Haryana

Karnal

332/2009

Surjit Singh S/o Darshan Singh - Complainant(s)

Versus

Car Scan centre - Opp.Party(s)

Sh. S.S. Moonak

20 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                              Complaint No. 332 of 2009

                                                             Date of instt. 05.05.2009

                                                               Date of decision:20.12.2016

 

Surjit Singh son of Shri Darshan Singh, resident of Dera Kherawal, near Rajkot Farm, V &P.O. Jundla, Tehsil and District Karnal.

 

                                                                         ……..Complainant.

                                                Versus

1.Car Scan Centre, 120-121Km. Stone, near Nameste Chowk, G.T. Road, Karnal through its proprietor.

2. M/s Mahindra & Mahindra Ltd. having its Registered office, Gateway Building, Appollo Bunder, Mumbai-400 001 through its Managing Director.

3. M/s Mahindra & Mahindra Financial Service Ltd., through its Branch manager, NH-1, near Namestay Chowk, opposite Truck Union, Karnal.

 

                                                                                 …………Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri S.S. Moonak Advocate for complainant.

                    Opposite parties no.1 and 2 exparte.

                    Opposite parties no.3 given up.

                                     

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that he wanted to purchase  Armada Jeep in the year 1999 and for that purpose approached opposite party no.1, the authorized dealer/distributor of opposite party no.2, the manufacturer of the jeep. On 27.3.1999 the opposite party no.1 told that the price of the jeep was Rs.3,79,000/- on that day and the same was likely to increase, therefore, he was advised to purchase the jeep immediately. Being the rustic person and believing the statement of opposite party no.1, he agreed to purchase new Armada Jeep 2 W.D. Model 1999, Non-AC. The Branch Manager of opposite party no.3 was also present there at that time and told him if he was interested to get financed the said jeep, then opposite party no.3 was ready to do so. The officials of the opposite parties no.1 and 3 told him that sum of Rs.2,60,000/- would be advanced and remaining amount be paid by him. On the next day, i.e. 28.9.1999 he alongwith his son and Sarwan Kumar son of Shri Hardayal resident of village Jundla, District Karnal reached the office of opposite party no.1. At that time partner of opposite party no.1 and  Manager of opposite party no.3 were present. He paid an amount of Rs.1,61,757/- to opposite party no.1. The official of opposite party no.3 got his signatures on printed papers with blank columns, cheque and certain documents. Thereafter, the Manager proprietor of opposite party no.1 told that the vehicle was lying in the godown and would be delivered after completing the formalities. The official of opposite party no.1 told him that out of the aforesaid amount of Rs.1,61,751/-, an amount  of Rs.1,19,000/- would be deposited as a part of the sale consideration a sum of Rs.12,297/- was taken for insurance charges, amount of Rs.5200/- was towards finance service charges and the amount of Rs.25,260/- was for advance payment of first two installments. He was also told by the official of the opposite party no.3 that the loan amount shall carry interest at the rate of 9.25% per annum and would be repaid in 29 EMI installments. Sarwan Kumar also signed the blank printed forms as guarantor. The contents of the documents were neither explained nor readover to him and the guarantor. The vehicle was delivered to him at about 8.00 p.m. The vehicle was bearing engine no.DV-26433 and chasis no.DV-26433 Model 1999.

