Complainant Parkash Chand has filed the present complaint against the opposite parties U/S 35 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to replace the car in question with new one and also directed to pay Rs.5 lacs as mental pain agony and harassment and Rs.20,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he had purchased a new car i.e. Hyundai Venue, Turbo GDI MT SX (CR) White (PGU) from the opposite party no.1 in total sum of Rs.9,34,000/- on 11.10.2019. The chassis no. of the said car is MALFCA81ALKM043725 and Engine No.G3LCKM858742 and the RC No.HP 24-C-5384. He has next pleaded that after a week from purchasing the said car from opposite party no.1 he has noticed that said car is painted from the non driver both sides and there after he has visited in the office of opposite party no.1 and he has put grievance to opposite party no.1 and he has also lodged a complaint/e-mail to the customer care to opposite parties, but of no relief. The opposite parties also did not mention the batch no. of tyres in service book, and three tyres of the vehicle are of MRF brand while the remaining two are of different brand with different width size, thus the company fitted tyres have also been changed by the dealer. Opposite parties have told him to replace the said damaged doors, but same is not acceptable to him as he has paid the heavy amount out of his hard earned money, for a new car and not for a damaged/polished car. Thereafter he has visited to Patiala and he visited to the local Hyundai Service Station, Patiala for the first service of his abovesaid car and after the required inquires and checkup, it has been revealed by the staff of Hyundai Patiala, that the first service of the said car has already got done and second service of abovesaid car is due. After thorough inquiry it has been transpired that the abovesaid car (same engine no. and chassis no and also the key no.) has already been sold to some other person of Kolkata/West Bengal from the dealer namely Austin Distributor Private Limited Kolkata and his said car has been also previously insured by the Bajaj Alliance General Insurance Company and proper record of said car has been shown/saved in the computer system office of Hyundai Patiala and he has also got the copy of the same. The officials of the Hyundai Patiala, after checking their record has told to him that the abovesaid car is second hand car/pre owned car and so after hearing this he got so much shocked and got perplexed. The opposite parties have sold a second hand damaged car to him by showing the same as brand new car and hence opposite parties have committed unfair trade practice with him which causes loss or injury to him. Opposite parties have committed a calculated and planned unfair trade practice with him. He has further pleaded that he has approached to opposite party no.1 a lot of time and requested him to either to replace the abovesaid car with a brand new car or to refund the whole amount to him, but opposite party no.1 has not paid any attention and heed to him and further he has been threatened. He also served a legal notice dated 10.11.2020 but the opposite party did not give any reply to the notice. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite parties no.1,2,3 and 7 appeared through their counsel and filed their joint written reply taking the preliminary objections that there are disputed and complicated questions of facts and law involved and requires detailed examination and cross examination of witnesses so as per the allegations contained in the complaint, the same cannot be adjudicated by the Hon'ble Commission and requires adjudication from the Civil Court, the complaint as such, is not maintainable before the Consumer Commission, the same deserves dismissed. As per the centralized record maintained by the opposite parties in due course of his business activities, till date the complainant failed to get his vehicle serviced from the Hyundai authorized dealer at any point of time as such he himself is guilty of violating the warranty terms and condition meaning thereby the complainant got their vehicle serviced from aftermarket from non-authorized dealer. It is next submitted that it is settled principal of law that complaint has to prove by cogent, credible and adequate evidence supported by the opinion of an expert that the vehicle suffered from any defect and no such evidence in support has been placed on record by the complainant. On merits, it was submitted that on 05.10.2019, the complainant approached the opposite party and showed his interest in buying a new car namely Hyundai Venue 1.0 Turbo GDI, MT SX. The complainant after getting thorough explanations regarding the price and features of the car, showed their interest in buying the abovesaid and gave Rs.5000/- as an initial amount on the same date with the assurance that he will pay the entire amount on 11.10.2019 i.e. at the time of taking the delivery of the car. It was correct that the complainant had purchased the abovesaid car of an amount of Rs.9,34,000/- with the Engine No.G3LCKM858742 and Chassis No.MALAFC81ALKM043725 but the chassis number provided by the complainant in his complaint is incorrect. The complainant after inspecting the car thoroughly asked the opposite party that he will get his vehicle registered from Regional Transport Himachal Pradesh and will submit his file with the RTO by himself. As such, as a legal