Utpal Kumar Bhattacharya, Member
Instant Appeal has been filed challenging the judgment and order dated 30.06.2014 passed by the Ld. District Forum, Howrah in Complaint Case No. HDF 22 of 2014 allowing the complaint on contest with costs against the Appellant/OP.
Appellant/OP was directed to refund the amount of Rs. 2,97,095/- with interest accrued thereon @ 9% with effect from 13.12.2013 to the Respondent/Complainant.
The Appellant/OP was further directed to pay a compensation of Rs.20,000/- for prolonged mental agony and harassment that the Respondent/Complainant had to suffer from for becoming a victim of deficient service rendered to him by the Appellant/OP and litigation cost of Rs. 5,000/-.
All the amounts were directed to be paid within 30 days from the date of the impugned judgment and order, in default, as ordered, the entire amount should carry further interest @ 9% till realization.
The Complainant was allowed liberty to put the decree into execution in case of non-compliance of the order after expiry of the Appeal period.
Briefly stated, the fact of the case that led to the instant controversy was that the Respondent/Complainant made an advance to the Appellant/OP, the dealer of motor vehicles, for an amount of Rs. 4,72,095/- in five instalments against a consideration of Rs. 9,72,900/- for one Silver coloured Scala RX Diesel Car, intended to be purchased by him.
The paid amount of Rs. 4,72,095/- involved both cash and cheque payments of Rs. 2,97,095/- and 1,75,000/- respectively with the cheque amount yet to be encashed. The Appellant/OP, in spite of being paid almost half of the full consideration of the subject vehicle, failed to supply the vehicle within the promised deadline and could not ensure supply afterwards even on repeated persuasion.
Considering above activities to be serious deficiencies on the part of the Appellant/OP, the Respondent/Complainant filed the instant complaint.
Heard both sides through their respective Ld. Advocates.
Ld. Advocate appearing on behalf of the Appellant/OP submitted that the Respondent/OP, being a partnership company, intended to purchase vehicle for his business. In the light of the above, the issue, since related to commercial activity, was beyond the authority of the Ld. District Forum to adjudicate.
Ld. Advocate continued that the order was passed by the Ld. District Forum without taking evidence from the contending parties. Due to non-observance of the procedural formalities by the Ld. District Forum, as contended, the judgment and order was passed without the merit of the case being carefully examined and the judicial mind being properly applied.
As submitted, the Respondent/Complainant, in fact, had paid an amount of Rs. 2,97,000/- only. The amount of Rs. 1,75,000/- which was paid by him in cheque was not encashed. Astonishingly enough, the Respondent/Complainant demanded the vehicle to be delivered to him without the full consideration of the vehicle being paid.
As he continued to submit, the delivery of the vehicle in right time would not have been possible to be ensured even if the full consideration was paid due to non-receipt of required “no objection” towards delivery of the vehicle from the Police authority. From above, as he continued, no deficiency in rendering service on the part of the Appellant/OP, as alleged in the complaint, came apparent.
The Ld. Advocate with his above submission prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondent/Complainant, per contra, submitted that the Appellant/OP did not encash the cheque. As submitted further, his financier was ready to pay the balance amount but the Appellant/OP refused to respond positive towards delivery of the vehicle. As contended, the NOC towards delivery of the vehicle by the Police was not issued for the fault of the Appellant/OP itself as it failed to procure the sale licence and produce the same to by the said authority on demand.
The Ld. Advocate prayed for the Appeal to be dismissed setting aside the impugned judgment and order.
Perused the papers on record and considered submissions of the Ld. Advocates appearing on behalf of both sides.
The subject vehicle did not appear to have been intended for purchase by the Appellant/OP for any business purpose. There was no averment in the complaint to that effect nor was there any corroborative evidence furnished by the Appellant/OP establishing their claim that the vehicle was meant for any commercial purpose. A vehicle purchased by the partners of the company for their personal use like their movements from house to company and viceversa and for other movements should not be treated as an use for commercial purpose unless it is proved otherwise by contrary evidence.
Admittedly by both the parties, the Ld. District Forum passed the impugned judgment and order without obtaining evidence. Without being much critical about passing an order which has prima facie been vitiated due to non-observance of the legal formalities envisaged under the Act, we, with a view to be in conformity with the spirit of the Act for quick delivery of justice to the Consumer, intend to dispose of the case on merit offering contesting sides due opportunities of being heard.
We failed to understand as to why the Respondent/Complainant pressed so much for the delivery of a car, the full consideration of which was not paid by him. It did not need so many words to elaborate that delivery of any purchased article could be made only when the consideration of the said article was fully paid save and except the circumstances where there was any agreement for payment of the consideration through instalments. The record appears to be silent about any such agreement. In view of the above, we did not find any lapse on the part of the Appellant/OP for not delivering the car to the Respondent/Complainant, rather we observe that the Respondent/Complainant had stuck to his unlawful demand of the vehicle to be delivered to him by the Appellant/OP without the consideration in full being paid. Be it mentioned that one cannot ask any benefit and of his own shortcomings. The com
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plaint, therefore, did not have any merit for imposing cost and penalty upon the Appellant/OP. The Appellant/OP, however, should refund the amount of Rs. 2,97,095/- only. Hence, Ordered that the Appeal be and the same stands allowed in part on contest. The Appellant/OP is hereby directed to refund the amount of Rs. 2,97,095/- only to the Respondent/Complainant within 45 days from the date of the instant order, failing which, simple interest @ 9% p.a. shall accrue to the said amount from the date of default till the entire amount is fully realized. We do not pass any order towards payment of cost and compensation. The impugned judgment and order stands modified accordingly.