Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 50/22.03.2021
Shri Rajiv Tyagi son of Sh Rameshwar Tyagi
L-29, Kailash Colony, New Delhi-110048,
[Also at Chamber No. 13, Supreme Court
Lawyers’ Chambers, Bhagwan Dass Road,
New Delhi-110001 …Complainant
Versus
OP1-T. R. Sawhney Motors Private Limited
Registered office at: 508, FIE, Patparganj,
New Delhi-110092
Sales Outlet at : Indraprastha Metro Station,
Near Pragati Maidan, New Delhi
OP2- Maruti Suzuki Limited
1, Nelson Mandela Marg, Vasant Kunj,
New Delhi-110070 ...Opposite Party
Date of filing: 22.03.2021
Coram: Date of Order: 27.05.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
ORDER
Inder Jeet Singh , President
It is scheduled for orders today (item no. )
1.1. (Introduction to case of parties)–The complainant has grievances of unfair trade practice, negligence and deficiency of services, against OPs since he purchased maruti wagon-R LXI DUO of 2015 having registration no. DL3CCF 2235 (hereinafter referred the vehicle/car) under certified “true value car” from the OP1, being authorized dealer of OP2/manufacturer but the complainant was provided car having defects, besides it was delivered without accessories, what were shown and agreed at the time of booking of the vehicle. Besides an excess amount of Rs. 6,875/-, above invoice amount, was also charged from him and it was not refunded. The complainant not only suffered incomplete accessories, defective car, its repairs and replacement of spares, maintenance but also harassment and agony (on all counts inclusive of want handing over RC, warranty/service card), that is why the complaint was filed seeking return of excess paid amount, amount in lieu of want of providing agreed stereo deck/head, amount spent on spares, maintenance etc with interest, compensation, costs.
1.2. Whereas, the complaint is opposed by the OP1 that neither there was any negligence, deficiency of services and unfair trade practice, since the complainant had purchased the vehicle knowing well a ‘true value car’ that after test drive and inspection. The vehicle was being driven negligently by the complainant, which caused those defects. There were no excess charges as alleged and service/warranty cards were delivered at the time of delivery of vehicle.
1.3 The OP2 also opposed the complaint in its written statement that there is neither deficiency of services nor any manufacturing defect in the vehicle to make the OP2 accountable. It appears to be a disputes between the complainant and the OP1 in respect of tyre, clutch of vehicle etc. but these component are not covered under the warranty for the said vehicle. The OP2 is not accountable for the same. The OP2 is not liable since the relationship of the OP1 and of the OP2 is on a principal to principal basis.
1.4 The pleading and documents are voluminous, however, relevant facts, figures, dates and documents are being referred in this Final order to appreciate of case of each side (instead of giving minute detail of their cases).
2.1. (Case of complainant) –There was a print advertisement for "certified true value cars" by OPs. There is showroom of OP1, authorized dealer of OP2 and the complainant approached the OP1 at its Indraprastha Metro Station near Pragati Maidan, New Delhi. The OP2 had introduced true value pre-owned cars scheme, the second hand vehicles are being refurbished and then the same are re-sold at higher price [being certified car in good condition] than the price in the market. It is assured by them that each true value car is put through rigorous 120 checks before being accepted and certified by OP2.
2.2. In the first week of March 2019 the complainant was also shown the car/vehicle by OP1 and it had almost new/probably refurbished tyre, music system without deck/head clock, leather upholstery, gear lock, non-function clock on the desk board, tinted glasses. The access to the car is through remote control device for added safety. OP1’s Sh. Sudhir Sharma represented him General Manager and quoted prince of Rs. 3,05000/- for the vehicle, the complainant requested for negotiation but Mr. Sudhir Sharma asked to deposit Rs. 3,05,000/- since the car was in high demand and he will arrange best possible discount at the time of delivery. It was promised that OP1 will deliver the car in good condition with complete accessories all in working condition, triplicate set of keys, duplicate set of remote control access device, therefore, on 12.03.2019 the complainant paid amount of Rs. 3,05,000/- against invoice for the said car to OP1. There was delay in delivery of the car by OP1 on the one pretext or the other, finally it was delivered on 18.03.2019 by ante-date 14.03.2019 delivery. Moreover, when complainant visited the showroom of OP1, he was shocked to find that in place of almost new/refreshed tyre, the four running wheels were replaced with worn out tyre, the spared tyre was torn in the middle, steel wires of radial were protruding out of it. The deck/head of the music system was not loaded in the car besides one set of key with only one remote control access device was provided. The duplicate and triplicate sets of keys were stated to be not available and complainant was asked to visit again to collect the missing keys, accessories and remote control. The complainant protested it immediately, then Sh. Sudhir Sharma instructed his subordinate Mr. Praveen Kumar to call the previous owner for duplicate and triplicate sets of keys. It was told that deck/head of music system was not there since the car was being parked in the open area of showroom and the said system was removed for safety purpose. The complainant was visiting OP1 and reminding but the music system, set of keys etc. were not delivered. The electronic clock on the desk board was also not functional; it was also not installed at the time of delivery of the vehicle. It was assured to provide the same and extra set of keys may be collected and complainant was persuaded on such assurances to take the delivery. The complainant took the delivery of vehicle on the condition for fulfilling that promises and replacing the tyre and providing other accessors, otherwise the complainant would cancel the contract but OP1 refused to refund the amount of Rs. 3,05,000/- on the pretext that the vehicle is sold “as is basis” but Mr. Sudhir Sharma assured to get the tyre replaced and he would make complete all the missing accessories of the car.
