Punjab

Rupnagar

CC/14/26

Pardeep Gupta - Complainant(s)

Versus

Sood Motors - Opp.Party(s)

Sh. Manjeet singh Nagra, Adv

07 Jun 2016

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                                Consumer Complaint No: 26 of 18.02.2014

                                                Restored on                             : 04.02.2016

                                                Date of decision             : 07.06.2016

 

 

Pardeep Gupta, son of Sh. Barth Lal, resident of Village Morinda, Tehsil Chamkaur Sahib, District Ropar.

                                                                                      ……Complainant

1.       Sood Motors, Sugar Mill Road, Morinda, Tehsil Chamkaur Sahib, District Ropar through its proprietor.

2.       Hero MotoCorp. Ltd. (Fomerly Hero Honda Motors Ltd.), Corporate & Registered Office, Hero MotoCorp. Ltd, 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi-110057 through its M.D.

 

                                                                                      …..Opposite Parties

 

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

          QUORUM

                                                SMT. NEENA SANDHU, PRESIDENT

                                                SMT. SHAVINDER KAUR, MEMBER

 

          ARGUED BY

 

Sh. Manjeet Singh Nagra, Advocate, counsel for complainant

Sh. Gurpreet Singh, Advocate, counsel for Opposite Party No.1

Sh. Sumit Pasricha, Advocate, counsel for Opposite Party No.2

 

ORDER

                                                SMT. NEENA SANDHU PRESIDENT  

 

Sh. Pardeep Gupta, has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ only) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs.

i)       To deliver a new motorcycle to the complainant along with all the necessary documents,

ii)      To pay Rs.20,000/- as compensation for mental, physical and financial harassment caused to him,

iii)     To pay Rs.20,000/- as costs of litigation.

 

2.                                   In brief, the case of the complainant is that the O.P. No.2 is the registered and corporate office of Hero MotoCorp and O.P. No.1 is its dealership branch. He purchased a new CBZ Extreme Double Disc Motor cycle, Make Hero MotoCorp from O.P. No.1 on 05.11.2013. The said vehicle was financed by Sood Finance Company, Morinda. The total value of the said vehicle was fixed as Rs.75,000/-, including interest. A down payment of Rs.15,000/- was made by him on 05.11.2013, but no receipt for the same was issued by the O.P. No.1 and it was told to him that receipt and other bills would be given to him after getting the said vehicle registered by them with Registering Authority. The complainant fulfilled all the formalities as required by the O.P. No.1. He has paid two installments of loan amount, in the sum of Rs.4300/- and Rs.4200/-. Thereafter, he visited the O.P. No.1 for getting the bills and registration certificate of the said vehicle, but the officials of O.P. No.1 put off the matter on one pretext or the other. In the month of January, 2014, complainant met with one Mr. Vishal Khan, resident of Village Morinda, Tehsil Chamkaur Sahib, District Ropar, who told him that the said motor cycle was firstly purchased and used by him and the same is also registered in his name vide registration No. PB-12-T-2965. He was shocked to hear the said story and visited the office of O.P. No.1 and told its official about the said fact. The said official told him that they will look into the matter and asked him to visit after few days. Accordingly, he visited the O.P. No.1, after a week and requested him to give him new Motorcycle because he has made payment for a new Motorcycle, but the officials of O.P. No.1 abused him vehemently and hurled vilest abuses at him and told him that neither they will give him the new motorcycle nor the bills and R.C. of the said motorcycle. Moreover, they challenged him to do whatever he can. He is consumer qua the O.Ps. as per the definition of ‘consumer’ given in the Act and is competent to invoke the jurisdiction of this Forum. The above said act of the O.Ps. of not delivering a new motorcycle to him amounts to deficiency in service and adoption of unfair trade practice by them, due to which he has suffered mental, physical and financial harassment. Hence, this complaint.

3.                          The notice of the complaint was given to the O.P. No.1, but due to non appearance, it was proceeded against exparte vide order dated 26.03.2014

4.                          After hearing the arguments, the complaint was dismissed qua O.P. No.2, and the same was allowed against O.P. No.1 by this Forum vide its order dated 25.6.2014. However, on filing of appeal by the O.P. No.1, against the said order, the Hon’ble State Commission, vide order dated 18.01.2016 in FA No.1125 of 2014 has set aside the order passed by this Forum and remanded back the case with the directions to this Forum to give an opportunity to O.P. No.1 to file its written version, after affording opportunity to parties to lead their respective evidence, the complaint be decided on merits in accordance with law. The parties through their counsel were directed to appear before this Forum on 25.2.2016.    

