Haryana

Ambala

CC/406/2011

VEENA GUPTA WIFE OF SH SUNIL GUPTA, - Complainant(s)

Versus

SAMRIHI HYUNDAI - Opp.Party(s)

ASHUTOSH GUPTA

17 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                                 Complaint case no.        : 406 of 2012

                                                                  Date of Institution         : 19.12.2011                                                                          

                                                                    Date of decision   : 17.03.2017

 

          Smt. Veena Gupta wife of Sh. Sunil Kumar Gupta, Proprietor, Gupta Timber   Trader, 3529 Timber Market Ambala Cantt.   

 

……. Complainant.

 

 

1. Samrithi Hyundia, through its officer concerned, 12 K.M. Village Tepela, Jagadhri Road, Ambala Cantt, District Ambala.
2. The Managing Director/General Manager, Hyundia Motor India Ltd. Fifth & Sixth floor corporate, Bani Building Plot No. 5, Commercial Centre, Jasola, New Delhi-110076.

 

….…. Respondents.

 

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER                             

 

 

Present:       Sh. Tarun Mehta, advocate alongwith Ashutosh Gupta, counsel for the             complainant.

                   Sh. Vishal Mittal, advocate alongwith Sh. Jaikin Dawar, Advocate                              counsel for OP No. 1.

                   Sh. Saravjeet Singh, counsel for Op No. 2.

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant had purchased a new car Veena make in white colour through invoice No. H2010000137 on 28.12.2010 from Samrithi Hyundia for a sum of Rs. 8,67,897/- from OP No. 1 sold the above car to the complainant on false representing. Further submitted that it was new brand later on, it was revealed that the car sold to the complainant was not a new car but it was revealed that the same car bearing chassis No. MALCN41VLAM095631J and engine No. D4FAAU895316 was sold to another person by the OP no.1 on 07.12.2010 but the car after running only 1592 KMs developed some mechanical defects and various problems and the car was brought to the workshop of OP No. 1 for repair, but the previous owner did not get the car from OP No. 1 to get the mechanical defects removed and after getting the car repaired you OP NO. 1 falsely represented that the car was a new brand car and sold the second hand car to the complainant on 28.12.2010 and received the full value of a new car form the complainant. The number of the car is HR-01-AB-5525 which was procured by the complainant from the registration authorities, Ambala. Further submitted that the Op No. 2 is the manufacturer of the car and the Op No. 1 is the dealer of OP No. 2 who sold the second hand car to the complainant on 28.12.2010 by misrepresentation that the same was a new brand car but never disclosed to the complainant that it was a second hand car as the same was earlier sold to some one else on 24.10.2010 as the car sold to the complainant was bearing the same chassis number and engine number which was earlier sold by the OPs to some one else on 24.11.2010. In this way, OPs are guilty of misrepresentation and is also liable for deficiency in service as the complainant approached the OP No. 1 but the Op No. 1 did not bother even to attend the complainant and to reply her queries. Further submitted that there is a manufacturing defect in the car which cannot be removed at any costs and the complainant sent the car in question to the workshop of OP No. 1 but of no avail although the vehicle was kept by the OP No. 1 in his workshop for 2 -3 days continuously. Further submitted that the complainant visited the workshop on 07.12.2010, 28.02.2011, 04.08.2011 and on 08.09.2011 for getting the service of her car from OP No. 1 at his workshop and pointed out various defects in the car but the mechanic of the OP No. 1 failed to remove the defects. Due to misrepresentation and negligence on the part of the OPs in providing service to the complainant, the complainant has suffered a great mental tension, pain and agony as well as financial loss and it is a glaring examine of deficiency in service on the part of OPs. Hence, the present compliant.

2.                Upon notice, OP No. 1 appeared and filed written statement submitting that the complainant has forged the documents to prove his plea and there is no authenticity of the document as there is no dealer no. and no code no. in it and the complainant itself, the complainant herself has stated two different dates as 07.12.2010 & 24.11.2010 regarding false allegation of sale of alleged vehicle to some other person prior to sale to complainant for her firm M/s Gupta Timber Traders. All the allegations are false ones as Insurance of vehicle was also done on the vehicle at the time of sale to complainant with National Insurance Co. vide cover note NO. 401011001281 dt. 28.12.2010, then there must have some Insurance of said vehicle as no vehicle is sold without prior insurance. Even speedometer was also 0000 at the time of sale to complainant while allegation are that speedometer was showing 1592 Kms which is wrong one. Further submitted that the complainant has received two cheque of Rs. 20,000/- dated 10.01.2011 and 15,000/- on 29.09.2011 from Op No. 1 and there was no complaint of any nature at that time and now present complaint is just an after through to grab compensation from answering OP for nothing.

                   Upon notice, OP No. 2 also appeared and filed written statement submitting that the present complaint is liable to be dismissed on the sole ground that the complainant is not consumer in terms of Consumer Protection Act, 1986 and the vehicle is purchased by Gupta Timber Trader, a commercial entity, which is admittedly a firm carrying on business of timber for commercial purposes and also purchased the car for commercial purposes. Further submitted that the complainant has not sough leave of this Hon’ble Court for institution of the present complaint qua the Answering Op as mandated under Section 11 of consumer Protection Act, 1986 and the complainant is, inter alia alleging in the complaint that vehicle allegedly suffered from defect in vehicle and the complainant never filed any application under Section 13 (1) (C) of  the Consumer Protection Act, 1986 before This Forum.