2.3. This complaint further narrates the developments taken place and the difficulties faced by him, since the car shown by him on 12.03.2019 was not delivered in that condition with all accessories. The complainant was not provided free service and warranty booklet with warranty certificates despite request as it was assured that the same will reach him within 15 days directly.
The complainant faced many more issues/problem with the running of that car, including rumbling and noise issues, he had to spend amount for replacement of few other parts at additional cost of Rs. 10,500/- approximately in May/June 2019 through Ms/ Maruti Services Masters, Okhla, and it was after short period of time after taking the car. The clutches of the car started giving troubles in driving and pickup within a month of buying the vehicle. When the OP1 was approached and requested, inclusive of free and warranty booklet since warranty was being over but it was not bothered and replacement of clutch plates were declined besides other issues. The complainant was also constraint to get replaced five tyre with new tyre by spending Rs. 11,000/-, whereas it was certified true value car. The complainant was provided registration certificate around 20.05.2019.
The circumstances are showing the problems faced by the complainant and vehicle sold was contrary to the promise and also in breach of 120 checks vis-à-vis complainant had to spend amount on repairs, replacement of tyre, music system was also not provided. That is why the complaint for (i) refund of excess charged amount of Rs. 6,875/- with interest of 18%pa, (ii) amount of Rs. 10,500/- for repairs, replacement and engine spares spent in April/May 2020; Rs.11,000/- for replacement of five tyre; (iv) Rs. 15,000/- replacement of clutches under warranty; (v) Rs. 25,000/- in lieu of music system; (vi) Rs. 75,000/- for damages for deficiency of services and harassment against OP1; (vii) Rs. 50,000/- as compensation for unfair trade practice etc. against OP2 (viii) interest of Rs. 58,025/- calculated @15%pa upto and (ix) Rs. 1 lakh as cost of litigation. The complainant claims total amount of Rs. 3,51,400/- with future interest at the rate of 15%pa. The complaint is accompanied with copies of documents viz. citation of advertisement, car booking receipt, payment receipt, invoice, bill for five new tyre, letters written to General Manager, email messages, free service-warranty/maintenance booklet, photographs to demonstrate invoice, for change of parts and clutch assembly, car stereo without deck, Registration Certificate.
3.1 (Case of OP1)- The OP1 denies the complaint by way of preliminary objections and also reply on merits that there is no negligence or deficiency of services and unfair trade practice on the part of OP1. The OP1 also gives its profile and profile of OP2 with regard to their products, services and a great reputation in the market for quality of products and services provided by them.
3.2. The complaint is without cause of action, since the car was sold as agreed and shown to the complainant, that too after test drive by the complainant and on his satisfaction, the complainant had chosen the vehicle. However, the complaint was filed with ulterior motive but it is not covered within the Consumer Protection Act vis-à-vis the complainant is trying to create undue pressure upon the OP1. The complainant has not suffered any loss or injury nor there is any negligence on the part of OP1, therefore, no claim is made out.
3.3 In fact, the car has run 45,125 Kms on 16.03.2019 and the history of vehicle further shows that as on 14.12.2021 the vehicle has covered mileage of 73,521 Kms, that vehicle has handsome mileage in a short span of time. Thus, complaint is false and frivolous. The complainant was provided booklet of warranty/service at the time of delivery of the car, there is no deficiency of services. The clutch plates were not covered within the warranty. Neither the tyre were changed nor the music system or other accessories were removed during the delivery of the vehicle to the complainant, the same are an afterthought; otherwise complainant is an educated enough, he may refuse to take the delivery of vehicle if the vehicle was not complete. In fact, the delivery of vehicle was taken without any objection but the complaint was filed falsely. Moreover, there was no negotiation for discount the consideration price and allegations of want of delivery of key set are also without any substance. When there is no deficiency of services, therefore, the complaint is liable to be dismissed. The complaint is calculated, it is exaggeration, which proves ulterior motive and mala-fide of complainant. The written statement is supported by affidavit of Sh. Anil Mishra, author of the written statement.
