DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _390_ OF ___2015
DATE OF FILING : 28.8.2015 DATE OF PASSING JUDGEMENT: 27.04.2018
Present :
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Amit Kumar Das, son of Balahari Das, of Swami Vivekananda Refugee Colony, Akshay Nagar, Kakdwip, Dist. South 24-Parganas, Pin-743377 .
O.P/O.Ps : 1. M/s Megha Automobiles Parulia More, Diamond Harbour, South 24-Parganas.
2. Vikas Motor Co. 225C, A.J.C Bose Road, Kolkata – 20.
3. Honda Motor & Scooter India, Plot no.1, Sector-3, IMT Manesar, District-Gurgaon, Haryana-122050.
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J U D G M E N T
Sri Subrata Sarker, Member
The only sore point of the complainant is that he purchased a two wheeler motor cycle from the showroom of O.P-1; but, the O.P-1 did not provide necessary papers in time and although, the said papers were provided to him after a long time, those papers were replete with many deliberate discrepancies which is characterized by the complainant as deficiency in service as well as unfair trade practice on the part of the O.P-1.
The facts leading to the filing of the instant case may be epitomized as follows.
Complainant purchased one Motor Bike from O.P-1 on 19.9.2013 on cash payment of Rs.64,838/- which amount included Rs.62,958/- as cost of the Bike , Rs.745/- for accessories, Rs.635/- for Honda Shield ( Extended warranty for three years ) and Rs.500/- for H.S.R.P (High Security Registration Plate) . But no document such as owner’s manual book, Honda Shield, Registration Certificate, Insurance Certificate, Tax Token etc. were given to the complainant that day by O.P-1. O.P-1 promised to give all those documents after completion of registration, insurance process and other formalities. The complainant did not take his voter identity card with him on the date of purchase of the motor cycle and, therefore, he sent the same to the O.P-1 on 20.9.2013 through E.mail I.D of O.P-1. O.P-1 lost voter I.D Card and, therefore, intimated the complainant on 15.11.2013 and accordingly complainant also again sent voter I.D Card through E.mail to O.P-1. First Free Service was availed of by the complainant on 17.10.2013 from the workshop of the said O.P. The motor cycle was also produced by the complainant before the Alipore RTO on 28.12.2013 for registration in accordance with the direction of the O.P-1. But papers of motor Bike were not made over to the complainant by the said O.Ps on that day also. It was on 10.1.2014 that the owner’s manual was only handed over to the complainant by O.P-1. There was the warranty card within that manual and the date of sale was recorded therein as being 7.12.2013, not 19.9.2013 – which was absolutely false. One service record sheet was also inside the said manual and the date of first service was also wrongly mentioned therein as 10.1.2014. The Insurance Certificate and the Registration Certificate were given to the complainant in the middle of February 2014. The insurance covered the period from 9.12.2013 to 8.12.2014 and it bears the stamp of O.P-2 instead of O.P-1. Application for registration of the vehicle was field on 17.12.2013 by O.P-1 i.e about three months after the sale of the motor cycle to the complainant. Proper Honda Shield was not also handed over to the complainant by the O.P-1 and the Honda Shield which was made over to the complainant does not bear any seal , stamp or signature of the O.Ps. The mileage shown in that paper was 35-35 KM and that warranty policy i.e Honda Shield shows that it was a transfer policy from the previous owner namely Amit Das ( the present complainant also bears the same name i.e Amit Das). The extended warranty was given from 19.9.2015 to 18.9.2018, i.e not from the date of purchase i.e 19.9.2013. Alleging deficiency in service and unfair trade practice on the part of the O.Ps, the complainant has filed the instant case under section 12 of the C.P Act, 1986 praying for rectification of all those documents and payment of compensation etc. Hence, this case.
The O.P nos. 2 and 3 have not filed any written statement to contest herein and therefore the case is heard exparte against them.
It is the O.P-1 who has filed written version to contest the case . It is contended by him that the motor cycle was sold by him to the complainant on cash payment of Rs.64,838/- on 19.9.2013 and that the delivery of the same was also given that day on complainant’s request. The complainant did not produce the voter Identity Card on that day and ,therefore, he could not issue the documents in favour of the complainant on that very day. The complainant took delivery of the vehicle at his own risk and promised to produce the voter identity card on the next day of the date of purchase. But he did not produce the said Identity Card on that day and also on any other days subsequent thereto inspite of repeated requests by O.P -1 in that regard. Last of all, he i.e the complainant sent the voter identity card through E-mail on 15.11.2013 and thereafter, the papers of the vehicle were sent to O.P-2 for processing. According to the said O.P-1 , it is only a service point of Honda Motor & Scooter India Ltd. (HMSI) and O.P-2 is the parent dealer of them. O.P-2 has ultimate authority to issue tax token, insurance paper and owner’s manual of the vehicle. Necessary steps for preparation of papers are taken normally after receipt of voter identity card of the purchaser and the same procedure has also been followed in this case, as goes the submission of the O.P-1. According to him, the complainant is not entitled to get any relief as prayed for and, therefore, the complaint should be dismissed in limini with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps liable for deficiency in service for causing wrong entry and/or for not causing correct entry in the owner’s manual, warranty card and service record sheet ?
