Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 394/03.11.2016
Shri Nitin Gupta s/o Shri Nirmal Gupta
R/o D-228, IIIrd Floor, Vivek Vihar, Phase-I,
Delhi-110095 …Complainant
Versus
OP1-M/s Tempo Automobiles Pvt. Ltd.,
(Through its Managing Director),
1-E/18, Jhandewalan Extension,
New Delhi-110055
IInd Address:-
M/s Tempo Automobiles Pvt. Ltd.
(Through its Manager/Authorized Officer),
33-33A, Shivaji Marg, Industrial Area,
Rama Road, New Delhi-110015
OP2-M/s Force Motors Limited
(Through its Managing Director),
Mumbai Pune Road, Akurdi, Pune-411035 ....Opposite Party
Date of filing: 03.11.2016
Coram: Date of Order: 24.02.2024
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) –The complainant has grievances of unfair trade practice, negligence and deficiency of services, since he was sold a used and defective car/vehicle as brand new car/vehicle by OP1, who is an authorized dealer OP2/manufacturer. The complainant also mention name of previous buyer of same vehicle in paragraph 4 of the complaint and names of defects in car in paragraph-5 of the complaint, besides an excess amount above invoice amount was also charged from him. The complainant not only suffered used car, defective car, its maintenance and rectification but also harassment and agony, that is why the complaint was filed seeking return of paid amount with interest, compensation, costs etc.
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 that it was earlier purchased by another customer, who returned it after 10-12 days of use. The complainant was offered and also accepted three free services of the vehicle and its maintenance in lieu of buying of that sold vehicle. There was no excess charges as alleged but that amount was in fact for payment of road tax, MCD parking charges and other accessories provided.
1.3 The OP2 also opposes the complaint that there is neither deficiency of services nor any manufacturing defect in the vehicle to make accountable OP2. There is no examination of vehicle by an independent expert for its appropriate opinion on point of manufacturing defect in the vehicle. It appears to be a dispute between the complainant and the OP1 of resale of vehicle vis-à-vis there was mismanagement and mishandling of vehicle by the complainant for which there may be it repairs and maintenance, 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. Initially, this complaint was filed assigned CC. No. 67/2013, it was disposed off by Ld. Predecessors by their ex-parte final order dated 28.11.2013, however, the ex-parte final order was assailed in FA. No. 482/2015 by the opposite party and the impugned order dated 28.11.2013 was set aside by the Hon’ble State Commission by its order dated 26.09.2016, while directing to the parties to make appearance before District Commission on 27.010.2016 for further progress/trial of case. Thence, this case was re-registered as CC No. 394/03.11.2016.
2.1. (Case of complainant) –The complainant purchased a car Force One BS-IV having engine number D62000780, chassis number MCLJ-4A-CA-5CP-001106 (which was later registered having registration no. DL1CM9298, iesel car) [hereinafter as the car/vehicle] against payment of Rs. 12,75,830/- from OP1. The OP1 was paid this amount by way of advance booking of Rs. 40,000/-, loan of Rs. 10 lakhs from Bank of Baroda and part payment of Rs. 2,35,830/-. The complainant was issued invoice dated 08.06.2012 of Rs. 11,18,514/- by the OP1 and the complainant was charged excess amount of Rs.1,57,316/-.
2.2. The complainant had paid the amount for buying a brand new vehicle/car from OP1 and the vehicle was delivered on 03.06.2012 to the complainant. However, subsequent to delivery of car, it was revealed that the complainant was delivered a used and defective car in place of new car. This car was earlier sold and delivered to Sh. Ravinder Chikara, resident of 7/277A, Gali No. 1, Model Town, Bahadurgarh, District Jajjar, Haryana on 23.04.2012 and he had returned the said car to OP1 on 23.05.2012 that too after it was driven 1100 km. The OP1 had concealed this fact and it had delivered defective and old/used car to the complainant on 03.06.2012. Since the gate pass issued by OP1 to the complainant is showing just 32 km meter reading, it means meter was also tempered by the OP1. It was also revealed that the car earlier delivered to Sh. Ravinder Chikara was insured in his name from M/s Bajaj Allianz.
