ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in selling an already used accidentally met car as a new one by receiving its full value and for refund of the cost of the car on road i.e. Rs.5.81,782/- and for Rs.4,00,000/- as damages for causing mental agony and suffering and for other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the complainant purchased a new car Hyundai i10 sports, wine red colour manufactured by OP-1 sold by OP-2, by paying its full value and got it registered in his name vide Regn. No.KA-04 MQ-7505 on 09.11.2015 by obtaining financial assistance from Kotak Mahindra Pvt. Ltd and the same was insured with TATA AIG General Insurance Company. After few days of purchase of the said vehicle, there was a stearing problem in the said vehicle and the same was taken to OP-2 for repair and the same was rectified.

3.     Again after some months, a strange sound in the chassis and in the engine and again the same was taken to OP-2 who repaired the same but after some days, the said trouble propped up again.  Complainant was not happy with the service of OP-2.  When he got a rating to be given to OP-1 a poor rating was given due to the frequent problems faced in the car.  OP-2 was providing service free of cost and did not charge any money. When the car started giving frequent trouble in the year 2017, the said car was left with OP-2 for repair and informed one Mohan the service manager that he will not receive back the car if the same is not properly repaired. OP retained the said car for thorough investigation. Free service was provided by OP-2 and the same was delivered to his home from the customer care executive. After few months again, there was a noise in the engine and the chassis. He consulted one automobile technician by name Jaideep who also took the test drive of the said vehicle and after examining the same, he informed him that the new car purchased by the complainant is an impacted car and when the complainant sought more explanation, it was informed that the said car had met with a major accident and requested him to make thorough enquiry.  When the complainant enquired regarding the history of new car he came to know shockingly that the said car had met with an accident on 26.10.2015 and the same was delivered to him after repair.  He also came to know that the said car was an accident repair car.

4.     OP-2 intentionally suppressed the above fact and sold it as a brand new one deliberately and cheated him by misrepresenting the facts.  The staff of OP-2 showed him few documents in the computer and he was allowed to take the photos in his mobile.  The said accident details repairs was not given by Kodigehalli branch, whereas one of the staff of the OP asked him to approach Kempapura branch of and he visited Kempapura branch and obtained the repair order details of the said car. On examination of the documents and the previous records of the said car, it came to his knowledge that the OP-2 has sold the car either which has met with an accident before the purchase or damages while it was being transported by OP-1 to OP-2’s showroom. When the same was confronted with OP-2, they failed to give a proper reply. 

5.     OP-2 failed to replace with a new car. He had to make a complaint to the jurisdiction police at Kodigehalli.  After the said complaint, OP-2 came for a settlement amicably and also agreed to cooperate and discuss the information with OP.  Reply was also given by OP on 21.05.2018. OP-2 initially agreed about the mistake done by them and decided for the settlement. When the complainant sought for replacement of the case and also for compensation for inconvenience caused,  OP-2 agreed for the same to discuss the same with higher authorities. Afterwards OP-2 did not come forward to settle the matter and contended that the repair order in respect of the said vehicle at 172 kms on 30.11.2015 belongs to one Mr.Kailash MG vehicle No.KA-04 MQ-5884 and the vehicle identification number was wrongly entered and it was a change in the last digit and the vehicle repair history was updated in the name of the complainant. 

6.     The police have registered a complaint against OP. The complainant had to issue legal notice bringing the said fact and demanding OP to replace with a new car.  Notice sent to OP-1 was not returned whereas OP-2 received the said notice but did not comply the request and demands. The act of OPs amounts to unfair trade practice. Since there is deficiency in service and unfair trade practice and cheating to the complainant by selling an already sold vehicle which has met with accident as a new one, prayed the commission to allow the complaint and to pass suitable order as complainant has been put to monetary loss, mental agony. Hence the complaint.

7.     Upon the service of notice. OP-1 remained absent and hence placed exparte. Though OP-2 appeared before the commission through its advocate did not file the version well in time and right to file the version forfeited. Again by making application, the same was allowed and permitted to file the version by imposing cost of Rs.2,000/-.

8.     OP-2 filed the version contending that the complainant has filed this complaint belatedly 5 years after the purchase of the vehicle. It is an afterthought one.  The case of the complaint is on the basis of a mistaken identity based on wrong and incorrect service record of two identical vehicle owned by the complainant and another customer Mr.Kailash MG.  By mistake and inadvertence the history of the vehicle of Mr.Kailash MG was entered into the history of the complainant’s vehicle. The last digit of 3738 in the chassis cause for the same. This complaint is based on wrong print out of a different vehicle with different VIN number and is attempt to fraud, hoodwink and misdirect this Hon’ble Court to enrich himself by cheating. The documents dated 21.03.2018 and 23.05.2018 clearly rests to dismiss the complaint. The said documents are the reply given to the investigating officer of Kodigehall P.S to whom the complainant filed the complaint. The complaint was registered and the same was non-cognizable. Basing on the investigation and reply by the OP the case was closed by the Police. The two separate service individual records of the complainant’s vehicle and that of the vehicle of Mr.Kailash.MG clearly demonstrates the identity crises.  A comprehensive reply was also given to the notice sent by the counsel for the complainant. The intention of the complainant is to play fraud on the commission.  The details of the vehicle of Mr Kailash having the last VIN No. 38 along with vehicle registration number and mileage is produced.  It clearly establishes, the difference and makes it clear that the claim of complainant is not genuine.  The VIN of the two vehicles are different and delivery gate pass also have been issued. The VIN number of the last digit being 37/38 is reflected in Chassis column. There is no deficiency in service on his part and prays to dismiss the complaint.

