FINAL ORDER/JUDGEMENT           

SHRI SWAPAN KUMAR MAHANTY,   PRESIDENT

The facts in brief are that the complainant intended to pruchase a new vehicle being Model No.  Dost LS BS-IV  of  2018 from the authorised dealer Rajgarhia Motor (OP-1)  at a price of Rs. 5,60,350/- specifically for the purpose of earning livlihood. Complainant booked the abvoe model by paying Rs. 5,000/- as an advance. Complainant purchased the vehicle through the financial assistance of Oriental Bank of Commerce, Mostal  Branch. Complainant has also paid Rs. 38,650/- to the OP-1 against Insurance, Registeration, Smart Card Road, Tax etc. OP-1 delivered the vehicle bearing registeration No. WB 11TC0374 and Model No. Dost LE BS-IV  on 09.01.2019 instead of Dost LS-BS-IV. Price of Model No. Dost LE BS-IV is less than the price of Model No. Dost LS BS-IV. The OP-1 intentionally  and fraudulently  delivered LE Model without power streeing. It is also averred that the delivered vehicle was insured with United India Insruance Company Ltd. for the period from 20.11.2017 to 19.11.2018 and its manufacturing year was 2013 though OP-1 declared its manufacturing year 2018 in the policy issued by United India Insurance  Company Ltd. and they assessed the vehicle IDV is Rs. 4,60,000/-. OP-1 insured the delivered vehicle with Magma HDI General Insurance Company Ltd. and the IDV of the vehicle is Rs. 5,39,553/-. The issue was brought to the notice of the authroised dealer and manfacturer of the delivered vehicle through e-mail dated 12.01.2019 and legal  notice dated 14.01.2019. On account of non delivered of booked vehicle being Model No. Dost LE BS-IV the complainant suffered huge losses.

Alleging deficiency in service and unfair trade practice on the part of the OPs, complainant has filed the present complaint before this commission.

The OPs 1 & 2 have contested the case by filing WV in which material facts have been denied. The answering OPs took plea that the delivered vehicle was being use as a transport vehicle and therefore falls within the ambit of “commercial purpose ” and that the complainant is not a “consumer”. The specific case of the answering OPs is that the complainant booked one vehicle on payment of Rs. 5,000/- against Model No. LEBS-IV  HSD, and Oriental Bank of Commerce, Mostal Branch disbursed vehicle loan of Rs. 5,62,950/- to the complainant on 14.12.2018 and complainant also paid Rs. 38,650/- on account of cost of registeration charge, insrurance policy and road tax. In course of payment  complainant choosed another vehicle being Model No. Dost LE BS-IV HSD  (without power stearing) and final invoice was prepared. Registeration & Insurance Policy has been done based on the delivered vehicle. Engine,  Chassis number and  year of manufacture, and mode of vehcile has been clearly mentioned in Form No. 20 (application for registeration of vehicle). Vehicle was registered on 03.01.2019 and ARTO Srirampur allotted registeration No. WB-17-3613. Number plate received on 09.01.2019 and it was affixed on 17.01.2019 at Motor Vehicles Department Srirampur  in presence of the complainant. The Vehicle was insured with Magma General Insurance Company where engine and chassis numbers, name of the policy holder and year of manufacturing has been mentioned. The Insurance Policy produced by the complainant in respect of the vehicle is fake. Answering OPs have already refund difference amount of Rs. 19,100/- vide cheque No. 001649 dated 15.01.2019 to the Oriental Bank of Commerce. There is no defieciency of service and unfair trade practice on the part of the OPs.

In view of the aforsaid facts and circumstances, the answering OPs have prayed for dismissal of the complaint.

Despite service of notice, OP-3 Ashok Leyland Ltd. did not file their WV. Thus, the case runs ex parte against OP-3. It is pertinent to mention here that the Ld. Counsel for the OP-3 participated in the argument without filing WV and E/chief.

We have gone through the pleadings of the parties, their evidence and documents on record.