2.3. The complainant enumerates the following defects revealed in the used car delivered to him:-
(a) Seats (Driver Seat) has been changed by OP being defective.
(b) Front two shockers were changed by OPs from the old car to make it new.
(c) There is big sound in the car when the gears are changed.
(d) There is defect in power window and the same is not working properly.
(e) The middle seat of the car is defective.
(f) The said pull out black smoke and the same is creating pollution.
(g) The AC of the car is not functioning properly.
(h) The blower system in the car are defective.
(i) The AC of the car has been changed by OP and new AC is not functioning properly.
(j) There is big noise in suspension.
(k) The hand break are not working in any manner.
(l) The gate of the car are loose.
Thus, the OP1 delivered old used and defective car as new car to the complainant vis-à-vis the same vehicle was earlier insured from Bajaj Allianz in the name of previous purchaser but the vehicle delivered to the complainant was got insured from Reliance General Insurance Company. The OPs are liable to refund the entire payment of Rs. 12,75,830/- towards principle amount besides interest at the rate of 12%pa since complainant has been paying interest at the rate of 12% to the lender Bank w.e.f. 03.06.2012 till the date of filing of the complaint, which comes to Rs. 1,02,070/- as well as compensation of Rs. 50,000/- in lieu of mental agony, harassment; the total amount comes to Rs. 14,27,900/-, which is payable by the OPs jointly or severely. The complainant also sent demand notice dated 18.02.2013 to the OPs but there is no response by either of them. The OPs are also liable to pay litigation expenses of Rs. 35,000/- besides pendent-lite and future interest at the rate of 12%pa.
2.4 The complaint is accompanied with copies of - demand notice dated 16.02.2013 with postal receipt & AD cards, delivery slip dated 23.04.2012 in the name of previous buyer Sh. Ravinder Chikara, warranty certificate, proposal form for insurance policy from Reliance General Insurance Company, gate pass dated 03.06.2012, sale certificate/form no. 21, letter dated 31.05.2012 of sanctioning of loan by Bank of Baroda, motor vehicle Form-F dated 17.04.2012, warranty certificate dated 17.04.2012, part payment receipt dated 04.06.2012 for Rs. 2,35,830/-, copy of advance booking amount receipt dated 25.05.2012 of Rs. 40,000/-, copy of payment receipt dated 04.06.2012 of Rs. 10 lakhs, invoice dated 08.06.2012 for Rs. 11,18,514/- of the vehicle, gate pass/delivery bill, registration certificate, insurance policy issued by Bajaj Allianz, premium receipt of payment by Shri Ravinder Chikara to Bajaj Allianz, coverage option in favour of Ravinder Chikara, payment receipt dated 01.08.2013, insurance policy in favour of complainant issued by Reliance General Insurance and 11 more invoice/bills of services.
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 that it is a registered company with a great reputation in the market for quality of products and services provided by them. It is registered dealer of Force Motor Ltd./OP2 (previously known as Bajaj Tempo) having highly repute in Indian automobile maker, manufacturing automobiles since 1958 and it has association with German manufacturer-Mercedes Benz since 1976.
3.2. On 23.04.2012 Mr. Ravinder Chikara bought the vehicle and took the delivery thereof, however, after 15-20 days he came back to the showroom of OP1 and showed his desire to take different vehicle. Since, the subject car/vehicle was not registered in his name till then, the said car had hardly done 900 km, therefore, as a goodwill gesture towards said buyer, the OP1 took back the said car from Mr. Ravinder Chikara.
It was 25.02.2012, when complainant approached OP1 to buy a Force One BS-IV of black colour on urgent basis but Force One BS-IV of black colour asked for was not immediately available with the manufacturer, therefore, by looking at the urgency of the complainant to take immediately delivery, the OP1 offered the subject vehicle to the complainant. The complainant was very well informed about the status of that vehicle given to Sh. Ravinder Chikara, who returned the said car back to OP1 without registration. Thence, the complainant agreed to buy that vehicle/car for Rs. 11,18,514/- from OP1 against invoice and another amount of Rs. 1,42,315/- was towards registration charges including road tax of Rs. 4,000/- for MCD parking charges and Rs. 11,000/- accessories charges against invoice; thus the total amount received was Rs. 12,75,830/-. Moreover, the OP1 had also proposed to provide three free service with material for any major defects, it was also agreed and accepted by the complainant because of his urgency. Moreover, the OP1 also got the air conditioner kit replaced in the vehicle by buying it from M/s Dutta Brothers against invoice no. 127 dated 26.04.2013 for an amount of Rs. 20,250/-, which was borne by the OP1. The three services were also provided against invoices bearing no. 2678, 2924 and 127 dated 01.08.2012, 17.08.2012 and 26.04.2013.
