Order-15.
Date-06/11/2015.
In this complaint Complainant Smt. Sumita Shaw by filing this complaint has submitted that complainant purchased one Four wheeler Maruti Swift VDI Diesel having Engine No.13A1005521, Chasis No.214128 for the ops on payment of Rs. 30,000/- dated 18.03.2015 by way of earnest advance money out of the total consideration amount of Rs. 2,45,000/- vide cash receipt no. 6102 and a booking docket no. 491 and on 25.03.2015 complainant was handed over the vehicle by making payment of the rest amount of Rs. 2,15,000/- vide cash receipt no. 6112 from the above mentioned address of ops’ workshop.
Fact remains that as per the presentation and assurance made to the customer/complainant what had been madeand it was represented by an assurance that the said Maruti Swift Car, VDI was purchased by one PurnenduMondal of Belgachia Road, Kolkata-700037 as first owner and the said Maruti Swift Car, VDI had a odometer showing reading of 33,000 K.M. and complainant was if the view that the quoted price was a true value as per quotation of the ops and other features and history are correct.
Further complainant found that the said Maruti Swift Car, VDI was not at all upto the mark as per committed history made by the ops was not fulfilled.But ops again assured in writing to fulfil the same and ops assured the complainant to hand over said Maruti Swift Car, VDI and after delivery on 07.04.2015 the job card spoke that the vehicle was in the name of one RenuMalpani who is the recorded owner still now and it revealed that the vehicle ran more than 1,00,000 K.M. which was suppressed to the complainant and in this way said Maruti Swift Car, VDI was handed over to the complainant and the price which had been paid by the complainant is not at all the true value and said vehicle’s is an exorbitantly high not fit for the said Maruti Swift Car, VDI.
So, complainant again visited the workshop of ops on 08.04.2015 and ops totally denied the liability whereby demanded extra charges for which they already issued invoice and assured previously that the work has been done as the complainant finding no other alternative replaced the engine oil for which she suffered losses and damages.
So, it is highly disappointing and utterly disgraceful on the part of the service of the ops for which taxes, service charges and other have already been paid by the complainant due to non-service or deficiency in service on the part of the ops as the said Maruti Swift Car, VDI is a necessary commodity of the daily livelihood.So, complainant suffered heavy loss.So, complainant being deceived by the ops, sent a legal notice on 10.04.2015 to the ops and requested the ops to look into the matter for negligent and deficient manner of service on the part of the ops and make necessary arrangement to replace the said Maruti Swift Car, VDI within 7 days from the service of the notice.But ops deliberately failed to do the same and neglected to replace the said Maruti Swift Car, VDI.
In fact for the above reason and for negligent and deficient manner of service and for deceiving the complainant in such complainant suffered huge losses and also suffered mental agony so complainant under compulsion filed a complaint against the said ops for refund of entire paid amount with interest and also for compensation.
On the other hand op nos. 1 to 4 by filing written version submitted that the complaint is not maintainable as the complainant is not a consumer under the law and the instant case is vexatious, false and frivolous.
M/s. Sonei Motors Pvt. Ltd. is an authorized dealer of Maruti Suzuki India Ltd. and it also runs a True Value Shop and used to sell used/pre owned cars.Fact remains that the Sonei Motors True Value Shop purchased a Swift VDI sedan body hard top four wheeler from its owner namely PurnenduMondal, which is being insured with National Insurance Co. Ltd. and at the time of purchase by the complainant, the owner handed over all necessary documents including Certificate of Registration, Road Tax Receipt and Insurance Policy up to date Emmition Certificate and all other necessary forms like Form Nos. 28, 29, 30 at the time of delivery of the vehicle and at the time of delivery of the car to the complainant, Odometer showed the meter reading was 33,000 K.M.
On 18.03.2015 complainant visited the show room of the ops and after physical inspection of the car and verification of all documents relating to the same complainant became satisfied and decided to purchase the said car at a fixed value of Rs. 2,45,000/- and complainant booked the car by paying an advance of Rs. 30,000/-.Subsequently complainant received the delivery of the car on 25.03.2015 after completing the repair jobs as per Pre Owned car Booking/Commitment Checklist on payment of balance price.
Thereafter ops got a legal notice dated 10.04.2015 from one Ranjit Das, Advocate and came to know that there were certain allegations of misrepresentations on the part of the ops to the complainant at the time of selling the said pre owned car and thereafter ops received a show cause notice on 16.06.2015 from this Ld. Forum fixing 03.07.2015 for appearance and on receiving the show cause notice ops appeared this Forum on the said date and complainant served the entire bunch of annexure annexed to the complaint.
