This is a case under section 12 of the Consumer Protection Act 1986 filed by the complainant Monoj Chowrasia against the O.P. M/s Sakshi Auto Deal and others for non delivery of the secondhand Ashok Leyland branded truck at Rs. 3,42,000/-(Three Lakh forty thousand only) despite payment of Rs. 2,10,000/-(Two Lakh Ten Thousand only) in cash and balance amount by hand.

            Case of the complainant in brief inter-alia is that the Opposite Party’s run business of selling secondhand vehicle on 21.04.2017. The complainant made an advanced payment of Rs. 10,000/- (Ten Thousand only) to the O.P.s’ and then 24.04.2017. He made further payment of Rs. 2,00,000/-( Two Lakh only) in total of Rs. 2,10,000/-(Two Lakh Ten Thousand only) out of consideration sale value of Rs. 3,42,000/-(Three Lakh forty thousand only) for purchase of Ashok Leyland branded vehicle.

            They have given money receipt bearing signature and they have promised to deliver second-hand Ashok Leyland branded vehicle on or before 26.05.2017 subject to payment of raised amount of Rs. 1, 32,000/- (One Lakh Thirty Two Only) on 25.05.2017. The complainant received telephonic call from O.P. Arun Sha for payment of the balance selling value and to take over possession of the vehicle. The complainant has been asked to be present at M/S Sakshi Auto Deal on 26.05.2017.

            The complainant arrived at about 1.10.p.m. on 26.05.2017 at M/s Sakshi Auto Deal, Siliguri. After reaching their brother of O.P.s’ Sri Ankit Singh and others physically assaulted. The complainant and O.P. Mukesh Singh held knife before the face of complainant and thereafter snatched away the said sum of Rs. 1,32,500/-. Thereafter they have threatened to murder. The complainant demanded refund of the amount. After full and final payment they hold back Ashok Leyland branded second-hand vehicle as promised. So, there is deficiency in service in not deliverying Ashok Leyland branded second-hand vehicle. As a result the complainant lodged written complaint against the O.P. on 26.05.2017 before Bhaktinagar P.S. Case No. 500/2017 dt. 26.05.2017 against the O.P. on 27.11.2018. The O.P. promised to return the amount paid by the complainant to the O.P. but they did not deliver the vehicle and did not return paid consideration amount.

            Therefore, the O.P.s’ committed gross deficiency in service in not deliverying Ashok Leyland branded second-hand vehicle to the complainant as consumer. They have made unfair trade practice with the complainant. Therefore, they have demanded refund of Rs. 3,42,000/-( Three Lakh forty two thousand only) paid to the O.P. with interest thereon. Further they have prayed for litigation cost for mental agony and harassment amount into Rs. 50,000/-(Fifty thousand).

            The complainant has submitted charge-sheet bearing charge-sheet no. 712/2017 dt. 29.07.2017 under section 420/323 by 34 IPC against O.P. Ankit Singh. Mukesh Singh and Arun Sha. It has been stated by the investigation officer S.I. Pradip Barman that during investigation he examined the complainant and seized the agreement paper under proper seizure list.

            It has been stated by the investigation officer that there is prima facie case under section 420/323/34 IPC against O.P.’s. They have defrauded the complainant and misappropriated the money from the complainant. Therefore, charge-sheet has been submitted against the O.P.

            The O.P. Ankit Singh has acknowledged Rs. 2, 10,000/-(Two Lakh Ten Thousand only) in cash by putting signature on the receipt of M/s Sakshi Auto Deal.

            In the charge-sheet it has been established that they have taken away a sum of Rs. 1,32,500/-(One Lakh Thirty Three Thousand Five hundred Only) from the complainant by force.

Having regard to the evidence supported by document it is clear that the complainant has advanced a sum of Rs. (Rs. 2,10,000/- + Rs. 1,32,000/-) = 3,42,500/- ( Three Lakh Forty Two Thousand Five Hundred Only).  The O.P.’s being proprietor of M/s Sakshi Auto Deal after receiving consideration amount did not deliver Ashok Leyland branded second-hand vehicle. Though the O.P.s’ have the receipt on payment of consideration money in full. But the Ashok Leyland branded second-hand vehicle has not yet been handed over with valid document to the complainant. So, there is breach of promise and violation of the agreement as found from receipt itself.

            In the instant case the O.P. despite receiving copy of the complaint and document do not choose to appear. Following under Order 8 Rule 5 of Civil Procedure Code it shall be deemed that O.P.s’ have admitted the fact as stated by the complainant doctrine of non-traverse amount to admission of fact then following regulation 26 of Consumer Protection Regulation Read with Order 8 Rule 5(4) Civil Procedure Code and Section 141/151 of the Civil Procedure Code this Forum holds that O.P.s’ have admitted the contents of the complaint. Therefore the O.P. shall refund the amount of Rs. 3,42,500/- ( Three Lakh Forty Two Thousand Five Hundred Only).

Besides, that they shall pay interest @ 9% per annum from the date of payment till realization of the same Moreover the O.P. shall pay punitive damaged amount in to Rs. 50,000/- (Fifty Thousand Only) for denying to delivery Ashok Leyland branded second-hand vehicle to the complainant. Further they shall pay a sum of Rs. 50,000/- (Fifty Thousand Only) towards litigation cost, Besides, that they shall pay 25,000/- (Twenty Five Thousand Only) in the District Consumer Legal Aid Account, Jalpaiguri.

            There is deficiency in service from end of the O.P.s’ who has not delivered Ashok Leyland second-hand vehicle despite receiving full consideration amount without any cogent reason. The complainant is a consumer having purchased Ashok Leyland Second-hand vehicle against payment of agreed amount such vehicle is intended to be purchased for maintaining livelihood. This Consumer Protection Act is enacted for providing protection of interest of bona-fide consumers who has been defrauded by the opposite parties herein.                         

    According it is

                                             O R D E R E D :

             That the Consumer Case no.57/2018 be and the same is allowed ex-parte against the O.P.s’ Ankit Sha and others. The O.P. shall refund of Rs. 3,42,500/- ( Three Lakh Forty Two Thousand Five Hundred Only) with interest thereon @ 9% per annum from 24.04.2017 till the delivery of realization of the same.

            Besides, that they shall pay a litigation cost of Rs. 50,000/- (Fifty Thousand Only) to the complainant. Moreover, they have shall pay punitive damages of Rs. 50,000/- (Fifty Thousand Only) to the complainant for actual loss suffered due to non delivery of Ashok Leyland brand second-hand vehicle.

            Further they shall pay a sum of Rs. 25,000/- (Twenty Five Thousand Only) in the District Consumer Legal Aid Account, Jalpaiguri.

             Let plain copy of this order be supplied to the complainant free of forth with