Dt. of filing -19/09/2018

Dt. of Judgement -28/05/2019

Mrs. Sashi Kala Basu, Hon’ble President

            This consumer complaint is filed by the Complainant namely 1) Sri Basumitra Dasgupta under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) TVS Motor Company Ltd., 2) Chairman & Managing Director, TVS Motor Company Ltd., 3) Shubh Auto 4) Vivek Mishra and 5) Robin alleging deficiency in rendering service on their part.

Case of the Complainant in short is that Opposite Party No.1 & 2 are engaged in business for manufacturing and selling of motor vehicles and Opposite Party No.3 is the authorized main dealer of motor vehicles for Opposite Party No.1 & 2. Complainant purchased two wheeler motor cycle TVS i.e. Apache RR 310 on 13/5/2018 only available with the Opposite Party No.3 on payment of consideration. He paid booking amount of Rs.50,000/- as advance and rest of the amount i.e. Rs.2,14,500/- was paid by way of taking finance(loan) from HDFC Bank. Said TVS motor cycle being Model Apache RR 310, Engine No.0S1DJ1X02888 and Chassis No.MD638AS19J1B01269 was delivered to the Complainant on 1st July, 2018 along with certain documents which included invoice, road challan, insurance copy, TCR copy. Opposite Party No.3 through Opposite Party No.4 & 5 expressed inability to get the permanent registration done of the said vehicle and requested the Complainant to get it done by himself. They assured that they will refund the amount of Rs.22,540/- by way of cheque along with all requisite documents for the said permanent registration. But Opposite Party No.3 neither handed over the documents nor the amount as assured to be paid to the Complainant. Complainant out of curiosity checked TCR given to him by Opposite Party No.3 but was shocked to find that after scanning the QR Code (Quick Response Code), the Chassis number of the said vehicle mentioned in the TCR did not match with the one mentioned in invoice, insurance, road challan and TCR. So the matter was immediately informed to the Opposite Party over phone. But they did not pay any heed. Chassis number in QR Code of TCR is MB638AS1XJ1B04178. Opposite Party No.3 has charged Rs.13,000/- for providing the Complainant with the TCR. So the motor cycle was delivered to the Complainant without accurate TCR and as such the vehicle could not be permanently registered. Said TCR provided by the Opposite Party is forged one. Complainant is thus unable to ply the said vehicle and due to the latches on the part of the Opposite Party, the said TVS is nothing but a junk machine. Complainant sent a notice and also sent several e-mails but of no use. The manufacturer/dealer under the prevalent laws is bound to provide the sale certificate for the registration of the vehicle, in case they are unable to facilitate the registration for buyer of a vehicle. So the present case has been filed by the Complainant for directing the Opposite Party to deliver a new TVS motor cycle in alternatively directing the Opposite Parties to handover the original documents required for registration of the said vehicle, to pay sum of Rs.32,540/-, to pay compensation of Rs.16 lakhs for mental stress and agony and litigation cost of Rs.50,000/-.

            Complainant has annexed with the petition of complaint, money receipt showing the payment of booking amount of Rs.50,000/-, letter by the HDFC Bank showing taking of loan and disbursement of Rs.2,14,500/- , statement of bank account, other receipts showing payment of EMI, invoice issued by Opposite Party No.3, copy of TCR, scan copy of QR Code mentioned in the TCR, copy of notice sent by the Complainant through his Ld. Advocate.

            Opposite Party No.3 & 4 contested the case by filing written version denying and disputing allegations made in the complaint petition contending inter alia that Opposite Party No.3 is not the only dealer of Opposite Party No.1 & 2. It is further disputed that any temporary certificate of registration or its copy was given to the Complainant by them at the time of delivery of the vehicle. Opposite Party when submitted the application before the registering authority, Howrah for temporary registration of the vehicle, registering authority, Motor Vehicles Department, Howrah did not proceed with the said application because the driving license of the Complainant was issued from the state of Orissa. Several times driving license issued by the Government of West Bengal was asked from the Complainant. But the Complainant did not co-operate. As the Complainant himself failed to submit the documents required by the Motor Vehicles Department, Howrah, Opposite Parties have not rendered any deficiency in service and thus they have prayed for dismissal of the case. It is also stated that this Forum does not have the territorial jurisdiction to adjudicate the dispute. 

