PRESENT: Sh.Arvind Bansal, Adv. for Complainant.

         Sh.Vaibhav Narang, Adv. for OPs No.1 & 2.

           Sh.Krishan Singla, Adv. for OP No.3.

           None for OP No.4.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant had purchased a Scorpio on 22.2.2008 for Rs.6,64,000/- from OP No. 3, vide invoice as at Annexure C-1. The model of the vehicle was stated to be of January, 2008, which was duly recorded in the Sale Certificate (Form No.21), copy of which is at Annexure C-2. It was alleged that later on, the vehicle was found to be 2007 model. The Complainant was totally aghast over the unfair dealing of OP No. 3, as he had spent more than Rs.50,000/- on the said vehicle in the shape of registration expenses, insurance, accessories, servicing from time to time; moreso, it had also reduced the value of the vehicle, being one year old model. Accordingly, he requested the OPs time and again either to replace the vehicle or refund the value of vehicle along with other charges spent by him for registration, but all in vain. In this backdrop, a legal notice dated 14.8.2008 was sent to the OPs, in response to which, vide letter dated 22.8.2009, OP No.1 informed him that they were in the process of collecting relevant details, and would revert back soon. When after waiting for some time, nothing positive could come out, the Complainant filed Complaint No. 1520 of 2008 in this Hon’ble Forum, which was withdrawn by the Complainant with a liberty to file afresh, vide order dated 29.12.2008. Thereafter, he again served a legal notice to the OPs including the Financer (OP No.4) on 10.2.2009 (Annexure c-8), again requesting them to either replace the vehicle with new one or to refund the value of the same along with interest and other compensation for the aforesaid wrongful act on their part. In response to the said legal notice, OP No. 4 delivered the Sale Certificate (Form No.21), dated 22.2.2008, issued by the OP No.3, mentioning the month and year of manufacture to be that of July, 2007 (Annexure C-9). Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed for the following reliefs:-

a)  To replace the Scorpio vehicle with new one of latest model or refund the amount of Rs.6,64,000/- as value of the said vehicle along with interest at the rate of Rs.18% p.a. till its realization.

b)  To refund the amount of Rs.50,000/- as spent by the Complainant on the said vehicle in the shape of registration, insurance, accessories and servicing of the vehicle from time to time.

c)  To award the compensation for the mental tension, torture, financial loss, unfair trade practices and fraud committed by the OPs with the Complainant, to the tune of Rs.5,00,000/-.

d)  The present complaint may kindly be allowed with heavy costs on account of the fraud committed by OPs by forging the documents.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OP No. 1 & 2 in their joint written statement, while admitting the factual matrix of the case/reply, pleaded that the Complainant purchased the vehicle in question with his own choice and wisdom after satisfying himself about the features and performance of the vehicle. The model of the vehicle has always been indicated through a computerized device on its machine parts, so that no one could fabricate the model/year of manufacturing of the vehicle. The allegations levelled by the Complainant in the complaint were false, misleading and an afterthought just to seek undue advantage from the answering OPs. The Complainant was well aware about the model/year of manufacturing of the vehicle. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      OP No. 3 in their reply while admitting the factual matrix of the case, pleaded that the Complainant had purchased a Scorpio vehicle manufactured by Mahindra and Mahindra from OP No. 3, bearing Chassis Serial No. MAITB2GCK 72 G88658 and Engine No. GC74G67606. It was asserted that the manufacturer had always reflected the model of the vehicle in the Chassis No. and Engine No. In Chassis, as well as in the Engine No., the figure “7” listed was indicating that the vehicle was of the year 2007. It was only on account of some clerical mistake that in Form No 21, the year of manufacturing was typed as January, 2008. The model of the vehicle had always been indicated through a computerized device on its machine part, so that no one could fabricate the year of the model. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on its part, a prayer has been made for dismissal of the complaint with exemplary costs.

