Hon’ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the case of the Complainant in brief is that the Complainant Kuldhoj Gurung is an Ex-Army. On 05.01.19 the Complainant paid Rs.6,22,100/- to the O.P. No.1 which is Central Store Department under the Govt. of India and used to deal various storage business at Military Camp, Bagdogra, Siliguri. On that day O.P. No.1 issued a purchase order receipt mentioning about purchasing of TATA Nexon (P) XM car and said car was delivered. The O.P.No.2, Saha Auto Pvt. Ltd., Tufanganj being a businessmen used to give authorised lucrative advertisement. The O.P. No.1 proposed him to purchase TATA Nexon (P) XM car from the O.P. No.1. Accordingly, the Complainant placed an order of TATA Nexon (P) XM car from the O.P. No.1 on 05.01.19. At the time of delivery the O.P. No.2 changed the model of the car. The O.P. No.2 delivered TATA Nexon Craz in place of TATA Nexon (P) XM at a cost of Rs.8,97,389/-. As per request of the O.P. No.2, the Complainant received the said vehicle on condition to repay the difference money within the period of one year. On 23.09.19 when the vehicle was placed for servicing at the workshop of O.P. No.2, they detained the said car for the purpose of illegal gain from the Complainant. The Complainant requested to the O.P. No.2 to return back the aforesaid vehicle within 7 days of receiving the legal notice but he did not give any reply to the notice so the present case is filed. Due to the said whimsical act of the OP the Complainant suffered mental pain and agony. The aforesaid acts of the OP amounts to deficiency in service. The cause of action arose on 05.01.19 and thereafter each and every day. The Complainant prayed for an award directing the OP to relies the vehicle TATA Nexon Craz to the Complainant, to pay Rs.50,000/- towards mental agony and harassment, Rs.20,000/- towards cost of litigation and other relief.
The O.P. No.1 contested the case by filing written version they denied each and every allegation. The positive defence case of O.P. No.1 is that as the Complainant is an Ex-Army, so he used to get rebate benefit from the O.P. No.1 for purchasing TATA Nexon (P) XM car from the O.P. No.2 who is the authorised dealer of TATA Motors Private Limited. The actual price of the car TATA Nexon (P) XM is Rs.6,94,702/- as per the bill issued by the O.P. No.2 and the Complainant paid to the O.P. No.1 Rs.6,22,100/- after rebate. The said rebate amount of Rs.72,602/- was paid by the Union of India through Canteen Store Department as the Complainant is an Ex-Army personnel. After received of the summons the O.P. No.1 came to know the fact of change of model of the car TATA Nexon Craz in place of TATA Nexon (P) XM the cost of which is Rs.8,97,389/-. The Complainant took delivered of the said changed car illegally without any right to change as per the rule of the Canteen Store Department. It was an unlisted vehicle. The Union of India has no power to rebate against any unlisted item to the Army personnel through Canteen Store Department. Both the Complainant and the O.P. No.2 entered into the illegal contract beyond the rule by purchasing the unlisted vehicle and suppressing the material fact and making the payment of the difference amounts by way of instalment. The Union of India was not made a party to the agreement. So, the O.P. No.1 is not a necessary party to this case. The Complainant himself is an offender who kept the O.P. No.1 behind the screen and has done illegal act in pollution with the O.P. No.2. Therefore, the Complainant is not entitled to get any relief the O.P. No.1 prayed for dismissal of the case with cost.
The O.P. No.2 M/S Saha Auto Private Limited denied each and every allegation in contesting the case. The defence plea of the O.P. No.2 in a few words the O.P. No.2 usually produce all legal supports with customer as per their demand. The O.P. No.2 has to no intention to change the model of the vehicle of heavy cost for losing his business. The Complainant after watching the upgrade model of the vehicle was repentant for not having money for purchasing the upgraded model and requested to the O.P. No.2 to produce the same of dues with a promise to pay within very short period. The O.P. No.2 on good faith agreed to the same and delivered it to the Complainant. The Complainant after purchasing the vehicle on 05.01.19 intentionally avoided to pay the outstanding dues. Due to non-servicing the vehicle for 9 months the said vehicle was damaged. So, the Complainant brought the vehicle to the O.P. No.2 for servicing with a promise to repay total outstanding dues. The Complainant for legal gain issued a legal notice thereafter with some false allegation. In spite of having a huge loan to the firm the O.P. No.2 delivered the vehicle to the Complainant in good faith but the Complainant deceived the O.P. No.2. There was no deficiency in service on the part of the O.P. No.2 the Complainant filed this case based on false ground the O.P. No.2 claimed that the case is liable to be dismissed with cost.
