Complainant Raju Kumar has filed the present complaint against opposite parties (for short O.P.) U/S 12 of the Consumer Protection Act, 1986 whereby he has prayed for issuance of a direction to the opposite parties to deliver the latest model of vehicle replacing the vehicle in question or to refund the entire amount paid by him to the opposite parties alongwith interest and compensation of Rs.50,000/- on account of unnecessary physical and mental harassment and opposite parties be further directed to pay a sum of Rs.92,678/- as service charges and fitment of spare parts of the vehicle and Rs.74,000/- on account of registration certificate charges recovered from him illegal and Rs.20,000/- as litigation expenses and Rs.1,50,000/- on account of daily loss till the date of its actual realization and Rs.90,000/- on account of wastage of lots of valuable times which became hindrance in the way of his job promotion and any relief for which this Ld.Forum deems sustainable may also be granted to him, in the interest of justice.
2. The case of the complainant in brief is that he is serving as Havaldar under Army No.4274157X in the Unit of 19 Bihar Reg. C/o 56 A.P.O. Pathankot and is a reputed person in this society. He purchased a TATA SUMO GRAND EX TOP MODEL” and registered his name and mobile number for further intimation. He has further pleaded that the salesman Mr.Vishal Gupta told about market rate to the tune of Rs.8,70,000/- and Rs.7790/- as lodging charging and Rs.28,000/- as vehicle insurance charges and Rs.74,000/- as registration certificate to him. The officials of opposite party no.1 informed him to visit CH show room Pathankot alongwith required documents and papers and he again reached to their show room and also got satisfied from all the documents. However, at that time the opposite party no.1 and their officials did not show the abovesaid vehicle to him and again made excuses not showing the same to him and opposite party no.1 asked him that in case if he wanted to purchase abovesaid through CSD rate then 10% amount i.e. Rs.82,000/- aongwith Rs.10,000/- as company offer will be deducted from market price of Rs.8,70,000/-. After passing some days, he was again informed by the officials of opposite party no1 through a mobile call by saying that abovesaid vehicle had reached to their CH showroom Pathankot and advised him to keep the same. He again reached to their showroom Pathankot then Mr.Vishal Gupta demanded a sum of Rs.7,30,000/- in the shape of Bank draft, which may be drawn in favour of CH Motors and he raised the loan from State Bank of India and paid the same in the shape of Bank draft to opposite party and Mr.Vishal Gupta (Salesman) again demanded a sum of Rs.70,000/- as cash. Similarly total amount of Rs.8,00,000/- was paid by him to the opposite party on 15.3.2016 and the opposite party delivered the vehicle alongwith copy of insurance certificate dated 16.3.2016 in which the manufacture year had been mentioned as 2013 but he had not read the same and opposite party did not handover the sales certificate, retail invoice certificate and other documents to him. At the time of delivery of the vehicle, the opposite party no.1 assured that warranty period of abovesaid vehicle started from 16.3.2016 and at that time the meter reading was 630 KM. He has next pleaded that he was going to his house situated at Bihar on the abovesaid vehicle unfortunately due to low quality of parts fitted in the vehicle, on the way the vehicle stopped to work but the same was got reached to Bihar State where 8% i.e. Rs.60,079/- was recovered from him under the Bihar Tax on entry of goods into local area for consumption. Use or sale therein Act 1993 and he again spent a sum of Rs.55,000/- on account of applying registration certificate of the said vehicle. He wanted to take the benefits of first service of the vehicle and in this regard he brought the same to Satyam Shivam Automobile Pvt.Ltd. where the authorized persons recovered Rs.92,678/- as service charges and fitment of spare parts in the vehicle in question from him then he requested that the vehicle is in warranty period. He was shocked and stunned when the authorized person asked him that abovesaid vehicle has already been sold on 21.8.2012 to Mr.Robin Bawa and also told him that he has already took the benefits of services on 8.9.2012 (405 KM). 13.04.2013 (506 KM), 4.3.2014 (708 KM) and on 9.2.2016 (910 KM) respectively and he is second owner of the vehicle in question. He requested the opposite party to compensate or replace the abovesaid vehicle but opposite party no.1 and to 5 refused to do so. He moved a written complaint against opposite party through Mr.Kapil Gautan Captain for commanding officer of his unit on 30.07.2016 to the District Magistrate, Pathankot and the copy of the same was forwarded to SSP, Pathankot, Thana Incharge Chacki District Pathankot Consumer Forum for taking action against opposite party but till date now no action taken by concerned authority. A legal notice dated 9.8.2016 was also issued to the opposite party through his counsel but of no use. The act and conduct of the opposite parties amounts to deficiency in service and unfair trace practice on the part of the opposite parties. Hence this complaint.
