Punjab

Nawanshahr

CC/34/2018

Bhagwan Dass - Complainant(s)

Versus

M.R Auto & other - Opp.Party(s)

In person

15 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No.         :    34 of 2018

Date of Institution                             :    04.07.2018

Date of Decision:                    :    15.01.2019

 

Bhagwan Dass R/o House No.509, Lajpat Nagar, Chandigarh Road, Nawanshahr.                                                    ….Complainant

Versus

1. M.R. Auto (Appointed Dealer of Hero Motorcop), Chandigarh Road, Nawanshahr, through Manager.
2. Hero Motorcop India, 34, Community Centre, Basant Lok, Basant Bihar, New Delhi – 110027 through Manager.

          …Opposite Parties

                             Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH.KULJIT SINGH, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         In person

For OP-1                                  :         Sh.Kamaldeep Ummat, Advocate  

For OP-2                                 :         Sh.Jatin Sharma, Advocate

 

ORDER

PER SH. KULJIT SINGH, PRESIDENT

1. Complainant filed present complaint under Section 12 of Consumer Protection Act, 1986, by alleging that he is having motorcycle manufactured by OP-2.  On 05.07.2016 he purchased one spark plug (MRP of Rs.60.50/- inclusive all taxes), one Air cleaner Part-A (MRP Rs.61/- inclusive of all taxes) and one Air cleaner Part-B (MRP Rs.30/- inclusive of all taxes) from OP-1 who is appointed dealer of OP-2 for his aforesaid motorcycle.  Total price comes to Rs.151.50 as printed on it but OPs have charged Rs.161/- illegally.  Bill Ex.C-1 and Ex.C-2 and slips of MRP of goods are Ex.C-3 to Ex.C-5. When, he talked with concerned agency they disclosed that he has to pay Rs.161/-.  Customer care centre also not solved his problem. By charging excess amount of Rs.9/- and not solving his problem, the OPs have harassed him and he suffered with financial loss and mental tension.  Lastly, he prayed for compensation for financial loss and mental harassment of Rs.50,000/- and litigation expenses of Rs.20,000/-.
2. Upon notice, OP-1 has appeared and filed written version by taking preliminary objections that application is not maintainable as complainant has approached to this Forum only for a amount of Rs.9/- which is short amount.  Complainant has not served any notice to answering OP neither he approached to OP-1 as alleged by him.  On merits, it is admitted that answering OP is authorized dealer of Hero Motor Corp Ltd. It is denied that these spare parts were not purchased during any service. This is a counter sale. These parts are highly used as they are periodic parts used during periodic service and are under running parts category.  The reason is that the retail invoice is totally computerized system and in this retail invoice which is presented by complainant shows the name of the customer by way of hand written Bhagwan Dass.  In their computerized system, they don’t mention any name of customer by hand in invoice.  As their system is computerized, they mentioned the name of customer on his demand in the computer.  The retail invoice presented by the complainant appears to be a suspicious document and is not admissible.  The documents produced by complainant at very later i.e. after gap of 2 years as such complaint is not maintainable.  Complainant is cheating with the company by producing the old sticker of spare parts.  He never approached to OP-1 regarding excess amount nor served any legal notice and prayed for dismissal of complaint.
3. OP No.2 has appeared and filed separate written version.  By taking preliminary objections, it is submitted that complaint is misconceived and untenable.  Complainant has not come to this Forum with clean hands. Complaint is abuse of process of this Forum.  Complaint is barred by limitation as this complaint filed beyond the statutory period of 2 years as in view of invoice dated 05.07.2016.  Complaint is frivolous and vexatious. As alleged by complainant, the dispute pertains to excess charge of Rs.9.00, on purchase of one spark plug bearing part No.980565773800S of MRP 80.50/- bearing invoice No.11390-03-CHS0716-440 and two Air Cleaner bearing part No.17211KCC900LS and 17213KCC900LS of MRP 61.24/- & 26.25 bearing invoice No. 11390-03-CSH0716-441 from OP-1, both invoice dated 05.07.2016 issued by OP-1.  That transaction took place between the complainant and OP-1 and OP-2 is not privity to the transaction that took place nor it has any role in the transaction that allegedly transpired.  It is submitted that OP-2 has been wrongfully and unnecessarily been impleaded as party by complainant in order to use the mercies of law against the OPs and to unlawfully extract money for his own personal gains and seeking compensation which is 10,000 times of alleged amount at the instance of OP-1.  Complainant has never approached the answering OP to resolve the problem.  The OP-2 has no role in the transaction allegedly occurred.  On merits, each and every averments made in the complaint are empathically denied and prayed for dismissal of complaint.
