Punjab

Ludhiana

CC/15/629

Sudhir Kumar - Complainant(s)

Versus

Omni wheels pvt.Ltd - Opp.Party(s)

Vijay Kumar Adv.

28 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 629 of 19.10.2015

Date of Decision            :   28.11.2016 

 

Sudhir Kumar Aggarwal s/o Sh.Vishwanath Aggarwal, Resident of B-1-1677/15-D, Upkar Nagar, Civil Lines, Ludhiana.

….. Complainant

                                                         Versus

 

1.Omni Wheels Private Limited, Plot No.73, New Kuldeep Nagar, Basti Jodhewal, Ludhiana through its Director/Authorized Signatory Sh.Gautam.

2.Chevrolet Sales India Pvt. Limited Block B, Chandrapura Industrial Estate, Halol-389351, District Panchmahal, Gujrat, India through its Managing Director.

 

…Opposite parties

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

MRS.          VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh.Vijay Bhatia, Advocate

For Op1                         :         Sh.Harpreet Singh, Advocate

For OP2                         :         Sh.Pardeep Kapoor, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant was having a car of model Spark bearing registration No.PB-10-CU-2256 and he exchanged this car with new model Beat from OP1 on 10.3.2014. Op1 was to give exchange plus loyalty bonus of Rs.35,000/- and that offer was accepted by the complainant. Ops signified through letter pad mentioning that Ops agreed to pay Rs.1,25,000/- for the old vehicle plus Rs.35,000/- as exchange plus loyalty bonus. In fact, Rs.25,000/- was offered as exchange, but Rs.10,000/- as loyalty bonus. This was to be paid to the complainant by OP2 through OP1. OP1 took the delivery of the old car on 10.3.2014 vide voucher No.106 of that date and thereafter, issued a delivery note after satisfying the condition of old car. However, for    purchase of new Beat car, Ops issued bill No.1707 dated 31.3.2014 for Rs.5,12,641/- in the name of complainant. Besides, amount of Rs.28,028/- for registration charges and Rs.12,867/- for insurance charges was to be paid. Complainant after getting delivery of new Beat Car model bearing registration No.PB-10-ET-6775 had been using the same. Op1 assured the complainant that exchange and loyalty bonus of Rs.35,000/- would be paid to him within 100 days through cheque, qua which intimation will be sent to complainant on phone. It was disclosed to the complainant that on receipt of phone call by the complainant, he can collect the cheque from the office of OP1 at Ludhiana. After period of 100 days, complainant visited the office of OP1 at Ludhiana besides giving telephone calls on the toll free number of OP2, but Ops procrastinating the matter. Thereafter, complainant submitted complaint No.31350628 on 11.2.2015 at 1.45 P.M. on toll free number from his mobile and even sent four reminders to Ops through mobile calls. These reminders were given on 17.2.2015, 20.2.2015, 19.3.2015 and 11.5.2015 at 1:57 P.M, 2:00 PM, 3:45 PM and 5:25 PM. Despite this, amount of Rs.35,000/- not refunded to the complainant and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to refund  this amount of Rs.35,000/- with interest @10% from 10.3.2014 till realization thereof. Compensation for mental harassment and agony of Rs.40,000/- even claimed along with litigation expenses of Rs.11,000/-.

2.                In written statement filed by Op1, it is claimed that grievance of the complainant is that exchange bonus by OP1 has not been given. That grievance does not fall within the scope of Consumer Protection Act and as such, prayer made for dismissal of complaint. Admittedly, complainant exchanged old car model Spark with new car model Beat from OP1 and exchange bonus of Rs.35,000/- including loyalty was to be given to the complainant for the exchange of the old car. Fact regarding delivery of old car and issue of bill of new car not denied, but other facts pleaded in the complaint denied.

3.                In separate written reply filed by OP2, it is claimed that OP2 has been unnecessarily dragged in litigation, despite the fact that there is no privity of contract between the complainant and OP2. Rather, OP2 has privity of contract with Chevrolet Sales India Pvt. Ltd. It is claimed that grievance of the complainant is against OP1 qua non providing of exchange bonus of Rs.35,000/-. All kinds of offers including that of loyalty bonus/exchange bonus/rebates/discount used to be given by OP1 at its own out of its share. OP2 never gave any kind of offer of discount or exchange bonus etc., so complaint against OP2, the manufacturer/whole seller is not maintainable because the complainant has no cause of action against it. After manufacturing of cars, OP2 used to sell the same in a lot of 25-30 cars to OP1 after receiving the sale consideration. Thereafter, it was the duty of OP1 to sell those cars to customers. The offer given by OP1 cannot be taken as offer given by OP2. Dealings between OP1 and OP2 were on Principal to Principal basis as per agreement between them. Legally OP2 cannot be held responsible for the act and conduct of OP1. If any promise was not fulfilled by OP1, then dragging of OP2 in uncalled litigation is unwarranted. Other averment of the complaint denied.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 and Ex.C2 and thereafter, counsel for complainant closed the evidence.

5.                On the other hand, counsel for the OP1 tendered in evidence affidavit Ex.RA1 of Sh.Rajiv Kumar, Manager of OP1 and thereafter, closed the evidence.

