BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.260 of 2016

Date of Instt. 15.06.2016

Date of Decision: 16.10.2018

Darshan Singh aged about 60 years son of S. Hansa Singh R/o 22-2D, Shaheed Baba Deep Singh Nagar, Pathankot Road, Jalandhar.

..........Complainant

Versus

1. Lovely Autos, Nakodar Chowk, Jalandhar Through its Mg. Director.

2. Bajaj Auto Ltd. Akurdi Pune 411035 Through its Mg. Director.

3. Okara Agro Industries Ltd. Corporate Office 803, Bikram Tower, Rajindra Place New Delhi 110008, Through its Mg. Director.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Parvinder Singh, Adv Counsel for the Complainant.

Sh. Arun Gupta, Adv Counsel for the OP No.1.

Sh. Jasreet Singh, Adv Counsel for the OP No.2.

OP No.3 exparte.

Order

Karnail Singh (President)

1. The instant complaint has been filed by the complainant, wherein alleged that the OPs published an advertisement in the newspaper in the year 1997 and as per advertisement, it was advertised that on the purchase of Bajaj Chetak Scooter between 18 to 31 December, 1997, the purchaser shall get a cheque payable after 18 years of the value of the purchasing price. As per advertisement, the complainant purchased a Bajaj Chetak Scooter from OP No.1 bearing registration No.PB08-U-1816 having Chasis No.10942, Engine No.02637 and at the time of purchase of the said scooter, OP No.3 issued a cheque bearing No.251797 dated 18.12.2015 for Rs.25,000/- drawn on Punjab National Bank, Jangpura, New Delhi in favour of the complainant. The said OP No.3 offered the said scheme in the premises of the OP No.1.

2. That on the date of cheque, the complainant presented the said cheque in his bank and the said cheque was dishonoured by its bank, vide memo dated 23.12.2015 with the remarks “Inwards Clearing”. That above said memo of dishonor surprise to the complainant and he also contacted to OP No.1, but had not got any satisfactory reply from OP. OPs had made a promise with the complainant and which is not fulfilled as per their assurance, which cause mental tension, harassment and agony to the complainant for which OPs are liable to compensate the complainant. The complainant purchased the above said vehicle as per the advertisement published by OPs and all the OPs are responsible to fulfill their promise jointly and severally. The complainant also got served a legal notice to the OP, but all in vain and as such, necessity arose to file the present complaint being reason the OPs are guilty of rendering deficient service, negligent and unfair trade practice and accordingly through this complaint, the complainant seek a relief of acceptance of the complaint and sought direction to the OP to pay an amount of Rs.97,000/- i.e. Rs.25,000/- as cheque amount and Rs.50,000/- as compensation for the mental tension and harassment and Rs.22,000/- for cost of litigation.

3. Notice of the complaint was given to the OPs, but despite service OP No.3 did not come present and as such, OP No.3 was proceeded against exparte.

4. OP No.1 appeared through its counsel and filed reply, whereby contested the complaint by taking preliminary objections that no cause of action has arisen to the complainant to file the present complaint against the answering OP, as such, the complaint is liable to be dismissed and further averred that the complainant has not come to the Forum with clean hands rather he has suppressed the material facts and even this Forum has got no jurisdiction to entertain, try and adjudicate the present complaint as it is not a consumer dispute and the same does not fall within the ambit of the provisions of the Consumer Protection Act and as such, the present complaint is liable to be dismissed and further submitted that the present is bad for misjoinder and nonjoinder of the necessary party. On merits, the OP categorically submitted that the replying OP never published any advertisement in the newspaper at any point of time and as such, the answering OP is not liable to pay any amount to the complainant. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed. 5. OP No.2 also filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is wholly misconceived and unsustainable in law and is liable to be dismissed on the ground that the alleged transaction relates to the dishonouring of the cheque, which falls within the ambit of Negotiable Instrument Act, for which the complainant has a remedy to file a criminal complaint against the drawer. It is further averred that this Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986 and even there is no unfair trade practice or deficiency in service on the part of the replying OP and further alleged that the present complaint is frivolous and vexatious and is liable to be dismissed. It is further submitted that Bajaj Chetak Scooter has been a very popular consumer item. In fact, at one point of time, there used to be a huge waiting line for the purchase of the said scooter and people used to rush to buy it on priority by depositing the mandatory foreign exchange. The answering OP never had any arrangement with OP No.3 at any point of time nor has the complainant placed any such document on record. On merits, all the averments made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

6. In order to prove the case of the complainant, the complainant himself tendered into evidence his own affidavit Ex.CA along with some documents Ex.C-1 to Ex.C-8 and then closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OPA/1 and closed the evidence.

