Assam

Dibrugarh

CC/3/2021

SRI SAILEN GOGOI - Complainant(s)

Versus

GARGYA MOTORS PVT. LTD - Opp.Party(s)

S.N. YADAV

21 Dec 2023

ORDER

 

                                                              JUDGEMENT

The complainant has instituted this complaint U/S 35 of Consumer Protection Act, 2019 praying to direct the O.P.s either (a) to procure all the valid documents of the vehicle of the complainant along with the NOC thereof from RTO Dhule District (b) to get registered the said vehicle in the name of complainant before the DTO, Dibrugarh, (c-1) to pay the compensation of Rs.8,37,324/- (being the arrear amount of EMI to which the complainant became liable to pay to his banker),, (c-2) to pay Rs.7,20,000/- (being the loss of business suffered by the complainant) AND (c-3) to pay Rs.50,000/- (being the cost compensation for physical and mental harassment of complainant) Total Rs.16,07,324/-. And if they show their inability to fulfil the demands made as stated above, they may be directed to compensate the complainant in alternate mode by paying compensation of (a) Rs.10,17,119/- (being the amount of loan due), (b) Rs.13,49,002/- (being the EMI paid by complainant to his banker in 29 months), (c) Rs.7,20,000/- (being the loss of business suffered by the complainant), (d) Rs.48,000/- (being the cost of paper work paid by the complainant to the O.P. No.1) AND (e) Rs.50,000/- (being the cost of compensation for physical and mental harassment of complainant) Total Rs.31,84,141/-.

Brief averments of the complainant are as follows:

1. The complainant submits that he is a businessman by profession having his resident at Niz Mancotta, P.O.- C.R. Building, Dist- Dibrugarh, Assam. On October 2017 he obtained a quotation from the O.P. No.1 for purchasing a vehicle named Eicher Dumper. Thereafter for purchasing the said vehicle, he approached his banker namely Cholanandalan Investment and Finance Company Ltd., Dibrugarh (the proforma O.P. No.4) on 31.10.2017 and availed a loan of Rs.16,75,603/- vide his loan Account No.XVFPDIB00002154498 on monthly instalment basis fixed at Rs.46,518/. After receipt of the aforesaid payment from the banker, the O.P. No.1 being the authorized dealer of the O.P. No.2(a) to 2(c) delivered an Eicher Dumper (Eicher Pro5016TEF10) having Engine No. E624CDGK111501, Chassis No.MC2T2ERC0GK000002 to the Complainant.
2. It is averred that after taking delivery of the said vehicle the Complainant was shocked to know that the said vehicle is already registered in the name of “Akash Enterprises” having Registration No. MH18BG0114 dated 27.03.2017 in the RTO of District- Dhule in the State of Maharashtra. The complainant approached the O.P No.1 and raised his grievances for their misrepresentations and after a hot alteration, they assured the complainant to get the said vehicle registered in his name at the office of DTO, Dibrugarh after procuring all the relevant and requisite document as well as N.O.C from the office of R.T.O. Dhule, as such the complainant had to pay Rs.48,000/- as additional amount for paper works. Believing upon the assurance of the O.P. No.1, the complainant had insured the vehicle in his name by submitting a declaration on oath before the insurer that he will submit the registration certificate of the said vehicle after getting registration in his name at DTO, Dibrugarh.
3. Thereafter complainant has approached the Manager of the O.P. No.1 on several occasions who introduced two other officials of his agency to look after the grievances but till date they failed to procure the NOC from the RTO, Dhule, hence the said vehicle could not be insured. Complainant alleged that since last 3 years he has been approaching the officials of the O.P. No.1 and was regularly in their contact with them through mobile phone callings, text messages and whatsapp messages. And after several request one of the officials of the O.P. No.1 namely Surjya Choudhury (as per knowledge of the complainant being Mobile No. 9678072232) sent a contact No. of ‘Prasahantji Dhule RTO’ on 18.03.2020 at about 3.38 P.M. and asked to get his vehicle registered by contacting the said person. The said Surjya Choudhury has also sent a mobile number of one Sri Rakesh Roshan Thakur on 21.08.2020 and asked him to call the said person.
4. Thereafter complainant was eagerly waiting for a concrete step from O.P. No.1 for settling the aforesaid matter in between this period of August and September 2020, but he received a final call letter dated 10.09.2020 from the proforma O.P. No.3 and 4, whereby it has been initiated that the complainant has due of EMI outstanding of Rs.46,518/- and thus a total outstanding was shown at Rs.9,30,973/- as on 09.09.2020. It is averred that since last 18^th months the said vehicle is lying in the parking campus as the complainant is unable to use and work with the said vehicle without having registration card and insurance certificate. Although complainant has paid the EMI of Rs. 13,49,022/- in 29^th month to his banker regularly by availing loan. As such the complainant has paid Rs.6,51,252/- to his banker without earning a single penny in 15 months.
5. Thereafter the said Rakesh Roshan Thakur (having Mobile No. 9955001151) referred by Sri Surjya Choudhury (Employee of O.P. No.1) too has sent the contact number of ‘Prasant ji Dhule Rto’ on 15.09.2020 through watsapp message to the complainant and asked him to talk with the said Prasant Ji for doing the needful in this matter. The complainant has contacted with “Prashant ji Dhule RTO” over mobile phone and made him aware with his grievances but he did not pay any heed towards the matter of the complainant. Hence the complainant having left with no option has sent a legal notice to the O.P.s on 14.10.2020 demanding to do the needful to get the vehicle registered at the earliest and also for compensation but all the O.P.s have failed to comply with the demand made therein till date.   
6. It is stated that complainant has failed to deposit the EMI as the said vehicle was kept in the parking campus since last 18 months in want of registration and insurance. And under such circumstances the complainant has received a notice from the advocate of the proforma O.P. No.3 and 4, Sri Paban Neog under Ref. No.-LDN-NOV-2020-1 on 14.11.2020 to clear total dues of Rs.18,6443.22 within seven days of receipt of that notice. The proforma O.P. No.3 has send another letter under to the complainant Ref.LRN-Dec’2020-056 dated 28.12.2020 making similar demand of payment of dues. As the complainant has no money in his hand to fulfill the demands of the said loan recovery demand letter and notices hence the O.P. No. 3 and 4 have deposited a cheque of the complainant in their account without authority and consent of the complainant which was kept before them while taking delivery of the said vehicle by filing up on account of Rs.10,17,119/-. After dishonor of the said cheque the advocate of the proforma O.P.s has issued another notice under Ref. No. Notice NI-Jan-Lot-1 dated 30.01.21.
7. It is averred that the complainant has suffered monetary loss of Rs.13,49,022/-which he has paid as EMI to his banker (proforma O.P. No.4) in 29 months, Rs.10,17,119/- being the amount of loan due to be paid to the Proforma O.P. No.4 and Rs.48,000/- being the cost of paper work paid by the complainant to the O.P. No.1 and Rs.7,20,000/- being the amount of loss of business in 18 months. Complainant further contended that the O.P. No.1 being the authorized dealer of O.P. No.2(A) to (C) is legally liable to issue all valid documents to his customers but in this case, they have not only cheated the complainant by playing fraud and misrepresentation but had also harassed him physically, mentally and financially. The O.P. No.2, is as such, equally liable for act of their agent i.e. O.P. No.1.
8. It is submitted that the complainant has a right to be informed by the O.P. about the fact regarding the vehicle being already registered in the name of third party, within the ambit of section 1(9)(ii) of the Consumer Protection Act. And since they have deliberately withheld the relevant information hence it is a clear deficiency under section 1(11)(ii) of the said Act. Further the instant claim being for product action, lies against the O.P.s jointly and severally as per Section 1(6)(vii) who are the product seller and manufacturer. Since the O.P.s deliberately concealed the important information hence it is also a misleading advertise on their part as per Section 1(28) and also unfair trade practice as defined U/S 1(47) of the Consumer Protection Act as they have falsely represented that they have approval or affiliation to sell the said vehicle to the complainant. The complainant is a consumer within the meaning of Section 1(7) of the Consumer Protection Act 2019 and since he has suffered harm, he has every right to initiate of a proceeding U/S 34 of the said Act. The O.P. No.2(a) to 2(c) being the product manufacturer are legally liable to compensate for the act of their agent i.e. the O.P. No.1.
9. Hence the complainant prays the following relief/reliefs from this Commission as follows-
10. To procure all the valid documents of the vehicle of the complainant along with the N.O.C. thereof from R.T.O. Dhule District.
11. To get the said vehicle registered in the name of complainant before the D.T.O. Dibrugarh.
12. To pay the compensation Rs.8,37,324/- (being the EMI arrear of last 18 months to be paid by the complainant to his banker), Rs.7,20,000/- (being the loss of business suffered by the complainant in last 18 months) AND Rs.50,000/- (being the cost of compensation for physical and mental harassment of complainant) Total Rs.16,07,324/-  

