BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.384 of 2017

Date of Instt. 11.10.2017

Date of Decision: 09.03.2021

Sh.Amandeep Singh aged 24 years S/o Sh.Waryam Chand, R/o Mohan Bhandari, Chetan Pura, Amritsar.

..........Complainant

Versus

1. Kosmo Vehicle Private Limited, Near Delhi Public School, G.T. Road, Jalandhar through its Managing Director.

2. Tata Motors Limited, Bombay House, 24, Homi Mody Street, Fort, Mumbai – 400001 through its Managing Director.

3. Bharti Axa General Insurance Company Limited, Unit No. SF-2, 2^nd Floor, Eminent Mall, Lajpat Nagar, Jalandhar through its Branch Manager.

4. ICICI Bank Limited, Adarsh Nagar, Jalandhar through its Branch Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:

Sh.Kuljit Singh, President

Smt. Jyotsna, Member

COUNSEL FOR THE PARTIES:

For Complainant : Sh.Inderjit Singh Bhatia

For OP-1 : Sh. Rajat Chopra, Advocate

For OP-2 : Sh.V. K. Atri, Advocate

For OP-3 : Sh.A. K. Gandhi, Advocate

For OP-4 : Sh.Y. V. Rishi, Advocate

Order

Kuljit Singh,President

1. The instant complaint has been filed by the complainant, wherein the complainant has alleged that he purchased a brand new Tata-Tiago (Petrol) XM Revotron Car on 09.03.2017 from the OP-1 which is manufactured by OP-2, insured by OP-3 and financed by OP-4. The OP-1 sold tata Tiago XM car to the complainant model 2017 bearing registration No.PB02DD1650 to complainant and delivered the vehicle on 09.03.2017 with total cost of Rs.3,98,525/- assuring the complainant that the vehicle being delivered was a brand new vehicle. The complainant paid a sum of Rs.1,02,700/- by cash vide receipt dated 09.03.2017 and Rs.30,000/- vide cheque No.010684 dated 09.03.2017 against receipt No.6493 dated 09.03.2017 being margin money. The balance amount was financed by OP-4. The OP-1 issued Insurance policy which valid from 09.03.2017 to 08.03.2018 on premium of Rs.16,121/-. Right from the day of purchase, the vehicle is giving trouble while on road. There have been frequent breakdowns all of sudden while the car is running on the road. The complainant lodged the complaints with OP-1 and took the vehicle for inspection and repairs on 11.05.2017, 06.06.2017, 31.07.2017 and 24.08.2017. The staff of OP-1 kept on putting off the complainant that there was no defect in engine of car but he was suffering hardship due to frequent breakdown of engine of vehicle. He could not take the vehicle to any other workshop for inspection due to restrictions of warranty. On 09.09.2017, the vehicle was hit from behind by some unknown vehicle while it was parked outside Tagore Hospital Jalandhar. He took the vehicle to workshop for repairs. The workshop staff refused to repair the vehicle on insurance claim and told that it would be paid repairs as the car had been purchased on 09.03.2017. The complainant showed the insurance policy proposal form dated 09.03.2017 to official of OP-1 and was shocked to learn that proposal form was fake. He lodged a verbal protest with OP-1 as proposal form had been issued by OP-1 at the time of sale of car to complainant. On enquiry, the complainant has revealed that OP-1 has cheated the complainant and has delivered second hand car to complainant for the price of brand new car. There is technical defect in the engine of car due to which the engine breaks down frequent. OP-1 also guilty of issuing fake and bogus insurance policy proposal form representing that insurance was valid from 09.03.2017 to 08.03.2018, whereas actual policy has been issued on 14.03.2017 by OP-3. The staff of OP-1 offered to change the date of delivery of vehicle in their record to match the same with date of insurance policy to make the vehicle eligible for insurance claim but the complainant refused to be party to the fraudulent practice request the OP-1 to arrange replacement of vehicle. In the record of OP-1, the name of insurance company is sometimes shown as Birla Sunlife Insurance, sometimes national Insurance Co., sometime Bajaj Allianz which shows the wrong and casual maintenance of the record of OP-1. The vehicle is liable to be exchanged or the complainant is entitled for refund of price of vehicle alongwith damages to the tune of Rs.1,00,000/-. Complainant also got served a legal notice dated 13.09.2017 calling upon OP-1 to replace the vehicle in dispute. Lastly prayer has been made that OP No.1&2 be directed to replace the car sold to complainant with brand new car or to refund the price of car received from complainant. Rs.1,00,000/- claimed as damages from Op No.1&2 for harassment and mental agony.

