West Bengal

Dakshin Dinajpur

CC/44/2020

Smt. Purba Bandyopadhyay, D/O- Late Dipankar Banerjee - Complainant(s)

Versus

The Manager, Gita Motors - Opp.Party(s)

Anish Das

11 May 2022

ORDER

           The instant case has been initiated by the complainant U/S – 35 of C.P. Act,2019 against the Opposite Party claiming Principal amount of Rs.75,000/- with interest + Compensation Rs.1,00,000/- + Damages of Rs. 30,000/- + Litigation Cost of Rs. 20,000/- (Total Rs. 2,25,000/-)..

The fact of the case, in brief, is that the Complainant purchased a new motor cycle/ scooter of Honda Motor Cycle & Scooter India Pvt. Ltd. From the local dealer under name & style Gita Motors, G.D. Honda , New Market, Balurghat, Dakshin Dinajpur i.e. Opposite Party on 12.05.2020 and after assurance to sell out the new scooter of Activa 5G STD (BS VI standard) from the part of the Opposite Party, the Complainant paid an amount of Rs.5,000/- only as advance booking with proper receipt. As per the oral conversation the Opposite Party assured the Complainant to hand over the new scooter of Honda Activa 5G STD (BS VI )  on 16.05.2020. The Complainant on 16.05.2020 went to the Opposite Party to get handed over the new scoter of Honda Activa 5G STD ( BS VI standard ). Before handing over the new scooter to the Complainant, the Opposite Party made over the enquiry quotation invoice in the name of the Complainant in which the Opposite Party wrote the amount of various phases and the said amounts were as more amounts than of standard rate. Though the Complainant assured to purchase the scooter of BS VI standard from the Opposite Party but the Opposite Party on 16.05.2020 handed over the old model scooter of Honda Activa 5G STD ( BS IV standard ) having manufacturing date and year as 11/2019 and registration no. WB 62M2952 in the name of Gita Motors as owner name without making over the documents and pucca bill of the manufacturing company in favour of the Complainant as per certificate of registration so maintained by the registering authority of Dakshin Dinajpur RTO under Govt. of West Bengal. The Opposite Party made insured the vehicle under IFFCO- TOKIO General Insurance Co. Ltd. and one insurance certificate has been issued on 16.06.2020 in the name of the Complainant showing the year of manufacturing as 2020 and no registration no. was mentioned in the insurance certificate. Although, the Honda Motor Cycle & Scooter India Pvt. Ltd. stopped the sale of motor cycle and scooter of BS IV prior to the purchase of scooter by the Complainant. The Opposite Party wrongly behind the back and knowledge of the Complainant by making fraud has sold out the vehicle of old model scooter of Honda Activa 5G STD ( BS IV standard ) in favour of the Complainant instead of new model scooter of Honda Activa 5G STD ( BS VI standard ).The Opposite Party also did not supplied purchase slip, warranty certificate and other documents of the replaced battery. The Complainant several times lodged complaint before customer care and manufacturing company but in vain.  

     Having no alternative the Complainant filed the instant case for relief as prayed in the plaint.

            Notice was duly served upon the opposite Party and after receiving the notice, the Opposite Party appeared before this Commission and filed his written version.

            By filing written version, the Opposite Party No.1 has stated that the complainant as intending purchaser had visited the showroom on 12^th May, 2020 and had enquired about a Scooter thoroughly. We showed her various products that would suit her need and also informed the customer about the price of each product. The complainant was initially interested in buying Activa 6G, but after realizing that  it is more expensive, has higher maintenance and cannot be serviced outside the workshop since it is a BS-VI vehicle, she decided to go for the less expensive and more flexible  product, i.e., Activa 5G. Since, the opposite party dealer had limited stock for Activa 5G and there was a huge demand for it, she made an advance payment of Rs. 5,000/- to book the same. The complainant then visited the showroom on 16.05.2020 to complete the purchase and the opposite party declares was much obliged to cater to her. The opposite party dealer gave her the breakup of the price structure as well as wrote every detailed in the enquiry/quotation from; including the fact that it is a BSIV vehicle.

            The customer was very well aware of the fact that it is a BS IV vehicle she is purchasing since the price difference and the difference in maintenance costs was a big deciding factor in her purchase. Above that, it is clearly written on the Scooter that it is a BS-IV Scooter. The complainant has also signed on the documents when she took the delivery of the vehicle and also come to affix her number plate.

            The complainant was also informed beforehand that the vehicle is BS-IV vehicle and also time and again when she registered her complaint with Honda Motorcycle and Scooter India Pvt. Ltd. along with the fact that it is in the name of Gita Motors. Regarding the Form 17 under Rule 35 validity and it being  proper, it should be noted that it was valid till 18^th October 2020 (as clearly mentioned on the copy she has enclosed) and contains all the official signatures by the respective authorities. It should also be noted that first time insurance documents do not contain the Registration No. since it is only after insurance has been issued that registration takes place.

