Chandigarh

StateCommission

CC/428/2016

Ranjan Jain - Complainant(s)

Versus

Mercedes-Benz India Private Limited - Opp.Party(s)

Ajay Singla & Harjot S. Ahluwalia, Adv.

01 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint No.	:	428 of 2016
Date of Institution	:	05.08.2016
Date of Decision	:	01.05.2017

 

Ranjan Jain son of Sh.Pawan Kumar Jain, R/o House No.33-A, Sector 51-A, Chandigarh (U.T.).

…. Complainant

Versus

 

1. Mercedes-Benz India Private Limited, E-3, MIDC, Chakan, Phase-III, Chakan Industrial Area, Kuruli and Nighoje, Chakan Industrial Area, Kuruli and Nighoje, Taluka Khed, Pune, Maharashtra-410501, India (FAX:02135-673953).
2. Mercedes-Benz India Private Limited, E-3, MIDC, Chakan, Phase-III, Chakan Industrial Area, Kuruli & Nighoje, Taluka Khed, Pune, Maharashtra, through its Managing Director.
3. M/s Bhagat Automotive Private Limited, SCO No.41/42, Sector 8-C, Chandigarh-160008 (U.T.).
4. M/s Bhagat Automotive Private Limited, SCO No.41/42, Sector 8-C, Chandigarh-160008 (U.T.), through its Managing Director.
5. General Manager to M/s Bhagat Automotive Private Limited, SCO No.41/42, Sector 8-C, Chandigarh-160008 (U.T.).

              .... Opposite Parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.Ajay Singla, Advocate for the complainant.

                        Sh.S.S. Bawa, Advocate for opposite parties no.1                      & 2.

                        Sh.H.S. Bedi, Advocate for opposite parties no.3                       to 5.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                       

                The facts, in brief are that that complainant purchased one car make Mercedes-Benz, manufactured by opposite parties no.1 and 2, through opposite parties no.3 to 5, on 13.10.2015, for an amount of Rs.34,27,000/-. The said car was purchased by him, for his personal use. Invoice in respect of purchase of the said car has been placed on record as Annexure C-1.  Temporary registration no. was issued to the complainant by opposite parties no.3 to 5, on 13.10.2015. He also purchased an insurance policy on the said date. The documents have been placed on record as Annexure C-2 to C-4. The car was got registered with the Competent Authority, bearing registration no.CH01-BE-0426. In a camp organized by another dealer namely M/s Joshi Auto Zone, for free monsoon checkup of the cars, the complainant went through and purchased Star Care Plus extended warranty for one year, in respect of the car, in question. When the said Policy was issued, it was mentioned therein that infact opposite parties no.1 and 2 had sold the car, in question, in the name of the complainant on 30.04.2015 and not on 13.10.2015, when actually the car was purchased. Therefore, the extended warranty period was to start at the end of manufacturer warranty period of three years, given by opposite parties no.3 to 5, at the time, when the car was purchased. The extended warranty was shown valid upto 29.04.2019. In the process, six months’ lesser warranty period was granted in favour of the complainant. The complainant was shocked to know that the car was shown to have been sold in his favour on 30.04.2015, whereas infact he has purchased it on 13.10.2015. He contacted opposite parties no.3 to 5, asking explanation for the same but failed to get any positive reply. Then he sent email Annexure C-6, through his Counsel, on 04.07.2016. In the said email it was specifically stated that he came to know that the car was sold in his name on 30.04.2015, but infact, the same was actually purchased by him on 13.10.2015. By not disclosing that fact, a fraud has been committed with him. He made a request to replace the car. The employees of opposite party no.3 visited the complainant on 06.07.2016, however they showed their inability to replace the car. Thereafter, on telephone, assurance was given that necessary steps will be taken up to redress grievance of the complainant but to no avail.