6.                Counsel for OP2 tendered in evidence affidavit Ex.RA2 of Sh.Vivek Singh, Engineer along with documents Ex.OP2/1 and Ex.OP2/2 and thereafter, closed the evidence.

7.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely.

8.                OP1 has not denied about the sale of Beat car in exchange of Spark model car to the complainant. Invoice Ex.C2 produced by the complainant establishes that Beat IS(D) car purchased for consideration of Rs.5,12,641/-. However, vehicle delivery receipt Ex.C2 shows that Beat car was to be delivered in exchange of the old Spark car, whose price was fixed at Rs.1,25,000/-. In addition thereto, Rs.35,000/- was to be adjusted on account of bonus. Details of Rs.35,000/- given as      Rs.25,000/- plus Rs.10000/- as loyalty bonus in Ex.C2 and as such, submission advanced by counsel for the complainant has force that Rs.35,000/- was offered as exchange/loyalty bonus to the complainant. That fact has been even admitted by OP1 in its written statement and as such, evidence available on record establishes that complainant in addition to the price of Rs.1,25,000/- of old car was to receive Rs.35,000/- as loyalty bonus. Content of Ex.C1 establishes that this offer was given by the authorized signatory of OP1 and as such, certainly offer was not given by OP2 at all. Submission of counsel for OP2 in this respect has force.

9.                Retailer Sales and Service Agreement Ex.OP2/1 has been produced on record by OP2 for establishing that as per clause 7.2.1 of CSIPL Retailer Agreement, the retailer is authorized to sell new and unused motor vehicles only to the customers purchasing the same for personal use or for primary business use etc. If sale to be carried out by the retailer to its customers, then certainly OP2 did not come in the picture in the transaction between the complainant and OP1 referred above. So, certainly, OP2 cannot be held responsible for non fulfillment of the promise made by the OP1 to the complainant qua offer of Rs.35,000/- as loyalty/exchange bonus because offer of such bonus was submitted by OP1 to the complainant and the same was accepted by the complainant resulting in such contract between the complainant and OP1 only. So, certainly there was no privity of contract between the complainant and OP2 in respect of providing of exchange/loyalty bonus. Being so, complaint against OP2 is not maintainable.

10.              Counsel for OP1 placed reliance on ratio of case titled as Harish Kumar vs. Reliance Communications Pvt. Ltd. and others-2014(2)CPR-695(N.C.) for arguing that in case, free gifts refused to be given, then the complainant concerned will not be a consumer within the meaning of Consumer Protection Act. However, after going through ratio of case, it is made out that denial of free gifts under marketing scheme to the retailers in transaction of business of sale of new mobile connections has been held to be not falling in the domain of the Consumer Protection Act. However, in the case before us, exchange of old car with new one for self use and not for resale as a retailer took place.

11.              Section 2(1)d) of the Consumer Protection Act, 1996 provides that consumer means any person who buys any goods for consideration, which has been paid or promised or partly paid etc, but does not include the person, who obtains such goods for resale or for any commercial purpose. Retailer buys goods for resale and as such, retailer does not fall under the definition of Consumer laid down in Section 2(1)(d) of the Act. However, the complainant has not purchased the car for resale, but for self use and as such, complainant certainly is a consumer. Being so, benefit from the ratio of above said case is not available to OP1. Moreover, present is not a case of offering free gifts of exchange/loyalty bonus. Rather, it is a case, in which, allurement to the complainant for purchase of a new car in exchange of old one was given with certain benefits like that of exchange and loyalty bonus. So, offer of exchange and loyalty bonus was given for alluring the complainant to purchase a new car. In view of that allurement alone, complainant agreed to purchase a new car in lieu of exchanged one. So, a valid contract was arrived at between the complainant and OP1, as per which, complainant parted with old car and even with money, but Op1 agreed to give concession of loyalty and exchange bonus. That concession was a part of the contract arrived at between the parties and as such, OP1 cannot  wriggle  out  from that contract now by claiming that a part of the contract should be enforced and part unfavorable to him should be discarded. It is not a case of offering free gifts of loyalty and exchange bonus and as such, facts of above cited case are quite distinct than that of the facts of the case in hand. As despite offering of 10.3.2014 contained in Ex.C1, loyalty bonus of Rs.35,000/- has not been given, albeit complainant purchased new car and as such, complainant entitled to refund of the amount of Rs.35,000/- with interest @8% per annum from 11.3.2014 till payment. Complainant stood mentally harassed owing to non receipt of promised exchange/loyalty concession and as such, he is entitled for compensation for mental harassment along with litigation expenses also.

12.              As a sequel of the above discussion, complaint allowed in terms that Op1 will refund Rs.35,000/- with interest @8% per annum from 11.3.2014 till payment. Compensation for mental harassment of Rs.5000/-(Rupees Five thousand only) and litigation expenses of Rs.5000/-(Rupees Five Thousand only) more allowed in favour of the complainant and against Op1 only. Complaint against OP2 is dismissed. Compliance of the above said order be made by OP1 within 30 days from the date of receipt of copy of this order. Copies of order be supplied to the parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

                   (Vinod Bala)                                (G.K. Dhir)

          Member                                          President

Announced in Open Forum

Dated:28.11.2016

Gurpreet Sharma.