The pleadings of the parties persuaded this Commission to ascertain the following points for proper adjudication of the case.
Points for Determination
- Whether the Complainant is a Consumer under the C.P. Act?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief if any the Complainant is entitled to get?
Decisions with reasons
Point No.1.
It is the admitted position that the Complainant as an ex-army personnel purchased one motor vehicle through the Canteen of the Army Department against payment of actual price in which the employer O.P. No.1 granted some subsidy in the form of rebate.
Ld. Defence Counsel for the O.P. No.1 argued that the Complainant never paid any money to the O.P. No.1 and the O.P. No.1 also did not sale directed any vehicle to the Complainant accordingly there was no relation of purchaser and seller or consumer between the Complainant and the O.P. No.1. Accordingly, the Complainant is not a consumer under O.P. No.1 as per the C.P. Act.
The O.P. No.2 could not advance any argument against the specific plea of the Complainant that he is a consumer. It is found from the case record that the Complainant was permitted to purchase one car as per the specified model stated in Annexure-A being TATA Nexon (P) XM the indent of purchase of car through Canteen Store Department being Annexure-A dated 05.01.19 discloses the name of the dealer as Saha Auto Private Limited, Jaigone, Alipurduar. The record further shows that the O.P. No.2 sold the said car to the Complainant. Thus the relation between the Complainant and the O.Ps are covered within the C.P. Act accordingly the Complainant is a consumer under the C.P. Act and Point No.1 is accordingly decided in favour of the Complainant.
Points No. 2 & 3.
These points relates to ascertainment of question as to the entitlement of relief by the Complainant. The Complainant Kuldhoj Gurung claimed that he as a retired Army personnel purchased one vehicle being TATA Nexon. As the approved model was not available with the O.P. No.2 Company so he was compelled to purchase another vehicle of higher segment from the O.P. No.2.
It is the specific defence plea that the Complainant kept the O.P. No.1 in dark while purchasing the said car of higher segment. Accordingly the O.P. No.2 had no approval for purchasing the said car. They are not liable to pay any additional cost of price claimed by the Complainant and there was no deficiency in service on the part of O.P. No.1.
The Complainant proved some documents wherefrom it is revealed that as per Annexure-A being indent for purchase car through Canteen Store Department wherein the car model is specifically mentioned as TATA Nexon (P) XM. The name of the dealer is Saha Auto Private Limited, Jaigaon. The said model was approved by the competent authority namely Area Manager, CSD, Bagdogra.
Ld. Advocate for the Complainant argued that since the said car was not available at the time of placing the order so the O.P. No.2 directed him to take another vehicle of higher segment.
Pleadings of the Complainant disclose that at the time of delivery the O.P. No.2 changed the model of the car which the Complainant previously order to the O.P. No.1 i.e. TATA Nexon (P) XM and delivered TATA Nexon Craz at a cost of Rs.8,97,389/-.
Thus the said transaction appears to have taken place between the Complainant and the O.P. No.2. There is no document to show that the Complainant informed to the O.P. No.1 at any point of time that he purchased separate vehicle instead of the vehicle which was scheduled to be purchased as per Annexure-A initially.
The Complainant filed some questionnaire in course of trial to O.P. No.1 against which they answered which actually goes against the Complainant. As per question No.2 when did the Complainant order his vehicle and what was its model, cost how much was paid answer is 5th January, 2019 model TATA Nexon (P) XM, cost Rs.6,22,100/- and the customer paid the full of Rs.6,22,100/- respectively.
The second question is very important “whether you have any knowledge that the Complainant had taken delivery of TATA Nexon Craz in place of TATA Nexon (P) XM. Yes or no? The answer is no”.
