IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Wednesday the 23rd day of December, 2020
Filed on 03.11.2016
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma.BA, LLB(Member)
In
CC/No.354/2016
Between
Complainant:- Opposite parties:-
Sri.Rijesh.K.Samuel 1. Sri. Suman Varghese
Kanjiram Vilayil House Sales Executive
Pandithitta Ambalathilnirappu.P.O Concorde Motors (India) Ltd
Thavoor, Kollam-691508 10,256/C,Survey No.1562/1
(Adv. M. Venugopal) Nettor, Maradu Municipality
Cochin-682040
(Adv.P.Fazil)
2. Sri. Antony Jomesh
Concorde Motors (India) Ltd
10,256/C,Survey No.1562/1.
Netoor, Maradu Municipality
Cochin-682040
(Adv. Jayasree Manoj)
3. TML Business Services Ltd 10,256/C , Survey No.1562/1
Nettoor, Maradu, Cochin-682040 (Adv. Jithin Paul for 3rd Op)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act.1986
1. Material averments briefly stated are as follows:-
The opposite parties 1 and 2nd are the Sales Executive and Sales Manager of M/s Concord Motors India Ltd, Maradu, Cochin. The complaint relates to the promise breaking and thereby embezzling exorbitant amount of the complainant by the opposite parties. The 1st opposite party made the complaint book TATA model ZEST XMQJT 75PS, colour PRISTIN WHITE motor car on 30/6/2016 instead of XMS variant which was aimed by the complainant. Opposite parties dishonestly induced the complainant to book XM promising that the same is coming with ABS with EBD, Rear Fog lamp and Co-driver seat under storage drawer etc. The complainant, who is very much concerned about safety while driving believed the words of the 1st opposite party and thereby agreed to book the vehicle. Complainant was given brochure and catalogue by them. In pursuance of said booking vehicle was delivered on 14/7/2016 by Concord Motors, Mavelikara for Rs.8,00,249/-.
As the complainant felt technical snag while driving the vehicle, checked the same and abacked by the fact that vehicle lacks the promised ABS with EBD and CSC. The complainant approached 1st and 2nd opposite parties directly to get the issue resolved and sent e-mails several times. The company directed the 2nd party to resolve the issue on 25/8/2016 and that too was neglected. Though the complainant tried his level best to avoid the damages occurred the concerned authorities were not ready to redress his grievance. By reasons of the agreement, breach of the warranty and negligence from the side of the opposite parties the complainant had suffered loss and damages which he is assessing at Rs.4,00,000/-. Hence the complaint is filed for directing the opposite parties to refund amount paid, Rs.4,00,000/- for the damages for harassment, injury and mental agony and cost.
2. Opposite parties 1 and 2 filed a version mainly contenting as follows:-
M/s Concorde Motors India Ltd is a company duly incorporated under the provisions of the Companies Act,1956 and it is the authorized dealers of various types of vehicles manufactured by TATA motors ltd. The present complaint is an abuse of process of law and is not maintainable as the complainant has approached this Commission by suppressing material facts. The averments are vague, baseless and made with malafide intention. The allegation of deficiency are baseless and without supported by any documentary evidence. The allegation does not constitute a consumer dispute.
It is crystal clear that there was no manufacturing defect in the goods purchased by the complainant and there was no deficiency in service. Complainant intended to purchase vehicle model TATA TIAGO. However the waiting period for delivering the said car was 6 weeks and it was informed to the complainant. Thus the complainant enquired about the readily available vehicles and these opposite parties informed about TATA ZEST which was available with an offer of exchanging the old car. The complainant agreed to avail the offer and exchanged his old car and booked the vehicle TATA ZEST XMQJT 75 PS. It is denied that complainant had booked TATA ZEST-XMS model and the complainant be put to strict proof of the same. Under the said exchange offer the complainant was also given a discount of Rs.70,000/-. It is denied that the complainant was dishonestly induced to buy ZEST-XM model by these opposite parties. There was no promise that the vehicle comes with ABS with EBD, rear fog lamp, co-driver seat under storage drawer etc. The complainant was fully aware of the vehicle model and its features and upon being satisfied the complainant himself has purchased the said vehicle which was delivered to him on 14/7/2016.