3. Upon notice, opposite party no.2 appeared through its counsel and filed its written statement taking preliminary objections to the effect that complaint is without any cause of action against the opposite party and the present complaint is bad for mis-joinder and non-joinder of party. On merits, it is submitted that it is the general practice of the authorized dealer of this opposite party to satisfy the complainant and carry out pre delivery Inspection before handing over the vehicle to the customers. The complainant has himself admitted that opposite party no1 assured the complainant that warranty period of vehicle started from 16.3.2016 and at that time the vehicle was 630 km. If the complainant was having knowledge that the vehicle had already run 630 Kms, the complainant could refuse to take delivery of the vehicle in question. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Upon notice, opposite parties no.3,4 and 5 appeared through their counsel and filed written their joint written reply taking the preliminary objections that the present complaint is not maintainable and same is liable to be dismissed on this very ground; the complainant has not come to the Court with clean hands and has suppressed the material facts. Actually, the complainant has approached the opposite parties show room for the purchase of the vehicle and Vehicle New TATA SUMO GRAND EX TOP MODEL was shown to the complainant by the officials of opposite parties and the price of the abovesaid New vehicle was Rs.9,25,000/- including Insurance and other charges etc. but the complainant showed his inability to pay this amount and then the officials of the opposite parties had shown TATA SUMO GRAND TOP MODEL standing in the old stock having manufacturing year 2012 and the concession of rupee more than Rs.1,00,000/- was offered to the complainant for the purchase of the said vehicle. The complainant after seeing the vehicle agreed for the purchase of the said vehicle having model 2012 and then the concession of Rs.1,16,772/- (i.e. benefits discounts Rs.74,000/-, free insurance Rs.32,073/- and free AML/RSA Rs.10,699/- total amounting to Rs.1,16,772/-) was given to the complainant on the purchase of the said vehicle in addition to free seat covers as such the complainant has agreed to purchase the said vehicle for the total amount of 8 lacs and the complainant has paid amount of Rs.70,000/- in cash and Rs.7,30,000/- by way of demand draft as such the concession of Rs.1,16,772/- was given to the complainant only because the complainant has purchased the vehicle having manufacturing year 2012 as such question of any service benefit under warranty free of cost does not arise at all. Sale Certificate/invoice as well as copy of service history, insurance certificate was given to the complainant at the time of purchase of abovesaid vehicle in which the manufacturing year of the vehicle is clearly written as 2012. But the complainant has concealed all these facts as such does not entitled for the relief claimed by him. However, it is submitted that on the copy of insurance it was wrongly typed that manufactured year is 2013 otherwise other documents i.e. sale certificate, service history, the manufacture year is clearly written as 2012. The opposite parties are ready to refund the bill of repair of the vehicle in question subject to the condition that the complainant will have to deposit the defunct parts in the company and only then claim is passed however complainant has failed to deposit any such spare parts with the company so the complainant is not liable for any compensation. The complainant has no locus standee to file the present complaint against the opposite parties and no cause of action has arisen in favour of complainant and against the opposite parties at any time as such the complaint is liable to be dismissed on this very ground. The same facts have been reiterated on merits by the opposite parties and lastly prayed that the complaint may be dismissed with costs.
5. Notice issued to the opposite parties no.1 and 6 had not received back. Case called several times but none had come present on their behalf, therefore, they were proceeded against exparte vide order dated 21.10.2016.