2.         By mentioning as above, it is stated by the complainant that he was sold a second hand car, presenting it as a new one. A fraud has been committed with him. The car might have been used for demonstration purposes, or may be, earlier it was sold to somebody else.
3.         By stating as above, prayer was made to refund the entire amount paid with interest or to replace the said car with a new one. Compensation was also sought for causing mental agony and physical harassment to the complainant besides claiming amount spent on legal expenses.
4.         Upon notice, separate replies were filed by opposite parties no.l and 2 and opposite parties no.3 to 5.
5.         Opposite parties no.1 and 2 in their joint reply stated that they sold cars to the authorized dealer i.e. opposite parties no.3 to 5 in bulk and thereafter, the said dealer effects retail sale to the customers. The said dealer is responsible for retail sale, as well as after sale service of the vehicles. It was further stated that relationship between opposite parties no.1 and 2 and opposite parties no.3 to 5 is on ‘Principal to Principal basis’. Opposite party no.3 is not an agent of opposite parties no.1 and 2. Contention of the complainant that an old car was sold to him was negated. It was averred that manufacturer warranty period for the car was three years.
6.         In their joint reply filed, opposite parties no.3 to 5 admitted sale of the car and its price, as stated by the complainant. It was denied that the opposite parties have sold second hand car to the complainant. It was stated that one customer came to them on 30.04.2015 to purchase a new car of the model, which was sold to the complainant. Opposite parties no.3 to 5, under a belief that the said customer will purchase the car, uploaded sale of the said car, online, with opposite parties no.1 and 2. However, thereafter, due to some financial issue, the said customer backed out and failed to purchase that car. That very car was sold to the complainant on 13.10.2015, as a brand new car and date of registration is also shown on the said date. It was admitted that there was a loss of manufacturer warranty period, to the complainant, in respect of the car, in question, between 30.04.2015 to 13.10.2015. It was stated that opposite parties no.3 to 5, are ready to compensate the complainant for the said loss. It was averred that there was no deficiency in providing service on the part of opposite parties no.3 to 5. Prayer was made to dismiss the complaint, with costs.
7.         Noting contents of the reply and evidence, filed by the opposite parties, this Commission passed following order on 19.12.2016:-

 “In the reply filed by Opposite Parties No.1 and 2, it is stated that the abovesaid Opposite Parties sell the vehicles in bulk to the authorised dealers and then it is the responsibility of the said dealer to effect retail sale to the customers. At the time of arguments, it was virtually admitted that the present car, in question, was punched on 30.04.2015 as per the record of Opposite Parties No.1 & 2 and also the other Opposite Parties. Opposite Parties No.1 and 2 are directed to file an affidavit of some responsible officer of the Company, disclosing, as to when the delivery of the car, in question, was given to Opposite Party No.3, whether the said delivery was given after the receipt of the price of the car and when punched on 30.04.2015, whether it was shown as sold car in the records of Opposite Parties No.1 and 2; what is the procedure when the car is punched ; whether the price is received at that time or not. Further in the affidavit, it will also be disclosed that whether any car of the same model was sent for sale to Opposite Party No.3 by Opposite Parties No.1 and 2 between 13.04.2014 upto 13.10.2015.

Opposite Party No.3 is also directed to file an affidavit disclosing, to book a car in the month of April, 2015, as alleged in the reply, in somebody’s else name, how much amount was received and through which process and if price had not been received, why the car was shown as sold/purchased. Name of the person, who booked the car and on payment of how much amount be also disclosed in the affidavit.

Adjourned to 16.01.2017. ”

8.         It was noted that the car in dispute was punched for sale on 30.04.2015, as per record of opposite parties no.1 and 2. Opposite parties no.1 and 2 were directed to file an affidavit, disclosing as to when the delivery of the car, in question, was given to opposite party No.3; whether the said delivery was made on receipt of price of the car; when car was punched for sale on 30.04.2015, whether it was shown as a sold car in the records of opposite parties No.1 and 2. Opposite parties no.1 and 2 were further directed to disclose, as to how many cars of the same models were supplied to opposite party No.3 between 13.04.2014 upto 13.10.2015. Opposite party No.3 was also directed to file an affidavit disclosing, to book a car in the month of April, 2015, as alleged in the reply, in somebody’s else name, how much amount was received and through which process and if price had not been received, why the car was shown as sold/purchased. Name of the person, who booked the car and on payment of how much amount, was also asked to be disclosed in the affidavit.