3.3. In response to the allegations of defects in the car, the OP1 responses that the vehicle was brought 17 times to the service centre for service and repairs but not for major complications from the date of purchase till 10.06.2015, when the vehicle had run above 58,150 km. On all the occasions, the complainant was provided services to the vehicle upto the satisfaction and no complaint was raised ever-since on any issue, for which job cards are being filed.
3.4. The delivery receipt/gate pass showing 32 km is not under the seal and signature of OP1, therefore, the said receipt (Annexure-16) is fabricated. The complainant had purchased the vehicle on 03.06.2012 knowing well its previous sale status, however, till February 2013 no complaint was filed but post February 2013 the complainant changed his mind and filed the frivolous complaint on 10.04.2013 to malign and illegally bargain to OP1. There is no cause of action in favour of complainant and against opposite party. The track record shows that the OP1 provided its best services to the complainant but complaint is mala-fide and the complainant came without clean hands before this Commission. The OP1 also fulfilled its all obligations by attending every complaint and also made every possible repairs, replacement of parts free of cost. There is also no merit in the complaint either of excessive charges or otherwise. The complaint is liable to be dismissed as no claim is made out.
3.5 The written statement is accompanied with copies of- invoice dated 03.06.2012 for accessories, invoice dated 08.06.2012, other invoices of free services and job cards till 10.06.2015.
4.1 (Case of OP2) –The gist of case of OP2 has already been compiled in paragraph-1.2 above. The present complaint of complainant appears to be a case of resale of the vehicle by the dealer/OP1 to the complainant, thus complaint is not maintainable against OP2/ manufacturer. As per record being maintained by the OP2 in it DMS portal, the subject vehicle was sold and registered in the name of complainant and not in the name of Mr. Ravidner Chikara. The OP2 sells the vehicle in bulk to its authorized dealer, who in turn effect retail sale to the customers. In case an authorized dealer re-sells a vehicle, which was earlier sold to another customer, it can only be with the mutual consent of authorized dealer and the customer but OP2 is no way involved or concerned with such resale transaction. The OP2 cannot be held liable, especially the relationship between the OP1 and the OP2 is of principal to principal basis. Moreover, the complainant has been using the vehicle regularly and extensively, it run 65000 km approximately within the span of three years. There is no scope or question of replacement of the vehicle or compensation.
4.2 The OP1 is authorized dealer of OP2, being the relationship of principal to principal basis and under that arrangement appointment letter dated 11.10.2011 was issued. The complainant had purchased the vehicle from OP1 and it was 03.06.2012 when vehicle was handed over to him by OP1, after conducting pre-dispatch inspection of the vehicle including road trials; the complainant was satisfied with the condition and performance of the vehicle. The vehicle is in a warranty of two year or 1 lakh km from the date of sale whichever is earlier but subject to terms and conditions of warranty mentioned in the service coupon booklet. Moreover, in the event of any complaint, the warranty is extended just to cover repairs of vehicle but it does not include replacement of car.
4.3. On 11.05.2012 the vehicle was brought to the service centre of OP1 first time for after sale mandatory free service, the service was conducted and vehicle was checked thoroughly by experts/engineers of OP1. The vehicle was handed over to the complainant after service. Thence, the complainant was approaching the service centre with some other concern but on inspection the same were found not-existent and frivolous or it was result of mishandling of the vehicle by the complainant. The alleged complaints were minor issues of running repairs, which happens in normal uses, wear and tear; however, the same were attended to the satisfaction against job cards. The opposite parties extended their best services throughout to the complainant; however, the false complaint was filed.
