Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No145/22.05.2015
Sh. Amar Singh s/o Shri Pahup Singh
R/o J-138, Prem Nagar, Lal Kuan, Badarpur,
New Delhi-110044 …Complainant
Versus
OP1-Shri Narinder Singh
Owner/In-charge of -M/s Indersons Motors Pvt. Ltd.
Address-17-C, New Colony, Model Basti
New Delhi-110005
OP2-Mr. Lakhvinder Singh AVP-Manager
M/s SML ISUZU Ltd.
204-205, Sector-34A, Chandighar-1060135
OP3-Mr. Naval Kumar Sharma- General Manager
M/s SML ISUZU Ltd.
C-24, 3rd Floor, Malviya Nagar Market,
New Delhi
...Opposite Party
Date of filing: 22.05.2015
Date of Order: 12.12.2023
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant has grievances of unfair trade practice and deficiency in services against OPs that he booked and bought SML-ISUZU, CNG Euro IX Swaraj Mazda Bus, Chassis No. MBUZT54 XFX0196305, Engine No. SLNGIFX 189852 having capacity of 40+1 seats (hereinafter referred as “the vehicle”) against payment of entire consideration amount, however, after sometime it is discovered that the complainant was handed over second hand vehicle by OPs, it was got inspected from the workshop and also from a surveyor. That is why, the complaint.
1.2. The OP1 opposed the complaint that neither there is any deficiency in services nor unfair trade practice vis-à-vis inspection report cannot be accepted being not by an expert. The complaint is inconsistent with the record filed in its support as it is estimate of accident damages, the OP1 cannot be held liable. The complaint himself is at fault in not paying the entire amount.
1.3. The OP2 & OP3 also separately opposed the complaint firstly, both of them were impleaded in their personal capacity, whereas, the chassis was sold by M/s SML Suzuki Ltd. Otherwise, there is no iota of allegations either of deficiency of services or otherwise against OP2 & OP3.
2.1. (Case of complainant) –The complainant booked the vehicle with the OP1 on 12.07.2014 against advance booking of Rs. 50,000/-, it was to be delivered within 20 days from the date of booking. But the vehicle was delivered after much delay in evening hours of on 12.09.2014. The complainant had paid the entire consideration amount of Rs. 15,35,000/- after concession of Rs. 1,00,000/-. The complainant was to deploy the vehicle to the school, to earn his livelihood, but because of delay, he had to hire/take charter bus from another agency, he suffered Rs. 1,08,000/- on this account for taking the private charter bus. It happened because of breach of promise by the OP1 as well as concerned company, the OP2 & OP3.
2.2. The vehicle was delivered to the complainant in evening hours, it came to his notice after a few days that paint on body of bus not genuine paint, it seems to be second hand.
On 13.01.2015 the complainant got inspected the vehicle from SML Suzuki’s workshop Metaltech Motor Pvt. Ltd., who disclosed that the paint is not new one but it is actually repainted/re-done paint, it has no genuine finishing of original/genuine paint. It estimated Rs. 55,394/- required for genuine paint. The complainant also approached a surveyor Mohd. Saghir Khan, who surveyed the vehicle on 25.01.2015 and made his report dated 31.01.2015 that it was second hand vehicle, the dealer had delivered the vehicle after repairs and repaint. The OPs are liable thereof since the complainant has been cheated by them; the complainant has been put to losses by supplying damaged vehicle instead of handing over new vehicle. The complainant has been suffering mental trauma besides financial losses and harassment by them. It was brought to the notice of dealer with request to refund the amount and to pay damage in lieu of defective vehicle. However, there is no heed. There was complaint dated 14.11.2014 followed by legal notices dated 17.12.2014 & 10.02.2015, but they are not bothering. Since, the complainant has been given defective and dent-painted vehicle in place of brand new vehicle, the OPs are liable for all consequences to replace it with a bus against defective and dent-painted vehicle, compensation of Rs. 2,00,000/- for mental agony and harassment, an amount of Rs. 1,50,000/- for removal of old damages of paint and other defects in the bus, besides litigation cost of Rs. 30,000/-.