                   It has further been pleaded that on the next day, when he opened the bonnet of the jeep, he suspected that the same was used and old. Therefore, he called Sarwan Saluja and other persons. After cleaning the Engine and other parts of the jeep with the piece of cloth, it was found that number of parts were of 1996/1997 model. After coming to know about the same he alongwith Sarwan Saluja and his son approached the opposite party no.1on the same day i.e. 29.3.1999, but the officials of opposite parties tried to evade the matter. On persistent enquiry they told that the vehicle was 1996-1997 Model but it was a new one. Then he asked the opposite parties to keep the vehicle and return his money paid by him. He handed over the vehicle to opposite party no.1. Thereafter, he alongwith Sarwan Saluja visited the premises of opposite party no.1 and requested for delivery of the new vehicle, but the matter was kept pending on one pretext or the other with some ulterior motive. On making enquiry by him, he came to know that the jeep was earlier sold to one Shri Tara Chand son of Shri Lilu Ram, resident of village Keorak, tehsil and district Kaithal on 12.8.1998 for Rs.3,79,000/- and necessary documents were issued in his name. The vehicle was financed by opposite party no.3 and first service was also done. The model of the vehicle was of 1998. Tara Chand was able to return the said vehicle after long battle with opposite party. Thus, the opposite parties committed fraud upon him and cheated him by delivering old model of jeep instead of 1999 Model. This fact also came to his knowledge that its documents were forged and fabricated and prepared by official of opposite party no.1 in connivance with opposite parties no.2 and 3. Due to such fraud, the vehicle could not be got registered from registration authority. After 3/4  days he again went to opposite party no.1 and told the official of opposite party no.1 that he would take legal action against them. Thereafter, the officials of opposite parties left the vehicle at his Dera and fled away from there. Thus, there was deficiency in service and unfair trade practice on the part of the opposite parties due to which he suffered mental agony and harassment apart from financial loss.  It has also been pleaded that he filed Civil Suit for mandatory injunction with consequential relief of permanent injunction on wrong advice of the counsel and the said suit was dismissed by learned Additional Civil Judge, Senior Division Karnal on 30.3.2009, but he was given liberty to file a fresh suit/complaint before the Consumer Forum.

                    An application for condonation of delay was also filed submitting that the delay in filing the complaint was bonafide.

2.                Notice of the complaint was given to opposite parties. None put into appearance on behalf of opposite party no.1 despite service, therefore, exparte proceedings were initiated against it vide order dated 21.08.2009.

3.                Opposite party no.3 filed written statement controverting the claim of the complainant, but lateron opposite party no.3 was given up by the complainant on 12.9.2012 and accordingly its name was ordered to be deleted from the array of the opposite parties. Therefore, there is no need to give details of the written statement filed by opposite party no.3.

4.                Opposite party no.2 filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is time barred; that the complaint is not legally maintainable; that the complainant has no cause of action against the opposite party no.2 and that the complainant has concealed the true and material facts from this forum.

                   On merits, it has been submitted that the vehicle was purchased by the complainant in the year 1999 from opposite party no.1, who was the dealer of opposite party no.2, but dealership was terminated. Opposite party no.2 had not taken any part in the sales of the vehicle, because the sale was prerogative of the dealer. If, the dealer had committed any fraud or cheating as alleged by the complainant, then remedy against him was in the Criminal Court and not before the Consumer Forum. Lateron, none appeared on behalf of opposite party no.2, therefore, it was also proceeded exparte, vide order dated 12.9.2012.

5.                Complainant tendered into evidence his affidavit Ex.C1, affidavit of Sarwan Saluja Ex.C2 and documents Ex.C3 to 25.

6.                We have heard the learned counsel for the complainant and have also gone through the documents placed on file carefully.

7.                The complainant had purchased one Armada Jeep manufactured by opposite party no.2 from the dealer, the opposite party no.1 on 28.3.1999.  The said jeep was financed by opposite party no.3. The main grievances of the complainant is that instead of 1999 Model the jeep sold to him was 1998 Model and was earlier sold to one Tara Chand, but Tara Chand had returned the same.  He was assured by opposite party no.1 that the jeep was 1999 Model. Thus, the matter in controversy lies in narrow compass and the material question which falls for consideration is whether the jeep sold by opposite party no.1 to the complainant was 1998 Model and the complainant was assured that the same was 1999 Model.

8.                The copy of the invoice Ex.C5 shows that Armada Jeep, Non-AC bearing Engine no.DV-26433 and chasis no.DV-26433 was sold by opposite party no.1 to the complainant for Rs.3,79,000/- on 28.3.1999. In the invoice, the year of manufacture of the jeep was not mentioned. However, in the Temporary Registration Certificate and the Sale Certificate, the copies of which are Ex.C6 and Ex.C7, respectively, year of manufacture of the jeep was mentioned as 1999. The said documents were also issued by opposite party no.1.The jeep was insured with opposite party no.3, vide insurance policy, the copy of which is Ex.C4, wherein also the year of manufacture of the vehicle was mentioned as 1999.