However, in order to examine the veracity of allegations of the complaint, the vehicle ought to have been sent for examination by an independent expert body in terms of section 13(1) (c) of the Consumer Protection Act 1986 but there is no such opinion obtained. The OP2 also denies allegations claimed amount or other relief enumerated in the complaint against OP2. The complaint is liable to be dismissed.
4.4 The written statement is accompanied with letter of appointment dated 11.10.2011, retail invoice no. 4120 of sale of vehicle by OP1 to the complainant, terms and conditions of warranty for Force-One, job cards of various dates (from page-23 to 41).
5.1. (Evidence)- In order to prove the complaint, the complainant Sh. Nitin Gupta led his exclusive evidence by filing detailed affidavit on the pattern of complaint, with the support of all documentary record filed with the complaint; the details of documents are narrated in paragraph-10 of the affidavit [which has been referred in paragraph 2.3 above].
5.2. OP1 led its evidence by filing affidavit of Sh. Ranjay Kumar Singh, AR of OP1 and it is replica of written statement with the support of documents filed.
5.3 OP2 also led its evidence by filing affidavit of Sh. Amit Puri, Senior Service Manager and Authorized Signatory, it is on the lines of written statement with the documents.
6.1 (Final hearing)- The parties were given opportunities to file written arguments and make oral submission. The complainant, the OP1 and the OP2 filed their respect written arguments, which are blend of their pleading and evidence. Moreover, Sh. Sudhir Sharma, Advocate for complainant, Sh. Anmol Gupta, Advocate for OP1 and Sh. Vijay Valsan, Advocate for OP2 also presented oral submissions. 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.
6.2.1. Ld. Counsel for OP1, in order to support its contentions, derives reasons from following cases -
(i) Mercedes Benz India Private Limited Vs. Revathi Giri and Ors. MANU/CF/0732/2023 dod 11.10.2023 (para-8), wherein it was held that the vehicle was admittedly run over 56815 km on 18.07.2019, when it was brought to the workshop; it was not case of the respondent that vehicle was not properly attended or defects were not rectified as per terms and conditions of warranty, it was not a case of deficiency of services established by the consumer either on account of manufacturing defect of vehicle or repairs by the workshop. The defects, which are covered under the warranty, cannot be concluded to be manufacturing defect in the absence of expert opinion.
(ii) Ankur Jain Vs. M/s Skoda Auto India Ltd. Complaint. No. 377/2011 dod 30.05.2019 (decided by State Commission, Delhi) that expert opinion is necessary for to prove manufacturing defect. Moreover, extensive use of car is also fatal to the case of complainant that it has manufacture defect.
6.2.2. Ld. Counsel for OP2 also relies upon -
(a) Tata Motors Ltd. Vs. Antonio Paulo Vaz [CA. No. 574/2021 arising out of SLP (C) No. 10220/2020 by SC dod 18.02.2021] that when the relationship of the manufacturer and of the dealer are on principal to principal basis, besides unless it is proved that manufacturer had knowledge of all events taken place, the manufacturer cannot be held liable.
(b) M/s Cadbury India Ltd. Vs. Kenteppa & Anrs. [RP. No. 1051/2010 dod 03.12.2015 (NC) (para10)] it was held that section 13(1)(c) of the Consumer Protection Act provides that when there are allegations of any defect in the goods, which cannot be determined without proper analysis or test of the goods, the District Forum ought to have obtained the sample of the goods as per provision of law prescribed and refer it to appropriate laboratory for opinion. The analysis of product was material by the laboratory and in its absence, the prescribed procedure was not followed and petition of manufacturer was allowed.
7. (Findings) –The rival contentions of parties are considered, keeping in view the material available in the record, the statutory provisions of law and the case law presented. There are many undisputed facts with regard to the relationship of the complainant and the OP1, as buyer and seller of the vehicle/car, the payment tendered by the complainant to OP1 for purchasing the vehicle against the invoice issued by OP1. There is also no dispute of the relationship of the OP1 being authorized dealer of OP2/Manufacturer. One more important aspect is also not disputed that the vehicle sold to complainant by OP1, was also earlier sold to Sh. Ravinder Chikara, however, the dispute is (a) whether or not it was with the knowledge, approval and consent of complainant. The other dispute is (b) whether or not there were defects in the vehicle? They are being taken one by one.
