The present complaint case has been filed by the complainant Ramawatar Poddar against O.P’s i.e. Tata Motor’s Finance Ltd. having registered office at Nariman Point Mumbai and branch office at –Towar Chowk, Dumka, Tiwari Automobiles Pvt. Ltd. Airport Road, Lakhikundi, Dumka and Aditya Raj, Manager , Tiwari Automobiles Pvt. Ltd, Airport Road, Lakhikundi, Dumka U/-12 of the Consumer Protection Act,1986 (hereinafter called as C.P.Act,1986) for illegally and arbitrarily supplying Tata car having model Bolt-XE in place of a car having model Bolt-XM against agreement , purchased and financed from O.P.No-2(ii)and 2(i)respectively, realising price of Tata Bolt XM car but delivered Tata Bolt XE car, charging interest @14.42% p.a. against agreed rate of interest 5% p.a. not delivering original papers of the vehicle and accessories as per guide lines of company and also not filling the owner’s manual in gross negligency, deficiency in services and adopting unfair trade practice by them (O.P’s) and thereby causing mental tension ,agony, harassment, loss, damages and injury to the complainant. The complainant has prayed to direct the O.P’s to deliver either Tata car having model Bolt XM in place of delivered Tata Bolt XE car or in alternative reduce the difference of the price, adjust the excess interest amounting to Rs.1,00, 000/- (One Lac) which was charged @14.42% p.a. in place of agreed rate of interest @ 5% p.a, deliver relevant papers of the car and also duly filling up owner’s manual , further to direct O.P’s to pay interest on the advanced amount of Rs.1,00,000/- (One Lac) which was illegally retained by the O.P’s for 21 days and to supply petrol and accessories as per the guide lines of the company, further also prayed to direct O.P’s to pay compensation of Rs.50,000/- (Fifty thousand) towards mental tension ,agony ,harassment ,loss, injury and damages caused by O.P’s to the complainant ,further more to direct O.P’s to make payment of Rs.10,000/-( Ten thousand) towards as a cost of litigation to the complainant.
2. The brief facts of the case as revealed from the complaint petition, documents annexed therein as well as from the short notes of argument dated 07.12.2017 are as follows:-
That the complainant ,a retired lecturer for his own use agreed to purchase a Tata car of model Bolt XM from Tiwari Automobiles, Lakhikundi, Airport Road, Dumka (O.P.No-2 (ii) an authorized dealer of Tata Company on financial assistance of Tata Motor finance Ltd. (O.P.No-2 (i) and accordingly loan contract Account No-5001873638 was opened. The complainant paid Rs.1,00,000/- (One lac) as down payment against purchase amount and Rs.4,00,000/- ( Four lac) was paid by the finance company to the O.P.No.2(ii).The further case of the complainant that during negotiation of purchase of car the representative of Tiwari Automobiles, Dumka Mr. Aditya Raj (O.P No-2 (iii) explained about cost of the vehicle ,rate of interest and required documents to be filed and he gave all such details on a paper in his own hand writing and also mentioned his own mobile number . It is asserted that O.P.no.2 (iii) during negotiation agreed that rate of interest on loan amount would be charged @5% p.a. instead of @ 8.5% p.a. in presence one Shivam Kumar, the employee of Tiwari Automobiles (O.P.No-2 (ii)).The complainant on good faith and bonafide belief that rate of interest on loan amount would be @5% p.a. agreed to purchase car of model Tata Bolt XM and paid Rs.1,00,000/- (One lac) to the to the O.P.No-2 (ii) but O.P.no.2(ii) delivered inferior model Tata car having Model Bolt XE instead of agreed model of Bolt XM on 17.09.2015.However this fact could not be detected by the complainant at the time of delivery. The further case of the complainant is that after obtaining summary of his loan contract account from O.P.No-2 (i) he could learn that the O.P.No-2 (i) has charged interest @ 14.42% p.a. instead of agreed rate of interest i.e. @5%p.a It is also alleged that as the mode of re- payment was auto debit mandate the O.P No-2 (i) illegally and arbitrarily realising excess and arbitrary interest amount from the bank account of the complainant in violation of the term and condition of the agreement.