After taking delivery of the vehicle on 14/7/2016 the complainant contacted this opposite party and complained about missing features and it was explained to him that it is not available to this model. However the complainant demanded replacement of vehicle which was denied by the manufacturer M/s TATA MOTORS Ltd. as the same was against the terms & conditions of warranty. There is no breach of warranty terms or negligence on the part of these opposite parties. The vehicle booked by the complainant was TATA ZEST-XM and upon being satisfied took delivery of said vehicle. There was no acts or omissions on the part of these opposite parties which can cause any deficiency in service. The claims made by the complainant are false, unsustainable and without any merits. Hence it is prayed that the complaint may be dismissed with cost.
Additional 3rd opposite party who was impleaded filed a memo adopting the contentions in the version filed by opposite parties 1 and 2.
3. On the above pleadings following points were raised for consideration:-
1. Whether there is deficiency of service on the part of opposite parties as alleged by the complainant?
2. Whether the complainant is entitled for refund of amount paid to the opposite parties for purchasing the vehicle?
3. Whether the complainant is entitled for an amount of Rs.4,00,000/- as compensation for harassment, injury and mental agony?
4. Reliefs and Cost?
Evidence in this case consists of the oral evidence of PW1 and 2 and Ext.A1 to A14 and MO1 from the side of the complainant. Ext.C1 commission report and C1 series photographs were marked through PW2. Opposite parties have not adduced any evidence either oral or documentary.
4. Point No.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A14 and MO1
PW2 was working as AMVI at Alappuzha. On 24/10/2018 he inspected the vehicle bearing Reg.No. KL.25-H-9717 TATA ZEST XM motor car and prepared Ext.C1 report and C1(a) photographs.
The case advanced by PW1, complainant is that he approached 3rd opposite party company M/s Concord Motors India Ltd who are the authorized dealers of M/s TATA Motors Ltd to purchase a vehicle. PW1 was very much concerned about the safety and comfort of the vehicle Opposite party No.1 who is the sales executive and opposite party No.2 who is the Sales Manager of 3rd opposite party company explained to him about the features of ZEST XM vehicle and accordingly believing their words he booked the vehicle on 30/6/2016 as per Ext.A3 commitment form. As per Ext.A5 sales certificate the vehicle was delivered to him on 14/7/2016. However while driving the vehicle he felt technical snag and on checking it was revealed that vehicle was not having ABS with EBD and CSC as promised by opposite party 1&2. On further checking it was revealed that the vehicle was not having rear fog lamp, adjustable head rest on the back side and co-driver seat storage drawer. Though he immediately contacted opposite parties 1 & 2 and several correspondence were made they were not ready to exchange the vehicle having the features. Though he made a complaint before the local police station his grievance was not redressed. Finally on 3/11/2016 he approached this Commission with this complaint. Opposite party 1 & 2 filed version mainly contenting that there was no such inducement or promise from their part. PW1 approached them for purchasing TATA Tiago vehicle. Since it was not readily available they introduced ZEST XM model which was immediately available for delivery and accordingly the same was booked by PW1 after knowing all its features. Later PW1 approached them to change the vehicle. Since it was against warranty conditions they were unable to do the same and finally he has filed this complaint with false allegations. The 3rd opposite party who was later impleaded filed a memo adopting the contentions taken by opposite parties 1 & 2. Complainant got examined as PW1 and Ext.A1 to A14 and MO1 was marked. The AMVI who inspected the vehicle was examined as PW2 and the commission report and photos were marked as Ext.C1 and Ext.C1(a) series respectively. Opposite parties have not adduced any evidence either oral or documentary.
