| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 120 of 16-07-2020 Decided on : 21-08-2024 Suman Garg aged about 64 years W/o Ruldu Ram Garg R/o H.No.3034, Amrik Singh Road Near SSD Girls College, Bathinda-151001. ........Complainant Versus M/s Brars Hyundai, Brar Automotive, Authorised Dealer for Hyundai Motor India Pvt. Ltd; Kotkapura Road Near Desh Bhagat Dental College, Sri Mukatsar Sahib, Tehsil and District. Sri Mukatsar Sahib-152026, through its Proprietor/Partner/Manager. (E-mail Address : sales@brarshyundai.com) M/s Brar Scooters, 2765-B Near Tin-Koni, Bathinda-(Punjab) PIN 151001, through its Proprietor/partner/Manager. (E-mail Address: Hyundai Motor India Ltd; Plot No.5, 2nd and 6th Floor, Corporate One Banni Building, Jasola Vihar, New Delhi-110025, through its M.D/G.M/Authorised Person. (E-mail Address: wecare @ Hyundai-asia. Com) State Bank of India, Branch Bhatty Road, Bathinda, Tehsil and District Bathinda, through its Branch Manager.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.Kanwar Sandeep Singh, President Smt.Sharda Attri, Member Present : For the complainant : Sh.K.K Vinocha, Advocate. For opposite parties : Sh.Amanpal Singh Sekhon, counsel for OP No.1. Opposite party No.2 ex-parte. Sh. Naveen Kumar Tundwal, counsel for OP No.3. Sh.Naveen Goyal, counsel for opposite party No.4. ORDER Kanwar Sandeep Singh, President The complainant Mrs. Suman Garg (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (here-in after referred to as 'Act') before this Forum (Now Commission) against M/s Brars Hyundai and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that she for her own private use was interested in purchase of new Creta-Crdi Motor Car manufactured by opposite party No.3. She alongwith her son Rohit approached opposite party No.1, the authorized dealer on 24.12.2018 and expressed her wishes to purchase car after availing loan facility from opposite party No.4. Opposite party No.1 through its sales representative promised to provide car on dated 29.12.2018 subject to payment of advance booking and other payments at the time of delivery of the car towards its price and meeting with other charges of insurance and certificate of registration etc. Opposite Party No.1 promised to deliver the car at its dealership while to provide all other services to the complainant at Bathinda itself through its another business concern i.e. opposite party No.2 including servicing of car through Bathinda dealer of the manufacturer. The deal was struck to the effect that opposite party No.1 will provide all 4 'Fog-Lights' as discount to the complainant in price of the car. Opposite party No.1 approximately calculated a sum of Rs.11,29,000/- towards price of the car, insurance and registration certificate charges subject to give final calculations later on i.e. if any sum got deposited from complainant is found in excess, the same shall be returnable to her alongwith interest @ 18% per annum and if aforesaid sum falls short, it will charge the same from her while making final calculations later on. It was further promised that the purchased car shall be got registered with the Registering Authority, M.V. at Bathinda and for this purpose, Aadhaar card etc. shall be got signed and obtained and R.C. will be provided to the complainant and further amount refundable or chargeable shall all be provided to the complainant at Bathinda through opposite party No.2. The complainant agreed and made following payments to opposite party No. 1 against receipts as under:- (i) Rs.20,000/- in cash vide receipt dated 24.12.2018 towards booking amount to be adjusted in referred to approximate calculations; (ii) Rs.73,000/- in cash vide receipt dated 29.12.2018 as part payment towards referred to approximate calculations; (iii) Rs.2,36,000/- through RTGS dated 29.12.2018 as part payment towards referred to approximate calculations; (iv) Rs.8,00,000/- on dated 29.12.2018 received by opposite party No.1 from opposite party No.4 as loan/finance amount in account of the complainant against purchase of the car. In this way, a total sum of Rs. 11,29,000/- has been paid by the complainant to opposite party No.1. It is alleged that although, opposite party No.1 agreed to deliver the car on 29.12.2018, but it failed to deliver the same, which ultimately, was delivered on 31.12.2018, i.e. by delay of 2 days for which financier of the complainant i.e. opposite party No.4 charged Rs.644/- on account of interest for these two days delay. As such, the complainant is entitled to get this amount reimbursed from opposite party No.1 in-addition to Rs.20,000/- as compensation/damages. It caused the complainant and her son harassment without any fault in addition to mental tension and agony. While delivering the car on 31.12.2018, opposite party No.1 obtained signatures of the complainant on various blank forms, vouchers, papers and delivered temporary R.C. as without it, sold car cannot be brought on road as provided in Motor vehicle Act. It is further alleged that the particulars of purchased car vide invoice No.M425 dated 31.12.2018 bears Model Creta-Credi 1.4 E+, engine No.D4FCJM718172, Chassis No.MALC181RLJM512336*M and now bearing registration No.PB-03AZ-2907 issued by the