It is claimed that though O.P No-2 (iii) had assured to deliver the vehicle on the very date of payment of Rs.1,00,000/- (One lac) made by the complainant but it was delivered after 21 days from the said payment and for that the complainant is entitled to get interest for the said payment. It isfurther claimed that the complainant is also entitled to get petrol and accessories at the time of delivery of the vehicle as per the guide lines of the company but same was not followed by O.P.No2(ii).
The further more case of the complainant is that he approached the O.P’s on several times and requested them to rectify the defects but they did not pay any heed and lastly on 26.11.2015 refused to remove the defects which caused immense mental tension, agony, harassment, loss ,damages and injury to the complainant. The complainant having found no alternative filed this case for redressal of his grievance before this forum on 03.12.2015.
3. Having received notices O.P.No-2(i) appeared on 30.05.2016 and filed written version on 28.07.2016 whereas O.P.No-2(ii) and (iii) appeared on 29.08.2017 and filed written version on 17.11.2017 on behalf of O.P.No-2(ii)and 2 (iii).
4. O.P.No-2(i) i. e Tata Motors finance Ltd. in its written statement besides taking preliminary objections, such as the case being not a consumer dispute, hence, not maintainable, the complainant is not a consumer as defined under Sec-2(1) (d) of the Consumer Protection Act,1986 and no unfair trade practice has been adopted by this answering opposite party in view of Sec-14 of the Consumer Protection Act,1986, hence, there was no deficiency of the service on part of this answering O.P. A Para wise reply has been given by this answering O. P. but in most of the replies it has either denied the averments or has not commented. This answering O.P. has averred that the complainant himself along with O.P.No-2(iii) had approached to this answering O.P. seeking the financial assistance for purchase of a vehicle of model Tata Bolt XM having price Rs.5,17,328/-( Five lac seventeen thousand three hundred twenty eight ) and requested for grant of loan of Rs.4,00,000/- (Four lac). The complainant filed duly filled loan application form and O.P-2(iii) filed relevant document for loan. After approval of the said application form ,O.P.No.2(ii) and (iii) submitted retail invoice to this O.P and then the vehicle was financed in favour of the complainant, thereupon the complainant signed hypothecation agreement (loan application) vide contract No-5001873638 dated 18.09.2015 as borrower. The complainant has agreed to pay a sum of Rs.1,60,000/-towards financial charge, and sum of Rs.76,000/- towards insurance provision and hence, the contractual value being 6,36,000/- which was to be repaid in 59 equated monthly installments. The complainant agreed to pay 1st installment of Rs. 10,818/- and remaining 58 installment of Rs.10,779/- each from 15.10.2015 to 15.08.2020. It has further stated that the term of loan and the interest to be charged was agreed upon by the complainant and accordingly loan document provided to the complainant. It has claimed that there is no allegation against this O.P as the main allegation has been revealed against O.P.No-2(ii) and O.P.No.2(iii). It has been asserted that this answering O.P. is itself aggrieved as because the complainant is not paying installment since long and this O.P is unable to take repossession of the vehicle. It has also claimed that there is neither any deficiency nor unfair trade practice on the part of this answering O.P accordingly prayed that this complaint case is liable to be dismissed against this answering O.P.
5. O.P.No-2(ii) i.e. Tiwari Automobiles Pvt. Ltd. Dumka represented by its Manager, Aditya Raj (O.P.N0-2(iii)) in their joint written version and written argument dated 12.06.2018 in addition to the preliminary objections i.e. that the complainant is not a consumer within the meaning of Sec-2 (1) (d) of Consumer Protection Act,1986 and no unfair trade practice has been adopted by these answering O.P’s in view of Sec-14 of the Act, hence there was no deficiency in service and also that the case is not maintainable on the ground of the jurisdiction in view of under clause-23 and 24 of the loan agreement, have admitted that the complainant had purchased a hatchback vehicle model Bolt XE RT bearing Chassis N0- MAT 60800/FPA21238 of Pristine white colour on 17.09.2015 from this answering O.P.No.2(ii) after making down payment of Rs.1,00,000/- ( One lac) on 04.09.2015. It is further stated that at the request of complainant this answering O.P arranged finance of the car from Tata Motor finance Ltd. (O.P No-2(i)) of Rs.3,96,000/-( three lac ninety six thousand ) and after approval of the finance this O.P. delivered the bolt XE RT car to him on 17.09.2015 thereafter financer( O.P No-2(i)) made payment to this O.P of Rs.3,96,100/-(Three lac ninety six thousand one hundred) on 19.09.2015.