5.                          In compliance of the order dated 18.01.2016 passed by the Hon’ble State Commission, the O.P. No.1 has appeared on 25.2.2016 and filed written version on 8.3.2016 in the shape of affidavit of Sh. Keshav Chander, taking preliminary objections that; the complainant has not approached the Hon’ble Forum with clean hands; that the complaint is not maintainable in the present form; that the complainant has no locus standi to file the complaint; that the intricate and contentious questions of fact and law are involved in the present complaint; that the complainant is guilty of suppressio veri and has concealed the material facts from this Hon’ble Forum; that the complaint is misconceived and frivolous and has been filed with ulterior motive to extract money from the answering O.P; that no cause of action has accrued in favour of the complainant against the answering O.P. On merits, it is stated that complainant had purchased Hero Super SPL Motorcycle bearing Engine No.15192, Chassie No.15230, from the answering O.P. He returned the same to it after driving about 500 Kms. He had purchased another motorcycle Hero CBZ bearing Engine No.09484, Chassie No.01370, which was having an odometer reading of 500 Kms from the answering O.P. At the time of purchase of the said motor cycle, answering O.P. had given a discount of Rs.4500 to him. Even the said motorcycle was returned by him and the answering O.P. had refunded the amount to the complainant on 4.1.2014. In this regard, compromise was scribed between the complainant and answering O.P. on 4.1.2014 itself. It is further stated that the said motorcycle was financed by M/s Sood Finance Company Morinda and it had submitted the bill to the said finance company as per guide lines of Punjab Government, the seller has to get the vehicle registered with the concerned registering authority as per the said guidelines, it is the duty of the answering O.P. to get the said motorcycle registered with the registering authority provided purchaser submits his residence proof with it. But inspite of repeated requests complainant had not submitted the required documents, affidavit and payment of road tax for registration of the motorcycle. It is pertinent to mention here that Rajesh Gupta son of Bharat Lal (Brother of the complainant) had purchased the motorcycle having registration No.PB-12-T-2965 on 30.10.2013. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof with costs.

 6.                         On being put to notice, the O.P. No.2 filed written statement taking preliminary objections; that the present complaint is abuse of process of law and is liable to be dismissed; that as per the case set up in complaint, the complainant has made sole allegations against the O.P. No.1; that as per the sale & invoicing records as maintained by the answering O.P, the motorcycle in question was sold by the answering O.P. being its manufacturer to Messers Ladian Motors, Village Kherabad, Bela Road, Ropar, Punjab on 17.3.2012, as is manifest from SAP Record of the answering O.P., and the same was not at all sold to O.P. No.1, as such, said Ladian Motors be made party to the complaint and in the absence thereof, the complaint is liable to be dismissed for non impleadment of necessary party; that in the complaint, it is nowhere mentioned that the motor cycle suffers from any manufacturing defect, in any manner, as such, on this ground too impleading of the answering O.P., being the manufacturer, is unnecessary and illegal; that the complainant is not consumer of the answering O.P.; that the present complaint does not lie against the answering O.P.; that none of the reliefs, as prayed for in the complaint, can be awarded to the complainant on account of strict interpretation of the Terms & Conditions of the Warranty issued by the O.P. No.2 and that the legal relationship is between the answering O.P. and M/s Ladian Motors on principal to principal basis only and the answering O.P. does not have any control or superintendence over the functioning of its dealer in any manner and is also not liable for any act/omission/misconduct of the dealer or the O.P. No.1 and in case, the present complaint succeeds, in that case, the order, if any, may only be passed against the O.P. No.1, and not against the answering O.P. because O.P. No.1 had received the entire sale consideration from the complainant on 5.11.2013, while making the sale of the motorcycle in question to him and that there is no deficiency in service or unfair trade practice on the part of the answering O.P. On merits, it is strongly denied that the O.P. No.1 is a dealer of or branch office of the answering O.P. It is submitted that the complainant has not filed any affidavit of the alleged earlier purchaser, namely, Sh. Vishal Khan, to whom the said motorcycle was allegedly sold by the O.P. No.1. It appears that the complainant has concocted a story because in para No.7 of the complaint, name of the earlier purchaser has been written as Vishal Khan, whereas in para No.8 of the complaint he is named as Vishal Kumar. It is further submitted that answering O.P. has no role to play/deliver the new motorcycle to the complainant at all, as the dispute is entirely between the complainant as well as O.P. No.1 only. As the answering O.P. was not even privy to the sale or any subsequent event between the complainant and the O.P. No,1, as such, there is no occasion for the complainant to suffer any mental, physical & financial harassment on any account of the conduct of the answering O.P.  Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof with costs.

