DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 141 of 31.05.2007<br /> Decided on : 31-08-2007 <br /> <br /> Vijay Kumar S/o Sh. Kirpa Ram, aged about 40 years R/o H. No. 3484, Calcutta Wali Gali, Amrik Singh Road, Bathinda. ... Complainant<br /> Versus<br /> 1.PIAGGIO Vehicles Private Limited, Registered Office E-2, MIDC Area, Baramati 413133, District Pune, India, through its Managing Director/General Manager/Chairman.<br /> 2.M/s. Shergill Motors, Mansa Road, Bathinda, through its Proprietor/Partner/ Manager.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Ashok Gupta, Advocate.<br /> For the Opposite party : Sh. Sanjay Goyal, Advocate. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Opposite party No. 1 is the manufacturer of three wheeler vehicles 'PIAGGIO'. For the purpose of promoting its business, it has appointed dealers at various places including one at Bathinda i.e. opposite party No. 2. Complainant was to purchase one three wheeler for the purpose of earning his livelihood. He contacted opposite party No. 2 which assured him that three wheeler manufactured by opposite party No. 1 are of good quality and are free from of all defects. Accordingly one three wheeler was booked by him (complainant) with opposite party No. 2 on 23.2.07 by way of depositing Rs. 50,000/-. Remaining amount of Rs. 80,000/- was got financed by him from ICICI Bank Limited payable in 24 installments of Rs. 3987/- each. Ultimately, he purchased one three wheeler bearing engine No. R6G0272374, Chasis No. BHG 392518 from opposite party No. 2 vide invoice dated 8.3.07. At the time of sale of the vehicle, opposite party No. 2 had conveyed that vehicle is of the model of 2007. Even in the sale certificate itself month and year of the manufacture recorded are March, 2007. Reposing confidence in opposite party No. 2, vehicle was purchased for a sum of Rs. 1,24,000/-. It was got registered with District Transport Officer, Bathinda. Registration Certificate was issued. While going through its contents, it transpired that model of the vehicle is 2006 instead of 2007. Inquiries were made from the office of District Transport Officer, Bathinda. It was apprised that in fact the vehicle is of the model of 2006 instead of 2007. Protest was lodged with the office of opposite party No. 2. Instead of giving satisfactory reply, officials started misbehaving. Threats were extended that they have cheated and defrauded him and that he may take action against them. Legal notice dated 1.5.07 was got issued by him upon the opposite parties with the request to replace the vehicle with the vehicle of March, 2007 but to no effect. He alleges that due to the adamant attitude of the opposite parties, he has under gone mental tension, agony and loss of physical health. There is deficiency in service and unfair trade practice on the part of the opposite parties. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by the complainant seeking direction from this forum to the opposite parties to replace this vehicle of the model of 2006 with the vehicle of the model of 2007 or in the alternative to refund its price alongwith interest @18% P.A. from the date of purchase till realisation; pay Rs. 50,000/- as damages on account of mental tension, agony and loss of physical health and Rs. 5500/- as litigation expenses.<br /> 2. Opposite parties filed their version taking legal objections that complaint has been filed on false facts; only remedy available to the complainant is civil suit; complaint requires oral and documentary evidence and as such, it is liable to be dismissed; complainant is not consumer; he has concealed material facts from this forum; complaint is liable to be dismissed for want of jurisdiction as complainant has leveled allegation of cheating and fraud and the same cannot be adjudicated by this Fora and that vehicle purchased is for commercial purposes. On merits they deny that that vehicle was purchased by the complainant for earning livelihood. According to them, complainant was told at the time of sale of the vehicle that it is of 2006 model. Even on the sale certificate, Form No. F and Form No. 22, model of the vehicle is 2006. Complainant was fully aware of its model, but he chose to purchase it as he was told that it was of lesser price. Sale certificate, Form No. F and Form No. 20 were submitted by the complainant in the office of District Transport Officer wherein it has been specifically mentioned that model of the vehicle is 2006. Complainant is not using the vehicle for earning livelihood . Rather he is using it for earning huge profits and he is having more than 15 employees. Remaining averments in the complaint stand denied.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his two affidavits (Ex. C-1 & Ex. C-8), photocopy of application dated 29.5.07 (Ex. C-2), photocopy of Sale Certificate on Form No. 21 (Ex. C-3), photocopy of Form No. F (Ex. C-4), photocopy of Form No. 22 (Ex. C-5), photocopy of receipt (Ex. C-6), photocopy of R.C. Of vehicle (Ex. C-7) and photocopy of Tax Invoice (Ex. C-9).