The further case of this answering O.P. is that prior to purchase of the vehicle the consumer visited to Tata showroom, where manager O.P.no. 2(iii) explained in writing about cost of the vehicle, charges of registration, road tax in total amounting to Rs.4,99,744/- (Four lac ninety nine thousand seven hundred forty four ) along with loan documentation charges as well as the rate of interest required to be paid i.e. @8.5% p. a. which if compounded annually would come @ 14.42% p. a, however, the consumer/complainant due to misunderstanding of the fact wrongly alleged that the rate of interest explained by O.P No-2 (iii) was @ 8,5% P. a. The further case of this answering O.P is that the complainant had approached for purchase of Bolt XM model car but he could make payment of Rs.1,00,000/- ( One lac) and could arrange only Rs. 3,96,000/-( Three lac ninety six thousand) from O.P N0-2(i), whereas at that time the value of Bolt XM model car was Rs.6,36,999 / ( Six lac thirty six thousand nine hundred ninety nine) excluding other charges but as the complainant arranged only Rs.4,96,000/- against the cost of the vehicle so with the consent of the complainant he was delivered Bolt XE RT model car whose on road price was Rs.4,99,000/- (four lac ninety nine thousand) approximately hence the claim of the complainant regarding delivering a vehicle of inferior level is vague and fit to be rejected.
The further case of this answering O.P is that prior to giving financial assistance to the consumer, O.P.No-2(i) entered in to hypothecation agreement and the complainant having being fully satisfied put signature on the said agreement on 18.09.2015. In the said agreement rate of interest mentioned in 14.36%p.a.
The further also case of the complainant that it is evident from clause 23 and 24 of the hypothecation agreement that the consumer should have moved for arbitration and not before this forum for violation of the agreement and therefore this court has no jurisdiction to entertain this case. It is alleged that the consumer/complainant with view to delay in making payment of the loan to the financer has field this case with false assertions and as such this case is fit to be dismissed.
6. We have heard argument of the learned counsel for the parties and gone through the record along with the materials and documents attached therein. Both the parties in support of their respective cases have lead oral and as well as documentary evidence.
7. The complainant in support of his case filed affidavited statement of two witnesses including himself, out of which C.W.1 Ramawater Poddar, the complainant himself and C.W.-2Shivam Kumar Ghose is an ex employee of Tiwari Automobiles Ltd. Dumka and eye witness of purchase of the car.Besides oral evidence the complainant has adduced the following documentary evidence:-
Ext.1-Original gate pass dated 17.09.2015 of Tiwari Automobiles Pvt. Ltd. Dumka;
Ext.2-Photo copy of Insurance policy/ certificate of Reliance General Insurance Ltd;
Ext.3-Original payment detail slip dated 04.09.2015;
Ext.4- Original Hand written note/summary about price etc. of the car in the writing and signature of O.P.No-2(iii) i.e. Manager, Tiwari Automobiles Pvt. Ltd. Dumka;
Ext.5- Original Delivery Challan dated 17.09.2015;
Ext.6- Original letter of O.P.No-2(i) dated 18.09.2015 along with loan account detail of the vehicle and letter sent by P.C. Phalgunan, Advocate, Arbitrator in the matter of arbitration no-TMFL/141093/217 in between M/s T. M. F. Ltd Vrs Ramawater Poddar along with the arbitration award dated -16.05.2017.