9.                The copies of documents Ex.C9 and Ex.C10 indicate that the Armada Jeep bearing engine no.DV-26433 and chasis no.DV-26433 was earlier sold to Tara Chand son of Lilu Ram house no.849 village Keorak District Kaithal, by opposite party no.1, on 12.8.1998, for Rs.3,79,000/- and in the Sale Certificate, the copy of which is Ex.C9 the year of manufacture of the said vehicle was mentioned as 1998. The complainant has also tendered the affidavit of Tara Chand Ex.C19, wherein Tara Chand specifically submitted that he had purchased Armada-2WD Model 1998, engine number and chasis no.26433 from M/s Car Scan Centre, vide invoice dated 12.8.1998 for Rs.3,79,000/- and the year of manufacture of the said vehicle was 1998/8 and the vehicle was financed by opposite party no.3 and that he had returned the said vehicle to opposite party no.1 as it was not colour of his choice and model/year of manufacture was 1997. The complainant by way of his affidavit Ex.C1 has reiterated the allegations on oath.

10.              Thus, from the aforediscussed evidence, it is emphatically clear that the Armada Jeep bearing engine no.DV-26433 and chasis no.DV-26433 was initially sold by opposite party no.1 on 12.8.1998 to Tara Chand son of Lilu Ram, but he had returned the said vehicle to opposite party no.1 and lateron the same vehicle was sold to the complainant on 28.3.1999, mentioning the year of manufacture of the vehicle as 1999, whereas the vehicle was of 1998/1997 model. This oral as well as documentary evidence of the complainant has gone completely unrebutted and unchallenged, therefore, there is no reason to disbelieve the same. In this way, it is clearly established that the opposite party no.1 resorted to unfair trade practice and sold the 1998/1997 model jeep to the complainant, claiming the same to be 1999 Model and without disclosing that the jeep was earlier sold to Tara Chand on 12.8.1998 and Tara Chand had returned the same.

11.              It is also worthwhile to add that the complainant had also filed criminal complaint against proprietors of opposite party no.1 and in the said complaint they were summoned as accused for committing the offence punishable under section 420, 467, 468, 471, 120-B of Indian Penal Code vide order dated 3.1.2003 passed by the then learned Judicial Magistrate 1^st Class, Karnal.

12.              Admittedly, the complainant had filed the civil suit against the opposite parties for Mandatory Injunction and Permanent Injunction and the same was dismissed vide judgment and decree dated 30.3.2009 by the then learned Additional Civil Judge Karnal. However, in the relief clause the complainant was given liberty to file petition before Consumer Court, if permitted under law of Limitation and rules. The complaint was filed on 05.05.2009 and application for condonation of delay was also filed. As the complainant pursued the Civil Suit on the wrong advice of his counsel, there was sufficient cause for not filing the complaint within the prescribed period of limitation of two years from the date of accrual of the cause of action. Therefore, it would be justified to condone the delay in filing the complaint.

13.              The complainant has been using the said jeep since 29.3.1999 as admitted by him even in his complaint. Therefore, after such a long period it would not be justified to direct the opposite party no.1 to replace the jeep with new one. However, the sale of old model jeep by the opposite party no.1 to the complainant certainly amounted to unfair trade practice and caused the complainant unnecessary mental pain, agony and harassment, therefore, he must get compensation for the same. Looking into all the facts and circumstances of the case, we consider it justified that the complainant should be given an amount of Rs.1,00,000/- as compensation for unfair trade practice on the part of the opposite party no.1.

14.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party no.1 to pay Rs.1,00,000/- to the complainant  as compensation for resorting to unfair trade practice. We further direct the opposite party no.1 to pay Rs.11,100/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. It is made clear if the awarded amount will not be paid within stipulated period, then this amount will carry interest @ 9% per annum from the date of announcement of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 20.12.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member