IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/53/2013.
Date of Filing: 23.04.2013. Date of Final Order: 28.04 .2015.
Complainant: Debabrata Das, S/O Dilip Kumar Das, Vill. Chamragudam, P.O. Rampurhat,
Dist. Birbhum, Pin Code- 731224.
-Vs-
Opposite Party: The Lexican Motors Prop. Reliance Industrial Consortium Limited, NH-34,
Balarampur, P.O& P.S. Berhampore, Dist. Murshidabad.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya- Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of Consumer Protection Act, 1986 for payment of Rs.5, 29,647/- plus interest plus compensation of Rs. 5 lac and for cost.
The complainant’s case, in brief, is that the complainant purchased one Indica Vista LXTDI Car and got delivery of that car on 23.01.13 from the OP and on 09.02.13 the engine of the aforesaid car got totally collapsed and thus the car became to a break down condition. The matter was informed to the OP immediately over telephone. The OP instead of giving help to repair the car, the OP directed the complainant to bring the break down car to their place at his own cost. Then he informed the matter and lodged complaint to Tata Motor over toll-free phone and then the Tata Motors out of their own accord took the break down car to B.D. Motors at Durgapur for necessary repair wherefrom it was informed that the said car was not a brand new car but a second hand car. The OP practised fraud upon this complainant and also thus cheated him. Before he got delivery of the car, the same was sold on 21.06.2012 to someone. The OP displayed the same car as a demo car at the Salar Loan Mela and at Hariharpara on and from 15.12.2012 to 03.01.2013 driver Asrufaul Islam, driving license No. 75/94. Again the OP party displayed the same car as demo car at the fair at Dattafuliya to Berhampore on 18.12.2012 driver Abu Sayed Seikh driving license No. 197/90.The complainant approached to the Opposite Party for times with a prayer for changing the car by replacing the same with a new one but in vain. Then having no other alternative the complainant has filed this case praying for payment of Rs.5,29,647/- plus interest plus compensation of Rs. 5 lac and for cost. Hence, the instant complaint case.
The W/V filed by the OP, in brief, is that the car was a new care and it was not a re-sold car. One Nantu Sk earlier wanted to purchase the same car and advance was paid by the proposed Buyer. But within considerable time Nantu Sk was unable to pay the dues. So, he cancelled the order. According to the rules of the Company when anybody booked any car then it would be treated as a sold Car. After cancellation the show room would take the approval for re-bill from the company. The Opposite Party complied with all formalities and then sold the car to the complainant. Before sale the OP has the right to keep the car in the show room or in any fair and this does not mean that the car is a “Demo Car”. The complainant never took the Car to the Opposite Party. If there be any defect in the Car then it was the duty of the complainant to take the Car to the Opposite Party’s showroom. If the care is within the warranty period and if there be any manufacturing defect then the Opposite Patty would take steps. But the Opposite Party went to the garage at Durgapur. Manufacturer is a necessary party and manufacturer being not made party to this case, the case is bad for defect of parties. The Car was delivered to the Complainant in good condition. The OP never committed any fraud over the complainant. Also, free service Book was issued. There was no laches on the part of the Opposite Party. The case is liable to be rejected. Hence, the instant written Version.
Considering the pleadings of both the parties the following points have been framed for disposal of the case.
- Whether the complaint is maintainable or not?
- Whether there is any cause of action to file the case?
- Whether the case is barred by law of limitation or not?
- Whether the case is bad for non-joinder of necessary party?
- Whether the complainant is entitled to get the relief as prayed for?
- To what other relief/reliefs the complainant may get?
Point Nos. 1 to 3.
All these three points are taken up together for discussion for the sake convenience.
During hearing of argument, Ld. Lawyer for the OP has not raised any objection against those points.
Considering the material on record we do not find anything adverse against those points and as such we find all those points be disposed of in favour of the complainant.
Point No.4.
The OP’s case is that TATA Motors, Manufacturer of the impugned car is a necessary party. But, the complainant has not impleaded the manufacturer of this car Tata Motors in this case and for that this case is bad for defect of parties.