requirement, the opposite party had issued temporary Registration number HP24 C 5384. It was denied that after a week from purchasing the said car from opposite party no.1, the complainant had noticed that the said car is painted from the non-driver both sides and thereafter complainant has visited in the office of the opposite party no.1 and he has put grievance to the opposite party no.1 and he has also lodged a complaint/email to the customer care to the opposite parties but of no relief. It was submitted that a brand new car was handed over to the complainant on 11.10.2019 and afte4r that the complainant never comes up to the Hyundai Authorized service centre neither for its service or for any of its complaint meaning thereby the complainant use to get his vehicle serviced from after market. Secondly whosoever came up with his vehicle for any service/complaint/repairs, same will not be entertained without opening of any digital job card in the computer system of the service centre but here in this case neither any job card digitally or otherwise was placed alongwith the complaint which proved that the entire story was concocted and after thought just to get some undue advantage from the opposite parties. Regarding the non-mentioning of batch No. of tyres, it was submitted that it was not the general practice to fill all the particulars contained in the service book, only the name, engine number, chassis number and vehicle number will be filled up. It was also vehemently denied that the three tyres of the vehicle are of MRF brand while the remaining two are of different brand with different width, six, thus the company fitted tyres have also been changed by the dealer. Moreover if any vehicle fitted with the tyres of different size and width, then it was impossible to drive the car and to hold the steering wheel. It was specifically denied that the opposite parties have told the complainant to replace the said damaged doors of the complainant, but the same is not acceptable to the complainant as he had paid heavy amount out of his hard earned money, for a new car and not for the damaged/polished car. As the complainant never came up to the opposite parties for servicing/repairs/complaints after the purchase of his vehicle so the question of replacing anything from the brand new car does not arise. It was denied that the complainant visited to Patiala and he visited to the local Hyundai Service Station, Patiala for the first service of his abovesaid car and after the required inquiries and checkup of has been revealed by the staff of the Hyundai Patiala that the first service of the said car of complainant has already got done and second service of abovesaid car of the complainant is due. Here the local Hyundai Service Station Patiala is the necessary part but intentionally he was not made party to the case just to obtain undue benefits and wrongful loss to the opposite parties. The complaint also lacks any document from local Hyundai Service Station Patiala regarding the afterthought facts as alleged by the complainant in his complaint. It was vehemently denied that after thorough enquiry it was transpired that the abovesaid car has already been sold to some other person of Kolkata/West Bengal from the dealer namely Austin Distributor Private Limited Kolkata and the said car of complainant has been also previously insured by the Bajaj Allianz General Insurance Company and proper record of the abovesaid car has been shown/saved in the computer system office of Hyundai Patiala. Here the alleged Austin Distributor Private Limited Kolkata is also the necessary party and the present complaint cannot be disposed off without impleading the alleged party as necessary party in this complaint. It was next denied that the opposite parties have sold a second hand damaged car to the complainant by showing the same as brand new cr. The opposite party no.1 have received the car from the Novelty Hyundai vide separate stock transfer invoice dated 10.09.2019 and the same was sold to the complainant on11.10.2019. It was totally wrong and denied that as the brand new car was sold to the complainant so there arises no question for replacing the car with the new one or for refund of the whole amount inspite of the fact that the complainant never turned up into the Hyundai authorized Service Centre for its services/repairs/complaints at any point of time and is using the car regularly for the last 1.5 years. Opposite parties lastly prayed that the relief claimed is totally denied being wrong and incorrect as the complainant is not entitled to any relief against opposite parties and under present circumstances no relief against the opposite parties is maintainable. As the brand new car was sold to the complainant so the complainant is not entitled for the replacement of the car in question with the new one as such the complainant is not entitled for Rs.5 lacs as mental pain agony and harassment and Rs.20,000/- as litigation expenses. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Notice issued to opposite party no.6 had not been received back. Period of 30 days had already been elapsed. Presumption could be drawn that opposite party no.6 had been served but it was intentionally evading the service of the notice. Case called several times, but none had appeared on behalf of opposite party no.6. Hence, opposite party no.6 was ordered to be proceeded against exparte vide order 11.5.2022.