On the other hand O.P.No-2(i) has adduced affidavited statement of one witness i.e. O.P.W-1 Anish Kumar Menan, besides, oral evidence O.P No-2(i) has adduced the following documentary evidence:-
Ext. A-Photo copy of loan-cum- hypothecation -cum-guarantee agreement dated -18.09.2015;
Ext. B-Computerized copy of loan account statement (Cardex-1) dated 06.05.2016;
Ext. C-Photo copy of loan application;
Ext. D-Photo copy of Retail invoice .
Whereas O.P.No-2(ii) and 2(iii) have not adduced any oral evidence but adduced the following documents:-
Ext.A/1-Photocopy of payment advice of Tata Motors Finance Ltd; dated 19.09.2015;
Ext.B/1-Photocopy of Insurance certificate /Policy schedule of Reliance General Insurance Company Ltd;
Ext.C/1-Photocopy of customer discount scheme for September.2015;
Ext.D/1-Photo copy of passenger’s car price list of Tata Motors with effect from 01.09.2015;
8. On the basis of the pleadings of the parties the main points emerged for discussion are as follows:-
(i). Whether the O.P.No-2(iii) held negotiation about price of the car, rate of interest on loan etc for purchase of model Bolt XM RT Prestine White Car?
(ii). whether complainant along with O.P.No-2(iii) presented loan application before O.P.No-2(i) Tata motors finance Ltd.for grant of loan to purchase Tata Bolt XM RTcar?
(iii). Whether complainant and O.P. No.2(i) entered in to a loan-cum- hypothecation agreement on 18.07.2015 for grant loan to purchase Bolt XM RT car?
(iv). Whether O.P.No-2(ii),2(iii) in a conspiracy with each other delivered Bolt EX RT car in place of Bolt XM RT car?
(v) Whether complainant is entitled to the reliefs claimed?
F I N D I N G S
9. Before ,we proceed to discuss and decide the merits of the case, it would be appropriate to consider the following preliminary objections raised by the O.P’s.
(i) The first point of objection is about maintainability of the case asserting that complainant is not a consumer in view of Sec-2(1)(d) of the Consumer Protection Act,1986?
(ii) Whether this forum has no jurisdiction to entertain this case in view of clause 23 and 24 of the loan-cum-hypothecation agreement?
- The first objection raised by the opposite parties is about the maintainability of this case in view of Sec.2(1)(d) of the Consumer Protection Act,1986 asserting that complainant is not a consumer.
In the present case it is admitted position that the complainant is a retired lecturer, who purchased a car on the financial assistance of the Tata motors finance Ltd. for his personal use and filed this case U/S 12 of the Consumer Protection Act,1986 for removal of defect in good or deficiency in service U/S 14 of the Act,1986.
Sec2(1)(d) of Consumer Protection Act,1986 reads as follows:-
“Consumer means any person who –
- “buys any good for a consideration which has been paid or promised or partly paid and partly promised ……………….but does not include a person who obtains such goods for resale or for any commercial purpose.
- hires or avails of any services for a consideration which has been paid or or promised ……….but does not include a person who avails of such services for any commercial purpose
Explanation For the purpose of this clause, ‘commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning of his livelihood by means of self employment,
In this aforesaid provision “Commercial purpose” has not been defined however, it has been said that commercial purpose” does not include use by person of goods bought and used by him and services availed by him, exclusively for the purpose of earning of his livelihood by means of self employment .In this contaxt Hon’ble supreme court in “ Lakshmi Engineering works “case reported in AIR1995 S C at page 1428 held that “ Where a person purchase goods for carrying any transport activities on a large Scale for the purpose of earning profit, he will not be a consumer within the meaning of sec.2(1)(d) of the Act,1986”.
In this connection C.W.N0.1 the complainant himself in Para 2 of his affidavited statement clearly stated that he has purchased a Tata car of model Bolt XM from the authorised dealer of Tata company i.e. Tiwari Auto Mobiles Pvt. Ltd on the financial assistance of Tata Motors Finance company Ltd. for his own use. However, the O.P No-2(ii) and (iii) have not lead any evidence to rebut the evidence of the complainant. Therefore ,in view of the legal provision as mentioned above ,the view of Hon’ble supreme court and the evidence of the complainant we come to conclusion that the complainant is a consumer within the meaning of Sec-2(1)(d) of the Consumer Protection Act,1986 as he purchased car for his personal use.
