Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that on 23.02.2021 the complainant purchased one car namely “Nissan Magnite-XV Turbo” manufactured by Nissan Motors India from Autorelli Motors Pvt. Ltd., having its registered office at Govind Bhawan, Kolkata-700001 and the aforesaid car was handed over to the complainant on 26.2.2021 from the showroom at Kolkata as per delivery order dt.18.2.21 by ICICI bank which sanctioned car loan for the complainant.  The registration number of the car being WB-18AF-1151, Engine no.003407C, Chassis number-“MDHFBADDOM2004712”.  On 23.2.2021 the complainant had paid Rs.768000/- to the op no.2 as purchase money of the car (evident from tax invoice) and Rs.46389/- for registration purpose for the car separately.  The car was duly insured and separate bills were generated accordingly for those payments and on 30.3.21 while the complainant was travelling by the said car near Durgapur, the Engine of the car had collapsed to operate.  Immediately the complainant sent the car to “Dutta Nissan” Durgapur, west Burdwan that day itself with the help of a “tow van”.  The said concerned outlet examined the car and suggested to replace the Engine, catcon, and Turbocharger of the car, however the complainant did not agree. And on 04.04.21 the complainant shifted the car from Dutta Nissan to the Autorelli Motors Private Limited at his own cost.  Although Autorelli Motors Private limited was responsible for shifting the car from Dutta Nissan Durgapur to Autorelli Motors Kolkata the complainant had to do the same on his own and incur the necessary expenditure and the same speaks volumes of the negligence and slipshod approach towards customers and Autorelli Mortors then examined the car and proposed to replace the engine of the car.  Surprisingly by that time the aforesaid car had run 1500km.  Considering the fact that the Engine had collapsed after the car had run for only 1500km, it was quite ridiculous and surprising on the part of ops speciallyopno.2 not to propose to above named in respect of the same after discussing the matter with the opno.1 i.e., CEO Nissan Motors India. And subsequently theconcerned outlet i.e., OPno.2 without going throughthe rulesofthe RTO replaced the Engine of the car with a new engine sometime in the last week of April, 2021 without giving any application to ARTO, Serampore in respect of the same and without getting the said car inspected by ARTO as per the norms and the same happens to be completely illegal.  The OPno.2 had also requested the complainant to join in a test drive with NMIPL Executive and the said test drive took place on 30^th April, 2021.  The fact that OP no.2 had replaced the old Engine with a new one and had given the complainant a test drive of the same before intimating ARTO Serampore, is apparent from the Email dated 31stMay, 2021 sent by Kunal Adhikary service Manager Autorelli Nissan (Topshia) Kolkata.  In this regard the complainant sent one Email to ARTO, Serampore, dated 17^th June, 2021.  Subsequently on the same date ARTO, Serampore replied through Mail with two attachments viz, (A) A letter dated 17^th June 2021 sent to the Director Autorelli Motors Kolkata by ARTO, Serampore and (B) an application to the ARTO Serampore on behalf of Autorelli Motors.  At that point of time the complainant happened to check his warranty card by chance and found out that the concerned outlet issued wrong warranty card to the complainant with a wrong name and address, and the same clearly constitutes unfair trade practice on the part of OP no.2 and it is reliably learnt that ARTO, Serampore has refused to accord permission to OP-2 regarding replacement of the Old Engine in place of the new engine and the op no.2  again replaced the old engine in the complainant’s car and took away the new engine that op no.2 had earlier replaced and because of such gross negligence on the part of op no.2, the complainant’s car was lying idle at Autorelli Motors showroom at Krishna Building, Kolkata and  considering the conduct of the op no.2 and the entire gamut of facts and circumstances wherein a stalemate was created the complainant was no longer willing to accept the said poorly built car.  The complainant sent one Notice dated 15.5.2021 through Ld. Advocate Sudip Ghosh Chowdhury of the Hon’ble High Court, Calcutta, whereby the directed the op-2to replace the old car with the new one with immediate effect or refund the entire amount of money paid by the complainant to the op-2 together with other incidental expenses.  It has already been stated in the said notice that the health of the complainant’s mother is not good.  The treatment of the complainant’s mother depends upon the car and inspite of receipt of the saidnoticeneither the op no.1 nor the op no.2 took any initiative to replace the said car withanew one orrefund the entire consideration money together with other incidental expenses and subsequently findingno other alternative the complainant sent one mail totheopno.2 claiming damages and outstanding amount ofRs.130000/- in total Rs.697598/-.  Be it noted inthis context that time the op-2 although refunded a sum of Rs.701529/- only through DD No.111818 towards consideration money, already paid by the complainant intentionally withheld the balance amount of Rs.130000/- towards balance consideration amountand registration charges, already stated above,and assured to pay the same only whenNOC was handed over by thecomplainant toop-2 in respect of theloan incurred from ICICI bank.  However the op-2 refused to paythe necessary expenses incurred for insurance seat cover etc., and damages for i) mental and physical agony ii) availing a car for going to his office at Belgachia, Howrah iii) taking the ailing mother to Kolkata for medical treatment iv) tour of the entire state of West Bengal for business purpose and it also mentioned in this context that the said damages were computed till 28^th July,2021 and in the notice dated 15.5.2021 it has already been stated that the treatment of the complainant’s mother depends on the availability of the car and because of no delivery of a new car in favour of the complainant or delivery of a substitute car providing same size, make and comfort in favour of the complainant to which he isentitled, the complainant has had to incur daily expenditure of about Rs.1200/- for availing a car for going to his place of work at Belgachia, Howrah from Serampore and also for taking hismother to Calcutta for the purpose of Medical Treatment.  Be it further mentioned in thisconnection that the complainant has a business of manufacturing and selling cast iron hand pumpand for the purpose of said business he has to travel to various places covering theentire length and breadth of entire West Bengal and considering the above facts and circumstances the complainant again sent a notice dated 23.8.2021 through his Ld. Advocate Sri Abhijay Mitra demanding payment of the aforesaid amount of Rs.697598/- asdamages within 30 days from the receipt of thisnotice.  That although alltheops abovenamed received the said notice they did not comply with the same.  The op-2 sent a replydated 09.09.2021 through his Solicitors and Advocates C.K.Jainandcompanyand by the saidnotice the op-2 has tried to put forward vagueand ambiguous denials ostensibly to save his skin and shirk off his responsibilities and be it further noted that in the said notice the op-2 has tried to rely upon some alleged memorandum of understanding dated 20^th July, 2021 purporting to be an amicable settlement between the complainant and the op-2.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 697598/- for damages and to pay a sum of Rs. 10,000/- for litigation cost and other expenses.

