BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
C.C.No. 205 of 2016.
Date of Instt.: 08.08.2016.
Date of Decision: 26.04.2017.
Suresh Kumar son of Beli Ram resident of Gali No.9/4 Near Airtel Tower, Tibba Colony, Ratia District Fatehabad.
..Complainant
Versus
1.M/s Joy Honda/Ashwani Cars Pvt. Limited Plot No.2, near Jeet Dharam Kanta OP Jindal Marg, Hisser District Hisar through its proprietor/Manager.
2.Honda Cars India Limited Plot No.A-1, Surajpur-Kasna Road, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh-201306 through its Managing Director/Manager.
..Opposite parties.
Before: Sh.Raghbir Singh, President.
Smt.Ansuya Bishni, Member.
Sh.R.S.Panghal, Member.
Present: Sh.Sandeep Bhatia, Advocate for complainant.
Sh.Vishnu Delu, Advocate for OP No.1. Sh.C.L.Narang, Advocate for OP No.2.
ORDER
The Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs).
2. Brief facts of the present complaint are that the complainant had to purchase car Brio Honda, therefore, he made a telephonic call to OP No.1 and inquired about the features of the same. On this, employee/agent of OP No.1 visited the complainant at Ratia and narrated about the features of the car. It has been further averred that the complainant wished to sell one car, of which he was owner by way of affidavit executed by its registered owner namely Jagdish Chand. Thereafter, the manager of Op No.1 told about the exchange scheme and gave consent to purchase old car. He visited Ratia and inspected the car Toyota Etios Liva bearing No.HR59C-5592 and assessed the cost of the same as Rs.2,70,000/-. It has been further averred that the complainant was to execute purchase agreement of the car in favour of the OP No.1 as he was owner of the car and not the registered owner, therefore on the request of the Manager of the OP No.1 purchase agreement from registered owner Jagdish Chand was got prepared. Thereafter, the complainant agreed to purchase the vehicle to be delivered by Op No.1 at Ratia and also paid Rs.11,000/- to the Manager at Ratia qua booking of new Brio car. It has been further averred that the complainant purchased new car Honda Brio bearing Engine No.L12B34007113 Chassis No.MAKDD173BFN303237 from OP No.1 vide invoice No.SER-INV-DD-180-1516-6305 dated 28.02.2016 for a sum of Rs.4,87,988/- (including Rs.19313/- as insurance charges, Rs.1750/- for temporary registration number and Rs.8881/- as other charges).
3. It has been further averred that the complainant got financed the said car for an amount of Rs.4,00,000 from State Bank of India, Ratia and the said amount was paid by the bank to the OP No.1, therefore, the Op No.1 had received Rs.6,81,000/- (including the cost of the old car). Since the cost of the new car was Rs.4,87,988/-, therefore, the OP No.1 had to pay Rs.1,93,012/- received in excess to the complainant. On many requests and demands the OP No.1 paid Rs.1,74,257/- out of the total remaining amount through cheque No.006058 dated 22.03.2016 to the complainant and thereafter refused to make the balance amount of Rs.18,755/-, therefore, the complainant got served legal notice upon the OPs to make the balance amount but to no avail. The act and conduct of the Ops clearly amount to deficiency in service. In evidence, the complainant has tendered his affidavit as Annexure C1 and documents Annexure C2 to Annexure C8.
4. On notice Ops appeared and contested the complaint of the complainant by filing separate replies. OP No.1 in its reply has taken many preliminary objections such as cause of action, jurisdiction, complainant does not fall with the ambit of consumer and maintainability etc. It has been further submitted that the complainant had purchased new Brio Honda car vide invoice No.00516 dated 28.02.2016 and the price of the old car was assessed at Rs.2,57,000/-. The detail calculation of the deal is as under:
Brio SMT (Petrol) A. Silver :
Ex.Show Room price : 4,92,800/-
Extended warranty : 5755/- Zero Dep Insurance : 19313/- Temp Registration Charges : 1750/- Logistic Charges : 4000/- Basis Accessory Kit : 5129/- Anty Rust : 3751 Total amount : 532498/- Old Car Value : - 257000/- Bill discount : - 38755/- Booking Amount : - 11000 /- Finance Amount : -400000/- Refund Amount : 174257/-
It has been further submitted that on receiving of legal notice from the complainant an amount of Rs.13,000/- was credited in the account No.20025212974 of the complainant on 04.08.2016 as amount of Rs.18755/- was not outstanding against the answering OP. Other allegations levelled in the complaint have been controverted and prayer for dismissal of the same has been made.