3.4 (Case of OP2). The gist of case of OP2 has already been compiled in paragraph-1.2 above. The present complaint appears to be a case of sale of true value car by the dealer/ OP1 to the complainant, thus complaint is not maintainable againstOP2/manufacturer. The complainant of his own will and volition purchased a second hand vehicle. Otherwise, the true value warranty for vehicle was for 6 months or 7500 Kms, besides the clutch and tyre are not covered under the warranty clause they are excluded by clause (b) of the warranty terms and conditions. The relationship of OP1 and the OP2 are of principal to principal, therefore, complaint is not maintainable against OP2/manufacturer in terms of decision in Maruti Suzuki India Ltd. Vs. Purushottam Lal Huf CA. No. 708/2007 dod 22.07.2010 (SC). The principle of Caveat Emptor (let the buyer beware) applies and allegations against OP2 are false, it is not liable on any count. There is no deficiency of services or unfair trade practice by the OP. The complaint deserves dismissal.
4.1 (Replication of complainant) –The complainant filed detailed replication to the written statement of OP1, it denies all the allegations of written statement stated against the complainant vis-à-vis the complainant reaffirms the contents of complaint as correct. The complainant has used the vehicle properly, he was not negligent. The complaint is within the period of limitation.
4.2. The complainant also filed detailed replication to the written statement of OP2, it denies all the allegations of written statement stated against the complainant. The complainant also explains that principle of Caveat Venditor (let the vendor beware) applies vis-à-vis the complainant reaffirms the contents of complaint as correct.
5.1.(Evidence) - In order to prove the complaint, the complainant Shri Rajiv Tyagi led his exclusive evidence by filing detailed affidavit on the pattern of complaint, with the all documentary record filed with the complaint
5.2. OP1 led its evidence by filing affidavit of Sh Anil Mishra, Account Manager of OP1 and it is brief replica of written statement OP1.
5.3 The OP2 was given several opportunity to lead evidence and finally last opportunity was also given and for want of leading evidence, OP2’s evidence was closed on 11.01.2023. An application was filed at belated stage, of final argument, to reopen the case for evidence of OP2, however, the application was dismissed by reasoned order dated 26.04.2023. As appearing it attained finality. To say, there is no evidence/defence on behalf of OP2.
6. (Final hearing)- The parties were given opportunities to file written arguments and make oral submission. The complainant and the OP1 filed their respective written arguments, which are blend of their pleading and evidence. Moreover, Sh. Rohit Gupta, Advocate alongwith Sh. Piyush Jha, Advocate for complainant and Sh. Vikas Sharma, Advocate alongwith Sh. Shahrukh Noor, Advocate for OP1 made their respective submissions.
The OP2 had also filed written arguments followed by oral submissions on limited points (without defence component) by Sh. Pawan Kumar, Advocate for OP2. The respective submission need not to be repeated, since case of each party has already been referred vis a vis the rival contentions will be dealt appropriately.
7.1 (Findings) - The contentions of both the sides are considered, keeping in view the material on record and provisions of law. During the course of argument the point of limitation has been raised on behalf of OPs that the complaint is not within prescribed period of two years from the date of sale of the vehicle on 18.03.2019 but complaint was presented on 22.03.2021. It is opposed by the complainant that the vehicle was delivered on 18.03.2021 but there were certain other issues with regard to accessories, problem of poor tyre replaced, clutch, want of providing key set and music system, registration certificate, warranty/service card and the cause of action was in continuity, inclusive on the dates the correspondence was exchanged. It had continued till May 2019 and from that date the complaint is within time.
