Punjab

Ludhiana

CC/14/576

Juhi Mittal - Complainant(s)

Versus

Carnation Auto India Pvt.Ltd - Opp.Party(s)

Rajnesh Adv.

15 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 576 of 21.08.2014

Date of Decision            :   15.06.2016

 

Juhi Mittal wife of Shri Ashish Mittal, resident of House No.1967, Street No.2, Maharaj Nagar, Near Circuit House, Ferozepur Road, Ludhiana.

….. Complainant

                                                         Versus

1.Carnation Auto India Pvt. Ltd., Corporate Office: Studio 205, IHDP, Plot No.7, Sector 127, Noida, through Jagdish Khattar, Director/Owner/Incharge.

2^nd Address: Regd. Office:3/16, Shantiniketan, 2^nd Floor, New Delhi-110021.

3^rd Address: Carnation Auto India Pvt. Ltd., Plot No.B-30/114/3/1, Dhandari Kalan, G.T.Road, Ludhiana-141010.

2. Jagdish Khattar, Director/Owner/Incharge Carnation Auto India Pvt.Ltd, Corporate Office: Studio 205, IHDP, Plot No.7, Sector 127, Noida.

2^nd Address: Regd. Office:3/16, Shantiniketan, 2^nd Floor, New Delhi-110021.

3^rd Address: Carnation Auto India Pvt. Ltd., Plot No.B-30/114/3/1, Dhandari Kalan, G.T.Road, Ludhiana-141010.

3)Anoop Kumar s/o Shri Surinder Kumar, resident of B-XXXIV-918, Chander Nagar, Civil Lines, Ludhiana-141001.

2^nd Address:

Anoop Kumar, Sales Executive Carnation Auto India Pvt. Ltd., Plot No.B-30/114/3/1, Dhandari Kalan, G.T.Road, Ludhiana-141010.

 

 

…Opposite party

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Rajneesh Mahajan, Advocate      

For OP1 and Op2          :        Sh.Sachin Seth, Advocate

For OP3                         :         Ex-parte.

 

PER G.K.DHIR, PRESIDENT

 

1.           Complainant through OPs purchased second hand car bearing registration No.PB-10-DG-1728 of Tata Indigo Manza ABS E-IV make by believing the representation of OP3. OP1 is a private limited company incorporated under the Indian Companies Act. OP1 deals in sale, purchase and service of all types of cars. OP2 is the Director/Owner/Incharge of OP1, but OP3 is the Sales Executive of OP1. OP3 approached the complainant on 11.5.2012 with representation that the above referred car is ready for sale. OP3 further assured the complainant that the said car is ABS Model with meter reading of 48,000 Kms approximately. Besides, OP3 assured the complainant that the said car is non-accidental and there is no tampering with the meter. OP3 claimed that full history has already been checked. One year warranty with two free services was provided to the complainant by giving offer letter. This car was purchased by the complainant by believing the representation of OP3 on 12.5.2012 for total sale consideration of Rs.4,55,000/-. OP1 got insured the above said car for the period w.e.f.9.7.2012 to 8.7.2013 with United India Insurance Company Limited. On 22.05.2013, the complainant visited M/s Dada Motors Pvt. Ltd., Ludhiana for service of installed AC in the said car and then got the knowledge from the service history of the car as if the said car has covered mileage of 1,00,821 Kms on 25.2.2012 and that the said car met with an accident. Further, he got the knowledge that car after the accident came to the service station i.e.Garyson Motors Pvt.Ltd. for repair on 23.11.2011 at the time, when the meter reading was 89,781 Kms. Further the complainant got noticed as if the said car is not ABS E-IV Model. It is claimed that by false representation and mis-representation of facts, the complainant had been cheated and as such, by pleading adoption of unfair trade practice on the part of OPs, this complaint filed after service of legal notice through counsel Sh.Rajneesh Mahajan, Advocate. Deficiency in service also pleaded. It is claimed that earlier too, a consumer complaint under wrong impression was filed through Sh.Ashish Mittal, (being husband of the complainant) against OPs. It is claimed that OPs put their appearance in the said complaint and even filed written statement for raising objection as if complaint has not been filed through actual consumer, to whom, the car was actually sold. In view of said technical objection, the husband of the complainant withdraw the said complaint by reserving right to file fresh complaint and that is why this complaint filed for claiming compensation of Rs.2,50,000/- and litigation expenses of Rs.10,000/-.