This part of question answers clearly disclose that the O.P. No.1 had no knowledge about the said purchase of changed model of car being TATA Nexon Craz in place of TATA Nexon (P) XM.
Therefore, the defence plea of O.P. No.1 that it was game plan of the Complainant and the O.P. No.2 behind the back of the Complainant for some unlawful gain, stands proved.
Ld. Defence Counsel for the O.P. No.1 argued that so there is no deficiency in service since the entire dealing took place behind the back of the O.P. No.1. The next question is very important to negate the liability of the O.P. No.1. As per question No.4 “whether it is possible for a customer to take delivery of another model car in place of another which was ordered. Yes or no. The answer is no”.
Ld. Defence Counsel drew the attention of the Commission that this answer further justifies the defence case that they have no liability in this case.
Similarly question No.5 and 6 also strengthened the defence case of O.P. No.1. As per question No.6 whether there is any deficiency in service from your end. The answer is “no”.
Answer came out in cross-examination has a special effect in as much as a witness is cross-examined to testify the veracity of the case of the parties. When an answer is given in positive form that there is no deficiency in service by the O.P. No.1, it no doubt goes against the case of the Complainant.
Annexure-A1 sets forth some rules for purchase wherein it is categorically encrypted inter alia that in case of vehicle was in the waiting list in the civil market the same should be booked with a dealer who is affiliated with CSD. From the Annexure-C it is found that the O.P. No.2 Saha Auto Private Limited as a dealer of TATA Motors informed to the Complainant Kuldhoj Gurung on 13.012.18 TATA Nexon XM(P) C/White Vehicle was available at their dealership.
Therefore the plea of the Complainant that the said car was not available at the relevant time does not hold good.
It is found from the case record that in course of trial the O.P. No.2 has delivered the vehicle in question after repairing. The O.P. No.2 could not advance any argument in course of trial as to why the said vehicle of higher segment was sold to the Complainant despite it was not permitted by O.P. No.1.
The Complainant also put some questionnaire to O.P. No.2 but they could not give proper answer. As per order No.31 dated 30.03.23 no reply to questionnaire filed by the O.P. No.2. So, the evidence is closed and the case is fixed for argument.
Thus the O.P. No.2 could not give any cogent explanation as to why the said changed vehicle was delivered to the Complainant although the said vehicle of higher segment was not approved by the O.P. No.1 Central Store Department which is the proper authority for sanctioning the purchase of a car through the O.P. No.2 dealer.
During argument O.P. No.2 could not advance proper argument in spite of the misdeed of O.P. No.2.
The O.P. No.1 categorically stated and established that the O.P. No.2 Saha Auto Private Limited insisted the Complainant beneficiary to exchange the vehicle. The Complainant should have resisted not to fall into the trap of the dealer of O.P. No.2 and should have reported the matter immediately to the O.P. No.1 Canteen Store Department, Bagdogra.
Thus the entire dealing of purchase of a car of higher segment between the Complainant and the O.P. No.2 seems to have taken place behind the back of the O.P. No.1. Neither the Complainant nor the O.P. No.2 informed to the O.P. No.1 at any point of time about the said transaction. The O.P. No.2 as a dealer of O.P. No.1 had strict duty to inform it to O.P. No.1 before delivery of any car which was approved in the indent for purchase of car.
The O.P. No.2 acted in a manner which tantamounts to deficiency in service. In the backdrop of the discussion made herein above and the observation made in the foregoing paragraph the Commission comes to the findings that the O.P. No.1 is not liable to be held for any deficiency in service.
Points No. 2 & 3 are thus decided in favour of the Complainant in respect of O.P. No.2 only.
Consequently, the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/118/2019 be and the same is allowed on contest with cost of Rs.5000/- against O.P. No.2 and dismissed on contest against O.P. No.1.
The Complainant do get an award for a sum of Rs.15,000/- towards mental pain and agony and Rs.5000/- towards cost of litigation.
The O.P. No.2 is directed to pay Rs.20,000/- to the Complainant within 30 days from the date of passing the Final Order failing which the entire award money shall carry an interest of 6% per annum from the date of Final Order till the date of its realization.
The Complaint case is accordingly disposed of.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
