JUDGEMENT DELIVERED BY SRI.B.S.KERI, MEMBER:

The complainant has filed this Complaint against the Opposite Parties (herein after referred in short as OPs) u/s 12 of Consumer Protection Act, 1986 seeking direction to OP NO.1 and 2 to replace the car with new one, the car with make of 2016, alternatively to return the cost of car Rs.4,73,165/- with 18% p.a. to the complainant, Rs.30,000/- towards mental agony, hardship and miscellaneous expenses, Rs.5,000/- towards cost of litigation other reliefs deems fit under the circumstances of the case.

2.    The brief fact of the case is that the OP No.1 is the Authorized Dealer of OP No.2. The OP NO.2 is Manufacturer of the said car at Tamil Nadu. The complainant purchased Datsun T (XV) bearing its Reg. No.KA-25/MB-3384 Petrol Engine No.764532C, Chassis NO.MDHJBAADOFCO11277 from OP No.1 by Obtaining a bank loan from Vijaya Bank by paying a sum of Rs.4,73,165/- from OP No.1. At the time of purchase, the Ops have assured that it is the best car among other cars having better features with low maintenance etc. on the assurance given by the OP No.1 Complainant made his mind to purchase the above said car believing the words of the OP No.1 and OP said that the car in question is manufactured in the year of 2016 only but the Op delivered a car of year 2015. While registering the car complainant came to know that the car was manufactured in year 2015. Immediately he brought this fact to the Ops. The Ops did not care to the Complainant words.

3.      Further Complainant submits that the model of 2015 car will be deprecated 10% by the insurance company and market value will be depreciated more than 25% per year. Hence the Complainant issued a legal notice on 16.06.2016 the Ops not replied to the notice nor replaced the car with new one, further Complainant prayed to order the OP to pay Rs.4,73,165/- and Rs.30,000/- towards mental agony and hardship and Rs.5,000/- towards cost of litigation with 18% interest and other reliefs the forum deems fit.

4.      The predecessor on seat registered the complaint and notice was issued to the Ops, after receipt of notice, OP No.1 remained absent even after sufficient time was given, before this Forum and placed Exparte. OP No.2 had appeared through his counsel and filed his Written Version.

Brief facts of the Written Version of OP No.2:

The OP No.2 denies all the allegation that are contained in the compliant and prays to dismiss the complaint and submits that the case is exfacie it can be culled out than that lengthy evidence is required in order to prove of the Complainant and basically this forum have no jurisdiction to try the complaint and further Op submits that the Complainant cannot eke any remedy against this Op the complainant neither prima facia case to prove through his pleadings and documents the Complaint is dismissed in lime line.

5.      Further Op No.2 submits that the Complainant is very much aware of purchasing a vehicle of year 2015 because he has addressed a communication to the Op on 31.03.2015 by which he acknowledge having taken delivery of vehicle which make of the year 2015.

6.      Further Op No.2 submits that they are not principle to the Op No.1 it is clear that the agreement between the Op No.1 and the complainant. And Op No.2 is nowhere concern to the agreement of OP No.1 and complainant, since the OP No.1 is an agent of Op No.2 Complainant unnecessarily implead the OP No.2 and submits a that case may be dismissed with cost.

7.      The complainant had filed his affidavit and 6 documents had been filed behalf of him which are marked as C1 to C9 in support of his case. The documents are as follows:

8.      On the other hand, OP2 filed his affidavit by way of evidence and filed two documents which are marked as EX OP1 and OP2. The documents are as follows:

9.      On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudications are as follows:   

Our Answer to the above points are:-

Point No.1 – Negative

Point No.2 – Affirmative,

Point No.3 – Partly Affirmative,

Point No.4 – As per the final order.

R E A S O N S

10.   POINT NO.1:    The complainant filed this complaint for claiming a new car instead of old model the complainant contended that the Op made un-trade practice while delivering the car, as per the Complaint the complainant purchased a car with Ops in the year 2016 Datsun T(XV) as per the assurance of the Op purchase a above said car with Op while taking delivery of the car the Op delivered an old car make in the year 2015 these fact came to know while registration these are the pleadings of the complaint.