                               -OR- (ALTERNATIVELY)

4. To pay the compensation of Rs.10,17,119/- (being the amount of loan due), Rs.13,49,022/-(being the EMI already paid by complainant in 29 months to his banker), Rs.7,20,000/- (being the loss of business suffered by the complainant in last 18 months), Rs.48,000/-(being the cost of paper works paid by the complainant to the O.P. of compensation for physical and mental harassment of complainant) Total Rs.31,84,141/-

AND  in addition of the above, to pass any order of for any reliefs for which the complainant is entitled in law and equity.

10. After receipt of the notice the O.P. No.1 appeared and filed Written Statement on 18.09.2021 contending interalia that the present complaint case is not maintainable in the eye of law and has no cause of action as well as suffered from mis-joinder and non-joinder of necessary parties. Further alleged that the present case is not supported by proper verification and not properly valued and no proper court fee has been paid by the complainant. Furthermore the O.P. No.1 alleged that the complainant has suppressed material facts and particulars and has not approached this Commission with clean hand and mind and the complainant has twisted facts for illegal gain and on this count itself, the instant case is liable to be dismissed .
11. The O.P. No.1 stated that the particular deal was done in October, 2017 through mutual understanding between the complainant Sailen Gogoi and the O.P. No.2 i.e. VE Commercial Vehicle Ltd. O.P. No.1 stated that it is a normal practice of manufacturer to send demo vehicle to authorized dealer and to show the vehicle to customers through dealer and the particular vehicle was supplied by the VE Commercial Ltd. to O.P. No.1 for testing and showing the quality of the vehicle to customers. Complainant  after taking demo of the vehicle itself and showed interest to purchase the same as such one Mr. Pritom Gogoi, sales personal of VE Commercial Vehicle Ltd. offered a cheaper price compared to a new vehicle to the complainant. O.P. No.2 i.e. VE Commercial Vehicles Ltd through Pritom Gogoi initiated to sale the vehicle to complainant without disclosing anything about the said deal in brief to the sales Department of the O.P. No.1. Thus complainant was fully aware of the fact that the particular vehicle was a demo vehicle supplied by the O.P. No.2 registered before the RTO of Dhule District in the State of Maharashtra, in the name of “AKASH ENTERPRISE” having is Registration No. MH18BG0114 dated 27.03.2017 and willingly bought the said vehicle through dealer. The O.P. No.1 further alleged that the complainant had requested Mr. Pritom Gogoi to arrange finance in excess so that they get something in return after paying the actual cost of the demo vehicle and without informing anything in details, Mr. Pritom Gogoi instructed one Mr. Dipak Mudoi, the than sales head of the O.P. No.1 to arrange finance from Cholamandalam Investment and finance company Ltd. i.e. O.P. No.3 and 4 as requested by the complainant.
12. O.P. No.1 denied the statement that the complainant has approached the officials of the O.P. No.1 and they have assured the complainant to get the said vehicle registered in his name at the office of D.T.O. Dibrugarh by procuring all the relevant and requisite documents as well as N.O.C. from the office of R.T.O., Dhule District and for that purpose they have taken an additional amount of Rs.48,000/-. Further also denies the statement that the complainant has approached the Manager of the  O.P. No.1 who introduced two other officials of his agency to look after the grievances of the complainant but they failed to provide valid documents of the vehicle sold to the complainant after receiving full consideration amount of the said vehicle.
13. The O.P. No.1 denies the allegation that being the authorized dealer of the O.P. No.2(A) to 2(C) is legally liable to issue all valid documents to his customers. The O.P. No.1 further denies that the complainant has a right to be informed by the  O.P.s about the facts regarding the vehicle was already registered in the name of third party under section 1(9) (ii) of the Consumer protection Act, 2019 and hence it is a clear deficiency under section 1(11) (ii). Further denies that being the product seller and manufacturer, product action lies against the O.P.s jointly and severally as per section 1(6) (vii) of the said Act. It is also denied any misleading advertisement as per Section 1(28) and unfair trade practice under Section 1(47) of the Consumer Protection Act.
14. It is stated that complainant had never contacted the O.P. No.1 after purchasing the said vehicle till March, 2020, but by that time the O.P. No.1 had already winded up its business at Dibrugarh and Guwahati with VE Commercial Vehicles Ltd. but as a good business entity in the society, its employees had helped the complainant by arranging a contact number of one person of Dhule District who can help the complainant in taking out the NOC from the RTO of Dhule District and do the needful. As such there is no deficiency in the service and the O.P. No.1 was only acting as a facilitator and the dispute is between VE Commercial Vehicle Ltd. and the complainant and the name of the O.P. No.1 has unnecessarily been dragged in the present case for ulterior and illegal gains and hence prayed to dismiss the complainant petition with exemplary cost.
15. The O.P. No.2 i.e. VE Commercial Vehicle Ltd. has file written statement on 27.09.2021 The O.P. No.2 pursue the present case through Ms. Vidhi Sapra who has been authorized by way of Specific Power of Attorney dated 28.12.2020 in consonance with the General Power of Attorney dated 10.12.2020 executed in favour of Mr. Rajesh Mishra vide resolution dated 03.12.2020.
