DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 10^th day of January 2019

Present: Smt.Shiny.P.R,  President

            : Sri. V.P.Anantha Narayanan, Member                                                     Date of Filing: 29/06/2016

CC No.90/2016

Kaja Hussain,

S/o.Kabeer Rowther,

Chengodu Veedu,

Mannaloor, Thenkurussi,

Palakkad - 678 502.                                                                                                          -              Complainant

(By Advs.K.Dhananjayan & S.Mujeeb Rahiman)                                                                                               

        V/s                

1. M/s.Mahindra Two Wheelers Ltd.,

Administrative Office,

Mahindra Two Wheelers Ltd.

Kitenic Innovation Park,

D1 Block, Plot – 18/2 MIDC

Pimpri, Chinchwad, Maharashtra,

Pin - 411 019.

2. M/s.Mahindra Two Wheelers Ltd.,

Rep. by its Managing Director,

Manager/or Authorised Signatory

Mahindra Two Wheelers Ltd.

Kitenic Innovation Park,

D1 Block, Plot – 18/2 MIDC

Pimpri, Chinchwad, Maharashtra,

Pin - 411 019.

(By Advs.Saji Mathew, Denu Joseph, Shiju Kuriakose &

Neethu Reghukumar for Opposite party 1 and 2)

3. M/s.Meridian Motors,

Fort Plus Stadium Bypass Road,

Palakkad, Pin – 678 013.

(By Advs.P.V.Sukesh & B.Kamal Chand)

4. The Managing Director,

The New India Assurance Co. Ltd.,

Sree Valli Building Complex,

Chittur Branch, Code 761102,

Anicode Junction, Chittur,

Kerala, Pin – 678 101.

(By Adv.K.V.Sujith)

5. Additional RTO,

Registering Authority under the

Motor Vehicles Act,

Department of Motor Vehicles,

Govt. of Kerala,

Alathur, Palakkad Dt.                         

O R D E R

By Smt.Shiny.P.R, President.

Brief facts of complaint are that the complainant has purchased a brand new motorcycle on 19.09.2015 as per invoice No.VSI-TWDM3441516-378 from 3^rd opposite party by paying an amount of Rs.46,810/-.  Opposite parties No. 1 and 2 are the manufacturers and 3^rd opposite party is the authorized dealer of opposite parties 1 and 2.  At the time of booking complainant demanded a brand new motorcycle which is manufactured in the year 2015.  The 3^rd opposite party has given an exchange offer for his old Bajaj Boxer 2001 model motorcycle and they had given an exchange value of Rs.11,000/- to his old Bajaj Boxer Motorcycle.  After purchasing the motor cycle the complainant has registered his new vehicle to the Motor Vehicle Registering Authority at Alathur.  The Registering Officer has inspected the vehicle and discovered that the vehicle he has obtained from the opposite parties 1 to 3 was an old model vehicle manufactured in the year 2014.  Complainant submitted that the opposite parties 1 to 3 have never disclosed this crucial fact to the complainant. He demanded 2015 model vehicle. Complainant further submits that the insurance premium of vehicle would be different and varying from year to year depending on the year of model.  When any insurance claim is made on account of and in connected with its usage etc. the insurance company would consider the rate of depreciation depends upon its model and practically a lesser amount would be given by the insurance company to the owner of the vehicle, here to the complainant.  Hence the complainant would sustain financial loss.  The change of model would adversely affect its resale value also.  The complainant is dragged to go a year backward for no fault of him.  The opposite parties 1 to 3 have willfully suppressed the change and sold the old model vehicle to the complainant with an ulterior intention.  The act of opposite parties 1 to 3 amount to unfair trade practice and deficiency in service.  The 4^th opposite party has also committed deficiency of service against the complainant when the vehicle is being insured with them, they have a bounden legal duty to scrutinize and inspect the original RC and its endorsement made in by the Registering Authority.  Complainant submitted that opposite parties 1 to 4 are gained an unjust enrichment and the complainant has suffered a wrongful loss.   Hence the complaint.  Complainant prays for an order directing opposite parties 1 to 4 to pay Rs.1,00,000/- as compensation to the complainant with cost of litigation.   5^th opposite party is a necessary party and who has discovered this malpractice, unfair trade practice committed by opposite parties 1 to 4.  Hence no relief is claimed against them. 

