O R D E R :-( per Mr. B.R. Chandel, President )
The complainant Smt. Salochana Devi on the strength of this complaint has claimed that the opposite party be directed to replace PORCLN White-INDIGO –ECS LX BS4 (25A KMPL) Car having Chassis Number, Engine number and Model February, 2013, with new one of the same make or refund its price of Rupees 5,86,822/- with interest and to pay a compensation of Rupees one lac for harassment and mental pain along with cost of the complaint on the grounds that she purchased the said car from the opposite party on 26-09-2013 which was financed by KCC Bank Ltd. Lambloo. The said car has been registered vide registration No. HP-01-1488 and is being plied as Taxi by the complainant to earn her livelihood. But the complainant came to know that the opposite party had sold the said car being second hand to the complainant by representing the same as new one, whereas, the said vehicle had already been sold by the opposite party to one Shri Mukesh Kumar Thakur son of Shri Ajit Singh Thakur R/o Nambrot , PO Dhalwan, Tehsil Sarkaghat, District Mandi, which was financed by P.N.B. Jahu, District Hamirpur, HP, and financed by Tata Motors ltd. and as such the opposite party by selling second hand car to the complainant has committed unfair trade practice and deficiency in service due to which the complainant has suffered monetary loss, mental agony and harassment and as such is entitled to get the reliefs claimed by her.
2. The notice of the complaint was served upon the opposite party. The opposite party did not appear hence has been proceeded against exparte. However, the opposite party moved an application for setting aside exparte order dated 09-09-2014 passed against it, but the said application has also been dismissed by this Forum on 10-02-2015. Hence, the opposite party is exparte.
3. The complainant has led exparte evidence.
4. We have heard the learned counsel for the complainant and gone through the record of the complaint.
5. As per insurance policy Annexure C-9 issued by National Insurance Company Ltd. the car of the make TATA MOTORS of the Model INDIGO ECS LX BS IV, CC 1405 having chassis number MAT601465DPB 10673 and Engine No. 14CRAIL08BWYW03017 was insured in the name of the complainant w.e.f. 25-07-2013 to 24-07-2014 against total value of Rupees 5,51,306/- on payment of a premium of Rupees 25,425/- which was hypothecated with the K.C.C. Bank, Lambloo. The said policy was issued by the opposite party on 25-07-2013. The opposite party issued sale certificate Annexure C-1 on 26-09-2013 in favour of the complainant. The sale certificate shows that the car in question has been hypothecated with the K.C.C. Bank Ltd., Lambloo. In the sale certificate Corporate office has been shown ‘NH-21, Luna Pani, PO Bhangrotu, District Mandi’, and branch office has been shown as ‘NH-88, Didwin Tikkar, District Hamirpur, HP’. The tax invoice Annexure C-2 dated 26-09-2013 has been issued by the opposite party under its seal for the sum of Rupees 5,86,822/-. The car in question is shown to have been hypothecated with the K.C.C. Bank Ltd. Lambloo. The opposite party had issued temporary Registration Certificate Annexure C-3 in favour of the complainant w.e.f. 26-09-2013 to 25-10-2013. Annexure C-4 is the initial certificate of compliance with pollution standard in respect of car in question issued by the opposite party. Annexure C-5 is the certificate of inspection and form 20 application for registration of the car in question moved by the complainant on the basis of which the car in question has been registered on 24-10-2013 vide registration certificate Annexure C-6 by Registering and Licensing Authority, Hamirpur. The complainant has also produced in evidence the documents Annexure C-7 and Annexure C-8.
On the strength of said documents it stands fully and firmly established that the opposite party sold the car in question in favour of the complainant representing the same as new one and on such representation the complainant purchased and took delivery of the car in question and got the same registered as such and same is being plied as taxi. The complainant bonafidely believed the said representation of the opposite party as genuine, true and correct. But now the complainant has claimed that the said representation made by the opposite party was misrepresentation of facts as the car in question was not new one, but second hand. The opposite party did not opt to contest the complaint.
In support of the said claim the complainant has produced in evidence the insurance policy Annexure C-11 w.e.f. 29-05-2013 to 28-03-2014 according to which the car in question was insured by National Insurance Company Ltd. vide insurance policy Annexure C-11 in favour of Mukesh Kumar Thakur son of Ajit Singh Thakur on payment of a premium of Rupees 19,774/- which was financed by P.N.B., Jahu. As per Gate Pass-cum-Delivery Challan Annexure C-12 dated 29-05-2013 the car in question was delivered by Satluj Motors to Mr. Mukesh Kumar Thakur. Vide Delivery receipt-cum-satisfactory note Annexure 10/B the car in question was delivered by the Satluj Motors to Mukesh Kumar Thakur on 29-05-2013 regarding which Mukesh Kumar Thakur executed Customer Satisfactory Note Annexure 10/C. Tax Invoice Annexure C-13 is also in respect of the car in question dated 06-03-2014 issued by the opposite party in favour of Mr. Mukesh Kumar Thakur. Annexure C-14 is receipt dated 03-06-2014 of Rupees 10,810.86 paisa received by the opposite party on account of A.M.C. from Mukesh Kumar Thakur. Annexure C-15 is the tax invoice dated 15-03-2014 in respect of the car in question issued in favour of Mukesh Kumar Thakur. Job card dated 15-03-2014 Annexure C-16 has also been issued by the opposite party in favour of Mukesh Kumar Thakur. In view of the contents of documents stated above it stands fully and firmly established that the car in question had already been sold by the opposite party to Mr. Mukesh Kumar Thakur on 29-05-2013 and the same was sold for the second time to the complainant by the opposite party and as such it stands proved that the car in question which has been sold by the opposite party to the complainant is second hand and selling of second hand car by the opposite party by misrepresenting the complainant as new one definitely amounts to high degree of unfair trade practice and deficiency in service. The opposite party opted to adopt easy way to wringle out of its liability by not opting to contest the complaint.
6. In view of the evidence discussed and findings recorded above, this Forum is bound to conclude that the opposite party has sold the second hand car in question to the complainant by misrepresentation which definitely constitutes unfair trade practice and deficiency in service due to which the complainant has suffered monetary loss, harassment, humilialation and mental tension.
RELIEF
In view of the findings recorded above, the complaint is allowed. The opposite party is directed to replace car in question having chassis number MAT601465DPB10673 and Engine No. 14CRAIL08BWYW03017 with new one of the same make and model free from any defect with warranty within 30 days from the receipt of copy of this order, failing which to refund Rupees 5,86,822/-, failing which the said amount shall bear interest at the rate of 9% per annum from the date of filing of the complaint i.e. 11-04-2014 till the said amount is paid or realised. The opposite party is also directed to pay a punitive compensation of Rupees 30,000/- and cost of the complaint which we assess at Rupees 5,000/-. Let certified copy of this order be sent to the parties free of cost, as per rules. The file, after its registration and due completion be consigned to the records.
ANNOUNCED AND SIGNED IN OPEN COURT
ON THIS THE 12TH DAY OF MARCH, 2015
(B.R. Chandel )
President
(Th. Digvijay Singh) ( Sushma Sharma)
Member Member
