BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 125 of 2015
Date of institution: 12.01.2015
Date of Decision: 19.08.2015
Chander Shekhar son of R.M. Prashar, resident of House No.2346, Sector 44-C, Chandigarh 160047.
……..Complainant Versus
1. M/s. A-Once Car Bazar, SCO No.13, 1st Floor, Phase-6, Mohali, Punjab through its authorised representative.
2. Ankur Gupta, Proprietor M/s. A-one Car Bazar, SCO No.13, Ist Floor, Phase-6, Mohali, Punjab.
3. Rakesh Kumar, Proprietor M/s. A-one Car Bazar, SCO No.13, Ist Floor, Phase-6, Mohali, Punjab.
4. Anil Raina son of Avtar Krishan Raina, Deputy General Manager of M/s Kone Elevators India Private Limited, having its office at SCO 110, Sector 47-C, Chandigarh.
5. M/s Kone Elevators India Private Limited, having its Corporate Office at 7th Floor, Aggarwal Corporate Heights, A-7, Netaji Subhash Place, New Delhi 110034 through its Authorised representative.
6. M/s Kone Elevators India Private Limited, having its Registered Office and Factory Office at 50-55 & 58 Vanagaram Road, Ayanambakkam, Chennai 600095 through its authorised representative.
………. Opposite Parties
7. Honda Auto Terrace, Honda Harmony, Plot No.67, Industrial Area, Phase-2, Chandigarh 160002 through its Manager/Authorized Representative.
8. Raman, Looking After used Cars Sale/Purchase Section at Honda Auto Terrace Honda Harmony, Plot No.67, Industrial Area, Phase-2, Chandigarh 160002.
………. Proforma opposite Parties
(OP No.4 and 8 given up by the complainant vide statement dated 25.02.2015)
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ARGUMENTS HEARD AND DECIDED BY
Shri Amrinder Singh Sidhu, Presiding Member
Mrs. R.K. Aulakh, Member.
Present: Complainant in person.
Shri Gaurav Gupta, counsel for OP Nos.1 to 3.
OP No.4 and 8 given up.
Shri Pankaj Chandgothia, counsel for OP No.5 and 6.
OP No.7 ex-parte.
(Amrinder Singh Sidhu, Presiding Member)
ORDER
The complainant filed the present complaint pleading that Opposite Parties (for short ‘the OPs’) No.1 to 3 are running business of sale and purchase of used cars. The complainant approached OP No.1 though OP Nos.2 and 3 for purchase of a car to meet his daily requirement. OP Nos.2 and 3 showed to the complainant a Ford Fiesta Petrol car bearing Registration No.CH-04-E-7367 and assured that the vehicle is owned and used by OP No.4. They further assured the complainant that the vehicle is non-accidental and not repainted and has covered a distance of 47422 Kms as shown in the meter on 15.07.2014. On the asking of OP No.2 the complainant paid a sum of Rs.5,000/- as a booking amount but no receipt was issued by OP Nos.1 to 3. On 16.07.2014 the complainant paid an amount of Rs.2,00,000/- to OP Nos.1 to 3, out of which Rs.10,000/- was paid as cash and Rs.1,90,000/- through bank draft drawn on Canara Bank in favour of OP No.3. After receipt of this payment, the complainant took the delivery of the car from OP No.2 and 3. On the very next day OP No.2 asked the complainant to cancel the demand draft and transfer the amount to the bank account of OP No.2. From 16.07.2014 the vehicle started giving problems like water entry in the rain, kms and speedometer malfunctioning, window motors not working, driver side door lock not working, clutch cylinder leakage. The complainant requested OP Nos.2 and 3 to provide him any other car or to refund the amount. OP Nos.2 and 3 agreed to refund the amount within 15 days but no one turned up. When the complainant again asked the OP Nos.2 and 3 to refund the amount, OP Nos.2 and 3 informed the complainant that the amount has been transferred to OP No.4 and it would further take 20 to 25 days for OP No.5 to issue the payments as OP No.4 and 5 have agreed to refund the amount due to defects in the vehicle. The complainant again approached OP Nos.2 and 3 for refund of the amount but OP Nos.2 and 3 again gave the same excuse. The complainant took the vehicle to service centre for repairs on 27.08.2014 where it was revealed to him that the car had already covered distance of more than 1,00,000 kms when last service was conducted by the same dealer in December, 2011. The mechanics also informed the complainant that the vehicle was repainted all over except roof and accidental repaired at rear right side. The actual market price of the car