IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,ALAPPUZHA

                          Friday the 18^th day of September, 2020.

                                      Filed on 20-10-2017

  Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. Sholy P.R, B.A.L,LLB (Member)

In

CC/No.286/2017

   between

  Complainant:-                                                         Opposite parties:-

Abhilash P.N                                                 1.  Binu Thomas  

S/o Nepolian,                                                      Chief Executive Officer

Thumpolly P.O.                                                  Rajavalsam Motors Pvt.Ltd.

Alappuzah -688008                                           Near S.D College, Kalarcode

(By Adv.Shalon Salus)                                      Alappuzha- 688003

                                                                             (By Adv.M.G.Reshu)

                                                                        2.  Suzuki Motor Cycle Inida Pvt.Ltd

                                                                             Village Kherki Dhawala,

                                                                             Bhadhushapur, NH-8 Link Road,

                                                                             Gurgaon (Hariyana) 122004

                                                                             Rep. by its Chief Executive

                                                                             officer (CEO)

                                                                             (By Adv.Ganesh P)

                                                                        3.  New India Assurance Co.Ltd.

                                                                             New India Assurance, Building 87

                                                                             MG Road, Fort, Mumbai

                                                                             Rep.by its Chief executive officer

                                                                             (By Adv.T.S.Suresh)

                                                                        4.  HDFC Bank Ltd.

                                                                             Kochi 2^nd floor Elmar square,

                                                                             MG Road, Ravipuram,

                                                                             Cochin, Rep. by its Regional -

                                                                             Manager.

                             (Exparte)

 O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986.  Material averments briefly discussed are as follows:-

Complainant is the registered owner of Suzuki Swish scooter bearing Reg.No.KL-04 AK 4262.  First opposite party is the authorized dealer, second opposite party is the manufacturer, 3^rd opposite party is the insurer and the 4^th opposite party is the bank from where loan was availed to purchase the vehicle.  The vehicle was purchased on 01.02.2017 for an amount of Rs.74,880/-.  Complainant availed a vehicle loan of Rs.54,880/- from 4^th opposite party.  After the purchase the vehicle was produced before the Regional Transport Office, Alappuzha for registration.  The officials found some discrepancy in the actual manufacturing month and year mentioned by the first opposite party in the records.  The real manufacturing date of the vehicle was April 2015.  But in the sale certificate 1^st opposite party fraudulently entered the manufacturing month and year as December 2016.  1^st opposite party had given wrong details to the 3^rd opposite party also.  According to the insurance certificate the year of manufacture is 2016.

2.    The vehicle was purchased believing the words and assurance given by the 1^st opposite party.  The 1^st opposite party fraudulently suppressed the real facts regarding the year of manufacture.  Complainant got reliable information that the vehicle delivered was a test drive vehicle.  Complainant approached the 1^st opposite party with his grievances and requested to return the excess price.  It was turned down by the 1^st opposite party.  Complaint lodged before the RTO and Alappuzha South Police Station did not evoke any response.

3.    There is gross deficiency in service and unfair trade practice on the part of the 1^st opposite party.  Complainant had suffered huge mental agony and loss.  Now the vehicle is in the custody of the complainant but he is unable to use it.  He is paying EMI regularly.  1^st and 2^nd opposite parties are liable to indemnify the loss caused to the complainant.  Hence the opposite parties 1 and 2 may be directed to take back the vehicle and return the amount of Rs.74,880/- along with interest.  They may be directed to pay Rs.1,00,000/- as compensation for the mental agony and the 4^th opposite party may be directed to freeze the monthly instalments.

4.    1^st opposite party filed a version mainly contenting as follows:-

The concerned officials found some discrepancy in the actual manufacturing month and year in the records etc. when the registration of the vehicle was initially effected.  Immediately after getting the knowledge of information the complainant never approached or contacted the 1^st opposite party.  Complainant suppressed the material facts for long time.  This opposite party issued a letter dated 18.02.2017 to the complainant to surrender the vehicle at the showroom.  Complainant purposefully evaded from producing the vehicle and he is using the vehicle since 01.02.2017.  After using the vehicle for long period complaint was filed before this Forum with some ill-motivated act.  It is true that complainant purchased the vehicle on 01.02.2017.  The vehicle loan was not arranged by this opposite party.  There is no fraudulent entry in the records.  There was no suppression of material facts.  The vehicle was not given for test drive.    No excess amount was charged for the vehicle.  This opposite party is always ready and willing to redress the grievance of complainant.  Complainant has not sustained any monitory loss or any mental injury.  Hence the complaint may be dismissed with costs.

