BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 705 of 2019.
Date of Institution : 11.12.2029
Date of Decision : 15.03.2024
Veena Rani, aged 49 years wife of Shri Bharat Bhushan, resident of Judge Colony, Ward No.11, Rania, Tehsil Rania, District Sirsa.
……Complainant.
Versus.
1. M/s Garg Motors, authorized dealer Mahindra & Mahindra Ltd. 9 Km. Mile Stone, near Sikanderpur Chowk, Hisar Road, Sirsa – 125055, through its Authorized Person.
2. Mahindra & Mahindra Ltd. Mahindra Towers, GM Bhosle Marg Worly Mumbai, through its authorized person/ signatory.
3. State Bank of India, Branch Rania, District Sirsa, through its Branch Manager.
..…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
BEFORE: SH. PADAM SINGH THAKUR ………………PRESIDENT
MRS.SUKHDEEP KAUR………………………MEMBER.
Present: Sh. B.S. Vinayak, Advocate for the complainant.
Sh. A.K. Gupta, Advocate for opposite party no.1.
Sh. Saurabh Nagpal, Advocate for opposite party no.2.
Sh. S.L. Sachdeva, Advocate for opposite party no.3.
ORDER:-
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of the C.P. Act, 2019) against the opposite parties (hereinafter referred as OPs).
2. The case of the complainant, in brief, is that complainant purchased a Car Model XUV-500 of diesel version model 2017 as stated by op no.1 on behalf of op no.2 for an amount of Rs.15,42,920/- vide bill no. 2795 dated 31.03.2017 from op no.1. The op no.1 also assured that they will also provide finance facility from op no.3. That complainant paid Rs.3,40,000/- as down payment of the car as well as amount of registration certificate and the remaining amount was got financed from op no.3. The op no.1 also assured that they will got registered the vehicle from the concerned registration authority and op no.1 also received an amount of Rs.1,26,000/- towards the registration certificate of the vehicle and Rs.71,000/- was charged by op no.1 against the insurance of the vehicle but at the time of delivery of vehicle when complainant demanded the insurance policy, the op no.1 stated that insurance is required to them for the purpose of registration certificate, therefore, they did not hand over the same to him. That in this way after deducting this amount, Rs.14,00,000/- was got financed by op no.3. It is further averred that op no.1 sold the above said vehicle to complainant by stating that vehicle is of 2017 model and complainant also got serviced his vehicle time to time from authorized service centre of op no.1. That complainant many times visited the showroom of op no.1 for supply of registration certificate and insurance policy but op no.1 every time lingered on the matter on false assurances and till date they have not handed over the said documents to complainant. It is further averred that about two months ago, there was defect in the air conditioner of the vehicle, hence he visited the service centre of op no.1 and engineers thoroughly checked the air conditioner of vehicle and told him to park his vehicle for a day for the service of air conditioner. However, the complainant was shocked to see that manufacturing year was filled by op no.1 in the forms regarding service as 2015 instead of 2017 and when he raised objection in this regard, they disclosed that manufacturing year of vehicle is 2015 and not 2017. It is further averred that thereafter complainant enquired about the matter and came to know that model of vehicle is 2015 and not 2017 as it was mentioned on the engine, chassis and glasses of the vehicle. Thereafter the complainant requested the op to change the vehicle with model of 2017 and further requested op no.1 to supply RC and insurance policy. That when complainant raised the objections for the conduct of op no.1, the op no.1 lost their tamper and misbehaved with him and also openly threatened him. It is further averred that under the influence and with the collusion of op no.1, the op no.3 also snatched the vehicle on 22.03.2018 with their muscleman and thereafter on 11.12.2018 the op no.3 had issued a notice to complainant for auction of the vehicle which is against law and op no.3 has no right to do so. That complainant also made complaints to op no.2 but op no.2 also did not bother about the same and also did not take any action against op no.1 for their maltrade practice. The op no.1 has charged excess amount from complainant and cheated him and op no.3 is also threatening him that to recover the loan amount of Rs.14,00,000/- alongwith penal interest and penalty from complainant and will put him behind the bars as they have also initiated the separate proceedings against the complainant. It is further averred that due to the above said act and conduct, deficiency in service and unfair mal-trade practice on the part of ops, complainant has undergone much mental tension, harassment, humiliation as he had to take about hundred rounds to the agency of op no.1 but despite making several requests to op no.1 they did not admit the genuine claim of complainant. That earlier complaints filed by complainant was got dismissed as withdrawn on 24.01.2019 and on 24.10.2019 due to some technical defect. Hence, the present complaint seeking direction to the ops to return the car of complainant or in the alternative to make payment of Rs.17,39,920/- alongwith interest till final realization of the amount and also to pay an amount of Rs.2,00,000/- for causing financial loss and unnecessary harassment and also to pay litigation expenses.