3                 To prove his version complainant tendered his affidavit as Annexure C-X along with documents as annexure C-1 to C-11 and close his evidence. On the other hand, counsel for OPs has also tendered affidavits as Annexure R1-Y alongwith with documents as Annexure R1-1 to Annexure R1-8 and closed his evidence as well as counsel for OP No. 2 also tendered affidavit as Annexure RW/A alonwith documents as Annexure RA to RC and closed his evidence.

4.                We have heard learned counsel for the parties and carefully gone through the case file. Admittedly, complainant had purchased the car in dispute from Op No. 1 vide invoice No. H2010000137 on 28.12.2010 as per Annexure C-1 for personal use and if she is a proprietor of Gupta Timber Traders, it does not means her purchase for commercial use as such objection taken by the Ops that complainant is not a consumer is not sustainable. Since, car in dispute is manufacture by OP No. 2 and OP No. 1 is a authorized dealer. So, OP No. 2 is also responsible for vicariously act and conduct of dealer and OP No. 2 also responsible for any type of manufacture in car manufacture by it as such OP No. 2 is rightly impleaded by the complainant objection taken in this regard by OP No. 2 is not found favour by this Court.

                   On merits, it is claimed that the car in question is second hand sold by OP No. 1 to the complainant on 28.12.2010. It was further claimed by the complainant that said car was earlier sold by Op No. 1 vide invoice No. H201000014 dated 24.10.2010 and after running of 1592 Kms  defect developed in the car and the same could not removed and car was taken back in support of the said contention. The complainant relied upon a photocopy of dealer management system in which it shown that car having same engine No. and was having same invoice No. H201000014 dated 24.11.2010 as per Annexure C-5. The complainant further relied upon photostate copy of free service coupon Annexure C-6 dated 26.02.2011 in which date of delivery of the car has been shown as 24.11.2010 and also relied upon the Annexure C-5 detailed account of car in which car was shown repaired on 07.12.2010 at 1592 kms. The OP has denied the above said documents. It is a strong doubt in the mind of this Forum that car might be used before selling to the complainant. The OP No. 1 had also pleaded that they had paid sum of               Rs. 20,000/- to the complainant on 10.01.2011 and sum of Rs. 15000/- on 29.09.2011. The complainant did not denied said facts even in her affidavit Annexure C-X dated 10.01.2017. However, OP No. 1 failed to explain why said payment of Rs. 5000/- has been made to the complainant by them, from the said facts also, the inference can be drawn that there must be fault on the part of the Op No. 1  for which complainant has been compensated. However, Op No. 1 had concealed the material facts from this forum by with holding the factual position for which account said payment has been made by them to complainant. The complainant had also concealed the said facts from this Forum which shows that both parties have tried to mislead the Forum.

                   In rebuttal to the additional evidence of complainant, the OP No. 1 has produced copy of invoice No. H201000014 dated 15.11.2010 Annexure R-20 which reveals that another car was sold by Op No. 1 to Mrs Triputi Suri but the car in question was never sold to complainant through the said invoice.  Since, the Annexure C-4, C-5 and C-6 service record are not authentic and same have been denied by OP No.1. So, same cannot believed by this Forum in preference to Annexure R-20 which is attested copy of invoice. Further when the alleged malpractice of the OP comes to the knowledge of the complainant on 26.02.2011 then she was supposed to take action immediately. The complainant had failed to explain why she remains kept mum upto 04.11.2011 when notice annexure C-9 has been issued by her first time claiming the alleged malpractice. The present complaint has been filed on 19.12.2011 without explaining the delay of nine month. During this period, the OP has paid a sum of Rs. 35000/- to the complainant which shows that there must be some mutual settlement took place between the parties and complainant had waited unless she received cheque of Rs. 15000/- on 29.09.2011. We respected the judgment delivered by Hon’ble National Consumer Disputes Redressal Commission titled as Tat Motors ltd. and another Vs. Prashantbhai Premshankar Vyas & 2 ors RP No. 2179 of 2014 but the facts of the present complaint are not in conformity/identical with the facts of the case law cited (supra).

5                 This Forum find that there is no merit in the present complaint and same is hereby dismissed. However, the complainant has suppressed the material facts from this Forum as discussed above. So, the complainant is burdened with costs of Rs. 2000/- to be deposited by her in the Consumer Legal Aid Fund, Ambala and OP No.1 had also concealed the material facts and tried to over reach the Forum by concealment, although they are supposed to bring clear picture before this Forum for arriving at a right conclusion. So, this Forum also burdens the OP No. 1 with cost of Rs. 5000/- to be deposited in the Consumer Legal Aid Fund, Ambala. Both parties are directed to deposit the above said costs within thirty days after receiving the copy of the order. Copy of the order be sent to parties concerned as per rule. File be consigned to record room after due compliance. File after due compliance be consigned to record room.

Announced on :17.03.2017              

                                                                                  Sd/-

                                                                            (D.N. ARORA)

                                                                                       President

 

                    Sd/- 

     (PUSHPENDER KUMAR)

                                                                                       Member