            No step taken by the Opposite Party Nos.1, 2 & 5. The case proceeded ex-parte against them.

During the course of evidence Complainant adduced evidence, but, no step was taken by the OPs for filing any questionnaire against the evidence of the Complainant and neither any evidence was adduced by the OPs in spite of opportunity given to them. Thus the case was ultimately fixed for hearing of argument. However, at the stage of argument, OP No.3 appeared and filed the  written notes of argument as well as argument was advanced by the Ld. Advocate for OP No.3. He has cited certain case laws in support of his argument that this Forum lacks the territorial jurisdiction and further that allegation of fraud and cheating being a criminal liability cannot be adjudicated by this Forum in a summary procedure. He has cited the case laws reported in (2010) 1 Supreme Court Cases 135 (Sonic Surgical VS National Insurance Co. Ltd) and reported in 2015(1) (P) 422 (M/S Shivan Project Pvt. Ltd. VS Toyota Kirloskar Motor Pvt. Ltd.). Ld. Advocate for OP has also cited the case law reported in (2002) 2 SCC 1 (Simco Industries VS State Bank of Bikaner) on the point that if huge amount of compensation is claimed, same can only be decided by a Civil Court as the detail evidence would be required.

            On the other hand Ld. Advocate for Complainant has also referred to certain case laws on the point that this Forum has the territorial jurisdiction to try the case. He has relied on the case law reported in 2017 (SCC 2) on line NCDRC 51 (M/S Ghati Ltd. VS M/S Synergetic Automation Technologies) and another case law reported in 1998 CPJ (3) 447.

            Ld. Advocate for Complainant has also drawn our attention to certain provisions of the Motor Vehicle Act.

            So, on the backdrop of the argument advanced by both the parties, following points are required to be determined.

            (1) Whether the case is maintainable in its present form?

            (2) Whether there has been any deficiency in service or unfair trade practice on the part of the OPs?

            (3) Whether the Complainant is entitled to the reliefs as prayed for?

            Decision with reasons

            Point No.1:

            Ld. Advocate for OP has argued that excepting OP No.1 none of the OP’s address falls within the territorial jurisdiction of this Forum. It is argued that OP No.1 is the branch office and in no way connected with regard to the dispute as agitated in the complaint petition. As already referred to above, he has relied on the case law of Sonic Surgical (Supra).

            It may be pertinent to point out that as per Section 17 of the CP Act a complaint shall be instituted in the State Commission against the OPs where the OP (Anyone of them) actually and voluntarily resides or carried on business or has a branch office or personally works for gain. The Clause 2 of Section 17 was inserted by way of amendment which came into effect from 15.3.2003. But Section 11 of the Act which deals with the jurisdiction of the District Forum provides that the complaint shall be instituted against the OP, where he actually and voluntarily resides and carries on business or has a branch office or personally works for gain. The said provision has been there since June, 1993.

            In the case of Sonic Surgical referred to by the OP, it is apparent that the fact involved therein was of 1999. If that be so, then in view of the provision under Section 17 as the branch office was inserted by way of amendment in 2003, the Hon’ble State Commission of Chandigarh did not have any jurisdiction as incident had taken place at Ambala. So far as the observation in the said judgment by the Hon’ble Apex Court about ‘branch office’ in the amended section would mean the branch office where the cause of action has arisen, same has been discussed by the Hon’ble NCDRC in the case of M/S Ghati Ltd. (Supra) that the observation made by the Hon’ble Apex Court in Sonic Surgical VS National Insurance Co. Ltd. (Supra) is at best ‘Obiter’ depending upon the case in that case. So, the Hon’ble NCDRC in the case of M/S Ghati has distinguished judgment of Sonic Surgical  that the observation regarding expression branch office in the amended Section 17(2) was obiter dicta.