3. On notice, ops appeared. Op no.1 filed written statement taking certain preliminary objections that complaint is hopelessly time barred and as such it is liable to be dismissed on this score alone; that complainant is estopped by her own act and conduct from filing the present complaint. The complainant at the time of purchase of vehicle was well apprised regarding the manufacturing year of the vehicle and son of complainant Vishal Kumar had executed a letter of undertaking wherein he had admitted that he had purchased the said vehicle in the name of Veena Rani and also confirmed that the model of vehicle was 2015 which was being purchased on 31.03.2017. The complainant is now taking false plea regarding the non disclosure of the model of said vehicle and that complainant has no locus standi to file the present complaint. It is further submitted that complainant had filed a similar complaint with same allegations, however, same was withdrawn on 24.01.2019. Again a complaint on the same cause of action has been filed by complainant which has again been got dismissed as withdrawn and in this way the complainant has been filing the complaint again and again and has been harassing the ops no.1 and 2 and as such complaint is liable to be dismissed with heavy costs. That cause of action after withdrawal of previous complaint had come to an end and now complainant cannot file the present complaint on the same facts and is estopped to file the present complaint.
4. On merits, it is submitted that complainant purchased vehicle from answering op for Rs.15,42,920/- on 31.03.2017. The complainant had checked the vehicle and also the papers of the said vehicle at the time of purchase. The complainant had got the vehicle financed from op no.3 and it is a fact that an amount of Rs.14,00,000/- being the financed amount was paid by the bank to answering op. The complainant had paid an amount of Rs.71,000/- on account of insurance charges and Rs.55,071/- for value added service and accessories, Rs.15,700/- TCS at the rate of 1% and against this amount the answering op has received a sum of Rs.17,40,000/- in total. It was made clear to the complainant that for the registration of the vehicle, an amount of Rs.1,26,000/- approximately would be payable and answering op demanded the remaining amount after adjusting the aforesaid amount paid/ financed from the complainant. The complainant thereafter did not turn up and did not get the vehicle registered of his own. It is further submitted that it is incorrect that registration fees was deposited by complainant. An amount of Rs.1,26,000/- approximately was required for registration and complainant herself did not turn up. However, there is no undertaking that vehicle would be registered by answering op. It is further submitted that vehicle was shown to the complainant and there is a display of the model/ manufacturing year. The son of the complainant who had purchased the vehicle in the name of her mother had signed a writing wherein he had stated that the contents of the undertaking have been read over and understood by the son of complainant and it was specifically mentioned that the manufacturing of the vehicle was of year 2015 and now the complainant has cooked up a story. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Op no.2 also filed written version raising certain preliminary objections regarding no privity of contract between op no.2 and complainant, pecuniary jurisdiction, complainant is not a consumer of answering op, cause of action etc. It is submitted that no manufacturing defect has been alleged in the complaint and also there is no allegation regarding any specific role played by answering op and answering op has unnecessarily been impleaded in the array of parties and complaint qua answering op is liable to be dismissed. It is further submitted that op no.2 is not responsible for any of the act, omissions or commission of any act by its dealers and prayer for dismissal of complaint qua op no.2 made.
