Haryana

Yamunanagar

CC/240/2013

Surender Singh S/o Daljeet Singh - Complainant(s)

Versus

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

M.C.Saini

13 Jun 2016

ORDER

 

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM YAMUNA NAGAR JAGADHRI

 

                                                                                    Complaint No. 240 of 2013.

                                                                                    Date of Institution: 22.03.2013

                                                                                    Date of Decision:14.06.2016

Surender Singh aged about 54 years son of Sh. Daljeet Singh R/o village Gadhauli, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                   .                                                                                                                                                                 ..Complainant

                               Versus

 

1. KBS Motors Pvt. Ltd. SCO No.105, Sector-17, HUDA, Jagadhri, District Yamuna Nagar through its Branch Manager.
2. KBS Motors Pvt. Ltd. Authorized Dealer, Village-Tepla, Ambala Jagadhri Road, Saha, District Ambala, Haryana through its Manager.
3. Mahindra & Mahindra Ltd. Nashik Plant, 89, M.I.D.C. Satpur, Nashik-422007 through its M.D./Chairman.

                                                                                                                                                                   ..Respondents.

 

BEFORE:         SH. ASHOK KUMAR GARG …………….    PRESIDENT

                        SH. S.C. SHARMA  …………………………MEMBER  

 

Present: Sh. M.C.Saini, Advocate, counsel for complainant.

              Sh. Ritesh Goel, Advocate, counsel for respondents No.1 & 2.

              Sh. V.K.Arora, Advocate, counsel for respondent No.3. 

 

ORDER   

1.                     The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986. 

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant wanted to purchase a Mahindra Quanto vehicle manufactured by Mahindra & Mahindra Ltd. i.e. OP No.3 and for this purpose the complainant contacted the OP No.1 at Jagadhri who told that vehicle in question is not available in this branch and asked the complainant that he has to visit the dealership office at village Tepla, Saha, District Ambala i.e. OP No.2. On this, complainant visited the OP No.2 on 07.01.2013 and purchased Mahindra Quanto C8 BSIV 2WD R.H.D 7SF ABAG DW Model 2013 vide bill No. INV13A000718 dated 07.01.2013 for an amount of Rs. 7,76,064/- and paid Rs. 7,17,000/- as cash vide receipt No.1925 dated 07.01.2013 and paid Rs. 85,000/- vide receipt No. 1927 dated 07.01.2013 through cheque No. 000013 dated  07.01.2013. In this way the complainant has paid total amount of Rs. 8,02,000/- to OP No.2 and Op No.2 withheld the bills on 07.01.2013 by saying that when the cheque delivered by the complainant encashed then the bill of the vehicle shall be issued to him, but the vehicle in question was delivered to the complainant on the same day i.e. 07.01.2013. The complainant asked the OP No.2 that they have charged excess amount of Rs. 25936/- then the quoted amount and requested for refund the same. The complainant on 08.01.2013 visited the office of OP No.2 for accessories and on that day the complainant has got fitted some accessories for an amount of Rs. 13499/- and paid cash to the OP No.2 vide CSR No. 13A000205 dated 08.01.2013. On that day also the complainant requested the Op No.2 to refund the excess amount of Rs. 25,936/- paid by the complainant but Op No.2did not pay any heed. When the complainant again contacted the Op No.2 for bills and other papers and only then the OP No.2 handed over the bills and other papers to the complainant on 21.01.2013 but the amount of Rs. 25,936/- charged in excess was not refunded, inspite of so many requests. Thereafter, the complainant got registered his vehicle with the Registering Authority, Jagadhri on 04.02.2013 and after going through the registration certificate issued by the Registering Authority, Jagadhri complainant  was astonished to know that in the registration certificate model of the vehicle has been written as year of manufacturing 12-2012, then the complainant immediately contacted the Registering Authority, Jagadhri, on which the office bearer checked the original bill in which the year of manufacturing was shown as 12-2012 instead of 2013. After that, complainant visited the OP No.2 and asked the abovesaid fact and also requested for refund of excess amount. Further, one day when the complainant was plying his vehicle, a tyre of the vehicle has been got punctured then the complainant again astonished to know that the stipny tyre given by the OP No.2 is not tubeless tyre as promised by OPs however all other four tyres were tubeless. Lastly as the OP No.2 has wrongly and illegally charged the excess amount of Rs. 25,936/- as well as sold the vehicle having model December, 2012 instead of January, 2013 to the complainant and supplied one non tubeless tyre which constitute unfair trade practice on the part of OPs. So, the complainant is entitled to get amount of Rs. 1,81,148/- ( 155212/- as 20% depreciation for one year old vehicle and Rs. 25936/- excess amount charged by the Ops) alongwith interest , one tubeless tyre and further  compensation as well as litigation expenses.