8.1. By taking into stock of all materials and rival contentions for the purposes - (a) whether or not the vehicle was re-sold to the complainant to his knowledge, approval and consent?-, the following conclusions are drawn :-
(i) The admitted case of OP1 is that vehicle earlier sold to Ravinder Chikara on 24.04.2022 was resold to the complainant on 03.06.2012. However, according to complainant the vehicle had journey of 1100 km by previous buyer but according to OP1 it was 900 km. The complainant has proved delivery bill/gate pass (Exh. CW1/5) showing that the date of delivery is 23.04.2012 to Sh. Ravinder Chikara. The complainant has also proved another gate pass of 03.06.2012 (Exh.CW1/17) in respect of vehicle sold to the complainant, that the vehicle had travelled 32 kms., which OP1 claims that the same is fabricated for want of seal of OP1.
However, both the delivery bills/gate passes are on printed form of OP1, having logo mark of OP2, however, the OP1 has not produced any contrary gate pass to counter the gate pass proved by the complainant. To say, the OP1 would have been record of delivery bill/gate pass since exit is not permitted unless that gate pass is shown. Therefore, for want of contrary evidence by OP1, the gate pass proved by complainant establishes that at the time of making exit, there was 32 km mileage being shown in meter of the said vehicle, which was sold to the complainant.
(ii) The complainant has also proved invoice (dated 08.06.2012) having book no. 83/serial no. 4120 of sale of the vehicle with the description of chassis number and engine number. This invoice does not depict any discount given to the complainant by reducing the total amount as contended on behalf of OP1.
When the vehicle was sold to Sh. Ravinder Chikara, its IDV was Rs. 10,71,537/- is mentioned as insured by Bajaj Allianz General Insurance Company Ltd. (Exh. CW1/20), but when the vehicle was get insured in the name of complainant its IDV was Rs. 10,62,588/- (Exh. CW1/23). However, the invoice was for Rs. 11,18,514/-, inclusive of VAT but there is no discount.
The OP1 claims that complainant had accepted free three services or other provision for material for major defects. However, there is no such proof that these three free services were other than the free three services are provided to be construed discount. But the OP2, also concedes in its plea that there are three free mandatory services of the vehicle warranted. Then how, those three services can be considered discounts by OP1?
(iii) The OP1 claims that Sh. Ravinder Chikara had returned the vehicle after 15-20 days by travelling 900 km as he had desired the other vehicle and the OP1 took back vehicle from him for want of registration in his name till then, however, there is no fact in the written statement or evidence or any documentary record to show as to which vehicle was purchased by said Ravinder Chikara in lieu of return of the vehicle after 15-20 days or around 8.5.2012/13.5.2012 or otherwise.
The invoice dated 08.06.2012 (Exh. CW1/16) is in respect of sale of vehicle to the complainant by OP1, it is also proved by OP1 (Annexure-3 at page-12 of paper book of the OP1). It is sale of a brand new vehicle/car to the complainant. But, the clause no. 3 of this invoice reads as “Goods once sold shall not be taken back”. Moreover, the vehicle had travelled 900 km, as per case of OP1, by the previous buyer Sh. Ravinder Chikara, it means the vehicle was on road and it could be on road after retail invoice, temporary number and valid insurance. What happened to the VAT charged from Sh. Ravinder Chikara in the invoice in his name; whether it was adjusted for other vehicle, if sold to Sh. Ravinder Chikara but it has not been proved. Moreover, during the course of oral submissions there was no explanation on this inquiry, just that record is not available. Whereas, since it was plea of OP1 that Mr. Ravinder Chikara had desired another vehicle in lieu returned, the onus was on OP1 to prove it; it has not been proved.
(iv) The complainant has proved insurance policy, which was issued in the name of Sh. Ravinder Chikara for period 24.04.2012 to 23.04.2013 schedule (Exh. CW1/19) issued by Bajaj Allianz Insurance Co. Ltd. and this also shows policy issued on 23.06.2012, as private car policy and its policy status “Cancelled”. By reading all this information it depicts that policy was continuing in the name of Sh. Ravinder Chikara and policy was kept alive till the vehicle was sold to the complainant and then it was got cancelled. The complainant has also proved premium receipt dated 27.04.2012 (Exh. CW/1/21) issued by Bajaj Allianz Insurance Co. Ltd. in respect of premium of Rs. 31,548/-, which was paid by way of cheque no. 461405 and it was received from Sh. Ravinder Chikara.
