be means of self employment. He referred two rulings of Supreme Court and National Commission in this regard reported in 1 (2011) CPJ I (SC) and 2013 (I) CPJ 702 (NC) where in it has been decided that since the goods were purchased for “commercial purpose”, the Complainant cannot be considered as “consumer”.
But the explanation subs. By Act 62 of 2002 (w.e.f. 15/03/2003 for the purpose of “commercial purpose” has a wide connotation. In this case, the Complainant by filing evidence on affidavit stated that he intended to purchase the said vehicle for commercial purpose exclusively for the purpose of earning his livelihood by means of self employment. Thus, in the present perspective the above ruling is not applicable in the present case.
It appears from the record that the Complainant files some documents marked as Annexure “A”,”B”, “C” &”D”.
Annexure-“A” is the Proforma Invoice cum quotation.
Annexure “B” is a Bill bearing No.1670 of the OSL Automotive Pvt. Ltd. (Tata Motors) which reveals that the O.Ps received Rs.93,531/- from the Complainant on 28/02/2013 under proper Seal and Sign by the O.P Company.
Annexure “C” reveals that the Branch Manager, Bank of India, Cooch Behar Branch by their letter dated 07/03/2013 sent a Demand Draft in favour of OSL Automotive Pvt. Ltd. (Tata Motors), Siliguri amounting to Rs.5,30,000/- with a request for delivery of Tata 407 P.U that was duly received by the Sales Manager of OSL Automotive Pvt. Ltd. (Tata Motors), Cooch Behar Branch i.e. the O.P. No.1.
From the above Annexures it is crystal clear that the Complainant desired to purchase a Tata 407 P.U and contacted with the O.Ps who issued a Proforma Invoice cum quotation for the said purpose and the O.Ps received an amount of Rs.93,531/- on 28/02/2013.
The O.P. No.3, Bank of India, Cooch Behar Branch issued a D.D bearing No.278807 dated 07/03/2013 of Rs.5,30,000/- as balance amount of price of the Tata 407 P.U.
The fact remains that the O.Ps did not deliver the said Tata 407 P.U even after completion the above formalities.
The O.Ps filed documents marked as Annexure “1” & “2”.
In the present case, the O.P. No.1 & 2 after their appearance filed a petition for adding one Sri Gangadhar Roy as a necessary party for proper adjudication of this case. The prayer of the O.P. No.1 & 2 was considered and allowed and Gangadhar Roy became impleded as O.P. No.4 and accordingly Notice was issued to him with a direction to appear with original Money Receipt. It appears from the case record that the conduct of the O.P. No.4 is very much unsatisfactory. He filed W/V by taking so many times but even after passing order, the O.P. No.4 did not file any evidence on affidavit for which the Complainant did not get any opportunity to cross examine him. It is a case, where both parties took so many adjournments for argument, the reason best known to them.
During the course of argument, the Ld. Agent for the Complainant strenuously argued that the O.P. No.1 & 2 did not deliver the vehicle even after receiving the amount of Rs.93,531/-. The said O.Ps returned the D.D as issued by the Bank of India of Rs.5,30,000/-.
The Ld. Agent for the O.P. No.1 & 2 vehemently argued that the O.Ps did not receive any amount from the Complainant and also no D.D of Rs.5,30,000/- from the Proforma O.P. No.3 i.e. the Bank of India. They argued that the document marked as Annexure “B” filed by the Complainant is fake Money Receipt as the said Money Receipt bearing No.1670 was issued to one Gangadhar Roy. Surprisingly, the Ld. Agent for the O.Ps knowing fully well that the Complainant by adducing a fake document has filed the instant case but OSL Automotive being a certified company of vehicle did not take any legal steps against the Complainant before any Legal Forum.
In this juncture, reliance may be placed in view of the decision passed in an Appeal No.349 of 2014 dated 16/10/2014 where in the Hon’ble National Commission has been pleased to observe that in the absence of any cogent and convincing evidence having been produce by the O.P. No. 2 by no stretch of imagination, it could be said that the documents aforesaid were forged and fabricated. It is also held in a case, the Chairman Vs. Abdul Rashid Molla on 07/03/2012 the Appellant submits that all the documents including the Seal of the foundation were fake. The Commission observed that there is no paper to show that any case was filed before any Court regarding alleged fake and forged documents. Thus, the Appeal was dismissed.
The O.P. No.4 did not file original Bill after appearance. The Ld. Agent for the O.P. No.4 files an original Bill after hearing of argument. Perused the Bill bearing No.1670. Perused also the Xerox Bill mentioned in Annexure “B” filed by the Complainant and the carbon copy of original Bill marked as Annexure “1” (as claimed by the O.Ps). If we closely scrutinize the said documents, we will find that there are some anomalies of those documents.
It is pertinent to mention here that the original Bill (as claimed by the O.Ps) does not bear any Seal & Stamp of the O.P Company. Further the document filed by the Complainant marked as Annexure “B” is fake in the eye of the O.P. No.1,2 & 4. The Ld. Agent for the Complainant failed to file original Bill issued by the O.P. No.1 & 2 in favour of the Complainant for Rs.93,531/- as he lost the same. The Complainant filed a G.D to the Kotwali P.S on 30/07/2013 bearing No.1910/13 dated 30/07/2013.