5]      OP No. 4 in their written statement, while admitting the factual matrix of the case/reply, pleaded that it being engaged in the business of rendering financial services, have got no role to play with regard to any transaction of OP No. 1 to 3 with the Complainant, as it was neither the manufacturer nor seller of the vehicle in question. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on its part, a prayer has been made for dismissal of the complaint with exemplary costs.

6]      Although OP No.4 persued the present complaint through its Counsel/Proxy Counsel at different stages of the case, but later on, during the final arguments, the OP No. 4 failed to turn up, therefore, we deem it appropriate to dispose of the instant complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date), even in absence of OP No.4.

7]      Parties led evidence in support of their contentions.

8]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsels for the Complainant and OP No. 1, 2 & 3. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having purchased a Scorpio vehicle from OP No. 3 for Rs.6,64,000/- vide invoice as at Annexure C-1, and that the vehicle was stated to be of Jan.2008 model, as per the sale certificate (Form No.21) and that subsequently, the Complainant found that the vehicle in question was of 2007 model and not 2008 model, have all been admitted. The Complainant further says that he spent more than Rs.50,000/- on the said vehicle, on account of registration expenses, insurance, accessories and servicing from time to time. The main contention of the Complainant against the OPs is that 2007 model of the vehicle had a reduced value, as compared to the 2008 model, on account of the fact that whenever a vehicle is launched in a new year, it has always some new features and certain added advantages to the buyer and that in case the old model for the previous year is sold in the subsequent year, the Dealers, generally float various schemes and offer discounts in the range of Rs.50,000/- to Rs.1,00,000/-, depending upon the price of the vehicle. But, the Complainant was interested only to buy a brand new vehicle with the latest model of the year 2008 and that OP No. 3 had assured him that the vehicle being sold to him in February, 2008, was carrying the latest features and was of 2008 model. As per the Complainant, he came to know that the vehicle sold to him by OP No. 3 was of 2007 model only by seeing the inscription on the machine parts, particularly the engine number and chassis number. After knowing and confirming the fact of the OPs having sold the old 2007 model to him, by representing that it was a 2008 model, he requested them a number of times to replace the vehicle with a new one of 2008 model or refund the value of the said Scorpio vehicle in full and also refund the other charges spent by him for registration and other related expenses. It is a fact that the OPs have so far neither replaced the vehicle, nor refunded any amount to the Complainant, representing the cost of the vehicle or the other expenses incurred by the Complainant on the said vehicle.

ii] OP No. 1 & 2 in their written statement/ reply have touched certain common points. They say that the Complainant purchased the vehicle in question of his own choice and wisdom after satisfying himself abut the features, the performance and model of the vehicle. So far as the model of the vehicle is concerned, it is always indicated through a computerized device on its machine parts, so that no one can fabricate the model or year of manufacture of the vehicle. The OPs have emphasized that the Complainant was fully aware about the model and year of manufacturing of the vehicle and that all the allegations leveled by the Complainant in his complaint were false, misleading and an afterthought, just to seek undue advantage from the OPs.

iii] On the same lines, OP No. 3 which is the main party in the present case, in its reply has repeated almost the same contentions and pleadings as in the case of OPs No. 1 and 2. It has further stated that the model of the vehicle can be easily made out from the chassis no. and engine no. and the Complainant was fully aware about these facts including the exact model of the vehicle. It has further clarified that it was only on account of some clerical mistake that in Form No. 21, the year of manufacturing was typed as January, 2008, whereas, the vehicle in question was of 2007 model, as the real model of the vehicle is always indicated through a computerized device on its machine parts, so that nobody can fabricate the year of the model. All other pleadings of the Complainant have been denied by this OP, requesting for the dismissal of the complaint with costs.

iv] OP No. 4, which is basically the financier of the vehicle in the present case has pleaded that it has no role to play with regard to any transaction of OP No. 1 to 3 with the Complainant, as it was neither the manufacturer, nor the seller of the vehicle in question. All other material contentions of the Complainant have been controverted by this OP and it has prayed for the dismissal of the complaint qua it.