Ext. E is the loan cum-hypothecation cum-guarantee agreement dated 18.09.2015 which executed in between the complainant and Bikash Kumar Singh, Branch in charge ofTata Motors Finance Ltd, Dumka, In this loan agreement clause -23 reads as under –
“ 23 Arbitration;
23.1-all disputes, differences and /or claims arising out of this loan agreement or as to the construction, meaning or effect hereof or as to the right and liabilitiesof the parties hereunder shall be settled by arbitration to be held in Mumbai in accordance with the Arbitration and conciliation Act1996, or any statutory amendments thereof and shall be referred to a person to be appointed by the Lender. In the event of death, refusal, neglect, inability or incapability of the person so appointed to act as an arbitration, the Lender may appoint a new arbitrator. The award of the arbitration shall be final and binding on all parties concerned.”
“Clause 24: Jurisdiction :
24.1 subject to the provisions of clause32 above, any suit…………shall be instituted only in competent courts at Mumbai”. It is evident from this loan agreement that it was signed by the parties on 18.09.2015 whereas it is evident from Ext.1 i. e gate pass and Ext.5 delivery Challan that the vehicle was sold and delivered to the complainant on 17.09.2015, Which shows that the agreement executed after completion of the transaction .In this connection in a case of “Udaipur Cement Works Vrs Punjab Water Supply and sewerage Board” reported in 1999 (1) CPJ at Page-67 (NC) the Hon’ble National Commission, New Delhi held that mere existence of an arbitration clause should not come in the way of aggrieved party for seeking legitimate relief under the Consumer Protection Act,1986, So, existence of Arbitration clause does not constitute bar for the exercise of jurisdiction of the forum.
From personal of Arbitration proceeding and award (Ext.7) it appears that in the matter of arbitration proceedings No. TMFL/141093/2017 between M/s Tata Motors finance Ltd VrsRamawater Poddar and another no any notice was served upon the complainant, Further from perusal of award dated 16.05.2017 it appears that matter was referred to arbitrator on 15.05.2017 and interim order passed on 16.05.2017 whereas present case field by the complainant before this forum on 03.12.2015 which show that the complainant had chosen his remedy much prior to the arbitration proceeding initialed by the O. P. No. 2(i). Therefore, in view the principle of law settled by the Hon’ble National commission, New Delhi and facts of this case this forum is competent to entertain the present consumer complaint case and its jurisdiction is not effected in view of the arbitration clause of the loan- agreement. The plea raised by O.P’s have no merit hence rejected.
10. Now, we will discuss the matter related to the merit to the case.
(a) Point (i) to (iv) are inter-related with each other, hence they are taken up together. Learned Counsel for the complainant contended thatO.P. No.2 (i) and 2(iii) prior to purchase of car had negotiation with the complainant regarding cost of car; purchase of model Bolt XM RT as well as rate of interest on loan from O.P. No-2(i) and then loan agreement was executed between complainant and O.P.no.2(i) but in a conspiracy supplied inferior model car i.e. Tata Bolt XERT car.
In this context the complainant hasstated in the complaint petition that during negotiation of purchase Mr. Aditya Raj, Manager,Tiwari Automobiles O.P.2(iii) explained him about the cost of the vehicle, rate of interest, etc. and gave all such detail in writing on a paper in his own hand writing as well as mentioned his own mobile number. It is also averred that during negotiation Mr. Aditya Raj agreed that the rate of interest to be paid on loan would be @ 5%p.a instead of 8.5%p.a.in presence of Mr. Shivam Kumar. Evidently O.P.2 (ii) in Para 2 (b) intheir written statement has admitted that before purchase of the vehicle consumer visited its show room and he was explained in writing regarding registration, road tax etc. in total cost of Rs.4,99,744/- ( Four lac ninty nine thousand seven hundred forty four) along with loan documentation charge and rate of simple interest @ 8.5% p. a which if compounded would be @14.42% p.a. but the consumer misunderstood the facts.