                In response to the above said order, additional affidavit of their Deputy General Manager (Legal Affairs & Secretarial), was filed by opposite parties no.1 and 2. In para no.2, it was specifically stated that the car was sold in the name of opposite party no.3 on 13.04.2015. Copy of invoice was placed on record as Annexure-A. Perusal of the said document at page 56 of the file, makes it very clear that the said car was sold by opposite party no.1 and 2, in favour of opposite party no.3 on 13.04.2015 and not on 30.04.2015, as alleged by opposite party no.3. By making reference to document Annexure-C, it was further stated that the car was not run by anybody else because at the time of delivery, it has covered only 74 kilometers. Following facts with regard to sale of the car, were mentioned in para no.6 of the affidavit:-

 

“I further state that, here in this case, as per the information received from O.P. No.3, one prospective customer approached O.P. No.3 for buying the subject vehicle. Accordingly, O.P. No.3 had placed order through the system and received the subject vehicle on 21.04.2015 accordingly from O.P. No.1 (covered by invoice No.400144 darted 13.04.2015 of O.P. No.1). Subsequently, O.P. No.3 released payment for the subject vehicle which was received by O.P. No.1 on 31.05.2015.

Further, as per the information received from O.P. No.3, for the purpose of generating invoice, O.P. No.3 had entered the details of the prospective customer and the subject vehicle in the system on 30.04.2015 anticipating that the prospective customer would be able to arrange finance on his own. However, the said prospective customer could not arrange the finance and hence the transaction of sale of the vehicle could not be completed. Since O.P. No.3 had already entered the customer and vehicle details in the system in anticipation of this sale, the warranty period automatically became effective from the date of first such entry i.e. from 30.04.2015.”

 

                It was clearly stated that opposite party no.3 placed order for the said car through online system on 13.04.2015. Vehicle was delivered on 21.04.2015 and payment was paid by opposite party no.3 on 31.05.2015.

9.         In response to above order, an additional affidavit was also filed by opposite party no.3 through Sh.Mahesh Ahuja, its CEO, stating that earlier, the car was booked by one Gourav Arora, a resident  of Panchkula, to get some benefit, as provided by opposite parties no.1 and 2. Booking amount was not paid by the said customer. It was stated that for the car in dispute, no invoice was ever issued in the name of anybody else and it was not a used car.
10.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.
11.         We have heard Counsel for the parties and have gone through the record of the case, very carefully.
12.         Case of the complainant that a second hand car was sold to him, does not appear to be correct. It is admitted on record that as per delivery certificate, when car was handed over to the complainant, it had covered only 74 kilometers. It was stated at the bar, by Counsel for the complainant that odometer of the car, might have been tampered, by the opposite parties. However, to support above said contention, expert report has not been placed on record. Further, there is nothing on record to show that for the car, in question, any temporary registration was issued in favour of any other party or may be in the name of the Company itself. To know above fact, opposite party no.3 was directed to bring the books used to issue temporary registration nos. Those were produced in this Commission on 03.04.2017. Books were perused by Counsel for the complainant and there was nothing on record to show that any temporary registration certificate was ever issued qua the car, in dispute. To that extent, averments made are not correct.
13.         However, deficiency in providing service and adopting unfair trade practice, by opposite parties no.3 to 5 has amply been proved on record. It is not in dispute that the car was purchased by the complainant on 13.10.2015. As per delivery certificate Annexure-C, annexed with additional evidence of Mr.Rameshwar A. Jagpat, DGM aforesaid, car was handed over to the complainant on 13.10.2015. Material fact, that in the record of opposite parties no.1 and 2 car was shown to have been sold on 30.04.2015 was never disclosed to the complainant, by opposite parties no.3 to 5, when car was sold to him. It was also not disclosed to him that in view of above sale, the manufacturer warranty qua the car, in dispute, will start whereof 30.04.2015 and not from the date of purchase by the complainant i.e. from 13.10.2015. The complainant was kept in dark. On coming to know above said fact, if the same would have been disclosed to the complainant, he may or may not have, purchased the said car. In the Company’s record, car was shown to have been sold to the complainant, six months prior to the date of actual sale to him and that will be a fact to be noted, when he will sell the said car to somebody else. Value of the new car depreciates very fast and on account of above fact, definitely the complainant is going to suffer a loss. Furthermore, by concealing the material fact, unfair trade practice has been adopted by opposite parties no.3 to 5. The fact of sale, in the manner, referred to above, came to the notice of the complainant only when he went to another dealer M/s Joshi Auto Zone, for free checkup of his car, in a Camp organized by the said dealer.  He purchased one policy for extending warranty period, against Policy. Policy was issued to him, from the date of sale of car, which was shown as 30.04.2015. There is clearly a loss of six months’ manufacturer warranty period, in respect of the car purchased by the complainant.  

