ORDER

(Passed on  22/11/2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

           The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging cheating by the OPs. by selling to him another model of car instead of the one selected by him and thereby claiming compensation for indulging into Unfair Trade Practice amounting to Rs.1,40,000/- alongwith direction to provide car of proper model.

2.       The facts in short giving rise to this petition are that the Complainant is a resident of Chandrapur and the OP No.1 is the dealer of Ashok Leyland, Mahindra & Mahindra and other four wheelers. OP No.2 is a non banking financial company and the OP No.3 is the authorized service centre for Ashok Leyland vehicles.  The complainant wanted to purchase car for his personal use. Hence he approached to OP No.1 and selected four wheeler LMV Model STILE LS, Body Saloon, Number of Cylinders 4, sitting capacity 8 persons, fuel diesel having showroom price of Rs.11,10,000/-. The complainant paid Rs.1,50,000/- in cash and procured a loan of Rs.9,60,000/- from the OP No.2 under Hire Purchase Agreement.  However, the OP No.1, in connivance with OP No.2, delivered a different model of four wheeler i.e.Ashok Leyland Stile LX.  This vehicle was registered with RTO under different specifications vide Registration No.MH 34 AM 3791 on 19/8/2014 and accordingly smart card came to be issued. The OP No.1 thereby cheated not only the complainant but also the government  department.  The complainant ignorant about this misrepresentation and cheating by the OP No.1, accepted the possession of the vehicle on 24/8/2014 through the sub dealer i.e.OPNo.1. The complainant had been regular in re payment  of loan installment and also in getting servicing of the vehicle done.  On 29/9/2016, the  complainant handed over the vehicle to the workshop of OP No.3 for regular servicing.  But surprisingly, the OP No.3 refused to deliver the vehicle knowing fully well that the vehicle belongs to the complainant under the garb that it shows different specifications. At that moment the complainant came to know that a fraud has been committed upon him by the OP Nos.1 & 2 and a wrong model of the vehicle was delivered to him by the OP No.1 in connivance with OP No.2. The vehicle is still lying in the workshop and is in the custody of OP No.3.  Hence the complainant approached to OP No.1 and brought entire matter to its notice  and requested to deliver the model of vehicle earlier chosen by him. But the OP No.1 refused to do so. Hence the complainant issued a legal notice dated 23/2/2016  to OP Nos.1,2 & 3 through advocate, but in vein. He also lodged a criminal complaint with Police Station, Ramnagar, Chandrapur on 6/4/2017 against OPs.  Due to the cheating committed by OP Nos.1 & 2 and the Unfair Trade Practice indulged into by them, the complainant is rendered without vehicle and thus sustained financial loss,invonvenience and physical and mental agony.  Hence, the complainant has filed this complaint.

3.       The complaint is admitted and notics were served on the OPs. The OP No.1  filed its reply and thereby denied allegations against it and submitted that the vehicle was sold to the complainant  as per his choice. It denied that the complainant chosen other model but he was delivered another model.  It contended that the Forum has no jurisdiction to decide the complaint and it is also barred by limitation. There is no cause of action against OP No.1 and hence the complaint deserves to be dismissed with cost.

4.        The OP No.2  filed its reply and thereby denied allegations against it and submitted that the vehicle was purchased by the complainant for commercial purpose.  He has filed the present complaint way beyond the limitation from the date of purchase of the vehicle i.e. 19/8/2014 and hence it is barred by limitation.  The OP No.2 sanctioned a loan of Rs.9,60,000/- as per Hire Purchase Agreement in between OP No.2 and the complainant and the repayment was agreed to be made in 59 monthly installments of Rs.23,540/- during the period 28/7/2014 to 20/5/2019  total amounting to Rs.13,88,807/-. But the complainant was irregular in repayment of loan and was in arrears of Rs.3,16,548/- as on 29/7/2017.  Hence, to avoid repayment of loan arrears the complainant has filed the present complaint with an intention to pressurize the OPs. not to recover loan amount. Hence the complaint deserves to be dismissed with cost.

