State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET KOLKATA – 700 087 S.C. CASE NO –FA/534/2010 (Arisen out of Order Dated 10/08/2010 in Case No.37/2009 of District Cooch Behar, Cooch Behar DF,) DATE OF FILING :14.09.2010 DATE OF ORDER:26.11.2013 APPELLANT : 1. BROJEN SARKAR, Son of Late Garapa Sarkar Residing at Post office: Daiskhin Kamsing, District: Jalpaiguri. RESPONDENTS : 1. The Branch Manager, Bajla Motor Private Limited, Cooch Behar Branch, Chakchaka (near Check Post), Cooch Behar. 2. The Manager, Bajla Motor Private Limited, Siliguri Regd. And Corporate Office, Two & Half Mile Sevoke Road,’ Siliguri 3. Deleted. 4. Sudipta Kumar Chanda, Bajila Motor Pvt. Ltd., Cooch Behar Branch, Chakchaka (near Check Post), Cooch Behar 5. The Post Master, Cooch Behar Head Post Office, Sunity Road, Cooch Behar 6. Sri Krishna Sarkar, P.O.: Daiskhin kamsing, District-Jalpaiguri. BEFORE HON’BLE MEMBER : Sri Debasis Bhattacharya. HON’BLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANT : Mr. Alok Mukhopadhyay, Ld. Advocate Ms. Suman Sehanabis, Ld. Advocate FOR THE RESPONDENT No.1 to 4 : Mr. Barun Prasad, Ld. Advocate FOR THE RESPONDENT No.5 : Mrs. Ratna Bramhachari, Ld. Advocate Sri Debasis Bhattacharya, Member Being aggrieved by and dissatisfied with the order dated 10.08.2010 in Case No. 37/2009 passed by the Ld. District Forum, Cooch Behar, the Complainant thereof has preferred this appeal. By the impugned order, the Ld. District Forum has dismissed the complaint on contest without cost. The case of the Complainant in his petition of complaint is that he had purchased a Pick-Up Van of Piaggio Vehicle Pvt. Ltd. from the OP No.1 having registration No. WB-69/X-0077. On 17.02.2009, he through his brother being Proforma No.6 sent it to the OP No.1 for repairing, but still it is in the custody of the OP No.1, though he went there several times for it. On 05.03.2009, when he accompanied by Proforma OP No.6 went there, OP No.3 acknowledged and gave a written document in the name of Proforma No.6 that the engine of the vehicle is to be converted from 1.3 Toner to 1.0 Toner and promised to deliver the vehicle on 05.04.2009, and thereafter on 01.06.2009, the OP No.4 on behalf of the OP No.1 gave a written document to the Proforma OP No.6 that the vehicle will be delivered on 30.06.2009. He is paying monthly premium of Rs.4,476/- to the ICICI Bank Ltd., Siliguri Branch, where the vehicle has been hypothecated, and he has been suffering irreparable loss of Rs.20,000/- (Rupees twenty thousand) per month from 17.02.2009 to date, because he used the vehicle for business purpose. Accordingly, he served a legal notice to the OP No.1. The postal authority also did not maintain proper method of delivery of the legal notice, being Proforma OP No.5. Accordingly, this case. The case of the OP Nos. 1 & 2 in their W.V. is that after inspection of the vehicle by the OP No.1, Service Manager explained the problem to the OP No.6 and the parts to be changed along with the estimated cost for repairing and replacement of the parts, to which he gave his consent for repairing and replacement. Pertinently, the vehicle was used as goods carrier for business purpose. The Complainant used to load the vehicle in excess for which there was some technical disorder. The vehicle was not within the warranty period at that time. Incidentally, OP No.4 on behalf of the OP No.1 denied to deliver the vehicle and requested the Complainant to come on 30.06.2009 for making the entire payment of the bill of Rs.84,000/- (Rupees eightyfour thousand) and take delivery of the vehicle. The Complainant may be a defaulter and to save his vehicle from repossesion, he might have filed the case against the OPs. The Complainant used the vehicle for business purpose, i.e., for commercial purpose and there is no case of the Complainant in the petition of complaint that the vehicle was driven by the Complainant himself or by Proforma OP No.6 for their livelihood. There has been no loss to the Complainant as he intentionally avoided to take delivery of the vehicle after paying the dues, and the vehicle being ready for use, it has been occupying a space at the workshop of the OP No.1 causing obstruction to other vehicle, for which the OP No.1 is legally entitled to get Rs.100/- per day from the Complainant on and from 05.04.2009, when it was made ready, till the date of taking delivery of the vehicle. Accordingly, he prayed for dismissal of the complaint. It is the case of the OP No. 5 in his W.V. that he has been falsely impleaded in the case and that the employee of the post office visited the relevant place for delivery of the registered letter on 09.07.2009, 10.07.2009, 11.07.2009, 13.07.2009, 14.07.2009 and 15.07.2009 and found that the addressee was absent and thereafter, as per postal rules, the registered letter was sent back to the sender with a remark. Accordingly, it has been prayed to dismiss the case. It is to be considered if the impugned judgment suffers from any kind of anomaly so as to reverse the same. Decision with reasons. Ld. Advocate for the Appellant has submitted that the Pick-Up Van was purchased for the benefit of the wife and children and it is meant for his livelihood, though not specifically averred in the petition of complaint. There have been deficiency in service as the Complainant faced irreparable loss and injury if he accepted and/or received the vehicle having 1.0 Toner engine instead of 1.03 Toner as such reduction will ultimately adversely affect the vehicle in respect of its capacity as well as lifetime duration and for the delay in providing the vehicle on the ground of non-availability of parts. Ld. Advocate for the Respondent, Bajla Motor Pvt. Ltd., has made out that it is specifically mentioned in paragraph 8 of the petition of complaint that the Complainant used the vehicle for business purpose, with no averment that it is for his self-employment for livelihood, and there is no whisper regarding who is the driver of the vehicle. The vehicle was purchased on 21.05.2007 and it was sent for repairing on 17.02.2009, after lapse of the warranty period and so Rs.84,000/- (Rupees eightyfour thousand) was claimed for repairing of the vehicle. No legal notice was at all served on it and no copy of such legal notice was produced before the Ld. District Forum. Ld. Advocate for the Respondent No.5 has made out that the Complainant after all has no case against this Respondent and it has been impleaded improperly. The Complainant made the case before the Ld. District Forum on 31.08.2009, as per statement of verification, but the vehicle in any case was ready before that date, say at the latest by 30.06.2009. There was no communication by the Complainant that he failed to get the vehicle from the OP Bajla Motor Pvt. Ltd. thereafter on payment of the repairing cost. This is hardly a genuine claim of the Complainant. Documents speak in favour of OP Bajla Motor Pvt. Ltd., but not in favour of the Complainant. The Complainant has no case at all against the OP Bajla Motor Pvt. Ltd. and for that matter against any of the OPs. The Complainant has completely mismatched and mismated the matter. The Ld. District Forum has rightly found no case of the Complainant and so dismissed the same. As there is no material to support the complaint case, this appeal goes against the Complainant/Appellant. Hence, ORDERED that the appeal be and the same is dismissed on contest against the Respondent Nos. 1, 2 & 4 and Respondent No.5 and ex parte against the other Respondent, but without any cost. The impugned judgment is hereby affirmed. MEMBER MEMBER. COURTSEY : CONFONET
Posted on: Sun, 01 Dec 2013 17:04:54 +0000
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