5. OP No.2 in its separate reply has submitted that the main allegation of the complainant is that Op No.1 had not refunded the entire sum to the complainant, therefore, Op No.2 has no role to play in the same and the relation of Op No.2 and Op No.1 is on principal to principal basis. It has been further submitted that Op No.1 is neither the agent nor the employee of Op No.2 and it is a separate entity.The Op No.2 is manufacturer of the vehicle in question and it can be held liable only when there found any manufacturing defect in the vehicle. Since there was no privity of contract between the complainant and OP No.2, therefore, present complaint against it is not maintainable and the complainant cannot claim any deficiency in service and unfair trade practice on its account. The Op No.2 has not rendered any service to the complainant and the complainant has not suffered any loss or injury due to the act or omission of Op No.2 but it has been dragged in the present case unnecessarily. It has been further submitted that the complainant had bought the car in question from Op No.1 and also paid the cost thereof to it, therefore, it has no role to play in the matter in question and the present complaint is an afterthought act with malafide intention. Lastly, prayer for dismissal of the complaint has been made. OPs in their evidence have tendered affidavit of Sh.Rakesh Kumar, Supervisor as Annexure RW1, affidavit of Ms.Sonia Patel as Annexure B and documents Annexure, A, Annexure R1 to Annexure R11.
5. Heard. In his arguments learned counsel for the complainant has reiterated the averments made in the complaint and prayed for its acceptance whereas the counsels for OPs rebutted the arguments of the learned counsel for the complainant and reiterated the averments made in the replies and prayed for dismissal of the complaint.
6. Admittedly, the complainant had purchased a new car from Op No.1 manufactured by Op No.2. learned counsel for the Op No.2 has rightly argued that there was no privity of contract between the complainant and Op No.2 and even the complainant has not claimed any manufacturing defect in the vehicle. It is ample clear that the present dispute is the result of money transaction allegedly taken between the Op No.1 and complainant, therefore, the Op No.2 cannot be held liable for the act and conduct of the Op No.1 because Op No.1 had received money from complainant. Accordingly, we dismiss the complaint against Op No.2.
7. The complainant has specifically mentioned that he had purchased new car for a consideration of Rs.4,87,988/- (including Rs.19313/- as insurance charges, Rs.1750/- for temporary registration number and Rs.8881/- as other charges) and the Op No.1 had received Rs.193012/- in excess against the cost of newly purchased car. The complainant has further mentioned that the Op No.1 had paid Rs.1,74,257/- through cheque No.006058 dated 22.03.2016, therefore, the Op No.1 was still liable to pay balance amount of Rs.18,755/- to the complainant.
8. Op No.1 in para No.5 of the reply on merits of the reply to the complaint has been mentioned it has released an amount of Rs.1,74,257+Rs.13,000 = 1,87,257 to the complainant and the rest of the amount Rs.5755/- was charged from the complainant qua extended warranty of the vehicle in question, therefore, the nothing was due towards the Op No.1. Learned counsel for the complainant has argued that the Op No.1 had charged Rs.5755/- on account of extended warranty but in fact no such extended warranty was ever granted to the complainant and the Op No.1 had brought this fact to the knowledge of this Forum in order to fill the lacuna as no bill qua extended warranty was ever to the complainant. In order to counter the allegations made by learned counsel for the complainant qua not giving of extended warranty learned counsel for the Op No.1 drew the attention of this Forum towards Annexure R8 (Tax invoice) and argued that Rs.5755/- was obtained from the complainant qua extended warranty which was to be commenced from 27.03.2018 with policy purchased dated 26.03.2016. There is nothing on the file to show that the Op No.1 had ever issued Annexure R8 (invoice mentioning Rs.5755/-) to the complainant because this very document was issued on 26.03.2016 after passing of 29 days from the date of purchasing of car on 28.02.2016. It is worthwhile to mention here that the Consumer Protection Act was enacted for the protection of the rights of the consumer and even Hon’ble Supreme Court while decided Civil Appeal No.3883 of 2007 on 07.04.2017 titled as National Insurance Company Limited Vs. Hindustand Safty Glass Works Limited has held that In our opinion, in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is to overcome this advantage that a beneficent legislation in the form of Consumer Protection Act, 1986 was enacted by Parliament. In the present case undoubtedly the Op No.1 was in dominating position because firstly he had received excess amount and when the complainant had demanded the excess paid amount then Op No.1 made part payment and finally the complainant had to approach this Forum for the refund of the part amount. Therefore, the end of justice would be met if the Op No.1 is directed to refund the amount of Rs.5755/- allegedly received by it on account of extended warranty and Rs.5,000/- in lump sum for mental agony, harassment and litigation expenses to the complainant and unfair trade practice. However, the complainant will not be entitled for the benefit of extended warranty as mentioned in Annexure R8. Compliance of the order be made within 30 days of he passing of this order failing which the awarded amount will carry interest @ 9 % per annum. Copy of this order be supplied to both the parties free of costs as per rules. File be consigned after due compliance.
Announced in open Forum.
Dated: 26.04.2017
(Raghbir Singh)
President,
(Ansuya Bishnoi) (Ranbir Singh Panghal) Distt.Consumer Disputes
Member, (Member) Redressal Forum, Fatehabad.