JUDGEMENT
Complainant by filing this complaint has submitted that complainant expressed his intention to purchase a Tata Venture GX BS IV vehicle and a quotation was raised by the op nos. 2 & 3 bearing No. 1647 dated 04.02.2013 and the price of the car was quoted to be Rs. 5,60,979/-. Accordingly complainant paid an advance of Rs. 30,000/- in cash towards the part payment of the price of the vehicle, make of Tata Venture GX BS white car and a money receipt was issued on the part of the op nos. 2 & 3.
Subsequently complainant made further payment of Rs. 1,35,000/- only towards the part payment of the price of the said car on 28.02.2013 and out of the said Rs. 1,35,000/-, complainant paid Rs. 1,00,000/- by cheque, vide cheque No. 418364 dated 28.02.2013 drawn on State Bank of India, Singur Branch and Rs. 35,000/- by cash to the op no. 2 and also paid further payment of Rs. 24,000/- in cash towards the price of the said vehicle to the op no.2 on 15.03.2013 and the rest of the amount on account of price of the vehicle was financed by the banker of the complainant namely Indusind Bank.
That on 15.03.2013 the Four Wheeler Tata made Motor Car being Model No. Venture having its Chasis No. MAT 483562BYF05428 being Engine No. WB 16 AD-7323 was delivered by op no.1 from their godown at Durgapur Express Showroom at Ghansyampur, under P.S.- Singur, District-Hooghly to the complainant at the time of delivery of the vehicle, Service Book, Blue Book and other documents related to the said vehicle were not delivered to the complainant by op nos. 2 & 3 respectively and at the time of delivery of the car and prior to that op nos. 2 & 3 and their officers and staff represented that specification and quality of the vehicle in question shall be handed over on good condition but also outstanding and complainant on good faith and relying upon the representation of the ops took possession and complainant was assured that he was paying the cost of a new vehicle for getting a first hand car and he was never under impression that he shall be delivered with a second hand car.
But the said vehicle was financed by Indusind Bank who issued the sanctioned letter for finance of the rest of the price of the vehicle against applicationno. 597778 dated 27.02.2013 and complainant has been paying the monthly installment to the said bank towards the financed amount in respect of the said vehicle and last of such installments was paid in November 2013. Subsequently the complainant under compelling circumstances stopped payment of such installment of the financed bank and particularly mentioned that a sum of Rs. 4,87,500/- was financed by the finance company and accordingly the complainant suffered a huge loss of payment of EMI till the month of November 2013.
Practically the vehicle in question was not functioning properly from the time of taking delivery by the complainant. However on being pointed out by the complainant about the snags/defects, the op no.2 maintained and represented that the vehicle would perform well but after running for two or three days and after passage of considerable time the vehicle has not been functioning satisfactorily and as a result of which the complainant had to take the vehicle to the showroom of the op no.2 at Ghanashyampur, Singur and on all such occasions, op no.3 at whose insistence the complainant had to take the vehicle but failed and neglected to repair or rectify the defects in the said vehicle and complainantwas advised to take the vehicle to the service centre of the op no.2 situated at Budge Budge Trunk Road for better service and for necessary repair of the concerned vehicle as the vehicle in question was under guarantee period.
Subsequently complainant finding no other alternative took the vehicle to the service centre of the op no.2 at Budge Budge where the technicians of the op no.2 could not rectify the defects in the said vehicle and rather advised the complainant to take the vehicle to T.C. Motor at Foreshore Road at Howrah which is also authorized service centre of the op no.1. Thereafter complainant took the said vehicle to the T.C. Motors at Foreshore in Howrah being the authorized service centre of the op no.2 for necessary rectification of defects prevailing in the vehicle. However, the technicians at T.C. Motors refused to take the responsibility rather pointed out that the vehicle was serviced at different point of time at different service centre of op no.2 and the defects are of such nature which are not capable of being rectified. After hearing such comment of the service centre of T.C. Motors at Howrah, complainant was annoyed and thereafter made representation to the op nos. 2 & 3 to get the computerized service report of the said vehicle. Thereafter complainant after getting the said report came to learn that the vehicle was sole in the year 2011 and repeatedly were served by different service centre of the op no.2. It appears from the service history that on 24.04.2012 the vehicle having the same Chasis no was before the servicing dealer having code No. 3002150 where it has been recorded that the vehicle by that time ran for 480 Kms and the service type was accident. So, it can be reasonably presumed from the service record that the vehicle was not only second hand but also met with an accident and the op nos. 2 & 3 suppressed such fact in spite of being aware of such facts untruly and fraudulently represented before the complainant, expressing out the said vehicle to be a new one, fully knowing that such representation was false to the knowledge of the op nos. 2 & 3 and the complainant paid valuable consideration and also has been paying regular monthly installment to his banker. Op nos. 2 & 3 have consumed the entire consideration paid by the complainant and thereby cheated by making false representations and the entire transaction was perpetrated by the op nos. 2 & 3 and its personnel including op no.3 being aided and abated by each other by hatching a conspiracy against the complainant.