Surprisingly, the Ld. Agent for the O.P. No.4 after closing of argument filed the original Bill(as claimed by the O.Ps) marked as Annexure “2” by firisty on 16/08/2016 and in the firisty it was written at first being “original Money Receipt No.1870” then overwrite the same by inserting 6 in place of 8. Thus it is a clear picture of manipulation of the document.
It is pertinent to mention here that the O.P. No.1 & 2 denied the documents filed by the Complainant marked as Annexure “B” & “C” though admitted the documents marked as Annexure “A”. The onus lies upon the O.Ps to prove that the documents filed by the Complainant are not genuine and the Seal & Stamp of the OSL Automotive Pvt. Ltd. (Tata Motors) are manipulated.
On perusal the original Bill (as claimed by the O.Ps) in favour of Gangadhar Roy and the carbon copy of the said Money Receipt it transpires that signature of the Cashier/Accountant is not the same. Handwritings are apparently also not the same. The original Bill No. 1670 marked as annexure 2 filed by the O.P. No. 4 clearly reflects that the O.P. tried to write 1670 in place of 1870. Thus, the O.P. No. 1&2 as well as O.P. No.4 by adopting arm of unfair trade practice wanted to deprive the Complainant from getting the deposited amount of Rs.93,531/-. The O.Ps only to establish their wrong activities, they impleded Gangadhar Roy. The O.P. No.4 appeared through the Ld. Agent and filed W/V where he stated that the Bill No.1670 was issued by the O.P. No.1 & 2 in favour of him and original Billis with his custody, though Gangadhar Roy himself never appeared before this Forum nor filed any evidence on affidavit despite order of the Forum.
In this premises, we may rely upon the rulings reported in IV (2006) CPJ 213 (NC) where in Hon’ble National Commission has been pleased to decide that “allegations of the Complainant remained uncontroverted. There in absence of any counter affidavit, the case of the Complainant stands proved”.
Be that as it may, the document of the O.P. No.4 itself proves that the same have been filed to misguide the Forum and to waste the valuable time.
Actually, the O.P. No.1 & 2 in connivance with the O.P. No.4 tried to establish their false story only to deprive the genuine consumer/customer of the O.P. No.1 & 2.
That being the position it is our considered view that to establish the documents filed by the Complainant are “Fake” the O.P. No.1, 2 & 4 continuously misguided the Forum and filed manipulated, fabricated, forged documents in support of their contention that must be dealt with iron hand otherwise the motto of the C.P. Act “for better protection of the interests of the consumers” will be frustrated.
In the present case, the O.P. No.3 did not contest the case and the case is proceeded in Ex-parte against the O.P. No.3. The Complainant has no allegation against the O.P. No.3, Bank of India, Cooch Behar Branch. The existence of O.P. No.3 supports the case of the complaint. From the side of Bank, the O.P. No.3 there is no denial against the allegation made by the Complainant.
Therefore, in the light of the foregoing discussion and materials to its entirety, we find that the documents as made available on the record, it can be held without any hesitation that the Xerox document/Money Receipt filed by the Complainant is genuine. The O.Ps did not return the said booking amount of Rs.93,531/- to the Complainant nor they handed over the vehicle. Thus, deficiency in service of the O.Ps cannot be ruled out.
Besides, the O.P. No.1 & 2 with an ulterior motive tried to establish that the Money Receipt bearing No.1670 filed by the Complainant is “Fake”, “Manipulated”. But on previous discussion has already been held that the O.P. No.1 & 2 along with the O.P. No.4 tried to misguide this Forum. Thus, the acts and conduct of the O.P. No.1 & 2 termed as unfair trade practice. Consequently, the O.P. No.4 must be penalized for filing false statement before this Forum only to help the O.P. No.1 & 2 who deprived the Complainant.
Thus, in our considered view, we hold that as the Complainant has been able to prove the deficiency in service of the O.Ps. As such, the Complainant is entitled to get relief as prayed for. The O.P. No.1, 2 & 4 are also be penalized for their unfair practice in trade and to support an untrue facts.
Hence,
it is ORDERED that,
The present Case No. CC/58/2013 be and the same is allowed on contest against the O.P. No.1 & 2 with cost of Rs.5,000/- and without any cost against the O.P. No.4 and dismissed in ex-parte against the O.P. No.3 without any cost.
The O.P. No.1 & 2 are directed to refund the amount of Rs.93,531/- along with compensation of Rs.50,000/- to the Complainant for mental pain and agony also harassment.
The O.P. No.1 & 2 are further directed to deposit Rs.25,000/- as penalty to the State Consumer Welfare Fund, W.B. for production of false document before this Forum and adopting Unfair Trade practice.
The O.P. No.4 is directed to deposit Rs.10,000/- as penalty to the State Consumer Welfare Fund, West Bengal for wasting the valuable time of the Forum also for filing false document.
The entire order shall comply by the opposite Parties within 30 days from the passing of this order, in default, the O.P. No.1, 2 & 4 shall pay Rs.100/- for each day’s delay and the amount to be accumulated shall be deposited to the State Consumer Welfare Fund, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
