Sri Jagadish Chandra Barman, Member
The facts leading to the filing of the instant case by the complainants may be epitomised as follows:-
The complainants [Smt. Sabita Sharma and her husband Sri Sanjay Sharma ] filed this instant case before the Ld. Commission on 23.03.2021 for proper adjudication. As per complaint petition, the complainants were eager to purchase a Tata Hexa XT car and accordingly went to select a car on 14th February 2020 to the showroom of O. P. No-1. Mr. Kaushik Roy on behalf of the deals showed few cars available there and the complainants saw the colour and knew the price of the cars. The complainants informed that they were willing to get a either white or silver colour car for their use.
The complainants then opined that they also wished to exchange their own old grey colour Maruti-Suzuki Swift Dzire VXI BEING Chasis no-MA3EJKD IS00219655, Engine no-K12mn1210569 and Registration no- WB24R 7706 in this dealing with the O. Ps. On 17th day of February 2020, another staff of the O. Ps. name Mr. Pinaki Bose through WhatsApp informed about the availability of white Tata Hexa XT car in the showroom.
Thereafter, the complainants paid Rs. 6,000.00 only as earnest money to the O. P. through NEFT being no- ID 319638838 dated 19.02.2020.The complainants, due to shortage of money, took car loan of Rs.16,91,314.00 only from the TATA MOTORS FINANCE LIMITED formerly known as SHEBA PROPERTIES LIMTED on 28/02/2020 to pay the price of white Tata Hexa XT car to the OPs. To repay the car loan, Rs. 28,168.00 only per month was settled for each instalment and no. of instalments were fixed 93.
The O. Ps. had assured that they would deliver a white Tata Hexa XT car on 23.02.2020 to the complainants. It is pertinent to mention that they [O. Ps. ] had taken the possession of the old grey colour Maruti-Suzuki Swift Dzire VXI being Chasis no-MA3EJKD IS00219655, Engine no-K12mn1210569 and Registration no- WB24R 7706 of the complainants for exchange with the new car. But the O. Ps. were failed to hand over the white Tata Hexa XT car to the complainants on 23.02.2020.
On 8th day of March, 2020 at around 8 p. m., personnel of the O. Ps. came to deliver a pre-owned and old - bumper damaged car of different colour to the complainants. Naturally, the complainants refused to accept the car and raised objections in many aspects.
As per the statement of the complaint petition, the complainants were compelled to take delivery of the damaged car on 5th day of June 2020 as registration of the said car was done in the name of complainant no. -1 vide reg. no WB 20BF 9285. The O. Ps. had also paid Rs. 3,00,000.00 only to the complainants as compensation amount for supplying damaged car as well as to meet the value of Maruti-Suzuki Swift Dzire VXI BEING Chasis no-MA3EJKD IS00219655, Engine no-K12mn1210569 and Registration no- WB24R 7706 of the complainants.
In the month of August 2020, as per complaint petition, the new Tata’s car of the complainants vide no WB 20BF 9285 was broken down and the O. Ps. repaired the car and changed the double silencer in to single silencer and took Rs. 10,597/- only from the complainants. It was informed by Mr. Sudipta Lahiri , a staff of the O. Ps., on 01.9.2020 that the complainant`s car vide no WB 20BF 9285 and chassis no- MAT614170HRJ0268 was not insured. The complainants opined that they did not get a new car from the O. Ps. and thus the O. Ps. wrongfully gained Rs. 16,97,314.00 only. The O. Ps. did not issue any insurance documents and warranty. The complainants had paid full consideration amount of Rs.24,84,872.00 only including accrued interest to the TATA MOTORS FINANCE LIMITED formerly known as SHEBA PROPERTIES LIMTED. But the O. Ps. did not deliver a new car in good condition as per terms and conditions.
The complainants pointed out that the opposite parties had acted negligently and deficiently and as such, the actions of the O. Ps. tantamount to deficiency in service and unfair trade practices which has caused to mental agony, pain and physical harassment, and loss of the complainants.