Complainant further stated that it is clear that the said vehicle faced an accident and was repaired on 25.04.2012 under the serviced centre of op no.1 and from the said service centre report, it shows that at the time of accident of the said vehicle it ran 480 Kms, not only that the said vehicle was serviced on 16.07.2011, 14.11.2011, 16.12.2011, 05.03.2013, 06.03.2011 and 14.03.2013 under service centre of op no.1 and it is particularly mentioned here that the said vehicle was delivered on 15.03.2013. Complainant on repeated occasion ventilated his grievance to op nos. 2 & 3 but they did not respond.
Ultimately finding no other alternative complainant sent notice of demand to the op nos. 2 & 3 along with a copy to the Director of op no.2 with a copy to the Regional Manager of Tata Motors Ltd., through his advocate on 22.07.2013 with a request to take step against the illegal activities. Even then no step was taken by the op nos. 2 & 3. Then on or about 19.08.2013 one Goutam Das being the General Manager of Legal on behalf of the comply replied the legal notice of the complainant but lastly finding no other alternative complainant lodged a written complaint with Beniapukur Police Station on 14.08.2013 for redressal. But no case was initiated by the police. So, complainant lodged the complaint to the Director of the Motor Vehicle, Govt. of West Bengal on 16.09.2013. Then specifically op nos. 2 & 3 represented to the complainant, taking advantage of the good faith and trust of the complainant and such an action on the part of the op nos. 2 & 3 tantamounts to breach of trust. In the above circumstances, complainant has prayed for refunding the payment of Rs. 1,89,000/- which was paid by the complainant to the ops against the four wheeler Tata Motors and also for compensation and further demand for loss or damages by the complainant.
On the other hand op nos. 1 & 2 by filing written statement submitted that the entire complaint is false and fabricated and it is not maintainable in the eye of law and further submitted that the complaint is frivolous and harassive and there is no cause of action for which the complaint should be dismissed.
Op nos. 1 & 2 further submitted that actually the price of the motor vehicle model TATA Venture GX BS IV was quotedRs. 5,60,979/- but since the vehicle was 2011 model and lying as old stock in the company, the complainant was given a huge concession of Rs. 70,485.13 paisa as was agreed by the complainant at the time of purchase of the said car and on such discount as to why the said discount was offered and after deducting such concession amount the price of the vehicle was fixed at Rs. 4,23,768.94 paisa and after adding total tax Rs. 56,208.81 paisa the gross grand total of the vehicle was Rs. 4,80,978/- besides other for taking out insurance cover, registration charges and road tax etc. as per tax invoice and no doubt complainant purchased the said car from taking loan from Financer, Indusind Bank, Kolkata of Rs. 3,71,000/- by executing a loan cum hypothecation agreement with the Financer and the subject car was under loan cum hypothecation under the said Bank/Financer and the said vehicle was delivered to the complainant on 15.03.2013 in good condition after getting delivery receipt from the complainant and no doubt the vehicle was under warranty norms i.e. for two years or car is cover upto 75000 kms on road which ever is earlier from the date of delivery of the car and said car can avail of services of the said vehicle free services or services of the manufacturer of the car within the warranty period free of cost as per warranty norms.
It is admitted that the said car faced some minor problems after three months and one of the authorized service centre of TATA Motors Ltd. attended the car and after careful examination removed the defects and being satisfied with the said repairing job after signing satisfaction voucher of the workshop of the manufacturer of the car and as such the allegation as made by the complainant is completely baseless and without any foundation.
It is further submitted that the said vehicle was purchased from the manufacturer in the year 2011 as principal to dealer basis vide Tata Motor Invoice No. 0959925844 dated 16.06.2011 and was lying in the showroom of the company as old stock and the complainant being fully acquainted with the said facts purchased the said vehicle after getting a invoice dated 28.02.2013 and it was firstly registered with the concerned Motor Vehicle Department in the name of the complainant with the endorsement in the registration certificate the name of financer as Indusind Bank Ltd. and hypothecated with the said financer etc. So, the entire complaint is baseless and without any foundation.