office of Registering Authority, Bathinda RTA. Opposite party No.1 delivered registration certificate of the car to the complainant through its concern opposite party No.2 and since then she had been demanding final calculations, but opposite parties Nos.1 and 2 have been twisting away the matter on one or the other pretext only after clarifying that no amount over and above Rs.11,29,000/- (already paid) is payable by the complainant. She was provided copy of insurance covernote of Bharti AXA General Insurance Company regarding car showing payment of insurance premium of Rs.32,867/-, but copy of bill and receipts regarding payment of road-tax and other charges were not provided to the complainant despite demanding the same time and again by her. It is further alleged that ultimately, the complainant came to know that it is obligatory for opposite party No.1 to provide copy of bill of the financed car to the financier that the complainant succeeded in obtaining photocopy of the same in the month of December 2019. Perusal of bill reveals the price of the car as Rs.6,89,586/- and by adding all taxes, it is for Rs.9.99,900/-. The complainant alongwith her son went to opposite party Nos.1 and 2 to tell the amount of road tax etc. enabling her to reach the correct chargeable amount out of got deposited approximate amount, but they again twisted away the matter by saying that the receipts regarding payment of road tax etc; are not traceable and have been lost somewhere and further they tried orally to calculate the amount by charging road tax @ 8% from the complainant on total value of Rs.9,99,900/- while it should have been calculated at price of car i.e. Rs.6,89,586/. If road tax @ 8% is calculated on Rs.6,89,586/-, it comes to Rs.55,166.88/-, but if calculated on total price i.e. inclusive of all tax i.e. on Rs.9,99,900/-, it come to Rs.79,992/- thereby difference of Rs.24,825.12/-. Ultimately, the complainant came to know that although, there is no mention regarding payments of all sum paid on registration certificate itself and in the absence of payment receipts, these charges can be verified from internet site of the office of Registering Authority/Transport-Department. After repeated efforts, complainant only 3 days prior to issuing legal notice, succeeded in getting print of all payments made for getting car registered through internet and came to know that below mentioned payments have been made:- (i) Society fee Rs. 200/- (ii) Smart Card fee Rs. 200/- (iii) M.V. Tax in all 55,167/- + 6896/- S.Sec Tax, totaling Rs.62,063/- (iv) Scan fee Rs.20/- (v) Hypothecation fee Rs.1500/- (vi) New Registration fee including penalty Rs. 610/- Total Rs.64,593/- It is further alleged that even after showing internet payment receipts, the complainant requested opposite party No.1 to return remaining excess amount got deposited from her alongwith interest @ 18% per annum after deducting the amount as shown on bill itself, insurance premium and registration charges, but they refused to refund her anything by saying that now financial year concerned has elapsed. It is further alleged that the complainant has paid Rs.11,29,000/- as already detailed. The total price and other charges including all i.e. (1) invoice of Rs.9,99,900/- (2) Insurance charges Rs.32,867/- (3) Registration charges Rs.64,593/- comes to Rs.10,97,360/-. On deducting Rs.10,97,360/- from Rs.11,29,000/-, a sum of Rs.31,640/- becomes excess amount got deposited by opposite party No.1 from the complainant. The complainant also got issued legal notice to opposite party Nos.1 to 3 on 6.7.2020, but to no avail. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to refund Rs.31,640/- alongwith interest @18% p.a. from the date of deposit till refund i.e. out of approximate amount as already detailed and to pay Rs.644/- paid by her to opposite party No.4 on account of 2 days delay interest in delivering the car in addition to Rs.50,000/- as compensation/damages. Upon notice, opposite party No.1 appeared through counsel and contested the complaint by filing written version and raising legal objections that the complaint is not maintainable in its present form. The complainant has no locus-standi or cause-of-action to file the complaint. She purchased the car from opposite party No.1 at Sri Muktsar Sahib and also made payment of the total amount of Rs.10,97,360/- at Sri Muktsar Sahib and delivery of the car was also given to her at Sri Muktsar Sahib. As such, no part of the cause-of-action accrued to her within the territorial jurisdiction of this Forum at Bathinda. Thus, the complaint is liable to be dismissed qua opposite party Nos.1 and 3 and opposite party No.2 has nothing to do with this complaint. Opposite party No.2 has been unnecessarily impleaded as party to this complaint and alleged dispute between the parties does not fall within the purview of Section 12 of 'Act', rather the dispute comes under the definition of Sale and Purchase of Goods Act. As such, this Forum has no jurisdiction to try and decide the complaint. The complainant is estopped from filing the complaint by her own act and. She has not approached this Forum with clean hands, rather she has intentionally concealed the true and material facts