Order-17.
Date-14/07/2015.
Complainant Shri Alok Kumar Sinha by filing this complaint submitted that op no.1 is a private limited company having its office at Sagar Estate, 8th Floor, 2 N.C. Dutta Sarani, Clive Ghat Street, Kolkata – 01 and op no.2 is the director of the op no. 1 and op no.3 is the authorized representative of op no.1.
Op no.1 through a popular website namely OLX.in advertised for sale of its vehicle namely Ford Fiesta SXi of diesel make manufactured of the year 2009 and the said advertisement was published in the said website on 01.07.2014 describing the sale price of the vehicle, colour of the vehicle, run of the vdhicle18000 Kms and in excellent condition and the selling price of the vehicle was fixed at Rs. 3,25,000/-.It also contained that the vehicle was manufactured by Ford (Europe) and that the car contained 4 doors, the condition of the car was New and having Metallic Cherry Red colour with ABS, i.e. Anti-lock Braking System, original company fitted two din Music System.
The advertisement as published in the said website contained a phone number and name of the person with whom any person intending to purchase the said vehicle will contact if he/she so desires.Based on the information and representation as published in the website of OLX.in, the complainant contacted the said person over phone namely Surendra Singhal whose phone number and name were printed and published in the website and complainant showed his intention and desired to purchase the said car.
The said person at his address as given in the cause title, showed the complainant the car namely Ford Fiesta 1.4 SXi having Registration No. WB 06B 7790 and the complainant being prima-facie satisfied with the condition of the said car as it appeared and accordingly entered into buyer/seller agreement with the op no.1 in whose name the car was registered through their authorized representative Surendra Singhal at the rate Subhas.
On execution of the said agreement, complainant duly paid Rs. 25,000/- in cash towards booking of the said car as advance and ops duly issued money receipt.But as per the agreement dated 02.07.2014 ops were supposed to hand over the said vehicle after it was serviced from authorized service station before delivery of the same to the complainant and the ops assured the complainant that when the agreement was entered upon, the car would be serviced from the authorized service station of Ford before the delivery of the same to the complainant.
Relying upon the ops on blind faith, complainant duly paid the balance sum amounting to Rs. 3,00,000/- by account payee cheques to the ops for purchasing the said vehicle and the ops both received and acknowledged the same by issuing money receipt on 10.07.2014.Before taking delivery of the said vehicle, complainant enquired whether the said car was serviced at the authorized service station or not, when ops said yes, but failed to show that it was actually serviced by any authorized service station before his delivery.So, they thereby committed serious breach and default as per the terms and conditions of the said agreement.Ops thereafter handed over the car along with its key and necessary documents related to the vehicle to the complainant on the same day along with its delivery note.
Finding no other alternative complainant took delivery of the said car from the ops but he was heavily displeased and dissatisfied about the conduct of the ops and the manner in which they violated the terms and conditions of the said agreement and at the time of taking delivery of the said car on 10.07.2014, complainant immediately took the car to the authorized service station situated in Chetla, Kolkata on 12.07.2014 to get the same service through their authorized service engineers.To his utter dismay complainant was informed by the service station that the said car which the complainant bought from the ops had several defects which needed certain urgent repairing/replacement to be done thoroughly and immediately more particularly the Remote System, Battery, Tyres and Dicky Latch in addition to the regular servicing of the car and to make the matters worse the complainant was informed by the service personal who inspected the vehicle in the service station and also as per the records of the said service station that the car’s odometer had been tampered with.
However as per previous service records of the same car maintained by the same service station, the car had already run more than 93,000 Kms. in the month of April 2014 when the said car was last serviced by the service station on 08.04.2014 and as a result, service inspector was forced to recommend the servicing of the said car as per servicing manual according to the running of 1,00,000 Kms.Furthermore, from the previous service records it showed that the original colour of the said car was Tourmaline Green and not Cherry Red as published in the said advertisement.The said advertisement concealed the reasons behind such change of colour, actual running and actual worthiness and condition of the said car.