2.3. The complaint is accompanied with copies of -information regarding transit insurance, inspection of vehicle, photographs of vehicle, bill, RC, complaint dated 14.11.2014 to SML ISUZU, invoice dated 12.09.2014, estimate by Metal-tech Motor Pvt. Ltd. dated 13.01.2015, receipt dated 03.02.2015 for hiring charter bus, legal notices dated 07.12.2014 & dated 10.02.2015.
3.1 (Case of OP1)- The OP1 opposed the complaint that the complainant is not a consumer since he had purchased the vehicle for commercial purposes. The complaint does not disclose any cause of action, since there is no iota of deficiency of services.
3.2. The complainant had booked the vehicle on 14.07.2015, the standard delivery period was 4-6 weeks after receipt of advance with confirmed order as per pro-forma invoice that there should be 100% payment in advance. The vehicle reached Delhi on 22.08.2014, the complainant inspected the vehicle, however, he did not make the payment since he was in difficulty in raising the finance. There was delayed payment by the complainant. The complainant himself took the bus to the fitness and registration centre.
The total cost of the vehicle was Rs. 16,35,000/-, out of which he paid Rs. 50,000/- towards booking on 14.07.2014. The complainant paid Rs. 14,85,000/- after financed from M/s Shriram Finance. Since, the vehicle was delivered by M/s JCBL on 22.08.2014, there was pre-delivery inspection by the complainant and after satisfaction the complainant took the possession, even without making full payment. The OP retained the original documents as complainant did not make the payment of Rs.5,000/-. Since, the complainant was given sufficient time but on complainant’s failure to comply the promise, the OP had filed complaint before P.S. Badarpur for non-payment of dues, then matter was settled in the police station and complainant gave post-dated cheque and also promised to pay balance of Rs. 5,000/- in few days but it was not paid and it is still outstanding.
3.3. The vehicle was delivered to complainant on 16.09.2014 and he drove to fitness and registration centre, there was no such concession or discount given as alleged by the complainant. The complainant never made any complaint to the OP about any defect or paint but the inspection report gathered by the complainant is false and fabricated, otherwise, that person was not holding valid certificate to give such type of report. In the estimate of 13.01.2015 of M/s Metal-tech Motors Pvt. Ltd., the nature of job mentioned is of “accident”. Since, there was no complaint after taking delivery on 16.09.2015 by the complainant and the estimate is of 13.01.2015, it is approximately after four months, which shows that the vehicle would have met with an accident and he got the repairs outside the shop. The OP1 never gave the repainted vehicle.
The surveyor who gave his report dated 31.01.2015 for inspection of 25.01.2015 to the effect that vehicle was second hand vehicle or dealer delivered the same after repaint are wrong, since no such complaint was ever since made by the complainant. The complaint is without cause of action since it was inspected prior to delivery to the complainant.
3.4. M/s JCBL is the authorized body vendor of Swaraj Mazda Ltd., who manufactured the vehicle of the complainant. The complaint being without merit is liable to be dismissed. The complainant is not entitled for any of the reliefs claimed.
4.1 (Case of OP2 and OP3) – The OP2 & OP3 filed their joint reply, it also reproduces the definition of ‘consumer’ that the complainant does not come within the definition of ‘consumer’ described under the Consumer Protection Act 1986, as the vehicle was purchased to carry student and staff to the school, which is a commercial activity. The OP2 and OP3 have been impleaded in their personal capacity; the complaint is not liable against them in such capacity.
4.2. The OP2 & OP3 had just delivered the chassis to the dealer and the body work etc was undertaken by the complainant independently of his own from the dealer, for which OP2 & OP3 are not liable. Otherwise, OP1 had delivered the complete vehicle to the complainant in a perfect condition. Since, there is no default or short-coming on the part of OP2 & OP3, therefore, as per settled law by Hon’ble National Commission in various judgments, the OP2 & OP3 cannot be held liable as without establishing short-coming, deficiency, imperfection, inadequacy in the quality being per-condition. The complaint does not satisfy such requirements. The report of Metaltech Motors Pvt. Ltd. does not mention that paint of the vehicle was of sub-standard nature and as appearing the vehicle was brought for repairs/referred to surveyor for assessing the loss which is a normal procedure. However, nothing is attributable to the OP2 & OP3.