C.W.1 the complainant himselfin para-3 of his affidavited statement stated that manager Aditya Raj (O.P.No-2(iii) gave in writing about the price of Tata car of model XM, rate of interest on finance and related documents and handed over the said paper to him after putting his signature and mobile number. He further stated that during negotiation Mr. Aditya Raj agreed to charge rate of interest @ 5% p.a. on loan amount . Thereupon he paid advance of Rs.1,00,000/-( One lac) and remaining amount was financed for purchasing of Tata Bolt XM car. This witness has neither been cross examined nor any counter affidavit filed on behalf of the O.P.No-2(ii)and (iii) to rebut his statement on oath. C.W.-2 Shivam Kumar Ghose in his affidavited statement in Para-2 stated that in the year 2015 he was working as a commission agent in M/s Tiwari Automobiles Pvt. Ltd. Lakhikundi, Dumka where Mr. Aditya Raj was working as a Manager .In Para-3 stated that complainant Ramawater Poddar contacted Mr Aditya Raj of M/s Tiwari Automobiles Pvt. Dumka for purchase of Tata car of model Bolt XM, who explained him about cost and rate of interest to be paid on loan for purchase of said model of Tata car and also gave all such details in his own writing and signature to the complainant before him. He has identified the writing and signature of the hand note of Mr. Aditya Raj which is marked as Ext.4. This witness has further stated that during negotiation complainant and manager Aditya Raj mutually agreed that rate of interest on loan would be @ 5% p.a. instead of 8.5 % p.a .Thereupon, complainant paid Rs.1,00,000/-( One lac) as advance booking amount. This witness has also not been cross examined by the O.P’s .He has corroborated the version of the complainant .It is evident from the record that the O.P.No-2(ii) and O.P.No-2(iii) have completely failed to bring any evidence to rebut the evidence of the complainant.
The complainant has further asserted that he along with O.P.No-2(iii) presented loan application for grant of loan of on Tata car of model Bolt XM RT before Tata finance company, dumkaO.P.No.2(i). The (O.P.No-2(I ) in its written argument dated 17.05.2018 in Para-B clearly admitted that the complainant with the help of O.P.No-2(iii) approached this answering O.P. seeking financial assistance for purchase of the vehicle Tata Bolt XM having price 5,17,328/-(Five lac seventeen thousand three hundred twenty eight ) and applied for loan of Rs.4,00,000/-( Four lac) with duly filled loan application form along with relevant documents. In this connection complainant has filed hand written note (Ext.4) of Mr. Aditya Raj about price of of car and O.P.No-2(i)filed photocopy of loan application (Ext. C) and photocopy of retail invoice (Ext. D) and from perusal all these documents it is clear that the complainant intended to purchase Tata car of model Bolt XM RT having price Rs.5,17,328/- ( Five lac seventeen thousand three hundred twenty eight).O.P.No-2(i) has also filed photo copy of loan –cum-hypothecation –cum-grantee agreement along with annexture-1 showing that the loan agreement entered for purchase of Bolt XM Tata car the rate of interest agreed to be @ 14.36%p.a. On the other hand O.P.No-2(ii) and O.P.No-2(iii)have not filed anydocument to show that the complainant entered in to an agreement with O.P.No-2(i) for purchase of Tata car having Model XE RT rather from the case of O.P. no.2(i) it is proved that O.P.no.2(ii) and O.P.no.2(iii) were agreed to deliver Tata Bolt XM RT Pristinewhite car. Besides, there is no any counter evidence to deny the fact that Mr. Aditya Raj O.P.No-2(iii)) explained the cost of the vehicle as Rs.4,60,520/-( Four lac sixty thousand five hundred twenty) in total amount Rs.4,99,744/- ( Four lac ninety nine thousand seven hundred forty four) fora Tata car of model XM RT. So far as the claim of O.P.No2(ii)and 2(iii) that the rate interest @8.5% p.a.is equal to interest @ 14.42%p.a. if compounded annually is concerned, this analogy is completely arithmetically wrong . But, as it is evident from the loan agreement (Ext. E) that the complainant agreed to the interest@ 8.5% p. a on the loan of Rs.4,00,000/-. Hence, on the basis of evidence on the point of rate of interest is concerned we find that the rate of interest as agreed between the parties would be 8.5% p. a simple interest on the loan amount.