In the above circumstances, the complainants have filed this instant case and prayed for the following reliefs:-
1] To issue an order to the O. Ps. to replace the said vehicle with a new vehicle with warranty documents or to refund to the complainant the paid amount of Rs. 13,97,314.00 only .
2] To issue an order to the O. Ps. to pay Rs. 16, 00,000.00 only to the complainants as compensation amount for their unfair trade practice and deficiency in service.
3] To issue an order to the O. Ps. to pay Rs. 30,000.00 only to the complainants as litigation cost.
4] To issue any other order to the O. Ps. as the Ld. Commission may think fit and proper.
Accordingly, the Ld Commission issued show cause notices and those were served to the O. Ps. Thereafter, the O. P. no 1, 2, 3, and confirming parties 4, and 5 have filed their written version and contested the case. In the reply, the Opposite Parties 1, 2, 3 and confirming parties 4 & 5 have stated that this instant case is not maintainable as well as they have denied each and every allegation mentioned in the complaint petition. The contested opposite parties and the confirming parties have also stated that there is no pecuniary jurisdiction to file this complaint petition against the contested O. Ps. and confirming parties. before this Ld. Commission. Hence, it is liable to be dismissed.
As per statement in the W. V., The Complainant visited the showroom of the O. P. No-1 on 20.02.2020 and choose /selected a car being HEXA XT 4X 2A, colour blue, model 2017 TATA. The complainant paid Rs. 6,000.00 only as earnest money to the O. P. No-1 on the same date. The complainant had agreed to exchange his/her the then existing Maruti-Suzuki Swift Dzire VXI car to get new car and value of the then Maruti car was settled Rs. 1, 63,000=00 only .In the W. V., the O. Ps. have categorically pointed out that the complainant purchased the said car with the assistance of the financier i. e, Tata Motors Finance Ltd. , the confirming party, at a consideration price of Rs. 14,91,954.83 only vide invoice no- ILMLBA1920000823 dated- 26.02.2020. The complainant also paid Rs. 58,000.00 only as premium of insurance and paid Rs. 1, 12,696/-+Rs. 1040/- for Registration charge for the new car. The petitioner also paid handling charge Rs. 9,500.00 only.
Thereafter, the O. P., after getting her [Mrs. Sabita Sharma] new car registered, sent to the complainants. But the complainants declined to take delivery with ulterior motive on the ground that the said car was not new and it was pre-owned/old as well as it was not her chosen colour car. But as per statement of O. Ps., the car was new but manufactured in 2017.The O.P. stated that the complainant choose the car in question as it was lower in price than the new model and she (complainant) also took loan from her financier to the tune of Rs. 16,91,314=00 only. Registration charge, Insurance charge, road tax, and another charges were also paid by the complainant.
However, after amicable settlement, the said car was delivered to the petitioner on 5th June 2020 along with refund of Rs 3,00,000.00 only by cheque dated 05/6/2020 and it was paid as goodwill gesture and compensation. The car was delivered finally as per agreed terms of the settlement by a letter signed dated 5th June 2020.It is also mentioned in the W. V. that after running 4388 km, the said car was reported to the workshop on 13.8.2020 with some defects. The O. P. repaired the defects carefully and handed over the said car to the complainants. The O. P. also admitted in their W. V. that there was not any warranty of the said car as it was manufactured in 2017 and the petitioner bought it in 2020 and accordingly she got back Rs. 3,00,000.00 only from the O. Ps.. According to the O. Ps. that the car in question was very high quality and sophisticated with good reputation in the world.
Hence, there was no wrongful gain in selling the subject car to the complainants. Accordingly, the complainants are not entitled to get any litigation cost, compensation amount as there was no unfair trade practice and deficiency in service on the part of the O. Ps.