In the complaint PW1 has got an allegation that opposite parties 1 & 2 dishonestly induced the complainant to book XM model promising that the same is coming with ABS with EBD and CSC, rear fog lamp, co –driver seat under storage drawer etc. In para-2 of the complaint it is stated that complainant was given brochure and catalog by opposite parties 1 & 2. PW1 reiterated the allegations in his chief affidavit. Though Ext.A1 to Ext.A14 were marked from the side of PW1 the most important document which is the brochure and catalog alleged to have handed over to PW1 at the time of booking is not seen produced for the best reason known to him. This attains significance since in the version and during cross examination opposite parties have taken a contention that at the time of booking and at the time of delivery of the vehicle ZEST XM model was not having the said additional features narrated by complainant. So the non production of said vital document is fatal to the complainant’s case. The fact that PW1 booked ZEST XM model is not in dispute since it is proved by Ext.A1 certificate of registration, Ext.A3 commitment form, Ext.A4 Proforma invoice, Ext.A5 sales certificate, Ext.A6 Tax invoice, Ext.A7 debit note, Ext.A8 vehicle delivery acknowledgment note, Ext.A9 Insurance policy and Ext.A11 letter. In all these documents produced by PW1 the model is mentioned as TATA ZEST XM. Now the question to be considered is whether TATA ZEST XM model was having the features as narrated in para-4 of the complaint. As per the request of PW1, PW2 AMVI attached to the RTOffice, Alappuzha inspected the vehicle on 24/10/2018 and prepared Ext.C1 report and Ext.C1(a) photo graphs. From the oral evidence of PW2 coupled with C1 report it can be seen that the features such as ABS with EBD and CSC, co-driver seat under storage drawer, rear fog lamp and adjustable rear head rest are not available with the vehicle. At the time of inspection a brochure containing the features of various ZEST models were handed over to PW2 by the complainant. It is true that in the said brochure it is shown that these features are available with XM model but on a perusal of said brochure it is seen that it does not contain the dealer stamp. It is not known from where PW1 obtained the said brochure. It is to be remembered that PW1 booked the vehicle on 30/6/2016 and vehicle was delivered on 14/7/2016. PW2 inspected the vehicle on 24/10/2018 ie, after about 2 years of delivery of the vehicle. As rightly pointed out by the learned counsel appearing for the opposite parties features of the vehicles will change without any prior notice and it is a prerogative of the manufacturer. As stated earlier though PW1 has got a case that at the time of booking he was given a brochure and catalog it is not seen produced. The brochure which was handed over to PW2 does not contain any date and the dealer stamp. Since the vehicle was inspected on 24/10/2018 the manufacturing company might have introduced these features on a later date. This attains significance since the brochure handed over to PW2 by PW1 is not having a date. So it is not known when the features were introduced in the vehicle.
PW1 has produced MO1 pen drive and contented that it contains a conversation between himself and opposite party regarding the deficiency of service. It was played before the commission in a laptop. It do contained a conversation between PW1 and another but it is not known as to with whom PW1is doing the conversation. While giving evidence PW1 stated that he recorded the conversation in his mobile phone and later transferred to the same into his computer, tab and thereafter to the pen drive. PW1 also admitted that the name of the other party is not mentioned in the conversation. Certificate u/s 65B of the Indian Evidence Act with respect MO1 is not seen produced. Further it is to be noted that in the complaint the recording of conversation in MO1 is conspicuously absent. PW1 filed chief affidavit on 2/3/2017 and was cross examined on 15/9/2020. In the said chief affidavit existence of MO1 is not mentioned. Later on 23/10/2020 an additional chief affidavit was filed after the production of MO1. As per order in IA.No.188/2020 PW1 was recalled and MO1 was marked in evidence. So it can be seen that MO1 was introduced only on a later stage that also after his cross examination for the 1st time. It is pertinent to note that existence of MO1 is not mentioned in the complaint. In other words it was produced all of a sudden without pleadings in the complaint. As held by the Hon’ble Supreme Court in 1958 KLT 721[Moran Mar Baselios Catholicos Vs. T. P Avira and others]. (CPC.1908, Order -6 Rule -7 Pleadings- Parties cannot go outside the pleading and set up a new case.)
The same was reiterated by the Hon’ble High Court in 1984 KLT 606 [Elizabeth Vs. Saramma]
“ The Sole object of the pleadings is that each side may be fully alive to the questions that are about to be argued in order that they may have an opportunity to bringing forward such evidence as may be appropriate. The importance of the pleadings cannot of course be ignored, because it is the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing the issues would be defeated if parties are allowed to travel beyond the issues and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. Still cases may occur where a particular plea is not specifically included in the issues, and parties might know that in substance the said plea is being tried and might lead evidence about it. It is only in such a case where the Court is satisfied that the ground on which reliance is placed by one or the other of the parties, was substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial that the formal requirement of pleadings can be relaxed. No evidence can be looked into by the Court for which there is no foundation in the pleadings.”