4.3. The complainant never met OP2 & OP3 before buying the vehicle, therefore, there is no question inducing the complainant to buy the vehicle. Otherwise, the buses and other vehicle being manufactured by OP2 & OP3 are of high quality standard, they are passed by Automobile Research Association of India, Pune which is a government Institution; they have good reputation among the government and private fleet owners. The present complaint is an attempt to tarnish their image. Hence, there is nothing attributable against the OPs and they are not liable for any amount.
5. (Replication of complainant to reply of OPs) –The complainant filed rejoinder to the reply of OP1 and separate rejoinders to the reply of other OP2& OP3 and he denies all the allegations of the written statement, he reaffirms all facts, features, dates and figures of amount mentioned in the complaint besides the estimate and report of the surveyor. The complainant also denies of any dues or balance amount payable to the OP1, since the entire payment was made to the OP1.
6.1. (Evidence)- The complainant Sh. Amar Singh, led his evidence by filing detailed affidavit of evidence, which is on the pattern of the complaint coupled with documents. The complainant also got examined CW2/Mohd. Sagir Khan, Surveyor to prove his surveyor report dated 31.01.2015 that he had inspected the said vehicle [also having registration no. DL-1PD-0754 belonging to the complainant].
6.2. The OP1 led his evidence, which is reiteration of his reply to the complaint and he reaffirms the facts and features of reply in the affidavit of evidence.
6.3 The OP2 & OP3 led evidence by filing affidavit of their AR Sh. Dheeraj Puri; the affidavit is on the lines of reply, documents have also been filed all of a sudden with the evidence, which were not filed with the reply; the documents filed are power of attorney and invoice-cum-challan/tax invoice dated 30.07.2014.
7. (Final hearing)-The complainant and the OP2 & OP3 filed their respective written arguments but there is no written argument on behalf of OP1. The parties were also given opportunity to make oral submissions, Sh. Kumar Sherawat, Advocate for complainant and Ms. Aditi Bhatia, Advocate for OP1 presented the oral submissions.
The parties took the opportunity to file the case law and complainant relies upon Rajeev Shukla Vs. Gold Rush Sales and Services Ltd. & Anr. 2022 (SC) 750 dod 08.09.2022 that there was delivery of defecting and old model car against booking of a new car, the customer was paid full consideration amount, it was held to be an unfair trade practice. The complainant further relies upon Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another (without citation) wherein it was held that sale of motor vehicle by a manufacturer to a dealer, there is an implied warranty that vehicle is reasonably fit, or adapted to, the use; the complainant was allowed replaced of parts without any charges and other consolidated amount.
8.1 (Findings)-The case of both parties and their rival plea are considered, keeping in view the material available in the form of oral evidence, documentary record, opinion and provisions of law besides precedent/case law. There are some admitted facts like the complainant had booked the vehicle with OP1 to be delivered with chassis and complete body, the vehicle was booked on 12.07.2014 on deposit of Rs. 50,000/- as booking amount. The OP1 delivered the vehicle on 12.09.2014.
However, the other facts are disputed by the parties, therefore, the same are being taken one by one.
8.2. The plea of OP1, OP2 and OP3 is that the complainant is not a consumer, since the vehicle was purchased for commercial activities for boarding and un-boarding the students and school staff. When there are commercial activities and the vehicle was purchased for such commercial activities, the complainant cannot be treated as consumer to invoke consumer law. Whereas, the complainant has reservation that the vehicle was purchased to be deployed for boarding students and school staff members to earn his livelihood and for that purposes the vehicle was to be used, thus the complainant is a consumer as per the definition provided under the Consumer Protection Act 1986.