Therefore, we come to conclusion that the O.P.No-2(ii) and O.P.No-2(iii) prior to sell car agreed with the complainant to supply Tata Bolt XM RT car for Rs.4,99,744/- excluding documentary charges on simpleinterest @ 8.5% p. a on the loan amount whereas the assertain of No-2(ii) and (iii) in contrary is completely in correct and against the principle of fair trade practice. It is also proved that O.P.No.2(ii) and O.P.No.2(iii) in a conspiracy delivered car of inferior model i.e. Tata Bolt XE RT. Thus all the four points are decided in favour of the complainant and against O.P. No.2(ii) and O.P.No.2(iii).
11.Now, we will discuss whether the complainant is entitled to the reliefs claimedfor?
As, we have discussed above it is proved that on 04.09.2015 complainant visited to the show room of Tiwari Automobiles Ltd. Dumka where Manager Aditya Raj explained him about the Tata Bolt XM car by giving written noteabout its cost, rate of interest etc. and other documents and the said written note has been proved by C.W.-2 Shivam Kumar as Ext-4. It has been asserted by the complainant that on 04.09.2015 he agreed to purchase Tata Bolt XM car and paid Rs.1,00,000/- through RTGS transfer to the account O.P.No-2(ii) which is evident from the payment details and on the same day Manager, Aditya Raj gave him price list of the Tata car (Ext-D/1) showing that on 04.09.2015 show room price of Tata Bolt XERT Pristine white car was Rs.4,68,520/- and of Tata Bolt XM RT Pristine white car of Rs.5,40,318/-. In this way it is evident from the above documents that Manager Aditya Raj knowing full well about the price of the car mentioned in price list gave incorrect price as Rs.4,60,520/- (four lac sixty thousand five hundred twenty) which apparently does not tally either with the price list (Ext-D/1) or with the payment details(Ext-3). It is admitted case of the O.P.No.2(i) that the Manager Aditya Raj along with the complainant approached to the Tata Motors finance Ltd, Dumka for securing financial assistance of Rs.4,00,000/-(four lac)for purchase of Tata Bolt EM RT. pristine white car having price Rs.5,17,328/- as per price list and they presented proposal form for theloan (Ext.C)From perusal of thisdocument it appears that loan application was submitted on 07.09.2015 where in details of vehicle and credit facilities to be required are mentioned,showing that the loan was applied for purchase of Bolt XM RT car, however there appears deviation in the rate of interest to be paid as in the negotiation document (Ext-4) rate of interest mentioned @8.5% p. a but in this agreementrate of interest mentioned as 14.42% p.a. In this way from the written note of the Manager Aditya Raj (Ext-4), loan agreement (Ext-E),loan account (Ext-F) ,award passed in arbitration case dated 16.05.2017 (Ext-7)it is clearly proved that O.P.No-2(ii) and (iii) agreed to sale Tata Bolt XM RT carto the complainant and accordingly loan amount Rs.4,00,000/- (four lac) was granted by the O.P.No-2(i) but clandestinely without disclosing these facts to the complainant delivered Tata Bolt XE RT car on 17.09.2015vide delivery challan (Ext-5)and gate pass (Ext-1). It this connection C.W.-1 the complainant himself and C.W.-2 Shivam Kumar an employee of Tiwari Automobiles Ltd.Dumkahas categorically stated the clandestineapproach of O.P.No-2(ii)and (iii) in delivering an inferior model car Bolt-XE RT against agreed Tata Bolt XM RT Pristine white car. Further it is also proved that though complainant paid Rs.1,00,000/-to the O.P.No.2(ii) on 04.09.2015 but despite assurance of O.P.No.2(iii) car was delivered on 17.09.2015 and no any accessories etc. as per the company’s guide line was given. Therefore it is proved that O.P.No-2(ii) and 2(iii) have committed gross negligency, deficiency in service as well as adopted unfair trade practice.