<br /> 4. In rebuttal, on behalf of the opposite parties attested copy of sale certificate -Form No. 21 (Ex. R-1), attested copy of original Form No. 22 (Ex. R-2), attested copy of original Form No. F (Ex. R-3) and affidavit of Sh. R S Sher Gill (Ex. R-4) have been produced in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant. <br /> 6. One of the objections taken by the opposite parties is that complainant is not consumer as the vehicle was purchased by him for commercial purposes and not for the purpose of earning livelihood and that he is earning huge profits and is having more than 15 employees. For this, there is bald affidavit Ex. R-4 of Sh. R S Shergill which stands amply rebutted with the affidavits of the complainant which are Ex. C-1 & Ex. C-8. In Ex. C-1 he has categorically stated that the vehicle has been purchased by him for earning livelihood and his entire family has no other source of income. He has further stated that he has not employed any person to ply the vehicle. Allegation of the opposite parties that he has purchased the vehicle not for earning livelihood and he is using the same for earning huge profit and has employed 15 employees has not gone beyond the stage of allegation. Opposite parties did not dare to disclose the names of the employees allegedly employed by the complainant. Not to speak of this, they have not disclosed any other source of income of the complainant. In these circumstances, conclusion is that complainant has purchased the vehicle for the purpose of earning livelihood by way of self employment. Accordingly, he is consumer.<br /> 7. Another objection taken by the opposite parties is that elaborate oral and documentary evidence is required in the complaint and the remedy available to the complainant is civil suit. In the facts and circumstances of this case, no weight can be attached to this objection. Parties have concluded their evidence. At no stage, opposite parties ever brought to the notice of this forum that any other elaborate and documentary evidence which was to be led by them could not be produced before this forum due to the fact that it was voluminous or lengthy. Moreover matter has been set at rest by their Lordships of Hon'ble Supreme Court in the case of CCI Chamber Co-op Housing Society Limited Vs. Development Credit Bank Limited III(2003) CPJ 9 (SC) that merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved. Similar view has been held by their Lordships of the Hon'ble Apex Court in the case of J J Merchant and Others Vs. Shrinath Chaturvedi and others III (2002) CPJ 8 (SC) Hence, this complaint before this forum is maintainable.<br /> 8. No doubt at one place in the complaint, complainant has stated that he felt cheated and defrauded at the hands of the opposite parties. On this ground, alone jurisdiction of this forum cannot be said to be barred. For this, we are fortified by the observations of the Hon'ble National Commission in the case of Dr. Moti Lal Jain and Others Vs. Marudhar Services Private Limited and Another I(1996) CPJ 242 (NC) in which it was held that it is true that in their complaint, complainants have used word fraud at one place in respect of breach of agreement. However, just because word fraud is mentioned as one of the ground of the complaint, it should not be thrown out of the door without taking into account totality of the circumstances of the case.<br /> 9. Fact that three wheeler cargo manufactured by opposite party No. 1 was purchased by the complainant from opposite party No. 2 is not in dispute. Opposite parties have not specifically denied the booking of this vehicle with opposite party No. 2 by way of depositing Rs. 50,000/- on 23/2/07. Opposite parties do not deny specifically sale of the three wheeler vide invoice dated 8.3.07.<br /> 10. Complainant alleges that opposite party No. 2 had conveyed that model of the vehicle is 2007 and that in the sale certificate as well month and year of manufacture were March, 2007 respectively. In fact the manufacturing year of the vehicle is 2006 instead of 2007. Stance of the opposite parties is that while selling the vehicle complainant was told that vehicle is of 2006 model. Sale Certificate, Form No. F and Form No. 20 were submitted before District Transport Officer wherein it has been specifically mentioned that model of the vehicle is 2006. Complainant himself chose to purchase the vehicle of 2006 model.<br /> 11. In order to substantiate his version, complainant produced and proved his affidavits Ex. C-1 & Ex. C-8 in which he reiterates his version in the complaint. Admittedly three wheeler cargo purchased by the complainant is of 2006 model as is evident from the copies of Form No. F and Form No. 22 which are Ex. C-4 & Ex. C-5 respectively. Opposite parties have also placed the copies on the record as Ex. R-3 & Ex. R-2 respectively. Material question for determination is as to whether complainant was apprised of the model of the the three wheeler as 2006 and that he purchased it considering it to be of the model of 2006. Three wheeler cargo was booked by the complainant on 23.2.07. It was sold vide invoice dated 8.3.07. No doubt in the reply of the complaint, opposite parties have taken the plea that it was of lesser price but no evidence has been led by them to establish it. Price of three wheeler cargo of the model of 2006 & 2007 was well within the knowledge of the opposite parties. They have not mustered courage to lead evidence on this aspect of the matter to show that vehicle of 2006 model was purchased by the complainant as its price was less than the price of vehicle of the model of 2007. There is no evidence of the opposite parties as to how much rebate/discount was given to the complainant for purchasing the vehicle of 2006 model. In these circumstances, version of the opposite parties that complainant chose to purchase the vehicle of 2006 model does not sound to logic particularly when he purchased the vehicle in March, 2007. Moreover, plea of the opposite parties is falsified from the copy Ex. C-3 of the original sale certificate. In this document, month and year of manufacture of the vehicle are March, 2007. This was issued by opposite party No. 2. As per Form No. F and Form No. 22 issued by opposite party No. 1, the date of invoice No. 66005011 is 28.7.06. Knowing fully well, opposite party No. 2 sold the vehicle of Model of 2006 in March, 2007 by way of mentioning it in