            In this case, the case of the Complainant apparently is that the OP No.2 is a Company engaged in business of manufacturing and selling of motor vehicles and OP No.1 is the branch office and engaged in the business of manufacturing and selling of motor vehicles. OP No.3 is the authorized main dealer of OP No.1 & 2, wherefrom the Complainant has purchased the vehicle in dispute.

            So, on consideration of the fact that OP No.1 is the branch office, contention of OP No.3 that this Court lacks the territorial jurisdiction cannot be accepted in view of Section 11 of CPAct as referred to above.

 So, on consideration of the discussions as highlighted above, complaint is maintainable before this Forum and thus the point is answered accordingly.

Point No.2 & 3

Both the points are taken up for a comprehensive discussion in order to avoid repetition. In this case it is an admitted fact that the OP No.1 & 2 are dealing with the business of manufacturing of motor vehicles and OP No.3 is the authorized main dealer of motor vehicles manufactured by OP No.1 & 2. It is also an admitted fact that Complainant had booked a two wheeler motor vehicle TVS Apache RR 310 with the OP No.3 on 13.5.2018 and had paid an amount of Rs.50,000/- as advance by way of cheque. It is also an admitted fact that he had taken the finance for the rest of the amount of Rs.2,14,000/- and there was disbursement of entire amount by the HDFC Bank to the OP No.3. OP No.3 delivered to the Complainant TVS motor cycle being model Apache RR 310, Engine No.OS 1 DJ1 X 0288, Chassis No.MD 368 AS 191 B01269 along with certain documents which included invoice, road challan, insurance copy. However according to Complainant he was also handed over the TCR (Temporary Certificate of Registration) which is denied by the OP No.3. So, the bone of contention is whether the Temporary Certificate of Registration was handed over to the Complainant as claimed by him. It may, however, be mentioned here that according to Complainant on the basis of the said TCR, the QR Code mentioned therein when scanned, it was found that the Chassis No. of the vehicle did not match with the one mentioned in the invoice, insurance, road challans and TCR. So, according to Complainant the OP has adopted unfair trade practice.

Under Section 47 of the Central Motor Vehicles Rules, 1989, which deals with filing of application for registration of motor vehicles provides that the application has to be annexed with the documents stated therein which includes the temporary registration certificate, if any. Section 39 of Motor Vehicle Act 1988 makes it mandatory for registration of motor vehicle and Section 43 of Motor Vehicle Act provides temporary registration of motor vehicle which shall be valid only for a period not exceeding one month. So, there is provision of temporary registration of motor vehicle. It has also not been disputed and denied by the OP No.3. The contention of OP No.3 is that they had applied for temporary registration of the vehicle but the registering authority did not proceed with the registration as the driving license of the Complainant had address of the State of Orissa and was not issued by the Govt. of West Bengal. Ld. Advocate for the OP No.3 has cited the case being writ petition No.16169 of 2018 and has pointed out to the Advisory relating to two wheeler motor vehicle issued by the Govt. of West Bengal containing the guidelines to be complied at the time of registration.

As per Section 47 of Central Motor Vehicle Rules the application for registration of a motor vehicle shall be made in form 20 to the registering authority within a period of seven days from the date of taking delivery of such vehicle. Admittedly, the vehicle in this case was delivered to the Complainant on 1.7.2018. The OP has not stated anywhere as to when exactly they had applied before the registering authority for registration of the vehicle in question in this case. The legal embargo agitated by OP No.3 imposed by the Transport Dept., Govt. of West Bengal, is dated 28.6.2018.

