Punjab

Ludhiana

CC/21/261

Sunil Srivastav - Complainant(s)

Versus

M/s Krishna Automobiles - Opp.Party(s)

Complainant in Person

01 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:261 dated 13.05.2021.                                                        Date of decision: 01.03.2023.

 

Sunil Srivastav son of Shri Vishva Pal, resident of House No.1106/2, Tajganj, Samrala Road, Ludhiana.                                                                                                                                                                      ..…Complainant

                                                Versus

1. M/s. Krishna Automobiles, 1586/3, Mohalla Anandpura, Basti Jodhewal Chowk, Bye-pass Road, Ludhiana-141007 Dealer Code-PB030003 through its Prop./Partner/Director/M.D./Auth. Signatory.
2. M/s. Honda Motorcycle &Scooter India Pvt. Ltd., Regd. Office: Commercial Complex-II, Sector 49-50, Gold Course Extension Road, Guru Gram, Haryana-122018 through its Director/Managing Director.                                                                                    …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Deepak Makhija, Advocate.

For OPs                         :         Sh. Amit Luthra, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant, a practicing Advocate in District Courts, Ludhiana, owned a Honda Activa 5G Deluxe bearing registration No.PB-91-A-4698 which was purchased from opposite party No.1. Since the purchase of the vehicle, the complainant has been getting its service done from opposite party No.1. On 11.01.2020, the complainant got done service of the vehicle from opposite party No.1 vide invoice No.PB03000319017625 dated 11.01.2020 on payment of Rs.649.30 and took the delivery of the vehicle. The complainant stated that as per invoice, the item No.1 i.e. Engine oil was charged for Rs.240.50 plus GST of Rs.43.29 total Rs.283.79 whereas MRP of the said engine oil was mentioned as Rs.272/- and in this manner, Rs.11.79 has been charged in excess of MRP from the complainant. Similarly, opposite party No.1 initially mentioned an amount of Rs.42.37 excluding GST in the said invoice for Nitrogen Air whereas the complainant neither gave any instructions nor filled nitrogen air. The complainant further stated that on raising protest by him, opposite party felt sorry and refunded the said amount of Rs.42.37. Moreover, the entire container of engine oil was also not used at the time of service and some part was kept by the representatives of opposite party No.1 in the container to be used for their own benefits. In this manner, price of engine oil is being excessively charged than MRP from a large number of consumers by opposite party No.1 since long. The complainant approached opposite party No.1 and met the concerned employees but they did not give proper response and openly told that they will charge the amount as per their own desire and nobody can stop them. Even at the time of purchase of new vehicle, the excess amount is charged for registration of the vehicle and are not issuing receipt for the same. The complainant also sent a legal notice dated 23.01.2020 but the opposite parties failed to comply with the same. Hence this complaint, whereby the complainant has made a prayer directing the opposite parties to refund the excess charged amount of Rs.11.79 along with Rs.2,50,000/- as compensation on account of harassment, mental torture, agony and humiliation suffered by the complainant due to deficiency in service and unfair trade practice on the part of the opposite parties and also to pay punitive damages of Rs.2,00,000/- besides litigation expenses of Rs.44,000/-.

2.                Upon notice, opposite party No.1 appeared and filed written statement and assailed the complaint on the ground of maintainability being false and frivolous and suppression of material facts. Opposite party No.1 alleged that in fact on 11.01.2020, the complainant approached it for service of his vehicle i.e. Honda Activa 5G Deluxe bearing No.PB-91-A-4698 which was made vide invoice No.PB03000319017625 dated 11.01.2012 for which Engine oil was charged for Rs.272/- as per MRP printed/displayed on the container of the engine oil. Opposite party No.1 further alleged that the said charges are fixed and set only by the oil company and it has no role in the same. Even at the time of getting the service of the vehicle, the complainant never complained about the service and was fully satisfied with the services provided by opposite party No.1. Moreover, the price of engine oil usually ups and down every month and it charged Rs.283.79 including GST for the container of engine oil as per the existing rate at that time. Opposite party No.1 further alleged that its employees usually throw the empty container of the engine oil in the agency premises after their use. It apprehends that the complainant somehow arranged an empty container of engine oil printed with lower market rate price than the price charged by opposite party No.1 for the said container of engine oil and has filed the present false and frivolous complaint after concocting a false story of charging excess rate than MRP.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 admitted the purchase of the vehicle by the complainant and service of the vehicle from time to time from it.  Opposite party No.1 further admitted the fact of filling of nitrogen air by charging Rs.42,37 but denied that the complainant has not given instructions about nitrogen air. Opposite party No.1 denied any deficiency in service on its part and in the end, a prayer for dismissal of the complaint has been made.

