Complainant Satpal through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has sought issuance of necessary directions to the titled opposite parties to repair and deliver the vehicle or return the blank signed cheques and also to return the amount received by the opposite parties after December 2009 to May 2012. Opposite parties be also directed to award any other relief which he is found entitled and to pay Rs.3,00,000/- on account of harassment, mental agony, pain and loss to his business alongwith Rs.10,000/- as litigation expenses to him.
2. The case of the complainant in brief is that he purchased a Auto Atul Shakti Passenger, Colour Black + Yellow Chassis No.HAR08F00044 and engine no.R8G0525372 from opposite party no.1 authorized dealer of opposite party no.2 on 10.1.2009 for Rs.1,05,000/-. At the time of delivery of vehicle amount of Rs.42,000/- was paid by him to opposite party no.1 in advance and remaining amount was financed by opposite party no.3 which was to be given in installments of Rs.4336/- per month and the delivery of the vehicle was received from opposite party no.1 which is the branch office of opposite party no.2. The abovesaid vehicle is manufactured by company of opposite parties and was financed by opposite party no.3 and opposite party no.3 received 10 signed blank cheques from him as security, thus he is consumer of the opposite parties. He has next pleaded that he was regularly paying installments. In the month of December 2009 his vehicle was having engine problem and the same was stopped. Thereafter the matter was reported to opposite party no.1 at Gurdaspur. The opposite party no.1 after some checking of the vehicle and reported that there is defect in the engine of the vehicle and spare parts of engine was not available in his agency as the spare parts are to be received from the opposite party no.2 and opposite party no.1 stored the vehicle at agency and assured that they will remove the defect and it will take some time. After that he regularly paid his installments to respondent No.3 and used to request the opposite parties to repair the vehicle and deliver the same to him. Last installment was paid by him to the opposite party no.3 on 27.5.2012. In the month of August 2012 he visited the office of opposite party no.1 and requested to return the vehicle after removed defect, on this opposite party no.1 assured that the vehicle will be delivered to him in first week of November 2012. Again in the month of November 2012 he visited the office of opposite party no.1 to get the vehicle back, but again opposite party no.1 said that vehicle was not repaired due to the lack of spare parts and assured him that the delivery of the vehicle will be given to him in the first week of January 2013 and on that day it came to his notice that opposite parties have left the office from Gurdaspur. After that he many times contacted the opposite parties through phone and requested them to deliver the vehicle in question but all in vain. Opposite party no.4 with the connivance of opposite party no.1 to 3 has filed a complaint u/s 138 of N.I.Act against him at Gujrat. He had paid the amount of Rs.42000/- in advance at the time of delivery of vehicle and through installments Rs.85,000/- so total amount of Rs.1,27,000/- has been paid by him to opposite parties. He has next pleaded that the opposite parties are trying to receive the amount than the total price of the vehicle on the other hand the vehicle is in his custody since December 2009 and according to hire purchase agreement they cannot receive any amount from him after getting the vehicle from him. Hence this complaint
3. Upon notice, the opposite parties appeared through their counsel and filed the written reply taking the preliminary objections that the complaint is bad for non-joinder & mis-joinder of the necessary parties as the delivery of the vehicle was given by the Jagdamba Motors, Pathankot; the complainant is not entitled to get any kind of relief from this Hon’ble Court due to his own wrongs as he has not deposited the installments regularly; the complaint of the complainant is time barred; the complainant has not come to the Court with clean hands as he has suppressed some material facts from this Hon’ble Forum and the complainant has filed a false, frivolous complaint and having no merits. On merits, it was submitted that the complainant purchased an Auto Atul Shakti Passenger from the opposite party no.1 on 15.12.2008 for Rs.1,30,000/- and he made a down payment of Rs.25,000/- and remaining amount of Rs.1,05,000/- was financed by the opposite party no.3 on a monthly installment of Rs.4336/- for three years. The said vehicle was delivered to the complainant on 15.12.2008 from the Jagdamba Motors, Sarna Road Pathankot and the vehicle was insured by the United India Insurance Co.Ltd., on 15.12.2008 till 14.12.2009. It was specifically denied that the complainant purchased the Auto on 10.1.2009 for a consideration of Rs.1,05,000/- and at the time of delivery Rs.42,000/- were paid by the complainant as a down payment as mentioned by the complainant. It was further submitted that the last installment was paid by the complainant on 27.5.2012 of Rs.1500/- and the opposite party no.1 has shifted his office from Gurdaspur. The vehicle is lying with the complainant. So, the question of any kind of assurance on the part of opposite party no.1 that the vehicle will be returned or delivered to the complainant does not arise. It was next submitted that the opposite party no.3 has filed complaint U/S 138 of the N.I.Act against the complainant at Gujrat regarding the cheque issued by the complainant to the opposite parties No.3 & 4. The said complaint was not filed by the opposite party no.4 in connivance with the opposite party no.1. The opposite party no.1 & 2 are working separately and independently from the opposite party no.3 & 4. The complainant has deposited approximately Rs.85,000/- through installments with the opposite party no.3. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
- Complainant has tendered into evidence his own affidavit Ex.CW1/A, along with other documents Ex.C1 to Ex.C21 and closed the evidence.
- Sh.Pawan Prasher Authorized Signatory of opposite parties No.1,3 & 4 has tendered into evidence his own affidavit Ex.OP-1,3,4/1, alongwith other documents Ex.OP-1,3,4/1/2 to Ex.OP-1,3,4/17 and closed the evidence.
6. We have duly considered the pleadings of both the parties; heard the arguments advanced by their counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint.
- We observe that the two respective versions as put forth by the two litigating parties i.e., the complainant and the OP service providers have diagonally conflicting questions/ issues of fact requiring detailed analysis of ‘evidence’ duly preceded by an elaborate examination of the witnesses that otherwise is not feasible under the prescribed summary procedure under the Act. Even the date of purchase of the Vehicle is contested. As per the complainant, the 3-Wheeler was purchased on 10.01.2009 for a consideration of Rs.1.05 Lac with Rs.42,000/- paid as down payment whereas the OPs claim having sold the vehicle in question on 15.12.2008 for an amount of Rs.1.30 Lac with a down payment of Rs.25,000/= only. Further, the complainant claims having parked the vehicle for engine repairs with the OP1 vendor sometime in the month of December’ 2009 and since ever retained by them; however the OPs rebut the same in totality confirming its possession with the complainant since the date of Sales transaction. The evidentiary documents duly produced as exhibits in support by each of the two are also in a knotty contradicting conflict that may not be liable to a ‘judicial’ resolve under the act-prescribed ‘summary’ procedure. Thus, it shall be in the best interest of the gracious ‘majesty & equity’ of justice that the present adjudicatory is subjected to the full CPC (civil procedure code) trial.
8. In the light of the all above, we dispose of the present complaint by directing the present complainant to approach the civil court of competent jurisdiction to seek the desired relief if he so desires and if it is filed within limitation.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
MAY 19, 2015 Member.
*MK*