16. O.P. No.2 contended that the complaint of the complainant is not maintainable as neither there is any specific averment against O.P. No.2 nor there arises cause of action in favour of the complainant and against the O.P. No.2 to file the present complaint. The present complaint suffers from mis-joinder of part as on mere averment that the O.P. No.1 was the dealer of the O.P. No.2, the complainant has allegedly held that the O.P. No.2 is jointly and severally liable along with other Opposite Parties for alleged losses suffered by the complainant. Complainant has not alleged or provided evidence that O.P. No.2 or any of its employees were privy to the transaction in question with the complainant or had led the complainant to purchase the said vehicle from the dealer i.e. O.P. No.1. Furthermore, in the present complaint, the complainant has nowhere pleaded that the O.P. No.1 in selling a second hand vehicle to the complainant without prior intimation to the complainant.
17. It is stated that the O.P. No.2 is a limited company incorporated under the provisions of the Indian Companies Act, 1956 (previously known Eicher Motors India Ltd) and has been dealing in manufacturing motor vehicle products and engines including in manufacturing, sale and supply of motor vehicles and parts to various transport authorities. And O.P. No.1 was the authorized dealer of O.P. No.2 on account dealership agreement dated 27.09.2013. The vehicle in question was originally sold in Maharashtra and pursuant to the original owner of the said vehicle selling the same back to O.P. No.2. The O.P. No.2 sold the vehicle to its dealer i.e. O.P. No.1 for Rs.12,00,000/- against which O.P. No.2 raised an asset sale invoice to the O.P. No.1 on 26.12.2017 as the same was a used vehicle. Pertinently, for sale of a new vehicle by the Manufacturer to its dealer, a “Tax Invoice” is generated along with a “Form-21 Sale Certificate” whereas the particular vehicle was a “used vehicle” against which only an “asset sale invoice” was generated. As such the O.P. No.1 was not just responsible to sell the said vehicle as “used vehicle” but was also liable to get the NOC and documents of the said vehicle transferred in the name of the person to whom the vehicle was to be resold. The role of the O.P. No.2 under the dealership was limited to the obligation under the Dealership Agreement and any sale of the vehicle by O.P. No.1 to a third party customer does not fall within the domain of O.P. No.2. Once the vehicle was sold by O.P. No.2 to O.P. No.1, the role of O.P. No.2 towards the said vehicle in question is ceased and the onus was upon the O.P. No.1 to make correct representation before a third party/customer for selling the said used vehicle and also facilitate transfer of documents. Since the alleged grievance of the complainant is arising out of non-compliance by O.P. No.1 in transferring the registration of the said vehicle in question in the name of the complainant as such O.P. No.2 is not privy to any of the contract or transaction with the complainant. Further the dealership with O.P. No.1 has been terminated, although it is still pending at the stage of full and final settlement of account.
18. It is further stated that the dealership of O.P. No.2 operates on principal to principal basis and there is no contract of agency between the dealer i.e. O.P. No.1 and  manufacturer i.e. O.P. No.2. Hence, on account of any alleged dispute/issue with the dealer i.e. O.P. No.1, the O.P. No.2 i.e. the vehicle manufacturer cannot be held accountable unless there is specific allegation or averment pertaining to the manufacturing defect of the vehicle which is not the case in the present complaint. It is stated that the O.P. No.1 never furnished any information pertaining to the sale of the said vehicle or transfer of its registration to O.P. No.2. The O.P. No.2 was informed by the complainant about the issue created by the O.P. No.1 only a month prior to the receipt of legal notice from the complainant that the said vehicle allegedly selling to the complainant without transferring its registration in his name  and also allegedly failing to disclose to the complainant that the said vehicle was a used vehicle. It was further revealed that O.P. No.1 sold the said vehicle at transactional price of Rs.16 lakh approximately which much higher than the value of invoice raised by O.P. No.2 of Rs.12 lakh as per the asset sale invoice. Thereafter, the excess money approximately Rs.4 lakhs was refunded to the complainant by  O.P. No.1 after receiving the disbursed loan amount from the financing company. This clearly highlights the malafide intention of O.P. No.1 for selling a second hand vehicle at a high price and further also discloses the collusion between the complainant and O.P. No.1 of availing loan at a higher amount and then refunding the difference value to the complainant to make unlawful and illegal gain. It is stated that the O.P. No.1 was the authorized dealer of O.P. No.2 on account dealership agreement dated 27.09.2013, the same would not make answering O.P. No.2 either necessary or proper party for adjudication of alleged disputes arising in the present complaint wherein all effective transaction were strictly between the complainant and O.P. No.1 and also complainant and O.P. No.3 and 4. It is also stated that the O.P. No.2 had no knowledge regarding letter/communication mentioned by the complainant allegedly issued by O.P. No.3 & 4.
