DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.252/2016
Shri Sehdev Malik
S/o Shri Sheetal Malik
R/o C-510, Gali No. 24,
Delhi- 110053 ….Complainant
Versus
Nissan Motors India Pvt. Ltd.
Through its Managing Director,
ASV Ramana Towers, 37 & 38,
Venkatnarayana Road,
T. Nagar- 600017
Chennai
Neo Nissan
Authorized Dealer of Respondent No. 1
A Division of Neo Vehicleaids Pvt. Ltd.
Through its Director Shri Puneet Gupta
Having Corporate Registered Office at
16-A, Uday Plaza, Uday Park,
New Delhi- 110049
….Opposite Party
Date of Institution : 03.08.2016
Date of Order : 09.11.2021
Coram:
Ms. Monika Aggarwal Srivastava, President
Ms. Kiran Kaushal, Member
Sh. Umesh Kr. Tyagi, Member
Order
Member – Kiran Kaushal
Facts as pleaded by the complainant are that the complainant purchased Nissan Terrano XLD-O vehicle manufactured by Nissan Motors India private limited (hereinafter referred to as OP No.1) on 04.04.2015 for a sale consideration of Rs. 12,59,500/-. The said vehicle was purchased from Neo Nissan (OP No.2). The complainant purchased the vehicle in an exchange scheme, therefore, instead of raising invoice of the vehicle, OP No.2 had issued a Debit note in favour of the complainant.
It is averred that on 04.04.2015 vehicle was delivered by the staff of OP No.2 to the complainant at around 7.00pm and staff of OP-2 for the sake of formality tick marked on some papers showing the complainant that they were checking the condition of the vehicle as per the criteria of OP No.1 and OP No.2.
The complainant noticed in the month of September, 2015 that there was some change in colour in the half chassis of the vehicle. A dark pale white (yellowish colour) started appearing on the body of the vehicle. The defect in colour kept increasing day by day, therefore in the month of September 2015 the complainant appraised OP-2 regarding the defect OP No.2 assured the complainant that it was a minor defect which will be cured at the time of the service without charging anything. On the assurance of OPNo.2 complainant sent his vehicle for service and for removing the defects from the vehicle. However, when the complainant’s son took the vehicle to OP No.2 it was returned back and was informed that the defects pointed out by the complainant could only be removed after repainting the vehicle. Complainant was shocked and he told OP-2 that if they will repaint the vehicle the value of the vehicle would become half as per the market trend.
Thereafter, complainant took the vehicle to some other authorized workshop of OP-1 in between January and February 2016. He was informed there that the said vehicle is accidental one, its panels (door) are not new but replaced on account of accident and there he is gap in the front left door. Regarding the defective paint the complainant was told that the paint was yellowish in colour because the vehicle had been repainted after changing the panels. After gaining knowledge of the same the complainant felt cheated by the OP No.2 and OP No.1.
The Complainant again went back to OP No.2 and asked them to cure the defects where he was informed that OP No.2 can only repair the vehicle under insurance. The complainant declined to get the defect repaired under insurance claim and asked OP No.2 to replace the defective vehicle but OP No.2 paid no heed.
Aggrieved by the circumstances above complainant approached this Commission with the prayer for the directions to OP No.1 and OP No.2 to replace the defective vehicle with a new vehicle of the same category/model. Additionally, complainant seeks direction to OPs to award him compensation of Rs. 3,00,000/- for harassment of the complainant, fuel wastage and complex of having defective vehicle. Alternatively, complainant has prayed for direction to OPs to return the cost of Nissan Terrano XLD-O vehicle i.e.,Rs.13,00,000/- approximately alongwith damages or compensation of Rs. 3,00,000/- from both the parties.
OP-1 resisted the Complaint inter alia on the ground that OP-1 is in the business of marketing of and manufacturing the NISSAN brand of vehicles and as such does not offer its services to public. OP-1 transacts only with registered dealers and consequently all its legal duties are with the dealers. Complainant purchased his vehicle from OP-2 as is evident from the debit note issued by OP-2. Thus, OP-1 has not provided any service to the complainant.
It is averred that in the instant case the vehicle which was delivered to OP-2 was from its stock and was not against any booking by the dealers. The said vehicle was dispatched to OP-2 from the warehouse of OP-1 on January 2, 2015. It was during the transit that the lorry which was transporting the said vehicle met with an accident on 5 January, 2015 where in the vehicle in question got damaged. Delivery of the said vehicle was taken by OP-2 in the damaged condition. Thereafter the said vehicle was sold to the Complainant in March-April 2015. OP-1 reiterates that it was not involved in the sale of the said vehicle to the Complainant. Further no consideration was allegedly paid by the Complainant to OP-1.
OP-1 has further stated that the Complaint is bad for misjoinder of parties as there is no agreement and / or contract between OP-1 and the Complainant and neither has any transaction ever happened between the two. It is also stated that OP-1 has principal to principal relationship with OP-2 therefore OP-1 cannot be held liable for any alleged act/omission on part of OP-2. It is therefore submitted that Complaint is not sustainable and should be dismissed with costs.