3.                In a separate written statement, filed by opposite party No.2 took preliminary objections that the complaint is vexatious, lacking material evidence and the complainant has no cause of action against it and the complaint has been field to gain monetary relief.

                   On merits, opposite party No.2 denied the averments made in the complaint and in the end, a prayer for dismissal of the complaint has been made.

5.                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 tax invoice dated 23.07.2018 of Rs.55,268/-, Ex. C2 is the copy of provisional registration certificate, Ex. C3 is the copy of registration certificate No.PB91-A-4698, Ex. C4 is the copy of tax invoice dated 21.08.2018 of Rs.394.91, Ex. C5 is the copy of tax invoice dated 20.11.2018 of Rs.289.31, Ex. C6 is the copy of tax invoice dated 28.03.2019 of Rs.279.99, Ex. C7 is the copy of tax invoice dated 24.07.2019 of Rs.279.26, Ex. C8 is the copy of tax invoice dated 11.01.2020 of Rs.649.30, Ex. C9 is the photograph of the container of engine oil, Ex. C10 is the copy of enquiry/quotation  of Krishna Automobiles, Ex. C11 is the copy of legal notice dated 23.01.2020, Ex. C12 and Ex. C13 are the copies of postal receipts and closed the evidence.

6.                On the other hand, counsel for the opposite parties tendered affidavit Ex. R/A of Sh. Pankaj Gupta, Partner of M/s. Krishna Automobiles along with documents Ex. R1 is the photograph of the container of engine oil and closed the evidence.

7.                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 affidavit and documents produced on record by both the parties. We have also gone through written arguments filed by opposite party No.2.   

8.                The complainant has invoked the jurisdiction of this Commission by raising a consumer dispute with regard to charging price of engine oil in excess of MRP and has filed the present complaint. MRP denotes ‘Maximum Retail Price’ which is the maximum amount a retailer can charge from a buyer including taxes. The retailer can charge below the MRP but cannot cross threshold of the amount specified in MRP even by a single paisa. The word “Complaint” has been defined by Section 2(6) of Consumer Protection Act, 2019 which means that any allegation in writing made by the complainant for obtaining any relief provided by or under this Act. Its clause (iv) is relevant for adjudication of the matter in controversy which is reproduced as under:-

(iv) a trader or a service provider, as the case may be, has charged             for the goods or for the services mentioned in the complaint, a price in excess of the price –

1. fixed by or under any law for the time being in force; or
2. displayed on the goods or any package containing such goods; or
3. displayed on the price list exhibited by him by or under any law for the time being in force; or
4. agreed between the parties.

It is pertinent to mention here that the Consumer Protection Act, 2019 has been enacted to protect the interest of the consumer. As per its statement of objects and reason placed before the Parliament the Act has been enacted to promote and protect the rights of consumer as envisaged in Section 2(9) of the Consumer Protection Act which is reproduced as under:-

“Consumer Rights S. 2(9)

(9) “consumer rights” includes,-

(i)      the right to be protected against the marketing of goods, products or services which are hazardous to life and property;

(ii)     the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices;

(iii)    the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;

(iv)     the right to be heard and to be assured that consumer’s interest will receive due consideration at appropriate fora;

(v)      the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and

(vi)     the right to consumer awareness.

 

9.                Undisputedly, on 11.01.2020, the vehicle of the complainant was serviced at the premises of opposite party No.1 and the engine oil was replaced from a  container sod by opposite party No.1 itself. In para No.3 of the preliminary objection of written statement, opposite party No.1 admitted this fact by stating there in that the service of the said vehicle was made truthfully vide invoice dated 11.01.2020 in which the engine oil was charged for Rs.272/-. However, in the later part of the written statement, opposite party No.1 tried to wriggle out of it by offering explanation to the effect that the price of engine oil fluctuates every month and opposite party No.1 has charged Rs.283.79 including GST as per existing rate at that time. The fact that opposite party No.1 has over charged stands proved by the admission of opposite party No.1. 

10.              Ex. C9 is the photograph produced by the complainant and the other photograph has been produced by the opposite parties under the head Ex. R1. A careful examination of Ex. C9 reveals that on one side of the container, net quantity 800 Ml., batch No., manufacturing date, MRP Rs.272/- inclusive of all taxes has been written. However, on the photograph Ex. R1 relied upon by the opposite parties, MRP is written as Rs.284/- inclusive of all taxes.  

