Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.132/02.11.2022
Gurvinder Singh son of Sh. Pritam Singh
r/o. 13/217, Ground Floor, Geeta Colony,
Delhi- 110031 …Complainant
Versus
OP Autoweb Performance Cars Private Limited
(through its Director), office at- 20 Pusa Road,
Opp. Pillar No.97, Karol Bagh, N. Delhi-110005
Regd. Office at: 38/8, 2nd Floor, Shankar Road
Old Rajender Nagar, Delhi- 110060 ...Opposite Party
Date of filing: 02.11.2022
Coram: Date of Order: 11.11.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.1)
1.1. (Introduction to case of parties) –The complainant has grievances against the OP that he booked a new car with the OP under scheme of exchange of his old car, the complainant was assured value of Rs. 75,000/- of old car, exchange bonus of Rs. 25,000/- and discount of Rs. 50,000/- on the new car, the OP failed to honour it, his old car is with the OP and new car was also not delivered, that is why this complaint. There is deficiency of services and unfair trade practice on the part of OP.
1.2. The complaint is opposed that neither there is any deficiency of services nor unfair trade practice, the complainant was not given any assurances of value of old car of Rs. 75,000/- or exchange bonus of Rs. 25,000/- or discount of Rs. 50,000/-; the complainant has not approached for new car after its booking against payment of Rs. 32,429/- vis-à-vis the RC of old car and other documents were not handed over to the OP.
2.1. (Case of complainant) –Briefly, on 01.11.2018 OP’s representative Sh. Kapil Kapoor contacted the complainant on telephone and apprised scheme of exchange of old car to new car and the complainant agreed thereto. The complainant was having Swift LDI car no. DL 2CAH 5337 (hereinafter referred as “old car”), which complainant took to the OP, who valued it for Rs.75,000/-, in addition amount of Rs. 25,000/- as exchange bonus and also he was offered discount of Rs. 50,000/- on purchase of Hyundai i-20 Asta CRDi car (hereinafter referred as “booked car” or “new car”). The complainant agreed to purchase new car, he made booking by paying a sum of Rs. 32,429/- by way of cheque drawn on ICICI Bank. At the time of acceptance of offer of OP, the market value of complainant’s old car was more than Rs.1,50,000/-.
2.2. The OP assured to deliver the booked car within 30 days as well as the OP took the possession of complainant’s old car against delivery receipt dated 12.11.2018. The assured period of 30 days passed and complainant contacted the OP repeatedly for taking delivery of booked car, but it was not delivered till date. On 14.01.2019 and 20.01.2019 , the complainant also approached the OP to take possession of old vehicle, he did not find his car but he was informed by the office of OP that vehicle has been taken away by the traffic police, the complainant was also pressurized to pay fine Rs. 25,000/- by traffic police.
The complainant’s old car is still in the possession of OP and in order to harass the complainant, the OP issued a false notice dated 17.06.2019 as if the OP had already informed the complainant that they could not match the value of vehicle demanded by the complainant and complainant may take delivery of the vehicle from OP on 15.11.2018. Whereas, OP had taken the delivery of complainant’s old vehicle long back and four years have passed away, the said old vehicle have been misused by the OP that is why the complainant by his legal notice dated 15.01.2020 asked an amount of Rs. 2,000/- per day would be charged from the OP for unauthorized use of vehicle since 06.11.2018 besides the complainant suffered a lot of losses of his business because of negligence of the OP, who is liable to pay Rs. 5,000/- per day to loss of his business and Rs. 10,000/- towards mental harassment besides to pay interest at the rate of 14%pa on the amount Rs. 75,000/- + Rs. 25,000/- + Rs. 32,429/-, but the legal notice was not replied nor the booked car was delivered.
2.3. On 31.07.2019 the OP contacted the complainant regarding the notice to sort out the case of old vehicle of the complainant but it has not been solved till date. Thence, on 03.08.2022 the complainant sent reminder to the OP, neither there is any reply nor refund of the amount and the OP has grabbed the car as well as other amount of the complainant mala-fide.
The OP has harassed the complainant and also there is grossly deficient service on its part, the complainant suffered mental pain and agony, the OP is liable to compensate the complainant. That is why the present complaint for directions to the OP to deliver booked car, to award compensation of Rs. 5 lakh in lieu of mental and physical harassment, damages and torture faced by the complainant from the side of OP, litigation cost of Rs. 5,000/- besides other relief.