Moreover op submitted that vehicle never met any accident. It is further submitted for the purpose of keeping the vehicle roadworthy and running condition during the period in stock of answering ops the same required some road test and servicing in the workshop from time to time and as such the allegations of the complainant is baseless, misleading and made with malafide intention with a view to achieve his illegal gain most illegially which is not tenable in the eye of law.
It is further alleged that ops already adequately replied that the allegations level against the ops by the Advocate’s letter dated 22.07.2013 served by the complainant that reply was sent on 29.07.2013 to the complainant’s Ld. Lawyer. So, complainant’s allegation is also false and baseless but with malafide intention and ill motive purposely creating pressure upon the answering ops with frivolous allegations by abusing the process filed this complaint for which this complaint is not maintainable.
Lastly it is categorically denied that the ops sold second hand car to the complainant or dishonestly misappropriated or converted to their own used by selling second hand car as alleged in paragraph under reply. So, the complainant is not entitled to get any relief and in the above circumstances, the present complaint is not maintainable when no deficiency or negligence or any sort of unfair trade practice is practiced by the ops.
Decision with reasons
On in depth study of the complaint and written version and also considering the evidence in chief and documents as produced by both the parties and also hearing the argument of the Ld. Lawyers of both the parties, it is found that it is undisputed fact that op no.1 M/s Lexus Motors Pvt. Ltd. is the dealer of manufacturer of op no.3 TATA Motors Pvt. Ltd. and op no.3 has admitted that complainant purchased a vehicle in question from op no.3 on or around 28.02.2013 and it was a new vehicle which requires mandatory servicing and replacement of specified components viz. air filter, fuel filter etc. as recommended in the owner’s manual and service book given at the time of sale, for smooth running and optimum performance. But invariably complainant failed and neglected to follow the guidelines given in the owner’s manual, as recommended for smooth and maximum performance of the car/utility vehicle in question and correct operating procedures – do’s and don’ts for maintenance and performance of the car and utility of the vehicle. But op no.3 has relied upon the terms and conditions of warranty of the car or utility of the vehicle in question and op no.3 also admitted that there is a table for recommended service schedule of Tata Venture GX and records of services to be performed as per schedule.
But complainant has not produced any such record. But any how complainant had regularly serviced the car. From the record and also from documents as produced by the op, it is clear that on 05.03.2013 the vehicle was brought to the service center of the op no.1 after covering a distance of 450 kms. For carrying their running repair when renew door winder, turbo charger replaced, and vehicle speed sensor was repaired under warranty.
Thereafter on 14.03.2013, the vehicle was brought to the service center of the op no.1 after covering a distance of 500 kms. For carrying out running repairs when same was carried out Free of Cost basis. Thereafter on 09.05.2013 the vehicle was brought to the service center of Lexus Motors for when standard checks were carried out, renew door glass each, fitment charges renew door winder each under warranty and the vehicle was attended free of cost basis in the summer camp. Thereafter on 05.07.2013 the vehicle was brought to the service center of T.C. Motors after covering a distance of 1847 kms. When front anti roll bar replaced under warranty and the observations recorded by the service advisor on the job cards and steps taken for resolution of the complaints, would clearly establish that whatever complaints raised by the complainant, were running complaints and recommended services, which required to be attended for extensive usage and improper maintenance of the vehicle and complainant’s allegation as raised is completely baseless.
Op no.3 has also asserted that the owners is required to follow the other terms of contract and the terms and conditions of the manual and he also advised for smooth performance of the utility of the vehicle and no doubt warranty shall be limited for 24 months from the date of sale of the vehicle or 75,000 kms., whichever is earlier from the date of the sale. Further for commercial application, the warranty shall be limited to 24 months, whichever occurs earlier subject to fulfilment of other terms and conditions of the warranty. But as per warranty any owner of the vehicle shall not get any benefit of free repair if the vehicle or any part thereof is repaired or altered otherwise than in accordance with their standard repair procedure, or by any person other than their sales or service establishments, their authorized dealers or service centers or service points and considering all the materials op no.3 has observed that practically for inadequate and improper maintenance, complainant has facing great troubles but there was no material defect or manufacturing defect in the said vehicle. Because the vehicle in question was checked and approved by the Automotive Research Association of India and the vehicle was manufactured in the plant of op no.3 and it was thoroughly inspected and for quality systems and quality tests drive before testing for dispatch appointed on principal to principal basis.
