Sri. Apurba Kr. Ghosh ……...................President

The Complainant has filed this case under section 35 of the Consumer Protection Act against the OP’s and praying for the following relief / orders:-

1. To get registration as soon as possible.
2. To return the price/ charges paid.
3. To thoro check up of a scooter, if any defected part found, needs to be changed.
4. To renew the insurance (paid if any fine for delay charge)
5. To pay litigation expenses.
6. Compensation on account of financial loss or injury or mental, physical harassment caused by the negligence cause by the OPs.

The complainant also praying for:-

1. Direction against the OP’s to pay the complainant a sum of  Rs. 20,000/- for not issuing RC number.
2. Direction against the OP’s to pay Rs. 20,000/- for mental agony/ harassment.
3. Direction against the OPs to pay a sum of Rs. 50,000/- for daily travail expenses / financial loss.
4. Direction against the OP’s to pay a sum of RS. 10,000/- to the complainant towards cost of legal expenses.
5. Direction against the OP to pay a sum of Rs. 2500/- to the complainant for injury, hospital expenses and also praying for necessary order which the complainant is legally entitled.

BRIEF FACT OF THE COMPLAINT

1. Complainant is a peace loving citizen and the OP No. 1 is the owner of the Shree Automobiles Showroom Siliguri, and engaged in the business of selling two wheeler Two wheelers of Piaggio Two wheeler Pvt. Ltd. Company to the public within the Siliguri. OP no. 2 is the manager of the said company.
2. That the complainant booked a brand new scooter of Piaggio Two wheelers Pvt. Ltd. by making advance payment of Rs. 10,000/- from Shree Automobiles Showroom Siliguri on 27.03.2021 (booking slip is annexed as Annexure-A1).
3. That the complainant made cash payment of Rs. 1,30,000/- including RC registration charges and bought a scooter of Piaggio Two wheeler from the said showroom being engine No. M853m3041481, Chassis No. MET00007A1D005910, Color-Red, Model- LX Club with full formalities from Shree Automobiles showroom Siliguri on 26.07.2021. (Purchase bill Annexed as Annexure-A-2).
4. That the complainant also made cash payment for getting registration number on the same day which the dealer was supposed to deliver it within 15- 20 days from the date of purchase of a scooter.
5. Almost one and a half years the OP has failed to provide the registration certificate along with registration number to the complainant/ before purchasing scooter the complainant was promised by the dealer that she does not have to face any problems and there would not be disappointment or regret caused from the OPs.
6. That the complainant have literally begged for the RC Number several times and she tried for seeking help all the possible ways to get registration certificate  from the OP and the complainant had been tolerating harassment of the said OPs since from the first day and the Manager who was  responsible to help the complainant but he made no effort to help the complainant. The manager spoke to the complainant in a very indecent manner.
7. That the OP without providing registration certificate/ number for which the complainant  had already made payment and in fact  the complainant  had requested several times but the manager of the OP did not bother about  the same and the complainant  tried to bring the problems to the OP’s attention and try to seeking for help with complete disappointment  and frustration but the manager of the OP no. 1  told the complainant  “it is not like selling potato and onion” which is nothing but the negligence and unfair trade practice of the OPs as the complainant has suffer mental and physical  and financial harassment from the day one.
8. That the complainant was charged  Rs. 5,000/- for defected fuel pump but the fact was that company itself was providing the fuel pump and that due to extreme carelessness and negligence of the above OPs, the performance of the scooter  now has become more worst and one and a half years the complainant could not ride her scooter since the complainant does not have the proper documents with her that’s Registration number.
9. That the scooter of the  complainant is now lying useless with no registration certificate and according to law it is illegal to ride Two wheeler without registration, and the complainant is not able to enjoy the Two wheeler since the date of its delivery.
10. That one day while she was running from her working place to home she met with an accident and had to visit doctor and the complainant would not have to face so much trouble if she has had her own Two wheeler. (Doctor’s bill annexed as Annexure- A-3).
11. That due to non use of the Two wheeler the engine became worse and battery became die and fuel pump will get defected as it need to furnish fresh fuel pump so overall the condition of the scooter is worse and it does not remain as a new scooter anymore. And the engine of the scooter has rusted and does not function as a new scooter though the complainant had purchased  new scooter not a second hand scooter from the OP and due to negligence  act of the OPs the complainant has to face a huge loss and for which the OPs are  sole responsible  for the loss of the complainant. That it was the duty  of the manager of the OP no. 1  to upload the required documents on the system for getting registration number of the scooter but till now  the manager have not been uploaded  the required documents on the system  and though the  complainant was  supposed to  receiving  SMS form RTO within 2- 3 days  when the registration process was initiated  by the RTO but till now the complainant have not even received any single SMS from the authorized office which means the OP had failed to perform their duties carefully.
12. The OP extended date after date and took full advantage of complainant’s innocence though the complainant has been facing same problem but the OP took no initiative for getting registration of the Two wheeler and subsequently when the complainant went to Bhaktinagar Police Station seeking for help the Police of that PS cooperate the complainant and try to help her. And subsequently on 03.08.2023 the OP had refund the amount to the  complainant which they have received for registration of the Two wheeler through Google Pay (google pay slip annexed as Annexure-A-4).
13. That after receiving the said sum of money without any delay she visited the RTO office for the registration but there she was told that the registration cannot be done unless it is initiated by the authorized dealer and the dealers need to have valid trade certificate with state RTO and the complainant told by the RTO officer that there is certain process and formalities which has to be done by a registered dealer before issuing of the RC registration certificate number from RTO.
14. That after entering the details and submission of documents the request for RC can be process through RTO office and the original documents of the RC will be issued and dispatched by the state RTO after completion of process done by the  dealer but the OPs in this case took no initiative for getting registration of the scooter in question.
15. That till today the complainant did not get the registration certificate/ number from the RTO and that’s why she is suffering from mental pain, agony due to negligence act of the OPs.