2.4. The complaint is accompanied with documents/copies of – Identify proof of Aadhar card, complainant’s reminder dated 15.01.2020 to the OP, OP’s letter dated 17.06.2019, delivery receipt (purchase agreement) dated 12.11.2018 in respect of old car between the parties besides other documents.
3.1 (Case of OP) -The written statement is filed by OP under the signature of Ms. Pooja Chawla, Director of OP with support of Board Resolution dated 14.12.202 that she has been authorized to author the written statement. The written statement has been split into different parts of preliminary objections and submissions and reply on merits, the facts mentioned in the preliminary objections have been reiterated in the other paragraph of reply on merits.
But the business operations of OP ceased to operate in March 2020 due to unforeseeable circumstances, primarily of financial constraints. The complaint has been opposed that neither there is any cause of action nor deficiency of services or unfair trade practice on the part of OP.
3.2. The complaint has been filed on distorted facts, with ulterior motive to harass the OP and to make wrongful demands besides to disrespect of OP in the eyes of general public. There is not a single iota of evidence in favour of complainant to sustain the complaint against the OP. In fact, the complainant is not entitled for delivery of the old vehicle or any such damages and rather he is liable to pay more than Rs.10 lakh to the OP in lieu of parking charges of old vehicle, which was handed over to the OP by the complainant but approach the present Commission. The complaint is an afterthought, sham and bogus. On the other side, the OP has acted bona-fide and in discharge of its duties and obligations.
3.3. Although, complainant has made enormous claims but in fact he was entitled to the extent of refund of booking amount of Rs. 32,429/- (had the complainant cancelled the booking) and possession of his old vehicle if he had approached OP as per the communications made by OP on various occasions to the complainant. The complainant did not take back the possession of old vehicle deliberately or intentionally, since it was liable to be scrapped under the notification of the Transport Department GNCDT because of order dated 29.10.2018 by Hon’ble Supreme Court of India in the matter of WP(civil) 13029/1985 (5) M. C. Mehta Vs. Union of India in terms of order dated 07.04.2015 by Hon’ble National Green Tribunal that more than 10 year old diesel vehicle and more than 15 years old petrol vehicle shall not ply in NCR, besides the complainant failed to furnish original RC book and second key of his old car being 10 years old diesel car.
3.4 On 06.11.2018, the complainant booked new car by paying an amount of Rs. 32,429/- vide cheque no. 270951. The complainant also availed OP’s old car exchange scheme, whereby the complainant offered his old car which was registered on 04.04.2008. The OP had valued the old car for Rs. 35,000/- and also exchange bonus of Rs. 25,000/- under the prevailing under the scheme of company, the total amount of Rs. 60,000/- was agreed by the complainant to exchange his old car and he handed over the possession of old car on 12.11.2018 as per delivery receipt.
However, the complainant felt his inability to provide original RC and second key of the old car but assured to give them within couple of days before taking the delivery of new car. The officials of OP contacted the complainant and asked him RC and second key so that vehicle can be scrapped through authorized scrapper of Transport Department as the life of old vehicle had ended, to be in terms of notification and other orders. Moreover, the complainant was informed time and again to take delivery of his old vehicle back but he did not take the delivery back for the best reasons known to him and of his mala-fide. In addition, the complainant admitted OP’s communication dated 17.06.2019 to take the vehicle back and to avoid parking charges of Rs.1,000/- per day which are applicable as per policy of OP.
3.5. The OP also denies other allegations of the complaint inclusive of the facts that complainant visited the OP on 14.01.2019 and 20.01.2019 to take the possession of old vehicle or it was not find by the complainant or the same was misused or the complainant was pressurized to pay traffic police fine of Rs. 25,000/- or otherwise the vehicle will not be returned. There was no use or misuse of old car, it was to be given to the authorized scrapper. The complaint is without merit and it is liable to be dismissed.
3.6. The written statement is accompanied with documents/copies of – Board Resolution dated 14.12.2022, public notice dated 30.10.2018 by the Transport Department of Govt. of NCT (regarding petrol and diesel vehicles which are more than 15 years and 10 years old), copy of order dated 29.10.2018 by Hon’ble Supreme Court of India.
4. (Replication of complainant) –The complainant files detail replication and he denies all the allegations of the written statement were verbatim. Succinctly, the complainant is not liable to pay the amount of Rs. 10 lakh or parking charges of Rs. 1000/- per day nor the amount of Rs. 35,000/- was offered as value of old car with exchange bonus of Rs. 25,000/- or total amount was Rs. 60,000/-, or the OP ceased to operate in March 2020 due to financial constraints or otherwise. The complainant also denies allegations of written statement that the vehicle was given to be scrapped by authorized scrapper or RC or second key were not handed over to the OP. The complainant reiterates the averments of complaint as correct.