11.              Rule 5 of the Consumer Protection (General) Rules 2020 provides the manner of issuing invoice or bill or cash memo or receipt for goods sold or services rendered, which is reproduced as under:-

 (1) Every invoice, bill, cash memo or receipt for goods sold or services rendered, issued by a seller shall have the following minimum particulars, namely:-

(a) The name and address of the seller;

(b) a consecutive serial number not exceeding sixteen characters, in one or multiple series, containing letters or numerals or special characters (hyphen or dash, and slash, symbolised as “-” and “/” respectively) and any combination thereof, unique for a financial year;

(c) the date of its issue;

 (d) the name of the consumer;

(e) the description of goods or services;

 (f) the quantity, in case of goods;

(g) the shipping address, where applicable;

 (h) the taxable value and discounts;

(i) the rate of tax;

(j) the signature of the seller or his authorised representative;

 (k) the customer care number or e-mail ID, where available, and

(l) the total price in single figure, along with the breakup price showing all the compulsory and voluntary charges, such as delivery charges, postage and handling charges, conveyance charges and the applicable tax: Provided that where such invoice, bill, cash memo or receipt is issued by a seller in electronic form, the signature of the seller is not required.

(2) The serial number on the invoice, bill, cash memo or receipt to be issued by a seller shall not be altered, removed, replaced, or erased under any circumstances.”

12.              The aforesaid rules also make it crystal clear that the description of a product is also one of the most essential requirements to be mentioned in the memo. Perusal of the bill/invoice Ex. C8 dated 11.01.2020 shows that the article description has been mentioned with article code “HSN/SAC” but the important and vital information i.e. lot/batch number has not been mentioned in the said column. Article code and the secret number(s) mentioned are only decipherable by the opposite parties themselves and not by the consumer. So non-mentioning of lot/batch number explicitly and mentioning of certain secret article codes in the invoice is gross violation of mandate of law. It also infringes the valuable “right to be informed” of the consumer as envisaged in 2(9) (ii) of Consumer Protection Act that the consumer has right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services as the case may be.

13.              Further Section 2(47) of the Consumer Protection Act defines ‘unfair trade practice’ which means trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, the relevant portion of clause (vii) and (viii) is as under:-                                         

(vii)    not issuing bill or cash memo or receipt for the goods sold or services rendered in such manner as may be prescribed.

(viii)   refusing, after selling goods or rendering services, to take back or withdraw defective goods or to withdraw or discontinue deficient services and to refund the consideration thereof, if paid, within the period stipulated in the bill or cash memo or receipt or in the absence of such stipulation, within a period of thirty days.

From the above said facts, it is clear that the opposite parties have not issued a bill of goods sold in manner prescribed under law which amounts to unfair trade practice. The opposite parties were required to issue bill in a transparent and legal manner.

14.              The complainant served legal notice Ex. C11 dated 23.02.2020 but no reply was given by the opposite parties. It is also the violation of clause (viii) of Section 2(47) of the Consumer Protection Act, mentioned as above. Opposite party No.1 could have replied promptly or initiated the refund of amount charged in excess on the receipt of the legal notice but they maintained a stoic silence for the reasons best known to them.

15.              During the course of arguments, the counsel for the complainant produced the bottle for inspection before this Commission and its particulars displayed in the photographs Ex. C9 resembles with the actual bottle. The counsel for the opposite parties at the fag end contended that it is not the same container of the engine oil from it which was filled in the vehicle of the complainant. This contention is without merits as till date the opposite parties have not asserted either in reply to legal notice and in their written statement, affidavit that they had never ever sold this bottle to the complainant. It appears to an afterthought. So it is evident that opposite party No.1 had charged Rs.11.79 in excess of MRP and indulged in unfair trade practice and have provided the deficient service to the complainant. Opposite party No.2 is the manufacturer of the vehicle and there is no deficiency or unfair trade practice on its part, so the complaint against opposite party No.2 is hereby dismissed.

16.              As a result of above discussion, the complaint is allowed with direction to opposite party No.1 to refund of Rs.11.79, the excess charged amount of MRP to the complainant within 30 days from the date of receipt of copy of order. Opposite party No.1 is further directed to pay composite costs of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.2 is hereby dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

17.              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:01.03.2023.

Gobind Ram.

 

 

Sunil Srivastav Vs M/s. Krishna Automobiles                        CC/21/261

Present:       Sh. Deepak Makhija, Advocate for complainant.

                   Sh. Amit Luthra, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with direction to opposite party No.1 to refund of Rs.11.79, the excess charged amount of MRP to the complainant within 30 days from the date of receipt of copy of order. Opposite party No.1 is further directed to pay composite costs of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.2 is hereby dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

 

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

 

Announced in Open Commission.

Dated:01.03.2023.

Gobind Ram.