19. It is also contended that the present complaint has not been filed within the period of limitation as prescribed U/S 69 of the Consumer Protection Act, 2019. The vehicle in question was purchased in the year 2017-18 and thereafter the complainant came in knowledge of the fact in the year 2017-18 that the said vehicle was already registered in the name of “Akash Enterprises”. Hence the alleged cause of action first arose in the year 2017-18 and the present complaint filed in the year 2021 i.e. much after of 2 years from the date of first cause of action.
20. It is stated that upon receiving the grievance of the complainant the O.P. No.2 sought clarification from O.P. No.1 as to why the registration of the said vehicle was not transferred and also made all extensive efforts for resolving the issues of the complainant with O.P. No.1, however, before the same could be resolved, the complainant has filed the present complaint not just against O.P. No.1 but also illegally against O.P. No.2 despite there being no involvement of O.P. No.2. Hence, the O.P. No.2 is not liable jointly and severally for any deficiency, inadvertent or otherwise, that might have been committed at the end of O.P. No.1 while selling the said vehicle as a brand new vehicle to the complainant as such prayed to dismiss the complaint with exemplary cost.
21. The O.P. No. 3 and 4 has filed written statement on  30.04.2021 and has made preliminary objections that the complaint of the complainant is false, frivolous and vexatious and an abuse of the process of this forum and as such liable to be dismissed under section 26 of the Consumer Protection Act,1986. The instant case is bad for non-joinder of necessary parties. “Akash Enterprise” in whose name the said vehicle has been alleged to have already been registered is a necessary party in this case. Further the complainant has not disclosed any cause of action to proceed against the O.P. No.3 and 4 and hence liable to be dismissed U/S 11(2)(c) of the Consumer Protection, Act.
22. It is also contended that this Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and there is no deficiency of service or negligence on the part of the O.P. No. 3 and 4. In this regard O.P. No.3 and 4 referred the judgements of Hon’ble National Commission in Ashok Leyland Finance Limited vs Himanshu S. Thumar II (2005) CP] 491 wherein held that dispute which pertains to account cannot be said to be consumer dispute but is essentially a civil dispute. Further the Hon’ble State Commission, Maharashtra in Rajkumar Devidas Ghayal vs TATA  Motors I (2003) CP] 60 has held that dispute which pertains to account cannot be said to be consumer dispute- hence it is a civil dispute.
23. It is stated that the complainant had approached the O.P. No.3 and 4 and applied for loan to purchase the vehicle of his choice. Considering the application the O.P. No.3 and 4 sanctioned loan   amounting to Rs.16,75,603/-(Rupees sixteen lakhs seventy five thousand six hundred three)only vide loan Agreement No.XVFPDIB00002154498. The complainant was required to liquidate the loan in 55 equated monthly instalments of Rs.46,518/- each commencing from 28.11.2017 to 28.05.2022. But from the inception of the loan complainant has been irregular in making payments of the outstanding loan amount for which charges and interest got attracted from time to time and an amount of Rs.5,12,047.58/- as on 28^th April-2021 still due and payable by the complainant.
24. Further due to failure on the part of the complainant the proforma O.P. No.3 and 4 has sent notices asking the complainant to clear the outstanding dues. On failure to comply with the notices the O.P. No.3 and 4 has initiated appropriate proceedings against the complainant for recovery of the outstanding loan amount. Complainant is liable to liquidate the outstanding loan without any delay and the complainant cannot hide under the shadow of his grievances against the other O.P.s to evade his liability towards the proforma O.P. No. 3 and 4 and as such O.P. No.3 and 4 are not liable for unfair trade practice. The complainant has approached this Commission with unclean  hands and hence the instant petition is liable to be dismissed.
25. In this case complainant, Sri Sailen Gogoi has submitted his evidence in affidavit as P.W.1 and exhibited as many as 31 documents in support of his claim. In the evidence the P.W.1 has reiterated the same facts as has averted in his complaint petition. It is to be mentioned here that some additional documents have also filed and exhibited by the complainant vide order dated 29.10.2021 of this Commission which are marked as Exhibit No. 23 to 31 as he failed to submit at the time of filing of this complaint. Complainant further stated in his evidence that he sent a reply notice to the O.P. No.4 i.e. the Manager, Chlamandalam Investment and Finance Company Ltd. on 29.10.2021 against their Letter under Ref:LRN-DEC’2020-056 dated 28.12.2020 through his advocate Sri S.N. Yadav. And the O.P. No.3 i.e. the Cholamandalam Investment and Finance Company Ltd. has sent a reply to the complainant through their notice dated 11.02.2021 whereby they have warned him to negotiate the matter of dues settlement with their local branch. Thereafter on 24.02.2021 the complainant has again sent a legal notice to the advocate of O.P. No.4 requesting and demanding therein not to proceed with any recovery proceeding. Despite of several letters and notices, the O.P. No.3 and 4 have filed an Arbitration Case No. 03/SG143 of 2021 against the complainant and an ex-parte award has been passed on 18.08.2021 to pay a sum of Rs.10,56,986/-. It is further stated that on 25.08.2021 complainant has lost his mobile phone at Chowkidinghee with Sim Card and in this regard an application was submitted on 26.08.2021 before the In-Charge, Milan Nagar Out Post. Complainant has filed below mentioned Exhibits to substantiate his claim which are as follows-