(v) The complainant has also proved warranty certificates (Exh. CW1/11and Exh. CW1/12) issued on 17.04.2022 in respect of the vehicle with the detail of model, chassis number, engine number, etc. The vehicle was sold to previous buyer on 24.04.2012 by OP1 after receiving vehicle and warranty certificate from OP2.
(vi) The OP1 had entered the repairs etc to the vehicle in 2013 inclusive of problem or replacement of air conditioned in 2013. The demand/legal notice was also sent to OPs on 16.2.2013, therefore, the perception of OP1 that complainant was filed all of sudden after change of mind by the complainant post Feb. 2013 are not convincing by the situation. Further, the demand notice was an advance information to OPs that appropriate legal remedy may be invoked, in case issues are not settled.
(vii) However, the chronology of events spells out that first sale was between the OP1 and Sh. Ravinder Chikara but it was made known to the complainant; the complainant was resold the used vehicle as brand new vehicle by OP1. Moreover, in this entire episode of re-sale of vehicle as brand new car, there is no involvement of OP2.
(viii) the circumstances have been proved against OP1 by the complainant that he was sold used vehicle as a brand new vehicle. It is settled law that selling the used vehicle without the consent of buyer, it is , unfair trade practice and also deficiency of services. In Shashank Shah & 2 others Vs Gurjeet Singh Maan RP no.1205/2014 dod 01.04.2021 (N/C), it was held the selling of used car as new brand car for charging the price of new car is unfair trade practice, the order passed by the State Commission and the District Commission was confirmed, while directing refund of car price by the seller.
8.2. In view of the conclusion drawn in paragraph 8.1 above, it is crystal clear that there is no circumstances either speaking or inferring that the complainant was sold the vehicle by OP1 by disclosing that it was already sold vehicle to Sh. Ravinder Chikara, who returned it because of his desire to have another vehicle. Therefore, it is held that OP1 sold the used vehicle as a brand new vehicle to the complainant without disclosing the status of the vehicle was already sold to Sh. Ravinder Chikara who returned it. Moreover, in this series of events, there is no role of OP2/Manufacturer. Accordingly, this issue stand disposed off.
8.3. With regard to other issue (b) whether or not there were defects in the vehicle?, the following reasons are culled out from the case of parties to the complaint:-
(i) The complainant's case is of many defects in the said vehicle, which have also been deposed in paragraph-6 of affidavit of evidence [which have already been mentioned in paragraph-2.3 above]. They are stated as mechanical and other defects, which range from internal parts to the external side, some of them were even not functioning properly. The OP1 denies them since they are usual vehicle opearing/running repairs and not major complaints vis-à-vis all of them were attended satisfactorily during 17 times visits, till then there was mileage of 58,150 km of the vehicle. But, the OP2’s case is that such defects are not manufacturing defect nor there is any expert opinion but they are because of mismanagement and mishandling of the vehicle.
(ii) The complainant and the OP1 have proved job cards and invoices in respect of repairs of the vehicle from time to time and frequently, which are also showing relevant mileage besides that vehicle was originally sold on 24.04.2012.
There are various bills, however, the immediate repair was after purchase of vehicle, which is of 20.6.2012 (Exh. CW1/32), 30.07.2012 (Exh.CW1/31) and other job cards are of October and November 2012. Thence, many repairs were done in the year 2013. The OP2 has also proved running repair job card of different period from 23.04.2012, 11.05.2012 onward till 10.06.2015 (pages 41 back to 23). It shows that on the various occasions the vehicle was taken to service clinic of OP1 for appropriate repairs etc. It is also fact in the job card dated 10.06.2015 that there was mileage of 58,150 km but correspondingly showing from the initial date of sale of 23.04.2012. However, the job cards (at page no.41,40, and 39) are prior to date of purchase [3.6.2012/8.6.2012] of vehicle by complainant but in the name of complainant. There is no explanation. OP2 also pleaded that vehicle came for first time service on 11.05.2012 at service centre of OP1, even at that time vehicle was previous buyer and the complainant sold the vehicle in June, 2012.