9.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1 & 2 :    In the negative.

                                For the following.

REASONS

POINT No.1 & 2:-

11.   We have perused the complaint, version , evidence and the documents produced by rival parties.  It is not in dispute that the complainant purchased Hyundai I10 1.1 GI Sports SW-5R wine red car on 07.11.2015 bearing chassis No.MALAM 51BLFM 640437 and engine No.G4HGFM900002. A Chassis bearing No.MALAM51BL5M640438 of the same colour car and the same model was purchased by one Mr.Kailash MG on 25.09.2015 and the same has Regn. KA04-MQ5884. Whereas the vehicle purchased by the complainant was registered on 07.11.2015 bearing No.KA04 MQ7505. 

12.   It is the specific case of the complainant that there was some problem in the vehicle and the same was oftenly taken to OP-2 for service and the same was attended by OP-2 whereas the problem still persisted and he contacted one of his friends by name Mr.Jaideep who after testing the said vehicle opined that the said vehicle might have suffered an accident and there was an impact on the chassis and that is why the problem in the vehicle and asked him to enquire with the history of vehicle and afterwards he investigated the same and found that the vehicle bearing chassis No MALABLM640437 has met with an accident on 25.10.2015 itself when it has covered only 172 kms and hence it is his specific case that vehicle already met with accident has been sold to him by suppressing the fact of incident in respect of the said vehicle and thereby he has been cheated.

13.   On the other hand, it is the specific case of OP that, the similar vehicle was sold to one Mr.Kailash MG bearing Chassis No.MALM 51BLFM640438 which had met with an accident and the same was repaired for which the said owner has paid the amount through its insurance and by mistake while entering in the history of the vehicle instead of mentioning the last 2 digit as 38 has been mentioned as 37 which has given rise to the present complaint which is altogether false. 

14.   It is not in dispute that the complainant has made a complaint before the Kodigehalli PS wherein OP-2 was summoned by the Police and their statement was recorded and OP-2 has given statement wherein it is mentioned that the complainant purchased the vehicle from them on 07.11.2015 and the gate pass was also issued and the said vehicle was in their stock and sold this complainant by offering some discount which the complainant accepted and in view of the wrong entries made by the staff of their showroom the said fact of accidental repair for vehicle having a chassis nu. Ending 37 has been entered at 172 kms and the said vehicle cannot ply on the road without there being registration and there was no chance of accident to this vehicle. Whereas the vehicle purchase by Mr.Kailash met with accident which was repaired for which he has paid the amount through insurance. The documents are also produced.

15.   It is to be noted here that though the vehicle history mentions that on 26.10.2015 the vehicle bearing chassis No.MALAM 51BLFM 640437 has come up for accidental repair at 172 kms mileage. It cannot be believed that when the said vehicle was registered with RTO authorities in the name of the complainant on 07.11.2015 as per the RC, how it can be as road and met with an accident has not been explained. Further there is every likelihood that the said mistake might have cropped due to the similarity in the chassis except the last number and the staff might have entered the details of the vehicle of Mr.Kailash M.G having last digit 38 as 37 of the complainant’s vehicle.

16.   Further it is to be noted that the complainant enjoyed the vehicle for all these five years and has filed this complaint seeking compensation which clearly goes to show the intention of the complainant to make wrongful gain. No substantial evidence has been placed by the complainant to show that OP has sold a vehicle which already met with an accident as a new one, except the entries made in respect of the chassis number 37 as an accidental repair.

17.   The accidental repair need not be a major one, it may be due to while transporting the vehicle also. No expert evidence is produced by the complainant to show that the said vehicle had already met with an accident, no copy of FIR in that respect is also filed and further document to show that the vehicle which is already met with accident has been sold to the complainant. In view of this, there is no sufficient evidence placed by the complainant to show deficiency in service, deceptive sale practice and unfair trade practice on the part of OPs and further complaint filed is very belated and hence we answer POINT NO.1 IN THE NEGATIVE.  In the result, the complainant is not entitle for any relief as claimed in the complaint and answer POINT NO.2 ALSO IN THE NEGATIVE and pass the following:

ORDER

1. The Complaint is hereby dismissed. Parties are directed to bear their own costs.
2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 4^th day of October 2021)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the order booking form.

Ex P2: Profile sheet

Ex. P3: Sales invoice

Ex P4 : RC copy

Ex P5: Loan details

Ex P6: Insurance document

Ex P7: Screenshot of the vehicle history.

Ex P8: Accident repair bill.

Ex P9: copy of the complaint to the police.

Ex P10: letter dated 21.05.2018 and 23.05.2018.

Ex P11: Acknowledgement issued by Police.

Ex P12: copy of the legal notice.

Ex P13: Reply.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri M.R.Raghavendra, General Manager of OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Authorization letter.

Ex R2: Repair order.

Ex R3: Another repair order.

Ex R4: Tax Invoice dated 07.11.2015.

Ex R5: Tax Invoice dated 25.09.2015.

Ex R6: Invoice summary.

Ex R7 Copy of the gate pass dated 30.06.2015

Ex R8: Copy of the legal notice dated 03.10.2018.

MEMBER                        PRESIDENT

RAK*