5.1. (Evidence)- In order to prove the complaint, the complainant Sh. Gurvinder Singh, Advocate led evidence by filing detailed affidavit of evidence with documents filed with the complaint.
5.2. Similarly to prove the defense version, the OP also led evidence of Ms. Pooja Chawla, Director/AR of OP by filing detailed affidavit of evidence with documents filed with written statement.
6.1 (Final hearing)- At this stage, the parties filed their written arguments; the written arguments of parties are blend of their pleadings and evidence, in addition certain more points have been introduced, the same will be referred appropriately in the finding paragraph.
6.2. The parties were also given opportunity to make oral submissions, then the complainant himself presented the arguments and Shri Madhav Kumar, Advocate for OP made submissions on behalf of OP. In addition, the OP has relied upon the followings:-
(i) Ravneet Singh Bagga v KLM Royal Dutch Airlines and Anr. Manu/SC/0707/1999: (2000) 1 SCC 66, it was held that additional burden of proof of deficiency of services is upon the person who alleges so. In case complainant is able to discharge its initial onus, than burden will shift to other side in the complaint. (Ld. Counsel for OP supplements that complainant could not discharge its own onus to proof the allegation).
(ii) SGS India Ltd. v Dolphin International Ltd Civil Appeal No. 5759/2009 dod 06.10.2021, The onus of proof of deficiency of services lies on the complainant and without such proof, the complainant could not be held responsible.
(iii) Branch Manager Indigo Airlines Kolkata Vs. Kalpana Rani Debbarama & Ors. 2020 9 SSC 424 that burden of proof proved allegations lies on the party making allegations thereof initially and after discharging the same, then onus shifts on the other side to discharge its obligation.
7.1 (Findings) - The case of the parties, their contentions and material on record are considered and assessed besides the provisions of law and case law presented.
7.2.1. The OP has raised the point of limitation first time at the stage of final arguments and written arguments also reproduces section 60 of the Consumer Protection Act 2019 that prescribed period is 2 years, however, the complaint was filed on 02.11.2022 but as per own case of complainant, the last cause of action was of 17.06.2019, which was OP’s communication given to the complainant. Consequently, the limitation period ended on 16.06.2021 and the complaint is barred by time. On the other side, the complainant has reservation, stating that not being knowing legal provision, that the new vehicle booked was to be delivered and his old vehicle was also kept by the OP, legal notice was also sent followed by reminder on 15.01.2020 and for want of reply and compliance, the complaint was filed.
7.2.2 The situation on the point of limitation period is assessed by keeping in view narration of the parties in the pleadings and evidence besides documentary record. It is admitted case of the parties (namely the complainant and the OP) that complainant had booked new car. The new car is yet to be delivered but allied dispute had arisen vis-à-vis it is also the case of OP that had the complainant approached the OP for cancelation of booking and for refund of booking amount, the same would have been dealt as per circumstances. To say, the complainant booked the new vehicle, it was never got cancelled by the complainant nor it is the case of OP that booking of new car was cancelled by the OP vis-à-vis the complainant is seeking delivery of new car against the booking receipt by the OP. Therefore, the cause of action is surviving till the filing of the complaint, however, the OP is computing the limitation period from its letter dated 17.06.2019 in respect of old car that complainant was asked to take the vehicle back on 15.11.2018 otherwise it will attract parking charges of Rs. 1000/- per day. Therefore, when the cause of action is surviving till the filing of the complaint on 02.11.2022, the complaint is not barred by the time prescribed u/s 60 of the Consumer Protection Act 2019.
7.2.3. Ld. Counsel for OP has emphasized that on plain reading of affidavit of evidence of the complainant, it is crystal clear that order booking form has not been proved by the complainant, therefore, it cannot be considered for the purposes of booking of new vehicle. However, this reason is misplaced, since the OP in its written statement as well as in evidence confirms booking of new car by the complainant against receipt of cheque payment of Rs. 3,2429/-, which was also encashed by the OP, therefore, the facts admitted need not to be proved by the other side. Therefore, for want of making endorsement of Exhibit on “order booking form” or its tender evidence would not tantamount to want of proof of booking of new car because of admitted fact.