2.                In joint written statement filed by OP1 and OP2, it is pleaded interalia as if the present complaint is not maintainable; concealment of material facts even alleged. Besides, it is claimed that the complaint bad for non-joinder and mis-joinder of necessary parties and is barred by limitation also. It is claimed that one Ashish Mittal submitted the booking order form and at that time, each and every fact was disclosed to him and thereafter, delivery of the car was got in perfect condition by issuing the acknowledgement of full satisfaction. Since from 2012, no objection raised till date, and this complaint claimed to be false and frivolous. Earlier complaint filed on same grounds was dismissed by this Forum vide order dated 21.8.2014 and as such, this complaint alleged to be not maintainable. No assurance regarding model or mileage was given. Rather, terms and conditions mentioned on the Pre-owned Car Booking Order Form dated 12.12.2014 were expressly agreed by Sh.Ashish Mittal, who himself represented as buyer at the time, when the vehicle was sold on ‘As-Is Basis’. It was further disclosed that The Odometer reading (K.M.) mentioned may not be the actual mileage covered by the vehicle. Carnation Auto in any form doesn’t certify the odometer reading as the actual mileage run by the car. The car was sold for a sum of Rs.4,50,000/- in the name of Mr.Ashish Mittal. It is denied that it was sold for Rs.4,55,000/-. Further, it is claimed that all the terms and conditions mentioned in the preowned car booking order form were agreed and accepted by Sh.Ashish Mittal. Each and every other averment of the complaint denied by praying for dismissal of the complaint. Complaint alleged to be false and frivolous being based on concocted versions.

3.                In separate written statement filed by OP3, it is pleaded interalia as if the complaint is not maintainable in the present form, but it is admitted that on asking of OP3, the complainant expressed his willingness to purchase the car in question. Even it is admitted that assurances were given by OP3 to the complainant qua correctness of mileage reading and model of the car etc. It is admitted that on assurances of OP3, the complainant was given offer letter and that is why, he purchased the car on 12.5.2012 for total sale consideration of Rs.4,55,000/-. Admittedly, the car was insured by OP1 with United India Insurance Company Limited for the period from 9.7.2012 to 8.7.2013. It is claimed that all the assurances were given to the complainant by OP3 at the behest of OP2. OP3 performed his duties as an employee of OP1 and OP2. No false representation was ever made by OP3. Rather, the complainant purchased the car after fully satisfying himself. OP3 is not liable to pay compensation to the complainant because he performed his duties towards his employer. Notice dated 17.6.2013 was received by OP3 and the same was duly replied. Admittedly, the complainant earlier filed complaint through her husband Sh.Ashish Mittal against OPs, in which, OP3 filed the written statement. Through this written statement, OP3 claimed that he has no objection, in case, liability to pay the amount as claimed in this petition is fastened on OP1 and OP2.

4.                Complainant to prove her case tendered in evidence her affidavit Ex.CA along with documents Ex.C1 to Ex.C11 and thereafter, counsel for complainant closed the evidence.

5.                On the other hand, counsel for OP1 and OP2 tendered in evidence affidavit Ex.RA1 of Sh.Gaurav Arora, authorized representative of OP1 along with documents Ex.R1 to Ex.R5 and then closed the evidence.

6.                Though, OP3 earlier appeared through counsel, but later on none turned up for OP3 on 23.12.2015 and adjourned date of 27.1.2016 and as such, OP3 was proceeded against ex-parte. It was specifically made clear vide order dated 23.12.2015 that in case, none appeared on behalf of OP3 on adjourned date of 27.1.2016, then it will be assumed as if OP3 not interested in prosecuting the case and further orders will follow. Before that sufficient opportunities were granted to the OP3 to lead the evidence after closure of evidence by the complainant on 13.7.2015.

7.                After closure of evidence by appearing parties, oral arguments of counsel for the parties heard and records gone through carefully. Written arguments not submitted by any of the parties.

8.                 Counsel for the complainant vehemently contends that written statement of OP3 fully support the claim of the complainant that on assurances qua model and mileage reading, the car in question was purchased by the complainant. Besides, it is claimed that in document Ex.C1, it is specifically mentioned as if the meter reading of the car in question was 48000 Kms approximately and as such, on this representation the car in question was purchased. The car in question was professed to be non-accidental through Ex.C1. However, service history sheet Ex.C7 shows as if this car travelled distance of 100821 Kms as on 25.2.2012 and as such, it is contended that mis-representation qua covered mileage was made deliberately by OP3 for the benefit of OP1 and OP2. Besides contents of service history sheet Ex.C8 establishes that this car travelled distance of 92756 Kms as on 10.12.2011 and as such, the disclosed mileage of 48000 Kms through Ex.C1 is incorrect. In Ex.C8 mention qua the car having met with an accident even is made, but through Ex.C1, the car is shown as  non-accidental and as such, mis-representation in that respect is also contended to be made by OPs. In Ex.C9, travelling of the car at 79522 Kms as on 3.9.2011 shown and as such, due documentary proof alleged to be adduced qua mis-representation regarding traveled mileage and non-accidental condition of the car. Sh.Anoop Kumar Op3 signed on Ex.C1 and as such, the assurance through Ex.C1 even was given as if no meter tampering has been done. OP3 in the submitted written statement has not denied the correctness of Ex.C1 and as such, it is contended that complainant has been cheated due to mis-representation regarding non accidental condition or non tampering of the meter and the travelled distance. Even if this documentary evidence may be establishing so, but preowned car booking order form Ex.R2 signed by the customer Sh.Ashish Mittal there on record to establish as if the points written in the booking  order form will be treated as final. Through Ex.R2, Sh.Ashish Mittal acknowledged that terms and conditions on the reverse side of this booking order form shall be construed as a contract between OPs and said Sh.Ashish Mittal. To whom, the representation through Ex.C1 was made qua that contents of Ex.C1 are absolutely silent. If really representation through contents of Ex.C1 would have been made to the complainant or her husband Sh.Ashish Mittal, then name of the customer too would have been recorded on Ex.C1, but that is not the position and as such, it is obvious that representation contained in Ex.C1 cannot be said to be made to the complainant, particularly when the date of such representation mentioned as 11.5.2012, but the preowned car booking order form is of date 12.5.2012.

