BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.492 of 2016/419 of 2013

Date of Instt. 20.12.2016

Date of Decision: 25.04.2018

Gurnam Singh aged about 65 years son of Mihan Singh resident of 172, Street No.6, Ganesh Nagar, Near Rama Mandi, Tehsil and District Jalandhar City

..........Complainant

Versus

1. M/s New Punjab Car Bazar, Avtar Nagar Road, Opp. Gurudwara Ashok Nagar, Jalandhar City through its Partner/Proprietor etc.

2. M/s G.J. Agro Industries, Kartarpur Kapurthala Road, Jalandhar through its Partner/Prop./M.D.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Rajesh Verma, Adv Counsel for the Complainant.

Sh. Arun Puri, Adv Counsel for OP No.1.

Sh. Naveen Chadha, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint was decided by our Predecessor on 18.02.2014 and against that order, an appeal was filed before the Hon'ble State Commission and accordingly, this complaint was remanded back by the Hon'ble State Commission to this Forum after setting aside the order of this Forum, with the direction to give an opportunity to OP No.2 to file reply and lead evidence and then decided the same afresh.

2. Brief facts of the complaint are that the complainant purchased one Tata make Manza car bearing Registration No.PB-09-B-3636 against consideration of Rs.4,77,000/- from the OP No.2 for personal use and is registered owner of the vehicle, therefore, availed the services of OP No.1 and the said vehicle was originally owned by the OP No.2 and the said vehicle was sold by OP No.2, to the complainant through OP No.1 and the complainant in this way is consumer within the meaning of 'Consumer Protection Act, 1986'. The payment of value of the car was paid against receipt bearing No.533 dated 12.03.2012 and OPs assured the complainant that the vehicle is genuine in all respect. After the purchase of the vehicle in question, the complainant visited the authorized dealer of the Tata Vehicles i.e. M/s Kosmo Vehicles Pvt. Ltd. Jalandhar, with Speedo Meter reading 33949 KMS for routine checkup after the purchase of the vehicle in question. That the complainant at that time came to know from the service engineer of M/s Kosmo Vehicles Pvt. Ltd., Jalandhar that the present vehicle is having service history for the entire period after the sale of the vehicle and in the previous check up service history obtained from the dealer and as per the service dated 22.11.2011, the meter reading is mentioned as 89935 Kms and got shocked after reading the Speedo Meter as the difference came out to be 55,986 KMS, meaning thereby the Speedo Meter has been reversed by 55986 Kms for the sake of getting more price from the prospective buyer and the complainant became victim at the hands of the OPs. As the 2010 model vehicle in question would not be more than a price of Rs.4,20,000/- in any eventuality, hence, the complainant has illegally and unlawfully been over charged to the tune of Rs.57,000/- approximately, as such has been cheated and defrauded at the hands of the OPs for their malpractice committed with the complainant.

3. That the OPs concealed the true and correct facts regarding the above mentioned car from the complainant rather sold the car by tampering with the speedo meter reading by reversing it showing the less meter reading OP No.2 intentionally knowing the fact, therefore sold the vehicle in question to the complainant as the complainant purchased the said vehicle on the assurance of the OPs. As the said defect could not be ascertained by naked eye as the speedo meter reading has been reversed is being done by the persons to get more money of their vehicle as the complainant enquired this fact after detecting it from the mechanics in the market. The OP has delivered deficient services to the complainant at the time of sale of the vehicle in question and in this way, the OPs have get excess amount of Rs.57,000/-, whereby caused mental agony to the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the excess price, charged from the complainant i.e. Rs.57,000/- along with interest @ 18% per annum from the date of purchase i.e. 12.03.2012, till realization and further OPs be directed to pay Rs.2,00,000/- as cost of the harassment, mental agony caused to the complainant and further OPs be directed to pay litigation expenses of Rs.11,000/-.

4. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared and filed its reply and contested the complaint by taking preliminary objections that the complaint of the complainant is not maintainable at all in the present form, hence liable to be dismissed because the instant complaint is hit by the law of Res-Judicata and further averred that the issue involved in the present complaint has already been decided by the District Consumer Forum, vide judgment dated 17.09.2013 and as such, the complainant has no right to re-agitate the same matter again before the Consumer Forum. It is further averred that the instant complaint has been filed by the complainant without any cause of action and is malafide and even the complainant has suppressed the material facts from the Forum and therefore, the complainant is not entitled for the relief and even the complaint is bad for non-joinder of the necessary parties. On merits, it is admitted that the OP No.1 is doing the job of car sale and purchase on purely commission base and OP No.1 is neither owner of the said car nor he claim any movement of dealing that he is the exclusive owner of the said car. The complainant has purchased the said car from the original owner, who is holding the registration certificate of the said car at that time. The other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

5. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint of the complainant is not maintainable against the answering OP No.2 and further alleged that there was no direct dealing with the complainant and OP No.2. Hence, the complainant is not a consumer of the OP No.2 and complaint is liable to be dismissed on this ground and further alleged that there was dealing with the OP No.2 and one M/s Kosmo Vehicle Pvt. Ltd, but the said M/s Kosmo Vehicle Pvt. Ltd. is not pleaded in this complaint, whereas the said company is a necessary party, who is dealing in the business of selling the vehicle i.e. new cars. The said M/s Kosmo Vehicle Pvt. Ltd declared a scheme i.e. exchange offer in the month of September-October 2011 with the liberty that they will adjust the old vehicle belongs to customers purchasing new vehicles. Under the said exchange scheme, the OP No.2 approached M/s Kosmo Vehicle Pvt. Ltd for purchase of one car make Indica and accordingly, OP No.2 gave his old car No.PB-09-B-3636 to M/s Kosmo Vehicle Pvt. Ltd and the price of that car was adjusted in selling of new car under the said exchange offer .The amount which was adjusted under the said exchange offer was of Rs.3,82,300/-. The possession of that old car was given to M/s Kosmo Vehicle Pvt. Ltd on 29.10.2011, vide receipt No.2784 dated 29.10.2011 and the balance amount of new car was paid to the said M/s Kosmo Vehicle Pvt Ltd and as such, the complainant and OP No.1 never met the OP No.2 and even the complainant never approached to OP No.2 for purchase of the said car. On merits, all the averments as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

6. In order to prove the case of the complainant, complainant himself tendered into evidence his own affidavit Ex.CA along with some documents Mark C-1 to Mark C-11 and closed the evidence.

7. Similarly, counsel for OP No.2 tendered into evidence affidavit of Sanjay Jain, Partner of OP No.2 Firm as Ex.OP/A and some documents i.e. Ex.OP1 and Ex.OP2 and closed the evidence.

8. Similarly, counsel for the OP No.1 suffered a statement that the documents already tendered prior to remanding of this case, may be read as evidence of the OP No.1.

9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

10. The case of the complainant is that he has purchased one Tata Manza car for Rs.4,77,000/- from the OP No.2 through OP No.1 and also produced on the file copy of registration certificate Ex.C-2, which stands in the name of OP No.2. So, from the registration certificate, it has become clear that the OP No.2 was the owner of the car in question and further the car in question was transferred in the name of complainant Gurnam Singh from the name of the OP No.2. The above fact is corroborated from the endorsement made on the copy of the certificate of registration. Ex.C-1 is receipt given by the New Punjab Car Bazaar i.e. OP No.1 to the complainant at the time of selling of car and price of the car was paid a sum of Rs.4,77,000/- is also proved from the receipt Ex.C-1 dated 12.03.2012, given by OP No.2 through OP No.1, whereby it is established that the complainant purchased the car in question on the said date i.e. 12.03.2012 from the OP No.2.

11. Before remanding of this complaint, OP No.2 was exparte, but now OP No.2 has filed a reply and also led evidence and in its pleading, the OP No.2 categorically took a plea that the car in question was given by the OP No.2, who one M/s Kosmo Vehicle Pvt. Ltd in an exchange scheme, which was opened by the said agency M/s Kosmo Vehicle Pvt. Ltd, if the car in question was given in exchange offer by the OP No.2 to the said Kosmo Vehicle Pvt. Ltd, then question does not arise to sell the said car to complainant directly or through OP No.1 and the story propounded by the complainant is self made story just to hush up a money from the OP No.2 and moreover, the complaint in question is bad for non joinder of necessary party i.e. M/s Kosmo Vehicle Pvt. Ltd.