On perusal of the said documents, ops found that one RenuMalpani has been referred as the first owner of the said car. In this connection ops submitted that owner of the car PurnenduMondal at the time of selling the car did not disclose to the ops that he was not the first owner, but he purchased the said car from RenuMalpani.Further ops stated that the car was repaired at Mohan Motor Udyon Pvt. Ltd. according to the job card dated 18.06.2012 where the millage had been shown as 34,026 K.M. on 23rd visit for running repair.
Further ops stated that no where they stated that the said car it is second hand car.But on the contrary in the booking checklist dated 18.03.2015 it was clearly mentioned that the car would be sold as it’s condition was full body denting and painting along with A/C gas charged at a total consideration of Rs. 2,45,000/- and complainant after physical inspection and documents being satisfied agreed to purchase the car and put her signature in the Pre-Owned Car Booking/Commitment Checklist which clearly shows her full consent about the terms and conditions for purchasing the car.
In view of the facts and circumstances, ops submitted that there were no deficiency or negligence on the part of the ops and there was no unfair trade practice.So, complainant is not entitled to get any relief as prayed for in the complaint.Furthermore the allegations of replacement of Engine Oil and alleged loss and damaged caused by the ops is a false and fanciful allegations and it is denied.
Ops also stated that in case of second purchase of a commodity by an intending purchaser after proper verification question of deficiency of service or unfair trade practice does not arise at all and in this regard ops stated that a purchaser of a resold goods cannot be termed as a consumer and any dispute raised by the purchaser cannot be termed as consumer dispute.So, the allegations is false and fictitious.
So, ops categorically denied all the allegations of the complainant as the complainant purchased pre owned car after proper inspection of the physical condition and verifying the related documents, so the complainant is not entitled to claim any refund or any compensation as claimed in the complaint.Therefore, ops prayed that the instant complaint case should be dismissed as the complainant filed a false, vexatious, baseless and fictitious complaint.
Decision with reasons
On careful consideration of the complaint and written version and further considering the argument as advanced by the Ld. Lawyers of both the parties it is undisputed fact that op displayed for sale of the car showing the details of the status of the car and complainant being allured by the advertisement made in respect of the selling of the car and status of the car intended to purchase and no doubt complainant paid Rs. 2,45,000/- knowing fully well that it was the first owned own car and owner of the car was PurnenduMondal and the said vehicle ran 33,000 K.M. and on payment the car was handed over. When it was found that same was sold and sale was confirmed by the op. So, same was sold by the op and when the vehicle was handed over to the complainant, complainant found that the said car was in the name of RenuMalpani and the vehicle already ran more than one lakh K.M. as per document submitted by the op. When complainant served a notice upon the op to clarify the situation of the vehicle op did not respond.
Most interesting factor is that op has admitted that on 25.03.2014 after completion of the remaining repairing job and receiving full payment from the complainant delivered the car and op has tried to convince that the said car was purchased by M/s. Sonei Motors Pvt. Ltd. But op has tried to convince that PurnenduMondal did not disclose that he was not the first owner of the subject car at the time of purchase by M/s. Sonei Motors Pvt. Ltd. op. But first time op claimed to learn that RenuMalpani purchased the said car and the said car was repaired and according to the job card dated 18.06.2012 where the millage had been shown as 34,026 K.M. on 23rd visit for running repair. Thereafter PurnenduMondal is a necessary party. But it is admitted fact that complainant visited the showroom of op on 18.03.2015 and after physical inspection and verification relating to the said Maruti Swift car, complainant was satisfied and decided to purchase knowing that the said car was in all respect fit for purchase and complainant purchased it.
Further it is submitted that might be interference had been done in the odometer of the car by the owner PurnenduMondal before selling the same to the op without disclosing the fact. So, considering that fact RenuMalpani is the original owner of the car and she sold away the car to PureneduMondal and from PurnenduMondal, op purchased and repaired and dressed like a new one and sold it to the complainant giving details that the car ran about 34,062 K.M.
But from the ops’ version, it is found that op was aware of the fact and at the time of purchase of the car from PurnenduMondal what was the status of the said car and who was the first owner and how much kilometer the said car ran. But after purchase from PurnenduMondal op as a business man for selling such car was repaired and odometer was changed and interforce was made for running of the car etc. So, invariably as per declaration of the op, complainant purchased it. But complainant alleged that subsequently op disclosed false declaration in the advertisement and thereafter sold it but if the complainant would be aware to that effect that the said car ran up to 1 lakh kilometer, in that case, complainant must not have to purchase. But as because op as a seller sold it to the complainant, then it is the duty of the seller to disclose the complainant everything about the status of the vehicle, but that was not done. But in place of that Pre-Owned Car/Commitment Checklist was given where it is found that odometer reading was shown the car ran 33,000 K.M. But from the year of registration is found that vehicle ran more than one lakh K.M. and considering that it is clear that op disclosed false details of the car advertisement in such a false manner and sold the car by suppressing the car’s actual status and history and for that reason complainant suffered huge loss and at the same time unfair trade practice on the part of the ops is well proved.
