BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint Case No  :  110 of 2010

Date of Institution :  25.02.2010

Date of  Decision   :  02.02.2011

Anita Sharma d/o Sh. Satya Pal Sharma, resident of H.No. 540, Sector 18-B, Chandigarh.

….…Complainant

V E R S U S

M/s Premier Motor Garage, 47, Industrial Area, Phase-I, Chandigarh, through the Managing Director.

                         ..…Opposite Party

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

SH.ASHOK RAJ BHANDARI            MEMBER

          MRS. MADHU MUTNEJA              MEMBER

PRESENT: Sh. A.K. Sharma, Adv. for the Complainant.

         Sh. Vineet Sehgal, Adv. for the OP.

PER ASHOK RAJ BHANDARI, MEMBER

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        Concisely put, the Complainant, who is an NRI, approached the OP on 09.10.2009, for purchase of a new CEDIA Sports Model Car, the price of which was told by the OPs to be Rs.9.90,000/- without there being any concession. However, on the same day, in the evening one of their representatives Mr. Ajay Kumar, contacted the Complainant and had offered the aforesaid car for Rs.9,66,000/- by offering a concession of Rs.24,000/-, with the condition that Rs.7,66,000/- was to be paid through Bank Draft, while remaining Rs.2,00,000/- was required to be paid in Cash, which the Complainant did accordingly and thereby paid the entire consideration of Rs.9,66,000/- to the OP being the full price of the car. As a sequel thereto, she was delivered the car along with an insurance cover note, issued in her name, at her residence in the night at 10.00 P.M., on account of which she could not notice the scratches/spots on the body of the car, as well as dents on the Bumper, which were noticed by her only on the next morning i.e. 10.10.2009 and had immediately, informed the OP, who assured that her complaint would be attended to and the car would be replaced with a new one there being a manufacturing defect in the existing vehicle. It was alleged that thereafter, even the Managing Director of the OP had also examined the vehicle himself on 23.10.2009 and promised to take up the matter with Hindustan Motors being the manufacturing company for its replacement and also retained the said car with them, which is still lying there. Thereafter, on 25/26^th October, 2009, the said Mr. Ajay Kumar approached the Complainant with an offer to replace the aforesaid car, on the condition that she should pay extra amount reflecting difference of consideration amount prevalent on that day, which the Complainant flatly refused and rather, asked the OP to refund the amount received by the OP. It was also alleged that the car delivered to her was infact, earlier involved in an accident and was subsequently, got repaired in the Workshop. Even, the price of the car shown in the insurance policy issued by the OP was Rs.7,27,000/- in place of Rs.9,66,000/-, which was actually paid by her. Again on 30.11.2009, the said Mr. Ajay Kumar called upon the Complainant and offered to refund the amount of the car after deducting 25% of the consideration amount, to which she did not agree. Since the Complainant had been unduly harassed by the OP, firstly in delivering accidental/ repaired car while charging full amount for a new car and secondly, in not refunding the amount paid by the Complainant. She got served a legal notice dated 27.12.2009 upon the OP demanding refund of Rs.9,66,000/- along with compensation, but to no avail. Hence, the present complaint has been filed, alleging the above act of OP as gross deficiency in service and unfair trade practice, directing the OP to refund the amount of Rs.9,66,000/- with interest together with reasonable compensation for harassment caused to her, besides costs of litigation.

2]      Notice of the complaint was sent to OP seeking their version of the case.

3]      OP in its written statement/ reply, while admitting the factual matrix of the case/reply, pleaded that on 09.10.2009, the Complainant visited the Showroom of the OP in the afternoon and after duly inspecting the CEDIA Sports Car had chosen the same. Since she was an old customer, OP had agreed to give discount of Rs.24,000/-. While admitting the receipt of Rs.9,66,000/- from her, it pleaded that the Complainant got prepared the Demand Draft of Rs.7,66,000/- and paid Rs.2.00 lacs in cash as per her own wish. It was only upon receipt of the total payment that the vehicle in question was delivered to the Complainant on 09.10.2009 and the Complainant had appended her signatures on the delivery note certifying that the delivery of the car was to her satisfaction along with its standard tools, warranties and other terms and conditions. She had duly inspected the vehicle and there was no dent or scratch on its body, being a brand new vehicle delivered by M/s Hindustan Motors Ltd. (the Manufacturer) to the dealer (OP). It was denied that there was any promise to replace the car with a new one. The car in question was forcibly left by the Complainant at the premises of the OP and despite making various requests/ calls, she was reluctant to take back the car from the showroom of OPs, thereby rendering herself liable to pay parking charges @ Rs.150/- per day w.e.f. 23.10.2009, till the date the car is taken away by her. It was also denied that the car was involved in any accident or was a repaired one and that the value of the car was fixed at Rs.7,27,700/-. The insurance was got done by the Complainant herself, in which OP had no role to play. While admitting the receipt of legal notice dated 27.12.2009, it was submitted that the same was duly replied by the OP on 09.01.2010. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with heavy costs.