Defense Case:-The opposite party Nos.1contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant on hisown accord, approached opno.2 and purchased a Nissan Magnite-XV Turbo bearing registration no.WB-18AF-1151 on 23.2.2021 at INR 768000/- along with the INR 46389/- for registration purpose and it is submitted that the complainant started experiencing problems with the engine of the vehicle in March 2021 and sotook the vehicle Dutta Nissan Durgapur, West Burdwan, where the complainant was suggested to get the Engine, catcon and Turbocharger replaced from the authorized dealer and so thecomplainant took the vehicle toop-2 on 4.4.2021 where on examination the op-2 proposed to replace the engine of the car.  Subsequently theop-2 replaced theengine of the vehicle withthenew one during last week of April 2021 without giving any application to ARTO, Serampore in respect of the replacement and without getting the said vehicle inspected by ARTO as per thenorms.  Furthermore after the replacement oftheengine, the op-2 took the complainant alongwith the NMIPL Executive for a test drive on 30.4.21 and it is submitted that the op-2 filed an application with ARTO, Serampore for approval of engine replacement, which was denied by the authority as a result of which the op-2 again replaced the new engine with the old one earlier replaced due to which the complainant’s car was lying idle at the op-2 showroom and it is pertinent to mention that the op-2 alsosent thefuel for testing under the SGS oil, Gas and chemicals SGS House which is an accredited laboratory under IEC 17025 : 2017 under which the report stated that the sample doesnot meet as per BS VI specification under the certificate of Analysis TO21-005128.001 dated.12.5.2021 and being aggrieved by the acts of OP-2 the complainant sent a legal notice dated 15.5.2021 to OP-1 and OP-2 under which the complainant directed to either replace the old car with a new one or refund the entire amount of the car to the complainant together with incidental expenses. And it is humble submitted that on 20.07.2021 a Memorandum of Understanding (MOU) was executed between the complainant, op-2 and op-1 under which the parties agreed to amicably resolve the dispute whereby it was agreed that op-2 will pay to the complainant a sum in tune of INR.831536/- out of which INR.701529/- towards the outstanding principal against the loan taken for the said car and remaining amount of Rs.130007/- on completion of RTO Formalities at the time of transfer or after 1 month of the handing over the NOC by the complainant and it is pertinent to mention that in pursuance of the MOU, the OP-2 has duly paid the amount in tune of Rs.701529/- to the complainant via demand draft being no.111818 dated 20.7.2021.  Further, it is important to mention that the complainant has failed to comply his obligation under the MOU as to issue the NOC to the OP-2 and it is submitted that the op-2 received another legal notice from the complainant on 23.8.2021 claiming the damages and outstanding amount if Rs.130000/- in total of Rs.697598/- as computed up to 28.7.2021.  That it is further submitted that the op-2 has duly sent a reply dated 9.9.2021 to the legal notice under which the op-2 has clearly denied the payment of the above-mentioned amount as it was clearly stated in the MOU and the remaining amount of Rs.130007/- will only be paid upon the completion of thecomplainant’s obligation as to the issuance of the NOC and it is humbly submitted that the op-2 issued a notice dated 12.8.2021 to thecomplainant for Breach of the MOU executed on 20.7.2021, wherein it was stated that as per the terms of agreement it was decided that the op-2 will be paying to the complainant a sum in tune of Rs.831536/- and that such settlement amount will be full and final.  But despite such MOU, the complainant has again demanded a compensation of Rs.567598/- over and above the settlement amount, which amount to breach of the MOU and thus the op-2 denied all such claims made by the complainant and it is respectfully submitted that the present complaint is nothing but an attempt on the part of the complainant to arm twist the answering  op into paying him a huge sum ofmoney.  The present complaint is misconceived, based on wrong facts vexatious, and has been filed with a malafide intention wherein the complainant has failed to show any fault as alleged on the part of the answering op.