6. Op no.3 also filed written version raising preliminary objections that dispute between the complainant and ops no.1 and 2 is regarding the manufacturing year, registration and insurance of the vehicle and as such answering op is not necessary party to the complaint; that complainant has concealed the true and material facts from the Commission. In fact, the complainant was advanced a loan of Rs.14,00,000/- by op no.3 for purchase of new Mahindra XUV 500 against the hypothecation of vehicle which was to be paid back by her in monthly installments alongwith interest and other charges. The complainant purchased vehicle of manufacturing year 2017 on 31.03.2017. The complainant did not adhere to the financial discipline of the bank and had not deposited the installments as agreed upon. The bank has sold the car in public auction to the highest bidder Navjot Singh son of Shri Harinder Pal Singh, resident of Model Town, Extension Ludhiana for Rs.5,95,000/- in due course of law. It is also submitted that dispute between the parties is based on number of technical considerations and is in the nature of Civil Dispute involving highly voluminous recording of evidence, as such this Commission has no jurisdiction to try the present complaint. On merits, the pleas of preliminary objections are reiterated, the contents of complaint are also denied and prayer for dismissal of complaint qua op no.3 made.
7. The complainant in evidence has tendered her affidavit Ex. CW1/A and copies of documents i.e. tax invoice Ex.C1, receipt of down payment of Rs.3,40,000/- as Ex.C2, agreement between op no.3 and Sh. Jagnar Singh Ex.C3, sale notice dated 11.12.2018 Ex.C4.
8. On the other hand, op no.1 has tendered affidavit of Sh. Basant Garg Ex. RW1/A. OP no.2 has tendered affidavit of Sh. Ashwani Garg General Manager as Ex. RW2/A. OP no.3 has tendered affidavit of Sh. Mukesh Mehta, Branch Manager as Ex. R3/1.
9. We have heard learned counsel for the parties and have gone through the case file.
10. From the tax invoice dated 06.04.2017 Ex.C1, it is evident that on 06.04.2017 complainant had purchased vehicle Mahindra XUV 500 from op no.1 for the amount of Rs.15,42,900/- which includes the price amount of Rs.13,63,889.50 plus amount of Rs.8524.31 as Cess 5% on VAT and Rs.1,70,486.19 being Vat @12.5%. It is also an admitted fact that an amount of Rs.71,000/- was also charged by op no.1 from the complainant on account of insurance charges. The complainant has alleged that op no.1 also received an amount of Rs.1,26,000/- from the complainant towards registration charges whereas op no.1 denies the said fact and averred that complainant did not pay this amount of Rs.1,26,000/- as registration charges to the op no.1 whereas op no.1 admits that in total op no.1 received amount of Rs.17,40,000/- from complainant i.e. Rs.3,40,000/- as down payment from complainant and remaining amount of Rs.14,00,000/- was got financed from op no.3. The complainant has also alleged that though op no.1 sold the vehicle by saying that manufacturing year of the same is 2017 but later on when he got serviced of the vehicle from op no.1 he came to know that model of the vehicle is 2015 and not 2017 as manufacturing year 2015 was filled in the forms of service of vehicle by the authorized representative of op no.1 and only then he came to know about this cheating and unfair trade practice on the part of op no.1.
11. The version of the complainant that op no.1 charged total amount of Rs.17,40,000/- from him and that amount included amount of Rs.71,083/- as insurance charges and amount of Rs.1,26,000/- as registration charges found to be true and correct whereas the version of op no.1 that op no.1 did not charge the amount of registration i.e. Rs.1,26,000/- from the complainant found to be false and incorrect because it is clear admission of op no.1 that op no.1 charged total amount of Rs.17,40,000/- i.e. Rs.3,40,000/- as down payment from complainant and remaining amount of Rs.14,00,000/- was financed by op no.3 bank. The total of the amount of Rs.15,42,920/- being sale price of the vehicle including taxes etc., registration charges of Rs.1,26,000/- and insurance charges of Rs.71,000/- comes to Rs.17,39,920/- whereas if as per version of op no.1 the total amount is calculated i.e. Rs.15,42,920 plus Rs.71,000/- plus Rs.55,071/- plus Rs.15,700, then total amount comes to Rs.16,84,691/- and that itself speaks the volume of truthfulness of the version of the complainant and incorrectness of the version of op no.1. The op no.1 on one hand is admitting that it received total amount of Rs.17,40,000/- from complainant and op no.3 bank but denying the receiving of amount of Rs.1,26,000/- as registration charges and if that amount of Rs.1,26,000/- is excluded then the total of the amount comes to Rs.16,14,000/- only and even if as per version of op no.1 the amount of Rs.55,071/- being value added service and accessories and Rs.15,700/- TCS at the rate of 1% is added then the total amount comes to Rs.16,84,691/- and difference of the amount from Rs.17,40,000/- and Rs.16,84,691/- comes to Rs.55,309/- which itself makes it clear that op no.1 also charged amount of Rs.1,26,000/- from the complainant on account of registration charges, so total of the amount charged from the complainant becomes Rs.17,40,000/- and now in order to conceal real thing the op no.1 is making false excuses that amount of Rs.55,071/- was charged for value added service and accessories and Rs.15,700/- was on account of TCS which is apparently clear on record some from its own admission and some from documents as the op no.1 has not justified the difference of the said amount of Rs.55,309/- through any cogent and convincing evidence. Even if the for the sake of arguments, it is presumed that op no.1 charged amount of Rs.55,071/- for value added service and accessories and Rs.15,700/- TCS and not charged the amount of Rs.1,26,000/- being registration charges, then it was upon the op no.1 to explain that how op no.1 charged total amount of Rs.17,40,000/- and for which the remaining amount of Rs.55,246/- was charged by op no.1 but op no.1 has failed to do so.