Ext.No.1	The printed copy of the Text Messages sent to the Mobile phone of the complainant by the Cholamandalam Investment and Finance Company Ltd. on 27/11/2017 and 30/11/2017.
Ext. No.2	The printed copy of the Whatsapp Messages sent to the Mobile Whatsapp Number of the complainant by Sri Surjya Choudhury on 18/03/2020.
Ext. No.3 & 4	The printed copy of the Text Messages sent to the Mobile Number of the complainant by Sri Surjya Choudhury on 18/03/2020 and 21/08/2020.
Ext. No.5	The original copy of the said Final Call Letter dated 10/09/2020 of the Cholamandalam Investment and Finance Company Ltd.
Ext. No.6	The printed copy of the Whatsapp Messages sent to the Mobile Number of the complainant by Sri Rakesh Roshan Thakur on 25/08/2020 and 15/09/2020.
Ext.No.7,8,9,10,                   11,12, 13	The copies of the notice and the copies of Postal Registration Receipts against those letters.
Ext.No.14, 15, 15-A, 15-B, 16, 17, 18, 18-A, 19, 19-A	The copies of Postal Delivery Reports against those letters obtained from the online internet portal of Postal Department/Acknowledgement Receipts/Returned letter.
Ext. No.20	The copy of the Legal Notice dated 14/11/2020 of the Cholamandalam Investment and Finance Company Ltd.
Ext. No.21	The copy of letter dated 28/12/2020 of the Cholamandalam Investment and Finance Company Ltd.
Ext. No.22	The copy of the Legal Notice dated 30/01/2021 of the Cholamandalam Investment and Finance Company Ltd.
Ext. No.23	The copy of certificate U/s 65(B)(4) of the Indian Evidence Act
Ext. No. 24, 25, & 26	The copy of the reply notice dated 29/01/2021, Postal Registration Receipt.
Ext. No. 27	The copy of the notice with envelop dated 11/02/2021
Ext. No.28 & 29	The copy of the notice dated 24/02/2021 and Acknowledgement Receipt.
Ext. No.30	The Certified copy of the ex-parte award passed on 18/08/2021 in Arbitration Case No.03/SG143 of 2021.
Ext. No.31	The copy of the application submitted on 26/08/2021 before the In-Charge of Milan Nagar Police Out Post.