            The strong emphasis should be put on the fact that the customer has not disclosed and rather fraudulently suppressed the fact that difference amount i.e.,1190/- of the insurance amount was refunded to her on 12^th September 2020, and also that their various accessories fittings that were done in her vehicle. The breakup of the price structure is as follows-

 

                        PARTICULARS                                           AMOUNT

                        Ex-Showrrom                                                Rs. 58,143.00

                        Registration                                                   Rs.8,859.00

                        Insurance                                                       Rs. 6,610.00

                        Accessories & Others                                    Rs. 1978.00

                       

            Total                                                                        Rs. 75,590.00

            Customer Advance                                                  Rs. 5,000.00

            Customer Vehicle Payment                                     Rs. 71,780.0

            Customer Refund                                                    Rs.1,190.00

             Under the above facts and circumstances, the complaint is liable to be dismissed with cost.

  To prove his case, the complainant has filed the following documents 

1. R. C. Book 
2. Advance Booking Receipt. 
3. Money receipt dated 16.05.2020.
4. Enquiry Quotation dated 16.05.2020.
5. Invoices received from State Transport Department.
6. Copy of Insurance 
7. Form 17 Trade Certificate.
8. Copy of Centre Orders to stop Registration of BS4.  

          On the other hand, the Opposite Party has also filed some documents in support of his defense which are as following 

1. Advance booking money receipt given to the Complainant for the amount of Rs.5,000/- dated 12.05.2020 
2. Money receipt for the amount of Rs.71780/- dated 16.05.2020.
3.  Enquiry/ Quotation form given to the Complainant
4.  Road challan given to the Complainant 
5. Road tax of West Bengal  dated 15.06.2020 
6. BS4 Number plate affixation form bearing signature of the Complainant,
7. Dealer’s copy of service manual ( Warranty Registration Card )
8. Copy of Insurance
9.   Activa 5G catalogue stating that it is BS IV Vehicle
10.   Sales circular no.2HMSI2001002 dated 20.01,2020 stating that Activa 6G is  BS 6 
11. Complaint copy made by Complainant to the OEM.

 

In view of the above mentioned facts, the following points are cropped up for consideration 

 

       POINTS FOR CONSIDERATION     

 

          1.  Whether the Complainant is a consumer to the Opposite Party?

      2.  Whether there is any deficiency in service on the part of the Opposite party ?

      3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for? 

 

                                          DECISION WITH REASONS

 

           We have heard argument by Ld advocate for the complainant and Ld. Advocate for the opposite party at length. We have also gone through the written argument filed by the parties as well as the evidence on affidavit. We also perused the additional written argument filed by the Opposite Party. Perused the other materials on record and the case laws cited by both the parties.  

            At the time of argument ld. Advocate for the Complainant narrated the facts of the case of the Complaint. Ld. Advocate further argued that the Complainant choose to purchase 5G STD (BS VI standard ) on 12.05.2020 and the Complainant booked the same by paying Rs.5,000/- in advance but the Opposite party sold 5G STD ( BS IV standard ) and thus, the Opposite Party cheated the Complainant fraudulently. Ld. Advocate also added that the Opposite Party also took more money from actual cost from the Complainant. The Opposite Party has also delivered all the required documents to the Complainant. The Registration of the vehicle is still in the name of the Opposite Party. The act and omission of the Opposite Party has caused injury, loss and harm to the Complainant. There is negligent and deficiency in service on the part of the Opposite Party. The Complainant has successfully proved her case. So, the Complainant is entitled to get relief as prayed for.

         In support of the case Ld. Advocate for the Complainant cited some case laws reported in ( 2019 )CJ 952 ( NC ), ( 2021 )CJ 523 ( NC ), ( 2021 ) CJ 714 ( NC ), ( 2017 )SCCR 157, (2018 ) CJ 769 ( NC ) and (2021 )CJ 429 ( NC )   

          On the other hand, Ld. Advocate for the Opposite Party also narrated his defense case as mentioned in the written version. Ld. Advocate for the Opposite Party further submitted that the complaint filed by the Complainant is vexatious and she is trying to extort money by creating pressure on false pretext. The Complainant was very well aware of the fact that it is a BS IV vehicle and she purchased the same due to the price difference and the difference in maintenance cost with the other vehicles. The Opposite Party has sold the same vehicle what the Complainant had chosen. There is no negligent or deficiency in service on the Part of the Opposite Party so, the instant case is liable to be dismissed with cost.