The opposite party Nos.2contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complaint is bad for mis-joinder and non-joinder of parties.  There is no privity of contract or consideration between the complainant and the op-2 and transaction for purchase of car was entered by the complainant with Autorelli Motors Private Limited being an authorized dealer of Nissan Motors India Pvt. Ltd. being the manufacturer of Nissan vehicles.  However, either the dealer nor manufacturer is made a party to the proceeding and op-2 is merely a manager of Autorelli Motors private limited.  As such the complainant neither has not disclosed any cause of action against the op-2 and the manager of Autorelli Motors the op-2 has in his knowledge certain relevant facts relating to the present case which must be brought to the notice of this Ld. Forum and which has been deliberately suppressed with malafide intention by the complainant.  The said relevant facts are as following:-

1.  The complainant had purchased a Nissan Magnite XV Turbo MT in Sandstone Brown colour (having Chassis no.MDHFBADDOM2004712 AND Engine No.HRA0003407C), from Autorelli Nissan an authorized dealer of the Nissan Cars which was delivered to him on 26^th February, 2021.  The vehicle after registration was numbered as WB18AF 1151 .
2. The complainant had noticed and notified to Autorelli Motors certain issues in respect of said vehicle.  The said issues were duly addressed by Nissan Motors at the request of Autorelli Motors.  It would be pertinent to mention herein that the issues have been resolved and the same has been duly acknowledged by the complainant.