 

26. The O.P. No.2 has filed evidence in affidavit on 07.01.2022 through Ms. Vidhi Sapra who has authorized to represent the O.P. No.2 i.e. Eicher Motors Ltd. (presently known as M/S Ve Commercial Vehicle Ltd.) vide Special Power of Attorney dated 28.12.2020 along with General Power of Attorney dated 10.12.2020 and Board Resolution dated 03.12.2020. In the evidence in affidavit O.P. No.2 repeated the same averments as narrated in their written statement and exhibited 6 Nos. of exhibits which are as follows-

 

1. Exhibit No. OP 2/A1- Copy of Special Power of Attorney dated 28.12.2020
2. Exhibit No. OP 2/A2- Copy of the General Power of Attorney dated 10.12.2020 and Board Resolution 03.12.2020
3. Exhibit No. OP 2/B- Copy of Asset sale invoice dated 26.12.2017
4. Exhibit No. OP 2/C  Copy of sale certificate and tax invoice dated 04.12.2020
5. Exhibit No. OP 2/D Copy of Dealership Agreement dated 27.09.2013k
6. Exhibit No. OP 2/E Copy of email for closure of Dealership dated 18.05.2020

 

27. The O.P. No.1, 3 and 4 have failed to submit evidence in affidavit after repeated directions of this Commission hence evidence of O.P. No.3 and 4 closed vide order dated 11.08.2022.
28. Written argument of the complainant was filed on 29.10.2022. Complainant argued that it is clear from the written statement of the O.P.s that O.P. No.1 intends to shift the entire liability on the O.P. No.2. Further it is also clear from the dealership Agreement dated 27.09.2013 executed between O.P. No.1 and O.P. No.2 that the O.P. No.1 is an authorized agent of the O.P. No.2. Thus the O.P. No.2 cannot escape from its liability for the acts of his agent. It is contended by O.P. No.2 that the claim is barred by limitation. Rebutting the contention of O.P. No.2 complainant stated that the O.P. No.2 has failed to learn the fact that till 21.08.2020 their office bearer were continuously sending whatsapp messages and text messages to the complainant assuring him that they are doing the needful for obtaining NOC from RTO Dhule District. The screenshots of the said messages were marked and exhibited by the complainant as such question of limitation does not arise at all. Complainant further submitted that the Gargya Motors being the agent  of the Ve Commercial Vehicle Ltd. has not only cheated the complainant by playing fraud and misrepresentation but had also harried him physically, mentally and financially as such the O.P. No.2 i.e Ve Commercial Vehicle Ltd. is fully liable for the act of their agent/authorized dealer i.e. the O.P. No.1.
29. The O.P. No.2 has also filed written argument on 17.09.2022 reiterated all the contents as narrated in the written statement and evidence in affidavit. The O.P. No.2 argued that the complainant admitted that he is a business man and has failed to narrated that alleged purchased of the commercial vehicle is for the purpose of self employment. Complainant has been filed by the complainant with malafide intention and falsely implicated the O.P.s with the intention to harassed and extort the hard earned money. Further submitted that the complainant is admittedly not the registered owner of the goods under scrutiny, hence does not fall within the definition of consumer, per se. The O.P. No.2 has, initiated information and knowledge pertaining to the true and correct facts and disputes between the complainant and O.P.No.1,3 and 4 as O.P. No.2 was not privy or part of any transaction between the complainant and O.P. No.s 1,3 and 4 pertaining to the said vehicle in question. It is submitted that the said vehicle was originally sold in Maharashtra and pursuant to the original owner of the said vehicle selling the same back to O.P. No.2, the O.P. No.2 sold the said vehicle to its dealer i.e. O.P. No.1 for Rs.12,00,000/- against which O.P. No.2 raised an asset sale invoice to the O.P. No.1 on 26.12.2017 as used vehicle. Pursuant to the above, the O.P. No.1 was not just responsible to sell the said vehicle as “used vehicle” but was also liable to get the NOC and documents of the said vehicle transferred in the name of the person to whom the vehicle was to be resold. The role of O.P. No.2 under the dealership was limited to the obligations under the dealership  Agreement and any sale of the vehicle by O.P. No.1 to a third party customer does not fall within the domain of O.P. No.2.

 

Point to be decided

 

1. Whether the complainant is a consumer of the Opposite Parties under the Consumer Protection Act?
2. Whether this Commission has jurisdiction to try this case?
3. Whether the complaint was filed within the period of limitation?
4. Whether the Opposite Parties are liable for deficient service towards the complainant?
5. Whether the complainant is entitled to the reliefs prayed for in the complaint petition?

    Decisions and Reasons thereof

 