As discussed earlier according to PW1 the vehicle was not having rear fog lamp also. It is to be noted that rear fog lamp is a feature which is fitted outside and even with a naked eye it is visible. Admittedly PW1 was using an Indica vehicle and as per Ext.A2 delivery receipt it was exchanged to the opposite parties. So missing of rear fog lamp can be ascertained at the time of delivery itself and PW1 had no complaints at the time of delivery. So as rightly pointed out by the learned counsel appearing for the opposite parties filing of the complaint is an afterthought.
There is yet another hurdle in this case. In para-4 of the complaint there is an allegation that opposite parties dishonestly induced the complainant to book XM promising that the same is coming with ABS with EBD, rear fog lamp, co-driver seat under storage drawer etc. In para-5 it is stated that the complainant was given brochure and catalog by the said party. However the vehicle delivered was not having the said features as promised by the opposite parties. The same allegation was reiterated in the proof affidavit. If that is so the nutshell of the allegation in the complaint is that he was cheated by the opposite parties by delivering a vehicle which was not having features as promised by them at the time of booking the vehicle. From Ext.A13 acknowledgment receipt of petition filed before the Kunnikode Police Station it is seen that allegations was that M/s Concord Motors Company cheated the petitioner. As per the settled position if there are allegations of forgery, fraud and cheating the District Consumer Fora cannot entertain such complaint.
“ In Bright Transport Company Vs. Sangli Sahakari Bank Ltd. II(2012)CPJ 151 (NC), it was held by the National Commission that the complaints which are based on the allegations of fraud, forgery etc. and trial of which would require the leading of voluminous evidence and consideration thereof cannot be entertained by the Consumer Fora. In Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(2) CPC 668(SC), decided by the Hon’ble Apex Court; Reliance Industries Ltd. Vs. United India Insurance Co. Ltd., I (1998) CPJ 13, a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and M/s Singhal Swaroop Ispat Ltd. Vs. United Commercial Bank III(1992) CPJ 50, a case decided by a three member Bench of the National Consumer Disputes Redressal Commission, New Delhi it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence the same cannot be decided by a Consumer For a, proceedings before which, are summary in nature.”
Hence to sum up it can be seen that though PW1 has got a case that at the time of booking the vehicle he was given a brochure and catalogue showing the features for the XM model it is not seen produced and marked as evidence in this case. Only if that document is produced it can be seen that at the time of booking the vehicle ie, during 2016 XM model had such features. Per contra the brochure handed over to PW2 was on 24/10/2018. Of course it contains certain features as contended by complainant. But it is not known as to when such features were introduced in the XM model. In other words it is not known whether such features were available during 2016 when PW1 booked the car. Though PW1 stated that MO1 was available with him at the time of filing the complaint it is not seen produced along with the complaint and the existence of such evidence is not seen mentioned in the complaint. Evidence was adduced and MO1 was marked without even mentioning about the same in the complaint. It is to be noted that MO1 was introduced by an additional chief affidavit. As per the settled law since cheating is alleged it cannot be considered by a District Commission since elaborate evidence is required whereas here only summary procedure is prescribed. In the circumstances assessing the evidence as a whole it can be safely concluded that the complaint has no legs to stand and so it is only to be dismissed. These points are found against the complainant.
5. Point No.4:-
In the result complaint is dismissed with cost of Rs.3000/- to the opposite parties.
MO1 will be returned to PW1 after appeal period.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 23rd day of December, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Rijesh.K.Samuel(Complainant)
PW2 - Sunil.S(Witness)
Ext.A1 - Certificate of Registration.
Ext.A2 - Delivery Receipt.
Ext.A3 - COMMITMENT FORM
Ext.A4 - Proforma Invoice.
Ext.A5 - Sale certificate
Ext.A6 - Tax Invoice
Ext.A7 - Debit note
Ext.A8 - Vehicle Delivery Acknowledgment Note
Ext.A9 - Insurance Policy Certificate
Ext.A10 - Tax Receipt
Ext.A11 - Letter dtd.13/7/2016
Ext.A12 - Copy of G-mails.
Ext.A13 - Acknowledgment Receipt of Petition.
Ext.A14 - Certificate of testimony
MO1 (Subject to Proof) - Pendrive
Ext.C1 - Commission Report.
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