from this Forum and has grossly twisted the facts as per her own convenience and has forged and fabricated the documents. Opposite party No.1 also reserves its right to initiate appropriate criminal proceedings against the complainant for fabricated the receipts dated 29.12.2018 regarding payment of Rs.2,36,000/-, Rs.20,000/- and Rs.73,000/-, although the same were not issued by opposite party No.1, rather the true facts are that the cash payment of Rs.20,000/- was made on 24.12.2018 and RTGS of Rs.2,36,000/- was made through SBI Bank on 29.12.2018 and no payment of alleged amount of Rs.73,000/- in cash was made by the complainant. The complaint is totally false, frivolous and vexatious to the knowledge of the complainant. On merits, opposite party No.1 has denied that the complainant deposited total Rs.11,29,000/-, rather she deposited Rs.20,000/- on 24.12.2018, Rs.8,00,000/- through opposite party No.4 on 29.12.2018 and Rs.41,360/- in cash on 29.12.2018, totaling Rs.10,97,360/-. In further written version, opposite party No.1 has reiterated its version as taken in the legal objections as detailed above and controverted all other averments of the complainant and prayed for dismissal of complaint. Upon notice, none appeared on behalf of opposite party No.2. As such, ex-parte proceedings were taken against it. Opposite party No.3 appeared through counsel and contested the complaint by filing written version and raising preliminary objections that the complainant has no locus-standi to file the complaint against HMIL (OP No.3) as she has failed to prove by any document on record that any cause-of-action arose to her to file the complaint against HMIL (OP No.3). She is not 'consumer' of HMIL under the definition of 'consumer' as defined under 'Act' for the matter in dispute i.e. excess charge by opposite party Nos.1 and 2. The complaint and averments made therein against HMIL are false, frivolous and vexatious. The complaint is not maintainable against HMIL (OP No. 3) as the matter in dispute (excess charge) is strictly inter se the complainant and opposite party No.1. The aspects of retail sale of vehicle is strictly inter se the complainant and concerned selling dealer i.e. opposite party No.1. HMIL (OP No. 3) (Manufacturer) is not party to that aspect and has unnecessarily been made a party to complaint. The complainant in Para 1 of the complaint has herself stated that the promise was made by opposite party No.1 and further payment was also made to opposite party No.1 only. Further preliminary objections are that the complaint is liable to be dismissed for concealment and misrepresentation of the material facts as the complainant has filed the complaint by suppressing the material facts and by misleading the facts before this Forum just to get an undue advantage and undue relief to which the complainant should not be allowed to. The liability of HMIL being the manufacturer of the cars is limited and extends to its performance and warranty obligations only that also as per warranty policy. Since, the complainant has not raise any allegation with regard to performance of the car in the complaint, thus no deficiency can be attributed against HMIL. The complainant has failed to demonstrate that HMIL promised or assured services that was not fulfilled by it or HMIL was deficient in providing any services or has indulged in any unfair trade practice under the provisions of 'Act'. HMIL was not party to agreement/understanding/transaction. No money was paid to HMIL. HMIL operates with all its dealers including opposite party Nos.1 and 2 on 'principal-to-principal' basis and not on 'Principal-to-agent' basis, meaning thereby that error/omission/misrepresentations etc, if any, at the retailing or servicing of the car by the dealer is the sole responsibility of the concerned dealer. This Forum has no territorial jurisdiction to try the complaint qua HMIL. To support its version, opposite party No.3 has also referred some cases law. On merits, opposite party No.3 has reiterated its version as taken in the preliminary objections as detailed above and controverted all other averments of the complainant and prayed for dismissal of complaint. Upon notice, opposite party No.4 appeared through counsel and contested the complaint by filing written version and raising legal objections that the complainant has no cause-of-action or locus-standi to file the complaint. There is no deficiency of service on the part of opposite party No.4. The complaint against opposite party No.4 is not maintainable. The actual dispute is between the complainant and opposite party Nos.1 to 3 with which opposite party No.4 has got no concern. Opposite party No.4 has only provided loan facility to the complainant for purchase of the car and except that there is no its other concern with the complainant. As such, there is no lapse on the part of opposite party No.4. The complainant is not entitled for any damages and compensation or any other relief from opposite party No.4. On merits, opposite party No.4 has pleaded that the complainant has availed the vehicle loan from it for purchase of the car that was paid to her on 29.12.2018. No amount has been paid by her to opposite party No.4 towards