1. Upon going through the averments of the complainant and the evidence of both the parties and their documentary evidence and written argument along with ruling on which the Opposite parties have relied on, it is found that the complainant is a consumer of the Opposite party No.1 i.e. Gargya Motors Pvt. Ltd. This Commission has proper territorial as well as pecuniary jurisdiction to try this case.
2. From perusal of the complaint petition and documents submitted it is found that the complaint was filed within the prescribed limitation.
3. Regarding deficiency we found that main allegation of the complainant is that the O.P. No.1 had sold demo vehicle to the complainant which was already registered in the name of “Akash Enterprises” at RTO, Dhule District, in the State of Maharashtra having Registration No.MH18BG0114 dated 27.03.2017. Further the O.P. No.1 did not provide relevant documents as well as NOC from the RTO, Dhule District and also have not got registered the vehicle in the name of the complainant with the DTO, Dibrugarh despite received full payment being the cost of the vehicle. Complainant visited the office of the O.P. No.1 several time for getting his vehicle registered with the DTO, Dibrugarh as the O.P. No.1 assured him to get register the vehicle and charged an additional amount of Rs.48,000/- for paper works but every time the O.P.s kept on lingering the matter on one pretext or the other. Complainant was/is unable to use the vehicle without registration despite the fact that he had purchased the same through the financer. Therefore the complainant was unable to deposit the EMIs for which the  O.P. No.3 and 4 filed an Arbitration Case No.03/SG143 of 2021 against the complainant and an ex-parte award has been passed on 18.08.2021 to pay a sum of Rs.10,56,986/-.
4. On the other hand  O.P. No.1 stated that the complainant wanted to purchase the demo vehicle, approached O.P. No.1 in the month of October 2017 and after taking demo of the vehicle, was satisfied on the quality of the demo vehicle itself, then one Mr. Pritom Gogoi, sales personal of O.P. No.2 i.e. Ve Commercial Vehicle Ltd. initiated to sale the vehicle and offered a cheaper rate of Rs.12,00,000/- compared to a new vehicle without disclosing anything about the said deal in brief to the sales Department of the O.P. No.1. As such complainant knowingly purchased the demo vehicle and also aware about the fact regarding registration of the vehicle in the name of “Akash Enterprise” at RTO, Dhule District. Under such circumstances contention of the complainant that he came to know only after delivery of the vehicle that it was a demo vehicle which cannot be accepted. The O.P. No.1 further submitted that complainant had requested Mr. Pritom Gogoi to arrange finance in excess so that they get something in return after paying the actual cost of the demo vehicle and without informing anything in details, Mr. Pritom Gogoi instructed one Mr. Dipak Mudoi, the than sales head of the O.P. No.1 to arrange finance from O.P. No.3 and 4 Cholamandalam Investment and finance company Ltd.
5. Submission of O.P. No.2 is that the vehicle in question was originally sold in Maharashtra and pursuant to the original owner of the said vehicle selling the same back to O.P. No.2, the O.P. No.2 sold the said vehicle to its dealer i.e. O.P. No.1 by way of asset sale invoice for Rs.12,00,000/- as the same was a used vehicle. Hence it is apparent that the said vehicle was a second hand vehicle as no tax invoice or Form-21 Sale Certificate was generated against the sale of the said vehicle in question to O.P.No.1. Once the vehicle was sold by O.P. No.2 to O.P. No.1, the role of O.P. No.2 towards the vehicle is ceased. And no role in facilitating the sale or for making any representation to a third Party/customer. Further the dealership of O.P. No.2 operates on principal to principal basis and there is no contract of agency between the dealer i.e. O.P. No.1 and  manufacturer i.e. O.P. No.2. Hence unless there is specific allegation or averment pertaining to the manufacturing defect of the vehicle the O.P. No.2 cannot be held accountable. And due to non-compliance by O.P. No.1 in transferring the registration of the said vehicle in question in the name of the complainant, O.P. No.2 is not liable jointly and severally.
6. Further the O.P. No.3 and 4 submitted that considering the application of the complainant O.P. No.3 and 4 had sanctioned loan amounting to Rs.16,75,603/- (Rupees sixteen lakhs seventy five thousand six hundred three) only vide loan Agreement No.XVFPDIB00002154498. Complainant was required to liquidate the loan in 55 equated monthly instalments of Rs.46,518/- each commencing from 28.11.2017 to 28.05.2022. But the complainant failed to make payments of the outstanding loan amount for which charges and interest got attracted from time to time and an amount of Rs.5,12,047.58/- as on 28^th April 2021 was due and payable by the complainant. The O.P. No.3 and 4 has sent notices asking the complainant to clear dues. As the complainant did not comply with the aforesaid notices, O.P. No.3 and 4 initiated appropriate proceedings against the complainant. The complainant is liable to liquidate the outstanding loan without any delay and the complainant cannot hide under the shadow of his grievances against the other O.P.s to evade his liability towards the proforma O.P. No. 3 and 4 and as such O.P. No.3 and 4 are not liable for unfair trade practice.
7. After considering the submission of all the O.P.s it is found that the complainant had purchased a vehicle named Eicher Dumper from the O.P No.1 after obtaining a loan from his banker i.e. the proforma O.P. No.4 on 31.10.2017 of Rs.16,75,603/- vide his loan Account No.XVFPDIB00002154498 on monthly instalment basis fixed at Rs.46,518/. After receipt of the aforesaid payment from the banker, the O.P. No.1 delivered an Eicher Dumper (Eicher Pro5016TEF10) having Engine No.E624CDGK111501, Chassis No. MC2T2ERCOGK000002, to the Complainant. Hence it is clear that the complainant is a consumer under the O.P. No.1. Coming to the alleged deficiency in service, it is admitted that the O.P. No.1 is the authorized dealer of the O.P. No.2 i.e. Ve Commercial Vehicles Ltd. Further also admitted by the O.P. No.1 and 2 that the vehicle purchased by the complainant was a demo vehicle which was previously sold to Akash Enterprise, District-Dhule and pursuant to the original owner of the said vehicle selling the same back to the O.P. No.2. Thereafter O.P. No.2 sold the vehicle to its dealer i.e. O.P. No.1 for Rs.12,00,000/- against which only asset sale invoice was generated on 26.12.2017 by the O.P. No.2. That being so, the O.P. No.1 is duty bound to disclose the actual fact to the complainant at the time of sale of the vehicle that the particular vehicle was a demo vehicle and also liable to provide the NOC and other relevant