On proper consideration of the evidence and defence of the op, it is clear that the vehicle was brought to the service center of T.C. Motors Pvt. Ltd. lastly on 05.07.2013 and thereafter the vehicle was not brought to any service center of the company. From this it can be stated that it was not maintained after 05.07.2013. Considering all the materials it is proved that the vehicle was sold to the complainant on 28.02.2013 and as per owners manual after travailing distance of 1,000 kms. To 1500 kms. Whichever is earlier first service then one month must be given second free service or due to 6 months or after travelling 4500 kms. to 5500 kms. distance which was after 6 months from the date of selling and 3rd service was due on 12 months after travelling 9500 kms. to 10500 kms. and 4th service was due on 24months of the date of purchase or after travelling distance 19500 to 20500 kms. But anyhow complainant has failed to produce any such document to show that he availed of such free service for proper maintenance.
But from the receipt it is found that there is no note in the receipt what was the manufacturing year of the said vehicle. But money was received by supply of a Tata Venture GX. But on the other hand it is found that complainant paid Rs. 1,89,000/- on different dates as advance amount for the vehicle and Rs. 3,75,000/- was financed by the bank.So, it is proved that complainant paid Rs. 5,64,000/- the original price of the vehicle and accordingly the allegation of the op that complainant purchased the same at a cost of Rs. 4,89,978/- without any foundation. Further it is found that quotation was of Rs. 5,60,979/-. Truth is that op no.1 received Rs. 3,71,000/- from the Indusind against the loan of the complainant. After considering the materials it is found that op no.1 received no doubt in cash Rs. 1,89,000/- and from Indusind Bank Rs. 3,71,000/- and considering that fact it is clear that in total op no.1 received Rs. 5,60,000/- from the complainant but tax invoice is prepared by the op showing the amount of Rs. 4,80,978/-. So, apparently it is proved that op received excess Rs. 79,022/-. But in respect of that there is no bill or voucher. So, it is apparent that op no.1 adopted an unfair trade practice and truth is that there is no such receipt to show that complainant received back Rs. 79,022/- from the op and there is no such averment in the written version that amount was returned by the op to the complainant. So, considering all the above fact and materials it is clear that no doubt complainant intended to purchase a new vehicle for which he paid Rs. 5,60,000/-. But in fact a vehicle having manufacturing year 2011 was sold and op has tried to convince that he received Rs.4,80,978/- and Rs. 70,485/- was deducted as it was manufactured of 2011. But op has failed to prove that he has paid after deducting that amount.
So, considering that fact we are convinced to hold that op no.1 has stated falsely that he sold away the new vehicle having manufacturing year 2011 and op nos. 1 & 2 have also failed to prove that they have returned Rs. 79,022/- to the complainant which was received by the op no.1 as excess amount than that what amount as noted in the tax invoice and anyhow tax invoice there is no signature of the complainant. Further considering the entire materials including the version of the op no.3 it is clear that the vehicle was serviced on 05.07.2013 when standard checks were carried out, renew door glass each, fitment charges renew door winder each under warranty and the vehicle was attended free of cost basis in the summer camp and complainant received the same and it is fact that on 05.03.2013, 14.03.2013, 09.05.2013 and lastly on 05.07.2013 the vehicle was place before service center and service center gave all services and the vehicle is being run by the complainant.
Practically in this case complainant has prayed for refund of Rs. 1,89,000/-. But in reality complainant is entitled to Rs. 79,022/- because that amount has been taken by the complainant in excess of the actual amount as noted in the tax invoice as produced by the op. But peculiar factor is that complainant has not prayed for replacing of the said vehicle. But truth is that op adopted an unfair trade practice and sold away the vehicle having manufacturing year 2011 even after without handing over any such vehicle in the manufacturing year 2013. Moreover after considering the consumer materials it is clear that the said vehicle was in the dealer’s showroom since ops purchase and it is also fact that the vehicle was serviced on different servicing centers on 14.03.2011, 16.07,2011. But the existence of the vehicle in the custody of the op no.1 has not been explained by the op no.1. Moreover the car was in the custody of the op for about two years continue from 28.03.2013. Then invariably within two years, it is used by the op no.1 for some purpose to make it road worthy but that was not disclosed or written in the tax invoice. It is no doubt an unfair trade practice when the seller did not discharge his responsible duties to disclose the character of the vehicle. Anyhow complainant purchased it on 28.02.2012 since he has been using and now already one year and six months crossed. But fact remains the warranty period is still existed and for which invariably complainant is entitled to get such free service replacing etc. if any technical defect is found there and in this regard op no,1 is bound to give the same and there is no other alternative in this regard.
