BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.            

                                                          Consumer Complaint no. 71 of 2016                                                                           

                                                            Date of Institution         :    8.3.2016

                                                          Date of Decision   :    5.9.2017.

Pardeep Kumar aged about 33 years son of Shri Ajit Singh, resident of H.No. 1623 Gali No.5, Dev Nagar Bahadurgarh, now resident of Ward No.5, Ashok Nagar, Fatehabad.

                      ……Complainant.

                             Versus.

1. Sardar Automobiles authorized dealer, For Force Motors Ltd. Hisar Road, Near Bajekan Mour, Sirsa through its Proprietor.

2. Force Motors Ltd. manufacturer of traveler Luxury vehicles, Corporate Office, Mumbai-Pune Road, Akurdi, Pune- 411035, (Maharashtra) through its Managing Director/ Director.

                                                                     ...…Opposite parties.

            Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SH. R.L.AHUJA…………………………PRESIDENT

SMT. RAJNI GOYAT ………………… MEMBER

          SH. MOHINDER PAUL RATHEE …… MEMBER.   

Present:       Sh. M.S. Gill,  Advocate for the complainant.

                   Sh. R.K. Garg, Advocate for opposite parties.

ORDER

                   The case of the complainant in brief is that in the month of October, 2015 the complainant approached the opposite party no.1 and put his desire to purchase a brand new Traveler luxury vehicle manufactured by op no.2 and on the desire of the complainant, the op no.1 had shown him one white colour traveler luxury vehicle which was previously sold to some other person saying that this brand has a good market and resale value. The op no.1 further asked the complainant if he wants to purchase this brand / model of traveler luxury vehicle, he has to book it first and later on this vehicle would be delivered to him in the first week of November, 2015. The complainant wanted to purchase the above mentioned vehicle due to the reasons firstly he had to purchase the said vehicle before the festival of Diwali, secondly he was in need of the said vehicle and thirdly being impressed with the demand, market and sale value of the said vehicle as assured by op no.1, therefore he got it booked. It is further averred that complainant purchased the said vehicle by way of finance through Shri Ram Transport Finance Company at the rate of Rs.10,50,000/- vide bill No.652 dated 2.11.2015 bearing temporary registration No. HR-99XK-TEMP-8369. The op no.1 had also issued other connected documents and papers in the name of complainant. The complainant took the vehicle to Bahadurgarh and kept on using the same as per his need. It is further averred that on 7.11.2015 the complainant got washed the said vehicle from one service station at Bahadurgarh and at the time of washing, it was brought to the knowledge of the complainant by the washer man that it is an accidentally damaged and coloured vehicle. On coming to know about this, the complainant got inspected the said vehicle from the private expert mechanic and this fact was clarified by him that op no.1 cheated the complainant by delivering him the accidental repaired and coloured vehicle instead of fresh one at the cost of brand new vehicle. It is further averred that thereafter on 8.11.2015, the complainant approached the op no.1 and questioned for selling him the accidentally damaged, repaired and coloured vehicle on which after making inspection of the vehicle he admitted that the vehicle is accidentally damaged, repaired and coloured and stated the same has been sold mistakenly. The op no.1 further requested the complainant to come after the eve of Diwali and promised that the vehicle of the complainant shall be replaced with fresh piece. That thereafter the complainant was called at Sirsa on 14.11.2015 by op no. 1 and got inspected the said vehicle from expert of op no.1 technical hand and on inspection the same was found accidentally, repaired damaged and coloured vehicle. On the same day, an email was sent to op no.2 being the manufacturer of vehicle and on 17.11.2015 the engineer, sales manager and area manager of the company sent by op no.2 inspected the vehicle and they have also admitted that vehicle is accidentally damaged, repaired and coloured one. It was also promised by them that the vehicle of the complainant shall be replaced soon. It is further averred that since then the complainant has been making rounds and rounds to the ops and making requests either to replace the said vehicle with fresh one or to refund the sale price of the said vehicle to him but they are kept on postponing the matter on one false pretext or the other and now about few days ago the ops have flatly refused to do so. That complainant thereafter sent a registered legal notice to the ops but to no effect. That from the facts and circumstances of the case, it is clear that at the time of sale of the said vehicle it was well within knowledge of ops that the vehicle is accidentally damaged, repaired and coloured one. Moreover, the ops were having numerous other pieces as well but they in collusion with each other knowingly, intentionally, deliberately and with a malafide intention to cheat the complainant and in order to cause wrongful loss to him and to take wrongful benefit sold the said vehicle to him. In this manner, both the ops committed fraud upon him and the complainant reserves his right to sue both of them criminally as well. That such act and conduct on the part of ops clearly amounts to deficiency in service, gross negligence and unfair trade practice which resulted into unnecessary harassment and hardship etc. to the complainant. Hence, this complaint.

2.                On notice, opposite parties appeared and filed joint written statement taking certain preliminary objections regarding maintainability; cause of action; estoppal and suppression of material facts etc. It is submitted that complainant had purchased a new vehicle traveler luxury from op no.1 in the first week of November, 2015 which is manufactured by op no.2 and the said vehicle was not sold to any one previously. The vehicle was delivered vide delivery challan No.48 dated 2.11.2015 and this vehicle was duly hypothecated with Sri Ram Transport Finance Company Limited and the payment was received by op no.1 on 17.11.2015 through cheque and the vehicle in question was delivered to the complainant on 2.11.2015 and there was no manufacturing defect in the said vehicle at the time of purchase of the vehicle by the complainant from op no.1. The complainant had purchased the vehicle after verifying all the facts regarding this vehicle and before purchase of the vehicle the complainant was fully satisfied regarding this vehicle and he found the vehicle as OK one. The payment of the vehicle was received by op no.1 on 17.11.2015 and if there was any such defect in the said vehicle on 7.11.2015 as per version of complainant, the complainant could have stopped the payment. Remaining contents of complaint have also been denied.  