4]      Parties led evidence in support of their contentions.

5]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OP. We also heard the arguments put forth by the learned counsel for the parties. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having purchased a new CEDIA Sports Model Car for a total price of Rs.9.66 lacs from the OP on 09.10.2009 and that the payment was made as Rs.2.00 lacs in cash and the balance amount by way of a Bank Draft, have all been admitted. The main allegation of the Complainant against the OP is that the car in question from the very beginning was suffering from a manufacturing defect i.e. it had a number of scratches, spots and dents in its body/ bumper, although it was supposed to be a brand new car. The Complainant says that she, immediately, pointed out all these defects to the OP first of all on 10.10.2009 i.e. within one day of its purchase and subsequently, on 23.10.2009, but nothing has been done by the OP to redress the grievance of the Complainant by not replacing the defective car with a new one. Subsequently, as per the Complainant, an offer was made to her firstly to replace the car on paying the difference of price prevailing then and later on for refunding the amount of the car after making a deduction of 25% of the consideration amount to which she did not agree. Still later, she served a legal notice on the OP, which was replied to by the OP, but the demand of the Complainant for cent percent refund of the amount paid by her has not been accepted by the OP so far and the car in question remains parked at the premises of OP till date. This has led to the present complaint.

ii] The OP in its written statement/ reply while admitting the core facts of the case has stated that the Complainant had purchased a brand new car from them on 9.10.2009. she being an old customer of OP, was also allowed a discount of Rs.24,000/- and a sum of Rs.9.66 lacs was charged from her, instead of Rs.9.90 lacs, which was the actual price of the Car. The Complainant, on her own, paid Rs.2.00 lacs in cash and the remaining amount by way of a Bank Draft. The Complainant had not only taken delivery of the car in question, but also signed a delivery note dated 9.10.2009, stating that she had received the car to her satisfaction, along with its standard tools and further, all warranty procedures and the maintenance of that vehicle had been explained to her at the time of delivery. The OP had flatly denied that it ever made any offer to replace the existing car with a new one. It has alleged that the Complainant left the car at its premises forcibly and was reluctant to take back the same and thereby, she was liable to pay the parking charges @ Rs.150/- per day effective from 23.10.2009. it is also denied that the car was involved in any accident or that it was a repaired car or that the actual value of the car was Rs.7,27,700/- and not Rs.9.66 lacs. It is further clarified that the insurance of the car was got done by the Complainant herself and accordingly, the cancellation of insurance might also have been done by the Complainant only as the OP has nothing to do with the insurance, not being in the insurance business.

iii] After closely examining and analyzing all the facts of the case, we find that there is no doubt that the Complainant had bought a new CEDIA Sports Model Car for a total sum of Rs.9.66 lacs, after availing a discount of Rs.24,000/- from the OP. In respect of the allegations made by the Complainant against the OP that the OP had sold her a defective car with several spots, scratches and dents in the body shell of the car, there is no document on record or any expert report from a competent Automobile Engineer of a recognized and approved Automobile Association, certifying that the vehicle in question was suffering from any manufacturing defect or any other defect. On the contrary, Annexure R-2 placed on record by the OP shows the delivery note dated 9.10.2009 carrying full signatures of the Complainant, certifying that the car in question was delivered to her on 9.10.2009 to her satisfaction, along with the standard tools. There is neither any objection or protest recorded on the said note by the Complainant. Moreover, even plain common sense shows that a person spending a tidy sum of Rs.10.00 lacs on a luxury car, could never have taken its delivery at 10.00 P.M., in the dead of night and under pitch dark conditions, when nothing was visible to the naked eye. This plea of the Complainant is totally unbelievable and indeed improbable. Lastly, it was stated that the Complainant had already two more cars at her disposal. Then where was the tearing hurry to rush in to take the delivery of the third car in the middle of night and that too without even having a close look at it. There has been no explanation to these points by the Complainant/ learned counsel for her and as such, the pleas made by OP remain unrebutted till date, making the case of the Complainant as extremely weak and also subject to serious doubt about its veracity.  There is also no record or document showing that the OP had ever forced the Complainant to make payment partly in cash and remaining by way of Bank Draft.