Truth is that there is pending case in between the complainant and the officer of Indusind Bank in the City Civil Court that is related to loan amount. But we are not deciding the matter in view of the fact that it is not our concern. But we have gathered that op no.1 as dealer no doubt deceived the complainant by taking excess money of Rs. 79,022/- which is completely an unfair trade practice and in the above situation after considering all the materials and documents including the evidence on record and the question including reply we are convinced to hold that op no. 1 practically sold away the vehicle to the complainant and complainant purchased it and used it but it was of the manufacturing year 2011. But op no.3 the manufacturer Tata Motors told the complainant that there was no technical defect or manufacturing defect. But op no.3 has suggested that as per owner’s manual the car should be maintained and necessary awareness is given and warranty period is still existing and complainant can get such relief if he wants to get. So considering that fact it is clear that it is the responsibility on the part of op no.3. But the entire process as adopted by op nos. 1 & 2 is no doubt unfair trade practice. No doubt op no.1 received excess amount from the complainant and did not give any vehicle of manufacturing year 2013 in place of that sold away same type of vehicle with manufacturing year of 2011, but received the actual amount of Rs.5,64,000/-. But in reality op tried to convince that he actually received by invoice of Rs. 4,80,978/-.
But peculiar factor is that in the tax invoice there is no signature of complainant and it indicates that it was prepared back behind the knowledge of the complainant and same was not handed over to the complainant what is proved. In the light of the above observation we are convinced to hold that op nos. 1 to 3 directly responsible for such unfair trade practice and selling a car of manufacturing year 2011. But he actually received Rs. 5,64,000/- from the complainant but they did not return the balance amount of Rs. 79,022/- to the complainant but op nos. 1 & 2 are bound to refund at once because complainant purchased the vehicle of the year 2011 but not of the year 2013 and at the relevant year 2011 the valuation of the said vehicle was Rs. 4,80,978/- and for that receipt has been submitted by the op but we are convinced that excess amount of Rs. 79,022/- has been received by the op by adopting unfair trade practice and they have grabbed the same from the complainant and it canbe saidthat deceitful manner of business is run by the op no.1.
No doubt complainant has suffered much for the deficient and negligent manner of service on the part of the op nos. 1 & 2. In the result the complaint succeeds and no doubt complainant is entitled to get back the said amount of Rs. 79,022/- from the op nos. 1 & 2 and also entitled to get entire free service for the said vehicle for another one year on the expiry of the existing period of that warranty what shall be given by the op nos. 2 & 3.
Accordingly the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with a cost of Rs. 10,000/- against the op nos. 1 & 2 and same is allowed against op no.3 but without any cost.
Op nos. 1 & 2 are hereby directed to pay and refund a sum of Rs. 79,022/- to the complainant within 15 days from the date of this order.
At the same time op nos. 1, 2 & 3 shall have to give free service for the said vehicle for another one year from the date of expiry of the existing warranty period and during the present warranty period of the said vehicle make it in all respect road worthy and free from any trouble and for any change of any parts no further price shall be charged against that from the complainant and to that effect op nos. 1, 2 & 3 shall have to act in future as per spirit of the order and if it is violated in that case op nos. 1 to 3 shall be imposed penalty or fine for non-compliance of this Forum’s order at the rate of Rs. 200/- per day which shall be paid before this Forum.
For harassing the complainant in such a manner and for adopting unfair trade practice by the op nos. 1 & 2, op nos. 1 & 2 shall have to pay penal compensation of Rs. 30,000/- to the complainant within 15 days from the date of this order. For adopting unfair trade practice and for deceiving the customer in such a manner by the op nos. 1 &2 , op nos. 1 & 2 jointly and severally shall have to pay punitive damages to Rs. 20,000/- and it is imposed to control the op’s attitude and unfair trade practice and deceitful business run by the op nos. 1 & 2 and if the same are collected, same shall be deposited to this Forum in the account of President, DCDRF, Kolkata Unit-II within 15 days. Op nos. 1, 2 & 3 directed to comply the order within the stipulated time in default penal action shall be taken for which further prosecution and further penalty and fine may be imposed.
