JUDGEMENT

Shri A.K.Patra,President:

1. This Complaint is filed  by the complainant named above alleging deficiency in service and unfair trade practice on the part of the Ops for delivery of an Old model vehicle of 2018 on the pretext & charging price for a new model 2019 vehicle   i.e. i-10 Soprtz (Hyundai).
2. Complainant has  prayed for an order directing the O.Ps to supply a new Hyundai Grand i-10 Soprtz Car and to pay Rs.1,00,000/- for the physical strain and mental agony suffered and further prayed  to award Rs.5,000/- towards litigation expenses and to direct the Op 4 to stop recovery of loan from the complainant till disposal of the complaint.
3. Heard .Perused the material available on record. We have our thoughtful consideration on the contention of the both parties.
4. Brief fact of the complaint is that , the complainant has purchased a vehicle i.e. Hyundai Grand i-10 bearing Engine No.G4LAJM967687 and Chassis No.MALA851CLJM884665 for consideration price of Rs.6,26,345/- as per his previous booking order dt.17.07.2019. It was financed by SBI/OP 4. It is alleged that OP 1 introduced the OP 4 to the  complainant for his personal gain. It is further alleged that the complainant being attracted with the advertisement of 2019 model and technology of Hyundai i-10 Soprtz Car intended to purchase a new i-10 Soprtz of 2019 model for his domestic use and booked for the same by depositing Rs.5,000/- with the OIP 1 on dt.17.07.2019.  It is further alleged that OP 1 has sold a car of 2018 model to the complainant on the pretext of selling 2019 model charging with the price of  new model of 2019 i.e. Rs.6,26,345/- by practicing fraud & unfair trade practice. The OP No.1 deliberately delayed in the paper works and delivered the car to the complainant at about 8.30 P.M when the showroom was going to be closed and the complainant had no scope or opportunity to verify & scrutinise the documents and the vehicle itself  properly.  After two days from purchase i.e. 8.8.,2019 while the complainant verified the documents and car itself at his resident it was found that the OP 1 has deliberately & fraudulently delivered a year old car of 2018 manufacturing representing it to be a new one of 2019 manufacturing is clear instance of unfair trade practice of seller/ OP No.1. The complainant brought the notice of the fact to the OP 1/Seller immediately who assured to look into the matter very soon but subsequently not responded. It is further alleged that the makeable distinction of 2019 model and 2018 model of Hyundai i-10 Sportz Car is the light system only. The OP 1 very cunningly installed the light system of 2019 model during the delivery of old model 2018 car to conceal the truth so that the complainant/purchase could not identify the deliberate concealment of the OP 1. It is further alleged that on 9.10.2019 evening while the car was running only 790 K.M and complainant was returning to his house from Dharamgarh town on the way near village Kebidi the light system of the said newly purchased car stopped working suddenly. However, the complainant managed to brought it his house and on the next day i.e. 12.10.2019 the complainant took the vehicle to the Hindustan “Sales Pvt. Ltd. Jeypore Workshop for repairing where he came to know that OP 1 tactfully managed to cheat him by delivering an old model car in stead of new model car of 2019. So he immediately informed the OP 1 who admitted the fact that the light system of the sold car has subsequently replaced at delivery point. Thereafter the complainant visited the OP 1 with the alleged car to replace it with a new model of 2019 but the OP 1 not responded for which the complainant sent a pleader notice to the OP 2 & 3 to consider the matter but it went in vain. Hence this complaint.
5. To substantiate his claim the complainant has filed the photo copy of the following documents:- (i) Greetings from Hyundai Motors India Ltd.(ii) Insurance Certificate vide Policy No.201130110419800067800000,dt.5.8.2019,issued from Liberty General Insurance Ltd. with respect to the alleged vehicle valid from 5.8.2019 to 04.8.2020,(iii) Order booking form dt.17.07.2019(iv) Retail Invoice No.E7200H201900234 dt.31.7.2019(v) delivery receipt & gate pass of the alleged vehicle dt.31.07.2019(vi) money receipt of Rs.11345/-dt.5.8.2019 issued from OP 1(vii) Money Receipt of Rs.1,80,000/- dt.26.07.2019 issued from OP 1(viii) Money receipt of Rs.5000/- dt.17.7.2019(ix) Bank Statement obtained from OP 4 towards payments of EMI.  The complaint averment is supported by an affidavit of the complainant.
6. On being notice, OP 2 & 3 filed their written version. Op1 & 4 contested the case without written version.
7. The complaint allegation is denied by the OP 2 & 3 on all its material particulars and challenged the maintainability of the complaint as there is no privity of contract between the complainant and OP 2 & 3, lacks any cause of action against the OP 2 &3. It is submitted that the aspect of retail sale or service is strictly inter se the customer/complainant herein and concern dealer/workshop OP 1.  The answering Op 2 & 3 being manufacturer of the vehicle has no role in retail and service aspect of the vehicle. Complainant has not raised any allegation regarding the performance of car, no deficiency can be attributed to the answering OP 2 & 3, no specific allegation has been made against the OP 2 & 3. It is submitted that the complainant has already  approached  the dealer /OP1 for the purpose of purchasing the vehicle and also the consideration amount against the purchasing of the vehicle was paid solely  to OP 1. The Op  2 & 3 was nowhere involved in the finance or insurance of the vehicle. Therefore exist binding contract between the complainant and dealer only.  