OP-2 resisted the Complaint inter alia on the ground stating that the ex-showroom price of TERRANO XLD-O (as on 30.03.2015) was Rs.11,45,123/- as per the price list Annexed at Page-6 of the Reply of OP-2. It is submitted that OP-2 had got the vehicle in question repaired and informed the Complainant that the vehicle had met with a minor accident while it was coming from the factory to the showroom. On account of the said accidentOP-2 had given a discount of Rs.85,126/- to the Complainant and raised Invoice of
Rs.10,59,994/- after discount.
It is next submitted that as per the insurance law the schedule of depreciation for fixing IDV of the vehicle whose age is not exceeding six months is five percent. In the present case the vehicle was insured for Rs.10,87,867/- which clearly shows that the insurance was done at the ex-showroom price fixed by the company that is 11,45,123/-. The said fact shows that Complainant was fully aware of the minor accident which took place during the transit of the vehicle.
OP-2 submits that the said vehicle was brought to the service station of OP-2 in the month of September 2015, but no such defect was pointed out by the Complainant and only general repairs were carried out by OP No.2. The vehicle was again brought for first free service in the month of January 2016, then also no such defect was pointed out to OP-2. It is prayed that the complaint is an after thought to defame the OPs, thus it is liable to be dismissed.
Rejoinder and Evidence by way of affidavit is filed by the Complainant. Evidence of a Shri Jabarjeet Singh regional counsel and authorised representative of OP-1 and Evidence of Mr. M. S. Fernandez, Admin Manager of OP-2 is filed. Written arguments are filed on behalf of the parties. Arguments on behalf of the Complainant and OP-1 are heard.
The only issue requiring adjudication before this Commission is whether a defective/accidental vehicle was sold to the complainant as a brand new one.
Complainant has pleaded that he purchased Nissan Terrano XLD-O vehicle on 04.04.2015 for a sale consideration amount of Rs. 12,59,500/-. Since the complainant had purchased this vehicle in the exchange scheme of OP-1 and OP-2, so on this pretext, instead of raising Invoice of the vehicle, OP-2 had issued a Debit Note in favour of the complainant.
However, this averment of complainant is false as OP-2 has placed on record Invoice of the said vehicle on Page-8 of their reply which shows the Sale price of vehicle as Rs.10,59,997. Otherwise also judicial notice can be taken of the fact that Complainant could not have got the vehicle registered without the Invoice. Complainant has thus misstated to the Commission and has concealed relevant fact.
OP-2 has categorically stated that the Complainant was told that the vehicle in question met with a minor accident while it was coming from the factory to the showroom of OP No.2. It was on this account that OP-2 had given a discount of Rs.85,126/- to the Complainant and had raised an invoice of Rs.10,59,994/- of the vehicle whose ex-showroom price on 30.03.2015 was Rs.11,45,123/-.
Complainant in Para-2 of its Rejoinder admits the discount by OP-2 but claims it was given as cash payment discount. Complainant with his complaint has exhibited in CW 1/D that Complainant had paid by cheque/DD to OP-2. The Said exhibit shows that the vehicle was hypothecated and the cheque or DD of Rs.9,97,450/-is issued by ICICI bank to OP No. 2. Therefore, the question of cash payment discount does not arise. In case, by cash payment complainant wants to say that it was down payment of full consideration amount, it is matter of common knowledge that no discount is given by the car dealers for full down payment.
Onus to prove the fact that an accidental vehicle was sold to him as a brand-new one was on the Complainant. However, he has failed to convince this Commission regarding the same by not giving any justifiable reason for getting a hefty discount. It is thus presumed that the complainant was aware that the vehicle in question was a repaired vehicle for which he was being given discount of
Rs. 85,600/-.
Complainant in support of his case has referred to a judgement titled Deepak K Raman V/s New India Insurance Company Ltd. Maruti Udyog Ltd. SAHA & Sanghi Auto Agencies Pvt. Ltd. by H’ble NCDRC. The said judgement is of no assistance to the Complainant as it is distinguishable from the facts of the instant Complaint. The cited judgement refers to complaint failing on thus grounds First the vehicle in question was purchased by the Complainant as commercial entity. Second the Complainant had failed to file any affidavit in support the averments and allegations made in the Complaint. In the present Complaint there is neither any commercial angle to nor has the Complainant failed to file any affidavit in order support the averments rather it is the Complainant who is unable to explain as to why discount of RS. 85,600/- was given to him.
In light of the circumstances and discussion above we hold that complainant has tried to misstate facts & mislead the Commission. He was aware of the vehicle being repaired one and there was no concealment by OP-2 at the time of sale of the vehicle. Thus, there is no deficiency. Hence, we dismiss the complaint with no order as to cost.
Let a copy of this order be sent to the parties as per rules. Thereafter file be consigned to record room.
