KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.141/2017

JUDGEMENT DATED: 04.06.2024

(Against the Order in C.C.No.299/2012 of CDRC, Malappuram)

PRESENT:

APPELLANTS:

(by Adv. R. Chandrapraveen)

Vs.

RESPONDENT:

(by Adv. Sreevaraham N.G. Mahesh)

JUDGEMENT

SRI. AJITH KUMAR  D. : JUDICIAL MEMBER

          This is an appeal filed by the opposite parties in C.C.No.299/2012 on the file of the Consumer Disputes Redressal Commission, Malappuram (the District Commission for short).

2.       On 26.09.2016 the District Commission has allowed the complaint and directed the appellants to pay the complainant a sum of Rs.62,000/-(Rupees Sixty Two Thousand only) as the price of the bike, to pay Rs.2,00,000/-(Rupees Two Lakhs only) as compensation and Rs.3,000/-(Rupees Three Thousand only) as costs.  A default clause was also incorporated to pay interest @12% per annum in the event of non compliance of the order within thirty days from the date of receipt of the copy of the order.  Being aggrieved by the aforesaid order, the appeal has been filed.

          3.       The case of the complainant in brief is that on 21.07.2012 he had purchased a Twister Bike from the 1^st opposite party by exchanging his old bike.  The complainant had responded to an advertisement published by the opposite parties with regard to the exchange of old motor bike for the purchase of new one.  The amount fixed for the bike supplied by the 1^st opposite party was Rs.62,000/-(Rupees Sixty Two Thousand only).  When the vehicle was delivered, the complainant could notice scratches on the petrol tank, rusting on the saree guard and also wear and tear to the tyres suggestive of a long term use.  The complainant had declined to take the delivery of the vehicle and he was constrained to take delivery of the vehicle as there was nobody in the show room and the security staff attached to the 1^st opposite party had insisted to take the delivery.  When the complainant rode the vehicle, he had also noticed slipping of gear and an unusual sound from the engine.  On the next day he took the vehicle to the 1^st opposite party and convinced the 1^st opposite party that the vehicle delivered was defective.  The 1^st opposite party assured that the entire problem could be resolved after the first service of the vehicle and if the problem persists, it could be cured by replacing the necessary parts.

          4.       The first servicing was one on 04.08.2012.  But the defects could not be cured and he was assured by the 1^st opposite party that the vehicle could be replaced.  The complainant had contacted the Head Office of the 1^st opposite party and took the vehicle to the show room of the 1^st opposite party at Perinthalmanna.  The Service Manager of the 1^st opposite party gave directions to cure all the defects and to apply Teflon coating over the body.  The vehicle was entrusted with the 1^st opposite party and they gave the complainant another bike for his personal use. 

5.       On 22.09.2012 the complainant was informed that all the defects were cured and when the vehicle was ridden by the Service Manager along with the complainant gear slipping and unusual sound from the engine persisted.  The Service Manager told the complainant that he will report the matter to the manufacturer.

6.       Later, the complainant came to know that the vehicle delivered to him was a demo vehicle which was registered on 13.02.2012 in favour of Calicut Aditya Honda at the RTO, Kozhikode.  The complainant had sent a lawyer notice to the 2^nd opposite party.  The opposite parties had cheated the complainant by delivering an old bike which was used by the opposite party as a demo vehicle.  The act of the opposite parties had caused severe mental agony and hardship to the complainant.  Hence, the complainant would seek for a direction to the opposite parties to return Rs.62,000/-(Rupees Sixty Two Thousand only) being the price of the vehicle along with compensation of Rs.2,00,000/-(Rupees Two Lakhs only) and costs of Rs.3,000/-(Rupees Three Thousand only).

7.       The 1^st opposite party had entered appearance and filed version with the following contentions:

The purchase of the motor bike by the complainant was admitted.  According to the 1^st opposite party, the vehicle was a new one.  The complainant came to the 1^st opposite party on several occasions and all the defects were cured by the 1^st opposite party.  On account of the intervention of an Advocate the dispute was resolved and the vehicle was repaired by the 1^st opposite party.  There was no deficiency in service on the part of the 1^st opposite party.  The allegation that the vehicle supplied was a demo vehicle is denied.  The 1^st opposite party would seek for the dismissal of the complaint.

8.       No version was filed by the 2^nd opposite party.

9.       Complainant and the 1^st opposite party had filed affidavits in lieu of chief examination.  Exhibits A1 to A7 were marked on the side of the complainant.  The commissioner was examined as CW1.  Exhibit C1 was also marked.

10.     The appellant would assail the order of the District Commission on the following grounds:

The District Commission has failed to consider the evidence in its correct perspective.  The compensation awarded is excessive which is three times higher than that of the actual price of the vehicle.  The District Commission ought to have found that the vehicle delivered to the complainant was a new one and no person of ordinary prudence would take delivery of an old vehicle, if any indications of previous use were noticed.  The District Commission ought to have found that the complainant was fully satisfied with the quality of the bike after the first service on 04.08.2012.  The District Commission ought to have found that the 1^st opposite party had attended all the repair works as sought for by the complainant.  they would seek for setting aside the order passed by the District Commission.