12. Except the above plea, no other strongly question raised by the OP No.2 and accordingly, we analyze the said question raised by the OP No.2 and find that the OP No.2 brought on the file an affidavit of one of the partner of the OP No.2 Firm i.e. Sanjay Jain and whose affidavit is Ex.OP/A, whereby reiterated the entire facts as detailed in the reply and further OP No.2 tendered into evidence a Ledger Account Statement of the firm of the OP No.2, which is Ex.OP/1, but this Ledger Account Statement in itself is not sufficient to prove that the OP No.2 sold an old car in question to the M/s Kosmo Vehicle Pvt. Ltd in exchange scheme. Further OP No.2 brought on the file a receipt issued by M/s Kosmo Vehicle Pvt. Ltd, the same is Ex.OP2, whereby a sum of Rs.3,82,300/- was paid by the OP No.2 to said M/s Kosmo Vehicle Pvt. Ltd , but again from this receipt, it has not become clear whether the OP No.2 has given the car in question in exchange scheme or not. So, from the documentary evidence of the OP No.2 is not sufficient to establish that the OP No.2 sold the car to M/s Kosmo Vehicle Pvt. Ltd rather the OP No.1, who is doing the business of sale purchase old car categorically submitted that the car in question was sold by the OP No.2 to the complainant and accordingly, payment of Rs.4,77,000/- made in the presence of the OP No.1 and vehicle was delivered to the complainant on 12.03.2012, regarding that the OP No.1 produced on the file Vehicle Delivery Receipt Ex.OP1. Further complainant has proved on the file a photostat copy of partnership deed of the OP No.2, which is Mark C-8 and further affidavit given by the partner of the OP No.2 Firm, photostat copy of the same is Mark C-11, whereby sold the vehicle in question to the complainant and similarly, the complainant also gave an affidavit and photostat copy of the same is Mark C-10, whereby declared that he purchased a vehicle in question, bearing No. PB09-B-3636 and Form No.29 was also given by the OP No.2 with the signature of one partner, which is Mark C-6 and similarly Form No.30 regarding report of transfer of ownership of motor vehicle was also signed by the OP No.2 and copy of the same is Mark C-5. Further complainant proved on the file photostat copy of the receipt Mark C-1, whereby made the payment of Rs.4,77,000/-, to the OP No.2 in the presence of OP No.1 i.e. M/s New Punjab Car Bazaar and photocopy of the RC Mark C-2 also established that previously the car in question was stand in the name of the OP No.2 M/s G. J. Agro Industries. So, from all angles, the plea taken by the OP No.2 that the car in question was directly sold to M/s Kosmo Vehicle Pvt. Ltd, is not established rather the above said documents proved that the car in question was sold by the OP No.2 through OP No.1, to the complainant and accordingly, signed the documents, which have been already discussed.

13. Apart from above, we have also considered the factum whether the speedo meter was reversed by the OP No.2 or not, for that purpose, the car in question was brought by the complainant in the workshop of the M/s Kosmo Vehicle Pvt. Ltd, where from got a service history of the car and photostat copy of the same is Mark C-3. From the scrutiny of the above said service history, itself shows that the reading of the speedo meter at the time of service on 31.03.2012 was 33,949 KMS and further from the service history of the car, it is also evident that on 14.09.2011, the reading of the speedo meter was 85499 KMS. As per the history as on 30.09.2011, reading of the speedo meter was 87456 KMS. So, when the reading of speedo meter on 17.09.2011 was 85499 KMS, it would not be 33949 Kms on 31.03.2012. So, this fact itself clearly established that the reading of the speedo meter has been reversed. Now question arise, who reversed the speedo meter, we cannot blame to OP No.1 because he has no interest, he is only mediator for the sale purchase of the car, whereas OP No.2 was the owner of the vehicle in question and accordingly, without any hesitation figure is raised towards the OP No.2 regarding allegation of reverse the speedo meter, being a reason the OP No.2 being an owner of the car having an interest for reversing the speedo meter, to get a higher price of the car and accordingly, we come to conclusion that the OP No.2, who was original owner of the car, has reversed the speedo meter reading of the car, which is clear cut unfair trade practice and therefore, we hold that the OP No.2 is liable to indemnify the complainant, whereas the complaint of the complainant against OP No.1 has already been dismissed on 17.09.2013 and copy of the order is Ex.C-4 and therefore, the complainant has no right to re-agitate the same issue again and again against the OP No.1, therefore, the complaint of the complainant against OP No.1 is not maintainable and the same is dismissed, whereas the complaint of the complainant against OP No.2 is partly accepted.

14. In the light of above detailed discussion, the OP No.2 is directed to pay Rs.57,000/- on account of over charged price of the car, sold by it to the complainant with interest @ 12% per annum from the date of purchase i.e. 12.03.2012, till realization and OP No.2 further directed to pay compensation for mentally harassment to the complainant, to the tune of Rs.12,000/- and further OP No.2 is directed to pay litigation expenses of Rs.3000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

25.04.2018 Member President