Hon’ble Mrs. Rumpa Mandal, Member.
The brief fact of the case is that the Complainant Sri Souptik Biswas purchased one vehicle “CRETA VTVT 1.6E+” in the month of May, 2017 from Koushal Hyundai, Siliguri with financial help from SBI Alipurduar Bazar Branch. The total price of the said vehicle was Rs.9,99,900/-. The O.P. No.1 is a service centre under the name of “Maa Laxmi Automobiles Service Centre” and O.P. No.2 is an insurance company under the name of “Iffco Tokio General Insurance Company Ltd”. Due to the accident the said car was brought before the O.P. No.1. The O.P. No.1 demanded Rs. 3 Lakhs towards cost of repairing of disordered vehicle. The Complainant deposited Rs. 1 Lakh on 18.04.2019 and Rs.1,80,000/- on 11.10.2020. After expiry of stipulated period, the Complainant went to O.P. No.1 for receiving the said vehicle by paying the balance estimate amount but O.P. No.1 did not return back the same till date. The Complainant is the registered owner of the said vehicle and the said vehicle is used for his personal purpose and it is lying in O.P. No.1’s workshop under the open sky near about 33 months. Finding no other alternative the Complainant filed a legal notice through his Ld. Advocate before the Office of O.P. No.1. On 21.10.21 and 25.10.21 accordingly, through postal and courier service for having the same.
Due to the said misdeeds of the O.Ps the Complainant suffered mental pain, agony, pecuniary loss and unnecessary harassment. The cause of action for the present case arose on December, 2018 when the damaged vehicle was brought to the O.P. No.1 for repairing of damaged vehicle and on 18.04.19 and on 11.10.20 when the Complainant paid to the O.P. No.1 amounting to Rs.1 Lakh and Rs.1,80,000/- respectively and thereafter on subsequent date when Complainant filed legal notice through his Ld. Advocate before the O.P. No.1 on 21.10.21 and on 25.10.21 and is a continuing cause of action till the date of redressal of the grievance of the Complainant. The Complainant therefore prayed for the relief in terms of the prayer of the written complaint by replacing the vehicle free of cost as per specification or refund of price of the said vehicle of which the cost is Rs.9,99,900/-. The Complainant also prayed for Rs. 2 Lakhs for deficiency in service and unfair trade practice and Rs. 1 Lakh for mental pain, agony and harassment and Rs. 25,000/- towards cost of proceeding.
The O.P. No.1 contested the case by filing written version wherein he denied each and every allegation of the Complainant. The positive defence case of the O.P. No.1 in short is that the present case is filed for illegal gain which is hopelessly obtaining unlawful gain and to damage the reputation of the O.P. No.1.
As per written version O.P. No.1 stated that O.P. No.1 handed over a rough estimate to the Complainant on the basis of current price which may increase after a long period. The OP repaired the said vehicle at the first part of 2021 and intimated the Complainant but the Complainant did not respond. So, there was no deficiency in service. OP therefore claimed that the case is liable to be dismissed.
The O.P. No.2 finally did not appear. This Commission by its Order No.17 dated 06.02.23 decided to proceed with the case ex-parte against O.P. No.2.
Perused the case record and all documents submitted by the Complainant and the O.P. No.1. Heard, the argument advanced by both the parties at length. The question of fact and law involved in this case demand for ascertainment of the following points for proper adjudication of this case.
Points for Determination
- Whether the Complainant is a consumer or not?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the Complainant is entitled to get any relief as prayed for?
- To what other relief if any Complainant is entitled to get?
Decision with reasons
Point No.1.
The present case is filed against the service centre of O.P. No.1 where O.P. No.1 demanded Rs.3 Lakhs towards cost of repairing of disordered vehicle and the Complainant deposited Rs. 1 Lakh on 18.04.19 and Rs.1,80,000/- on 11.10.20.
After perusing the pleadings of the parties and the evidence in the case record it transpires that it is the admitted fact that the Complainant paid the said amount to the OP. The Complainant proved the said evidence from the bank statement of Central Bank of India amounting to Rs.1 Lakh through NEFT to O.P. No.1 i.e. Maa Laxmi Automobiles on 18.04.19 which is annexed by the Complainant as Annexure- F. Annexure-G is the money receipt of O.P. No.1 i.e. “Maa Laxmi Automobiles” in which the Complainant paid Rs.1,80,000/- on 11.10.20 at about 3.30 P.M. for repairing of the cost of the damaged vehicle.
The O.P. No.2 did not contest the case in any manner. The document discloses that the complainant paid the said amount to O.P. No.1. Neither the O.P. No.1 nor the O.P. No.2 denied that the payment was made by the Complainant. Annexure-F & G duly proved that the Complainant made payment to the O.P. No.1.
Thus, after considering all aspect of the case and in view of the observation in the foregoing paragraph the Commission is of the view that the Complainant is the consumer of O.Ps under the C.P. Act, 2019.
Accordingly, the Point No.1 is decided in favour of the Complainant.
Point Nos. 2, 3 & 4.
All the points are very closely interlinked with each other and as such these are taken up together for brevity and convenience of discussion.
The main allegation of this case raised by Complainant is that inspite of depositing the money to the OP the said damaged vehicle was not repaired and returned to the Complainant and despite several representations by the Complainant, O.P. No.1 did not respond to the Complainant and as such the present case is filed.
The Complainant in order to substantiate the case proved tax invoice for purchasing the vehicle. Annexure-A is the tax invoice in which the amount of the vehicle is clearly mentioned. Annexure-B is the certificate of registration. Annexure-C & C1 are the copy of insurance. The said vehicle was insured from Iffco Tokio Company in which the date of insurance is mentioned from 31.05.18 to 30.05.19. Annexure F & G are the copy of mode of payment. The O.P. No.1 stopped the repair of the damaged vehicle. But in this regard there is no supported evidence by O.P. No.1.