was not more than Rs.1,00,000/- whereas the complainant had been paid Rs.2,05,000/- for the same. Besides this the complainant had also paid Rs.10,500/- as insurance and Rs.7796/- as service and repair of the vehicle to bring it in running condition. The complainant in this regard sent e-mails on 28.08.2014, 29.08.2014 and 08.09.2014 to OP Nos.1 to 3. The complainant approached OP No.4 on 01.09.2014 to know the status of refund and OP No.4 informed the complainant that the said vehicle had already been sold to OP No.7 and 8 and there was no conversation or transaction with OP Nos.2 and 3. Thereafter, the complainant approached OP Nos.1 to 3 and asked about the misrepresentations made by them but instead of resolving the issue, OP No.2 and 3 lodged a false complaint against the complainant with the police which was later on withdrawn by OP Nos.2 and 3. The complainant had been provided wrong information regarding current owner of the vehicle, about actual kms. run and condition of the vehicle and OP Nos.1 to 3 had charged excess amount that the actual market price. The grievance of the complainant has been resolved by the OP No.1 to 3 till date due to which the complainant and his family had to undergo a lot of harassment, mental stress.
Lastly the complainant prayed to this Forum to issue following directions to the OPs to:
(a) refund the amount of Rs.2,05,000/- alongwith interest @ 12% per annum from the date of presentation of complaint till realisation.
(b) pay him Rs.10,000/- as litigation costs.
(c) pay him Rs.10,500/- being the insurance charges and Rs.7796/- as service charges and repair of the vehicle.
(d) to take back the vehicle and to pay him Rs.80,000/- as damages towards mental harassment and agony.
2. After service of notice, OP No.1 to 3 appeared through counsel and filed reply to the complaint taking preliminary objections that the car was purchased by the complainant through a car dealer after complete satisfaction and no warranty was provided at the time of sale. OP Nos.1 to 3 are dealers and the car was in the name of OP No.5, hence these OPs are not liable to pay any claim directly or indirectly to the complainant. The complainant does not come under the definition of ‘Consumer’ as defined under the Consumer Protection Act, 1986. The car was purchased by the complainant for re-sale purpose to make profit out of it. The complainant has concealed and suppressed the material and relevant facts. The complaint is bad for non joinder and misjoinder of necessary parties as manufacturer of the car and authorised repairer of the car are the necessary parties.
On merits it is pleaded that after verifying the documents and engine details of the car finalized the car deal on total sale consideration of Rs.2,00,000/- and the complainant paid a booking amount of Rs.10,000/-. The defects which the complainant has alleged could not be concealed or hidden because the defects are visible from first use/first impression of the car. The complainant first contacted OP No.2 on 29.08.2014 after 42 days of purchase of car and never raised any problem in the car. The complainant was aware about the car insurance as all the documents of the car were duly verified by him. On 04.09.2014 the complainant came to the office of OP Nos.2 and 3 with three gunda persons and gave threats to kill if they do’not pay Rs.2,50,000/- to the complainant for the said car. On this OP Nos.1 to 3 approached Police Station Phase-1, Mohali where a settlement was entered into between the parties. Lastly, denying any deficiency in service or unfair trade practice on their part, OP Nos.1 to 3 have sought dismissal of the complaint.
3. OP No.5 and 6 in their reply have pleaded in the preliminary objections that complaint against them is not maintainable as they had sold the car through their authorised signatory to M/s. Harmony Honda through its consultant. The complainant has bought the said vehicle in second hand market from OP Nos.1 to 3, therefore, the complainant has no privity of contract with OP No.5 and 6. On merits, they have denied the averments made in the complaint and sought dismissal of the complaint against them.
4. The complainants placed on record affidavit Exb.CW-1/1 and Exb.CW-1/2 and tendered in evidence documents Exb.C-1 to C-10.