On a careful perusal of Rule 47(f) of the Central Motor Vehicle Rules, 1989, it suggests that temporary registration, if any, has to be annexed with the application. So, the said provision is sufficient indication of the fact that the temporary registration, if any, is done prior to making of a application under Rule 47. It is evident from the petition of complaint that the two wheeler motor bike in question was booked by the Complainant on 13.5.2018 and an amount of Rs.50,000/- was paid on the said date as an advance by way of cheque, to OP No.3. If OP No.3 had applied for registration as claimed by it after delivery of vehicle in question then it could not be for Temporary Registration but for permanent registration in view of Rule 47 referred to above.

The documents annexed with the complaint petition which include a quotation issued by the OP No.3 with regard to the said TVS, it appears that Rs.35,540/- has been charged towards tax, registration and Smart Card. According to the Complainant, he has paid the entire amount of Rs.2,64, 540/- including the said Rs.35,540/-. Complainant by way of adducing evidence has stated that the OP No.3 has claimed that an amount of Rs.13,000/- has been spent for providing temporary certificate of registration and assured to the Complainant that the rest of Rs.22,540/- will be refunded to the Complainant by the OP No.3 but no such amount has been refunded. It is also claimed by the Complainant that actual amount spent for providing TCR was Rs.3,000/- but OP No.3 has charged Rs.13,000/. We have already highlighted that the OP No.3, in spite of getting opportunity to adduce the evidence, has not adduced any evidence. So, if Rule 47 is taken into consideration that within seven days of delivery of the vehicle, the application for registration has to be made annexing the documents mentioned therein including the temporary registration certificate, if any, coupled with the claim of the Complainant that an amount of Rs.13,000/- has been charged by the OP No.3 for providing the TCR then in the absence of any contrary evidence, the claim of the Complainant that the temporary certificate of registration has been issued by the OP No.3 cannot be ruled out.

This Forum has also taken note of the fact that on scanning the QR Code (Quick Response Code) shown in the TCR filed in this case by the Complainant, it appears that the chassis number of the vehicle appearing/embedded in the QR Code did not match with the one mentioned in the invoice, insurance and the road challans as well as in the TCR. The chassis No. appears as MD638ASXJIB04178 in place of MD638AS19J1B01269. Much argument has been advanced by the Ld. Advocate appearing on behalf of OP No.3 that the allegation of cheating is purely a criminal liability and thus beyond the jurisdiction of this Forum to adjudicate the same. But, in view of the discussions as highlighted above, relating to provision of Rule 47 read with the unrebutted evidence of the Complainant, said argument of the OP is of no substance. It is true that as per the advisory issued by the Govt. of West Bengal, which is dt.28.6.2018, the person applying for registration should be having the licence issued from the Govt. of West Bengal and the Complainant has the licence issued from the Govt. of Odhissa, but if the OP No.3 had not misled the Complainant by issuing a wrong temporary certificate of registration, the vehicle in question would not have been lying unused by the Complainant. There cannot be any denial and dispute that the said two wheeler vehicle is lying unused due to its non-registration and as the wrong TCR was issued by the OP No.3, there has been unfair trade practice on the part of OP No.3. So, on this ground, Complainant is entitled to replacement of the TVS and refund of the amount paid by him towards registration. However, it is made clear that the step towards registration of the replaced two wheeler vehicle will have to be taken by the Complainant himself. Since there is direction given to the OP to deliver a new TVS motor bike in place of the TVS already delivered and lying with the Complainant, there is no justification to allow the compensation as prayed by the Complainant. The Complainant shall handover the TVS motor bike supplied in question to the OP No.3 for delivery of a new one in its place.

 Thus these points are answered accordingly.

Hence

                        Ordered

CC/569/2018 is allowed on contest against OP No.3 and dismissed, ex-parte against other OPs. OP No.3 is hereby directed to deliver a new TVS motor bike i.e. Apache RR310 on receiving the old TVS being Apache RR310 bearing Engine No.OS1DJ1902888 and chassis No.MD638AS19J1B01269 from the Complainant, within two months from the date of this order. OP No.3 is further directed to refund Rs.22,540/- to the Complainant within the aforesaid period of two months and further pay litigation cost of Rs.10,000/-, in default the entire amount shall carry interest @ 8% p.a. till realization.