12. Now coming to the Model of the vehicle in question, the complainant has alleged that op no.1 sold the vehicle by saying that it is of Model 2017 whereas model of the said vehicle is of 2015 but on the other hand op no.1 has asserted that complainant was well apprised regarding the manufacturing year of the vehicle and son of complainant Vishal Kumar had executed a letter of undertaking wherein he had admitted that he had purchased the said vehicle in the name of Veena Rani and also confirmed that the model of the vehicle was 2015 which was being purchased on 31.03.2017. However, op no.1 has not placed on file any such letter of undertaking of son of the complainant on the file of this case. Though learned counsel for op no.1 contended that said letter of undertaking of the son of complainant is on the file of earlier complaint which was got dismissed as withdrawn by complainant herself but it is not understandable that who debarred/ stopped the op no.1 for placing on file the said letter of undertaking on the file of this case. However, we have suo moto recalled the record of the earlier file titled as Veena Rani Versus M/s Garg Motors etc. bearing No. 69 dated 11.02.2019 which was got dismissed as withdrawn by complainant on 30.10.2019 due to technical defect. The letter of undertaking given by Vishal son of complainant is placed on file as Ex.R2 in the said file (copy of which is placed on file as Annexure 1 for the just and proper decision of the present case) which is signed by Vishal son of complainant. Since son of complainant himself had given an undertaking for the purchase of vehicle of 2015 model in the year 2017, so now issue of delivery of old model of vehicle has become redundant. However, as op no.1 charged the amount of registration from the complainant but did not apply for registration of the vehicle to the concerned Registering Authority and not supplied the registration certificate of the vehicle to the complainant, therefore, op no.1 has adopted unfair trade practice and has caused deficiency in service to the complainant.
13. Now coming to the allegation of complainant against op no.3 bank, admittedly the vehicle was purchased by complainant on 31.03.2017 after availing loan facility of Rs.14,00,000/- from op no.3 bank. The op no.3 bank took the possession of the vehicle from the complainant on 22.03.2018 as is evident from document Ex.C3. However, op no.3 bank instead of giving any notice regarding default of payment of loan amount and filing any recovery proceedings or initiating any proceeding for recovery of the loan amount had directly issued notice of sale of the notice to the complainant on 11.12.2018 and even prior to that the vehicle was forcibly taken by op no.3 from complainant. As such it is proved on record that op no.3 bank has illegally taken the vehicle from complainant without following due procedure under the law. The op no.3 bank has failed to prove on record that what was the loan installment of the loan amount to be paid by complainant to op no.3 bank and what was the interest to be paid by complainant. The op no.3 bank has also not placed on file copy of any agreement of loan between complainant and op no.3 failed to prove the fact that what were the terms and conditions of the loan agreement in case complainant fails to make payment of the loan amount regularly and the op no.3 bank got estimated sale price of the vehicle as Rs.5,60,000/- and sold the same for an amount of Rs.5,95,000/- in auction to bidder Navjot Singh. The op no.3 bank has also not placed on file any statement of loan account to show that when the complainant made default in making payment of loan installment and therefore, there is also deficiency in service on the part of op no.3 bank. The op no.3 bank vide sale notice dated 11.12.2018 had asked the complainant to deposit a sum of Rs.16,75,937/- alongwith further interest, cost and incidental charges up to 30.11.2018 to get back possession of his vehicle. However, as op no.3 bank already took possession of the vehicle on 22.03.2018 from complainant, so op no.3 bank cannot charge interest from complainant after 22.03.2018 and