9.                Ex.C1 is not signed by the complainant and as such, contents of Ex.C1 cannot be treated as assurances given to the complainant or her husband Sh.Ashish Mittal. Rather, through preowned car booking order form Ex.R2, Sh.Ashish Mittal acknowledged the points written in the booking order form as final along with printed terms and conditions on the reverse side thereof and as such, virtually the contract arrived at through Ex.R2. After going through Ex.R2, it is made out that the car sold on ‘as is basis’, unless otherwise agreed. The warranty clause reads as under:-

“This vehicle is sold “As-IS” basis. Unless otherwise agreed, Carnation Auto India Pvt Limited hereby expressly disclaims all warranties either expressed or implied including any implied warranties of merchantability or fitness for a particular purpose, and neither assumes nor authorizes any other person to assume for it any warranty liability in connection with the sale of this vehicle”.

10.              So, after going through this warranty clause, it is made out that OP1 has not authorized anyone to assume the warranty liability in connection with the sale of the vehicle or qua the fitness of the vehicle for a particular purpose. If such warranty not given by OP1 to anybody, then OP3, if issued Ex.C1 for assuring the complainant qua the travelled mileage or qua non accidental condition or qua non tampering of the meter, then those assurances given beyond the expressed or implied terms of the agency. Being so, OP1 and OP2 not liable for the assurances given through Ex.C1. As the vehicle was sold on ‘as is basis’ and as such, virtually OP1 and OP2 sold the vehicle without assurances of any type qua mileage covered or accidental or non accidental condition of the vehicle or meter condition of the vehicle. It is so because the points written in Ex.R2 to be treated as final as per endorsement on Ex.R2 itself.

11.              Ex.R3 is the delivery note issued by Sh.Ashish Mittal for claiming as if he has inspected the vehicle in question and found the same to be in order to his complete satisfaction. So, certainly submissions advanced by counsel for OP1 and OP2 has force that vehicle was received by Sh.Ashish Mittal by recording satisfaction note.

12.              Invoice Ex.R5 thereon record to show as if the vehicle was sold for Rs.4,50,000/- with condition that product once sold will not be exchanged or refunded. However, contents of Ex.C2 to Ex.C4 establishes as if amount of Rs.4,55,000/- paid by the complainant to OPs. All the above referred documents shows as if the booking order for the purchase of the car was placed by Sh.Ashish Mittal and even payments were made by him, even though the insurance cover note Ex.C6 obtained in the name of complainant Juhi Mittal. So, virtually contract between OPs was arrived with Sh.Ashish Mittal and not with Mrs.Juhi Mittal. In such circumstances, impleadment of Sh.Ashish Mittal as party was essential, but the same is not done and as such, virtually the complaint has been filed by a lady with whom, the contract was not arrived at by OP1 and OP2. Even affidavit of Sh.Ashish Mittal has not been produced to show that he conducted transaction on behalf of the complainant. So, privity of contract between the complainant and OP1 and OP2 is not established and as such, complaint at instance of the present complainant is not maintainable.

13.              Though, in the complaint, it is mentioned that earlier complaint filed by Sh.Ashish Mittal(husband of the complainant) was withdrawn by reserving right to file fresh complaint through actual consumer that is the present complainant, but copy of order passed in previous complaint has not been produced. Rather, it is case of OP1 and OP2 that previous complaint filed by Sh.Ashish Mittal has been dismissed vide orders dated 21.8.2014. In the absence of production on record, copy of order passed in previous complaint, this Forum unable to hold as to what orders actually were passed in the previous complaint. It was the duty of the complainant to prove that earlier complaint was dismissed as withdrawn with liberty to file fresh one by the actual consumer, but complainant by not producing the copy of earlier orders seeks adjudication from this Forum by suppressing the material facts in that respect. As and when, there is suppression of material facts, consumer concerned is not entitled for any relief. If the earlier complaint filed on same cause of action is dismissed, then second complaint based on same facts is not maintainable. Rather, as parties with whom contract arrived at is not impleaded before this Forum in this complaint and nor affidavit of contracting party produced and as such, virtually the complainant seeking relief by suppressing the material facts.

14.              Therefore, as a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules. 

15.                        File be indexed and consigned to record room.

                                                            

                      (Babita)                                     (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:15.06.2016

Gurpreet Sharma.