In support of the complaint the complainant has filed the following documents:-

1. Copy of relevant extract of “booking slip” of the scooty executed between the complainant and the OP as Annexure- A-1.
2. A copy of purchase bill of the scooty as Annexure- A2.
3. A copy of Doctor’s bill of a complainant as annexure- A-3.
4. A copy of Google Pay amount received by the complainant as Annexure- A-4.
5. A copy of  additional documents of a complainant as Annexure-A-5.

Notice was issued from this Commission for serving the same upon the OPs. Despite receiving notice the OPs have not appeared before this Commission to contest this case and that’s why the case is proceeding ex-parte against the OPs.

Having heard the Ld. Advocate of complainant as well as documents filed by the complainant the following points are taken to be decided by this Commission.

POINTS FOR CONSIDERATION

1. Whether the Complainant is a Consumer as per the provision of C.P. Act.?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the Complainant?
4. Whether there was deficiency in service on the part of the OPs as alleged by the Complainant?
5. Is the Complainant has able to prove this case and entitled to get any relief as prayed for?

                   DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for sake of convenience and brevity of this case.

          In order to prove the case the complainant has adduced evidence in the form of an affidavit. In the written evidence the complainant has specifically corroborated the statement so made in the written complaint. In her evidence the complainant has specifically stated on which day she booked for purchasing the scooter from the OP Shree Automobile Showroom authorized dealer. She also stated  that the booking amount for purchase the scooter and she further stated  in her evidence on which day she took deliver after making  payment of Rs. 1,30,000/- to the OP No. 1. The complainant has further stated that OPs have assured the complainant for getting registration of the scooter but despite receiving  the said sum of money the OPs have not taken any initiative  for getting registration of that scooter. In the written  evidence the complainant  has further stated that on several occasions the complainant rushed to the OPs  and requested them for getting registration number of that scooter when the OPs have not taken any initiative  and due to their negligence as well as deficiency in service they failed to give registration number as well as registration certificate from the competent authority. The complainant has also stated that subsequently  after one and a half year when the complainant  rushed to the police of Bhaktinagar PS for getting Redressal they took initiative and asked OPs to provide the RC registration number to the complainant  but without making any help to the complainant they refunded a sum of Rs. 14,000/- to the complainant on 03.08.2023 through google pay in the account of the complainant. The complainant has further stated  in her evidence  that subsequently  when she went to the RTO for getting registration of the scooter they denied on the grounds  that there is some formalities  which needs to be taken by the OPs that’s dealer of the showroom.

