Tamil Nadu

North Chennai

CC/148/2015

M/s.SRM BRicks & Agri Firm - Complainant(s)

Versus

Mahindra & Mahindra Limited - Opp.Party(s)

M/s V. Shankar

23 Oct 2017

ORDER

 

                                                            Complaint presented on:  21.09.2015

                                                                Order pronounced on:  23.10.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

MONDAY THE 23^rd DAY OF OCTOBER 2017

 

C.C.NO.148/2015

 

 

M/s.SRM Bricks & Agri Firm,

Represented by its Partner R.Raghavan,

Having Office at No.2/181-C,

Pugazhenthi Salai,

J.J.Nagar,

Mugappair East,

Chennai – 600 037.

                                                                                    ….. Complainant

 

..Vs..

1. Mahindra & Mahindra Limited,

Rep by its Managing Director,

Trucks and Buses Division,

II Floor, ‘Mahindra Towers’

Worli, Mumbai – 400 018.

 

2. M/s. Rajalakshmi Automobiles Pvt. Ltd.,

Rep by the Managing Director,

No.259, Bye Pass Road,

Poonamallee,

Chennai – 600 056.

 

.....Opposite Parties

Date of complaint                                 : 27.10.2015

Counsel for Complainant                      : M/s.V.Shankar, S.Ramesh,

                                                                 R.Venkatraman

         

Counsel for 1^st Opposite Party                 : M/s.Shivakumar & Suresh

 

Counsel for 2^nd Opposite Party                      : Ex - Parte

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to pay a sum of Rs.5,00,000/- as damages for unfair trade practice and Rs.4,00,000/- towards deficiency in service u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant is a registered partnership firm consisting of two partners engaged in manufacturing of bricks for their livelihood. The 1^st opposite party is the manufacturer of the tipper truck and the 2^nd opposite party is the dealer of the 1^st opposite party.  The complainant purchased a tipper lorry for a value of Rs.10,88,596/- as per the proforma issued by the 2^nd opposite party/dealer dated 13.06.2015. The 2^nd opposite party identified the vehicle to be of 2015 make and also agreed to give discount of Rs.10,000/-.

          2. The vehicle was delivered on 24.06.2015 and at the time he noticed that the vehicle hand run for about 6147.5km. The speedometer and driver seat was damaged. Hence the complainant lodged a complaint with the 2^nd opposite party. On 10.07.2015, two representatives of the 2^nd opposite party inspected the vehicle and admitted that on 30.06.2015 setting out their grievances and also the photograph of the speedometer which discloses that the vehicle has covered more than 6000 kms by the time it was sold. After a complaint was lodged, two representatives from the opposite party inspected the vehicle on 10.07.2015. During inspection, the said persons admitted the following aspects namely:

1. The under chase  body has to be repainted
2. The old battery has been installed and has to be replaced
3. The seat cover has been damaged
4. The speedometer has to be repaired
5. There is oil leakage in the Gear Box and the oil in the Engine is very low and the colour in dark and thick indicating that it has been used for a longer period. 

Thereafter on 17.07.2015, the complainant received the registration certificate from the RTO which clearly indicated that the vehicle is of the year 2014 and the vehicle was registered as TN-20-CA-1792. In a fraudulent manner, the opposite parties have sold an old vehicle which has covered more than 6000 kms. The opposite parties in fact received the sale consideration to the tune of more than Rs.10 lakhs which is the value of a vehicle manufactured in 2015. After the complainant pointed out that the vehicle is an old one of 2014 make, to cover up their mistake, the opposite parties sent a cheque for Rs.99,460/- stating that it is excess payment and have now changed the version stating that it is a discount offered on account of purchase of 2014 vehicle. The letter dated 13.07.2015 enclosing a cheque for Rs.99,460/- states that excess payment is being refunded, while the subsequent e-mail communications state that the 2^nd opposite party offered  and returned the said sum of Rs.99460/- as discount for purchasing a 2014 make vehicle. The complainant demanded only 2015 model and paid money for the same.