7.2.4. Further, as per plain reading of pleadings and evidence of the complainant, it does not show that the complainant admits that he was informed by the OP to take back his vehicle on 15.11.2018 but as per paragraph 6 of complaint and paragraph 7 of affidavit of evidence, the complainant mentions that he had received OP’s letter dated 17.06.2019, which is false notice, that complainant was informed to take back his vehicle by 15.11.2018. This shows that in fact this is OP, who is twisting the facts to suit its convenience.
8.1. So far other dispute between the parties are concerned, the following conclusions are culled out :-
(i) There is rival contentions of the parties on the point of value of the old car, as the complainant contends that the value of the car was more than Rs. 1,50,000/- vis-à-vis under exchange scheme of old car, the OP had valued for Rs. 75,000/-, the exchange bonus offered was Rs. 25,000/- and discount of Rs. 50,000/- of new car; it also makes out total amount of Rs. 1,50,000/-. But on the other side, the case of OP is that OP had valued the old car for Rs. 35,000/- besides exchange bonus of Rs. 25,000/- was offered, which made out total value of Rs. 60,000/-.
However, the answer of this issue is in the documentary record itself, which also suggests that both the sides are taking their stand which are contrary to the documentary record. This document is the delivery receipt (purchase agreement) of 12.11.2018 signed by both the sides, which clearly reflect that used car price was agreed of Rs. 60,000/- and procurement was under exchange. Therefore, the value of the car agreed was Rs. 60,000/- without any qualification or rider of exchange bonus etc. Therefore, the value of old car was agreed for Rs. 60,000/- without inclusion of exchange bonus.
(ii) In continuation of conclusion drawn in (i) above, since the transaction of new vehicle was not materialized, therefore, the scope of exchange bonus became infractuous.
(iii) There is also clash regarding the purposes of exchange of old car, as according to complainant, he had booked new car under the exchange scheme of old car but the case of OP is that old car was delivered by the complainant to OP without RC and second key besides the car was to be handed over to authorized scrapper.
Its answer is also in the purchase agreement of 12.11.2018. The purchase agreement concludes with an undertaking by the OP, it reads as “we are taking the physical delivery of this vehicle on 12.11.2018 at 5:19 pm. We will be responsible for its maintenance, road tax, insurance, challans or any kind of misuse after taking the delivery of the vehicle”. This agreement clearly spells out that the old car was sold by the complainant to the OP in exchange scheme, who also deals in new car. The complainant had not handed over the old car to the OP either for its dismantle or any such authority that it is to be got scrapped but vehicle was handed over to the OP for all purposes with its responsibilities.
(iv) The complainant has proved OP’s letter dated 17.06.2019 that OP asked the complainant to take his vehicle back vis-à-vis there will be parking charges; in the body of written statement as well as in evidence the OP also calculates amount of Rs. 10 lakh as parking charges as if the OP has been keeping the vehicle in its custody.
On plain perusal of the record, both the sides are taking inconsistence stand in their respective cases. Firstly, complainant states that he had visited the OP on 14.01.2019 and on 20.01.2019 to take back his old vehicle and in the written arguments (para 4) the complainant contends that since the vehicle was delivered to the OP against delivery receipt, the complainant was left with no right or title and the entire responsibility was of the OP in respect of old vehicle. Both the stand is inconsistence to each other. Secondly, the OP also took the stand that old car was taken from the complainant against delivery receipt but it was to be scrapped since it was a vehicle beyond old age vis-à-vis the OP is also claiming amount of Rs. 10 lakh as parking charges.
However, the delivery receipt dated 12.11.2018 is also purchase agreement in respect of old car, it does not decipher any parking charges but the undertaking appended mentions that the OP will be responsible for all obligations at road or otherwise, there was no authority to the OP with regard to handing over of the vehicle to the scrapper, since vehicle was given to the OP and OP had accepted the vehicle for all purposes. It is crystal clear that once the OP has took/purchased the vehicle from complainant with all responsibilities against price of Rs. 60,000/-, it does not leave any scope for parking charges.
(v) The OP has much emphasized that the vehicle was obtained since it was to be scrapped because of age of the vehicle, which is denied by the complainant. The delivery receipt/purchase agreement dated 12.11.2018, which is on the letter head of the OP, is a written document and it does not mention the purposes for which car was purchased/taken by the OP. In the absence of such clause in the purchase agreement, it does not leave any scope for the OP to introduce new concept that vehicle was just handed over for the purposes of scrap of old car from authorized scrapper. It will not be out of context to mention that OP’s letter dated 17.06.2019 clearly mentions that old vehicle was transacted for price and also purchase of new vehicle, it does not decipher that the vehicle was taken by the OP to be scrapped through authorized scrapper. The letter also does not mention that complainant had not handed-ever over RC and second key of old car to the complainant but the price demand by complainant does not match. Had the RC and second key was issue, it would have also been mentioned? What was the price demanded by the complainant and what price was not matching, the letter is also silent? Otherwise, the agreement of purchase with price has been proved.