 

7.                          On being called upon to so, on 29.3.2016, the complainant has tendered his affidavit Ex.C8 and suffered a statement that evidence tendered by him earlier in the complaint may kindly be read as part of my fresh evidence and closed the evidence. The learned counsel for the O.P. No. 1 has tendered photocopies of documents Ex.OP1/1 to Ex.OP1/3 and closed the evidence. The learned counsel for the O.P. No.2 has suffered a statement, to the effect that he does not want to file any document in evidence and the affidavit and documents filed earlier by him may be read as evidence on behalf of O.P. No.2 and closed the evidence.

8.                          We have learned counsel for the parties, and have gone through the file carefully including written arguments filed by the learned counsel for the O.P. No.1

At the outset the learned counsel for the O.P. No.1 has argued that initially complainant had purchased Hero Super SPL Motorcycle bearing Engine No.15192, Chassie No.15230 from it. But after driving for 500 Kms had returned the same and purchased motor cycle in question Hero CBZ bearing Engine No.09484, Chassie No.01370, which had already run for 500 Kms and the complainant even returned the said motorcycle. Accordingly, it refunded the amount to him on 4.1.2014 as is evident from the compromise deed dated 4.1.2014 Ex.OP1/1. No cause of action has arisen to the complainant to file this complaint and he has filed this complaint just to harass & extract the money from O.P. No.1, therefore, same be dismissed qua it with costs.

On 17.5.2016, the learned counsel for the complainant argued that the O.P. No.1 has wrongly alleged that the complainant had returned the motorcycle and it had refunded the amount to him on 4.1.2014. Complainant had never arrived at any compromise with the O.P. No.1. At the time of purchase of the said motorcycle the O.P. No.1 had taken his signatures on the blank paper and now has misused the same to fabricate the false evidence against the complainant. To this effect, the complainant has tendered his affidavit, Ex.C8. He further submitted that the said motorcycle is still with the complainant, therefore, he be allowed to produce the same before this Forum. The learned counsel for the O.Ps. No.1 & 2 have not raised any objection regarding production of the motorcycle before this Forum by the complainant. Accordingly, in the interest of justice, complainant was allowed to produce the motorcycle before this Forum on 24.5.2016. At the same time, the O.P. No.1 was also directed to produce the proof of the payment of refund of the amount on return of the motor cycle by the complainant on 4.1.2014, on the said date. On 24.5.2016, complainant produced a motorcycle before this Forum. As per the directions of this Forum Sh. Gurmanpreet Singh, Stenographer after checking the motorcycle in the presence of complainant, Proprietor of O.P. No.1  and its counsel Sh. Gurpreet Singh, Advocate. has uprised the bench that the plate fixed on the said motor cycle was without registration number and its Engine No is. KC12EDCGC09484 and Chassie No is.MBLKC12EECGC01370.