          3. The opposite parties created fictitious story stating that the complainant opted only 2014 model vehicle and therefore they gave a discount of about Rs.99,460/-. Since the opposite parties did not come out with any tangible action, complainant was constrained to issue a legal notice on 01.08.2015. However, they said that they are not in a position to replace the vehicle with a 2015 model, since the vehicle has been registered. Hence the opposite parties committed unfair trade practice and thereby further committed deficiency in service and hence the complainant filed this complaint to direct the opposite parties to take back the complainant vehicle and to pay a sum of Rs.10,88,576/- with 24% per annum from 16.06.2015 till the date of realization and also to pay a sum of Rs.5,00,000/- as damages for unfair trade practice and also Rs.4,00,000/- towards deficiency in service.

4. WRITTEN VERSION OF THE   1^st OPPOSITE PARTY IN BRIEF:

          The complainant himself has stated that they purchased the said truck for transporting bricks thereby earning profits, hence the complainant cannot be termed as ‘Consumer’.  The relationship between this opposite party and the opposite party No.2 is on ‘principal to principal’ basis and as a matter of business practice this opposite party does not deal with any customer for sale of the new car or vehicle, hence cannot comment what transpired between the complainant and the 2^nd opposite party.

5.This opposite party has been given to understand that the complainant was willing to buy 2015 model vehicle however it did not met the budget and requirements of the complainant, hence the opposite party No.2 offered stock vehicle of 2014 at a special price. It is stated that his opposite party is nowhere involved in this sale transaction and cannot be held liable for the acts or omissions of the Dealer/opposite party No.2. This opposite party has been further given to understand from the dealer that the complainant’s representative/partner visited the stockyard wherein he was provided with the gate pass to enter the stockyard and inspect the vehicle. The inspection was conducted with the 2014 model vehicle only. This opposite party has been given to understand that the complainant was fully aware that the vehicle is of 2014 make at the time of delivery and has purchased the vehicle satisfactorily after conducting all the pre-delivery inspection. However, it may be noted that all the vehicles manufactured by this opposite party undergo strict quality checks, certified and thereafter dispatched to the dealers across the country.

          6. The vehicle sold at the dealership point also undergoes pre-delivery inspection and being satisfied with the condition and performance of the vehicle, it is sold to the consumers and in this case also the said process ought to have followed at the opposite party No.2. This opposite party has been further given to understand that there was no problem with the vehicle at the time of delivery and the complainant had taken the delivery after proper inspection and satisfaction and the same ought to have acknowledged by the complainant in the vehicle delivery acknowledgement note. This opposite party given to understand that there was no problem at the time of delivery of the vehicle and therefore this opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

7. The 2^nd opposite party /dealer who sold the vehicle to the complainant remained ex-parte.

 

 

8. POINTS FOR CONSIDERATION:

          1. Whether the complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what extent?

9. POINT NO :1 

          It is an admitted fact that the complainant is a registered partnership firm consisting of two partners engaged in manufacturing of bricks and for the said business their require the tipper lorry and the 1^st opposite party is the manufacturer of tipper vehicle and the 2^nd opposite party is the dealer of the 1^st opposite party and the complainant approached the 2^nd opposite party to ascertain the cost of the vehicle and the 2^nd opposite party issued Ex.A1 proforma invoice dated 13.06.2015 for a sum of Rs.10,88,576/-  and the complainant paid the amount by availing a loan from the Andra Bank by a pay order dated 16.06.2015 and after payment the vehicle was delivered on 24.06.2015 and the 2^nd opposite party raised the insurance to the vehicle and Ex.A2 is the policy  issued to the complainant vehicle.