11.     Heard the counsel for both sides.  We have carefully examined the records received from the District Commission.

12.     The complainant had sworn an affidavit in tune with the averments contained in the complaint.  Exhibit A1 is the copy of the certificate of registration which would show that on 21.07.2012 the vehicle was delivered to the complainant.  Exhibit A2 is the copy of the invoice pertaining to the motor bike purchased by the complainant.  Exhibit A3 is the invoice dated 04.08.2012 with regard to the payment made by the complainant towards the service charges.  On 25.09.2012 the complainant had caused issuance of a registered notice to the opposite party alleging deficiency in service and unfair trade practice.  Exhibit A5 is the reply sent by the 1^st opposite party to Exhibit A4.  The complainant could see a document in the first aid box of the motor bike which shows that this bike was registered earlier with the RTO, Kozhikode on 13.02.2012 as a demo vehicle.  The document is the trade certificate issued by the registering authority.  The chasis number and the engine number seen in the trade certificate are the same as that of the motor bike delivered to the complainant.  The above document is Exhibit A6.  Exhibit A7 is the copy of the lawyer notice.

13.     The specific case of the complainant was that on the date of delivery itself he could notice scratch marks, wear and tear on the tyres and rusting on the saree guard and he was not ready to take the delivery of the vehicle due to the aforesaid reasons.  But he was constrained to take the delivery on account of the compulsion of the security staff as there was nobody in the service station at that point of time.

14. The vehicle was inspected by an expert who was examinedCW1.  Exhibit C1 is the report submitted by the expert.  The expert had also noticed that this vehicle was used as a demo vehicle which was earlier registered in the name of Adithya Honda at the Registering Authority Kozhikode.  The evidence let in by the expert was assailed on the reason that the expert had opined that this vehicle was earlier registered with the registering authority Kozhikode only on the basis of Exhibit A6 and hence the observation made by the expert in Exhibit C1 may not be accepted as true and correct. The conduct of the opposite party in not causing production of the document pertaining to the registration of the vehicle despite a specific order passed by the District Commission on 27.09.2013 on a petition filed by the complainant as I.A.No.220/2013 assumes significance.  The complainant had filed the I.A. for directing the opposite party to cause production of the records regarding the registration of this particular motor bike.  Though a specific direction was issued by the District Commission, the opposite party did not cause production of the records evidencing the registration of the motor bike.  Adverse inference has to be drawn against the opposite parties that they did not cause production of those documents as those documents would prove the falsity of the case set up by the opposite party.

15.     The evidence let in by the complainant by way of affidavit in lieu of chief examination stands unchallenged.  Exhibit A6 was marked without any objection on the side of the opposite parties.  If the stand taken by the opposite party is genuine, objection could have been raised when Exhibit A6 was admitted in evidence.  There is no case for the opposite party that Exhibit A6 is a concocted document.  The evidence of the complainant in this regard appears to be natural and genuine.  As per Exhibit A6 it could be seen that the instant vehicle was registered with the registering authority Kozhikode on 13.02.2022 in the name of one Faheed as the holder of the trade certificate.  So it is crystal clear that this vehicle was used as a demo vehicle from 13.02.2012 onwards.  The earlier registration was done in the name of Aditya Honda, Kozhikode.  By suppressing this fact, the used vehicle was delivered to the complainant. 

16.     Apart from unfair trade practice a criminal offence also could be attributed against the opposite parties.  The desire of the complainant was to purchase a new vehicle by replacing his used one and the poor complainant was entrusted with a used vehicle by suppressing these facts.  The vehicle was delivered to the complainant on 21.07.2012.  But Exhibit A6 would show that this particular vehicle was used as a demo vehicle from 13.02.2012 onwards.  The defects noticed by the complainant on the date of delivery of the vehicle would probabilise that the vehicle was an old one.  Delivering an old vehicle in the pretext as a new one is a dishonest act.  When a new vehicle was booked and the entire consideration was paid, a duty is cast upon the dealer to deliver a new vehicle which is not defective.  The legal position in this regard has been dealt with by the Hon’ble Supreme Court in a ruling reported in 2022 (SC) 750 Rajiv Shukla versus Gold Rush Sales and Services Ltd. & Anr. delivering a defective and old model vehicle against the booking for a new one made by a customer who has paid full sale consideration is an unfair trade practice.  Here the appellants had suppressed the fact that the vehicle delivered to the complainant was a used one and in fact cheated the complainant.  Since the appellants had adopted unfair trade practice, the complainant is entitled to get the entire purchase price and also compensation. 

17.     The main grievance of the appellant is that the compensation awarded was excessive.  The hardship caused to the complainant has to be taken in to account when the compensation is quantified.  The poor complainant was cheated by the 1^st opposite party.  Even after noticing the defects and raising protests regarding the defects pertaining to the vehicle, the opposite parties were not willing to remedy their mistake.  It was a deliberate act of cheating. When the consumer had approached the dealer for the purchase of a new vehicle a used old vehicle was delivered which caused inconvenience and hardship to the poor customer.  On consideration of the hardship, mental agony, the inconvenience caused to the complainant and the gravity of the dishonest act committed by the opposite party we find that the compensation awarded is adequate and no interference is warranted.  We find no merit in the appeal and the order passed by the District Commission is only to be affirmed.  

In the result, the appeal is dismissed.  Parties shall bear their respective costs.  The amount of statutory deposit made by the appellants shall be disbursed to the respondent on proper acknowledgement, to be adjusted towards the amount found due and payable to him.

SL