            Having perused the materials available on record and after appreciating the evidence lead by the parties, it is admitted that OP-1 is the authorized dealer of OP-3 Ashok Leyland Ltd. and OP-2 is the Managing Director of OP-1 Rajgarhia Motor. It is also true that the complainant  had been to the show room of OP-1 on 30.11.2018 for purchase of a vehicle being Model No. Dost LS BS-IV manufactured by OP-3 and OP-1 issued a quotation cum proforma Invoice in favour of the complainant.  Quotation price of vehicle being Model No. DOST LSBS IV was Rs. 56,0350/- after deduction of discount of Rs.  30,000/- and the complainant booked the above model by paying Rs. 5,000/- as an advance. OP-1 issued money receipt dated 30.11.2018 against payment of booking amount. Photocopy of Sanction letter dated 12.12.2018 of Oriental Bank of Commerce, Mosat Branch goes to show that term loan of Rs. 2,00,000/- was sanctioned in favour of the complainant for purchase of Ashok Leyland Dost LS BS IV Vehicle.  It is relevant to mention here that Oriental Bank of Commerce paid Rs.  5,62,950/- to the OP-1 on 14.12.2018 in respect of Vehicle bearing Model No. Dost LS BS-IV and OP-1 issued money receipt. On the Contrary, OP-1 issued Tax Invoice dated 14.12.2018 of the Vehicle showing Model Dost LE BS IV (FSD) and in the Delivery Challan mentioned Model DOST RFSLEDTBSIVFSD. Complainant also paid Rs. 38,650/- to the OP-1 as registration charge and insurance premium. Prior to delivery of vehicle it was registered to the Motor Vehicle Department and United India Insurance Company insured policy of the Vehicle for the period from 20.11.2017 to  19.11.2018 in the name of OP-1 i.e. prior to date of delivery of vehicle. Annexure D goes to show that vehicle was delivered to the complainant on 09.01.2019 Annexure-E itself proved that the vehicle was manufactured in the year 2013 and its IDV  was Rs. 4,60,000/-. The vehicle delivered to the complainant and it was insured with Magma HDI for the period from 20.12.2018 to midnight of 19.12.2019 proved that OPs 1 and 2 adopted unfair trade practice by selling a vehicle manufactured in the year 2013 to the complainant in 2018 and booked model fully mentioned in the quotation cum proforma invoice was not delivered. The OPs 1 and 2 manipulated the documents and deprived of 19.12.2019. In column No.  4 of the Insurance Policy, it has been mentioned that the vehicle was manufactured in the year 2018 and its IDV is Rs. 5,39,553/-. Thus, it is crystal clear that the OPs 1 and 2 sold the used/demo vehicle to the complainant by suppressing its manufacturing year and previous insurance policy vide order dated 30.09.2019 the United India Insurance company produced  a copy of Insurance Policy of the vehicle which also proved the allegations of the complainant. Thus, the defence of the OPs 1 and 2 that the Insurance Policy of United India Insurance Company is fake is not leg to stand.  So, it is pvored that OPs 1 and 2 adopted unfair trade practice by selling a vehicle mnaufactured in the year 2013 to the complainant in 2018 and booked model fully mentioned in the quoation cum proforma invoice was not delivered. The OPs 1 and 2 manupulated the documents and the deprived the Complainant though they received full price of the vehicle with an assurance  to deliver a new vehicle. Different model of vehicle was delivered to the complainant. Insurance policy produced by the United India Insurance Company Ltd. itself proved vehicle delivered to the complainant was manufactured in 2018.