v) On 20^th July, 2021 a memorandum of understanding (MOU) was executed wherein the complainant being the first party therein Autorelli Motors private ltd. being the second party therein the parties agreed to record the full and final settlement of complaint which is more fully stated hereunder-

a) The parties agreed to resolve the dispute whereby the second party would pay to the first party a sum ofRs.831536/- being the total amount paid by the first party for the said vehicle comprising of the following amounts: Ex-showroom price of the car on the date of the booking Rs.768000+ RTO charges of Rs.46389 (including Rs.530 for number plate and Rs.340 for Smart Card + Rs.1040 for fancy number + Hypothecation charges of Rs.1500) + fasting charges of Rs.500 (Settlement amount).The parties agreed that the settlement amount would be paid by the second party to the first party as follows:-

b) An amount of Rs. 701529 was to be paid to M/s ICICI Bank Limited towards outstanding principalagainst the loan taken for the said car.The first party would pay the other charges to foreclose the loan and obtain an NOC from the said bank to enable the transfer of ownership of the said vehicle.

c) An amount of Rs.130007 was to be paid on the completion of the RTO formalities at the time of transfer or after 1 month of the handing over of the NOC by the first party to the second party whichever is earlier. And the first party would transfer the vehicle in the name of the second party along with the RC book / card at the time of transfer of the vehicle and the same would be duly acknowledged by the second party.No charges would be further made in any condition and second party would be responsible for thecompletion of the entire transfer process of the vehicleand the first party undertook to provide all thedocumentation required by the RTO for such transfer process.The first party would alsobe present at the time of the ownership transfer formalities at the RTO ifand when required by the RTO and the parties confirmed that they had amicably reached the settlement and that the first party had accepted the amount as a fulland final settlement of the dispute.The first party would have no claim on either the second party or third party therein and the dispute stood closed on all accounts and the second partyconfirmed that there had not been neither will there be in future, anyform of trouble (emotional or physical) caused to the first party.The first party confirmed that it would remove or cause to be removed all the post on social media made bythe first party and his representatives, associates and othermedia influencers that the first party hadmade any representation to and the mou embodied the entire agreement between the parties the parties would not be bound or obligated by any statement, representation, promise, inducement or understanding of any nature not set forth in the said MOU.No changes of any terms and conditions of the said MOU would be valid unless reduced to writing and signed by all the parties and on completion of all formalities and above-mentioned conditions, the first party would consider all the complaints resolved by means of the said settlement and would consider issues as resolved, if asked by the relevant bodies wherever the complaints had been made.First party further undertook not to make any further and other and new complaint to any authority and entry and company in future in regard to above mentioned vehicle.The first party al so agreed that he would not make any derogatory or disparaging statement to anyone about or regarding the second party or third party regarding the vehicle, nor would he take any action intended, or which may reasonably be expected, directly or indirectly, to impair the goodwill, business reputation or good name of the second or third party and both parties to the said understanding acted upon and gaveeffect to the aforesaid settlement and pursuant to and strictly in terms of the said terms of settlement Autorelli Motors made payment of a sum of Rs.701529/- to the complainant vide demand draft No.111818 dated 20^th July, 2021 drawn on Axis Bank to the complainant.Admittedly the complainant received, accepted and utilized the said sum.The same shall be evident from the pleading in paragraph 12 of the complaint and the complainant also signed the requisite transfer documents of the said vehicle in terms of the aforesaid settlement and as per the aforesaid terms of settlement, the complainant was under an obligation to repay, the principal outstanding loan to his banker namely ICICI Bank Ltd. towards car loan availed by the complainant.The complainant was further under an obligation make payment of other charges to foreclose and the said loan and provide Autorelli Motors with the No objection Certificate received from this banker and Autorelli Motors was to make payment of the balance settlement amount of Rs.130007/- to the complainant only upon receiving theNOC from the complainant and it would be pertinent tomention that since the vehicle wasto be transferred to the dealer pursuant to the settlement the same must be free fromallencumbrances and the answering op has reliably learnt that the complainant has failed to obtain the requisite NOC from his banker and as such not yet made over the NOC to Autorelli Motors despite repeated requests and reminders and Autorelli Motors was and is all along ready and willing to make payment of the said balance sum of Rs.130007/- subject to complainant making over the NOC and the complainant vide his advocate’s notice dated 23^rd August, 2021 raised utterly frivolous demand for further damages from Autorelli Motors which was suitably replied vide his Advocate’s letter dated 9^th September, 2021.