7.2. There is no dispute that the car was delivered on 18.03.2019. The complainant has grievances of deficiency of services. of unfair trade practice and of negligence on the part of OPs. There is record of emails between the parties besides notice written to the OP1 about the grievances pertaining to the vehicle. The complainant has proved email dated 23.05.2019 which was written by OP1 to the complainant while apologizing for the inconvenience caused to the complainant by Sh. Sudhir Sharma, Manager and it was also replied the processing is being done or the OP1 was working on the issues complained by the complainant. This email of 23.05.2019 is showing that grievances of complainant were pending, in other words the cause of action was continuing. The other email is 25.5.2019 regarding grievances of the complainant. The OPs are projecting as if the cause of action is of fixed date of 18.03.2019 exclusively, when vehicle was purchased but the factual and legal position is that cause of action is composition of bundle of facts and it may continue from time to time. The case of complainant is not exception to it as OP1 was working on the grievances of the complainant even in the month of May, 2021. Therefore, it is held that from the dates of email 23.05.2019/25.05.2019, the complaint filed on 22.03.2021 is within the prescribed period of two years. This contention of OPs stand disposed off against them.
8.1 There is no dispute in respect of sale of certified true value car by the OP1, being authorized dealer of manufacturer/OP2, to the complainant, the invoice tax issued by OP1 in favour of complainant and the email exchanged between the parties.
8.2 But the dispute pertains to unfair trade practice, deficiency of services and negligence, repairs, replacement or buying new tyre etc., therefore, by considering and assessing totality of the record, it is held that complainant has proved the complaint against OP1 for the following reasons:-
(i) During the regime of the Consumer Protection Act 1986, the caveat emptor (let the buyer beware) was the principle but the new era of the Consumer Protection Act 2019, there is a swift and the benevolent feature of this Act 2019 is based on the principle of caveat venditor (let the vendor beware). To say, it was obligation of the OP1 to deliver the vehicle intact as shown and agreed to sell against total consideration received.
(ii) When complainant expressed his grievances at the time of making delivery of the vehicle that when he found want of affixing the accessory and changed tyre before the actual receipt of delivery but complainant was assured to complete the deficiency vis-à-vis complainant requested to cancel the contract otherwise; the OP1 had stated that the vehicle was sold “as is basis”, this fact of "as is basis" is not denied by the OP1 in its written statement. Simultaneously, it is undisputed case of the OPs that the vehicle was sold as " certified true value car" for which OPs have made large scale print advertisement. The advertisement for "certified true value car" cannot be construed 'vehicle as is basis', especially when it assured for 120 technical checks, to ensure proper working of vehicle on road as well as complete in all respect.
(iii) There is another email dated 25.05.2019 by the complainant to the OP1, requesting for providing stereo head set, duplicate set of keys, back tray, which were not provided despite agreed to provide it and the OP1 was also reminded; even for service booklet and warranty were not provided even for two months. The RC was provided after two months. There is no counter documentary record or evidence by the OP1 to disprove this fact.
This clearly establish that OP1 is taking stand in the written statement contrary to this email that service book/warranty card was provided at the time of delivery of the vehicle. In addition, want of providing such service card and warranty means that free service/spares would not be at avail of complainant for want of producing such service/warranty..
(iv) The complainant has proved colour photographs showing desk board, head etc that stereo without deck alike other accessories were not affixed and the complainant was to write email dated 25.05.2019 to OP1. The complainant also refers/proved pre-booking check-list, it is showing that these items were to be provided by the OP1 vis-à-vis OP1 has contentions (during oral arguments ) that the same were wrongly partly filled in and wrongly partly left blank. But it would not be acceptable by any prudent person.
This proves the case of complainant that such accessories were to be provided by the OP1 but the same were not provided and inconsistent plea is being taken by the OP1. The complainant (a Practicing lawyer) has also proved legal notice dated 26.03.2019 served on OP1 immediately after discovering the flaw, want of affixation of accessories etc and pointing out to OP1 repeatedly but there was no response. Whereas when serious allegations were made in the legal notice, the OP1 ought not to keep silence thereon but to reply/explain them; it also makes out adverse inference against OP1.
It proves that there were deficiencies of want of providing service, warranty and maintenance book within time, stereo system without deck /musical system, etc., the complainant deserves the amount in lieu of want of providing music system, which complainant claim of Rs.25,000/- and OP1 has not led any contrary evidence.
(v) Since it was a "certified true value car" and as per warranty card proved there are 120 checks, the tyre and other major mechanical part of clutch are necessary for the proper functioning of the vehicle and as appearing from the circumstances proved by the complainant that the tyre were changed between the booking and date of physical delivery on 18.03.2019 and that is why the complainant was complaining to the OP1. The general denial of the OP1 is not acceptable, since the conduct of OP1 is manifesting that it is denying those facts which are in documentary record/email on filed, in this situation when the facts are being spoken by document are being denied by OP1, it is infers that OP1 may deny other facts also to shield itself. Therefore, complainant has proved facts about repairs, spares and replacement of tyre and clutches. The complainant has also proved tax invoice and bills for such spares, replacement, tyres, repairs etc.
