FINAL ORDER/JUDGMENT   

SMT. SUKLA SENGUPTA, PRESIDENT

The complainant has filed this case on 07.11.2022 against the OP Toyota financial Services India Ltd. C/o Generali India Insurance Co. Ltd. and served the notice upon the OP.  The OP on receipt the notice has submitted the WV on 03.07.2023, but till date the complainant did not come before this Commission. Neither he collected the copy of the WV nor he filed the Evidence in chief supported by an affidavit even on repeated directions vide several orders passed by this Commission till date.

On a close scrutiny of the materials of the record it appears that since long the complainant is absent and did not take sort of steps in respect of his long absence.  Today Ld. Advocate for the OP was present in the Ejlash and submitted that the complainant was directed by this Commission to show cause vide order dated 22.09.2023 but till date neither he submits the show cause nor file the Evidence in chief.  Under such circumstances Ld. Advocate for the OP prayed for dismissal of the complaint case filed by the Evidence in chief

Considering the conduct of the Evidence in chief the commission is also of same view.  As per mandate of CP Act, 2019 the Commission is not in a position to dismiss the case in default.  Under such circumstances the case is taken for disposal on merit.

The complainant has filed the case against the OP Toyota financial Services India Ltd. alleging interallia that to earn his livelihood he booked an Omni Bus bearing Registration No. WB 98K 4747 being Chassis No. MBJABBS 30428040122, Engine No. 2GDA-5837981 for purchasing the same.  Accordingly, both the parties have entered into several agreements by and between themselves.  After completion of formalities, the complainant went to take delivery of the vehicle in question from the showroom of the OP but the OP failed and neglected to deliver the same to the complainant with excuse that the Company has already delivered the vehicle. The complainant further stated that he took the vehicle first time on down payment of a sum of Rs.3,00,000/- only.  He further alleged that due to failure on the part of the OP to deliver the vehicle in time the complainant is suffering financial loss of Rs.5,000/- per day on and from 02.02.2022 which comes to tune of Rs.1,50,000/- together with the valuation of the vehicle amount to Rs.21,40,350/- which has already been paid to the complainant to the OP, hence the complainant is prayed for refund of the amount of Rs.21,40,350/- together with Rs.15,00,000/- for mental agony. 

The complainant further stated that cause of action arose on 02.02.2022 and is continuing till filing of this case.  Hence prayed for refund of the valuation of the Car of Rs.21,40,350/- and Rs.15,00,000/- for mental harassment and agony.

The OP Toyota financial Services India Ltd. C/o Future Generali India Insurance Co. Ltd. has contested the claim application by filing WV dyeing all the material allegation leveled against them.  It is stated by the contesting OP that the petition if complaint is false, frivolous, vexatious and abuse of process of this Commission. No cause of action is/was there.  The answering OP is nothing but an insurer of the subject vehicle and it did not receive any claim intimation.  It is also the OP’s case that the complainant is not a consumer within the ambit of Consumer Protection Act and the case is bad of misjoinder and nonjoinder of necessary parties.  It is also alleged by the answering OPs that the Commission has no territorial jurisdiction to try this case and there is / was no deficiency in service on the part of the OPs, so the petition of complaint is liable to be dismissed with special cost.

In view of the above stated pleadings, it has to be considered by this Commission whether the complainant is a consumer or not within the ambit of CP Act, 2019 and whether he would be able to prove his case beyond all reasonable doubt.

Decision with reasons

Both the issues are taken up together for convenience of discussion and to avoid unnecessary repetition.

From the material on record it appears that except filing the petition of complaint before this Commission on 07.11.2022, neither the complainant nor his conducting advocate has appeared before this Commission till date.  The OP has appeared before this Commission and filed their WV in time.  But the complainant has got no time to come before this Commission and to receive the copy of the WV filed by the OP and to file the evidence in chief against the same. 

Under such circumstances without having any evidence from the end of the complainant this Commission is not in a position to hold the view that the complainant is a consumer within the ambit of CP Act, 2019 or he could be able to prove his case beyond all reasonable doubt against the OPs.  Even the complainant has violated the direction of this Commission because he was directed to show cause as to why necessary order shall not be passed against him but he did not feel any urge to file the show cause.  So, considering the conduct of the complainant and also considering the materials on record, this Commission is of view that the complainant is failed to prove by adducing evidence that he is a consumer as per CP Act, 2019 or that the allegations as raised in his petition of complaint are true beyond all reasonable doubt.  In that case the Commission hold that the complainant is failed to prove his case by any means and is not entitled to get relief as prayed for.

Hence,

ORDERED

that the case be and the same is dismissed on contest  without any cost.