3.                     Upon notice, Ops appeared and filed their written statement separately. Ops No.1 & 2 filed its written statement jointly by taking some preliminary objections such as complaint is legally not maintainable; complainant is estopped from filing the present complaint by his own act and conduct; there exist no relationship of consumer and supplier between the parties; complainant has no locus standi to file the present complaint; no cause of action arose to the complainant; complainant has not come to this Forum with clean hands; complaint is absolutely false, frivolous and baseless and liable to be dismissed with special costs and on merit it has been admitted that the vehicle in question was sold by the OP No.2 to the complainant against the payment of Rs. 8,02,000/- i.e. Rs. 7,76,064/- as sale price of the vehicle and Rs. 3000/- as logistic charges plus Rs. 1000/- for temporary registration number, Rs. 22335/- as insurance charges. It has been further mentioned that insurance amount of Rs. 22335/- was paid by the Op No.2 to the TATA AIG vide their cheque No. 059060 and the complainant never made the payment of cash amount Rs. 22355/- separately as alleged by the complainant in his complaint. It has been further admitted that complainant got fitted the accessories for an amount of Rs. 13499/- and paid cash to OP No.2. Further it has also been stated that an amount of Rs. 10,000/- has also been given to the complainant as discount in the shape of exchange bonus through cheque No. 035342 on dated 20.2.2013. The manufacturing year of the said vehicle was 2013 and lastly prayed for dismissal of complaint as there is no deficiency in service or unfair trade practice on the part of Ops No.1 & 2.  

4.                     OP No.3 filed its written statement separately by taking some preliminary objections such as complaint qua OP No.3 is not maintainable; there is no relationship whatsoever between the complainant and OP No.3 and the complainant has no locus standi to file and maintain the present complaint against OP No.3; relationship between the company and its dealer (OP No. 1& 2) are on principal to principal basis. The dealers place bulk order for the vehicles and Op No.3 supplies vehicle in large numbers. The OP No.3 is not aware about the ultimate buyer of the vehicle at the time of purchase. The OP No.3 has never had any transaction with the complainant and therefore, there is no privity of contract between the complainant and OP No.3; complaint is bad for non-joinder and mis-joinder of necessary parties; complainant purchased the vehicle for commercial purpose, so, does not fall within the definition of consumer and on merit reiterated the stand taken in the preliminary objections. Moreover, it is submitted that, if any, booking and payment is made that has been made to the dealer not to the company. So, the Op No.3 is not responsible for any act and conduct or commission or any act of any its dealer in any manner whatsoever. It has been further mentioned that sale of vehicle is entirely a prerogative of the dealer and company plays no role in it. Further it has been stated that all the tyres provided to the vehicle of the complainant, including stipny tyre were tubeless and the tyre brought by the complainant to our dealer i.e. OP No.2 in this case was not of a make provided by the company. Rest contents of the complaint were denied being wrong and incorrect. Lastly, prayed for dismissal of the complaint.

5.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents Annexure C-1 to C-14 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for the Ops failed to adduce any evidence, hence their evidence was closed by court order on 20.10.2015.