- Are the O.Ps guilty of deficiency in service for not providing necessary valid papers of vehicle and valid warranty papers thereof to the complainant at the time of sale of the vehicle or thereabout?
- Is the O.P-1 guilty of unfair trade practice as alleged ?
Complainant has led evidence on affidavit and the same is kept in the record. The written version filed by the O.P-1 is treated as his evidence vide his petition dated 7.4.2017. They have also filed questionnaire, replies and BNA which are kept in the record for consideration.
DECISION WITH REASONS
Point no.1 and 2:-
Already heard the submissions of Ld. Lawyers appearing for both the parties. Perused the materials on record.
Considered the same.
It is the allegation of the complainant that the O.P nos. 1 and 2 have not caused the correct entry in the documents made over to him by them i.e the owner’s manual, warranty card and service record sheet. According to the version of the said O.Ps the entries have been made in those documents after having a discussion with the complainant and that is for the benefit of the complainant.
On perusal of those documents (photocopies enclosed) it is found that the correct entries have not been made therein by the said O.Ps. The reason is best known to them. We are proceeding to discuss those documents one by one.
First Free Service of the vehicle was given by the said O.Ps on 17.10.2013 and it has been so mentioned by the O.Ps on the reverse page of tax invoice i.e annexure “C”. It is mentioned on the reverse page thereof that the First Free Service was given on 17.10.2013 and Second Free Service of the vehicle on 10.1.2014. The fact of these free services being rendered to the vehicle on those dates have not been denied by the said O.Ps. But the service record sheet which is kept in the owner’s manual does not reflect the correct picture; it shows “10.1.2014”as the date of First Free Service instead of 17.10.2013 vide Annexure “E” to the complaint. In case of Second Free Service also, the correct date has not been shown in the service record sheet and the said date has been shown as 18.4.2014instead of 10.1.2014. Why this manipulation in the entries was made in the service record sheet. There is no explanation forthcoming from the side of the O.Ps. We know very well that the manipulation is always followed by some unfair motive. Be that as it may, we feel no difficulty to hold that such manipulation of entries in service record sheet which is contained in the owner’s manual given to the complainant by the said O.Ps is tantamount to deficiency in service on their part.
Again, there is manipulation of dates in Warranty Registration Card which is kept in owner’s manual given to the complainant by the O.P nos. 1 and 2. It is admitted fact that the vehicle was sold to the complainant on 19.9.2013. But the date of sale which is envisaged on Warranty Registration Card is 7.12.2013. In every step there is a discrepancy in so far as these entries are made by the O.Ps. These entries seem to be contrary to the actual state of affairs and, therefore, we feel no hesitation whatsoever to hold that these wrong entries which have been made by the said O.Ps in these documents are nothing but deficiency in service. These are not only deficiency in service on their part , but these are also not fair practice of business and, therefore, may be characterized as unfair trade practice.
O.P-1 has agreed to deliver the papers of the vehicle to the complainant immediately after the sale of the vehicle and even, he agreed to cause the registration of the vehicle in the appropriate department of the Government. But the said papers were not delivered to the complainant on the date of sale of the vehicle. Complainant took the delivery of the vehicle from O.P-1 without owner’s manual book, registration certificate, insurance certificate, tax token, Honda Shield etc. According to the said O.P, he could not deliver those papers to the complainant for the reason that the complainant failed to deliver the voter identity card to him on 19.9.2013 – the date of sale of the vehicle to him and that complainant sent the voter identity card to him only on 15.11.2013.
Let us see now, whether such explanation of delay as given by the O.P-1 is genuine and acceptable. Such explanation appears to be only a subterfuge to evade his liability. The complainant sent the voter identity card through e-mailof O.P-1 on 20.9.2013 i.e the very next day of the purchase of vehicle by him. To prove it, the complainant has filed the Xerox copy of e-mail dated 20.9.2013 which is marked as Annexure “D” to his complaint. Such document cannot be said to be a procured documents and the O.P-1 has not also called it a procured and fabricated documents. If this be so, this document remains unchallenged and we find no difficulty to rely on the veracity of those documents. B y these documents it stands proved that the complainant sent his voter identity card to O.P-1 on20.9.2013. But O.P-1 has stated that he received the said voter identity card from the complainant on 15.11.2013 after prolong persuasion. He has not been able to produce even a single paper to prove that he resorted to prolong persuasion for getting that document. Considering all these facts and circumstances we do feel that the O.P-1 has no explanation for taking any step for registration on 17.12.2013. He did not act as per Rules of Motor Vehicle. Rule 42 of the Central Motor Vehicle Rules , 1989 appears to be relevant and is reproduced as under:
“42. Delivery of vehicle subject to registration – no holder of trade certificate shall deliver a motor vehicle to a purchaser without registration, whether temporary or permanent”.