The opposite party Nos. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant on his own accord, approached op no. 2 and purchased a NISSAN MAGNITE-XV TURBO bearing registration no. WB-18AF-1151 (hereinafter referred to as “Vehicle”) on 23.2.2021 at INR 7,68,000/- along with the INR 46,389/- for registration purpose and the complainant started experiencing problems with the engine of the vehicle in March 2021 and so took the vehicle Dutta Nissan, Durgapur, West Burdwan, where the complainant was suggested to get the Engine, Catcon and Turbocharger replaced from the authorized dealer, so the complainant took the vehicle to OP-2 on 4.4.2021, where on examination the op-2 proposed to replace the engine of the car. Subsequently the op no. 2 replaced the engine of the vehicle with the new one during last week of April, 2021 without giving any application to A.R.T.O., Serampore in respect of the replacement and without getting the said vehicle inspected by ARTO as per the norms. Further, after the replacement of the engine, the op no. 2 took the complainant along with the NMIPL Executive for a test drive on 30.4.2021. The op no. 2 filed an application with ARTO, Serampore for approval of engine replacement, which was denied by the authority as a result of which the op no. 2 again replaced the new engine with the old one earlier replaced, due to which the complainant’s car was lying idle at the op no. 2, showroom and the op no. 2 also sent the fuel for testing under the SGS Oil, Gas and Chemicals SGS House which is an accredited laboratory under IEC 17025:2017, under which the report stated that the sample does not meet as per BS VI Specification under the Certificate of Analysis TO21-005128.001 dt. 12.5.2021.

Being aggrieved by the acts of the op no. 2, the complainant sent a legal notice dt. 15.5.2021 to the op nos. 1 and 2 under which the complainant directed to either replace the old car with a new one or refund the entire amount of the car to the complainant together with incidental expenses. On 20.7.2021 a Memorandum of understanding (MOU) was executed between the complainant, op nos. 1 and 2 under which the parties agreed to amicably resolve the dispute whereby it was agreed that op no. 2 will pay to the complainanta sum in tune of INR 8,31,536/- out of which INR. 7,01,529/- towards the outstanding principal against the loan taken for the said car and remaining amount of INR 1,30,007/- on completion of RTO Formalities at the time of transfer or after 1 month of the handing over of the NOC by the complainant.