Being shocked and dismayed complainant realized that he has been totally cheated by the ops and the advertisement published at OLX.in was all misguiding, false, untrue and fabricated one.Complainant having no other alternative have to service the said car on 12.07.2014 from the authorized service station after making additional payments which included a bill for Rs. 8,574/- on account of servicing the said car and Rs. 8,459/- on account of support and Road Side Assistance, totaling to Rs. 17,033/-.
Having been cheated complainant immediately and without any further delay returned the said vehicle to the ops on 13.07.2014 and ops took delivery of the said vehicle from the complainant by issuing delivery note and the ops refunded a sum of Rs. 2,75,000/- to the complainant out of Rs. 3,25,000/- to which the complainant had duly issued money receipt on 13.07.2014.Ops accepted back the said car on 13.07.2014 which was serviced on 12.07.2014 and in fact it was turned into better condition compared to that what the complainant had received it on 10.07.2014 and ops did not raise any dispute whatsoever while accepting back the said car on 13.07.2014 or at anytime thereafter.
Complainant submitted that ops have no authority to withhold complainant’s hard earned money and ops did not return a sum of Rs. 50,000/- which is a legitimate due of the complainant and the complainant also did not receive the sum of Rs. 17,033/- towards servicing the said car as per service paid chart.Complainant tried his level best to settle the dispute, but the ops not only avoided the complainant who went to the doors of op no.3 several times, but also denied the complainant’s dues at his face repeatedly which has caused mental torture and physical stress to the complainant.
In the premises the complainant was constrained to issue a demand letter asking the ops to pay a sum of Rs. 50,000/- which is due and payable by them and also asked them to pay additional expenses of Rs. 17,033/- incurred by him while servicing the said car along with interest and damages.But op nos. 1 & 2 received the said letter dated 28.07.2014on 05.08.2014 which will be evident from the track record duly downloaded from the official website of India Post and till date the ops had neither replied to the said letter nor denied the facts and contents as made in the said letter of demand or did not redress the grievance of the complainant and by such way ops by mis-representation and by giving false advertisement sold the same and even after receipt back of the said car after servicing, op has not paid the balance amount etc.
In the above circumstances, complainant has prayed for redressal and balance amount of Rs. 50,000/- and Rs. 17,033/- that is total Rs. 67,033/- for payment on the ground the complainant for service of the said car paid Rs. 17,033/- and also prayed for compensation.
On the other hand op nos. 1 & 2 by filing written statement jointly and op no.3 by filing written statement separately submitted that the present complaint is not maintainable in the eye of law and complainant has filed a false complaint by describing a false state of affairs of the fact and in fact suppressed the entire materials and truth and denied all allegations as made in the complaint.
It is specifically submitted that as per advertisement dated 27.06.2014, complainant on 28.06.2014 personally came to see and inspected the car i.e. Ford Fiesta 2009 1.4 SXi Diesel and after an inspection of the said car he went for a test drive of the said car.After being fully satisfied upon thorough inspection of the said car and on test drive complainant was totally satisfied about the overall condition of the said car and represented that he shall bring his own mechanic and friends on 30.06.2014 for checking the condition of the said car once again before taking final decision regarding the said car but ops denied other allegations about transaction etc. and written statement was submitted by the op nos. 1 & 2 only denying the complainant’s entire case.But no specific defence has been taken by the ops only but alleged that complaint is not maintainable this is the written version of op nos. 1 & 2.
Whereas op no.3 by filing written statement submitted that on 30.06.2014 complainant being accompanied by his friends once again thoroughly inspected the said car and went for a test drive and thereafter complainant and his friends were fully satisfied once again about the condition and state of affairs of the said car and accordingly he paid a token advance of Rs. 10,000/- in cash to the answering op no.3 and complainant once again represented that he shall bring his mechanic for inspection for thorough check up of the said car for further inspection.