            It is contention of the Ld. Counsel for the OPs 1 and 2 that the delivered vehicle was being used as a transport vehicle and therefore, falls within the ambit of “Commercial Purpose” and that the complainant is not a “Consumer”. Complainant specifically stated in the complaint petition that he purchased the vehicle for the purposed the vehicle for the purpose of earning livelihood by selling cow milk for domestic needs as well as various sweet shops. We find force that the complainant had taken  the vehicle to supply cow milk for domestic needs and various sweet shops as a means of livelihood by availing term loan from the Oriental Bank of Commerce. The law on this point is well settled that when a buyer purchased a vehicle for the purpose of earning livelihood, he does not cease to be a consumer and by no stretch it can be said that the complainant is engaged in commercial activities. There is no documentary evidence on the part of the OPs 1 and 2 to substantiate their contention that the complainant is runing the vheilce on a  large commercial basis which is in contravention to the principle laid down by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute reported in 1995 SCC (3) 583. Therefore, we are of the view considered view that the complainant falls within the exclusion clause of the  ambit of section 2 (7) of the CP Act, 2019 and is a “Consumer”. Thus the consumer complaint is laible to be allowed against the OPs 1 and 2.

OP-3 Ashok Leyland Ltd. operate with all its dealers on principal to principal basis and there is no privity of contract between the complainant and the OP-3. The liability of the OP-3 being the manufacturer of Dost LS BS-IV  vehicles is limited and extends only to the warranty obligation. Any error, omission, misrepresentation, if any during retail sale of the vehicle on the part of the dealer concerning any  aspect in respect of the vehicle cannot be fastened and/or made attributable to OP-3. Ashok Leyland Ltd.  in any manner whatsoever.

            The Hon’ble Supreme Court in Tata Motors Ltd. Vs. Antonio Pawo Vaz & Anr. In Civil Appeal No. 574/2021 (Arising out of SLP (c) No. 10220 of 2020 has observed clearly the dealer in the facts of that case, acknowledge the defects in the car. In the present case, the dealer did not acknowledge any such deficiency; furthermore the care had been made over to the dealer on 28.02.2009 (as is evident from an invoice issued  to the dealer a copy of which is on the record). Therefore, it is difficult to expect the appellant a manufacturer, to be aware of the physical condition of the car, two years after its delivery to the dealer. During that period a number of eventualities could have occurred; the dealer may have allowed people to use the car for the distance it is alleged to have covered. Also, the use of the car and prolonged idleness without proper  up keep could have resulted in the undercarriage being corrugated. All these are possibilities. Unless the manufacturer’s knowledge is proved a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer, in the facts of this case, were on principal to principal basis.

For all the above reasons,  There is no unfair trade practice on the part of the OP-3 and the complainant is not entitled to get any relief against the OP-3. Thus, consumer case is liable to be dismissed against the OP-3 without any cost.

In the result, the case succeeds in part.

Hence,

Ordered

That the complaint case is allowed on contest against the OPs 1 and 2 in part with cost of Rs. 10,000/- only and dismissed ex parte against the OP-3 without any cost.

The OPs 1 and 2 are jointly and severally directed to replace the vehicle by a new one with model number DOST LS BS IV manufacturing of 2018 with supported papers and documents as required to ply the vehicle on road after receiving the delivered vehicle with refund of excess amount of Rs. 1,56,140/- altenatively, the OPs 1 and 2 are directed to refund Rs.  6,06,600/- (Rs. 5,67,950 + Rs.  38,650/-) to the complainant within 90 days from the date of this order. The OPs 1 and 2 are further directed to pay compensation Rs. 25,000/- to the complaiantn for causing his mental and physical agony. Liberty be given to the complainant to put the order into execution, if the OPs 1 and 2 transgressess to comply the order.

Copy of the judgment be supplied to the parties free of cost as per CP Act. Upload the judgment on the website of this Commission for perusal of the parties.

Order No. 37 Dated –  26.07.2022

It appears from the Judgment dated 15.07.2022 passed by this commission in the instant case that name of the complainant has been typed as Protap Chandra Roy inadvertently instead of Pratap Chandra Roy.

It is our considered view that the matter should be corrected. Hence, the name of the complainant in the cause title of the judgment dated 15.07.2022 is corrected in such a manner that name of the complainant be read as “Pratap Chandra Roy”.

Parties are to act accordingly.