It stands proved that maximum amount was paid by the Complainant to the O.P. No.1 but they just neglected and avoided the matter.
As regards the liability of O.P. No.2 it stands well proved that the O.P. No.2 is liable for the allegation made against them in as much as the O.P. No.2 neither made out any defence case nor did he lead any evidence against the averment made in evidence led by the Complainant. The case record further shows that the legal notice was sent through Ld. Lawyer of the Complainant requesting to return the vehicle after completion of all works as per estimate on running condition. Annexure- I & J are the copy of legal notice. The O.P. No.1 could not prove any document to show that the O.P. No.1 responded to the grievance of the Complainant.
The defence plea taken by the O.P. No.1 in their written version is that the O.P. No.1 sent the Office boy Rajib Hossain and Subhankar Talukdar at the house of the Complainant on 18.10.21 but the Complainant did not respond and O.P. No.1 submitted his evidence. Due to Covid-19 Pandemic and scarcity of spare parts and labour O.P. No.1 completed the remaining work at the first part of 2021 and intimated the fact to the Complainant and after that OP received legal notice which is just to illegal gain. On 18.04.19 Rs.1 Lakh was paid by Complainant Mr. Souptik Biswas and on 11.10.20 another person claimed to be owner paid Rs.1,80,000/- and the difference is 1 year 6 months of payment and insurance company denied the claim which shows the huge negligence on the part of the Complainant. It is also evident from the case record that the (1) Tax invoice dated 31st May, 2017 in the name of Souptik Biswas, description of good CRETA VTVT 1.6E+ grand price 9,99,900/- Annexure-A.
(2)Certificate of Registration WB 70 H7364 in the name of Souptik Biswas (Annexure-A).
(3) Copy of Insurance premium valid from 31.05.2018 to 30.05.2019, consumer’s name Souptik Biswas(Complainant) showing payment of Rs.30,538.72/- (Annexure-C & C1).
(4) Prayer for issuing FIR against the car accident lodged by Complainant Souptik Biswas (Annexure-D).
(5) Some photographs of damaged car (Annexure-E & E1).
(6) Bank statement of Complainant Souptik Biswas who paid to the OP on 18.04.19 amounting to Rs.1 Lakh (Annexure-F).
(7) Money receipt of Maa Laxmi Automobiles Service Centre in the name of Md. Anwar Hossain on 11.10.20 showing payment of Rs.1,80,000/- by the Complainant (Annexure-G).
(8) A copy of visiting card of O.P. No.1 Maa Laxmi Automobiles proprietor Amit Roy (Annexure-H).
(9) Legal notice on behalf of the Complainant issued by the Advocate Rabindra Dey dated 21.10.21 and track consignment (Annexure-I).
The pleadings of the evidence on record clearly establish that the Complainant is a customer under the C.P. Act and the return of the vehicle in question also come within the purview of the said Act. The documents proved by the Complainant suggest that the Complainant had incurred expenses of the damaged vehicle but except Complainant no other person claimed that he is the owner of that vehicle. One money receipt which shows that one Md. Anowar Hossain paid Rs.1,80,000/- to the O.P. No.1 i.e. “Maa Laxmi Automobiles”. But Md. Anwar Hossain did not demand anywhere that he is the owner of the vehicle and to return the vehicle to him. The policy is effective from 31.05.18 to 30.05.19 in the name of the Complainant Souptik Biswas. So, the insurance claim of the Complainant is well within the validity of the insurance policy.
The entire misdeed of the O.Ps are sufficient to consider it as “deficiency in service”. The different activities on the part of the OP led the Complainant to suffer pain and harassment due to non-return of the damaged vehicle.
Except some evasive denial of the claim OP could not discard the evidence of the Complainant.
In questionnaires put by the Complainant in cross-examination dated 25.07.2022, OP admitted about the payment and also categorically stated that Complainant paid Rs. 1 Lakh and one money receipt handed over to the Complainant.
Answer given in cross-examination has special significance and due weightage. So, the claim of the Complainant is duly proved. There is no specific allegation against O.P. No.2 and at the same time Complainant could not adduce any evidence against O.P. No.2. So, the O.P. No.2 is discharged from the liability of the dispute.
In the light of the discussion made herein above and the observation propounded thereon, we reasonably hold that the damaged vehicle did not come to the use of the Complainant for purpose it was purchased. The materials on record and the arguments advanced by the Ld. Lawyer for the Complainant also suggest for giving a positive relief to the Complainant in regard to his other prayers.
Accordingly, Point Nos.2, 3 & 4 are decided in favour of the Complainant.
In the result the complaint case succeeds on contest against O.P. No.1 and ex-parte against O.P. No.2 with cost.
Hence, it is
Ordered
That the complaint case No. CC/58/2021 be and the same is allowed on contest against O.P. No.1 with cost of Rs.10,000/- and this case is dismissed against O.P. No.2 as no claim is there against him.
The Complainant do get an award to return the vehicle as it is to the Complainant also refund the Rs.2,80,000/- to the Complainant which was paid by the Complainant alongwith interest @ 6% per annum and O.P. No.1 is directed to pay a compensation of Rs.3 Lakhs for the damage of the vehicle which was lying in the custody of O.P. No.1 since last part of 2018 till date without any repair. O.P. No.1 is further directed to Rs.1 Lakh for mental pain, agony and sufferings which caused due to deficiency in service and Rs.10,000/- for litigation cost.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