                At the time of arguments, it was stated by Counsel for opposite parties no.3 to 5 that for the said loss, they are ready to compensate the complainant. Be that as it may, by not disclosing the fact, as mentioned above, opposite parties no.3 to 5, indulged into unfair trade practice. As it is proved on record that the car was sold to nobody else and it was not a second hand sale in favour of the complainant, no case is made out to order replacement of the car with a new one and/or to order refund of price thereof, as claimed by the complainant. However, definitely mental agony and physical harassment has been caused to the complainant. He was dragged to this Commission, by opposite parties no.3 to 5 and further there is a loss of six months’ manufacturer warranty period and also on account of sale, having been made six months prior to the purchase by the complainant, definitely he will suffer loss on account of depreciation in its value, when he may decide to sell it in future.

14.         Under above circumstances, the complaint filed by the complainant is partly accepted with costs, with the following directions:-

1. Let opposite parties no.3 to 5, give benefit of six months’ warranty period in respect of car in question, to the complainant for the loss caused. Opposite parties no.3 to 5 will make a request to opposite parties no.1 and 2 that against payment, as may be demanded by opposite parties no.1 and 2, let period of warranty be extended for the period of loss. When such request is made, opposite parties no.1 and 2 shall be bound to accept that request and extend warranty period on making payment of requisite charges by opposite parties no.3 to 5. After getting warranty extended, a certificate be issued by opposite parties no.1 and 2 to the complainant, showing above said fact. Needful shall be done within a period of 3 (three) months, from the date of receipt of a certified copy of this order.
2. Further, for loss of value of the car, on account of depreciation; and  also compensation for mental agony and physical harassment, we deem it appropriate to grant an amount of Rs.3 lacs, lumpsum, in favour of the complainant, to be paid by opposite parties no.3 to 5 only.
3. Besides as above, opposite parties no.3 to 5 shall also pay Rs.50,000/- to the complainant, as cost of litigation.
4. Besides making compliance to direction no.(i) above, compliance to the directions given in para no.(ii) and (iii) shall be made by opposite parties no.3 to 5, within a period of 2 (two) months, from the date of receipt of a certified copy of this order, failing which, the same (amount awarded at sr.nos.(ii) and (iii) shall carry interest @12% p.a. from the date of filing this complaint, which shall be paid by opposite parties no.3 to 5, till realization of amount awarded.

15.         Certified copies of this order be sent to the parties, free of charge.
16.         The file be consigned to Record Room, after completion.

Pronounced.

01.05.2017

Sd/-

[JUSTICE JASBIR SINGH(RETD.)]

PRESIDENT

 

Sd/-

 

[DEV RAJ]

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

 

 

Rg.