The confirming party no-4 & 5 have also submitted their W. V. and it is clearly stated in the W. V. that the confirming parties provided loan only. Accordingly, the O. P. Nos. - 4 & 5 sanctioned loan of Rs. 16,91,314.00 only to the complainant as per hypothecation cum guarantee agreement being no- 5003369134 and also paid to the dealer of the car . The O. Ps. Have also mentioned that the disputes are between the petitioners and the O. Ps. 1, 2 and 3. Hence, there is no question of unfair trade practice and deficiency in service occurred on behalf of the confirming parties.
Upon the averments of the complaint petition, w. v. and other documents, the following points are formulated:-
POINTS FOR DETERMINATION
1]. Are the complainants ‘ Consumer’?
2] Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainants?
3] Are the complainants entitled to get relief /relief as prayed for?
EVIDENCE/BNA ETC. OF THE COMPLAINANTS/O.Ps.
The complainants filed a petition through their learned advocate on 25/11/2021 to treat their complaint petition as evidence on affidavit, it was approved. The O. Ps. also filed W. V. Evidence on affidavit, Questionnaire, reply and BNA were also filed separately by both sides.
DECISION WITH REASONS.
The complainants paid Rs. 6,000.00 only as earnest money to the O. P. through NEFT being no- ID 319638838 dated 19.02.2020.The complainants, due to shortage of money, took car loan of Rs.16,91,314.00 only from the TATA MOTORS FINANCE LIMITED formerly known as SHEBA PROPERTIES LIMTED on 28/02/2020 to pay the price of white Tata Hexa XT car to the O.Ps.[dealer]. Accordingly, the O.Ps. received the loan amount from the TATA MOTORS FINANCE LIMITED formerly known as SHEBA PROPERTIES LIMTED. To repay the car loan, Rs. 28,168.00 only per month instalment was settled and no. of instalments was fixed at 93.Complainats paid total amount and there is nodisputes in this manner.
Therefore, there is no doubt that complainants are `CONSUMER` under Section 2[7] of the Consumer Protection Act 2019.
In relation to point for determination no. 2 ‘’Are the O. Ps. guilty of deficiency of services and unfair trade practice as alleged by the complainants?”and point for determination no-3, “ Are the complainants entitled to get relief /relieves as prayed for?”-it is relevant to opine that in this instant case, the complainants paid Rs.6000.00 only as earnest money to the O. P. through NEFT being no- ID 319638838 dated 19.02.2020.The complainants, due to shortage of money, took car loan of Rs.16,91,314.00 only from the TATA MOTORS FINANCE LIMITED formerly known as SHEBA PROPERTIES LIMTED on 28/02/2020 to pay the price of white Tata Hexa XT car to the seller. Accordingly, the O.Ps. received the loan amount from the TATA MOTORS FINANCE LIMITED formerly known as SHEBA PROPERTIES LIMTED. Complainants paid total amount and there is no disputes in this regard. Thereafter, the complainant paid Rs. 58,000.00 only as premium of insurance and paid Rs. 1, 12,696/-+Rs. 1040/- for Registration charge for the new car. The petitioner also paid handling charge Rs. 9,500.00 only. But after covering of journey 4388 km, the said blue colour car HEXA XT 4X2 A was reported to the workshop on 13.8.2020 with some defects. The O. Ps. repaired the defects carefully and handed over the said car to the complainant after taking Rs. 10,597.00 only. The O. P. also admitted in their W. V. that there was warranty of the said car as it was manufactured in 2017 and the petitioner bought it in 2020 and accordingly she [COMPLAINANT] got back Rs. 3,00,000.00 only from the O. Ps.