Thereafter on 02.07.2014 complainant being accompanied by his mechanic came for further inspection and check up of the said car and the said car was once again thoroughly checked, verified and inspected by the complainant and his mechanic and after being fully satisfied about the condition of the said car complainant further paid a sum of Rs. 15,000/- in cash as advance and assured to pay the total sum of Rs. 3,25,000/- as full and final price for the said car and accordingly assured to pay the balance sum of Rs. 3,00,000/- on or before 04.07.2014 at the time of taking delivery of the said car.
During the course of such meeting it was categorically conveyed and communicated to the complainant that complainant is at liberty to check and inspect the said car including mileage, odometer and other aspects of the said car.But fact remains that op is not the original owner of the said car which was also disclosed to the complainant.Thereafter complainant after proper checking was satisfied and entered into an agreement on 02.07.2014 and accordingly made payment of Rs. 1,50,000/- by cheque as part payment and on all occasions complainant inspected and checked and verified by his mechanics and friends and the complainant entered into the agreement and purchased the car as per his own free will and no misrepresentation was made by ops.
Op no.3 in his written statement specifically stated that service of the said car should be done by authorized service centre before its delivery was committed as per the terms and condition of the said agreement but Op no.3 clearly expressed to the complainant that service of the said car in authorized service station of Ford could not be done as the op no.3 had some personal problems and it was further expressed to the complainant that if the complainant still wants to purchase the car he can purchase the car and if he is not willing to purchase, he may not purchase and payments made by the complainant will be returned to the complainant.The complainant accepted such offer of op no.3 and expressed his readiness and willingness to purchase the said car at the agreed price.
Complainant further expressed his readiness and willingness to get the said car serviced by himself.Therefore the terms of the said agreement was modified as per mutual consent regarding the service of the said car at an authorized service station of Ford prior to sale was modified mutually by the parties.It is further stated that it is conceivable, unbelievable and improbable that complainant would have made the balance payment of Rs. 1,50,000/- on 10.07.2014 while taking delivery of the said car on completion of all formalities unless the said agreement was modified mutually.Complainant has made false allegations.
It is fact that complainant took delivery of the said car on payment of balance amount even after knowing that the said car has not been serviced at the authorized service station of Ford demonstrates that both the parties mutually agreed to the fact that the op no.3 shall not carry out any service of the said car at the authorized service station of Ford before handing over the said car to the complainant.
Another fact is that after arrival of such decision to buy the said car the complainant shall have to purchase the car and take delivery and invariably he purchased the car after inspecting the same.It is specifically mentioned that op did not follow the terms and conditions of the agreement as the complainant assured the op no.3 that he shall take delivery of the said car by 04.07.2014 by making balance payment but the complainant himself could not take delivery of the said vehicle on 04.07.2014 and informed the same to the answering op no.3.So, answering op no.3 was not willing to sell the said vehicle to the complainant.But the complainant requested the answering op no.3 to sell the said vehicle to the complainant only and to such representation of the complainant, the answering op no.3 conveyed the complainant that the said vehicle cannot be serviced by the answering op no.3 at the authorized service station of Ford before selling the car to the complainant.
In fact there was no compulsion on the part of complainant to purchase the said vehicle.But the complainant himself after being totally satisfied with the condition of the said car after inspecting verifying and testing the same on numerous occasions as stated above by himself, his friends and mechanics purchased the same after making the payment as stated above.Save and except what are matters of record, op no.3 denied all other allegations as made by the complainant.
It is specifically mentioned that ultimately complainant on 13.07.2014 re-sold the said vehicle to the answering op no.3 and answering op no.3 is not aware about any dispute of the allegation that the said car was in a better position on 13.07.2014 than it was on 10.07.2014.Practically complainant re-sold the said vehicle to the answering op no.3 at a price of Rs. 2,75,000/- being the full and final price and after being satisfied with the said price.Complainant strongly insisted and almost forced the answering op no.3 at the time of said re-sale and further insisted that the entire money should be paid by cash and thus the same has been paid in cash to the complainant.Complainant fixed and accepted the said sum of Rs. 2,75,000/- as the re-sale price and issued a written declaration on 13.07.2014 at the time of re-sale of the said car that the complainant shall have no further right, claim, interest to demand over the said vehicle.Complainant has made the said illegal and illegitimate demand of Rs. 50,000/- and Rs. 17,033/- by way of afterthought with malafide intention.So, the complainant is not entitled to get any relief as prayed for and the entire complaint should be dismissed.