It is further submitted that the complainant in the present case has alleged that the dealership/Op1 has sold a car of 2018 model to the complainant on the pretext of selling 2019 model. The alleged vehicle has already covered mileage of 4954 KMs as on 5.3.2021 since the date of its purchase in August, 2019 which has been concealed by the complainant. The true fact is that the vehicle is still working to the best of its quality and ability. It further urged that if the vehicle could have been an old or defective one it would never have covered such an extensive mileage. The OP also draw our attention on the contention of the complainant that the complainant had came to know about the manufacturing year of the purchased vehicle two days after the purchasing as such the complainant should have reported the same to the concerned dealer without further using or delivering the subject vehicle but in the present case complainant is still using the vehicle continuously and the same was last reported for second free  service on 5.3.2021 after the running mileage of 4954 KMs. It is further submitted that the complainant has not submitted the copy of quotation, booking for invoice of the vehicle and other sale related documents in order to show that no special discount was availed on the pretext of old manufacturing vehicle. We found force on the submission of the OP 2 & 3.
8. Evidently the complainant has purchased a car namely Hyundai Grand i-10 from the OP 1 paying the consideration amount of Rs.6,26,345/- and it is alleged that, OP 1 has sold 2018 model vehicle to the complainant where the complainant was charged with the amount of  2019 model and it is further alleged that there is clear visible distinction between the head light of model provided to the complainant allegedly 2018 model ;and 2019 model of Hyundai Grand i-10. The grievance of the complaint is with respect of sale facility of vehicle. There is no any allegation of manufacturing defect or performance of the car. Admittedly errors /omission if any at the time of retailing and service of car is the sole responsibility of concerned dealer as such we found no privity of contract exist between the manufacturer and complainant. Hence, we are agreed with the submission of the Op 2 & 3 that, they are not a necessary party and there is no cause of action made out against the Op No. 2&3. Hence complainant is dismissed against the Op No. 2 & 3 on contest.
9.  No evidence is found on the record to hold that the Op No. 4 is connived with the OP No 1 in any manner for committing any unfair trade practice as alleged by the complainant . The complainant has failed to prove any connivance of OPO 1 with OP 4 to sale the alleged old model vehicle on the pretext of new model. This aspect of sale or service is strictly intere se the complainant herein and concerned dealer workshop/OP1. Hence we are of the opinion that, complaint against the OP 4 is also not maintainable.
10. The submission of the Op that, the complainant  had came to know about the manufacturing year of the purchased vehicle two days after the purchasing as such the complainant should have reported the same to the concerned dealer without further using or delivering the subject vehicle but in the present case complainant is still using the vehicle continuously and the same was last reported for second free  service on 5.3.2021 after the running mileage of 4954 KMs remain unchallenged as such the complainant is enjoying the vehicle as on date cannot be ruled out .
11. It is found from the document i.e. the Order Booking Form dt.17.07.2019 available on the record that , the space for year of manufacturing of the vehicle booked is remain vacant from which it cannot be ascertain that the complainant had booked the vehicle of 2019 model .
12.  The Complainant has raised deficiency in  service & unfair trade practice   on the part of the Ops for delivery of an Old model vehicle of 2018 on the pretext & charging price for the vehicle of 2019 model i.e. i-10 Soprtz (Hyundai) of2019 model . But no evidence on affidavit as prescribed in C.P.Act 2019 is adduced by the complainant. The photo copy of documents filed by the complainant as per list along with his complainant petition without  authenticated by fundamental evidence that, the photo copy is in fact a true copy of the original may not be accepted as evidence,(Reliance placed on the ratio of judgement of Honourable Supreme Court in M.Chandra Vrs. M. Thangamuthu & another ,reported in 2010(ii) CLR (SC) 746 :(2010) 9 SCC 712 ) .Here the  complainant has failed to adduce any cogent evidence  to substantiate his claim.
13. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation.
14. Law is well settled that, complainant is to prove deficiency in service or unfair trade practice as alleged against the Ops but here the complainant failed to prove any negligence & deficiency of service or unfair trade practice on the part of the Ops.
15. Based on above facts & circumstances and settled principle of law, we are of the opinion that this complaint sans merits. Hence , dismissed against the OPs on contest. However, no order as to cost.

  Dictated and corrected by me.

Sd/-

President.

I   agree.

Sd/-

Member    

          Pronounced in open Commission today on this 3^rd  day of April 2023  under the seal and signature of this Commission. The Pending application if any is also disposed off accordingly.

          Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.