5. OP Nos.1 to 3 placed on record joint affidavit of Ankur Gupta and Rakesh Kumar both Prop. Exb.OP-1/1 and tendered in evidence documents Exb.OP-1/2 to OP-1/5.
6. OP Nos.5 and 6 placed on record joint affidavit of Anil Raina, DGM Exb.OP51/1 and tendered in evidence documents Exb.OP-5/2 to OP-5/3.l
7. We have heard learned counsel for the parties and we have also gone through the file.
8. The complainant’s main allegation in this complaint besides other allegations is that OP No.1 to 3 misrepresented to him that OP No.5 and 6 namely M/s Kone Elevators India Private Limited are owners of disputed car bearing Registration No.CH-04-E-7367 instead of OP Nos.7 and 8 at the time of sale of the car for consideration of Rs.2,05,000/- on 16.07.2014. Copy of cash receipt dated 16.07.2014 which is Exb.C-3 proves that Rakesh Kumar OP No.3 received amount of Rs.2.00 lacs in cash and issued this cash receipt to the complainant in lieu of taking delivery of the vehicle. The complainant namely Chander Shekhar gave delivery letter of taking possession of the vehicle. Then complainant issued demand draft of Canara Bank in favour of OP No.3 namely Rakesh Kumar for an amount of Rs.1,90,000/- later on it was cancelled. The complainant transferred the amount of Rs.1,90,000/- to the bank account of OP No.2 namely Ankur Gupta which is Ex.C-5 (second leaf). OP Nos.1 to 3 admitted in Para No.4 of their reply that complainant paid a booking amount of Rs.10,000/-. OP No.4 and 5 namely M/s Kone Elevators India Private Limited admitted that they have sold the car to OP No.7 and 8 namely Ramanjit Singh which is Exb.OP-5/3. Further delivery letter dated 01.06.2014 which is Exb.OP-5/2 contains that OP No.8 namely Ramanjit Singh took the delivery of possession of car on 01.06.2014. Therefore, it is clear that OP No.5 and 6 namely M/s Kone Elevators India Private Limited sold the car for Rs.one lac to OP No.7 and 8 on 01.06.2014. The same car was sold to the complainant namely Chander Shekhar by OP Nos.1 to 3 for Rs.2.00 lacs on 16.07.2014 without having any ‘locus standi’. They are neither owners of the car nor agents of OP Nos.7 and 8. They cannot pass a title which they themselves do not possess on the date of sale. This amounts to unfair trade practice on the part of OP Nos.1to 3. Though complainant could not prove that the car is accidental and repaired one yet he proved that the car has covered mileage of 1,10,012/- KMs on 28.12.2014 vide service sheet of Bhagat Ford which is Exb.C-8 whereas OP No.1 to 3 told him that the car has covered only 47,422 KMs. It also falls within definition of unfair trade practice. OP Nos.1 to 3 are not only held guilty of unfair trade practice but also negligent towards the complainant for non redressing his grievance for such a long time.
Thus, the complaint is partly allowed and OP Nos.1 to 3 namely:
1. M/s. A-Once Car Bazar, SCO No.13, 1st Floor, Phase-6, Mohali, Punjab through its authorised representative.
2. Ankur Gupta, Proprietor M/s. A-one Car Bazar, SCO No.13, Ist Floor, Phase-6, Mohali, Punjab.
3. Rakesh Kumar, Proprietor M/s. A-one Car Bazar, SCO No.13, Ist Floor, Phase-6, Mohali, Punjab.
are directed to:
- Refund to the complainant the amount of Rs.2.00 lacs i.e. price of the disputed car bearing Registration No.CH-04-E-7367.
(b) take the possession of car bearing Registration No.CH-04-E-7367 under proper receipt from the complainant.
(c) to pay compensation of Rs.20,000/- to the complainant on account of harassment and mental agony.
(d) to pay compensation of Rs.10,000/- to the complainant as costs of litigation.
Compliance of this order be made within a period of forty five days from the date of receipt of a certified copy of this order failing which complainant shall be entitled to interest @ 9% per annum from the date of order till actual realisation. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
August 19, 2015.
(Amrinder Singh Sidhu)
Presiding Member
(Mrs. R.K. Aulakh)
Member