documents for registration of the vehicle in the name of the complainant. Complainant stated that since last 18^th months the said vehicle is lying in the parking campus as he was/is unable to use the vehicle without registration and insurance despite the fact that he had purchased the same through finance by availing loan of Rs.16,75,603/-. Rebutting the allegation of the O.P. No.1 it is submitted by the complainant that after taking delivery of the vehicle he was surprised to know that the said vehicle was already registered in the name of “Akash Enterprises” in Dhule District. As such non disclosure of condition (used car)  of the vehicle by the O.P. No.1 amounts to suppression of material facts. Further the complainant visited the office of the O.P. No.1 and raised his grievances and they assured him to get registered the vehicle with the DTO, Dibrugarh after procuring all relevant document along with NOC from the RTO, Dhule and charged an additional amount of Rs.48,000/- for paper works but  O.P.s have failed to provide the same till date. Regarding the contention raised by the O.P. No.1 in their written statement that after purchasing the vehicle complainant never contact the O.P. No.1 till March, 2020, it is seen that the O.P.s have failed to disprove the case of the complainant by examining their employee to prove the conversation made between their employee and the complainant and those facts are remained unchallenged. In this regard complainant  exhibited exhibit No. 2 and 3 and 23 where it appears that the complainant was in constant touch with the officials of O.P. No.1 and 2 by sending WhatsApp messages requesting to their officials to get registered his vehicle but they failed to do so. Further this Commission notices that the complainant had accepted delivery of the vehicle from O.P. No.1 without raising any kind of objection in writing at the relevant time and raised dispute only regarding non registration of the vehicle in his name. It is to be mentioned here that now a days the registration fee is taken from the customer by the seller of the vehicle for getting registered the vehicle and responsibility in this regard is also taken by the dealers of the vehicle for getting registered the vehicle of the customer with the concerned registration authority. So, certainly there is deficiency in services on the part of O.P. No.1 towards complainant and he has duped by the O.P.s and complainant has been deprived to use his vehicle for such a long period. Therefore, O.P. No.1 is deficient in service for non registration of the vehicle of the complainant and further also found negligent for not redressing his grievance till the filling of this complaint and for which the complainant has suffered mental agony and financial loss. Further complainant also alleged that O.P. No.1 has taken an additional amount of Rs.48,000/- from him for paper works. This has been denied by the O.P. No.1. On perusal of the complaint it is evident that the complainant has not mentioned the date on which he made that payment of Rs.48,000/-.If the complainant has paid Rs.48,000/- to the O.P. No.1 for paper works he should have collected receipt. But there is no corroborate evidence to support this fact of the complainant. So, this Commission is not able to grant any relief with respect to this amount.
8. So far as the liability of O.P. No.2 is concerned, it is relevant to mention that there is no specific allegation of manufacturing defect against O.P. No.2 by the complainant. The O.P. No.2 has taken a contention that transaction between it and O.P. No.1 was on principal to principal basis and as such it is not liable for the transactions between dealer and the customer. O.P. No.2 has referred judgement of Hon’ble Apex Court in Maruti Udyog Ltd vs Nagender Prasad Sinnha & anr. 2009(3) CLJ560 wherein held that the relationship between the dealer  and the manufacturer is principal to principal basis and not a principal to agent basis. Consequently, it is the responsibility of the dealer to sell the vehicle in question and the retailers failure to meet its sale responsibility constitutes a breach of agreement. Accordingly, we feel that O.P. No.2 is not liable for any deficiency or unfair trade practice. Regarding contention of the O.P. No.2 that the vehicle was purchase for a commercial purpose, however we found that there is nothing from the pleadings to deduce that purchase of vehicle was for any commercial use. No evidence is led by O.P. No.2 to prove that the vehicle was intended for commercial purposes and also used by the complainant for such purposes.
9. Regarding liability of the O.P. No.3 and 4 it is found that the complainant had availed a loan of Rs.16,75,603/- vide loan Account No.XVFPDIB00002154498 from O.P. No.3 and 4 payable in 55 equated monthly installments of Rs.46,518/- each commencing from 28.11.2017 to 28.05.2022. After taking the loan from the O.P. No.3 and 4 complainant is defaulted in making payments. The cheques of EMIs issued by the complainant have bounced. Hence the O.P. No.3 and 4 have preferred to initiate an arbitration proceeding against the complainant. It is also to be noted that role of financer is different than that of the role of dealer or the manufacturer. Different contract arrived at between the complainant and O.P. 1 and O.P. No.2 on one side and between the complainant and the O.P.No.3 and 4, the financer on the other side. Complainant cannot shrink from the liability of paying loan installments, even if  any alleged dispute is going on in respect of the vehicle in question.

So, virtually grievance against the financer i.e. O.P.No.3 and 4 is not there.   

10. Keeping in view of above discussion O.P. No.1 namely M/S Gargya Motors Pvt. Ltd. is directed :

1. to procure all the relevant documents of the vehicle along with the NOC from RTO, Dhule District and get the vehicle registered in the name of the complainant with the DTO, Dibrugarh at their own expenses/cost within a period of 30 days from the date of receipt of copy of this judgement and order, failing which O.P. No.1 is liable to pay penalty of Rs.200/- per day from the date of receipt of this judgement till supply of the documents.
2. to pay to the complainant compensation of Rs.10,00,000/- (Rupees ten lacs)only on account of harassment, mental agony and financial loss caused to the complainant due to negligent and deficient service on the part of O.P. No.1 
3. to pay of Rs.30,000/- to the complainant for cost of litigation.

 

 All the awarded amounts be deposited into the credit of this Commission by Opposite Party No.1 within 30(thirty) days from the date of receipt of this judgment and order.

           Send copy of this judgement and order to the Opposite Party No.1 for compliance. Complainant is to take step.

The instant C.C. No. 03/2021 is accordingly disposed of on contest.

Next date fixed 17.02.2024 for compliance.