Delhi

North East

CC/268/2016

INDERJEET SINGH - Complainant(s)

Versus

AMAR AUTO - Opp.Party(s)

15 Apr 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 268/16

 

In the matter of:

 

	Inderjeet Singh S/o Shri Dhum Singh R/o H.No. D-189, Gali No. 5 Bhajanpura, Delhi-110053	Complainant
	Versus
	Amar Auto’s 603, Kanti Nagar, Main Road Swarn Cinema Road, Shahdara Delhi-110051	Opposite Party

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

07.10.2016 15.04.2019 15.04.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Shorn of unnecessary details, the complainant has set out the facts in the present complaint as having booked a Royal Enfield Thunder Bird 350 ES Lightning Motor Cycle of 2016 Model on 04.01.2016 with OP by payment of Rs. 5,000/- acknowledged by OP vide receipt no. 011203 with a condition that the said bike should be 2016 manufactured for which OP took one month time for delivery. Complainant made a payment of Rs. 1,53,944/- in cash to OP on 29.01.2016 acknowledged by OP vide receipt no. 011655 for the said bike. However, after the complainant received the said bike on 07.02.2016 from OP vide Delivery Challan No. 7906 and the insurance policy for the said bike also showing manufacturing year 2016, when the complainant received the RC of the subject bike after three four months, the complainant was shocked to know that the manufacturing date of the subject bike was June 2015 i.e. it was eight months old manufactured bike. The complainant raised the issue with the OP and requested him to replace the bike or issue RC of 2016 but OP threatened the complainant and did not accede to his request. The complainant had purchased this bike for his son on loan taken at 8% interest. Feeling aggrieved by unfair trade practice on the part of OP, the complainant was constrained to file the present complaint praying for issuance of direction to the OP to either replace the subject bike with a 2016 manufactured one or issue RC of year 2016 for the said bike.
2. The complainant has attached copy of receipts dated 04.01.2016, 29.01.2016 towards payments made and acknowledged for the said bike to the tune of Rs. 1,53,944/-,  copy of retail invoice issued by OP dated 01.02.2016, copy of delivery challan 07.02.2016 copy of issuance certificate cum policy scheduled for the subject bike for the period 01.02.2016 to 31.01.2017 and copy of RC showing manufacturing dated 06/2015 for the subject bike registration       no. DL3SHX0555.
3. Notice was issued to the OP on 03.11.2016 OP entered appearance and filed written statement on 17.01.2017 in which it took the preliminary defence that at the time of delivery of the subject vehicle, the complainant was explained all details of the vehicle including year of manufacture etc., by OP and the complainant had willingly accepted the same and after driving the said vehicle for nine months, the complainant is now vide the present complaint trying to take benefit of a “Typing Error in the insurance policy of the vehicle whereby mistakenly the year of manufacturing has been mentioned as 2016 instead of 2015 ” and urged for dismissal of the complainant on ground of complainant having suffered no loss or damage on account of any act or omission on the part of OP.
4. Rejoinder in rebuttal to the defence taken by OP was filed by the complainant in which the complainant submitted that the OP has adopted unfair trade practice and deficiency of service by not replacing the subject motor cycle with 2016 model thereof or in the alternate refunding its price to the complainant causing mental harassment since it was absolute duty of OP to do either of the above in such a case. Complainant denied having been explained or been made aware of manufacturing year of the subject bike at the time of its delivery and it was only when the RC was issued after the insurance policy that the complainant came to know for the first time that the subject bike was 2015 manufactured. The complainant have even issued a legal notice to OP on 30.05.2016 served on OP 31.05.2016 for exchange of said bike despite receipt of the notice, OP failed to act thereupon compelling the complainant to file the present complaint.
5. Complainant filed evidence by way of affidavit and written arguments in reassertion / reinforcement of his grievance against the OP of having sold an old manufactured dated bike to him and prayed for either replacement thereof and refund of its price.
6. OP did not appear after filing written statement and was proceeded against ex-parte vide order dated 03.01.2018. Oral arguments were addressed by counsel for complainant.
7. We have heard the arguments addressed by the complainant and perused the documentary records placed before us and have given thoughtful consideration to the same.