The OP-2 has duly paid the amount in tune of Rs.701529/- to the complainant via demand draft bearing no.111818 dt.20.07.2021.Further, it is important to mention that the complainant has failed to comply his obligation under the MOU as to issue the NOC to the op-2.The OP-2 received anotherlegalnotice from the complainant on 23.8.2021 claiming the damages and outstanding amount if Rs.130000/- in total of Rs.697598/- as computed up to 28.7.2021.That it is further submitted that the op-2 has duly sent a reply dt.9.9.2021 to thelegalnotice under which the op-2 has clearly denied the payment of the above mentioned amount as it was clearly stated in the MOU and the remaining amount of Rs.130007/- will only be paid upon the completion of the complainant’s obligation as to the issuance of the NOC. TheOP-2 issued a notice dt.12.8.2021 to the complainant for Breach of the MOU executed on 20.7.2021 wherein it was stated that as per the terms of agreement it was decided that the op-2 will be paying to the complainant a sum in tune of Rs.831536/- and that such settlement amount will be full and final.But despite such MOU, the complainant has again demanded a compensation of Rs.567598/- over and above the settlement amount, whichamount to breach of the MOU and thus the op-2 deniedall such claims made by thecomplainant.The present complaint is nothingbut an attempt on the part of the complainant to arm-twist the answering op into paying him a huge sum of money.The present complaint is misconceived, based on wrongfacts, vexatious, and has been filed with a malafide intention wherein the complainant has failed to show any fault as alleged on the part of the answering op.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Serampore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.        All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that on 23.2.2021 the complainant purchased one car namely “Nissan Magnite-XV Turbo”.
2. It is also admitted fact that the said car has been manufactured by Nissan Motors India from Autorelli Motors Pvt. Ltd.
3. There is no controversy over the issue that the above noted company has its registered office at Govind Bhawan Kolkata 700001.
4. There is no dispute over the issue that the above noted car was handed over to the complainant on 26.2.2021 from the show room at Kolkata as per delivery order dt. 18.2.2021 issued by ICICI bank.
5. It is admitted fact that the ICICI Bank issued the loan to the complainant in the matter of purchasing the said vehicle.
6. It is also admitted fact that the registration number of the car being WB-18AF-1151, Engine no.003407C, Chassis number- “MDHFBADDOM2004712”.
7. There is no controversy over the issue that on 23.2.2021 the complainant had paid Rs. 7,68,000/- to the op no. 2 as purchased money.
8. There is no dispute over the issue that the said car was duly insured and separate bills were generated.
9. It is admitted fact that on 30.3.2021 the complainant went out for travelling by the said car and near Durgapur the Engine of the said car was collapsed.
10. It is also admitted fact that thereafter the complainant had taken the said car to “Dutta Nissan”, Durgapur, West Burdwan.
11. There is no controversy over the issue that the said car was ultimately sent to Kolkata Office where the Engine of the said car was replaced by a new engine without taking permission of ARTO Serampore.
12. There is no dispute over the issue that ARTO, Serampore even after receiving applications from the ops had not taken any steps for granting approval in the matter of replacement of the engine.
13. It is admitted fact that finally the complainant’s car was lying idle at Autorelli Motors showroom at Krishna Building, Kolkata.
14. It is also admitted fact that one memorandum of understanding was executed on 20.7.2021 amongst the complainant, op nos. 1 and 2.
15. There is no controversy over the issue that as per said MOU the parties agreed to amicable settle the dispute whereby it is agreed that op no. 2 shall pay to the complainant a sum of Rs. 8,31,536/-.
16. There is no dispute over the issue that out of said amount of Rs. 8,31,536/- the op no. 2 has already paid Rs. 7,01,529/- to the complainant by way of bank draft bearing no. 111818 dt. 20.7.2021 of Axix bank.     

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that the ops has not replaced the said car and it is negligent activity on the part of the ops and it amounts to deficiency of service but on the other hand the ops has taken the defence alibi that as per terms and condition of MOU dt. 20.7.2021 the complainant has not produced the NOC to the op no. 2 and for that reason the remaining balance amount of Rs. 1,30,007/- has not yet been paid to the complainant.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record and BNA submitted by both parties finds that the complainant has denied the execution of MOU but facts remain that in this connection the complainant side has not prayed any expert evidence or hand writing expert opinion to verify the signature of the complainant in the said MOU dt. 20.7.2021. Thus the above noted point of contention of complainant side is not acceptable. On close examination of the document MOU dt. 20.7.2021 it appears that it contains the signature of complainant and ops and so it is acceptable and reliable document.

According to the terms and conditions of MOU dt. 20.7.2021 the op no. 2 has already paid Rs. 7,01,529/- to the complainant vide demand draft being no. 111818 dt. 20.7.2021 of Axix bank and complainant admittedly received the same. In this regard it is important to note that the complainant inspite of receiving the said amount of Rs. 7,01,529/-, has not handed over the NOC to the op no. 2. In view of the terms and conditions of MOU dt. 20.7.2021 the complainant is further entitled to get Rs. 1,30,007/- from op no. 2 subject to the condition of production of NOC to the ops.

In the light of the observation made above the points of consideration nos. 4 and 5 the above noted apple of discord of the parties are decided in favour of the complainant.

In the result it is accordingly

ordered

that the complaint case being no. 137 of 2021 be and the same is allowed on contest but in part against the ops.

It is held that the op no. 2 shall pay Rs. 1,30,007/- to the complainant on production of NOC within 45 days from the date of this delivery of judgement otherwise complainant is given liberty to execute this order as per law.

            Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.