any other expenses such as registration fee, insurance policy or any other expenses. After controverting all other averments of the complainant, opposite party No.4 has reiterated its version as taken in the legal objections as detailed above and prayed for dismissal of complaint. In support of her complaint, the complainant has tendered into evidence her affidavit dated 16.7.2020, (Ex.C1); photocopy of receipts, (Ex.C2 to Ex.C5); photocopy of temporary R.C, (Ex.C6); photocopy of covernote, (Ex.C7); photocopy of invoice, (Ex.C8); photocopy of legal notice, (Ex.C9); photocopy of postal receipts, (Ex.C10 to Ex.C12); acknowledment, (Ex.C13) and photocopy of tax receipts, (Ex.C14). In order to rebut the evidence of complainant, opposite party No.1 has tendered into evidence affidavit of Jagdeep Singh dated 24.2.2021, (Ex.OP1/1) and documents, (Ex. OP1/2 to Ex.OP1/6). Opposite party No.3 has tendered into evidence affidavit of Sarthak Kapila dated 11.92021, (Ex.OP3/1) and documents, (Ex. OP3/2 and Ex.OP3/3) . Opposite party No.4 did not produce any evidence. We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for parties have reiterated their stand as taken in their respective pleadings as detailed above. We have given careful consideration to these submissions. Admittedly, the complainant purchased one Creta CRDI for Rs.9,99,900/- from opposite party No.1 vide invoice dated 31.1.20218, (Ex.C8) after availing loan facility from opposite party No.4. So far as the objections of opposite party No.1 regarding territorial jurisdiction is concerned. We are of the view that this Commission got jurisdiction as partly cause-of-action arose within the territorial jurisdiction of this Commission as the complainant got loan from opposite party No.4 at Bathinda and opposite party No.2 itself got registered the vehicle at Bathinda. The point for determination before this Commission is that whether opposite party No.1 has charged in excess or not. On the other hand, opposite party No.1 pleaded that the complainant made payment of total amount of Rs.10,97,360/- i.e. Rs.20,000/- cash on 24.12.2018, Rs.10,36,000/- through RTGS on 29.12.2018 and Rs.41,360/- in cash. Out of this amount of Rs.10,97,360/-, Rs.9,99,000/- being the price of car, Rs.32,867/- as insurance charges and Rs.64,503/- as registration charges. To prove that opposite party No.1 charged an amount of Rs.11,29,000/-, the complainant has placed on file receipts of Rs.2,36,000/-; Rs.20,000/-; Rs.73,000/-, (Ex.C2 to Ex.C4) and Rs.8,00,000/- vide bank account statement, (Ex.C5). Opposite party No.1 has pleaded in its written version that receipts dated 29.12.2018 regarding payment of Rs.2,36,000/-, Rs.20,000/- and Rs.73,000/- are forged and fabricated, but surprisingly, opposite parties have not produced any evidence to prove this fact. This cannot be assumed that the complainant will forge only a receipt to get such a meager amount when she is paying such a huge amount to opposite party No.1. Moreover opposite party No.1 admits that on dated 24.12.2018, the complainant deposited an amount of Rs.20,000/- as cash, Rs.2,36,000/- and Rs.8,00,000/- through RTGS on dated 29.12.2018, but pleaded that no receipts were issued qua these amounts. Therefore, this version of opposite party No.1 cannot be believed. It is proved case on the record that the complainant has paid Rs.11,29,000/-, but opposite party No.1 should have charged Rs.10,97,360/-, as price of the car as per invoice, (Ex.C8) is Rs.9,99,900/- and opposite party No.1 got the car of the complainant insured for Rs.32,867/- vide Ex.C7 and got the car registered for Rs.64,593/- vide Ex.C14 i.e. totaling Rs.10,97,360/-. Thus, Rs.31,640/- (Rs.11,29,000/- minus Rs.10,97,360/-=Rs.31,640/-) were charged in excess from the complainant by opposite party No.1. Thus, the complainant is entitled for getting refund of Rs.31,640/- from opposite party No.1. As this amount is used by opposite party No.1 for such a long time without its right over this amount, so, the complainant is also entitled to interest thereon. The complainant could not bring on record any cogent and admissible evidence against opposite party Nos.2 and 4 to prove her case against them. In view of what has been discussed above, we are of the view that opposite party No.1 has adopted unfair trade practice and is deficient in service, so present complaint is partly allowed with Rs.15,000/- as cost and compensation in lump-sum on all counts against opposite party No.1 and dismissed qua opposite party Nos.2 to 4. Opposite party No.1 is also directed to refund an amount of Rs.31,640/- (charged in excess) to the complainant alongwith interest @ 9% per annum from 29.12.2018 till realization. The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance of the order within the stipulated period, opposite party No.1 will be liable to pay Rs.31,640/- (excess charged) to the complainant alongwith interest @ 12% per annum from 29.12.2018 till realization. The complaint could not be decided within the statutory period due to incomplete quorum and heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced 21-08-2024 (Kanwar Sandeep Singh) President (Sharda Attri) Member
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