In this regard we find that in this case the complainant has not prayed any relief from the manufacturer. The complainant’s main case is against the OP for sale of old and demo car and for that prays for replacement of the car or payment of the value of the car. Also, there is no specific case of manufacturing defect.
Considering the above facts and circumstances, we can safely conclude that the case is not bad for defect of parties.
Hence, this point is disposed of in favour of the complainant.
Point Nos. 5 & 6.
These two points are taken up together for discussion for the sake of convenience.
In this case the complainant has prayed for payment of Rs.5, 29,647/- plus interest plus compensation of Rs. 5 lac and for cost.
The complainant’s main case is that the OP has sold an old and demonstration car. Previously, the impugned car was sold on 21.06.2012.
The said car was displayed as a demo car at the Loan Mela at Salar and at Hariharprara on and from 15.12.2012 to 03.01.2013. Again, the said car was displayed at Dattafuliya fair, Berhampore on 18.12.12 as a demo car. Asraful Islam, D/L No. 75/94 and Abu Sayed Seikh, D/D No. 197/90 were the respective drivers.
On the other hand, the OP dealer of the impugned car has denied categorically the complainant’s above case as to sale of old car to him. They have also categorically challenged the impugned car as a Demo car with the plea that they have right to keep the impugned car in the show-room or in any fair and that does not mean that the car is a Demo car.
Regarding the sale of old car to the complainant, the OP’s case as per averment in the Written Version is that one Nautu Sk earlier wanted to purchase the same car and advance was paid but the proposed Buyer. But within considerable time Nantu Sk was unable to pay the dues. So, he cancelled the order. According to the rules of the Company when anybody booked any car then it would be treated as a sold Car. After cancellation the show room would take the approval for re-bill from the company. The OP complied with all the formalities and then sold the car to the complainant.
Further case of the complainant is that the OP delivered the impugned car on 23.01.2013 to him and on 09.02.13 the engine of that car was totally collapsed. The complainant informed the same to Op who asked him to bring the car at his own cost. Then, he informed the same to Tata Motors over toll-free phone and Tata Motors at their won cost took the car at B.D. Motors at Durgapur who informed the complainant about the sale of old and Demo car to him by the OP.
In this regard the OP’s case is that the impugned car was delivered to the complainant in good condition and there was no defect in that car. The complainant never took the car to them. It was the duty of the complainant to take the car in case of any defect to the OP’s show-room and within warranty period in case of manufacturing defect, the OP would take steps. But, the complainant never took the car to them and manufacturer is necessary party and for that this is bad for defect of parties.
The OP’s further case is that OP never committed any fraud upon the complainant. There was no laches on the part of the OP.
In this case both parties have filed relevant documents in support of their respective case. The complainant has also filed evidence on affidavit.
Also, both parties have filed written argument.
The written argument of the respective parties is their respective parties’ case as per complaint and written version.
The complainant has adduced six documentary evidences.
Annexure –A is the delivery memo of the impugned car in favour of the complainant issued by the OP on 23.01.2013 mentioning the space Reg. No. as “New’.
Annexure- B is the Job Card-customer Copy in respect of the impugned Car. This Job card is admittedly in respect of the impugned car being the chassis No. and Engine No. mentioned in this Job card tallies with the chasis No. & Engine No. mentioned in the delivery Memo, Annexure A.
From the column Vehicle details of this Job Card, Annexure-B it appears that the impugned car was sold on 21.06.2012 where the customer Details of this Job Care, Annexure-B shows the name of the complainant –Debabrata Das.
Admittedly, the impugned car was sold and delivered to the complainant on 23.01.2013, Annexure-A.
On the other hand from the documentary evidence adduced by the OP it appears from the documents from Cancellation Approval for re-bill that old customer of this impugned car was Nantu Sk whose invoice date is 21.06.2012 and approval for new customer name in respect of the same care is the complainant Debobrata Das. From the Job Card, Annexure-‘B’ it appears in the column Vehicle details that the impugned vehicle last attended at Lexicon Motors, the OP on 16.07.2012.
This shows that the impugned car was not delivered to the earlier customer Nantu Sk.