2. Upon notice Op No.1&2 has failed to appear and ultimately, proceeded against ex parte vide order dated 20.11.2017. Thereafter, OP No.2 appeared through counsel incompliance of order dated 10.01.2018 passed by Hon’ble State Commission and filed written reply and contested the complaint by taking preliminary objections that complaint is without any cause of action against answering OP. In the complaint, complainant nowhere alleged any manufacturing defect in the vehicle in question nor has pleaded any fact, which can constitute deficiency in service against answering OP. Sine, both the essentials ingredient of consumer complaint is missing against answering OP. The relationship between answering with OP-1 was on principal to principal basis; complaint is bad for mis-joinder of party. The answering OP being a manufacturer of vehicle in question, has nothing to do with the present controversy. The entire sale transaction has been done between the complainant and OP-2, thus there arose no question to implead this answering OP as a necessary party in present dispute; complainant has not approached to this Forum with clean hands. The complainant has failed to disclose the fact that the vehicle was brought for accidental repairs on 2 occasions. The vehicle was brought 6 times at the authorized workshop of answering OP, out of which 3 times the vehicle was brought for schedule service, 2 times for accidental repairs and 1 time with complaint of door lock problem. The complainant did not disclose the aforesaid fact to this forum. On merits, purchase of vehicle is admitted. As per record, the vehicle was brought on 11.05.2017 for availing second free service and no complaint was reported. Subsequently, the vehicle was brought on 06.06.2017, at workshop of OP-1 for doors lock problem. At that time, body control module was replaced under warranty. On 31.07.2017, the vehicle was brought for accidental repairs. At that time, rear bumper was touch-up and both rear view mirror was painted. Thereafter, the vehicle was brought for scheduled service at 14800 KMs. At that time, the complainant reported the complaint of windshield wipers not working, brakes insufficient and doors lock problems. At the time, scheduled service was carried out, wheel alignment was done, wiper blade was replaced and door links adjusted. The complainant is leveling false allegation of defects in the engine of car and breakdown of the engine. The complainant could bring the vehicle in question to any of authorized worship of this Answering OP in India. The answering OP has nothing to do with settlement of insurance claim of vehicle in question. The vehicle has manufactured in January 2017, which is clear from registration certificate of vehicle in question. No defective vehicle sold to complainant. The complainant has not adduced any documentary evidence/ expert’s report in support of his averments. Legal notice not received from complainant. Rest of allegations of complainant denied and prayed for dismissal of complaint.

3. OP-3 has filed written reply and contested the complaint by taking preliminary objections that complaint is false and vexatious; complaint is not maintainable. The insurance policy bearing No.FPV/S5654566/P3/03/ 005298 pertaining to vehicle in disputewas issued online on request of OP-1 by OP-3 for period of 15.03.2017 to 14.03.2017 by payment of premium amount of Rs.16,118.53/- made by OP-1 on 14.03.2017; complainant has not come to this Commission with clean hands; complainant is estopped by his own acts and conducts from filing the present complaint; no cause of action has been arose against answering OP; complainant is not consumer within definition of Section 2(d) of Consumer Protection Act; complaint is bad for mis-joinder and non-joinder of necessary party; complaint contains intricate and complicated question of law and voluminous evidence is required by this Forum to reach at the just and final conclusion and thus the complaint should be relegated to its remedy before the Civil Court of competent jurisdiction for Redressal of grievances of complainant. On merits, it is admitted that complainant purchased a brand new Tata Tiago XM Revotron car on 09.03.2017 from OP-1 which manufactured by OP-2. Issuance of policy qua said vehicle is admitted. It is denied that on 09.09.2017, the vehicle hit from behind by some unknown vehicle while it was parked outside of Tagore Hospital Jalandhar as no claim is registered with OP-3. Complainant is not entitled for any compensation from answering OP-3. There is no deficiency in service of the part of OP-3. Rest of averments of complaint denied and prayed for dismissal of complaint.

4. OP No.4 has filed separate written reply and contested the complaint by taking preliminary objections that answering OP on the request of complainant has given to him loan for Rs.3,58,100/- (as per Loan agreement dated 06.03.2017) for purchase of car in question on the terms and conditions applicable to said loan. As per terms and conditions of said loan it has been categorically acknowledged and confirmed by complainant that OP-4 has not made any representation about the delivery, quality, performance etc. of the vehicle being purchased by him and he will not make the OP-4 liable in any manner whatsoever, for the delivery, quality, conditions or fitness for performance of the product etc. The dispute is between the complainant and car dealer, manufacturer and insurance company. The complaint does not relate to any service provided by answering OP-4 to complainant. There is no deficiency in service alleged against OP-4, hence complaint is not maintainable against OP-4. On merits, it is admitted that complainant has availed car loan for Rs.3,58,100/- as per his loan agreement dated 06.03.2017 with OP-4. As per terms and conditions of loan sanctioned to complainant, he is bound to get the hypothecation charge registered in the name of OP-4. Rest of averments of complaint are denied and prayed for dismissal of complaint.