5.       The OP NO.3, in spite of service of notice, did not turn up and hence the Forum, by passing order dated 4/7/2018, proceeded exparte against OP No.3.

6.       We have gone through the complaint, written versions filed by OP No.1 and OP Nos.2 & 3, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                                     Finding

1. Whether the complainant is a Consumer ?                                      Yes

2.  Whether  the complainant has proved his allegation

     With regard to deficiency in service on the part of OPs. ?              No

3.  What order ?                                                                  As per final order..

As to issue No.1

7.      The O.P.No.1 is the sub-dealer of Ashok Leyland  and the complainant has purchased four wheeler model Stile LS. By paying Rs.1,50,000/- in cash and procuring a loan of Rs.9,60,000/- from the OP No.2 under Hire Purchase Agreement.  OP No.3 is the authorized service centre of Ashok Leyland and the complainant has handed over his vehicle to OP No.3 for servicing. In this regard, the complainant has filed relevant documents including cash memo, receipt, hire purchase agreement, job cards as per list of documents dated 21/8/2018 at Exhibit  25. These documents goes to prove that the complainant is the Consumer of OP NOs.1,2 & 3 within the meaning of Section 2(1) D and the services as promised are the services within the meaning of section 2(1)(d)(ii) of CP Act and hence the issue is decided accordingly.

As to issue No.2

8.        The basic issue between the parties is that the model of four wheeler selected by the complainant was STILE LS, but he was delivered another model i.e. STILE LX. The registration particulars on the registration smart card issued by RTO, Chandrapur shows that the complainant is the owner of LS model bearing No.MH 34, AM 3791. The complainant is the registered owner of that vehicle since 19/4/2014. The vehicle has been continuously in use of the complainant since then and the complainant has enjoyed free servicing and also paid up servicing. It is the averment of the complainant that he, for the first time, came to know about delivery of another model only after the OP No.3 servicing Centre refused to deliver him the vehicle. However, the contention of the complainant that he came to know about delivery of different vehicle after a lapse of three years can not be accepted. Further the complainant has not filed any evidence to show that he had chosen Ashok Leyland STILE LS model and not the STILE LX.

“Section 41 (Section 23 of corresponding Act of 1939) of the Motor Vehicle Act,1988 reads as under..

(1) An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government.

(2) An application referred to in sub-section (1) shall be accompanied by such fee as may be prescribed by the Central Government.

(3) The registering authority shall issue to the owner of a motor vehicle registered by it a Certificate of Registration in such form and containing such particulars and information and in such manner as may be prescribed by the Central Government.

(4) The application shall also specify the type of the motor vehicle, being a type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification in the Official Gazette, specify..

…

(6)  The registrating authority shall assign to the vehicle for display thereon, a distinguishing mark (in this Act referred to as the registration mark) ‘consisting of one of the groups of such of those letters and followed by such letters and figures as are allotted to the State by the Central Government.”  

       As per section 41(c) of Motor Vehicle Act for registration of vehicle an application with speficiations of type of motor vehicle having regard to design, construction and use of motor vehicle is to be made in the prescribed form. On such application, on 11/8/2014 the RTO Chandrapur has issued Smart Card of the vehicle as soon as the vehicle is registered. The Smart Card clearly mentions the type and model of vehicle such as STILE LS. Hence the complainant must have knowledge in respect of type of model. Hence, now, the contention of the complainant against OP for not selling of selected model is contention as after thought and not bonafide and as such it  can not be accepted. It is true that the complainant is in arrears of loan amounting approximately upto Rs.5 lac. Therefore, the purpose of filing the present petition can not be said to be bonafide. Hence the complaint has no merit and it deserves to be dismissed.

As to issue No.3

9.       In view of our observations with regard to above issue Nos.1 & 2, we pass the following order..

Final order

1. The Complaint is dismissed without cost.

2.  Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President