can only charge interest on the amount of Rs.14,00,000/- from 31.03.2017 to 22.03.2018. Since op no,3 bank has failed to prove that what was the interest amount, therefore, we are of the considered opinion that nine percent per annum interest would be just and proper and same will be applicable on that amount of Rs.14,00,000/- from 31.03.2017 to 22.03.2018 and thus interest amount becomes Rs.1,26,000/-. Since the vehicle was purchased by complainant for an amount of Rs.15,42,900/- excluding other charges and vehicle was taken by the op no.3 bank only within one year of its purchase, therefore, it cannot be said that value of the vehicle remained only of Rs.5,95,000/- and as such op no.3 bank at its own sold the vehicle for such a meager amount of Rs.5,95,000/- and as such possibility that officials of the op no.3 bank either have kept the vehicle with them or sold the same to their close relative cannot be ruled out. Since the complainant has used the vehicle in question only for one year, therefore, we are of the considered opinion that value of the vehicle would have been Rs.13,00,000/- on the day when vehicle was taken by op no.3 from complainant i.e. on 22.03.2018 after depreciation of the amount of Rs.2,42,900/- from the amount of Rs.15,42,900/- being sale price of the vehicle. The amount to be paid to the op no.3 by complainant on 22.03.2018 comes to Rs.2,26,000/- after deducting amount of Rs.13,00,000/- from the amount of Rs.15,26,000/- i.e. Rs.14,00,000/- as principle amount and Rs.1,26,000/- as interest amount and complainant is discharged from remaining liability except of the amount of Rs.2,26,000/- since the vehicle on which loan was availed by complainant has already been sold by op no.3 bank within short time. Besides this the fact also cannot be ignored that complainant has paid an amount of Rs.3,40,000/- from his own pocket for purchasing the vehicle which included another expenses of registration and insurance etc. and despite that complainant has used the vehicle only for one year and as such complainant is also entitled to compensation for deficiency in service and unfair trade practice on the part of op no.3 bank and is also entitled to amount of Rs.1,26,000/- from op no.1 alongwith interest besides compensation for harassment. However, there is no liability of any kind of op no.2 i.e. manufacturer of the vehicle towards the complainant.
14. In view of our above discussion, we allow the present complaint qua opposite parties no.1 and 3. We direct the op no.1 to pay amount of Rs.1,26,000/- to the complainant alongwith interest @6% per annum from 31.03.2017 (i.e. the date of purchase of vehicle/ payment by complainant) till actual realization within a period of 45 days from the date of receipt of copy of this order. We also direct the op no.1 to further pay a sum of Rs.50,000/- as compensation for harassment and Rs.10,000/- as litigation expenses to the complainant within above said stipulated period. We also direct the op no.3 bank to pay a sum of Rs.1,00,000/- as compensation for harassment to the complainant. The complainant will have to pay above said amount of Rs.2,26,000/- towards loan amount to the op no.3 bank and op no.3 bank cannot charge any more amount from the complainant and complainant is discharged from any other liability towards op no.3 bank. The ops no.1 and 3 are liable to comply with this order within a period of 45 days from the date of receipt of copy of this order. We also direct the op no.3 bank to adjust the above said amount of compensation of Rs.1,00,000/- towards the amount of Rs.2,26,000/- payable by complainant to op no.3 and as such complainant is only liable to make payment of Rs.1,26,000/- to the op no.3 which will be paid by complainant to op no.3 immediately after compliance of this order by ops no.1 and 3. In case it is found that complainant has paid any amount to op no.3 towards installment, same shall also be deducted from the said amount of Rs.1,26,000/-. However, complaint qua op no.2 stands dismissed. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President Dt. 15.03.2024. District Consumer Disputes Redressal Commission, Sirsa