          In support of the defense case, Ld. Advocate for the Opposite Party cited some case laws reported in 2013 CPR ( 2 ) NC 749, CHN ( 4 ) 484, 2015SCC( civil ) (i) 660 and 2008 ( 4 ) CPR 124.

          Now, let us discuss all the points one by one.           

Point No. 1     

          On perusal of materials on record, it appears that the Complainant purchased scooter from the Opposite Party and thus, there arose a relation in between the Complainant and Opposite Party as buyer and seller. If that be the so, then it is clear that the Complainant is a consumer to the Opposite Party according to section (2) sub- section (7) of Consumer Protection Act, 2019. 

         Accordingly, this point is decided in favour of the Complainant.  

Point Nos. 2 & 3  

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

              It is an admitted fact that the Complainant went to the Show Room of the Opposite Party on 12.05.2020 to purchase a scooter and paid Rs.5,000/- as advance booking on the same day with proper money receipt. The Complainant was called to receive the scooter on 16.05.2020.

            On 16.05.2020 when the Complainant went to receive the scooter, she found that the scooter which has been handed over to her , is not the same model of scooter what she had booked. It is the allegation of the Complainant that she has booked new scooter of Activa 5G STD ( BS VI standard ) but the Opposite Party handed over the old model scooter of Honda Activa 5G STD ( BS IV standard ). But the contention of the Opposite Party is that after enquired about a scooter thoroughly, the Complainant was initially interested to purchased Activa 6G but after realizing that is more expensive and has higher maintenance and cannot be serviced outside the workshop since it is BS VI vehicle, she decided to go for the less expensive and more flexible product and she purchased BS IV vehicle.

            Now, on perusal of the Booking Money receipt dated 12.05.2020 issued by the Opposite Party, it appears that the said money receipt is issued in the name of the Complainant for Activa 5G STD. Further, it appears from the Enquiry/ Quotation dated 16.05.2020, the Model of the vehicle is mentioned as Activa, Type- 5G and Option std BS IV. On comparing both the documents, it appears that in the Booking Money Receipt the Option has not been mentioned by the Opposite Party. Only 5G STD has been mentioned but in Enquiry / Quotation in Option column STD IV has been mentioned. Here,we think that the Opposite Party was supposed to mention Option in the Booking Money Receipt dated 12.05.2020 but the same has not been done cunningly. 

             Further, New Delhi, The Central Government on 1^st April 2020 ordered that -  The central government on Wednesday directed all the states to stop selling BS4 vehicles. It was decided earlier that only BS 6 vehicles would be allowed to register from 1^st April, 2020. Here, we can presume that this order was well known to the Opposite Party . In spite of the said order, the Opposite Party sold the Activa 5G std IV to the Complainant. So, it can be said that unfair trade practice has been done by the Opposite Party.   

            Again, on perusal of Form – 17, the trade certificate the said scooter is still in the name of the Opposite Party. 

            Further, it is the allegation of the Complainant that the Opposite Party has taken more price than that of the actual price. Now, on perusal of the money receipt dated 16.05.2020, it appears that a sum of Rs.71,780/- was paid by the Complainant to the Opposite Party excluding Rs.5,000/- as advance booking money. It is admitted by both the parties that a sum of Rs.1,190/- has been refunded to the Complainant after complaint made by the Complainant to the effect that the Opposite Party has taken more money than that of the actual price for Registration, insurance etc. Here, we opine that this allegation is not considerable as a sum of Rs.1,190/- has been refunded to the Complainant. Apart from it, the said scooter is still in the possession of the complainant.

                   In view of the above mentioned discussions, it has been established that the Complainant is a bona fide consumer to the Opposite Party and there is unfair trade practice and deficiency in service on the part of the Opposite Parties.

 

                 Accordingly, both these points are decided in favour of the Complainant. 

Hence, it is

                                                    O R D E R E D

           

 That the Consumer Case No. 44 of 2020 is hereby allowed on contest in part but with cost. 

The Opposite Party is directed to exchange the existing scooter of Honda Activa 5G STD (BS-IV Standard) with a new scooter of Honda Activa 5G STD (BS-VI standard) within 30 days ( Thirty days0 from the date of passing of this order. The complainant is directed to make contact with the opposite party within a week  and pay the excess amount of the present price of Honda Scooter of Honda Activa 5G STD (BS -VI standard) deducting the price which she has already paid for scooter of Honda Actava 5G STD (BS-IV standard)  

The Opposite is further directed to issue an account payee cheque of Rs 10,000/- towards compensation and Rs. 10,000/- towards litigation cost in favour of the complainant within 30 days from the date of passing of this order failing which the Complainant is at liberty to execute the order as per law.  

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