Decision with reasons
On proper consideration of the complaint and written version and also considering the entire materials on record and particularly the agreement made in between the parties, it is found that in the agreement it is specifically mentioned that it is 1 (one no.) used and old passenger car with civil registration, Model: Ford Fiesta SXi, Make-2009, Registration No. WB 06B 7790.But in the said agreement condition of the car, liabilities of the seller are specifically mentioned.But that agreement was executed by Surendra Singhal authorized person of owner Suresh Construction Pvt. Ltd. and the complainant.
Fact remains that in the said agreement particular of the car was noted and also quality of the car.But it is admitted by the op no.3 that there was a condition as per agreement before delivery of the car that it would be serviced by the service station.But admitted fact is that the said car was not serviced before delivery, it is admitted by the op no.3.The entire amount of Rs. 3,25,000/- was received from the complainant by the ops on proper receipt and delivery note was made that means the car was delivered on 10.07.2014.
Thereafter no doubt complainant placed the said car to authorized service station op no.4 on 12.07.2014 and it was detected that in the car there was so many defects and in fact it was not at all serviced by the op and further found from the service station, practically the car was completely changed and more than 93000 Kms ran, Odo meter was changed etc.In fact as per agreement if we rely upon the agreement, we find that no doubt op no.3 has admitted that fact.That service was not done.As per agreement it was the duty and responsibility of the seller to do that before delivery.Then it is clear that complainant was deceived as per agreement.At the same time it is proved that complainant serviced the said vehicle by spending Rs. 17,003/- and in support of that document has been proved and op has not denied all those documents and it is not denied.So, under any circumstances, complainant is entitled to get Rs. 17,033/- what he spent which ought to have been done by the ops so that amount can be refunded to the complainant by the op.But anyhow it is proved that complainant after servicing was dissatisfied and returned the said vehicle to the op no.3 who received back it.
Peculiar factor is that on 12.07.2013 complainant deposited the same and got return of Rs. 2,75,000/- by putting signature it in a receipt in support of receipt of the same.Most interesting factor is that the said car was not used by the complainant and he was dissatisfied on the ground that the condition of the vehicle was not as per advertisement so Surendra Singhal received back the said vehicle and complainant received Rs. 2,75,000/- out of Rs. 3,25,000/- and that money receipt was not in support of resale.Though ops have tried to say that complainant resold the car but that is not at all fact.But the said receipt in support of receiving the vehicle and payment on receipt of Rs. 2,75,000/- and when ops received back the said vehicle, there is no other alternative on the part of the ops but to refund the balance amount and also servicing charge.
So it is proved that ops paid Rs. 2,75,000/- and the balance of Rs. 50,000/- has not been paid by the ops and that money receipt dated 13.07.2014 does not support allegation of resale because document was in the name of the op, no document was transferred in the name of the complainant after delivery of the said vehicle on 10.07.2014 and complainant placed the same to service station to verify whether it was serviced by the op.But it was admitted that no service was done.So, no doubt op did not discharge their liability as per contract or agreement for which complainant after servicing the same returned the vehicle to the ops and ops received back but returned only Rs. 2,75,000/- but the balance amount of Rs. 50,000/- has not been returned even after receive back of the said vehicle.In fact sale of the car was not completed in the eye of law, only Rs. 3,25,000/- was paid by the complainant and the vehicle was delivered and the vehicle was not transferred in the name of the complainant and in the eye of law the vehicle shall be treated as final transfer when the RC Book would be transferred in the name of the purchaser.
