DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 283/2012

Kalka Education Society

M-3 Kalkaji,

New Delhi-110019

                                                                                    ….Complainant

Versus

1. Autolink Enterprises (I) Pvt. Ltd.

(Authorized Dealer for Tata Motors)

M-3 Hauz Khas Enclave

New Delhi-110016

2. Tata Motors, Jeevan Tara,

5, Sansad Marg,

New Delhi-110001.

                                            ….Opposite Parties

                                                  Date of Institution      :         31.05.12     Date of Order      :         12.09.19   

Coram:

Ms. Rekha Rani, President

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

1. Complainant’s case as pleaded is that the complainant purchased a Tata Indica Vista Diesel VX Car for Rs.6,15,107/- based on OPs printed price list. As per the exchange policy offered by the OPs, complainant gave his old Tata car to OPs and in exchange OPs gave discount of Rs.1,51,682/-. The complainant accordingly was to pay only Rs.4,63,425/- in exchange of the old car. The complainant made payment of Rs.4,63,425/- to OP on 31.12.2011.
   1. It is alleged that OP after receipt of the full consideration for transaction, delivered a defective / damaged old car on the night of 04.01.2012 at the premises of the complainant at Kalka Public School.
   2.  The next morning i.e. 05.01.2012 complainant noticed the defects/ damages in the car and immediately informed OP-1 over the phone. Representative of OP-1 visited the complainant and was satisfied that the vehicle is damaged and should be replaced with the new car. OP-1 was again reminded of the defective/ damage condition of the car on numerous occasions thereafter, telephonically as well as in writing. Copies of written communication are annexed as Annexure-4.
   3. It is next averred that the car’s bonnet was not closing properly, tyres were old, door bidding looked repainted and there were many other defects of various serious nature in the car. It was not safe to use the car in such a condition therefore, the complainant had to hire cars from travel company every day for its use.
   4.  The complainant on receiving no response from OP-1 and OP-2 sent written intimation and notices to both the OPs. It is averred that the complainant has never used the car. It is parked there where was parked at the time of delivery. It is next averred that delivery of the defective/ rebuilt/ second hand/ renovated, old car as new car amounts to unfair trade practice on the part of OP.
   5. Aggrieved by the circumstances above, the complainant approached this forum with following prayers :-

(i)       Direct the OPs to refund the amount of Rs.4,63,245/- with interest at the rate of 12% per annum till the date of payment by the complainant to the OPs.

(ii)      Direct the OPs to pay Rs.1,51,862/- with the interest at the rate of 12% per annum, being the consideration for the old vehicle given to the OPs in lieu of the differential in cost of the new Tata Indica Vista Q-Jet VX as per the OPs Pricelist.

3. Pay to the complainant Rs.2500/- per day with interest 12 % per annum from the date of delivery till the date of settlement of this complaint towards taxi hiring charges.
4. Direct the OPs to pay to the complainant Rs.2,00,000/- towards damages for mental tension, harassment, and inconvenience caused due to the act of the OPs.
5. Or supply a new car in good condition, duly registered and insured with all documents, warranty certificate, free service cards and also make good the loses and damages under (c) and (d) above.

2.      OP-2 resisted the complaint raising preliminary objection that the vehicle in question has been purchased in the name of Kalka Education Society and has been used for commercial activities and as such the complainant cannot claim the status of the ‘Consumer’ under the Consumer Protection Act, 1986.

2.1    Dealing with various contentions of the complainant OP-2 submits that the relationship between OP-1 and OP-2 is on ‘principal to principal’ basis. It is therefore, submitted that OP-2 cannot be held liable for any independent act and / or omission, submitted by the other opposite party. It is next submitted by OP-2 that the vehicle, purchased by the complainant is of the highest quality and the complainant had taken the delivery of the vehicle after being satisfied with the condition of the vehicle and its performance. It is therefore, prayed that the complaint be dismissed being false and frivolous.

3.      Rejoinder to the written statement of OP-2 is filed by the complainant wherein facts of the complaint are reiterated and evidence by way of affidavit is filed by Shri Anil Mahlotra, Secretary of the complainant Society. Evidence of Shri M.K. Bipindas Manager (Law) has been filed on behalf OP-2.

4.      None appeared on behalf of the OP-1, hence OP-1 was proceeded exparte on 27.05.2013. As OP-1 chose not to contest the case averments made by the complainant qua OP_1 have remained uncontroverted and unchallenged.

