Present :    Sri A.K. Das,  President

                  Sri L.K. Banerjee,  Member

Order no. 22   dt. 12.10.2007

          Smt. Swapna Mondal has moved this forum against Dewar’s Garage Ltd. and Maruti Udyog Ltd. for a direction upon them to replace the Omni Van bearing registration no.02 B 6134, chassis no.490835 and engine no.2203950 as it was giving trouble immediate after taking delivery on 12.1.04 from o.p. nos.1 and 2.

            It is alleged that upto 11.8.04 the car plied on the road 24,757 km. In the mean time the car was taken to the o.p.’s garage several times due to recurring troubles and she submitted several representations alleging that she was delivered with old vehicle instead of new as such several defects were appearing in course of ply on the road.

            The o.p. no.3 Maruti Udyog has contended in their w/v that petitioner has impleaded this o.p. with an intention to cause wrongful loss. There is no nexus of the o.p. in contract for sale executed in respect of the vehicle between petitioner and o.p. nos.1 and 2. it is evident from the vehicle history car maintained by o.p. nos.1 and 2 that there was no manufacturing defect. All services were done under the warranty. The o.p. no.3 sells its vehicle to its authorized dealers including o.p. nos.1 and 2 on principal to principal basis who in turn sells the same to the undivided customer against its own invoice and sale certificates. The petitioner bought he vehicle from o.p. nos.1 and 2 under a contract of sale to which o.p. no.3 was not a party.

            The petitioner has not come before the forum in clean hand and has contended the material facts as per his own convenience. it was informed by o.p. nos.1and 2 to o.p. no.3 that the petitioner was willing to buy a pre-owned true value vehicle and due to non-availability pre-owned true value vehicle stock the petitioner was offered to buy the vehicle in question against discount of Rs.24,709/-.  The petitioner bought the vehicle in question having been informed that the vehicle is a used one at he dealership and in lieu of that he was also provided discount. So the petitioner has no right to ask for replacement of the vehicle.

            The o.p. nos.1 and 2 have contended in their affidavit that the petitioner approached the o.ps. to purchase a pre-owned / second-hand Maruti Van which was out of stock at the relevant point of time the o.ps. offered for sale to the petitioner a Maruti Van which was practically new and unregistered and had been used for making runs to the show rooms of direct selling agent and/or for display purpose. The o.ps. specifically informed the petitioner that said vehicle had made a run of about 3000-4000 km and it was otherwise in a sound condition.

            The petitioner was interested in purchasing the said vehicle and wanted a hefty discount on the purchase price of the same and bargained hard for the same. The o.ps. agreed to allow the petitioner a total discount of Rs.24,709/- on the purchase price of the said vehicle. The petitioner was satisfied as to condition and form of the car and accordingly petitioner booked the said vehicle as per Order Booking Form dt.24.12.03 and made taken deposit of Rs.5000/-. Thereafter petitioner paid balance purchase consideration on 3.1.04 and o.ps. delivered possession of the vehicle on 6.1.04 in good working condition. The petitioner had all along knowledge that said vehicle was not an absolutely new vehicle and has in fact been used in the past. The petitioner had been allowed a heavy discount against the purchase price of the said vehicle. Therefore, the petitioner cannot now contend that said vehicle was not an absolutely new vehicle and has various defects.

            The petitioner was allowed warranty for a period of one year from the date of sale. As such, o.p. no.1 had been carrying out necessary repair of the same as and when necessary in terms of the warranty. Further more, various fault in a car arise also due to failure on the part of the driver. It is submitted that said vehicle is a new vehicle in the sense that it has not been pre-owned by anybody else. The said vehicle had been used for in house trips and at run for about 3000-4000 kms. Petitioner had all along been aware of the said fact and in fact purchased the vehicle by reason of the heavy discount allowed on account of such pre-running of the same. Petitioner having taken advantage of the fact of pre-running of this vehicle cannot now contain that she had never purchased a pre-running vehicle but had rather purchased an absolutely new vehicle. Petitioner never requested the o.p. for delivery of a new vehicle in place and stead of  the said vehicle. In view of the fact the petitioner is not entitled to relief in terms of the prayer.

            It is appearing from the contentions oft he parties that the car was giving various trouble immediate after taking delivery. The o.p. did not supply the duplicate key. The petitioner took the car to service center of o.p. no.1 and 2 number of occasions for repair. The o.ps. did it accordingly. The car plied 24,757 km upto 11.8.04. The petitioner has submitted her affidavit on 22.8.07 after filing w/v of o.p. nos.1, 2 and 3.

            The o.ps. have categorically contended that the petitioner and her husband visited the show room of o.p. no.1 for the purpose of purchasing a pre-owned / second hand Maruti Van. At the material point of time there was no stock of pre-owned van. The o.p. no.1 offered for sale to the petitioner a van which though practically new and unregistered, had been used for making runs to the show room of direct selling agent for display purposes and they informed the petitioner that said van had made a run about 3000-4000 km and it was otherwise in a sound condition. The petitioner was interested in purchasing the said vehicle and demanded hefty discount on the purchase price and bargained hard for the same. The o.p. no.1 conceded to allow total discount Rs.24,709/- on the purchase price of the vehicle. The petitioner and her husband booked the said vehicle as per Order Booking Form dt.24.12.03 after thorough inspection and made taken deposit of TRs.5000/-. The petitioner made deposit balance amount of consideration Rs.2,26,506.95 on 3.1.04. The o.p. delivered possession of the vehicle to the petitioner on 6.1.04.

            Above contentions of the o.ps. are neither disputed nor denied in the petition and affidavit of the petitioner. The o.ps. above defence is corroborated by the invoice annexed with petition of complaint. Therefore, it is evident that petitioner purchased a used van which made a run about 3000-4000 km. There is no satisfactory evidence that the petitioner purchased a new vehicle paying at a sale price. It is appearing from the invoice that petitioner purchased it at a discount which  o.p. conditionally afford. The petitioner accepted that offer and paid entire consideration money. In view of that fact there is no other material to establish that petitioner purchased a new van from o.p. no.1.

            If obligatory on the part of the o.p. to provide service in case of fault arising during run of the vehicle within terms and conditions of the warranty.

            The above circumstances do not warrant the relief sought for by the petitioner. There is no sufficient ground in the consumer complaint to appreciate the submissions of the petitioner and to held that there was deficiency in service or unlawful trade practice on the part of the o.ps. The consumer complaint accordingly fails.

            Hence,

                        Odered,

            That the consumer complaint is dismissed on contest. No cost is awarded to the parties.

________________                                                                              ________________   

        Member                                                                                                 President