In the present case O.P-1 has agreed to have the vehicle registered in the name of the complainant , but he did not take any step for registration of the said vehicle for about three months and delivered the vehicle to the complainant without any registration. He has acted contrary to Rule 42 of Central Motor Vehicle Rules as pointed out above and taking this thing particularly in consideration we do say that the O.P-1 has caused deficiency in service by not following the Rule 42 as mentioned above.
Point nos. 1 and 2 are thus answered in favour of the complainant.
Point no.3:-
In the instant case, an extended warranty for three years technically called “Honda Shield” has been given to the complainant by the O.P-1. O.P-1 does not deny this fact.He has also taken payment of Rs.635/- from the complainant for HONDA Shield. But, actually such extended warranty has not been given to the complainant either by the O.P-1 or by O.P-2. What is given to the complainant by the said O.Ps. They have given to the complainant a transfer warranty policy, a photocopy of which is produced herein and the same is marked as annexure “F” to the complaint.
A perusal of Annexure F shows that it is an extended warranty policy which formerly belonged to one Amit Das who has soled away the policy on 9.9.2014. So, it is found that an old policy of extended warranty has been given to the complainant by the said O.Ps, although they promised to the complainant to give a new extended warranty policy. They mis-represented the complainant to give a new policy ,but actually they have given an old policy. They gave it to understand to the complainant that they would give a new policy and the complainant believed on their misrepresentation and purchased the vehicle. Regards being had to all these facts and circumstances of the case we do say that the practice on the part of the O.Ps is unfair trade practice. There is also another kind of trade practice on the part of the said O.Ps. The O.P-1 has stated in his written statement that he is not the dealer of O.P-3 and that O.P-2 is the dealer of O.P-3. According to O.P-1, it is a sale and service point of O.P-2. If this be so, why a misrepresentation is given in the money receipt i.e Annexure A to the complaint. It has been issued by the O.P-1. Annexure A clearly shows that O.P-1 is an authorized dealer of Honda Company i.e O.P-3. Is it not false representation given by the O.Ps?It is certainlya false representation, if it is assumed for a moment that the version of O.P-1 as given in his written statement is correct. In the written statement he has stated that it is a sale and service point of O.P-2. It now appears that O.P-1 is in the habit of misleading others. He seems to be not a straight forward person. His transparency appears to be seriously at stake. Such kind of practice of saying a thing and do another thing , as is done by the O.P-1 and as is referred to above, is undoubtedly an instance of unfair trade practice.
In every time and every step O.P-1 is acting in camouflage.He issued a challan and a money receipt in favour of the complainant on 19.9.2013 ,when the complainant purchased the vehicle from him. Now he is found to have stated that the said money receipt and challan were issued temporarily for the purpose of plying the vehicle ( vide para 12 and 13 of the writtenstatement). If those documents were issued temporarily , the O.P-1 should have mentionedthis fact on those documents vide annexure “A”, “B”,”C” to the complaint. But such fact is mentioned in those documents. We would ask a question to the O.P-1 why he issued such invalid document to the complainant.Be that as it may, all these practices which have been adopted by the O.P-1 would never be subscribed by a prudent person , because these are always abominable for being unfair trade practice.
Point no.3 is thus answered in favour of the complainant.
In the instant case complainant has prayed for rectification of the documents such as owner’s manual book, service record sheet, warranty registration card, certificate of Honda Shield, Registration Certificate, Tax Token and insurance certificate . A perusal of the photocopies of those documents it is found that the warranty registration card, registration certificate, tax token and insurance certificate need not go through any rectification because these appear to be valid enough still now, and do never go to cause any prejudice to the complainant. It is only certificate of Honda Shield which should be issued afresh by O.P nos. 1 and 2 ,because they have not issued any fresh certificate of such kind in favour of the complainant. So, they should be directed to issue such a certificate in favour of the complainant.
That apart, the complainant has undergone tremendous harassment and mental agony and therefore, the said O.Ps should pay compensation to the complainant.
O.P-3 is the manufacturing company of the vehicle and, therefore, he is not liable to the complainant as there is no manufacturing defect alleged in the vehicle.
O.P-1 is the representative of the O.P-2 as it appears from his version and there is relation of principal and agent between them. So, both of them will remain liable jointly and severally to the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P nos. 1 and 2 with cost of Rs.5000/- and dismissed exparte against O.P-3 without cost.
The O.P nos. 1 and 2 ,who will remain jointly and severally liable for payment and the discharge of liability to the complainant, are directed to issue a fresh Honda Shield i.e extended warranty for three years to the complainant with due seal and signature and also to pay a sum of Rs.20,000/- as compensation for harassment and mental agony caused to the complainant , within one month of this order, failing which, the aforesaid amounts i.e the amount of compensation and the amount of cost as referred to above will bear interest @10% p.a till realization thereof.
Let a free copy of this order be given to the parties concerned at once.
Member Member
Dictated and corrected by me
Member