At the time of argument the complainant being a Lawyer argued that, She has already filed Written Notes of argument and stated everything there regarding this case. She also argued that, in her written Complaint as well as in her evidence which are supported by an affidavit she specifically stated that on 26/07/2021 she purchased one scooter of Vespa Club CBS bearing Engine No. M853M304148, Chasis No. MET 00007A1D005910 from Shree Automobiles by paying a sum of Rs. 1,30,000/- which also includes Insurance and cost of registration of the Two Wheeler. She also argued that at the time of purchase of Two Wheeler both the OPs being the owner of the Showroom disclose that they will delivered RC Registration No. within 15 to 20 days from the date of purchase. She further argued that both the OPs took no initiative for getting registration of the Two Wheeler within one and half year though the complainant on several occasions went to the OPs, requesting them for proving registration No. of her Two Wheeler but they did not bother to the complainant which is negligent act of both the OPs. Complainant herself further argued that due to non availability of RC registration she was/is not able to ply the Two Wheeler for one and half years from the date of purchase and one day she met with an accident while she was travelling from her work place to her home, for which she was compelled to visit a doctor and such situation would not have arisen had the complainant had her own bike with usual RC registration. She further argued that due to negligence of the OPs her Two Wheeler is remained in an unused condition which started deteriorating and the complainant was unable to go to her work place. She further argued that subsequently she was compelled to go the police of Bhaktinagar police station and inform the matter verbally and due to the intervention of the police of Bhaktinagar PS the OPs had refunded a sum of Rs. 14000/- to the complainant on 03/08/2023 which they had taken from the complainant towards cost of Registration of the Two Wheeler. It is further argument of the complainant that, after receiving the sum of money from the OPs she went  to the office of the RTO for getting the registration of Two Wheeler wherefrom she was told that registration cannot be done unless it is initiated by the Authorized dealer/Showroom and thereafter on several occasions she went to office of the OPs, requested them for getting the registration no. from the RTO i.r.o the Two Wheeler but they refused to do the same on the plea that they had already refunded the charges which they had taken for registration number of the Two wheeler. The complainant further argued that due to negligence on the part of OPs the Two Wheeler of the complainant is lying in useless condition though it was purchased by her as new one. The complainant herself has further argued that both the OPs being the owner cum dealer of the showroom had failed to take note that the date on which the scooter leaves the showroom which is the duty of the manager to enter and upload all the documents on the system but they have not uploaded any documents in the system which require for getting registration numbers of the Two Wheeler.  It is further argument of the complainant that both the OPs had ignored and refused to accept the inconvenience caused from their end who deliberately took no initiative for getting registration no. from the RTO and that’s why they caused mental pain, agony, harassment to the complainant which is nothing but the deficiency of the service as well as unfair trade practice on the part of the OPs. The complainant has also argued that she has been able to prove her case not only by adducing evidence in the form of an affidavit but also she filed documents regarding purchase of two wheeler i.e. booking slip, bill of the Two Wheeler also and she is entitle to get the relief as prayed for.

At the time of hearing of argument Ld. Advocate of the OPs argued that previously the OPs were not able to attend before this Commission due to serious hardship both personally and financially owing to an untimely death in the family when they were given chance for submitting their Written version and due to non filing of Written Version the case was proceeding ex-parte against both the parties. Ld. Advocate of the OPs further argued that subsequently they appears before this commission  as per verdict of the Hon’ble Apex Court the OPs were given liberty to file Brief notes of argument and also given liberty to take part during hearing of argument of this case. Ld. Advocate of both the OPs has argued that they have filed  BNA and stated everything there. It is further argument of the OPs that the complainant has no cause of action to file the case against the OPs as both the OPs had already refunded the RC registration cost of Rs. 14000/- to the complainant and that’s why the OPs have/had no liability or duty towards the complainant in respect of registration of the Two wheeler in question. Ld Advocate of the OPs further argued that the complainant is not a consumer as defined under the Consumer Protection 2019 section 2(7) of the said act on the grounds that the complainant in her complaint Para no. 34 has stated that the OPs had refunded the registration cost to her and that’s why she is not a consumer and there is/was no relationship between the complainant and the OPs.  Ld. Advocate of the OPs has also argued that the instant complaint is barred by Law of limitation as the complainant has purchased the Two wheeler on 26/07/2021 and she filed this case on 24/09/2023 which is after two years from the alleged Cause of Action.  Ld. Adv of the OPs has also argued that this Commission has no territorial jurisdiction to entertain this case as the complainant is not residing within the jurisdiction of this commission and she is residing permanently within the District Darjeeling which is reflected from her cause title and when she purchase the two wheeler from the OPs then she was the resident of Sevoke Road, Anand Bihar opp. PBR tower, Don Bosco Colony Siliguri 734001 which is situated under Bhaktinagar Police Station under District Jalpaiguri. Ld. Advocate of the OPs in this regard argued that due to lack of territorial jurisdiction this case is not maintainable in the eye of law. It is also argument of the OPs that the complainant has not implead Shree automobiles as OP of this case which is a partnership firm consisting of Four Partners. It is also argument of the side of the OPs that the complainant being a greedy person has filed this case with a view to extort money from the OPs and also to harass them knowing fully well that the OPs had refunded the registration cost to the complainant and that’s why she is not entitled to get the relief as she is not a consumer of this case. Ld. Advocate of the OPs  praying for dismissal of this case.