6. Complainant tendered into evidence his own affidavit Ex.C1, alongwith other documents Ex.C2 to Ex.C19 and closed the evidence.
7. Counsel for the opposite party no.2 tendered into evidence affidavit of Ashish Makkar Territory Sales Manager Ex.OP-2/1 and closed the evidence.
8. Counsel for the opposite parties no.3,4 and 5 tendered into evidence affidavit of Sh.Amarjit Singh Sohal M.D. C.H. Motors Asr Ex.OP-3,4,5/1 alongwith other documents Ex.OP-3,4,5/2 to Ex.OP-3,4,5/14 and closed the evidence.
9. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some of the documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute had prompted at the alleged delivery and sale of the ‘Used 2012 Model’ vehicle by the opposite parties vendors (the OP1 and the OP3 to OP5) to the serving army-man complainant. The OP1 local vendor here has somehow preferred to face an ex-parte proceedings whereas his principals (Ex.OP3 to Ex.OP5) based at Amritsar have admitted to have sold 2012 model new (fresh) vehicle but with pre-disclosure and hefty discount to the complainant. The OP2 manufacturer has appeared through its counsel but the complaint has been directed against the vendors and as such the OP2 along with the previous owner OP6 have been enjoined in performa roles only. The contesting OP vendors have also offered to refund the amount spent on replacement of ‘defective’ worn out parts of the sold vehicle but the complainant here has claimed relief of replacement of vehicle or full refund on account of its defective running and non-disclosure of its old 2012 Model with its pre-sold status etc. In the meantime, the complainant has indeed suffered inconvenience and monetary loss etc and has also claimed the present litigation-cost along with compensation for the harassment inflicted upon him. We further find that the contesting OP vendors have failed to prove on records any sufficient and satisfactorily cogent reason for the intentional sale/ delivery of the used and pre-sold vehicle as new vehicle with local vendor OP1 preferring to stay absent and instead suffer exparte proceedings and that lines them up to an adverse statutory award.
10. The complainant has pleaded (sans any cogent rebuttal by the opposite parties) that he has invariably suffered much inconvenience and discomfort while travelling to his home-state coupled with substantial monetary loss to the tune of Rs.1.0 Lac or so along with a loss of humiliation and embarrassment at the hands of the titled opposite party vendors who have apparently adopted unfair means to sell a pre-used vehicle as a new one. All other collateral documents as produced by the litigants during the present proceedings have been found to be of much relevance to the present prime issue of cost and compensation only.
11. We also find here that the OP vendors did not provide the complainant CSD (Ex.C3) benefits that he fully deserved since they knew it full well that the sold vehicle has not been a new vehicle and as such not entitled to excise/ sales tax rebate etc as applicable to defence personnel. Further, the service history Ex.C13 proves that the sold vehicle has been of 2012 model and the complainant had to spend Rs.92,678/- (Ex.C12) on its repairs and it was previously sold to the OP6 as per the Tata Motors Vehicle Repairs computer records. Also, the insurance policy Ex.C7 as arranged by the OP1 exhibits the vehicle as the 2013 Model newly-sold to the complainant. Lastly, from the documentary evidence as available on the record proceedings, we find that the ‘deficiency in service’ by way of ‘unfair trade practice’ (of sale of pre-used vehicle as new vehicle) by the titled OP vendors stands duly proved and that rakes it up for an adverse statutory award under the applicable Act. Under the circumstances, we are of the considered opinion that replacement of the vehicle in question shall further create complications as to its model and price etc and thus refund shall better serve the mutual interests of the participating litigants.
12. In the light of the all above, we partly allow the present complaint and thus ORDER the titled OP1 and OP3 to OP5 vendors to refund the full invoice price (as per Ex.C16) charged from the complainant along with the full repair charges (as per Ex.C12) besides to pay him Rs.20,000/- as compensation for the wrong delivery of pre-sold vehicle/monetary loss incurred and Rs.5,000/- as cost of present litigation within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA form the date of the orders till actual payment.
13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
February,16 2017 Member
*MK*