5.      Written arguments have been filed by the parties.

6.      Arguments on behalf of the complainant and OP_2 are heard and record is perused carefully.

7.      Preliminary objection raised by OP-2 that the vehicle in question has been purchased in the name of Kalka Education Society and has been used for its commercial activities is baseless. As per section 2(d)(m)(iv) of the Consumer Protection Act, 1986 “consumer” means any person which includes-

1. a firm whether registered or not;
2. a Hindu undivided family;
3. a co-operative society;
4. every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;

Therefore, complainant being a registered society is a ‘consumer’ under Consumer Protection Act, 1986.

8. The next objection raised by OP is that the complainant has using the said vehicle for commercial activities. It is noticed that the said car was purchased by the complainant for daily use/ work of its secretary and not for carrying on any activity to generate profit. Thus this objection of the OP is also meritless. At the outset it is observed that the complainant has approached the Forum for allegedly an old damaged vehicle was supplied to the complainant whereas he had paid consideration for a new vehicle. Admittedly, present complaint is not filed for any manufacturing defect in the vehicle. Complainant has not placed any evidence on record to indicate that date of manufacture of the vehicle was older than represented. There is also nothing on record to indicate that it was a used vehicle. Complainant has also failed to prove the ‘damage’ to the vehicle. Further OP-2 immediately reverted back on receiving the complaint and provided assistance to the complainant to redress his grievance. Hence, we are of the opinion that OP-2 has neither provided an old or defective vehicle nor is deficient in service. Therefore, OP-2 is absolved of any liability in the present case.
9. There is nothing on record to indicate that the complainant had paid the registration fee, therefore the averment that vehicle was delivered to the complainant without registration number does not hold water in eyes of law.
10. The complainant has claimed and placed photographs on record showing that the vehicle has not been used ever since it was delivered. It is noticed that the complainant came to the Forum after five months of the delivery of the car and has nowhere made any averment regarding engine or vehicle not running properly.  Further no meter reading /mileage of the car is mentioned in the complaint. It is not the case of the complainant that vehicle was not pliable. Hence for the alleged defects in the ‘body’ of the vehicle the complainant did not use the vehicle in question. Relevant portion of the Email dated 28.02.2017 by OP-1 to the complainant is reproduced here for ready reference :-

“This has reference to your complaint to Tata Motors vide letter dated 25 January, 2012 and subsequent visit of Mr. Amit Tyagi, Manager, Autolinks India along with Mr. Varun Nari, Customer Support Manager, Tata Motors at your place to inspect the car.

During the meet, we have inspected the observation put forth by you. The observations are purely resolvable & we seek your good self to allow us to get them resolved at our workshop with in quick span of time.

…..

For the same, we would request you to kindly allow us to have your car picked or dropped at your workshop at your convenient time.”

11. Had he got the physical defects removed by taking the vehicle to the authorized service station or allowed OP-1 to pick up the car for repairs the vehicle would not have been rendered to such a state. As regards other defects pleaded to be of very serious nature, no details of the defects or documentary evidence has been adduced by the complainant regarding the same.
12. It is noticed that the complainant in the letter addressed to SHO dated 12.01.2012 records that the dealer has delivered a defective/ repaired car with many defects fitted old tyres.  Further the letters placed at page no. 25 of the complaint, it is stated that the car delivered was very defective and damaged. Letter dated 09.02.2012 by OP-2 the complainant shows that the complainant was specifically asked to provide and elaborate the defects which were observed as the details were not available in the complaint/ letter. Despite the request, complainant did not provide any details as regards the defect/ damages.
13. The last mail written by the complainant on 03.04.2012 filed at page no. 37 states that the complainant “had placed an order for a new car and had never desired or anticipated situation where we have to drop the new car at your workshop for repairs / rectification of ‘manufacturing defects’”. The averment made in the complaint is that car bonnet was not closing properly, tyres were old, door bidding looked repainted and there were many other defects of very serious nature in the car. It is submitted by the complainant himself in the rejoinder that the complaint is regarding the defects in the vehicle and not regarding the manufacturing defects. Going through the facts stated above, it is very evident that there is no consistency in the statement made by the complainant. The complainant has changed his stance at various stages. Further despite OP-2 asking the complainant to elaborate the defects / damages the complainant has not done the needful. Therefore, the bald averment made by the complainant without giving any documentary proof has no evidentiary value. In the absence of the documentary proof, the bald assertion made by the complainant cannot be ruled. Therefore, for the reasons stated hereinabove, the complaint is dismissed with no order as to costs.   

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 12.09.19.