          10. The 1^st opposite party would argue that the complainant himself admitted in the complainant pleadings that the complainant form engaged in manufacturing bricks and for the said purpose he purchased the vehicle and therefore the complainant cannot be considered as a Consumer. The complainant himself specifically stated in the complaint that they were engaged in the business for earning their livelihood. Apart from this business there is no evidence on behalf of the opposite parties that the complainant from carrying on some other business other than the manufacturing of bricks.  The complainant counsel relied on an order reported in I(2017) CPJ 147 (NC) (COCHIN PORT TRUST 7 ANR. Vs. M.B.SATPUTE 7 ORS) to support his case. The National Commission held in the above case in para 19 as follows:

          Now coming to the question of commercial purpose, it is seen that the complainant has stated in his complaint that the machine was imported  to perform the ordered jobs by the complainant for earning his livelihood. The details of the firm are not on record and it is not clear how many partners are involved in this firm. The number of partners can range from 2 to 50, but the complaint has been filed by only one partner. As firm is not a legal entity, the question of livelihood and self-employment shall be seen in the context of its partners. As the machine in question is a lathe machine costing only Rs.2.5 lakh and it was used by the firm and impliedly by its partners, we would be inclined to treat it a case of earning livelihood through self-employment because no contrary evidence has been produced by the appellants. No other profession, business or any commercial activity on the part of the firm or partners has been alleged or proved by the appellants. Thus, we hold that in the present case, the complainant is a Consumer.

          In the case in hand also the complainant is  not having any profession or   business in respect of commercial activities on the part of the firm or partners and therefore the complainant carrying on only brick manufacturing business   for their livelihood of the partners as held by the Hon’ble National Commission and therefore, we hold that the complainant is a Consumer in this case.

11. POINT NO:2

          The complainant alleged deficiencies against the opposite parties are that

      1.the one of the partner of the complainant visited the yard of the 2^nd opposite party to see the vehicle and at that time  the 2^nd opposite party shown the vehicle manufactured in the year 2015 and all along the 2^nd opposite party made the impression that the complainant is purchasing only the 2015 year make and the insurance Ex.A2 also issued to him shown the year of manufacturing as June 2015 and however, when the complainant received the RC,(TN 20 CA 1791) he found that the RTO clearly indicated that the vehicle was in the year of 5/2014 make, and the complainant demanded only 2015 model and paid money for 2015 model,

      2. the opposite parties sold the vehicle to the complainant which has covered more than 6000 kms in the Vodometer,

      3. the 2^nd opposite party agreed to give discount of Rs.10,000/- and however, when the complainant pointed out the vehicle was sold to him is an old and one of 2014 make and to cover up their mistake, the 2^nd opposite party sent a cheque for Rs.99,460/- towards excess payment refund.

Ex.A1 proforma invoice dated 13.06.2015  issued by the 2^nd opposite party for a sum of Rs.10,88,576/- for tipper lorry to the complainant. The 2^nd opposite party insured the vehicle in favour of the complainant. In the insurance policy Ex.A2 the year of manufacturing reflected as June 2015. The complainant also wanted to purchase the vehicle manufactured in the year 2015.  In Ex.A6, RC the year of manufacturing mentioned as 5/2014. Only on seeing the registration certificate the complainant came to know that the vehicle was sold to him manufactured in May 2014. Immediately the complainant questioned the same that he wanted only the 2015 make. However, the 2^nd opposite party has not changed the make and delivered only the 2014 make vehicle.  The invoice issued to the complainant during June 2015 in the middle of the year.  The vehicle sold to the complainant was manufactured in May 2014. No prudent man will purchase one year old manufactured vehicle for the cost prevailing at the time of the purchase.

12. The 2^nd opposite party sent a sum of Rs.99,460/- through cheque enclosed with Ex.A5 letter to the complainant, towards excess payment refund. Whereas the 2^nd opposite party stated in his Ex.A8 e-mail letter to the one of the partner of the complainant that “since it is not 2015 model, we gave higher discount”.  From the above, it is clear that the 2nd opposite party himself contradicts his own statement in Ex.A5 and Ex.A8 towards the amount of Rs.99,460/-paid to the complainant. At the time of the delivery of the vehicle the complainant found that the speedometer reading was 6147.5 km  already run and the meter, seat cushion was also damaged. This fact was also communicated to customer care of the 1^st opposite party through Ex.A7 mail along with meter reading photograph as shown at page 10 of Ex.A7. This fact of the kilo meter reading was not denied by any of the opposite party. Therefore, these circumstances establish that the 2^nd opposite party sold the 2014 model old vehicle to the complainant. Therefore, the complainant proved that the   2^nd opposite party/ dealer sold the 2014 make vehicle as if manufactured in the year 2015 to him is an unfair trade practice of the 2^nd opposite party.  