Complaint was admitted and notices were issued to the opposite parties. Opposite parties entered appearance and filed their separate version contending the following.

Opposite parties 1 and 2 filed version contending that the complainant had not hired or availed any service from these opposite parties.  There is no privity of contract between the complainant and these opposite parties.  These opposite parties are not aware of the transactions between the 3^rd and 4^th opposite parties with the complainant.  Therefore the complaint as against these opposite parties is to be dismissed in limine. 

3^rd opposite party the authorized dealer of opposite parties 1 and 2 filed version admitting that complainant  has purchased a motor cycle from their sub dealer Real Motors, Kindimokku, N.H.Road, Near Block Office, Alathur.  The complainant on 18/9/2015 booked the vehicle by paying Rs.2,500/- to M/s.Real Motors.  On next day complainant handed over the old motor cycle along with R.C book and insurance certificate and paid the balance amount. So new motor cycle was delivered to the complainant on the same day.  The 3^rd opposite party issued the bill for the same for and behalf of Real Motors as there is no PIN and TIN numbers for Real Motors.  But the canvassing and sale was exclusively done by the Real Motors.  For which 3^rd opposite party had issued retail invoice and tax invoice to the complainant.  The staff of M/s.Real Motors has given exchange offer of Rs.11,000/-.  And an additional discount of Rs.5,000/- was given for taking a vehicle manufactured in the year of 2014.  This opposite party further contended that the complainant very well knows about the fact that the vehicle he has purchased was of 2014 and he had received additional discount for the same also.  Therefore, there is no deficiency in service and unfair trade practice on part of these opposite parties.  And the above complaint is bad for non joinder of necessary party.  Thus the complaint has to be dismissed with heavy costs.

Opposite party No.4 denied the allegation that this opposite party is vested with bounden duty to scrutinize and inspect the original R.C Book and its endorsement made by the registering authority. They contended that as the vehicle is brand new, this opposite party used to issue Policy before effecting registration, based on the details furnished by the dealer.   This opposite party has not made any omission or oversight error in issuance of policy.  The policy is issued as per the terms and conditions.  The insurance premium for lesser model is not relevant in this case as the rate of premium for vehicle damage is same up to 5 years of age.  So no financial loss, disadvantages, inconvenience and hardship has been caused to the complainant.  Hence there is no deficiency of service on the part of this opposite party.  Hence complaint is to be dismissed with cost of this opposite party.

Opposite party No.5 admitted the registration of the above said vehicle and submitted that on the basis of Sale Certificate issued in the Form No.21 by the dealer and inspection of the vehicle they have registered the vehicle.  In the sale certificate Sl.No.8 shows that the year of manufacture is November 2014.  The engine number, chassis number and other details shown in the sale certificate are tallied with the vehicle produced for inspection. There is no deficiency in service from their part.  Since this opposite party is an unnecessary party to the complaint, the above complaint is to be dismissed with the costs and compensatory costs.   

Complainant filed chief affidavit and documents. Documents were marked as Exts.A1 to A4.  All the opposite parties filed their respective chief affidavit. Opposite party No.3 and 4 filed documents which were marked as Ext.B1 to B8.  Complainant filed questionnaire to opposite parties No.1 to 3 and opposite party No.4 separately.  Opposite parties Nos.1 to 3 have not filed answers to the questionnaire.  But opposite party No.4 filed answer to the questionnaire in the form of affidavit.

The following issues that arise for consideration are.

1. Whether there is any deficiency in service on the part of opposite parties?
2. If so what is the relief and cost?

Issues 1 & 2

Heard.  We have perused documents and affidavits filed by both parties. 1^st and 2^nd opposite parties admitted that 3^rd opposite party is their authorized dealer.  But they have submitted that there is no privity of contract between the complainant and these opposite parties.  After considering the document available before the Forum we are of the view that there is no evidence before the Forum to prove that 1^st and 2^nd opposite parties are indulged in the above wrongful act of 3^rd opposite party. Therefore we cannot attribute deficiency in service on the part of 1^st and 2^nd opposite parties.