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

8.                     It is not disputed that complainant purchased Mahindra Quanto vehicle from Op No.2 manufactured by Mahindra & Mahindra OP No.3 which is evident from purchase bill of Rs. 7,76,064/- (Annexure C-1) and further from the sale certificate dated 07.01.2013 (Annexure C-2). It is also not disputed that complainant got fitted the accessories to the tune of Rs. 13499/- from the OP No.2 which is evident from Bill Annexure C-3. The version of the complainant that OP No.2 charged of Rs. 25936/- in excess from the complainant as the OP No.2 had charged Rs. 7,17,000/- in cash vide receipt No.1925 and Rs. 85000/- vide receipt No. 1927 through cheque i.e. total Rs. 8,02,000/- instead of Rs. 7,76,064/- is not tenable as the Op No.2 has specifically mentioned in his reply that Op No.2 has charged Rs. 7,76,064/- as sale price of the vehicle in question and Rs. 3000/- has been charged as logistic charges and Rs. 1000/- on account of temporary registration charges and Rs. 22335/- on account of insurance charges i.e. a total amount of Rs. 8,02,000/- has been charged by OP No.2. So, we are of the considered view that no excess amount has been charged by OP No.2 from the complainant and the plea of the complainant that he has paid cash on account of the insurance directly is not tenable as the Op No.2 has specifically mentioned that amount of Insurance Rs. 22355/- has been paid by them to TATA AIG through cheque No. 059060 whereas no cogent evidence has been filed by the complainant to prove the same. Further the second contention of the complainant that one stipny tyre was not tubeless tyre is also not tenable as no cogent evidence has been filed by the complainant to prove his version in this respect.

9.                     Now only main question remains that whether the vehicle in question i.e. Mahindra Quanto was sold by OP No.2 having manufacturing year December, 2012 or 2013 and on this account complainant has suffered any financial loss or not? Learned counsel for the complainant argued at length that OP No.2 sold make December, 2012 vehicle in question to the complainant which is evident from the Registration Certificate (Annexure C-7) and further from sale certificate (Annexure C-2) wherein manufacturing month and year has been shown as 12-2012 whereas the complainant purchased the vehicle in question on 07.01.2013 from the Op No.2 and paid Rs. 8,02,000/- on account of purchase of new vehicle make January, 2013. Learned counsel for the complainant further argued that when the complainant purchased the vehicle on 7^th January 2013 then the OP No.2 dealer was duty bound to deliver the new vehicle make January, 2013 instead of Make December, 2012 and due to this complainant will have suffered financial loss to the tune of 20% i.e. Rs. 1,55,212/- as per insurance rules. Lastly prayed for acceptance of complaint directing the OP No.2 to pay a sum of Rs. 1,55,212/- loss which will be suffered on account of selling old model of vehicle in question alongwith compensation as well as litigation expenses. In support of his version, learned counsel for the complainant referred the case law titled as M/s Dada Motors Ltd. Versus Suresh Kumar, 2012(1) CPR page 279 (NC) wherein it has been held that Supply of Car of old model- Lump sum compensation of Rs. 1,00,000/- awarded by State Commission in appeal- Fora below have returned concurrent finding of deficiency in service on the part of petitioner while selling the car- State Commission has already considered all relevant documents and accordingly granted relief in favour of petitioner by modifying order of District Forum- Revision petition dismissed.  

10.                   Learned counsel for the complainant further argued that this Forum have territorial jurisdiction to try and decide the present complaint as the complainant was asked to take delivery from OP No.2 who is sister concern of Op No.1 and referred the case law titled as Tata Coffee Ltd. versus Sri N. Sreenivasalu, 2014(2) CLT page 93 (NC).

11.                   On the other hand, counsel for the Ops No.1 & 2  vehemently argued at length that there is no deficiency in service or unfair trade practice on the part of Ops and draw our attention towards invoice/bill Annexure C-1 vide which the complainant purchased the vehicle in question from Op No.2 on 07.01.2013 and also draw our attention towards sale certificate (Annexure C-2) wherein it has been mentioned that the vehicle in question was manufactured in the month and year 12-2012 and the same was sold in the first week of January 2013 i.e. 07.01.2013. So, it cannot be said that the Op No.2 has sold the vehicle in question after one year.  Learned counsel for Ops No.1 & 2 further argued that as neither the complainant has sold the vehicle in question to any third party nor the manufacturing company as well as dealer has reduced the price of the vehicle in question in the year 2013 instead of 2012. So, the version of the complainant that he will suffer financial loss due to old model of the vehicle in question is totally concocted one. Lastly, prayed for dismissal of complaint as there is no deficiency in service or unfair trade practice on the part of OPs.