But truth is that op admitted that op received Rs. 2,45,000/- and thereafter handed over it. It is also proved that this op placed the car for servicing etc. prior to sale and it is found that the said car had no shown fault and it is evident from job card issued by ops and that receipt was issued by op in the name of RenuMalpani being Consumer Id No. 070009714.
Considering that fact it is clear that op was well aware of the fact that this car belonged to RenuMalpani and RenuMalpani sold the car to the owner PurnenduMondal and from PurnenduMondal op purchased it and op suppressed the fact and it is also proved that the said car ran above 1,00,000 K.M. but odometer was changed and thereafter the said car was repaired and replaced and suppressing the truth sold away the same. Now op has claimed that they were not aware of the fact that RenuMalpani was original owner but they purchased from PurnenduMondal and the first owner did not disclose that he purchased it from RenuMalpani for which op cannot be made accused.
But considering the ops’ own document dated 06.04.2015, it is found that op issued that document wherefrom it is found that the said vehicle belonged to RenuMalpani and after repairing and making it fresh like a new car, op handed over the said car ultimately, that means about the history of the car, and all materials were in the ops’ office. But op suppressed it and managed it to sell by intervening with different system changing the odometer and suppressed the fact that actual car ran above one lakh K.M. But actually the said car ran more than that and such sort of trade as adopted by the op is no doubt misleading the complainant and at the same time it is one type of unfair trade practice and to deceive the customer in such a way. It is mandatory provision of law that the seller must have to disclose the details of any articles or goods what he wanted to sell from the market and under any circumstances, seller must have to give actual declaration about the status and the other supporting documents of the goods and its engine, about its age and if it is disclosed, consumer may purchase it relying upon the disclosure of the seller but subsequently of disclosure of sale is found false, in that case invariably as consumer that the consumer is entitled to get such relief from the Forum for misleading such purchaser forgivingfalse status of the goods.
In the present case from the op’s own version and document, it is proved that op did not disclose the status of the car about running of the car in total and in regard to the second hand owner car was sold away by stating that it is first owner car after removal of the odometer and other and after repairing and paining. So, no doubt complainant has been deceived by the op and we have gathered that this op M/s. Sonei Motors Pvt. Ltd. sold such a vehicle knowing the condition of the vehicle and that is their business and when they are caught red handed, they have tried to show their innocence what we have gathered but a third hand car was sold in the market to the complainant.
So, the conduct of the op is no doubt deceitful manner and truth is that practically a damaged and old car was sold to the complainant and for which complainant suffered financial loss and it is no doubt a missale for which complainant is entitled to get redressal from this Forum when op by adopting unfair trade practice deceived the complainant by selling such a very old and damaged car in such a manner and such sort of trade practice on the part of the op tantamount to mis-selling of the goods by disclosing false history and the status of the car and for which complainant is entitled to get back the entire amount of Rs. 2,45,000/- by returning back the said vehicle to the op and also the litigation cost and some compensation/interest.
Thus the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs.10,000/-.
Opsare directed to refund the entire amount of Rs. 2,45,000/- to the complainant the price money of the said disputed car and also interest at the rate of 10 percent p.a. over the said amount from the date of 25.03.2012 and till its full payment for harassing the complainant and for adopting unfair trade practice, and also for selling such a damaged car by distorting representation without disclosing about the actual status of the car to the complainant. Ops jointly and severally shall have to pay compensation of Rs. 20,000/- to the complainant.
For adopting unfair trade practice and for misleading by distorting representation as adopted by the op for selling such type of car to the consumer and to save the consumer from the hands of such dishonest seller, ops jointly and severally shall have to pay Rs. 20,000/- to this Forum and it is imposed as punitive damages for checking such sort of activities of the ops in future.
Ops jointly and severally are hereby directed to comply the order within one month from the date of this order failing which for non-compliance of the Forum’s order, penal action shall be started against them and further ops jointly and severally shall have to pay penal interest at the rate of Rs. 200/- per day till full satisfaction of the decree and even if it is found that same is not complied by the ops, in that case, ops shall be prosecuted u/s 25 read with 27 of C.P. Act 1986, for which further penalty and fine shall be imposed upon the ops.