(iii) The vehicle was suffering from various defects from time to time and its air conditioner were also replaced in the April , 2013, which clearly shows that there were such reasons for repairs, spares, replacement etc.
(iv) One of the emphasized plea of complainant was about change of seating capacity of vehicle. Originally it was having capacity of 6 seats (5+Driver), which find mentioned in the warranty card [Exh.CW1/6, Exh.CW1/11, Exh.CW1/12], besides in the insurance policy cancelled schedule (Exh.CW1/19). But this stand of complainant was equally opposed vehemently by the OPs that nothing was so mentioned in the pleading or evidence as being demonstrated during the course of oral arguments.
However, at the outset, this issue can be adjudicated, since pleading (complaint or written statement) is not evidence but the documents are evidence, which has been proved in evidence. The documents were filed with the complainant. Sub-clauses (e) and (a) of paragraph-6 of the affidavit (under the heading of old used car and defective car) it mentions about conversion of 6 seat capacity into 7 seats besides driver seat has been changed and in support thereof the documents already on record is referred. The complainant's affidavit of evidence and documents are being read together and following conclusion are drawn:-
(a) As per Motor Vehicle Form-F issued by OP2 [Exh.CW1/6] and warranty certificate [Exh.CW1/11, Exh.CW1/12] issued by OP2 mention capacity of the vehicle as “5+D”.[D-stands for Driver].
(b) The Insurance policy (Exh. CW1/19 in favour of Sh. Ravinder Chikara) also shows seat capacity-6, which includes driver. This would have been on the basis of sale certificate and other record furnished.
(c) The Insurance policy (Exh. CW1/23 in favour of complainant Nitin Gupta) shows seat capacity 6, which includes driver specifically so mentioned.
(d) The registration certificate of the vehicle bearing registration no. DL1C-M- 9298 (Exh. CW1/18) is showing seating capacity-7 (i.e. 6+D). The sale certificate (Exh. CW1/9) and gate pass (Exh.CW1/8) issued by OP1 are also showing capacity of the vehicle as 6+D=7. It is admitted case of OP1 that it took the charges from the complainant for registration charges etc., therefore, it was OP1 who get the vehicle registered and other requisite formalities completed by issuing the sale certificate and other documentation by showing capacity of the vehicle as 6+D=7.
(v) It proves that OP1 has converted seating capacity of 6 persons (5+D) into 7 persons (6+D) by appropriate modifications etc but there is no proof by OP1 at whose request it was changed vis-à-vis it is own case of OP1 that Sh. Ravinder Chikara returned the vehicle and then immediately it was sold to the complainant because complainant was asking on urgent basis. It is admitted case of OP1 of change of 6 seats into 7 seats but it result into modification of originally designed, shaped and styled model manufactured by the OP2.
(vi) Under these circumstances when the basic original feature of the seating capacity has been changed from 5+D to 6+D, the basic nature of vehicle changes and in the changed structure of the vehicle, the scope for seeking expert opinion dilutes, otherwise it is a fact that neither the complainant nor the other side have ever since asked for expert opinion. It also proves that in the changed scenario of seating capacity, there was no feasibility of expert opinion. The OP2 cannot be made accountable under these circumstances being manufacturer of the vehicle. The complainant also mentions 'defects' in the vehicle but without qualifying it to be manufacturing defects.
(vii) The OP1 cannot derive any benefit under the plea of want of expert opinion, since because of OP1 there is change of basic structure of the vehicle by converting into 6+D seats capacity from the original 5+D seats capacity. The case law Mercedes Benz India Pvt Ltd case (supra) and Ankur Jain case (supra) would not help the OP1.
(viii) There is inconsistency in the plea and evidence of OP1, since the case of OP1 is that the vehicle was initially sold to Sh. Ravinder Chikara on 24.04.2012 but complainant came for buying the vehicle on urgent bases on 25.02.2012 but at that time vehicle was not available and the complainant was offered the vehicle, which was sold to Sh. Ravinder Chikara, who had returned it.
