BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.803/2015

DATED ON THIS THE 30^th June 2017

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                          B.E., LLB., PGDCLP,    - MEMBER

Sri DEVAKUMAR.M.C,

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties, alleging deficiency in service and unfair trade practice, and seeking directions to refund Rs.4,49,769/- or to replace the Renault Kwid RXT and to pay Rs.1,00,000/- as compensation for the deficiency in service and unfair trade practice and to pay Rs.50,000/- as damages for causing mental agony and harassment with cost of the proceedings with such other reliefs.
2.     The complainant booked to purchase a Renault Kwid RXT (O) model car from opposite party No.2, manufactured by opposite party No.1, by paying a sum of Rs.25,000/-, on 03.10.2015.  On disbursement of the balance amount by way of loan by the Bank, opposite party No.2 delivered the car to the complainant, on 20.11.2015, at about 6.30 pm.
3.     The opposite party No.2 delivered Renault Kwid RXT model car as against the booked higher end model car, i.e. Renault Kwid RXT (O).  The complainant refusing to accept the car, called for explanation for the same.  The Sales executive of opposite party No.2, assuring to resolve the problem, handed over a cheque for a sum of Rs.10,099/- being the difference amount, the same was accepted under protest.
4.     A dent on the rear of the car was brought to the notice of opposite party No.2, who accepted to effect the repairs, but without raising any job card for the same.  The car was in the custody of opposite party No.2, till filing of the complaint.  This is alleged as unfair trade practice as under section 2(r) of the C.P.Act. 
5.     The legal notices caused on to both opposite parties on 25.11.2015, but none bothered to reply. Thereby, the aggrieved complainant, filed the complaint alleging deficiency in service and unfair trade practice by opposite parties, and seeking reliefs.
6.     The opposite party No.1 filed its version and submits the complaint is false, frivolous and liable to be dismissed against them.  It submits the relationship between opposite party No.1 and opposite party No.2 is of Principal to Principal basis.  The opposite party No.2 is the authorised dealer and not an agent.  The opposite party No.1 delivers the vehicle to its dealer and inturn the dealer sells the vehicle by receiving the consideration from the buyers.  The opposite party No.1 though not a necessary party to the complaint, impleaded as opposite party No.1, to make wrongful gain and to defame the reputation only.  Therefore, opposite party No.1 is not liable to pay any compensation as against the allegations and prays for dismissal of the complaint against them with costs.
7.     The opposite party No.2 filed its version denying the allegations and submits the complaint against them is not maintainable, as the complainant has not suffered any injury and the amount collected in excess towards the car delivered has already been refunded.  As such, the complaint is liable to be dismissed with costs and the complainant is not entitled for any compensation.
8.     To prove the facts, the complainant led evidence by filing affidavit and relying on several documents.  The opposite party No.1 and 2 led evidence by filing their respective affidavits.  Written arguments filed by both side.  Heard the submissions on the matter on hand by the complainant and opposite party No.2 counsel only.  Perusing the material on record, matter posted for orders.
9.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainant establishes the deficiency in service and unfair trade practice by the opposite parties, in not delivering the specified model car and rectification of the defects noticed in the car and thereby he is entitled for the reliefs?
3.  What order?

10.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative.

Point No.2:- In the negative.

Point No.3 :- As per final order for the following

:: R E A S O N S ::

11. Point No.1:- Admittedly, the complainant purchased a car, from opposite party No.2 by paying consideration, manufactured by opposite party No.1.  Thereby, as per provision under section 2(1)(d) of the C.P.Act, the complainant become a “consumer” and there were allegations of unfair trade practice and the car purchased by him suffers defects, accordingly, under section 2(1)(d) of the C.P.Act, the complaint is maintainable.  Accordingly, the point No.1 is answered in the affirmative.
12. Point No.2:- The complainant booked a car with opposite party No.2 manufactured by opposite party No.1.  He booked an specific high end model car i.e. Renault Kwid RXT (O) on 03.10.2015, by depositing a sum of Rs.25,000/-, and paid the balance sale consideration availing loan from the bank.  The car was delivered on 20.11.2015 at about 6.30 P.M.  The car was not of the particular model booked.
13. The opposite party No.2 delivered Renault Kwid RXT model car.  The complainant refusing to accept, called for explanation.  The delivery note was mentioned as Renault Kwid RXT (O) model car.  The sales representative requested to sort out the problem, had handed over a cheque for a sum of Rs.10,099/- being the difference amount and the same was accepted, on the assurance of sort out of the problem amicably.
14. A minor dent on the rear of the car, was also noticed and the same brought to the notice of opposite party No.2, who assured to rectify the same on hand over of the vehicle later.  The opposite party No.2 attended the same without raising any job card.  The car was in the custody of the opposite party No.2 till the filing of the complaint.  Thereby, the complainant alleged the delivery of a lower end model car as unfair trade practice and negligence on the part of opposite parties and sought for the reliefs.
15. The opposite party No.1 contended that, the complaint is false, frivolous and vexatious.  It contends, the complaint is filed against them was to harm the reputation and to make wrongful gain only, as there was no direct nexus with the complainant. The opposite party Nos.1 and 2 had only principal to principal basis, as  such, the complaint is not maintainable against them and are not liable to pay any compensation to complainant.
16. Further contended that, the complainant had accepted the cheque for a sum of Rs.10,099/- being the difference in the price of the car delivered to him without any protest.  In view of the same, the complainant is not entitled for any reliefs as prayed for and the complaint is liable to be dismissed against the opposite party No.1, as there was no deficiency in service and unfair trade practice by them.
17. The opposite party No.2 admitted the sale of Renault Kwid RXT model car, as against the Renault Kwid RXT (O) model car and refund of Rs.10,099/- collected in excess towards car delivered to the complainant.  It is also contended that, as there were no inherent manufacturing defect in the car and the complainant had not suffered any injury and loss, as such, the complaint is liable to be dismissed.  Thereby, opposite party No.2 had not committed any deficiency in service and unfair trade practice against the complaint and hence prayed for dismissal of the complaint with cost, against them.
18. The customer order form bearing No.3129, dated 03.10.2015, placed on record, established that, the complainant had placed order for Renault Kwid RXT (O) FIERY Red model car and paid a sum of Rs.25,000/- to opposite party No.2.  The sales receipt voucher No.2568 dated 03.10.2015 confirmed the payment of Rs.25,000/- towards booking of Kwid RXT (O) model car.  The delivery voucher dated 20.11.2015 confirms the delivery of Kwid RXT (O) model car to the complainant.  The insurance policy established that the Renault Kwid RXT – optional car was insured in favour of the complainant.  The cheque bearing No.003360 dated 20.11.2015, established the payment of Rs.10,099/- in favour of the complainant.
19. However, the complainant failed to place any material evidence to establish that opposite party No.2 had delivered a different model car i.e. Renault Kwid RXT, as against the booked Renault Kwid RXT (O) model car and the acceptance of the cheque offered by the opposite party No.2, under protest.  In view of the same, we opine that three is no deficiency in service and unfair trade practice on the part of opposite party No.2.  As such, the complainant is not entitled for any reliefs and the complaint is liable to be dismissed.  Accordingly, the point No.2 is answered in the negative.

20. Point No.3:-  In view of the observations made in point No.2, we proceed to pass the following

:: O R D E R ::

1. The complaint is hereby dismissed.
2. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 30^th  June 2017)