State Consumer Disputes Redressal Commission
Sri Sunil Kr. Sharma vs Sri Ashish Chakraborty on 3 December, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/357/2018 ( Date of Filing : 12 Apr 2018 ) (Arisen out of Order Dated 13/03/2018 in Case No. Complaint Case No. CC/229/2017 of District Kolkata-III(South)) 1. Sri Sunil Kr. Sharma S/o T. Sharma, 1C/H/14, Motijhil Lane(Premises no. 1A to 1P & 5/H/10 to BC), P.S. - Entally, Kolkata - 700 015. ...........Appellant(s) Versus 1. Sri Ashish Chakraborty Prop., M/s. Entire Solutions, Br. at 210/1A, Rash Behari Avenue, 2nd Floor, Gariahat Road, P.S. - Gariahat, Kolkata - 700 029. 2. Dewars Garage Ltd. Salt Lake Showroom at Plot - Y9, Block -EP, Salt Lake City, Sector -V, P.S. - Electronics Complex, Kolkata - 700 091. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Barun Prasad, Ms. Priyanka Das, Advocate For the Respondent: Ms. Soma Biswas., Advocate Dated : 03 Dec 2018 Final Order / Judgement Sri Shyamal Gupta, Member
The complaint case since been dismissed by the Ld. District Forum, aggrieved with such decision, present Appeal is preferred by Sri Sunil Kumar Sharma, the Complainant.
Case of the Complainant, briefly narrated, is that, he booked one 'MarutiErtiga, Model No. VDI SHVS (New)' with the OP No. 2 through the OP No. 1. Notwithstanding due payment was made to the OPs in due course of time, to his utter surprise, the OP No. 2 offered to take delivery of a different model which was not acceptable to him. As complaint lodged with the OPs did not yield any positive result, feeling aggrieved, he filed the complaint case.
In its WV, the OP No. 1 submitted that he was in no way responsible for the alleged mismatch of model number. He acknowledged receipt of the sum of Rs. 1,88,000/- (Rs. 11,000/- + Rs. 1,35,000/- + Rs. 42,000/-) from the Complainant, but denied receiving the sum of Rs. 1,08,000/- from the Complainant, as claimed.
The OP No. 2, on the other hand, submitted that the Complainant being unable to pay the full price of the initially booked model, on his own accord, opted for a different model of lesser value and acting upon such request, the Complainant was offered to accept the intended model. However, for some obscure reasons, the Complainant refused to accept the said car and filed the frivolous case.
Decision with reasons Notice was duly served upon both the Respondents. However, the Respondent No. 1 has not turned up to defend his case before us. Therefore, the Ld. Advocates of the Appellant and Respondent No. 2 were heard. We have also perused the documents on record carefully.
By furnishing a purported letter that had allegedly been written by the Appellant, the Respondent No. 2 tried to establish that acting upon the request of the Appellant, it changed the model number of the car which has, however, been vehemently denied by the Appellant.
It appears that since the Appellant did not ask for referring the letter to a hand-writing expert in order to verify the authenticity of the signature contained in the purported letter, the Ld. District Forum accepted the contention of the Respondent No. 2 at its face value.
We afraid, the Ld. District Forum went terribly wrong in properly fixing up the responsibility. As per the Indian Evidence Act, the burden of proving a document rests upon the person/organization, who places reliance upon it and not the other way round. Since the Respondent No. 2 relied upon the disputed letter to drive home its point, the burden of proof squarely fallen upon it which it did not discharge.
In any case, on a reference to the disputed signature we find that the mismatch in signature, so contained in the purported letter vis-a-vis other documents on record is so apparent that, a bare eye view is suffice to discern the disparity. Thus, we cannot accept this document as an authentic piece of document.
It transpires from the copy of money receipt dated 31-12-2016 that the Appellant deposited a sum of Rs. 10,000/- with the Respondent No. 2 towards Model No. MarutiErtiga VDI SHVS. Significantly, it is alleged by the Respondent No. 2 that on that day itself, i.e., on 31-12-2016, the Appellant requested it to change the model number. It is hardly believable that, on one hand one would make part payment in respect of a particular model and on the other, urge the dealer to change the model number on the very same day. It is highly unlikely of one to blow hot and cold in the same breathe.
So also intrigue is the fact that despite being desirous of Model No. MarutiErtiga LDI, the Appellant availed of loan from the financier for MarutiErtiga VDI and as it transpires, the loan was disbursed in favour of the Respondent No. 2 in February, 2017. It is common prudence that the financier would not allow such mismatch in respect of model number.
Taking due note of above improbabilities, we have no qualms holding that the Respondent No. 2 indulged in unfair trade practice. We, thus, find enough merit in this Appeal.
By filing the complaint case, the Appellant prayed for delivery of a MarutiErtiga VDI SHVS (New) car and refund of the excess amount to the tune of Rs. 1,51,571.41, as also some other ancillary reliefs. For some obscure reasons, he has not filed any copy of the quotation being issued by the Respondent No. 2 towards the price of MarutiErtiga VDI SHVS (New). Be that as it may, taking into consideration the practical impediment to deliver the intended model at the same price at this juncture, we deem it fit and proper to direct the Respondents to refund the entire amount paid by the Appellant to them. In this connection, it may not be out of the place to mention here that notwithstanding the Respondent No. 1 denied receiving the sum of Rs. 1,08,000/- from the Appellant, the reply letter sent by his Ld. Advocate to the Ld. Advocate of the Appellant belies such contention.
Hence, O R D E R E D The Appeal stands allowed on contest against the Respondent No. 2 and ex parte against the Respondent No. 1. Respondents shall return the respective sum that has been received by them from the Appellant within 40 days from this day along with simple interest @ 9% p.a. over the said sum w.e.f. 18-04-2017 till full and final payment is made. Respondent No. 2 shall return the entire amount of Rs. 6,30,000/- to the financier bank of the Appellant along with all outstanding due within the afore mentioned time frame. Once the loan amount is fully repaid to the financier, Appellant shall be at liberty to approach the concerned financier to seek refund of the EMI amount that has been paid by him so far. Respondent No. 2 shall also pay compensation and litigation cost to the tune of Rs. 1,00,000/- and Rs. 10,000/-, respectively, to the Appellant within 40 days henceforth. The impugned order hereby stands set aside. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER