FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU , Member

            The case of the complainant in a capsulated form is that , being approached by the authorized agents of the OP2 the complainant booked a brand new model EON D-Lite + (M) S. Silver  bearing Engine No. AHM514271 and Chassis No. ALHM558102 of the OP1 for a total consideration of Rs.3,57,700/- on 04.01.2018 and was assured on behalf of the OPs 1 & 2 Free accessories such as ORVM painted bumpers , Boot tray , Foot Mat , Mud Guard , Steering Cover , Reverse Parking Sensor and extended warranty till 3^rd , 4^th and 5^th year. The said car was hypothecated from ICICI bank on 17.01.2018and a total sum of Rs.3,02,176 was disbursed by the said Bank in favour of the OP2. Thereafter the complainant paid Rs.30,464/-  on 31.01.2018, Rs.4,920/- on 13.02.2018 and Rs.9,674/- on 05.02.2018 as an advance amount of installment to the OP2. On 31.01.2018 the complainant received the said car in poor condition and without the bumper painted. The OP2 provided an invoice dated 31.01.2018 amounting to Rs.2,69,399/- pertaining to Ex-showroom price of the car and two invoices dated 30.01.2018 amounting to Rs.1,920/- and 31.01.2018 amounting to Rs.42,440/- charged by the public Vehicles Department , Kolkata, Government of West Bengal  . On the same date the complainant received a debit note amounting to Rs.46,356/- from the OP2and the breakup of the said debit note reveals several discrepancies by the OP2 inflating the invoices and charging in excess of the statutory payments made by the complainant to the PVD. Apart from this an amount of Rs.3,000/- has been extorted under the said debit note as handling and /or logistic charge. Moreover, there is no provision in the Motor Vehicles Act, 1988 to charge overhead charges such as handling and/or logistics charges . The OP cannot charge handling charges unless they are authorized under the provisions of law. The complainant sent emails to the OP2 raising objections  regarding the disputes and in reply the OP2handed over two purported invoices dated 31.01.2018 amounting to rs.9,000/- and 12.02.2018 amounting to Rs.10,275/- showing the said amounts charged towards accessories provide in the Car which OP2 had represented to be given to the complainant free of cost. OP2 assured the complainant to refund the excess amount of Rs.74/- and Rs.340/- charged under Debit Note dated 31.01.2018 vide email dated 31.01.2018 and admits that an amount of Rs.6,985/- is kept for extended warranty of the Car vide email dated 02.03.2018.The complainant requested the OP2 vide email dated 03.03.2018 to provide the true and correct breakup of the amount incurred towards the purchase of the said Car . OP2 provided an invoice vide email dated 23.03.2018 amounting to Rs.9,739/-  showing the amount charged towards the accessories provided in the Car . On March 2018 while the complainant was riding the said new Car, the breaks turned out to be defective ; immediately the complainant contacted to OP2 regarding the defect in the Car and to return the same . OP2 offered to repair the same free of cost. The complainant had addressed its grievances to the OP2 through Advocate’s letter dated 17.08.2018 which is remain unanswered. Having no other option the came before this Ld. Forum to get relief/reliefs as prayed for.

The instant consumer complaint is resisted by the OPs 2 & 3 by filing WV contending inter alia that the petition of complaint is false , frivolous and  barred by the principles of estoppel , waiver and acquiescence, bad in law for  suppressing and concealing the material facts and is not maintainable for non - joinder for necessary parties. The case of the OPs 2 &3 is that the complainant being interested to purchase the said car the complainant approached to Ops to give a quotation regarding the total price of the said car and being satisfied with the quotation the complainant has agreed to purchase the car from the OPs at a price of Rs.3,57,700/-. The complainant is a registered partnership firm  and engaged in a business of bearings, sockets and accessories and as such for the purpose of communication of its distributor , stockiest , agent and sellers  and also to visit its client has purchased the said car solely for development of its business. Neither OPs nor any of their agent never commit or assure the complainant to provide the additional features as mentioned in the complaint petition as complementary basis, however as the complainant preferred car insurance policy from the outside therefore OPs could not provide  the extended warranty for the said car. Soon after receiving the desired model of the complainant from the OP1 the Ops 2 &3sent the said car for additional settings  as per the demand of the complainant  and immediately  after full settings of the extra features  and after completion of registration  to the PVD Kolkata ,West Bengal on 30.01.2018  and paying all the  necessary charges for registration of the car including road tax  the said car was delivered to the complainant on 31.01.2018. The certificate of registration of the said car was made on 07.02.2018 .The admitted fact is that the complainant is entitled to get refund of Rs.74/- towards  HSRP Number Plate which actual cost is Rs.521/- and it is also admitted that registration charge was received tentatively  was Rs.940/- but as per PVD receipt is Rs.600/- , so the complainant is entitled to get refund Rs.340/- in this account but the smart card charges Rs.200/- as per the PVD receipts but there are printing charges of the smart card is Rs.140/- , therefore the complainant is not entitled to get refund of Rs.140/- from the printing of smart card. The Handling charges of Rs.3000/- has been charged as per directive of the OP1 for the purpose of charges of driver as well as fuel for production the said car for its parking place to PVD, West Bengal. OPs 2 & 3 did not charged any extra money from the complainant and they still ready to refund the said amount of Rs.414/- to the complainant.  OPs 2 & 3 never made any assurance or offer to give the complainant accessories at free of cost, therefore the amounting of Rs.9000/- and Rs.10,275/- charged by the OPs 2 & 3 for additional accessories was fixed in the said car. Further OPs 2 & 3 submitted that the complainant made out and out false statement that Ops 2 & 3 committed to affix fast tag  as well as reverse parking sensor free of cost .The complainant insured the car from outside therefore the amount which  was charged for extended warranty  for 4^thand 5^th year are not applicable therefore the complainant is entitled to get refund of the said amount and OPs 2 & 3 are ready to refund the said money .OPs 2 & 3  explained all the queries made by the complainant through emails and also provided all invoices to the complainant explaining the actual costs of the said car . There is no defect in the said car in any manner whatsoever , therefore the question of return the said car cannot arise at all and OPs 2 and 3 attended the complaint of the complainant and repair the said car at free of cost and the complainant has accepted the repairing of the said car at free of cost .  OPs 2 & 3 have provided perfect and genuine services to the complainant without any fault and default therefore the complainant has no right to raise any complaint against the OPs 2 & 3.

OP1 did not resist the consumer complaint despite service of notice. No WV is filed by the OP1 within statutory period. Thus, the case runs ex parte hearing against OP1.

Ld. Advocate for the complainant has advanced the case by adducing relevant evidences and documents. OPs 2, & 3 have filed WV supported by an affidavit. The complainant replied to the questionnaire set forth by the adversary of the OPs 2 & 4 . But the OPs 2, 3 & 4 failed to reply the questionnaire set forth by the adversary of the complainant. Both parties have filed BNAs. We have gone through all the evidences and documents on record and gave a thoughtful consideration to the entire fact.

The admitted fact is that , the complainant purchased a Eon D-Lite + (M)  S. Silver car from the OPs at total consideration of Rs.3,57,700/- . Fact also remains that the said car was hypothecated from ICICI bank on 17.01.2018 and a total sum of Rs.3,02,176/- was disbursed from ICICI Bank in favour of the OP2 and the complainant had taken a Private Car Insurance Policy from Royal Sundaram General Insurance Company Private Limited on 18.01.2018 and a total sum of Rs.12,100/- was charged towards premium under the said policy . There is also no doubt that the complainant had paid Rs.30,464/- on 31.01.2018 and  on 13.02.2018 Rs.4,920/- to the OP2 .Ld. Advocate for the complainant alleged that on the date of booking of the said car i.e. on 04.01.2018 the complainant was offered on behalf of the OP2free accessories such as  ORVM painted , boot tray , foot mat , mud guard , steering cover , reverse parking sensor . No documentary evidence is found in respect of those complementary offer as submitted by the complainant. Therefore, this submission has no value in the eye of law.

Ld. Advocate for the OPs 2 & 3 accepted by submitting that as per debit note some marginal differences are found i.e. as per debit note Rs.940/- has been charged for registration , but actually the PVD has charged Rs.600/- for registration , therefore the complainant is entitled to get refund of Rs.340/- in this account  and for smart Card the PVD has charged  Rs.200/- but as per debit note the OP2 has charged Rs.340/- , therefore the complainant is entitled to get refund Rs.140/- from the OP2 . As per debit note The OP2 has charged for HRSP number plate Rs.575/- , but as per the complainant PVD has charged for the HRSP number plate Rs.521/- which means Rs.534/- has been charged extra. Therefore  In view of the aforesaid submission by the ld. Advocate of the OPs 2 & 3 admittedly the complainant is entitled to get refund of Rs.534/- . On the other hand photocopy of the Debit Note issued by the OP2 goes to show that Rs.3000/- has been charged by the OP2 from the complainant as Handling Charge.Ld. Advocate for the complainant cited an observation ofHon’ble SCDRC , Kerala  in the case of Platino Classic Motors (India) Pvt. Limited Vs. Thomas Varghese Oommen and Ors wherein Hon’ble SCDRC , Kerala mentioned :

“The Delhi High Court in C. Rajaram , Advocate & another Vs. GNCT of Delhi & Others , MANU/DE/1754/2012 : 19C (2012) DLT 569 (DB) : III (2012) ACC 136 (DB) , (High Court of Delhi) (WP © No 8508/2011)  has categorically held that dealers are not entitled to collect such charges . That being  so collection of the handling charges by the first opposite party from the complainant is illegal which amounts to deficiency of service and therefore is bound to refund the same.”

In view of the above observation it is found that the OP2 has collected Rs.3000/- as Handling Charge from the complainant in illegal manner. Annexure L of the complaint petition reveals the quote of Rs.3,57,700/- was inclusive of insurance, but the  insurance was done bythe complainant. Annexure M shows that OP2 & 3 furnished the breakup of Rs,3,42,014 through mail dated 02.03.2018 which is excluding the insurance amount  of Rs.15,686/-. It is found from the Annexure N furnished by the complainant shows that OP2 has admitted that an amount of Rs.6985/- is kept for the extended warrantyand an amount of Rs.9674/- was paid by the complainant as 3^rd Payment .The complainant paid an amount of Rs.3,47,234/- in respect of the Car in dispute :

1^st Payment                      Rs.30464.00

Bank Finance      Rs.302176.00

3^rd Payment                      Rs.   9674.00

Last Payment                   Rs.4920.00

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Rs.347234.00

Ld. Advocate for the complainant alleged that the amount of Bank Finance is Rs.3,15,000/-. Denying this allegation Ld. Advocate for the OPs 2 & 3 submitted that total amount of Bank finance is Rs.3,02,176/- . Annexure C of the complaint petition second this submission. It is found from the abovementioned Annexure that Total Finance Amount is Rs.3,15,000/- and TotalDisbursement Amount is Rs.3,02,176/- . It is also alleged by the complainant that OP2 has provided only five legitimate invoices, which are Ex-showroom invoice of Rs.2,69,399/- , Two copy PVD ,Kolkata ,WB receipt of Rs.42,440/- and Rs.1,920/- . But on perusal of documents on record it is found that the OP2 has provided accessories bills of Rs.9,000/- and Rs.10,275/- to the complainant with office stamp and signature on behalf of the OP2 .

In light of the above discussion it is observed that OPs have charged following excess amount from the complainant :

PVD , Kolkata ,WB charged   OP2 chargedExcess Amount

RS.600.00 (Registration Fee)              Rs.940.00                  Rs.340.00

Rs.340.00 (Smart Card)                       Rs.200.00                  Rs.140.00

Rs.575.00 (HRSP number plate)         Rs.521.00                  Rs.54.00

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Rs.1515.00                                       Rs.1661.00                Rs.534.00

In addition to this OP2 has charged Rs.3000 as Handling Charge which is not legal  and kept an amount of Rs.6985/- for 4^th and 5^thyear warranty. As the complainant took the insurance policy from outside, OP2 admitted that the complainant cannot avail of said extended warranty.  Despite that OPs kept the aforesaid amount for 4^th and 5^th year extended warranty .This gesture on the part of the OPs appears as unfair trade practice to us. Therefore we are of the opinion that the complainant is entitled to get refund of Rs.10.519/- (Rs.534+ Rs.3000 + Rs.6985) in total.

As such, the complaint case succeeds in part on merit.

Hence,

ORDERED

That the case be and the same is allowed in part on contest against the OPs 2 & 3  and on ex parte against the OP1 with cost of Rs.10,000/-.

OPsare jointly and severally directed to refund Rs.10,519/- to the complainant along with litigation cost within 45 days from the date of this order.

OPs are further jointly and severally directed to pay Rs.50,000/- to the complainants as compensation for causing harassment, mental pain and agony.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.