5. Opposite party no.4 & 5 given up by the counsel for the complainant.
6. Alongwith the complaint, complainant has filed his own affidavit alongwith other documents Ex.C-2 to Ex.C-19.
7. Alongwith the written statement opposite parties has filed affidavit of Sh.Rajesh Kakaria, Ex.OP-1,2,3 and 7/A alongwith other documents Ex.OP-1,2,3 and 7/1 to Ex.OP-1,2,3 and 7/9.
8. Written arguments not filed by both the parties..
9. We have carefully gone through the pleadings of counsel for both the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the parties for the purposes of adjudication of the present complaint.
10. As detailed above, present complaint is filed by the complainant regarding selling of second hand/pre-owner car to him in place of purchase of new car Hyundai Venue, Turbo GDI MT SX (CR) White (PGU). The complainant made following allegations in the complaint and also put on record various documents in proof of the allegation with comments on the documents.
a) The said car has been purchased on 11.10.2019 by paying Rs.9,54,000/-. It is pointed out on invoice at Ex.C-4 that "actual chassis no. reflects (H) but deliberately forged to (J)" and "keys no has been mentioned deliberately"
b) Non driver both sides has been found to be repainted which is detected after one week of purchase Ex.C-8.
c) On the sale letter at Ex.C-6 it is pointed that "make month of the vehicle is tempered with a difference of one month"
d) "the given brand and batch no. of tyre is different from others" has been mentioned on Ex.C-7.
e) It is pointed out at Ex.C-11 that "Keys no of the vehicle not mentioned in invoice".
f) It is also pointed in the complaint that he has visited local Hyundai Service Station at Patiala for first service, where they said that its first service has already been done as per online record and it is transpired that same car with same engine no., chassis and key no. has already been sold to some other person of Kolkata/West Bengal from dealer named Austin Distributers Pvt. Ltd. Kolkata. It has also been previously insured by Bajaj Alliance General Insurance Co. An evidence is placed at Ex.C-12 & Ex.C-15 which is not properly legible nor authenticated by any agency.
g) "make month of vehicle is different from as given in sale letter and and Chassis/VIN." has been mentioned on Ex.C-14 (copy of Certificate of Registration)
h) As per copy placed at Ex.C-16 & C-17 a complaint has also been lodged by the complainant with SHO, Mamoon Cantt. And DGP, Punjab, Chandigarh dt.20.2.2021.
11. Opposite parties in their written reply denied all the allegations and stated that:-
a) R.C. has got been prepared by the complainant himself after four months of purchase.
b) Complainant has not turned up in any Hyundai authorized Service Centre for its services/repairs/complaints at any point of time and using their car regularly for the last 1.5 years.
c) Local Hyundai Service Station, Patiala and Austin Distributor Pvt.Ltd. Kolkatta has not been made necessary party to this case.
d) There are disputed and complicated question of facts and law involved and require detailed examination and cross examination of witnesses as per allegation contained in the complainant, the same cannot be adjudicated in this Commission and require adjudication from Civil Court.
12. From the facts and circumstances of this case, it has been brought out that complainant has not put on record any evidence showing the visit to any of the authorized service centre of opposite party. Complainant fails to put on record the expert reports regarding repainting of sides of car. It is also mentioned by complainant that he has gone for first service of car to Local Hyundai Services Station Patiala is Oct./2020, but he has not explained or put on record the evidence for first service after a gap of almost one year, moreover exact of name of service station of Patiala has also not been mentioned. The document placed in proof of the previous sale of the said vehicle is computer generated and has not been authenticated by any of the agency.
13. Police complaint has been lodged by the complainant in 2/2021 after a period of more than one year and nothing has been explained regarding outcome of the same.
14. Nothing has been placed on record by the complainant from the related agencies i.e. Local Hyundai Service Centre, Patiala and Austin Distributor Pvt. Ltd. Kolkata.
15. In view of the above, at the outset without going on the merit of the case, we find that the complaint cannot be decided in summary manner and requires to be decided after examination of detailed and elaborated evidence and incidents occurred.
16. Hence without prejudice to the right of the complainant to take resort to the remedy by way of Civil Suit before the appropriate Court of Law, the complaint is hereby disposed off with no order as to costs.
17. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
18. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned.
(Naveen Puri)
President
Announced: (B.S.Matharu)
December 21, 2022 Member
*MK*