Ext. A2 proves that the complainant had purchased a motor cycle from 3^rd opposite party for an amount of Rs.46,810/- .   3^rd Opposite party admitted the sale of vehicle manufactured in the year 2014  through their sub dealer Real Motors, Kindimoku for which Real Motors had given an additional discount of Rs.5,000/- to the complainant.  No documentary evidence is adduced before the Forum to prove that sub dealer Real Motors, Kindimoku had given additional discount of Rs.5,000/- to the complainant for purchasing old model vehicle. They should have to examine the Real Motors to prove these contentions.   3^rd opposite party contended that the complainant very well knows about the fact that the vehicle he has purchased manufactured in the year 2014. There is no documentary evidence to prove that they had given information about the year of manufacture before the sale of vehicle.  From the documents produced by the complainant it is revealed that the above said vehicle was sold by 3^rd opposite party.   On the perusal of Ext.A2 tax invoice issued by the 3^rd opposite party it is shown that the date of manufacturing is not mentioned in the above said document.  4^th column of Ext.A2 is kept blank.  From this, it is clear that the 3^rd opposite party or their sub dealer has not revealed the year of manufacture to the complainant at the time of purchase.  From the above discussion we are of the view that 3^rd opposite party willfully suppressed the year of manufacture from the complainant for their wrongful gain which amounts to unfair trade practice.

4^th opposite party contended that in the case of new brand vehicle they used to issue Policy before effecting registration, based on the details furnished by the dealer.  In the present case also they issued policy on the basis of details furnished by the dealer.   4^th opposite party  further contended that the insurance premium for lesser model is not relevant in this case as the rate of premium for vehicle damage is same up to 5 years of age.   So financial loss, disadvantages, inconvenience and hardship will not be caused to the complainant.  From the affidavit of 4^th opposite party we can conclude that the 3^rd opposite party might have furnished the wrong information regarding the year of manufacture of the vehicle to the 4^th opposite party.   On the basis of that information they had issued insurance policy to the above said vehicle.  In the light of above discussions we are not in a position to attribute deficiency in service on the part of 4^th opposite party.  At the same time we can conclude that by suppressing the year of manufacture 3^rd opposite party sold the old model vehicle to the complainant for their unlawful gain and undue advantage.   It is true that the change of model would adversely affect its resale value.  Therefore 3^rd opposite party has the liability to pay the compensation to the complainant for selling 2014 model Motor cycle instead of 2015 model and for mental agony suffered. 

As we could not find deficiency in service on the part of 1^st, 2^nd and 4^th opposite parties complaint against them are dismissed.  5^th opposite party is exonerated from liability as the complainant did not claim any relief from this opposite party.

In the result complaint is partly allowed and 3^rd opposite party is directed to pay an amount of Rs.15,000/-(Rupees Fifteen thousand only) to the complainant as compensation for mental agony  and financial loss caused along with Rs.3,000/-(Rupees Three thousand only) as cost of proceedings.  

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.  

Pronounced in the open court on this the 10^th day of January 2019.

                                                                                                                                Sd/-

                                                                                                                                                 Shiny.P.R.                                           President

                                                                                                                                                                     Sd/- 

                 V.P.Anantha Narayanan

                                Member

Appendix

Exhibits marked on the side of complainant

Ext.A1   - Photo copy of the RC of the motorcycle bearing Regn. No.KL-49/C 2119

Ext.A2   - Photo copy of tax invoice(RTO) No.VS1-TWDM3441516-378 issued by 3^rd Opposite party.

Ext.A3   - Photo copy of temporary certificate of registration issued by the Motor Vehicles Department.

Ext.A4   - Photo copy of the insurance policy issued by the 4^th opposite party to the complainant .            

Exhibits marked on the side of Opposite parties

Ext.B1   - Photo copy of receipt No.143 issued by Manager, Real Motors to the complainant.

Ext.B2   - Photo copy of certificate of registration issued by opposite party to the complainant.

Ext.B3   - Photo copy of policy schedule certificate of insurance issued by 4^th opposite party to the complainant.

Ext.B4     - Photo copy of receipt No.145 issued by Manager, Real Motors to the complainant.

Ext.B5    - Copy of retail invoice issued by 3^rd opposite party to the complainant.

Ext.B6   - Photo copy of tax invoice(RTO) No.VS1-TWDM3441516-378 issued by 3^rd Opposite party.

Ext.B7   - Copy of Sale certificate issued by 3^rd opposite party to the complainant.             

Ext.B8   - Copy of Motor Tariff revised from 01.04.2016 issued by 4^th opposite party to the complainant.

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost :     Rs.3,000/-