4. To prove his complaint the complainant has tendered self declaration/affidavit Ex.CW1/A alongwith photocopies of documents i.e. retail invoices dated 05.07.2016 Ex.C-1 & Ex.C-2, price tags Ex.C-3 to Ex.C-5.  He also filed an affidavit attested on 14.08.2018.   In rebuttal, counsel for OP-1 has filed affidavit of Charanjeet Singh Saini Ex.OP1/A. Counsel for OP-2 has filed affidavit of Amiteshwar Singh Ex.OP2/A alongwith authorization letter Ex.OP2/1.  
5. We have heard the learned counsel for OPs and have also gone through the written arguments of complainant and record carefully.
6. Before final disposal of this complaint, we will first dispose of the application filed by the complainant under Order VIII Rule 10 of C.P.C. to strike the defence of OPs to file written statement. Hence, the question remain for consideration before us is that whether OPs are entitled to file written version beyond the period of 45 days or not. For that purpose, we place reliance upon order of Hon’ble Supreme Court of India in D.No.2365 of 2017 titled as Reliance General Insurance Co Ltd and Anr Vs M/s Mampee Timbers and Hardware Pvt Ltd and Anr, wherein it is held that “It will open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter”.
7. We are also placing reliance on the order dated 04.01.2019 passed by our own Hon’ble State Commission, Punjab, Chandigarh in case of Paramjeet Kaur and another Vs Star Realtech and Developers Pvt. Ltd, whereby they placed reliance on judgment of Supreme Court of India (Supra).  Accordingly, the application of complainant stands disposed of.  
8. Both the parties argued by way of oral and written similar to their respective pleadings. So no need to reproduce for want of repetition.  Complainant has referred some citation to support his complaint.  From the copy of sticker of Air cleaner Ex.C-3 and copy of sticker of Air cleaner Ex.C-4, and copy of spark plug Ex.C-5, it is evident that the M.R.P. of the purchased product are Rs.30.00 (Air cleaner), Rs.61.00 (Air cleaner), Rs.60.50 (Spark Plug) (inclusive of all taxes). On the retail invoice, Ex.C-1, issued by the OP -1, the M.R.P. of the purchased product has also been mentioned as Rs.60.50/- to round off OP-1 added Rs.0.50 and as per retail invoice Ex.C-2, the selling price was mentioned as Rs.87.49 and adding VAT @ 13% and surcharge @10% the total amount comes to Rs.100/-. The taxable amount has been mentioned as Rs.7.57 and round of charges of Rs.0.50. However, the OPs after adding, on this amount has raised the bill for Rs.61.00 and Rs.100/-. It may be stated that as per Section 2(d) of the Consumer Goods(Mandatory Printing of Cost of Production and Maximum Retail Price) Act,2014, no extra amount over and above the M.R.P., printed on the goods can be charged, even the same has been sold on discount, as M.R.P. has already been inclusive of all taxes levied on the goods. In the case titled as M/s Aeroclub (woodland) Versus Rakesh Sharma, Revision Petition No.3477 of 2016, decided on 04 Jan 2017 , the Hon’ble National Commission has already held that “In our opinion, therefore, the defence of the Petitioners that they had charged VAT as per law is of no avail in so far as the issue at hand, viz. misleading advertisement, resulting in unfair trade practice, is concerned.  We are in complete agreement with the Fora below that any discount falling short of “Flat 40% on the MRP would amount to unfair trade practice, as defined in the Act”
9. Since the OPs have charged excess price of the product, in violation of Section 2(d) of the Consumer Goods(Mandatory Printing of Cost of Production and Maximum Retail Price) Act,2014, therefore, it has not only committed deficiency in service but also indulged in to unfair trade practice. Resultantly, we partly allow the complaint against the OPs with a direction to it to refund the amount charged extra from the complainant and also to pay Rs.2,000/- as litigation expenses. So far as compensation on account of mental harassment is concerned, complainant found not entitled to any amount.  The present complaint has admittedly been filed after a gap of sufficient period.  As complainant kept mum for such a long period.  Moreover, he failed to prove on record any approach or visit to OPs after purchase of disputed products.  Had he been suffered from mental harassment, he would have come to this Forum immediately.  Thus, complainant has failed to prove that he suffered any mental tension and agony, so he is not entitled to any amount on this account.  But the OPs have no right to keep and misappropriate the public money.  It must go back to the public.  We, therefore, order that the OPs will deposit a sum of Rs.5,000/-, the estimate rough amount, with the consumer Welfare fund of this Forum.  The OPs are further directed to comply the aforesaid order within a period of 30 days from the date of receipt of the certified copy of this order, otherwise, it will carry interest @ 9% P.A. till realization.
10. Arguments in this complaint were heard on 11.01.2019 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

Dated:  15.01.2019

(Kanwaljeet Singh)       (Kuljit Singh)

Member                         President