11.       OP-No2 defend his case and submits that the complaint is not maintainable moreover this complaint need lengthy evidence to prove the case of the complaint and contended that the case may be dismissed on this ground and submits that the agreement made between Op No.1 and complainant but Op No.2 is a company while making the agreement this Op was not present and he don’t know  the agreement of Op No.1 and the complainant further alleged that the complainant had unnecessarily impleaded OP No.2 to harass him.

12.       The main point arises before forum that whether the complaint filed by the Complainant need a lengthy evidence or not while trying the complaint the complainant filed only 6 documents and Op No.2 filed only 2 documents but Op no 2 never denies the documents filed by the Complainant more over the documents on record speaks the truth very clearly and it is no need for any sort of lengthy evidence to dispose the case, complainant  had purchased a car by paying Rs.4,13,165/- to OP No-1 which builds the relationship of consumer and seller between Ops and complainant  hence it is not necessary to discuss this point more lengthy hence we came to the conclusion that this complaint falls under consumer forum hence we answer point no.1 in negative.

     13.  POINT NO.2 and 3:  Since both the points are inter-link and identical, we proceed with both the points together.

     14.    It is not disputed that the complainant purchased Datsun T (XV) bearing its Reg. No.KA-25/MB-3384 Petrol Engine No.764532C, Chassis No.MDHJBAA DOFCO11277 from OP No.1 by obtaining bank loan from Vijaya Bank complainant purchased a car by paying  a sum of Rs.4,73,165/- from OP No.1. It is disputed that the OP No.1 agreed to sell the car with manufacture of 2016 and had also shown the car with 2016 model. But OP No.1 suppressed the material fact that he had sold the car with manufacture of 2015 model to the complainant. 

15.    The learned counsel for OP No.2 while arguing the matter said that the complainant was very much aware of purchasing a vehicle of the year 2015 because he has addressed a communication to the OP No.1 on 31^st March, 2016 having taken delivery of a vehicle which make is of the year 2015. OP No.2 also contended that he is not aware of the agreement made between the Op No.1 and Complainant and submits that this Op had not made any un-trade practice.     

16.    Now let us look into the documentary evidence made available on record as per the document produced by the Op letter of acknowledgment bearing No Op2-1  speaks that it is a letter of the complainant to the Company acknowledging that he had received the benefit of a Company. As per this letter Op No.2 has given a free insurance to the party (complainant). C1 is the Price List of the vehicle, C2 is the Tax Invoice, C3 is the R.C. Book, C4 is the Legal notice and C5 and C6 are the Driving License and Postal Receipt/Acknowledgement, C7 is Pro forma Invoice, C8 is Bank Letter and C9 is Certificate. On careful perusal of the documents produced by the complainant C9 policy bond issued by the insurance Company through Op the insurance premium had been paid to the insurance Company is Rs.13,283/- but as per the document produced by OP document No.1, the Op No.1 mentioned the amount of insurance is Rs.19,139/- and in this document OP No.1 shows that the complainant enjoyed the benefit of Company but it is clear that OP No.1 had not paid the amount as shown in the document produced by the Op as document no.1 while compared to policy bond, as per the policy bond C9 the Op shows manufacturing year of car is 2016 it is clear that Op made some tricks to gain the profit from company and simply mentioned that the Complainant had gained the free insurance, hence Op No.1 had made a un-trade practice and he had to depreciate the amount of one year and he is liable to pay compensation to Complainant as such Complainant is liable for compensation hence we answer point no.1 in in affirmative and point no.2 is partly affirmative..     

17.   POINT NO.4: For the reasons and discussion made above and finding on the above points, we proceed to pass a following:  

//ORDER//

1. This Complaint is partly allowed with costs.
2. The OP No.1 is directed to pay depreciation amount of the car of one year by calculating 10% on showroom price.
3.  Further, OP No.1 is directed to pay Rs.5,000/- (Rupees five thousand) towards mental agony and harassment and Rs.1000/-(Rupees one thousand) towards litigation charges.
4. Complainant against Op No.2 is dismissed.
5. Ops are directed to comply this Order within thirty days from the date of this Order, failing which OP No.1 has to pay 9% interest to the complainant from the date of filing, till realization to the complainant.
6. Send the copies of this Order to the parties free of cost.