Moreover, there are specific guidelines for scrape of registered vehicle and its authorized centers. It establishes that the theory of scrap of the old car is an afterthought theory of OP as OP is trying to project that old car was taken scrap purposes but it was purchased by OP under agreement with all stipulations of maintenance, insurance, road tax, challan etc
(vi) It is relevant to mention that sale of old car to OP is one transaction and booking for purchase of new car is a separate transaction, they are not normal chattel but they are governed by the provisions of the Motor Vehicle Act and rules there-under. The OP cannot create a camouflage for them, the price amount old car was adjustable by reducing the amount from recoverable price of new car, had there been successful transaction for new car.
(vii) The complainant has proved notice dated 15.01.2020 as a reminder to notice dated 31.07.2019, however, the complainant has not proved that legal notice dated 31.07.2019. The complainant has also referred another reminder of 03.08.2022 sent by post, it has also not been proved by the complainant. However, it would not demerit the other circumstances proved in favour of complainant.
However, loss of income or business is not within the scope of consumer complaint as claimed by the complainant. Similarly, OP’s allegations that complainant has deliberately disrespected the OP in the eyes of general public is neither within the scope of consumer complaint nor there is any evidence how it was disrespected. Otherwise, the OP also narrated specifically that operation of OP has ceased to operate in March 2020 because of financial constraints.
(viii) The OP has also an objection that doctrine of estoppel applies to bar the complaint, as if the complainant admits that on 15.11.2018 he was informed by OP and he can take back the vehicle, then he had approached OP on 14.01.2019 and 20.01.2019 to take back the old car vis-a-vis the complainant never demanded new car. However, it is already held that none of the parties cancelled the booking of new car, OP purchased the old car by purchase agreement and so on, thus the complaint is not barred by law of estoppel.
8.2 In view of the conclusion drawn in paragraph 8.1 above, the complainant has succeeded to establish that he had handed over his old car under agreement to the OP for a total agreed amount of Rs. 60,000/- besides he also booked a new car against payment of Rs.32,429/- to OP. However, he was not delivered the new car nor issue of the old car was resolved nor the agreed amount was refunded.
Since the booking of new car was not cancelled by either of the party but complainant had deposited amount of Rs.32,429/- vis-à-vis the case of OP is that it ceased to be in the operation of business of OP. This entitles the complainant for refund and release of amount of booking amount Rs.32,429/- instead of delivery of new car besides because of passage of time, it does not seem feasibility of new car to be delivered by OP or to be directed. Similarly, the old car was with the OP pursuant to purchase agreement but complainant was not released the amount of Rs.60,000/-, therefore, the OP under legal obligation to release that amount of Rs.60,000/- to the complainant. Since the transaction of new car was not materialized nor feasible, therefore, the exchange bonus of Rs. 25,000/- or discount of Rs. 50,000/- would not be tenable, to that extent the request of complainant is declined.
8.3. The facts and features of the case are sufficiently speaking that complainant faced the harassment and mental agony that firstly he handed over old car to the complainant expecting that new car will be delivered but the new vehicle was not delivered vis-à-vis the old car was already with the OP. it makes out a case of harassment and inconvenience to the complainant, therefore, compensation of Rs.20,000/- is quantified. Since the complainant had to file the complaint after exhausting other remedy of notice and reminders, it was filed through counsel and complainant has also being prosecuting the complaint. Thus, cost of Rs. 10,000/- is quantified in his favour and against the OP.
9. So, the complaint is allowed in favour of complainants and against the OP while directing the OP to pay Rs.92,428/- [i.e. Rs.32,428/- of return new car booking amount + Rs.60,000/- used car price] along with interest at the rate of 7% pa from date of purchase agreement of 12.11.2018 till realization of the amount besides compensation of Rs.20,000/- and costs of Rs.10,000/- to be payable within 45 days from the date of this Order.
In case the amount is not paid by the OP1 within 45 days from the date of this order, then the interest rate will be 9% pa (instead of rate of 7%pa) payable on amount of Rs. 92,428/-.
The OP is at liberty to deposit the amount by valid instrument in the Registry of this Commission in the name of complainant.
10. Announced on this 11th day of November 2024 [कार्तिक 20, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs140]
***