But the complainants booked for a new white Tata Hexa XT car. Instead of white colour, a blue colour Tata Hexa XT was handed over to the complainants. Complainants paid full payments of Rs.16,91,314.00 only through the TATA MOTORS FINANCE LIMITED formerly known as SHEBA PROPERTIES LIMTED on 28/02/2020 as well as paid earnest money Rs. 6000.00 only. It was also assured to deliver the new white Tata Hexa XT car on 23.02.2020. It was not delivered on 23.2.2020 but the petitioner was compelled to take over a blue colour car on 5th June 2020 manufactured in 2017 and no warranty was issued to the complainants. For this reason, the complainants have been suffering from mental agony, pain, and disputed services. It was ought by the OPs to deliver to the petitioner a new white colour Tata Hexa XT manufactured in 2020. On the other hand, complainants had handed over of their own vehicle vide Maruti-Suzuki Swift Dzire VXI BEING Chasis no-MA3EJKD IS00219655, Engine no-K12mn1210569 and Registration no- WB24R 7706 to the O.Ps. before getting the delivery of new car in question. It is relevant to opine that the opposite parties were very much eager to collect money from the complainants. But they did not pay any heed to hand over the required vehicle to the purchaser in time.
Hence, it is clear from the fact and circumstances, that deficiency of service under Section 2(11) and unfair trade practice under Section 2[47] of the Consumer Protection Act 2019 have been occurred on behalf of the Opposite Parties but not by the confirming parties’ no-4 and 5.
Hence, the O. Ps. No 1, 2 & 3 only are jointly/severally liable to be penalized Rs.30, 000=00 only as litigation cost, Rs. 3,00,000=00 only as compensation amount to be paid to the complainants within 60 days from the date of issuing this order.
In case of failure to pay within 60 days the cost of litigation and compensation amount, the opposite parties will have to bear 9% simple interest upon compensation and litigation cost from the date of issuing this Order till the date of final realization.
The O. Ps. are also liable to replace the said vehicle with a new vehicle of white Tata Hexa XT car with warranty cards manufactured in the year 2022 along with all necessary documents of insurance, registration, etc. or to refund to the complainant the paid amount of Rs. 13,97,314.00 only as well as earnest money paid Rs. 6000.00 only with simple interest 10% p. a. from 28/02/2020 within 60 days from the date of issuing this order till realisation replacing the vehicle.
As a result, the complaint case is succeeded.
Hence, it is
ORDERED
That the complaint case be and the same is hereby allowed on contest against the Opposite Parties no. 1, 2 & 3 with a cost of litigation Rs.30,000=00 (thirty thousand) only but not against Confirming parties no. 4 & 5.
The O. Ps. 1, 2 & 3 are jointly/severally liable to pay Rs. 3,00,000=00[ Rs. Three lac] only as compensation amount, for mental agony, pain and physical harassment already suffered, to be paid to the complainants within 60 days from the date of issuing this order.
In case of failure to pay within 60 days, the cost of litigation and compensation amount , the opposite parties no 1, 2 & 3 will have to bear 9% p.a. simple interest upon compensation amount and litigation cost from the date of issuing this Order and till the date of realization.
The O. Ps. 1, 2 & 3 are also liable to replace the said vehicle with a new vehicle of white Tata Hexa XT car manufactured in the year 2022 along with all necessary documents of insurance, registration, etc. But after payment of increased amount minus paid amount only by the complainants. No payment shall bear in regard to insurance, registration etc. by the complainants. Compensation amount and cost of litigation may be adjusted with the price of new vehicle.
Or, Alternatively the O. Ps. No. 1,2 & 3 are also liable to refund to the complainants the paid amount of Rs. 13,97,314.00 only as well as earnest money paid Rs. 6,000.00 only with simple interest of 10% p. a. from 28/02/2020 within 60 days from the date of issuing this order till the date of final realization.
The Complainants are at liberty to submit an Execution Case against the O. P. no. 1,2 & 3 before this Ld. Commission for non-compliance of the order after the expiry of 60 days from the date of issuing this Order.
Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.
The final order be also available in www.confonet.nic.in .
Dictated and Corrected by me.
( Jagadish Chandra Barman)
(MEMBER)
