Punjab

Ludhiana

CC/19/414

Harvinder Pal - Complainant(s)

Versus

M/s Garyson Auto Pvt.Ltd - Opp.Party(s)

Dinesh Katyal Adv.

25 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:414 dated 29.08.2019.                                                         Date of decision: 25.09.2023.

 

Harinderpal age about 45 years S/o. Sh. Surinderpal Gogna, R/o.1467/2, Krishna Nagar, P.A.U. Road, near Aarti Chowk, Ludhiana. M. No.79866-11692.                                                                                                                                                                                              ..…Complainant

                                                Versus

1. M/s. Garyson Auto Pvt. Ltd., Village Krimpur, Opp. Kothari Resorts, Ludhiana through its Manager/authorized Signatory.
2. M/s. Ford India Pvt. Limited, Corporate & Regional Office (North), 5^th Floor, Plot No.142, Chimes 142, Sector-44 Road, Sector-44, Gurgaon-12203, Haryana. Contract No.+91-124-6133000/6133001.                                                                                               …..Opposite parties 

Complaint Under section 12 & 14 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Dinesh Katyal, Advocate.

For OP1                         :         Sh. Gaurav Gupta, Advocate.

For OP2                         :         Complaint against OP2 not admitted vide order                                           dated 06.09.2019

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that opposite party No.1 is the authorized dealer of opposite party No.2 from whom the complainant purchased a used car make Ford Echo Sport, Model 2017 on 29.04.2019 for a valid sale consideration and made entire sale consideration to opposite party No.1 through cash i.e. Rs.50,000/- vide receipt No.19202152 dated 29.04.2019 and remaining payment was got financed through AXIS Bank Ltd., Ludhiana. The official of opposite party No.1 assured to provide registration certificate and other relevant documents within two days from the date of purchase of the vehicle. The opposite parties were duty bound to hand over the relevant documents i.e. registration certificate, insurance policy, original bill along with original 2^nd key, service book etc to the complainant along with one cheque No.512384 which was received by opposite party No.1 as security with assurance to pay out the requisite tax and charges for the purpose of registration of vehicle with DTO, Ludhiana. The complainant many times visited opposite party No.1 with request to hand over the documents as well as security cheque and also wrote an application to opposite party No.1 who further assured to hand over the documents etc to the complainant within short period but failed to do so. The complainant served a legal notice dated 19.07.2019 upon the opposite parties through Sh. Dinesh Katyal, Advocate but to no effect. Hence this complaint whereby the complainant ha prayed to issue direction to the opposite parties to hand over all the requisite documents of the vehicle along with compensation of Rs.1,00,000/- and litigation expenses of Rs.22,000/-.

2.                The complaint against opposite party No.2 was not admitted vide order dated 06.09.2019.

3.                Upon notice, opposite party No.1 appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; lack of jurisdiction; suppression of material facts; the complainant being estopped by his own act and conduct from filing the complaint etc. Opposite party No.1 stated that the complainant approached it for purchase of one demo car model Eco Sport Titanium 2017 having ex-showroom price of Rs.11,04,000/- approximately. The said car was agreed to be sold @ Rs.8,70,000/- as well as the complainant was also liable to pay tentative amount of Rs.60,000/- for registration certificate charges, Rs.25,890/- as  insurance charges and Rs.3226/- as accessories etc. The complainant took the delivery of car on 29.04.2019 and paid Rs.5,000/- as booking amount and a sum of Rs.8,43,400/- was got financed by the complainant. Opposite party No.1 delivered the car to the complainant on his assurance that the remaining amount shall be disbursed shortly. Further opposite party No.1 was to get registration certificate applied on payment of amount. As conveyed by the concerned authorities, the complainant was informed that the registration charges would be applicable on the ex-showroom price of Rs.11,04,000/- which comes out to be Rs.78,000/- approximately and as such, the outstanding amount at that time was Rs.1,29,043/-. The complainant filed frivolous complaint with the concerned department and it was stated to deposit the registration charges by the opposite party from its own pocket and to recover it from the complainant. As such, opposite party No.1 deposited Rs.60,058/- with the concerned department on 31.10.2019. Hence, a sum of Rs.1,11,101/- is outstanding amount against the complainant which he liable to pay to opposite party No.1. The complainant was called upon a number of times to pay the balance amount and amount of registration charges for which the complainant issued a cheque No.512384 dated 05.06.2019 for Rs.1,00,000/- drawn on State Bank of India, Ferozepur Road, Ludhiana. The said cheque was presented for its encashment but the same was received back dishonoured vide memo dated 12.06.2019 with remarks “Payment Stopped by Drawer”, regarding which opposite party No.1 had to sent legal notice under Section 138 of N.I. Act upon the complainant but he failed to make the payment and further opposite party No.1 filed a criminal complaint pending in the court of Sh. Balkar Singh, JMIC, Ludhiana.