8.2A. As per material on record, the complainant had bought the vehicle to use it for providing services to the student and staff of school to pick them and drop them at appropriate places. It is appearing that the vehicle was purchased for commercial use. The definition of 'consumer' sub-clause (d) of section 2 of the Consumer Protection Act 1986, exclude from its purview, who buys the goods for resale purposes or for commercial purposes. However, there is an explanation appended to sub-clause (d) of section 2 of the Consumer Protection Act 1986 that when the goods purchased is used by the person exclusively for earning his livelihood by means of self-employment, then it will not be considered for commercial purposes. This explanation is in fact an exception from excluding the situation from the definition of 'consumer'. Moreover, the complainant is not dealing in sale and purchase of vehicle to make gains from sale-purchase transactions, therefore, by applying the principles of law laid down in National Insurance Co. Ltd. Vs. Harsolia Motors and Ors. (civil appeal no. 5352-5353/2007dod 13.04.2023 (SC), it is held that the complainant is covered by the definition of 'consumer' and the complaint is maintainable.
8.3. There is another plea by the OP1 that balance amount of Rs. 5000/- is still due against complainant, which is opposed by the complainant. It needs to assess the documentary record.
8.3A. The OP2 & OP3 have proved invoice cum challan that the chassis of the vehicle was sold to OP1 under stock transfer against Form-F. The complainant has also proved invoice dated 12.09.2014 that OP1 has sold the vehicle with complete body to the complainant for Rs. 16,35,000/-, however, the complainant explains that there was also discount, which was denied by the OP1. In addition, the complainant has also proved receipt of advance of Rs. 50,000/- issued by OP1. The OP1 contends that there was balance amount of Rs. 5,000/- and that is why original documents were kept by it and police report was lodged, however, there is no proof of police report or of balance amount of Rs. 5,000/- it still outstanding or lodge account, if any, maintained. Accordingly, this contention is determined against OP1.
8.4. There is a serious dispute raised by the parties 'whether or not the vehicle is second hand'. The complainant relies upon the report of CW2 Sh. Mohd. Sagir Khan, surveyor that the vehicle is second hand vehicle vis-à-vis the OP1 contends that complainant’s own record of estimate suggest that the vehicle had met with an accident. The OP1 had delivered complete vehicle to the complainant. The OP2 & OP3 also contend that complete new chassis was delivered to the OP1 and the OP1 had also delivered the complete vehicle to the complainant.
8.4A. It needs to revisit the evidence. As per invoice proved, the role of SML Suzuki Ltd. [of OP2 & OP2], is to supply the chassis and that chassis was supplied to OP1. As per surveyor’s report or otherwise there is no such evidence that the chassis supplied was a second hand. The surveyor also reported the registration number of the vehicle, there is no report or any fact that RTA objected that chassis number was already registered for another registration number. Consequently, no allegations are established against the OPs with regard to the chassis was second hand. There is also no material that chassis is defective or had any short-coming. To that extend, the contentions stand disposed off.
8.4B. However, the complainant has grievances that the vehicle’s body was dent- repainted. The complainant had written letter dated 14.11.2015 to M/s SML ISUZU that there is cheating to the complainant as its dealer OP1 had delivered the vehicle dent-painted, which was discovered by him after delivery, whereas complete new vehicle was booked. The inspection was carried by surveyor Mohd. Sagir Khan and he also given detailed report that the paint was not original and it was seems to be repainted, alike accident, which could have been during transit to showroom from the warehouse. But the OPs are drawing inference the vehicle would have been met with an accident, since there was estimate dated 13.01.2015 issued by Metaltech Motors Pvt. Ltd., Rajokari of SML ISUZU, in which job type 'accident' was mentioned. However, the OPs have not proved any fact that the complainant’s vehicle met with an accident from the complainant but prior to delivery of the vehicle, the vehicle was with the OPs. There is no opinion either by surveyor Mohd. Sagir Khan or by Metaltech Motors Pvt. Ltd. that the vehicle seen by them was having fresh body damages to be repaired, but specific opinion of surveyor that vehicle is repainted, paint was not genuine, which needs complete body touching, welding and painting. The complainant also proved photographs of vehicle. Simultaneously, there is no evidence by the OPs that the vehicle actually met with an accident or it was got repaired by the complainant from other workshop prior to the vehicle was surveyed by surveyor or inspected by Metaltech Motors Pvt. Ltd., to come to the conclusion that the vehicle met with an accident. The plea of OPs do not sustain.