5.    Second opposite party filed a version mainly contenting as follows:-

Complainant is not a consumer of this opposite party.   Before delivery, the vehicle was thoroughly checked to avoid any manufacturing defect.  Complainant purchased the vehicle from the first opposite party who is the authorized dealer.  The vehicle delivered to the complainant was not a test drive vehicle.  This opposite party was never contacted by the complainant with any grievance.  This opposite party is not liable to compensate the complainant for the alleged loss and deficiency in service.  Hence complaint against this opposite party may be dismissed.  

6.    3^rd opposite party filed a version mainly contenting as follows:-

In the complaint there is no allegation against this opposite party.  This opposite party had insured the vehicle with effect from 01.02.2017 to 31.01.2018 and the IDV under the policy is Rs.58,309/-.  Complainant is not entitled for any relief against this opposite party and hence the complaint may be dismissed.  4^th opposite party remained ex-parte.

7.    On the above pleadings following points were raised for consideration.

1. Whether there was any deficiency of service as alleged by the complainant?
2. Whether the complainant is entitled to get an order against 1^st and 2^nd opposite party to take back the vehicle and return the cost of Rs.74,880/- along with interest as prayed for?
3. Whether the complainant is entitled to realize an amount of Rs.1,00,000/- as compensation from opposite parties 1 and 2 ?
4. Whether the complainant is entitled to get an order against 4^th opposite party to freeze monthly instalments?
5. Reliefs and costs?
8.  

Point No.1 to 3

       For the sake of convenience these points are considered together.  PW1 is the complainant in this case.   He filed an affidavit in tune with the complaint and marked Ext.A1 to A9.  RW1 is the General Manager of first opposite party.  He filed an affidavit in tune with the version and marked Ext.B1, B2 and B2 (a).

       The case of PW1, the complainant is that as per Ext.A2 retail invoice on 01.02.2017 he purchased a Swish UP 125 scooter from the 1^st opposite party.  He produced the same for registration before the RT Office, Alappuzha after 2 days.  It was noticed that the real manufacturing date is April 2015 but the opposite parties entered the manufacturing month and year as Dec 2016.  On several times he approached the first opposite party to clear the mistake but there was no proper action from their part.  According to him he paid the market price of the vehicle of Dec 2016 where as the vehicle issued to him was manufactured during April 2015.  Hence he has filed the complaint for realizing the cost of vehicle along with interest.   He is also seeking an amount of Rs.1,00,000/- as compensation.  First opposite party filed a version contenting that on realizing the mistake they sent Ext.B1 letter on 18.02.2017 to the complainant to produce the vehicle.  They were ready to supply a new vehicle.  Since the complainant did not produce the vehicle as requested in Ext.B1 letter they could not redress his grievance.  The fact that vehicle issued to PW1 was made during April 2015 and year of manufacture mentioned in the records is on Dec.2016 is not in dispute.  According to PW1 he approached the opposite party several times to redress his grievance but they never gave attention to his complaint.  Per contra first opposite party contented that on realizing the mistake they sent Ext.B1 letter on 18.02.2017 to produce the vehicle so that they can give a new vehicle after taking back the old vehicle.  Complainant got examined as PW1 and narrated his case.  The general manager of 1^st opposite party got examined RW1.  It was contented by RW1 that they had sent Ext.B1 letter on 18.02.2017 to complainant to produce the vehicle so that they can supply a new vehicle.  However there is no evidence to show that Ext.B1 letter  was sent and accepted by complainant.  During cross examination PW1 denied the receipt of Ext.B1 letter.  Though Ext.B1 letter is addressed to the complainant, the postal receipt by which it was sent or the AD card by which it was accepted is not seen produced.  Since PW1 denied the receipt of Ext.B1 letter and so that 1^st opposite party could not produce any document to prove the receipt of Ext.B1 letter it is to be presumed that the letter was not received by PW1.  Further it is to be noted that the grievance of PW1 is to get a new vehicle and if there was such an offer through Ext.B1 letter there is no reason why PW1 would deny such an offer.

