Punjab

Ludhiana

CC/20/28

Ajay Kumar - Complainant(s)

Versus

M/s Dada Motors - Opp.Party(s)

Shawan Sehgal Adv.

17 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:28 dated 21.01.2020.                                                 Date of decision: 17.11.2023.

 

Ajay Kumar Nijhawan aged about 60 years son of Shri Ramji Dass Nijhawan, resident of House No.34-B/1, Raghunath Enclave, Ferozepur Road, Backside Aggar Nagar, Ludhiana.                                                                                                                                                                          ..…Complainant

                                                Versus

1. M/s. Dada Motors Pvt. Ltd., Savitri Complex-I, G.T. Road, Dholewal, Ludhiana, through its Managing Director/Director.
2. M/s. Tata Motors Ltd., 82, Mahakali Caves Road, MIDC, Andheri-(East), Mumbai-400093 through its Managing Director/Director.                                                                                                       …..Opposite parties

Complaint Under section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sharwan Sehgal, Advocate.

For OP1                         :         Sh. Inder Mohan Pal Singh, Law Officer.

For OP2                         :         Sh. R.K. Bhandari, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant being a businessman, purchased one vehicle i.e. Tata Tiago bearing registration No.PB-10-HG-5982 vide invoice dated 22.11.2019 although the car was purchased on 25.11.2019. the complainant sold his old car Tata Aria having registration No.PB-10-DD-9500 to OP1. Quotation regarding the vehicle and other necessary requirement for the same i.e. insurance, road tax, number plate etc. was given to the complainant which is reproduced as under:-

Ex. Showroom price + two years extended warranty	Rs.4,57,790/-
Insurance premium (one year depcap and two years third party)	Rs.32,708/-
Road tax	Rs.34,014/-
High Security Number plates	Rs.600/-
Possession Tax	Rs.1360/-
Stockyard Charges	Rs.5500/-
Accessory Pack	Rs.10000/-
Cow Cess	Rs.1000/-
Fast-tag	Rs.600/-
Total	Rs.5,43,572/-
Less old car value as per quotation	Rs.1,53,000/-
Balance	Rs.3,90,572/-

 

The complainant further stated that was got sanctioned loan of Rs.4,30,000/- for new car by OP1 itself from Tata Motor Finance and he was paid Rs.38,000/- by OP1 through cheque as his liability was less than that amount. According to the complainant the billing for the vehicle was done on22.11.2019 but date of purchase was mentioned as 08.10.2019 n the cover note issued by M/s. The Oriental Insurance Co. Ltd. Even the total premium was paid Rs.21,248/- although he was charged Rs.32,708/0 for the same. In this manner, the complainant was charged exorbitant amount and even there was a different date of sale on the cover note than on the invoice which amounts to deficiency in service on the part of the OPs. The complainant further stated that the car in question lacks safety features like airbags which were mandatory in the cars manufactured after April 2019 as per notification of Govt. of India, Department of Surface Transport. Even the card/invoice with regard to purchase of extended warranty was not given despite taking charges. The possession tax of the govt. of Punjab is Rs.160/- but the complainant was charged Rs.1360/- for the same. Even no accessories were given to the complainant despite charging of Rs.10,000/- and stockyard charges were taken from the complainant without any rhyme or reason. Moreover, the copies of accounts were not provided to the complainant nor the documents with regard to purchase of old vehicle, delivery challan and receipts were given to the complainant. According to the complainant, the OPs are guilty of deficiency in service and unfair trade practice due to which he suffered mental tension and harassment etc. In the end, the complainant has prayed for issuing directions to the OPs to refund the value of the car and to pay compensation of Rs.10 Lacs.