9]      After going into the minute details of the entire case and analyzing the facts and figures available, as also the documents tendered, in addition to the arguments put forth by the counsels for the parties, it is quite clear that OP No. 3, which is the main party in this case has sold a Scorpio vehicle to the Complainant for Rs.6,64,000/- on 22.2.2008 (Annexure C-1). Annexure C-2 is the sale certificate dated 22.2.2008 (Form No.21),  issued by OP No.3 to the Complainant, which clearly shows the following details:-   

Annexure C-9 is one more sale certificate (Form No.21), issued once again by OP No.3 to the Financier (OP No.4), bearing the same date i.e. 22.22008. This sale certificate has the following details:-

10]     Even a cursory glance on these two sale certificates issued by OP No. 3, the one to the buyer i.e. the Complainant and the other to the financier i.e. OP No. 4, shows a number of inherent discrepancies and contradictions. For example, in one case, the month and year of manufacture is shown as “January 2008” and in the other it is “July 2007”. In the 1^st sale certificate, seating capacity including driver is shown as “7+2” and in the 2^nd, it is “7+1”. On the same lines, the horse power or cubic capacity in the 1^st case is 2523 CC and in the other it is 2609 CC. In both the sale certificates, the date of issue is the same i.e. 22.2.2008 and Sr. No./ Engine No./ Chassis No. is also the same.

11]     The above comparison shows the highly unfair conduct and poor credentials of the seller/ dealer i.e. OP No. 3. There is a clear cut misrepresentation of facts and also that entirely misleading information was given to the Complainant, on the one hand and the Financier OP No. 4, on the other.  OP No. 3 has not been able to clarify the glaring discrepancies and lapses, appearing in these two documents by adducing any cogent evidence or justification. In any case, such glaring discrepancies and misleading information can’t by any stretch of imagination, be termed as a mere clerical mistake on the part of OP No.3. It is clearly an intentional and deliberate act on the part of OP No. 3 to hoodwink and defraud the Complainant to show that he had been delivered a 2008 model Scorpio vehicle; whereas, in reality it was 2007 model vehicle.

12]     From the above, the motive of the OPs, especially OP No.3 is very clear. It wanted to pass off the old model of 2007, by showing it to be of 2008 model and thereby gain financial and other advantages. Not only that, such vital information was cleverly and mischievously concealed from the prospective buyer i.e. the Complainant and also no heavy discount or highly reduced price was offered to the Complainant on account of selling him the old vehicle of 2007 make by representing the same to be of Jan., 2008 model, except the routine payment of insurance premium of Rs.19,535/- and some other minor incentives, all totalling Rs.23,535/-, which in any case is a routine procedure being followed by most of the car dealers, especially in the months of January, February and March, every year. This small discount or incentive offered to the Complainant has nothing to do with the sale of old 2007 model, which has been clearly represented to be of 2008 model. Admitting even for a moment that this discount was given to the Complainant only on account of the old model being sold to him, then why stating the entirely misleading and totally incorrect facts in the sale certificates, which has not been satisfactorily and adequately explained by OPs either in their written statement or during arguments. All this clearly not only proves the gross deficiency of service on the part of the OPs, especially, OP No.3, but also indulgence in an unfair trade practice on the part of the OPs. On the one hand, the learned counsel for the Complainant has ably proved his case beyond an iota of doubt; on the other hand, the learned counsels for the OPs have not been able to convince us as to whether they had any case at all in their favour. Even OP No. 1 & 2, who are the manufacturer of the Scorpio vehicle have defended the acts of omission and commission on the part of OP No. 3, the Dealer-cum-Seller of the vehicle and found no fault with OP No.3. Clearly, OP No. 3 has been authorized by OP No. 1 and OP No. 2 to sell and service the Scorpio Vehicles and, therefore, even OP No.1 & 2 can’t wash their hand off the misadventure indulged in by OP No.3.  

13]     From the aforesaid detailed discussion, we are of the considered opinion that by supplying the 2007 model of a costly vehicle such as Scorpio, representing it to be a 2008 model, the OPs are definitely and certainly deficient in service and they have also indulged in an unfair trade practice. As such, the present complaint has a lot of weight, merit and substance in favour of the Complainant and against the OPs. We, therefore, allow the complaint, favouring the Complainant and against the OPs.