5. In order to prove their respective version, the counsel for the parties produced on the file his respective evidence.

6. We have heard the arguments of the parties and also gone through case file carefully.

7. The loan of vehicle and insurance of the vehicle in disputes is admitted by Op No.3&4. But the complainant has not sought any relief and directions against the said Op No.3&4. As such, the present complaint against OP No.3&4 stands dismissed.

8. Admittedly, the vehicle was purchased by the complainant on 09.03.2017 for Rs.3,98,525/-.  At the time of purchase the complainant paid Rs.1,02,700/- by cash vide receipt No.010684 dated 09.03.2017 and Rs.30,000/- vide cheque No.010684 dated 09.03.2017 against receipt No.6493 and dated 09.03.2017 and balance amount financed by OP-4.  The complainant stated that he purchased vehicle knowing fully well that the vehicle was mode of 2017.  The complainant alleges that he was deceived by the O.P. No.1 as they fraudulently sold away an used old car.  The Insurance Policy Ex.C-2 was issued to complainant.  Complainant has filed Ex.C-3 to Ex.C-6 Jobs but in these documents it was not mentioned the problem which he alleged in the present complaint. Moreover it appears to this Commission that the complainant after being satisfied of the condition of the said vehicle, the complainant taken the delivery of said vehicle after its repair from Kosmo Vehicle.

9. The O.P. Tata Motors in his written version stated that the car was delivered after carrying out pre-delivery inspection by the dealer.  That the company manufactured the vehicle, which is international standard for quality systems for reputed automotive company.  That the company maintained the quality to the customer’s satisfaction and following all satisfactory and regulatory requirements.  The complaints/grievance if any, is recorded in the job card.  There is no job card filed by the complainant showing any admission of any defects in the vehicle.  After checks are carried out at the workshop and observation is recorded by the Service Advisor on the backside of the job card of the vehicle, usually.  Complainant failed to prove by sufficient documents that the car developed any manufacturing defects or that the previous purchaser of the car after taking of the delivery returned the vehicle.

10. Learned counsel for OP-2 cited judgment reported in (1994) 1 SCC 1 – SP Chengalvaraya Naidu (Dead) Vs. Jagannath (Dead) & Ors and other judgment titled as Indian Oil Corporation Vs consumer Protection Council, Kerala &Anr. (1994) 1 Supreme Court cases 397qa relationship of principle to principal basis and case of MarutiUdyog Limited VsNagenderPrasad Sinha&Anr II (2009) CPJ 295 (NC), the Hon’ble Apex court observed regarding delivery delayed.

11. The complainant is unable to prove his case by evidence and sufficient documents that the OPs No.1 sold the old vehicle instead of brand new vehicle.

12. Further, contention of the complainant is that the OP-1 also issued fake and bogus insurance policy valid from 09.03.2017 upto 08.03.2018 whereas, the policy has been issued on 14.03.2017. From the proposal form it is cleared that date of period of insurance policy was mentioned as 09.03.2017 to 08.03.2018 which appended the stamp of OP-3. On the other hand, the OP No.3 has filed Ex.OP3/1 vide which the period of policy was mentioned as 15.03.2017 to 14.03.2018, which is in the name of complainant. In said policy the detail of vehicle mentioned as AF, which mean the vehicle is new one.

13. The complainant has argued that his vehicle was hit by some unknown vehicle and repair of the same not done by OP-1 and said that the policy is not valid for that period. But the Ops has not rebutted the said version of complainant by filing reply and evidence because the OP No.1 is proceeded against ex parte. Thus, virtually statement of complainant suffered through affidavit through Ex.CA is fully believable that OP No.1 has not issued valid policy from the date of its purchase i.e. from 09.03.2017. Moreover, the OP-3 has submitted that the said policy was issued on the request of OP-1. As such, the OP No.1 is deficient in providing consumer service to complainant by not issued the valid policy for valid period before delivery of vehicle in dispute to complainant. Hence, the complainant is entitled for relief claimed.

14. Therefore, as discussed above, the present complaint is partly allowed and the OP-1 is directed to repair the vehicle of the complainant, free of cost. Further, OP-1 is directed to pay compensation for mental harassment to the tune of Rs.10,000/- for not issuing valid policy and issued fresh insurance policy. The OP-1 has no right to keep and misappropriate the public money. It must go back to the public. We, therefore, order that the OP-1 will deposit a sum of Rs.10,000/-, the estimate rough amount, with the legal aid account of this Commission. Opposite Party No.1 is directed to comply with the order within 45 days from the receipt of copy of the order.

15. Copy of this order be supplied to the parties free of costs. The file be consigned to the records after its due compliance.

ANNOUNCED IN THE OPEN FORUM:

9^thDay of March, 2021

(Kuljit Singh)

President

(Jyotsna)

Member