2.                Upon notice, opposite party No.1 filed written statement and assailed the complaint by taking preliminary objections on the ground of maintainability of complaint and concealment of material facts.  OP1 stated that the complainant approached it for purchase of Tata Tiago car model 2019 on 21.11.2019 and he was given applicable discount. The price list attached by the complainant was the offer price of the vehicle and the complainant purchased the vehicle after bargaining and availing the maximum discount on the vehicle. The deal was finalized between the complainant and OP1. The price of the car was Rs.4,49,990/-, insurance of the car was Rs.21,248/-, Rs.1200/- was for administrative & service charges, Rs.600/- was for Fast tag and Rs.600/- was for high security number plate, Rs.500/- was for pre delivery inspection charges, RS.33,926/- was registration charges of the vehicle, Rs.160 for MV tax of the vehicle, Rs.1000/- was for Cow cess. The total amount payable by the complainant wasRs.5,09,884/-. The complainant exchanged his old car Tata Aria for Rs.75,000/- and as such after adjusting the amount of Rs.75,000/-, Rs.4,34,884/- was to be paid by the complainant. The complainant has got financed his vehicle from Tata Motor Finance and the finance company had paid an amount of Rs.4,26,950/- and after adjusting the above said amount, an amount of Rs.7,934/- was outstanding towards the complainant. OP1 further stated that it has given discount to the complainant of Rs.45,934/- on the above said vehicle and after deducting the amount of Rs.7934/- which was outstanding towards the complainant, OP1 had handed over a cheque of Rs.38,000/- to the complainant. OP1 had charged only Rs.21248/- from the complainant towards the insurance from the complainant and the insurance policy was generated after getting the OTP from the complainant/customer. According to OP1, it is clear from the calculation that nothing extra has been charged by from the complainant and the allegations are incorrect.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections and facts of the case. However, OP1 stated that due to typographical error the date of purchase of the vehicle was mentioned as 08.10.2019 in the cover note issued by M/s. The Oriental Insurance Company and the total premium was paid as Rs.21,248/- and no exorbitant amount has been taken from the complainant. Moreover, the complainant purchased the vehicle after being fully satisfied with the features and condition of the vehicle and even it was in the knowledge of the complainant that the vehicle was not having any airbags. Even the complainant never purchased extended warranty of the vehicle nor any charges for the same were taken from him. Further the complainant had been charged only Rs.160/- and not Rs.1360/- for M.V. Tax. OP1 further stated that no amount for the accessories was charged from the complainant and he was given the accessories free of cots as admitted by him in whatsapp chat. Even the complainant was not charged for Rs.550/- as stockyard charges. The complainant was given each and every reciept of payment made by him and all the documents regarding purchase of old vehicle were provided to him. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                Opposite party No.2 filed separate written statement and assailed the complaint by taking preliminary objections on the ground of maintainability of complaint; lack of cause of action; the complaint being bad for mis-joinder of party etc.  OP2 stated that the complainant has nowhere alleged any manufacturing defect in the vehicle nor has pleaded any fact constituting deficiency in product against OP1. Moreover, there is relationship between OP1 and OP2 on ‘principal to principal basis’ as per relevant clauses of the Dealership agreement, which is reproduced as under:-

“1 (a) subject to the terms hereof, the company hereby appoints the Dealer as its ‘Authorized Dealer’ to sell and service on a ‘principal-to-principal basis’….”

(c) It is expressly agreed and declared that notwithstanding anything herein contained, this Agreement does not constitute any form of agency or principal-agent relationship between the dealer and the company. The dealer and the company shall deal solely on a principal-to-principal basis in the manner provided in this Agreement.”

According to OP2, after the sale of the vehicle to dealer on receipt of consideration, it is left with no control, whatsoever, in respect of the vehicle in question sold as such,OP2 is not a necessary party and its name should be deleted from the array of the OPs.

                   On merits, OP2 reiterated the crux of averments made in the preliminary objections and facts of the case. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of invoice dated 22.11.2019, Ex. C2 is the copy of insurance cover note, Ex. C3 is the copy of policy schedule, Ex. C4 is the copy of price list, Ex. C5 is the copy of whatsapp chatting, Ex. C6 is the copy of gate pass dated 25.11.2019, Ex. C7 is the copy of M.V. Tax receipt of Rs.31,396/-, Ex. C8 is the copy of provisional registration certificate and closed the evidence.

5.                On the other hand, counsel for the OP1 tendered affidavit Ex. RA of Sh. Inder Mohan Pal Singh, Law Officer of OP1 along with documents Ex.  R1 is the copy of authority letter and closed the evidence.

                   The counsel for OP2 tendered affidavit Ex. RA/2 of Sh. Sharmendra Chaudhry, Deputy General Manager of OP2 along with documents Ex. R2/A is the copy of general warranty term and condition, Ex. R2/B is the copy of record of service performed  and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements along with documents produced on record by both the parties.

7.                 The complainant, an owner of the car bearing registration No.PB-10-HG-5982 manufactured by OP2 stated to have purchased the same from OP1 in the month of November 2019. The complainant raised the grievance with OP1 with regard to non-adherence of terms and conditions contained in quotation and whereby the complainant alleges fleecing by OP1. The complainant raised questions with regard to safety features of the car purchased by him. OP1 has refuted the allegations of the complainant and gave details of the concessions extended to the complainant at the time of sale of the car to him. Item wise comparison of rival claims was carried out by the Commission and the Commission is convinced that there is no adoption of unfair trade practice on the part of OP1 as the complainant accorded due satisfaction at the time of taking delivery. This fact is evident from the Test Driver Certificate cum Gate Pass Ex. C6. The complainant did not append any dissent note to register his protest. The complainant did not place any notification which was not complied by OP2 with regard to safety features and in the absence of any notification, the violation/non-violation of the notification cannot be adjudged. In the complaint as well as affidavit, the complainant has prayed for refund of value of the car and compensation. In the given set of facts and circumstances, no ground is made out against the OPs which could entitle the complainant to seek refund of value of the car. The allegations of the complainant were general in nature and remained unsupported and uncorroborated. It is the bounden duty of the complainant to discharge the initial onus to prove deficiency in service on the part of the complainant but he has failed to discharge the same.

8.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.            

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                                        (Sanjeev Batra)

Member                                                         President

 

Announced in Open Commission.

Dated:17.11.2023.

Gobind Ram.