       Ext.A8 is a reply dated 09.05.2017 issued by the Public Information Officer, Regional Transport Office, Alappuzha to the complainant.  In Ext.A8 it is clearly mentioned that the year of manufacture was April 2015.  Moreover as stated earlier the fact is admitted by 1^st opposite party in the version.  The reliefs sought for by PW1 is to get back the money along with interest.  It has come out in evidence that PW1 purchased the vehicle as per Ext.A2 bill  on 01.02.2017 and now we are in Sep.2020.  PW1 admitted that still he is using the vehicle.  So there is no point in directing the first opposite party to get back the vehicle and pay the entire price of it.  Though PW1 has got an allegation that it was used as a test vehicle there is no evidence in support of the same.  Since PW1 is using the vehicle for the last 3 years and so that he has no case that it was having any manufacturing defect he can be adequately compensated by money instead of directing first opposite party to replace the vehicle or return the cost of the vehicle.  Considering the entire circumstances we are of the opinion that an amount of Rs.15,000/- can be paid to PW1 since the manufacturing year and month of the vehicle is earlier one than shown in the records.  

       Complainant is seeking Rs.1,00,000/- as compensation for the loss and inconvenience caused by him due to the negligent act of the 1^st opposite party.  As discussed earlier PW1 was issued a vehicle manufactured during April 2015 stating that it was manufactured during Dec.2016.   Much inconvenience and mental agony was caused to PW1 due to the act of opposite party.  For the last 3 years he had used the vehicle.  In such circumstances he is entitled for compensation and considering the entire facts of the case we are limiting the same to Rs.15,000/-.  These points are found accordingly.

Point No.4

       Though the complainant is seeking a relief to freeze the monthly instalments paying to the 4^th opposite party it has come out in evidence that he is paying the regular EMIs.  Ext.A4 produced by PW1 shows that he has paid EMI up to 05.02.2019.  So there is no reason to freeze the monthly installments.  Hence this point is found against the complainant. 

       Point No.5

       In the result complaint is allowed in part;

1. Complainant is allowed to realize an amount of Rs.15,000/- from the 1^st opposite party for the deficiency of service.
2. Complainant is allowed to realize an amount of Rs.15,000/- as compensation for the inconvenience and mental agony caused to him from the 1^st opposite party.
3. Complainant is allowed to realize an amount of Rs.2,000/- as cost.

 Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 18^th day of September, 2020.

Sd/-Sri.S.Santhosh Kumar (President)

Sd/-Smt. Sholy P.R (Member) :

Appendix:-

Evidence of the complainant:-

PW1                    -        Abhilash (Witness)

Ext.A1                -        Copy of temporary certificate of registration

Ext.A2                -        Retail Price Invoice (Original)

Ext.A3                -        Receipt Voucher (Advance payment)

Ext.A4                -        Copy of payment schedule

Ext.A5                -        Copy of sale certificate

Ext.A6                -        Insurance certificate

Ext.A7                -        Copy of application under RTI Act 2005

Ext.A8                -        Reply notice under RTI Act

Ext.A9                -        Copy of petition receipt issued by the South Police Station,

                                     Alappuzha.

Evidence of the opposite parties:-

RW1                             -        Nikhil.K (Witness)

Ext.B1                 -        Letter dated 18.02.2017

Ext.B2                 -        Copy of petition before South Police Station,Alappuzha

Ext.B2(a)             -        Copy of petition receipt issued by the South Police Station,

                                     Alappuzha

// True Copy //

To

          Complainant/Oppo. party/S.F.

                                                                                         By Order

                                                                                    Senior Superintendent

Typed by:- Sa/-

Compared by:-