3.                The complainant produced his affidavit Ex.CW1/A, affidavit of Parveen Kumar Ex.CW2/A, copy of legal notice Ex.C1, postal receipt Ex.C2, copy of invoice Ex.C3, copy of form No.21 Ex.C4,  copy of form 22 Ex.C5, copy of temporary certificate of registration Ex.C6, copy of delivery challan Ex.C7, copy of insurance cover note Ex.C8, copy of product complaint report Ex.C9, copies of photographs Ex.C10, copy of adhar card Ex.C11, copy of PAN card Ex.C12, copy of ration card Ex.C13 and CD Ex.C14. On the other hand, ops produced affidavit of Sh. Kulbir Singh, Proprietor of op no.1.

4.                We have heard learned counsel for the parties and have perused the case file carefully.

5.                Learned counsel for the complainant has contended that it is proved case of the complainant that complainant has purchased a new traveler luxury vehicle from opposite party no.1 for a valid consideration of Rs.10,50,000/- on 2.11.2015. On 7.11.2015 when he went to service centre for washing of the vehicle, it was brought to the knowledge of the complainant that it is an accidental damaged, repaired and coloured vehicle. In this way he lodged claim with op no.1 on 8.11.2015 and questioned for selling accidental damaged, repaired and coloured vehicle, but, however, the ops did not give any heed to the repeated requests of the complainant which clearly amounts to unfair trade practice on the part of ops who sold the accidental vehicle to the complainant after charging full consideration of the new vehicle.

6.                On the other hand, learned counsel for ops has strongly contended that admittedly vehicle was purchased on 2.11.2015 and as per allegations of the complainant he got his vehicle washed on 7.11.2015 and thereafter he lodged claim to the ops. It is proved fact on record that payment of this vehicle was received by op no.1 on 17.11.2015 through cheque from Shri Ram Transport finance company from whom the complainant got his vehicle financed. In fact in case there was any defect in the vehicle or vehicle was a repaired accidental vehicle, the complainant could get the payment stopped from his financer meaning thereby that vehicle was new one and complainant had taken the delivery of the vehicle after being fully satisfied. All these allegations are false and frivolous. The vehicle might have been accidental thereafter.

7.                   We have considered the rival contentions of the parties. The perusal of the record reveal that the complainant has furnished his affidavit Ex.CW1/A in support of his complaint and he has reiterated contents of the complaint. He has further relied upon affidavit of his brother Parveen Kumar as Ex.CW2/A in which he has also supported the version of the complainant. In support of his claim, the complainant has relied upon Ex.C1 copy of legal notice in which all the averments of the complaint were mentioned. The complainant has further placed on record Ex.C3 copy of bill, copy of form No.21 Ex.C4, copy of form No.22 Ex.C5 and copy of temporary certificate of registration as Ex.C6. The material document between the parties which settle issue between parties is Ex.C9 which reveal that a report was made to Senior Divisional Manager Service, FML, Pune and it was reported that the “pathetic quality control/ Axel inspection during & after vehicle assembling not proper done.” and Ex.C10 are six photographs meaning thereby that op no.1 had made this report after inspection of the vehicle by their technical expert in their service centre. The complainant has also placed on record Ex.C14 a C.D. in which complainant has alleged to have recorded the conversations of the parties/ representative of the parties.

8.                On the other hand, Kulbir Singh, Proprietor of op no.1 has furnished his affidavit Ex.RW1/A in which he has reiterated the contents of his written statement. The perusal of this affidavit reveal that the op no.1 has deposed that vehicle was taken on 2.11.2015 and payment of vehicle was received by op no.1 on 17.11.2015 and if had there been any defect in the vehicle, the complainant had enough time to raise a protest qua the alleged defects in the vehicle and could get the payment stopped from financer which was made on 17.11.2015 after the alleged date of washing of the vehicle on 7.11.2015. No doubt there is lapse on the part of complainant who was not aware of the things regarding moving an application before this Forum for the appointment of a technical expert in order to get vehicle inspected and verify qua the condition of the vehicle and in order to ascertain fact whether the vehicle is accidentally damaged vehicle and has been got repaired prior to the delivery made to the complainant. Nor the complainant has placed on record any other opinion of the expert qua the aforesaid fact meaning thereby the complainant does not appear to be entitled for replacement of the vehicle. Moreover, the complainant is running the vehicle from the day of its purchase. Now at this stage the prayer of the complainant for the replacement of the vehicle definitely appears to be devoid of any merit. However, since it is an admitted fact between the parties that vehicle is under period of warranty, it is legal obligation of the opposite parties to carry out necessary repairs and to make the vehicle complaint and defect free and roadworthy.

9.                In view of our above discussion, we allow this complaint and direct the opposite parties to carry out necessary repairs of the vehicle of complainant within a week from the date when vehicle is produced by complainant to op no.1 for its repair even by replacing any part of the vehicle or denting painting the part or whole vehicle afresh which is required without any cost. The opposite parties are further directed to pay Rs.20,000/- as compensation to the complainant for harassment and further to pay a sum of Rs.5000/- as litigation expenses to the complainant. This order should be complied by both the ops jointly and severally within a period of 30 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum on the amount of Rs.20,000/- from the date of filing of present complaint till actual payment. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.   

Announced in open Forum.                                 President,

Dated:5.9.2017.                                                    District Consumer Disputes

                                                                            Redressal Forum, Sirsa.

                   Member                Member