The OPs rely upon the warranty card that tyre and clutch plates are not covered but as a circumstances are appearing the tyre were changed before delivery and clutch plates were not functioning properly from the inception, the "certified true value car" was supposed to be road-worthy from these angles. When the vehicle was delivered in changed conditions, without accessories and not properly fit contrary to what was shown and booked, it is unfair trade practice on the part of OP1.
(vi) The complainant has proved that payment receipt of Rs.3,05,000/- to OP1 but OP1 had issued tax invoice of Rs.3,01,501/- (i.e. Rs.2,98,125+Tax of Rs.3,376/-). There is debit note of Rs.6,875/-for refund to the complainant but this amount was never released to the complainant. There is excess amount of Rs.3,499/- charged by OP1; was it not required on the part of OP1 to make the refund of this amount as a fair practice. There is no reply nor any explanation for want of refund of the amount. The complainant is entitled for refund of this amount of Rs.3,499/-., which was charged over the invoice amount.
(vii) The OP1 led evidence of Shri Anil Mishra, Accounts Manager, but the complainant pointed out that as per money receipt dated 12.03.2019, it names two person namely Shri Nitish Mehra (Executive) and Shri Rohit Galotra (Team Leader) relating the vehicle and its transaction, they are material witness but none of them led the evidence, The evidence was led of a person holding account section, he was not aware about the transactions, it is weak evidence.
There is substance and weight in the point of complainant.
(viii) The OP1 took the plea that the vehicle had substantial journey after delivery of vehicle, however, it would not extend benefit to the OP1 since the complainant has proved that he got the vehicle repaired from Maruti Service Centre, Okhla by spending huge amount on service, spares etc.; the corresponding bills/invoice have also been proved. The OP1 has also reservations that tax invoice of Rs.11,000/- of purchase of five tyre does not bear vehicle number, however, it will also not help OP1 since invoice was issued in the name of complainant, it is subsequent to date of purchase the vehicle and the tax invoice gives description of number, make etc. of tyre and there is no evidence by OP1 to disprove that tyres are not for Wagon-R vehicle.
(ix) The conclusions in (i) to (viii) above, entitles the complainant for amount of Rs.64,999/-[ viz (a) refund of access amount of Rs. 3,499/- (b) amount of Rs. 10,500/- for repairs, replacement and engine spares spent in April/May 2020; (c) Rs.11,000/- for replacement of five tyre; (d) Rs. 15,000/- replacement of clutches in lieu of defective parts and (e) Rs. 25,000/- in lieu of music system]. The round figure comes to Rs.65,000/-.
(x) There is no proof of manufacturing defect in the product to make out case against OP2 as well as the relationship of the OP1 and the OP2 is of principal to principal. Thus no order against OP2.
8.3. The complainant claims interest at the rate of 18%pa on excess charged amount, however, no rate of interest has been proved. To meet all end of justice, especially the OP1 is a commercial company, it knows the business customs, thus it would be reasonable that the prevailing average rate of interest of 7%pa [from the date of complaint till the realization of amount] is allowed in favour of complainant and against OP1. The interest will be payable on amount of Rs.65,000/-.
8.4 The complainant has also claim compensation Rs.75,000/- in lieu of harassment and mental agony and litigation against OP1 and cost of Rs. 1,00,000/-. The complainant has proved the legal notice of contemporary period immediately after purpose of vehicle and he started feeling harassed, but his grievances were not addressed. He was constrained to file the complaint. By considering all the circumstances, compensation of Rs. 25,000/- and costs of Rs.15,000/- are allowed in favour of complainant and against the OP1 to meet both ends.
9.1 Accordingly, the complaint is allowed in favour of complainant and against the OP1 while directing the OP1 to pay/reimburse a sum of Rs.65,000/- along with interest at the rate of 7%pa from the date of complaint till realization of amount, besides to pay compensation/damages of Rs.25,000/- and costs of Rs.15,000/- payable within 45 days from the date of this order. In case the OP1 does not pay the amount within stipulated period, then there will be enhanced rate of interest of 9%pa (in place of 7%pa on amount of Rs.65,000/-) . The OP1 may deposit the amount in the form of valid instrument in the name of complainant in the Registry of this Commission.
9.2 The complaint against OP2 is dismissed.
9.3 The complaint stand disposed off.
10. Announced on this day of 27th day of May 2024 [ज्येष्ठ 6, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[ijs 61]
***