But in this case that has not been done.Fact remains that as per advertisement and agreement, it is clear that many things were not ventilated about the condition of the car and approach of the consequent manufacturer of the car in the advertisement.We have checked that agreement and advertisement wherefrom we find that for selling a very damage car, op adopted different type of techniques in the advertisement to show it as brand new one, but practically old car was coloured and same manipulation was made in the Odo meter and thereby the advertisement was made and in this regard we are very much aware of the fact that mis-representation by the seller is subject matter to be decided by the Consumer Forum in respect of any item for which the advertisement was made and complainant was allowed and thereafter he inspected.But it is not possible for any person to search out what type of misleading act has been done by the seller but the misdeed was actually done which is proved from the report of the service station who serviced the same on payment of Rs. 17,315/-.
It is to be mentioned that from the receipt, it is clear that op no.3 entered into agreement with the complainant and received the entire amount on proper receipt on 10.07.2014 and said seller op no.3 received back the car on 13.07.2014 and in fact from 10.07.2014 to 13.07.2014 the car was in the service station for verification and for necessary repairment and that was done by complainant.It is also proved that prior to this that car was under service for four times service stations and from old document it is found that at that service station colour was changed, odo meter was changed.So, no doubt ops adopted unfair trade practice.Particularly Suresh with whom the agreement was entered into by the complainant also received back the said car on refunding back of Rs. 2,75,000/-.So, invariably ops are liable to pay the same that is balance amount of Rs. 50,000/-.
Most interesting factor is that op no.3 has tried to convince that complainant resold the same is completely false, fabricated and this Surendra Singhal is a well known car seller and he has cheated many public in such a manner and it is his business.But it must be kept in our mind that if there is any advertisement in respect of selling any article, even if it is old one, advertisement cannot be misleading advertisement.But in this case misleading advertisement was made by the ops and by adopting such procedure and by changing the colour and odo meter, it is no doubt an unfair trade practice was practiced by the ops.If any car is found old one, in that case there is no question of selling the same by re-modelling to visualize the actual position of the car to deceive purchaser.But only for the purpose of giving false state of affairs of vehicle to show as lime as new one, then it is misleading advertisement to allure the public to sell the damaged article by such trader and such a procedure was adopted which is no doubt unfair trade practice in the eye of law and in this regard the procedure as adopted by the op is no doubt unfair trade practice in respect of said trade, may be in respect of old one, but in respect of misleading advertisement, they are found adopted unfair trade practice for which complainant is entitled to get back that Rs. 50,000/- as the car has been received back within 3 days from the date of delivery and at the same time for repairing the car by the complainant within that period, op shall have to pay Rs. 17,033/- to the complainant because op did not make any service of the said car before delivery but op received back the vehicle.
So, the complainant is entitled to get back the entire amount as prayed for from the op and op shall have to pay back that amount when the car was received back by the ops.Fact remains that in this case complainant has been harassed in so many manners for such sort of unfair trade practice adopted by the present op no.3 and other ops.
In the result, the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against all the ops.
Op nos. 1, 2 & 3 are hereby jointly and severally directed to refund the amount of Rs. 50,000/- and returned of Rs. 17,033/- to the complainant along with litigation cost and it should be paid within one month from the date of this order along with compensation of Rs. 10,000/- to the complainant for causing mental pain and sufferings and also for deceiving the complainant in such a manner even after receipt of the price amount of the vehicle.
For adopting unfair trade practice and publishing mis-leading advertisement to the public at large for purchasing apparently looking a new car but old one by placing mis-leading advertisement no doubt ops have adopted an unfair trade practice for which ops are imposed penal damages of Rs. 30,000/- jointly and severally and they shall have to deposit it to this Forum within one month from the date of this order.
Ops are jointly and severally shall comply the order failing penal action shall be taken u/s 25/27 of C.P. Act 1986for which further penalty and fine shall be imposed.