12.                   On the other hand, learned counsel for Op No.3 argued that the relationship of company and its dealers OP No.1 & 2 are on principle to principle basis.  Dealers placed bulk orders of vehicles and OP No.3 supplies vehicle in large numbers. OP No.3 is not aware about the ultimate buyer of the vehicle at the time of purchase.  Op No.3 is never had any transaction with the complainant and therefore, there is no privity of contract between the complainant and OP No.3 and lastly prayed for dismissal of complaint qua OP No.3. 

13.                   Admittedly, the complainant purchased Mahindra Quanto manufactured by OP No.3 i.e. Mahindra & Mahindra Ltd. through OP No.1 & 2 on 07.01.2013.  The factory of the manufacturer is situated at Nashik.  There is no dispute that the vehicle delivered was a brand new one in the sense that it was not used by another customer.  Complainant has also not alleged that the vehicle suffered any defect. The only grievance is that when the registration book was received, it was revealed that the vehicle was manufactured during December-2012 of previous year.  So, case is filed on the assumption that there is change in model on 31^st day of December any year.  The said model i.e. Mahindra Quanto is never manufactured with reference to the calendar year.  It is in the above background, the OP has contended that any vehicle manufactured at Nasik would take some days to reach to dealer and even after the vehicle is delivered at showroom it would take further some days for checkup and actual delivery of the vehicle.  So, during the January of any year only vehicle manufactured during December of the previous year could be delivered to the customer.  It is pertinent to notice that a vehicle is never registered with reference to the year of manufacture.  It is true that from the engine number and chasis number of the vehicle, the month of manufacture could be deciphered and the month and year of manufacture would be shown in the RC book but it does not ipso facto means that the complainant has purchased a vehicle manufactured in a particular month or year.  Purchase invoice is with reference to the model of the vehicle nor with the month and year. Generally it is assumed that when the vehicles manufactured in a particular year remains unsold, they are sold in the following year at a very heavy discount.  But no such practice is proved to be prevalent in the sale of cars, it may rarely happen when the manufacturer stops production of a particular model that the vehicles remaining unsold may be sold at a premium but a particular model is never produced with reference to calendar year.  There is also no basis of assumption that Ops no.1 & 2 charged the price prevailing in the year 2012.  Prices of the vehicle are charged with previous open announcement and not necessarily at the end of the calendar year.  Same view has been held in case titled as M/s Deedi Motors Pvt. Ltd. Vs. Smt. Aneetha Beegum reported in 2015 (4) CLT, P.419 by the State Commission, Kerala.

14.                   In the present complaint, from the perusal of documents i.e Copy of Registration Certificate (Annexure C-7) and copy of sale certificate (Annexure C-2), it is duly proved that vehicle in question was sold by the OPs No. 1 & 2 on 07.01.2013 in which manufacturing month and year has been shown as December 2012. Further, it is not the version of the Ops No.1 & 2 that Registering Authority had wrongly mentioned manufacturing month and year of the vehicle in question as December, 2012 instead of January, 2013 in the registration certificate. The facts of the present complaint are not different from the facts mentioned in the citations titled as M/s Dada Motors Ltd. Versus Suresh Kumar, (Supra) and M/s Deedi Motors Pvt. Ltd. Vs. Smt. Aneetha Beegum (supra). However, in the interest of justice, we are of the considered view that complainant may suffer of some financial loss due to model of the vehicle in question. Although this fact is not proved on the file as no cogent evidence has been placed on file by the complainant that he had actually suffered any loss. Even then he is entitled to get some relief.   

15.                   Resultantly, we partly allow the complaint of complainant and direct the OPs No.1 & 2 to pay a sum of Rs. 15,000/- as compensation on account of expected financial loss due to model of the vehicle in question and further to pay a sum of Rs. 5000/- as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 14.06.2016.

 

                                                                                    ( ASHOK KUMAR GARG)

                                                                                      PRESIDENT

 

 

                                                                       

                                                                                    (  S.C. SHARMA)

                                                                                      MEMBER