12. Learned Counsel for the complainant contended that O.P.No.2(ii) and O.P.No.2(iii) though have delivered an inferior model of Tata Bolt XE RT car but in the retail invoice ,loan agreement, arbitration awarded, as well as in the delivery challan ,gate pass and insurance certificatehave mentioned chassis no as MAT6080001PFE21238 which is quite surprising as because despite change in modal of car the chassis No of the inferior car remain the same which is nothing but an unfair trade practice. In this connection a report has been called for from the District Transport Officer, Dumka about the chassis number of the delivered car. The D.T.O. after examination of the delivered car has reported that the vehicle having registration No-JHO4J/1079 which is the delivered car, has the chasis No.MAT 608001PFE 21238. Which is exactly the same as mentioned in the documents about Tata Bolt XM car.It appears from the aforesaid documents that the model of car has been Changed by the O.P.No.2(ii) and 2(iii) but chassis No. remain thesame. This is anexample of manipulation and amounted to unfair trade practice committed by O.P.No-2(ii) and (iii).
13. Considering above facts, evidence and legal provisions well as the law settled by the Hon’ble court as discussed above, we find that O.P.No.2(ii) and (iii) have committed an act of gross negligency , deficiency in service and adopted unfair trade practice. However, we do not find any material against.P.No-2(i) i.e. the finance company and hence it is not liable. We, further find that bydelivering a car of inferior level which was neither agreed nor financed by the finance company, the O.P.No.2(ii) and 2(iii) have committed gross deficiency in service. It is also proved from the oral and documentary evidence that despite repeated request of the complainant his entire genuine grievances were not addressed and thereby caused mental agony, harassment and loss to the complainant and for that he had to fight long legal battle for three years, We further find that O.P.No.2(ii) and 2(iii) are jointly and severally liable for their negligency, deficiency in services as well as for adopting unfair trade practice.
14. So, far as the quantan of compensation is concernedwe find that the complainant has been able to prove that he was delivered with an inferior model car having total price of Rs.5,34,873/- against negotiation and agreement. Besides it is also proved that at the time of delivery of the car the Tiwari Automobils Ltd. and its Manager, did not comply with the guide lines of the companyby not supplying accessories etc. We are of the view that as the car has been in use of the complainant for the last three years, hence replacement would not be proper and justified. Therefore in view these facts we come to conclusion that O.P.No-2(ii) and 2(iii) are liable to pay compensation for illegally retaining of Rs.1,00,000/- (One lac) for 21 days without any lawful reason, not supplying fuel and accessories at the time of delivery of car supplying a vehicle of inferior model against agreed model causingmental agony, harassment etc. to the complainant in total of Rs.1,50,000/-(One lac fifty thousand) along with interest @15% p.a. from the date of delivery of inferior car i.e. 17.09.2015 till its final payment to the complainant. Besides, also directed to pay cost of litigation Rs.10,000/-(Ten thousand).
In view of the above discussions we find that the complainant is entitled to the reliefs claimed for against O.P.No.2 (ii) and 2(iii), however O.P.No.2(i) is not liable.
In the result,
O R D E R E D
That the case be and the same is allowed on contest against O.P.No-2(ii) and O.P.No-2(iii) who are jointly and severally liable. Therefore, we direct O.P.No-2(ii) and O.P.No-2(iii) to pay Rs.1,50,000 /-( One lac fifty thousand) along with interest @15% p. a towards principal amount, compensation etc. from the date of delivery of the car i.e.17.09.2015 till its final payment. Further they are also directed to pay litigation cost Rs.10,000/-(Ten thousand).
The order must be complied within 30 days from the date of receipt of this order failing which necessary legal action as contemplated U/S 25 and 27 of the Consumer Protection Act, 1986, shall be initiated.
The office clerk is directed to furnish copy of this order to the parties or their advocate free of cost.
This case, is thus stands disposed accordingly.