iv] During the course of arguments, the learned counsel for the Complainant stated that immediately, after taking delivery of the car on 9.10.2009, the Complainant had gone out of station to Amritsar, along with the car and because of her ailment she came back to Chandigarh only on 23.10.2009, which clearly shows that the car remained out of Chandigarh and at Amritsar or elsewhere for a period of 14 days. What happened to the car during those 14 days when it was stationed or being used at Amritsar, is not known to any one except the Complainant herself. There is a possibility that the car might have got the alleged scratches, spots and dents while the same was being driven at or around Amritsar or during to and fro journey from Chandigarh to Amritsar. It is also a fact that, right from 23.10.2009, till date, the car has been lying with OP. The stand of the OP is that despite repeated calls and requests made to the Complainant, she is not lifting the car from its premises and, therefore, she is required to pay the parking charges @ Rs.150/- per day with effect from 23.10.2009, till the date, the car is taken back by the Complainant from the premises of the OP.

v]  So far as allegation of forced insurance against the OP is concerned, during the course of arguments, the learned counsel for the OP clarified that the OP is only an approved/ authorized dealer for sale and service of Hindustan Motors Company Cars and is not in the business of insurance and, therefore, the insurance of the car was got done by the Complainant herself from the company of her choice and for the value, which was agreed to between the Complainant and the insurance company. It is also a settled rule of insurance that the insurance companies do allow “Under Insurance”, but not “Over Insurance”, which means that although the car was valued at Rs.9.66 lacs, it could have been got insured for a much less value and in the present case, the I.D.V. of the vehicle shown in the Insurance Policy is Rs.7,27,700/- only. There is apparently nothing illegal or irregular in respect of this under insurance, which from all accounts, must have been got done by the Complainant herself only. The Complainant further says that this insurance policy was subsequently got cancelled by the OP and that the full amount of the premium without any deduction whatsoever have been paid back to her. It is not understood as to how the OP could get the Insurance Policy cancelled and more so, the refund has been made to the Complainant and not to the OP. The Complainant has not placed on record any document, showing that the OP had ever written to the insurance company for canceling the insurance of the vehicle. In any case, the OP is neither competent, nor capable of either getting the vehicle insured or getting it cancelled and it is quite clear that the entire process of insurance must have been undertaken by the Complainant herself alone and not by the OP. The very fact that the Complainant herself received back the insurance premium from the insurance company and not the OP clearly shows that it is the entire handiwork of the Complainant only and OP is not involved in the insurance matter.  Last, but not the least, the Complainant has not made the Insurance Company as a party in this case. Therefore, no evidence can be either placed or used against some one not arrayed as an opposite party. Even on that basis, the Complainant’s case falls flat like nine pins in respect of her pleadings.  

vi] During final arguments, it also transpired that the Complainant had also lodged a criminal complaint against OP with the Chandigarh Police, but the same was reportedly filed by the Police after due investigation. This plea of the OP was not rebutted by the Complainant at any stage. This is another aspect and dimension of the present case.    

6]      In view of the above detailed analysis of the case, in our considered opinion, the Complainant has not been able to establish any case in her favour or prove any allegation against the OP. As a matter of fact, it is the OP which has been able to completely assail and rebut the allegations made by the Complainant against it by producing all relevant documents and records. All said and done, it appears that the entire case put up by the Complainant is simply a made up or cooked story and there appears to be not even an iota of truth in any of the allegations made by the Complainant against the OP. Therefore, we eventually find that there is no merit, weight or substance in the present complaint and it deserves outright rejection. Hence, we dismiss the complaint. However, the respective parties shall bear their own costs.

7]     Certified copy of this order be communicated to the parties, free of charge. After compliance, the file be consigned to the record room.

Announced

02.02.2011

                         Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                    Sd/-                                          

                                (ASHOK RAJ BHANDARI)

MEMBER

(MRS. MADHU MUTNEJA)

MEMBER