8.5 In view of the above, it is held that complainant has proved that the vehicle delivered to him with complete body was having flaw requiring, painting, touching, welding and other spares etc. vis a a vis OPs also proved that it was not a second hand chassis sold to the complainant. The complainant has proved estimates of spares and paintaining of Rs. 55,394/- issued by Metaltech Motors Pvt. Ltd. authorised workshop of SML ISUZU.
To say, as per circumstances proved, there is no deficiency of services against M/s SML ISUZU Ltd. or its Manager or General Manager (namely OP2 & OP3), thus complaint is dismissed against OP2 & OP3, who were otherwise impleaded in their personal capacity.
Further, the other material and circumstances established proves the case of deficiency of services as well as unfair trade practices against OP1, since after delivery of the vehicle, the complainant immediately reported the matter to SML ISUZU Ltd. by letter dated 14.11.2014 that its dealer has delivered the vehicle in dent painted condition on the body of vehicle. The Metaltech Motors Pvt. Ltd. of SML ISUZU have estimate of Rs. 55,394/- for carrying those repairs in respect of denting painting and other parts to make it genuine painting. The complainant cannot be left to suffer for no fault of him but OP1 is liable to pay this amount of Rs. 55,394/-.
8.6. The complainant seeks amount of Rs.1,08,000/- in lieu of delayed delivery of the vehicle as complainant was constrained to hire other charter bus by paying this amount to provide the same to the students and staff of school in order to avoid/loose of his livelihood. However, the claim of Rs. 1,08,000/- is declined as there was no specific agreement between the complainant and the OP1 for stipulating it being essence of contract.
8.7. The complainant further claims damages of Rs. 1,50,000/- in lieu of removal of old damages of paint and other defect in the vehicle, however, in view of the findings in paragraph 8.5 above, this request of damages is declined.
8.8. The complainant also claims compensation of Rs. 2,00,000/- in lieu of mental agony, harassment, etc. , which was opposed by the OP1. It is already held that the complainant has proved that vehicle was purchased for earning his livelihood, however, he was provided repainted vehicle under the garb of brand new vehicle, vis a vis the complainant immediately reported it to the SML ISUZU Ltd. against its dealer/OP1 besides he got surveyed the vehicle from the surveyor by spending amount of Rs. 5,680/- (as per bills proved) and also got examined the vehicle from Metaltech Motors Pvt. Ltd. This clearly shows that he suffered all kind of trauma emerged from the delivery of that vehicle in imperfect condition despite the complainant had paid entire huge amount. Therefore, considering the gravity of situation, compensation of Rs. 35,000/- is determined, besides expenses of Rs. 5680/- of surveyor’s fee, in favour of complainant and against the OP1.
8.8 The complainant also claims litigation charges of Rs. 30,000/-. It is manifest from the circumstances that complainant was constrained to issue legal notice and then complaint was filed besides pursuing the matter to the OPs for his grievances and claims, therefore, costs of Rs. 20,000/- is allowed in favour of complainant and against OP1.
9.1. In view of the above, the complaint is allowed in favour of complainant and against the OP1, while directing the OP1 to pay to complainant an amount of Rs. 55,394/- besides compensation of Rs. 35,000/-, surveyor's fee of Rs. 5,680/- and costs of Rs. 20,000/-.
The amount will be payable within 30 days. In case the amount is not paid by the OP1 within 30 days from the date of receipt of copy of this order, then OP1 will be liable to pay interest at the rate of 6% pa on amount of Rs. 55,394/- from the date of complaint till realization of amount.
9.2. The complaint against OP2 and OP3 is dismissed.
10. Announced on this 12th day of December 2023 [अग्रहायण 21, साका 1945].
11. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission forthwith.
[Inder Jeet Singh]
President
[Shahina]
Member (Female)