Annexure-C issued by OP is Form No.19 as per rule 43 and the same is the register to be maintained by the holder of the Trade Certificate of TATA Motors.
From this document, Annexure-C it appears that the impugned car was sent out or brought for Demo at Salar Loan Mela and Hariharpara for the period from 15.12.2012 to 03.01.13. The date “03.01.13” was written over writing another date which is illegible.
Another document Annexure-D, identical nature also shows that the impugned car was displayed for Demo at Dallafuliya to Berhampore on 18.12.12.
Annexure ‘C’ shows that the impugned car was displayed at Salar Loan Mela & Hariharpara on and from 15.12.12 to 03.01.13 and Annexure D shows that the impugned car was placed at Dattafuliya on 18.12.12.
From Annexure it is clear that on 18.12.12 the impugned car was displayed at Salar Loan Mela and Hariharpara.
For that it is not clear that how the impugned car was displayed on 18.12.12 at Datta Fuliya.
There is no explanation to that effect.
The name of the driver mentioned in Annexure –D for the display on 18.12.12 is Abu Sayed Sk and name of the driver mentioned in Annexure-C is Asraful Islam for the display at Salar and Hariharpara for the period from 15.12.12.
Be that as it may, from Annexure ‘C’ and ‘D’ it is clear that the impugned car was not delivered up to 03.01.2013 to alleged earlier customer Nantu Sk.
Also, there is no cogent evidence from the side of the complainant to show that impugned car was delivered to Nantu Sk or any other person during the period from 21.6.12 to 14.12.12 and 04.01.13 to 22.01.2013.
At the same time this can be interpreted that if the impugned car is sold on 21.6.12 then how the same was displayed during the period from 15.12.12 to 03.01.2013.
Rather, considering the above facts and circumstances relying upon the documents as to cancellation of rebilling in favour of the complainant, it can be opined that the OP has sufficiently justified that the earlier customer was cancelled and rebilling in favour of the complainant was approved.
From the documents, Annexure-B, the Job Card adduced by the complainant it is clear that the impugned car was brought with problem on 11.02.2013 at 10:18:45 at BD Motor, Durgapur and delivered on the same day 11.02.2013 at 18:00 hrs.
The complainant’s case is that the engine of the impugned car was totally collapsed on 09.02.2013.
But, from the Annexure-B, the Job Care relied upon by the complainant it appears that there was no such collapse of engine of the impugned vehicle.
From the Job card, Annexure-B, it appears that the impugned car was brought to B.D. Motor, Durgapur-1 on 11.02.2013 at 10:18:45 with the complainants-cold starting Problem cum poor pick-up and problems were removed and delivered on the same day after repair.
It further appears from this job card that current Kms has been shown as only 06 Kms.
There is nothing reflected as to any manufacturing defect in the impugned car.
From the delivery Memo, Annexure ‘A’ it is clear that the Registration of the car has been shown as ‘New’.
In this case the ld. lawyer for the complainant has not referred any reported decision in support of this case. Even, he has not referred any reported decision in particular to the effect that demo car cannot be sold as new car and in that case the transaction is to be treated as fraud practice and the car is to be replaced even if there is no manufacturing defect.
In the reported decision in 2015(1) CPR 518(NC) –Escorts Tractor Ltd. Vs. Rajinder Singh Anr. it has been held that manufacturing defect must be proved by report of expert mechanic.
In another reported decision in 2015(1) CPR 408(NC) –Tata Motor Ltd.-Vs.-Deepak Goyal , Prep M/s FabYarn Inc. & Ors it has been held that merely because vehicle was taken for repairs repeatedly, no manufacturing defect can be presumed in absence of expert evidence.
In this case, manufacturers of the care has not been impleaded by the complainant,. At the same time the complaint has failed to prove any manufacturing defect in the impugned car.
Considering the above facts and circumstances, we have no other alternative but to conclude that the complainant is not entitled to get any relief in this case and as such all these points are disposed of in the negative against the complainant. Accordingly, this case is liable to be dismissed on contest without cost.
Hence,
Ordered
that the Consumer Complaint No. 53/2013 be and the same is hereby dismissed on contest without cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