Having heard both the side and on perusal of written Complaint, evidence of complainant as well as brief notes of argument of the parties it is admitted fact that the complainant has purchased one Two Wheeler of Vespa Club CBS bearing Engine No. M853M304148, Chasis No. MET 00007A1D005910 from Shree Automobiles by paying a sum of Rs. 1,30,000/- on 26/07/2021. It is also admitted fact that when the complainant purchased the said two wheeler she was given money receipt where it was reflected that the sum of Rs. 1,30,000/- includes insurance and registration cost.

It is also admitted fact that it was the duty as per latest rules of Motor Two wheelers Act that the Showroom will arrange for getting Registration  Number of the Two wheeler for supplying the same to the purchaser within 15 to 20 days from the date of sale of the Two wheeler in question.       

It is not the case of the OPs that the complainant had not paid the charges for the registration of the Two wheeler. On the other hand it is positive case of complainant that both the OPs at the time of delivery of two wheeler disclosed her that they will arrange for getting Registration Number of two wheeler within a short period.

          In the case in hand the complainant is claiming that the OP’s have neglected to arrange for getting Registration number of the two wheeler within a reasonable period despite receiving the charges for the same. But the OP’s are claiming that, as the complainant had received  the charges of Rs. 1,4000/- from her which they had taken from the complainant as cost of RC Registration and that’s  why the complainant is not a consumer under the provisions of the Consumer Protection Act.

          Now let us see how far the complainant has been able to prove the case against the OP’s or how far the OP’s have been able to falsify the case of the complainant or not?

          From the admission of the parties it is fact that, the complainant has adduced evidence before this commission by filing written evidence in the form of an affidavit. But the said evidence of the complainant has not been challenged by the OP’s either by filing evidence on their behalf or by filing counter Affidavit or through cross examination of the complainant (witness) by putting questionnaires.

          The OP’s has claims that the complainant is not a consumer as defined under Sec. 2 (7) of the Consumer Protection Act as the complainant has stated in Para No. 34 of the complaint that, “the refund for RC Registration number was done on 03.08.2023 through Google Pay”. In the Brief notes of Argument in one para the OP’s have admits that the complainant had purchased one two wheeler from the Shree Automobile Showroom on 26.07.2021. But in another para the OP’s have claims that as the OP’s had refunded the cost of Registration number to the complainant on 03.08.2023 and that’s why she is not a consumer. From those two claim of the OP’s it is not clearly  explained as to what are their actual defence? On the other hand it is settled provisions of law that no one is permitted to blow hot and cold at the same time. Moreover from the admitted fact of purchased of a two wheeler from the showroom of the OP’s clearly proves that the complainant is obviously Consumer as defined under the Act.

          The OP’s in their Brief Notes of Argument and during hearing of argument Ld. advocate of the OP’s has claimed that, the instant complaint is barred by law of limitation in view of the Section 69 of the Consumer Protection Act on the ground that, the complainant had purchased the two wheeler from the showroom of the OP’s on 26.07.2021 and she filed this case on 24.09.2023 which is more than two years. But from perusal of the entire record including the evidence of the complainant and from the brief notes of argument of the parties it appears that the OP’s have not come in clean hand before this Commission. Both the OP’s are suppressing the actual fact before this Commission because it is fact that, the complainant had purchased the said two wheeler on 26.07.2021 and cause of action of this case is started from that very date of purchase but the said cause of action is still continuing because till today the OP’s have neglected to provide Registration Number of the two wheeler to the complainant. The OP’s have also admits that, they refunded the cost of Registration to the complainant on 03.08.2023 and that’s why it can safely be presumed that the cause of action of this case is/was continuing till 03.08.2023. Be that as it may it is also not the case of the OP’s that  why they failed to provide RC Registration number of the two wheeler to the complainant from the RTO prior to 03.08.2023?