9.                           From the screen report of vehicle, Ex.C7, it is evident that Sh. Rajesh Gupta, is the owner of motorcycle having registration No.PB-12-T-2965, Engine No.KC12EDCGC09484, Chassie No.MBLKC12EECGC01370. Even from the perusal of certificate of registration, Ex.OP1/3, which is issued in favour of Rajesh Gupta, it is evident that the motorcycle is having the same engine and chassie number as mentioned on the screen report. Thus, from these two documents, it is established that Rajesh Gupta, is the owner of motorcycle having Engine No.KC12EDCGC09484, Chassie No.MBLKC12EECGC01370. When Rajesh Gupta, is the owner of the motor cycle having Engine No. KC12EDCGC09484, Chassie No.MBLKC12EECGC01370,  then how the motorcycle having the same engine number and chassie number is in the custody of complainant. Further from the perusal of affidavit of Rajesh Gupta, Ex.OP1/2, it is evident that Sh. Rajesh Gupta, has deposed that he had purchased motorcycle having registration No.PB-12-T-2965, Engine No.KC12EDCGC09484, Chassie No.MBLKC12EECGC01370 Model 2013 from Vishal Khan after payment of consideration amount. In the screen report of vehicle, Ex.C7, the owner name has been mentioned as Rajesh Gupta and the said motor cycle was manufactured in the year 2012 and Sh. Vishal Khan, was the previous owner from 18.11.2013 to 23.1.2014. The complainant in para No.3 of the complaint has averred that he purchased the new motorcycle from O.P. No.1 on 5.11.2013. In support of this averment, he has placed reliance on the delivery challan, Ex.C3 and Insurance Policy, Ex.C4. In the written version, the O.P. No.1 has denied the factum of purchase of new motor cycle by the complainant from it and has stated that it was a second hand motorcycle as it had already run for 500 Kms and further stated that Sh. Rajesh Gupta (Brother of the complainant) had purchased the motorcycle bearing registration No. PB-12-T-2965 on 30.12.2013. But had not disclosed this fact, as to when, it had purchased the said motorcycle and from whom, as if, it was the first owner of the said motorcycle, had it purchased from the dealer of the O.P. No.2 i.e. Ladian Motors or from someone else. Even it is also not disclosed that after return of the said motorcycle by the complainant, whether it sold to Vishal Khan.  No doubt the O.P. No.1 has placed on record the affidavit of Rajesh Gupta, Ex.OP1/2, who has deposed that he had purchased the motor cycle having registration No.PB-12-T-2965, Engine No. KC12EDCGC09484, Chassie No.MBLKC12EECGC01370 from Vishal Khan, but has not placed on record the affidavit of Vishal Khan to the effect that he had sold the motorcycle in question to Rajesh Gupta.  Further vide order dated 17.5.2016, the O.P. No.1 was ordered to produce on record the proof of payment of refund of the amount on return of the motorcycle by the complainant on 4.1.2014, but on 24.5.2016, Sh. Keshav Chander, Proprietor Sood Motors, Morinda, has shown his inability to produce any proof regarding refund of the amount to the complainant on 4.1.2014. From the facts referred above, it is clear that disputed, complicated and complex questions are involved in the present case and needs detailed investigation, which requires voluminous evidence including examination and cross examination of witnesses to adjudicate the matter. Since, the proceedings before this Forum are summary in nature, therefore, the present complaint against O.P. No.1 cannot be adjudicated by this Forum and ought to be decided by the competent court of civil jurisdiction, thus, the complaint filed against O.P. No.1 is liable to be dismissed being not maintainable before this Forum.  So far as the complaint filed against O.P. No.2 is concerned, from the very beginning, the stand of the O.P. No.2 is that it had sold the motorcycle in question to the M/s Ladian Motors on 17.3.2012, and it has nothing to do with O.P. No.1, therefore, it cannot be held liable for any wrong done by the O.P. No.1 to the complainant.  In support of this version that the O.P. No.2 had sold the motorcycle in question to the Ladian Motors has placed reliance on the copy of Fame Number Enquiry, Ex.OP2/2. From the perusal of said document, it is evident that on 17.3.2012, the O.P. No.2 had sold the motorcycle bearing engine No. KC12EDCGC09484, and chassie No. MBLKC12EECGC01370 to Ladian Motors  having dealer No.10760  vide invoice no.009254403. Thus, the contention of the complainant that the O.P. No.1 is the dealership branch of O.P. No.2 is baseless. Even no specific allegation leveled by the complainant against the O.P. No.2. In this view of the matter, the complaint filed against it is liable to be dismissed. 

10.                                 In view of the aforesaid discussion, we dismiss the complaint against the O.Ps. No.1 & 2. However, complainant is at liberty to persue his remedy against the O.Ps before the appropriate civil court, if he so desires and may seek condonation of delay, as per Section 24 of the Limitation Act, 1963, for the time spent before this Forum to persue this complaint.

11.                        The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file indexed & consigned to the Record Room.  

ANNOUNCED                                                     (NEENA SANDHU)

Dated: 07.06.2016                                                PRESIDENT

 

 

                                                          (SHAVINDER KAUR)

                                                                              MEMBER.