SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act 2019, seeking to get an order directing OP No.1 to replace the vehicle supplied by OP No.1 with booked vehicle ie Harrier XZ+Diesel MT Vehicle with phase II features together with Rs.3,00,000/- towards compensation.
Facts of complaint are that complainant booked a brand new car of model TATA Harrier XZ+Diesel MT of colour grey form the above OP No.1 with a booking amount of Rs.10,000/- on 05/04/2023. 2nd OP is the manufacturer of the TATA Harrier XZ+Diesel MT vehicle. Complainant opted this vehicle model after seeing the advertisement through press release on 22/02/2023 about their brand new latest Harrier care with many advanced features such as Panoramic Sunroof, 360 degree camera view, 6 way adjustable drier seat with memory and welcome features, wireless charging, panic brake alert, driver doze off warning, after impact braking etc. which were updated with their old harrier care and after enquiry with their showroom came to know that they have released the updated BS6 Phase II vehicles with enhanced features and the same was viewed in the vehicle brochure provided to the complainant by the company website that convinced him to opt for this car model. Complainant is an Indian navy commanding officer and is entitled to get tax benefits by purchasing the vehicle through CSD of defense service. As per the price list issued by the 1st OP, complainant has to pay Rs.19,59,486/- towards CSD ESP +19,595/- towards TCS as the sale price of the band new TATA Harrier XZ+Diesel MT vehicle along with other charges such as insurance, registration charges etc. Accordingly complainant booked the above TATA Harrier XZ+Diesel MT vehicle with phase –II features through the representative of the OP No.1 viz., Suraj kumar and Sahil Malhotra. Thereafter the complainant paid an amount of Rs.19,79,082/- through SBI on 11/04/2023 towards the cost of the vehicle. When complainant took delivery of the vehicle, he came to know that the vehicle bearing chassis No. MAT631601PWA02283 with Engine No.46343885-4230619 delivered to him was an old model of Harrier XZ+New car without having any features, as ensured by OP No.1 when they received booking order. Complainant understood that he has been cheated by OP No.1 by delivering old dead stock vehicle manufactured by OP No.2 prior to the Press Release dated 22/02/2023 kept in the yard of OP No.1. There are absolutely so many features variations in between Harrier XZ+New & Harrier XZ+Diesel MT vehicle with phase –II car. Complainant immediately contacted OP No.1 and expressed his inability to take delivery of a different vehicle and asked to get the issue rectified by replacing the old version with the actual booked Harrier XZ+Diesel MT vehicle with phase–II car. But OP No.1 informed the complainant that since the vehicle was temporarily registered and all other process was already completed in the name of the complainant and requested the complainant to take delivery of the vehicle for the time being and OP No.1 assured the complainant that the issue will be resolved soon after by replacing the vehicle. Without any other alternative, believing up on the works and assurances of OP No.1, complainant took delivery of the vehicle and get it be registered in his name. Complainant contacted OP No.1 several times through telephone, email etc. and they initially continued their assurance to replace the vehicle immediately after getting confirmation from their higher level sanction but day by day OP No.1 changing their versions and they took advantage of the situation in which the complainant was seriously put in. Later OP No.1 has no hesitation to say that it is not possible to replace the old version with Harrier XZ+Diesel MT vehicle with Phase-II as booked. It is an unfair trade practice that the seller has done by selling an older model to the complainant. Hence this complaint.
After receiving notice, OP No.2, entered appearance through counsel and filed vakalath. After filing vakalath, there was no representation from the side of OP2. Neither OP2 nor his counsel appeared on the subsequent posting dates and not filed version. Hence OP2 was declared as ex-parte. With regard to OP1, the notice was not returned after requisite period of time. Hence it is presumed that notice would be given. Hence OP1 was also declared as ex-parte and posted the case for adducing ex-parte evidence.
Complainant has filed his chief affidavit and documents. He has been examined as Pw1 and Exts marked as Ext.A1 to A12. After that learned counsel for complainant made oral argument. The question to be decided are 1. Whether there is deficiency in service on the part of OPs? 2) If so what relief can be given?
Complainant’s allegation is that OP No.1 has sold an old model of Harrier XZ, instead of receiving the price of Harrier XZ+Diesel MT Vehicle with phase – II features which he has booked. Ext.A3 shows the price of old model vehicle and Ext.A4 shows the price list of new model vehicle which he booked. Ext A5 and A6 shows the difference of features in the two model vehicle. Ext.A8 shows that the complainant had paid rs.19,79,082 through SBI on 11/04/2023 towards cost of the vehicle. Ext.A9 is the delivery note stating that Harrier XZ/New model was delivered to the complainant. Ext. A11 is the copy of e-mail communication of OP No.1 to the complainant considering the grievance of complainant and offered to reimburse an amount of Rs.43,000/- the price difference between the actually booked vehicle and delivered vehicle in terms of extended warranty and few accessories. Through complaint chief affidavit and documents complainant proved his case against OPs 1 and 2. Since OPs remained absent and have not contested the allegations of the complainant against them by filing written version and material evidence, we are constrained to believe the complainant’s case. From the available evidence, there is deficiency in service and unfair trade practice on the part of OPs 1 and 2. So complainant is entitled to get relief. Thus the point the point No.1 is found in favour of complainant.
In the result complaint is allowed in part. Opposite party No.1 is directed to replace the vehicle supplied by OP No.1 with booked vehicle by the complainant ie Harrier XZ + Diesal MT vehicle with phase –II features, to the complainant. Opposite parties No.1 and 2 are directed to pay Rs.2,50,000/- towards compensation towards monetary loss (insurance premium) and mental agony. Further Rs.10,000/- towards cost of the proceedings Opposite parties 1 and 2 shall comply the order within one month after receiving the certified copy of this order. Failing which Opposite party No.1 shall reimburse the price of the vehicle 19,79,082 with interest @ 7% per annum from the date of order till realization to the complainant. Rs.2,50,000/- also will carry interest @7% per annum from the date of order till realization. Complainant can execute the order as per provisions in Consumer Protection Act 2019.
Exts.
A1- Copy of the press release by OP No.2 dated 11/02/2023
A2- Copy of the press release by OP No.2 dated 22/02/2023 A3- Copy of vehicle quotation of old Model dated 06/02/2023 A4- Copy of vehicle quotation
A5- Copy of car brochure of old model
A6- Copy of brochure of phase- II model
A7- Copy of advance booking done through SBI account via UPI
A8- Copy of payment of Rs.19,79,082/- dated 11/04/2023
A9- Vehicle delivery acknowledgment note dated 14/04/2023
A10- Copy of RC particulars downloaded from RTO.
A11- Copy of e-mail communications
A12- Copy of Adhaar card.
Pw1- Complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
/Forward by order/
Assistant Registrar