14]     However, the prayer of the Complainant to replace the Scorpio vehicle with a new one of the latest model or refund the amount of Rs.6,64,000/- as value of the said vehicle, along with interest @18% p.a. is just not tenable. In the pleadings made by the Complainant, as well as during the arguments, it was never contended by the learned counsel for the Complainant that the vehicle in question had any manufacturing defect or that it was not giving good and efficient service during its use. Therefore, the claim of the Complainant for refunding him the entire price of the vehicle or providing him with a brand new vehicle of the latest model, after using it for more than one year extensively, is not justified. To our mind, the only loss the Complainant has suffered is that the vehicle supplied to him was of 2007 model and not 2008 model. Clearly the sale value of 2008 model will be definitely higher, as compared to the value of the 2007 model, if it is sold in the year 2008, as it would have been one year old by then, on account of the depreciation component for one year. The Complainant can only be compensated only to that extent. So far as the claim of the Complainant in respect of expenses incurred by him with regard to the registration, insurance, accessories and servicing is concerned, it carries no meaning, as the Complainant was obliged to get all these things done, irrespective of the fact whether the vehicle in question was of 2007 model or 2008 model. Therefore, such losses claimed by the Complainant are only imaginary, fictional and without any basis and hence, these cannot be allowed with any justification whatsoever.

15]     But, there is certainly the point against the OPs, especially, OP No. 3 i.e. the unfair trade practice indulged in by them by selling the old model vehicle and representing the same as new model. It is not known as to in how much cases they had done such a thing by misrepresenting the facts and defrauding the gullible customers by selling them the one year old vehicles and passing off them as new ones. Such a wrong and nasty practice on the part of OPs needs to be curbed with a heavy hand and, therefore, the OPs need also be made to pay punitive damages on account of this kind of unfair trade practice, as in the case of the present complaint.

16]     Since OP No. 4, admittedly, is only the Financier, having financed the Scorpio vehicle to the Complainant at the behest of the other OPs, it has no role to play, as rightly pleaded by it in its written statement/reply, either in the manufacturing of the vehicle or selling the same to the Complainant. Therefore, apparently, there is no deficiency of service or indulgence in an unfair trade practice on the part of OP No. 4. Therefore, the present complaint is dismissed qua OP No.4.

17]     Keeping in view the foregoings, we allow this complaint in favour of the Complainant and against the OP Nos. 1 to 3 and pass the following order.

18]     OP Nos. 1 to 3 shall jointly and severally make the following payments:

(a) OP Nos. 1 to 3 shall, jointly and severally, pay a sum of Rs.50,000/- to the Complainant for the financial loss suffered by him, on account of sale of the 2007 model of Scorpio vehicle, representing it as a 2008 model, to him.

(b) OP Nos. 1 to 3 shall, jointly and severally, pay Rs.20,000/- as compensation for causing physical harassment, mental agony and pain, on account of supply of a 2007 model vehicle passing off as 2008 model to the Complainant.

(c) To pay litigation cost of Rs.5,000/- to the Complainant.

(d) The OP Nos. 1 to 3 shall also, jointly and severally, pay a sum of Rs.2.00 lakh as punitive damages u/s 14(d) of the Consumer Protection Act, 1986, for indulging in a gross unfair trade practice of selling a 2007 model of the Scorpio vehicle, representing it as 2008 model. This amount shall be paid to/deposited with the State Legal Services Authority, U.T. Chandigarh, through its Member Secretary, by the OPs.

18]     The aforesaid order be complied with by the OP No.1 to 3, jointly and severally, within a period of 30 days from the receipt of its certified copy, failing which the OP No. 1 to 3 shall pay the sum of  Rs.2.70 lakh along with interest @18% per annum from the date of filing of the present complaint i.e. 13.3.2009, till the date of realization, besides paying the cost of litigation of Rs.5,000/-.

19]              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.