13. The 2^nd opposite party not only committed unfair trade practice and also committed deficiency in service to the complainant. The 1^st opposite party is only a manufacturer and he has no dealing with the complainant to sell the vehicle and it is only the 2^nd opposite party who sold the old vehicle to the complainant and therefore, it is held that the 1^st opposite party has not committed any deficiency in service and the 2^nd opposite party only committed unfair trade practice and deficiency in service.

14. POINT NO:3

          Admittedly the vehicle purchased by the complainant is in his possession and he also using the same. The complainant sought relief to refund the cost of the vehicle. As the 2^nd opposite party committed unfair trade practice by selling the 2014 year make vehicle as if 2015 year vehicle, the refund of the cost of the vehicle can be refunded to him as prayed. The cost of the vehicle is Rs.10,88,576/-. The complainant himself admitted that the 2^nd opposite party already refunded the amount of Rs.99,460/- . Hence by deducting the refunded amount the balance amount of (10,88,576 – 99,460) = Rs.9,89,116/- shall be ordered to be refunded to the complainant by the 2^nd opposite party.

          15. The complainant also claimed 24% interest from 16.06.2015 to till the date of realization for the amount to be refunded. The complainant also currently using the vehicle for his business purpose. Therefore awarding interest for the cost of the vehicle is not justifiable and the same is rejected.

          16. The complainant also sought for damages of Rs.5,00,000/- for unfair trade practice and also for Rs.4,00,000/- for deficiency in service. The 2^nd opposite party made the complainant to believe that he is selling 2015 make vehicle and whereas, he actually sold 2014 model is a serious unfair trade practice and that is why when the complainant questioned the year of make, the 2^nd opposite party himself refunded huge amount of Rs.99,460/-. Further the Consumers are purchasing the vehicles from the dealer and the dealers have to tell the true facts of the vehicle to the complainant and to sell them. Therefore, in such circumstances to teach a lesson to the 2^nd opposite party, we inclined to award huge damages to the complainant to a tune of Rs.1,00,000/- payable by the 2^nd opposite party towards unfair trade practice and deficiency in service committed by him.

          17. The complainant did not seek any cost towards the expenses of the complaint and therefore we have not inclined to order any cost. The complaint in respect of the 1^st opposite party is liable to be dismissed.                               

          In the result the Complaint is partly allowed. The 2^nd Opposite Party is ordered to refund a sum of Rs.9,89,116/- (Rupees nine lakhs eighty nine thousand one hundred and sixteen  only) towards the cost of the vehicle to the Complainant and the complainant shall simultaneously return the vehicle to the 2^nd opposite party and  also to pay  a sum of Rs. 1,00,000/- (Rupees one lakhs only) towards damages  for the unfair trade practice and deficiency in service. No costs. The complaint in respect of the 1^st opposite party is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 23^rd day of October 2017.

 

MEMBER – I                                                                PRESIDENT

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 13.06.2015                   Proforma Invoice

Ex.A2 dated 24.06.2015                   Copy of the Insurance Policy

Ex.A3 dated 30.06.2015                   Copy of the e-mails

Ex.A4 dated 10.07.2015                   Inspection report

Ex.A5 dated 13.07.2015                   Copy of the letter enclosing cheque

Ex.A6 dated 24.06.2017                   Copy of the registration certificate

Ex.A7 dated 17.07.2015                   Copy of mail sent by Complainant

Ex.A8 dated NIL                     Copy of mail sent by 2^nd Opposite Party

Ex.A9 dated 01.08.2015                   Copy of the legal notice issued by the Complainant

                                                     to the Opposite Party

 

Ex.A10 dated 24.08.2015                 Copy of the reply notice by the Opposite Party to

                                                     the Complainant

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY :

 

 

Ex.A1 dated 24.06.2015                   Copy of PDI Report

 

Ex.A2 dated NIL                     Warranty Terms and Conditions

 

 

 

MEMBER – I                                                                PRESIDENT