          It is admitted case of the OP’s that they sold the two wheeler to the complainant on 26.07.2021 and they refunded the cost of RC Registration Number to the complainant on 03.08.2023. But they have failed to explained as to why they did not provide the same to the complainant since after 26.07.2021 to 03.08.2023? That non supply of RC Registration Number of the Two wheeler of the complainant by the OP’s are nothing but their deficiency of service as well as unfair trade practice for which the complainant has suffered mental pain, agony and harassment.

          Both the OP’s have also claims in their brief notes of argument and during hearing of argument Ld. advocate argued that, this Commission has no territorial jurisdiction to entertain this case as the complainant is residing within the jurisdiction of Darjeeling District and the OP’s show room is situated within the jurisdiction of Bhaktinagar Police Station under District Jalpaiguri. But from careful scrutiny of the documents which are produced by the complainant it appears that the complainant is an advocate of the Siliguri Bar Association  by profession and she is personally works for gain within the jurisdiction of Siliguri P. S. Accordingly as per the provisions of section 34(d) of the Consumer Protection Act the Complainant has every right to file this consumer case before this Commission and this commission has also sufficient jurisdiction to entertain this case.

          The OP’s have also claims that, the complaint is barred for non joinder & misjoinder of necessary party on the grounds that, the complainant has not impleaded the Shree Automobiles which is a partnership firm considering of 4 partners of whom one partner has died. But in the written notes of argument under caption “Barred by Limitation” the OP’s have admits that the complainant had purchased the said two wheeler from the Opposite Parties showroom.  From the admission of the OP’s it is proved that, the complainant has filed this case against the OP’s who are none but the owner of the showroom.

          Considering the unchallenged evidence of the complainant and considering the documents filed by the complainant we are of the view that, the complainant has been able to prove the case against the OP’s to the effect that there is/was deficiency of service as well as unfair trade practice on the part of the OP’s who have neglected / failed to give proper service to the complainant by providing her RC registration Number of the Two wheeler from the RTO. Both the OP’s are jointly and severally liable to pay the awarded amount to the complainant.

Considering all we are of the view that the complainant is entitled to get back he purchase price of the two wheeler after deduction of refunded amount of Rs. 14,000/- which the OP’s had refunded to the complainant.

Hence, it is therefore

O R D E R E D

That the instant Consumer case being  in No. CC/128/2023 is hereby allowed but in part. The OP’s are directed to refund the sum of Rs 1,30,000/- (Price of the two wheeler) — Rs.14,000/- (Refunded to the complainant) = Rs.1,16,000/-(Rupees one lakh Sixteen Thousand) only as the OP’s have neglected to provide RC Registration number to the complainant within one and half years from the date of purchase of the two wheeler.

The OP’s are also directed to pay a sum of Rs. 30,000/- (Rupees thirty thousand) only to the complainant towards compensation for deficiency of service as well as unfair trade practice and  for  causing mental pain and agony caused to the complainant. The OP’s are also directed to pay a sum of Rs.10,000/-(Ten Thousand Rupees) only to the complainant towards cost of legal proceedings  and the OP’s are further directed to pay a sum  of Rs.10,000/-(Ten Thousand Rupees) only in the Consumer Legal Aid Account of this commission.

 The OP’s are directed to pay the awarded amount within 45 days from this day failing which they will have to pay interested @ 6 % per annum to the complainant with effect from 26.07.2021 till making payment of the entire amount.

 The complainant is directed to hand over the two wheeler to the OP’s or their authorized person by producing the same at her own cost, in the ground Floor of this commission in its present condition in presence of the Ld advocate of the OP’s and in presence of the registrar of this commission who will do the needful and on the same day the Demand Draft/ Cheque be handed over to the complainant if the OP’s have deposited the same.

Unless or until the Two Wheeler is produced in the ground floor of this commission Demand Draft/ Cheque will not be given to the complainant.

If this type of judgement is not passed against the owner of the show room it will send a wrong signal not only to the family members of the complainant but also the society at large and every one will say that there is no need to file any consumer case before the Consumer  Commission.

Let a copy of this order be given to the parties free of cost.