                   On merits, opposite party No.1 reiterated the facts mentioned in the preliminary objections. Opposite party No.1 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 insurance policy w.e.f. 29.04.2019 to 28.04.2020Ex. C2 is the copy of delivery report dated 29.04.2019, Ex. C3 is the copy of Aadhar card of the complainant, Ex. C4 is the copy of application wrote by the complainant to opposite party No.1, Ex. C5 is the postal receipt, Ex. C6 is the copy of legal notice dated 19.07.2019, Ex. C7 is the postal receipt, Ex. C8 is the copy of cheque receipt dated 09.05.2019, Ex. C9 is the copy of cheque receipt dated 25.04.2019, Mark-A is the copy of quotation perform dated 22.04.2019, Mark-B is the copy of loan agreement, Mark-C is the copy of receipt dated 29.04.2019 and closed the evidence.

5.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Jaswinder Singh, Accountant of opposite party No.1 along with documents Ex. OP1/1 is the copy of order booking form, Ex. OP1/2 is the copy of insurance policy w.e.f. 29.04.2019 to 28.04.2020, Ex. OP1/3 is the copy of undertaking of the complainant, Ex. OP1/4 is the copy of proforma invoice, Ex. OP1/5 is the copy of e-payorder details, Ex. OP1/6 is the copy of statement of the complainant, Ex. OP1/7 is the copy of cheque No.512384 dated 05.06.2019 of Rs.1,00,000/-, Ex. OP1/8 is the copy of cheque returning memo, Ex. OP1/9 is the copy of disbursement advice cum delivery order dated 03.09.2022 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 reply along with affidavit and documents produced on record by both the parties. We have also gone through the written arguments submitted by the opposite parties.

7.                On 29.04.2019, the complainant purchased one demo car model Eco Sport Titanium 2017 for a sum of Rs.8,70,000/- besides the payment of other charges like registration, insurance, accessories having tentative cost of Rs.60,000/-, Rs.25,890/- and Rs.3226/- respectively. The proposed expenses were entered in the performa invoice Ex. OP1/4. The insurance cover is Ex. OP1/2. Initially, The complainant paid a sum of Rs.5000/- as booking amount and the remaining sum of Rs.8,43,400/-  was got financed. The ex-showroom price of new car (other than Demo) was Rs.11,04,000/- and the registering authorities demanded the registration charges of ex-showroom prices which came out to be Rs.78,000/-. According to the complainant, he had paid an amount of Rs.50,000/- cash vide receipt dated 29.04.2019 and not Rs.5,000/- but opposite party No.1 had denied the receipt of Rs.50,000/- being fake and fabricated. Further opposite party No.1 had alleged that a cheque No.512384 dated 05.06.2019of Rs.1,00,000/- Ex. OP1/7 issued by the complainant in its favour was returned by the bank with memo having remarks “Payment Stopped by Drawer” and proceedings before the JMIC, Ludhiana is pending in this regard. The complainant denied having issued such cheque to assert that it was meant for security which has been misused by opposite party No.1.

8.                Opposite party No.1 has placed a copy of ledger of the account of the complainant showing the transactions that took place between the complainant and the opposite party No.1 with effect from 1.04.2019 to 31.03.2020 Ex. OP1/6. Perusal of this document shows that the complainant paid a sum of Rs.5,000/- as advance money on 25.04.2019 and booking and delivery of the car. The amount so financed was received in the account of opposite party No.1 on 09.05.2019 and the actual invoice was generated on 01.06.2019. From 25.04.2019 till 05.11.2019, opposite party No.1 spent an amount of Rs.11,38,541/- and received an amount of Rs.10,26,767/- and thereby a balance of 1,11,774/-  has been shown against the name of the complainant.

9.                 Perusal of the complaint shows that the complainant has not disclosed the actual sale consideration, the amount which was financed from Axis Bank Ltd. and regarding making of payment of registration charges and other expenses by the complainant himself. The complainant has admitted the issuance of cheque No.512384 but in different context. So apparently there is concealment of material facts on the part of the complainant. Since the proceedings before this Commission are summary in nature and as such, we are refraining ourselves from returning any finding with regard to issuance of cheque and its subsequent dishonour, service of legal notice etc., as the matter is already subjudice with learned JMIC, Ludhiana. The initial onus was upon the complainant to establish how the opposite party No.1 was deficient in rendering the services to him. It is settled law that there could not be any presumption with regard to willful default, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service. Recently, the Hon’ble Supreme Court of India in The Chairman & Managing Director, City Union Bank Ltd. And another Vs R. Chandramohan in 2023 LiveLaw (SC) 251, has observed as under:-

“Consumer Protection Act, 1986 – The proceedings before the Commission being summary in nature, the complaints involving highly disputed question of facts or the cases involving tortuous acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortuous acts. There could not be any presumption with regard to the willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1) (g)  of the Act. The burden of proving the deficiency in service would always be upon the person alleging it.”

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.

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

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

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:25.09.2023.

Gobind Ram.