Ld. Advocate(s)

     For Complainant    .. Safikul Alam

           For OP/OPs      .. Sankar Bhattacharya

Date of Filing           : 24.07.2018

Date of Disposal      : 27.09.2019

:    JUDGMENT & ORDER  dtd. 27.09.2019   :        

The case of the complainant, in brief, is that the complainant purchased a motor cycle namely Unicorn N 160 CC being Engine No. KC20F80141756, Key No. 8647, Chasis No. E4KC201JF-8 128434.  The price of the motor cycle was fixed at Rs. 87,800/-.  The complainant paid Rs. 38,500/- on 07.04.16, thereafter paid Rs. 30,000/- on 22.04.2016 and lastly paid Rs.19,300/- on 15.06.16.  The OP issued Road Challan, job card and tax invoice on 07.04.16. On 28.04.2015 the OP gave warranty registration card to the complainant from which the complainant came to know that the motor cycle was sold earlier.  The complainant has also stated that the OP sold the said motor cycle to the complainant to take the new value of the said motor cycle.   Thereafter, the complainant lodged a complaint to the CA& FBP, Nadia against the OP but the OP did not appear to settle the matter of the complainant.  The cause of action arose on and from 28.12.16.  The complainant finding no other alternative, has filed this case and prayed to give a same quality new motor cycle in exchange of the present motor cycle or the sale price of the motor cycle i.e., Rs. 1,24,872/-, Rs.20,000/- for his mental pain and agony and cost of the suit.   

The complainant has filed some documents in support of his case which are in the record are as below:-

1. Annexure – 1 - Money receipt dtd. 22.04.16 issued by the OP
2. Annexure – 2 - Money receipt dtd. 15.06.16 issued by the OP
3. Annexure – 3 - Money receipt dtd. 07.04.16 issued by the OP
4. Annexure – 4 - Insurance Certificate issued to the complainant
5. Annexure – 5 - Credit invoice issued to the complainant
6. Annexure – 6 - Road Challan issued to the complainant
7. Annexure – 7 - Undelivered Job Card issued to the complainant
8. Annexure – 8 - Warranty Registration Card issued to the complainant
9. Annexure – 9 - Complaint of CA&FBP Office of the complainant
10. Annexure – 10 – Money receipt dtd. 05.11.2015 issued to the Pro-OP
11. Annexure – 11 –  Road Challan issued to the Pro-OP
12. Annexure – 12 – Credit invoice issued to the Pro-OP
13. Annexure – 13 – Insurance certificate issued to the Pro-OP
14. Annexure –14 – Undelivered job card issued to the Pro-OP
15. Annexure – 15 – Registration Certificate issued to the complainant.

On the other hand, OP, proprietor of Hi Choice Honda contested the case by filing a written version wherein he denied entire allegations brought by the complainant. 

The specific contention of the OP is that one Anwarul Kadir Biswas herein the Pro-OP purchased the said motor cycle on 05.11.2015, thereafter, on 06.11.2015 the Pro-OP returned the same as he felt uncomfortable to drive the said motor cycle.  On that day, the complainant went to the show-room of the OP and disclosed his intention to purchase the said motor cycle by instalments.  This OP agreed to sell this motor cycle by instalments to the complainant and gave the all xerox documents of the pro-OP to the complainant.  The complainant has filed the present case creating a story in order to snatch some money from OP.  So the present case may be dismissed with cost.  

Points for discussion

1.  Whether the complainant is a consumer under the CP Act, 1986?
2. Whether there was any deficiency in service from the side of the OP?
3. Whether there was any unfair trade practice on the part of the OP?
4. Whether the complainant is entitled to get any relief /reliefs as prayed for?

Decision with reasons

Point No. 1:

            The OP admitted the fact that the complainant purchased the motor cycle by paying Rs. 87,800/-.  Therefore, it can be presumed that there is a relationship of consumer and service provider between the complainant and the OP.  So, the complainant is a consumer within the purview of Consumer Protection Act, 1986. 

This point goes in favour of the complainant. 

Points No. 2 & 3:

Both the points are taken up together for the sake of brevity and convenience of discussion.

The specific allegation of the complainant is that he purchased the new motor cycle namely Unicorn N 160 CC being Engine No. KC20F80141756, Key No. 8647, Chasis No. E4KC201JF-8 128434  from the OP and the price of the motor cycle was fixed at Rs. 87,800/- but after getting Warranty Registration Card (Annexure – 8) he came to know that the said motor cycle was sold earlier to one Anwarul Kadir Biswas i.e., Pro-OP.  So the complainant has prayed for a new motor cycle in place of the said old motor cycle or price of the new motor cycle. 

On the other hand, the OP clearly stated in the W.V. that in spite of knowing the fact that the motor cycle was sold earlier to one Anwarul Kadir Biswas, the complainant willfully agreed to purchase the alleged motor cycle in instalment.

Now, a question arises whether the OP by suppressing the real fact sold the motor cycle to the complainant?

The complainant filed Annexure – 8, i.e., Warranty Registration Card from which it is clear that the OP sold the alleged motor cycle to Pro-OP on 28.11.2015, but the complainant nowhere mentioned when he got the warrantee card. 

It is fact that the OP never denied that the motor cycle was not sold earlier.   The OP clearly stated in his written version in ‘Para- 12’ that knowing it fully well the complainant purchased the said motor cycle in instalment and in Para—15 of W.V. the OP also stated that after purchasing the said motor cycle the complainant got all xerox documents of earlier owner of the motor cycle from the OP.  

The complainant nowhere stated that from where and how he got the documents of earlier owner of the vehicle.  On the contrary he made a complain to the CA&FBP, Nadia R.O. Office after using the motor cycle for more than 08 months.

The complainant is unable to convince why he was silent for more than 08 months.  Actually the motor cycle has no technical defects.  The complainant has filed the misconceived application with an ulterior motive.    

On the basis of above observation, we are of the opinion that as the complainant has failed to prove his case beyond all reasonable shadow of doubts, the question of deficiency in service and unfair trade practice will not arise from the side of the OP.

Point No. 4:

In view of the aforesaid facts and circumstances, we are of the considered view that the complainant is not entitled to get the reliefs as prayed for.

In the net result the case fails. 

Hence, it is                                       

O R D E R E D,

That the case be and the same is dismissed on contest against the principal OP without cost.

            Let a plain copy of this judgment be supplied to the parties forthwith free of cost.