the sale certificate, copy of which is Ex. C-3 as of March, 2007. Submission of the learned counsel for the opposite parties that in fact documents for registration of the vehicle were produced by the complainant before District Transport Officer and that in the sale certificate lying in the office of District Transport Officer, month and year of manufacture of the vehicle is July 2006 and this proves the version of the opposite parties, cannot be given any weight. No doubt, opposite parties got produced Ex. R-1 to Ex. R-3 i.e. original sale certificate, original Form No. 20 and original Form No. F from the office of District Transport Officer, Bathinda, through Junior Assistant Sh. Sarwan Kumar whose statement was recorded before this Forum on 21.8.07 and that in the original sale certificate, copy of which is Ex. R-1, month and year of manufacturer after cutting and initialing have been made July, 2006. Had this cutting been done when the original sale certificate was issued and handed over to the complainant, this should be available on the original which was given to the complainant, copy of which is Ex. C-3. In the original sale certificate, copy of which is Ex. C-3 month and year of manufacture were March, 2007. There cannot be said to be any benefit to the complainant in changing the month and year of manufacture from March, 2007 to July, 2006. We are constrained to remark that the evidence on the record reveals that opposite party No. 2 is not maintaining the genuine record. As mentioned above, vehicle was booked on 23.2.07. It was purchased vide invoice dated 8.3.07. Ex. C-6 is the copy of the receipt dated 23.2.07 according to which vehicle in question has been shown to have been delivered to the complainant by Sh. Naresh Garg. In the Tax Invoice copy of which is Ex. C-9, booking date has been given as 8.3.07. In the sale certificate vehicle has been shown to have been sold on 8.3.07. Signatures on the receipt dated 23.2.07 regarding delivery on behalf of opposite party No. 2 is of Sh. Naresh Garg. In our view they tally with the initials appended at original of Ex. R-1 at the place where month and year of manufacture have been changed from March, 2007 to July, 2006. If opposite party No. 2 can do illegality and irregularity about the delivery of the vehicle by mentioning the date of delivery and booking, change in the month and year of manufacture from March, 2007 to July, 2006 after the documents were submitted by the complainant, can be inferred from it particularly when in the original certificate delivered to the complainant, copy of which is Ex. C-3, the month and year of manufacture are March, 2007. Plea of the opposite parties in the reply of the complaint is not credible. It does not sound to reason at all. Complainant cannot be said to have purchased the vehicle of 2006 in the month of March, 2007. In the facts and circumstances of this case, crux of the matter is that vehicle of the model of 2006 was sold as of 2007 model for a consideration of Rs. 1,24,000/-. Hence, deficiency in service and unfair trade practice on the part of opposite party No. 2 is writ large.<br /> 12. Now question arises as to which relief should be accorded to the complainant in the given situation. In our view opposite party No. 1 is not at all liable. It is the manufacturer of the vehicles. As per copies of its documents, the model of the vehicle is 2006. It did not make any mis-representation to the complainant. Deficiency in service and unfair trade practice is on the part of opposite party No. 2. In view of our foregoing discussion, direction deserves to be given to opposite party No. 2 to replace three wheeler cargo of the model of 2006 delivered to the complainant with its model of 2007 or in the alternative to refund the price of the vehicle alongwith interest @9% P.A. from the date of purchase till realisation. In this view of the matter, we get support from the observations of the Hon'ble National Commission in the case of Shanti Seeds Vs. Hira Lal & Others 2005(CTJ)383 (CP)(NCDRC). Reference can also be made to the case of Tech Guard Electronics Vs. P.B. Dhawan & Others 2006 (CTJ) 207 (CP)(SCDRC). Complainant is craving for compensation of Rs. 50,000/- for mental tension, agony and loss of physical health. In this case where unfair trade practice and deficiency in service stand proved on the part of opposite party No. 2, complainant is certainly entitled to some compensation which we assess as Rs. 10,000/-. For this, we are fortified from the observations of Hon'ble State Commission of Madhya Pradesh in the case of J. Radhakrishnan Vs. A Basheera & Another 2001(2) CLT 225 wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis. <br /> 13. No other point was urged before us at the time of arguments.<br /> 14. In the premises written above, complaint is accepted against opposite party No. 2 with cost of Rs. 1,000/-. It stands dismissed qua opposite party No. 1. Opposite party No. 2 is directed to do as under :-<br /> i) Replace three wheeler cargo of the model of 2006 sold to the complainant with a new one of the model of 2007 or in the alternative refund the price of the vehicle sold to the complainant alongwith interest @ 9% P.A. from the date of purchase i.e. 8.3.07 till realisation.<br /> ii) Pay Rs. 10,000/- to the complainant as compensation under Section 14(1)(d) of the Act.<br /> Compliance of this order be made within 45 days from the date of receipt of its copy failing which the amount of compensation under Section 14(1)(d) would carry interest @9% P.A. till realisation.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to the record room. <br /> Pronounced :<br /> 31-08-2007 <br /> (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br /> <br />