8. Counsel for the OP No.2 tendered into evidence affidavit of Nasir Ahmed as Ex.OP2/1 and closed the evidence on behalf of the OP No.2.

9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

10. The case of the complainant to the effect that the complainant purchased Bajaj Chetak Scooter from OP No.1 in the year 1997 after making a payment of Rs.25,000/- and got invoice Ex.C-8 dated 25.12.1997, the factum in regard to purchase of the Bajaj Chetak Scooter from OP No.1 and manufactured by OP No.2 is not in dispute rather these facts have been admitted by the OP No.1 and 2, whereas OP No.3 not appeared in this complaint despite service and he is proceeded against exparte. The contesting OPs i.e. OP No.1 and OP No.2 flatly denied any allurement/publication given in any newspaper for giving incentive to purchase Bajaj Chetak Scooter and get a cheque of the same amount of the price of the scooter, which will be encashed by the owner of the scooter after 18 years, rather the OP No.2/Manufactured categorically denied that the OP No.2 has no concern or connection with OP No.3 and as such, if any cheque issued by the OP No.3 that cannot be make liable to OP No.1 and OP No.2 and further plea took by the OP No.1 and 2 that this Forum has got no jurisdiction to entertain and try the instant complaint because the issue involved in this complaint is not covered under the ambit of the provision of the Consumer Protection Act nor the complainant is a consumer and even there is no deficiency in service or unfair trade practice on the part of the OP No.1 and 2.

11. We have considered the plea taken by the OP No.1 and 2 in regard to jurisdiction and find that the basic claim of the complainant is only that he was allured by publication in the newspaper and he purchased Bajaj Chetak Scooter and a cheque was also issued to the complainant of Rs.25,000/-, which will be encashed after 18 years, but when the said cheque was dishonoured, then the instant complaint filed by the complainant, so, we find that the product purchased by the complainant on the basis of alleged incentive published in the newspaper and if the same is not fulfilled, then the matter involved in this case apparently covered under the Consumer Protection Act and if the said cheque is dishonoured, then apparently it is a deficiency in service as well as unfair trade practice on the part of the OPs. So, from this angle, the plea taken by the OPs is not sustainable in the eyes of law.

12. Coming to the main issue in dispute i.e. whether the complainant is entitled for refund of the cheque amount, which had been dishonoured from the bank, vide memo Ex.C-2 and photostat copy of the cheque Ex.C-3. No doubt, OP No.1 and 2 categorically denied that they have no concern with the OP No.3 Okara Agro Industries Limited, who gave the publication in a newspaper, but we do not agree with the plea of the OP No.1 and 2 because the Bajaj Chetak Scooter is admittedly manufactured by the OP No.2 and OP No.1 is its dealer in Jalandhar and whenever such like a wide publication is given by any person though OP No.3/Okara Agro Industries Limited or other person and like that publication must has come to the notice of the manufacturing firm and all the dealers of that area, where the said publication has been circulated. Even the names of all dealers have been also mentioned in the said publication Ex.C-1 and photograph of the Bajaj Chetak Scooter is also printed thereon and name of the company i.e. Bajaj Chetak is also printed on the said publication. So, if the said publication is given by Okara Agro Industries Limited/OP No.3 on behalf of the Bajaj Chetak Company, then it is the bounded duty of the manufacturing firm to take immediate action or gave an other circulation through publication that the said publication given by Okara Agro Industries Limited is not a true version, but for the best known reason, the said Bajaj Chetak Firm remains silent for a long time and even did not take any action against the Okara Firm, who gave such wide publication in the newspaper. Moreover, the said publication has been given by the OP No.3 just to give incentive to the general public to raise the sale of the Bajaj Chetak Scooter and ultimately, its beneficiary is who one, whether OP No.3/Okara Agro Industries or the Bajaj Chetak Company, the answer is obviously is that the Bajaj Chetak Firm and if Bajaj Chetak Firm get the benefit of that publication, whereby sale of the Bajaj Chetak Firm was increased and then how the OP No.2 can run away from his responsibility to pay the said cheque amount to the complainant/customer though the same was issued by the Okara Agro Industries/OP No.3 or OP No.2. So, with these observations, we are of the considered opinion that the OPs are liable to pay the cheque amount to the complainant with interest as well as compensation.

13. In the light of above detailed discussion, the complaint of the complainant is partly accepted and all the OPs are directed to pay the cheuqe amount of Rs.25,000/- to the complainant with interest @ 9% per annum from the date of dishonour of the cheque i.e. 23.12.2015, till its realization and further OPs are directed to pay compensation to the complainant, to the tune of Rs.15,000/- and litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

16.10.2018 Member President