It is not in dispute or denial even by the OPs anywhere in its written statement that the subject bike in question was sold to the complainant in February 2016 but was of June 2015 make i.e. manufacturing date. Further the OPs have not placed on record any documentary evidence to reason/ justify the delay or to negate the allegation leveled by the complainant of having provided the insurance certificate of the subject bike with manufacturing year mentioned as 2016 and have taken a lame defence of “Typing Error” therein which cannot absolve the OP and the IDV of the subject vehicle has also been marked to the tune of Rs. 1,33,686/- which is actually as per the depreciated cost of the subject vehicle of the same been eight months old manufactured and not a typographical error of 2016 manufactured as made out by OP. We do not find force in the lame, uncorroborated and evasive contention of the OP that the complainant was made aware of manufacturing year of the subject bike or that the insurance certificate mistakenly mentions the manufacturing year as 2016. The RC contains separate entries of registration date and manufacturing date endorsed thereon meaning thereby that both are independent and significant in their own respects to determine the value / resale value of the vehicle. The Hon’ble National Commission in the judgment of Hind Motor (I) Ltd vs Lakhbir Singh passed in Revision Petition No. 2790 of 2008 and 4345 of 2008 decided on 02.12.2013 had dealt with a similar case of Hind Motors having sold a July 2005 manufactured vehicle to the complainant in January 2006 in which the complainant had alleged the manufacturing defects apart from having been sold an old vehicle. The District Forum had directed Tata Motors to deliver a new defect free car to the complainant alongwith interest and other damages and the appeal against this order before Hon’ble State Commission was dismissed on grounds that Tata Motors was not having fair dealing with its customers and taken contradictory and false please in their pleadings proving their malafide intention. Therefore Tata Motors have filed Revision Petition before Hon’ble National Commission. The Hon’ble National Commission while observing that as per averments made in the complaint, the manufacturing date of the vehicle was mentioned as July 2005 but was sold and delivered to the complainant in January 2006 meaning thereby that the old as well as used vehicle was sold and no specific denial of this averment of complainant came forth from the petitioner /OP, held that this act of petitioner / OP in selling the vehicle which was manufacture in year 2005, in the year 2006, without disclosing the date of manufacture to the complainant certainly amounts to unfair trade practice. Therefore the Hon’ble National Commission upheld the judgment of Hon’ble State Commission Punjab and dismissed the Revision Petitions.

The Hon’ble Delhi SCDCR in the judgment of Sanmati Motors (P) Ltd Vs Chandrasekhar 2006 (I) CLT 250 held that when an old vehicle was sold by representing it as a new vehicle there cannot be any worse kind of unfair trade practice then selling the old vehicle representing it as a new one.

8. In the present case, however, the complainant has nowhere alleged any manufacturing defect in the subject vehicle or the same being a “used” one notwithstanding the undisputed fact that it was already   an eight months old manufactured bike when it was sold / delivered the complainant and the complainant has used the subject bike without any complaint from February 2016 to till date and during the pendency of the complaint. In our considered view, the act of selling a bike manufactured in June 2015 in year February 2016 without disclosing date of manufacture to the buyer amounts to unfair trade practice under Section 2(1)(r) of Consumer Protection Act. Therefore in light of the settled proposition of law held by Hon’ble National Commission and Hon’ble Delhi SCDRC and applying the same to the present case, we hold the OP guilty of deficiency of service and unfair trade practice but do not deem fit to grant either refund of the price of the bike or replacement thereof since no manufacturing defect or allegation a used bike have been made by the complainant. Therefore in the interest of justice, we direct the OP to pay compensation of Rs. 15,000/- to the complainant as compensation for mental harassment inclusive of litigation charges for indulging in unfair trade practice of selling an old manufactured motor cycle without disclosing the same to complainant at the time of sale.
9. Let the order be complied with by OP within 30 days from the date of receipt of copy of this order.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  15.04.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member