This plea of OP1 is fatal to its own case, since Motor Vehicle Form-F of 17.04.2012 (Exh. CW1/11) of the vehicle in question and also warranty certification of 17.04.2012 (Exh. CW1/12) were issued by OP2. The OP1 was receiving the vehicle from the manufacturer as well as warranty certification on 17.04.2012, then the same was sold to the Sh. Ravinder Chikara on 24.12.2012, who had returned it after 15-20 days (which is around 8.5.2012/13.05.2012), how it could have been offered for sale on 25.02.2012 to the complainant?
(ix) There is no proof of manufacturing defects since there is change of basis structure of the vehicle by OP1, therefore, OP2 is not liable and accountable thereof.
Although, the vehicle was being taken to service clinic from time to time because of regular need of repairs emerging from time to time even air conditioner was to be got replaced, for no fault of complainant. Both OP1 and OP2 are taking the stand that there was mishandling and mismanagement of the vehicle, however, this plea could not have been clothed with evidence. The OP1 and OP2 have also taken the plea that vehicle had made a journey of around 58,150 km or 65000 km in three years to show that the vehicle is running in good condition, however, this would not help them, firstly there may be two situation either to keep the vehicle stationary as ideal and the other situation is keep it running despite adversaries, it appears the complainant opted the second option. Secondly, it becomes immaterial when it is already held that complainant was sold the used vehicle as a brand new vehicle.
Thus, the circumstances proved are showing there were defects in the vehicle, which were attended from time to time by OP1 but complainant could not prove them to be manufacturing defects nor those were pleaded as manufacturing defects. Moreover, relationship of the OP1 and the OP2 is of the principal to principal, the OP2 cannot be held liable for such acts and deeds of OP1. This contention is also disposed off.
8.4. The OP1 has pleaded and also led evidence that an amount of Rs.1,42,315/- was taken from the complainant for requisite charges of registration fee, road tax other charges, accessory charges, etc but complainant could not rebut it. There is no proof of excess charges by OP1 from the complainant. This contention is also disposed off.
9.1 In view of the detailed discussion and conclusion in paragraph-8 above, the complainant is entitled for refund of the invoice amount of Rs. 11,18,514/-, which was paid against invoice after borrowing partly amount from the bank against interest.
9.2 The complainant claims interest at the rate of 12%pa since he had borrowed the amount from the bank. The complainant has established that a sum of Rs. 10 lakhs was borrowed by him from Canara Bank to pay the amount for buying the vehicle, however, no rate of interest has been proved which was being paid to the said bank. To meet all end of justice, the prevailing 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.
9.3 The complainant has also claim compensation of Rs. 50,000/- in lieu of harassment and mental agony and litigation cost of Rs. 35,000/-. The complainant had sent legal notice dated 16.02.2013 (Exh. CW1/1) to the OPs for seeking compensation of Rs. 5 lakhs. By considering all the circumstances, compensation of Rs. 10,000/- inclusive of cost is allowed in favour of complainant and against the OP1.
10.1 Accordingly, the complaint is allowed in favour of complainant and against the OP1 while directing the OP1 to pay a sum of Rs.11,18,514/- along with interest at the rate of 7%pa from the date of complaint till realization of amount, damages of Rs.10,000/- inclusive of cost payable within 45 days from the date of this order. In case the OP does not pay the amount within stipulated period, then there will be enhanced rate of interest of 9%pa (in place of 7%pa). The OP1 may also deposit the amount in the form of pay order/demand draft in the name of complainant in the Registry of this Commission; in that eventuality the complainant may be informed of such deposit.
Simultaneously, the complainant is also directed to return the vehicle bearing registration no. DL1CM9298 to the OP1 within that period and OP1 is also directed to acknowledge the receipt of the vehicle. They are expected to cooperate by making advance schedule for handing over of the vehicle and payment of amount directed.
10.2 The complaint against OP2 is dismissed.
10.3. The complaint stand disposed off.
11. Announced on this 24th day of February, 20240 [फाल्गुन 05, साका 1945] 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.
[Inder Jeet Singh]
President
[ijs-26]
[Shahina]
Member (Female)
