By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
-2-
2. The complainant’s case in brief is as follows:- The complainant is the owner of Hyundai i20 Asta (O) 9 petrol car. He booked the car on 16.12.2016 by attracting the advertisement and brochers published by the opposite parties. At the time of booking, the first opposite party who is the authorized dealer of Hyundai car has described special features of this vehicle. He disclosed that the vehicle is having 6 airbags and that there will not be any other vehicle available in the market containing such speciality for the above rate. Therefore the complainant opted the said vehicle, booked for it and paid Rs.8,90,949/- on 20.12.2016. The first opposite party delivered the car to the complainant on 21.12.2016. The complainant used the vehicle on the firm belief that the vehicle is having all the specialities disclosed by first opposite party. Three months thereafter, the complainant realized that the vehicle is having only two airbags instead of six assured by first opposite party. Immediately, the complainant contacted the opposite parties in person and through email. But there was no proper response from opposite parties. The complainant was under the bonafide belief that the vehicle is safe for use since it is having 6 airbags. Therefore, the complainant had suffered mental agony and monitory loss. Thus the opposite parties committed fraud to the complainant which amounts to unfair trade
-3-
practice. For installing new airbags at least a sum of Rs.40,000/- is necessary per one. Therefore he has to meet Rs.1,50,000/- to install four airbags more. Hence both opposite parties are equally and jointly liable to compensate the complainant. Hence this complaint to direct the opposite parties to replace the vehicle by a vehicle having 6 airbags or to pay a compensation of Rs.1,50,000/- with cost.
3. The first opposite party filed version contenting as follows:- He admitted that the complainant purchased Hyundai car from the first opposite party as alleged by him. But he denies that the complainant purchased the car by accepting the representation of this opposite party that the car was having six airbags. The complainant had issued a happiness check list showing the service of the first opposite party as excellent. There was no assurance that the car was having six airbags. There was no such vehicle with first opposite party during the time of booking and delivery of the vehicle by the complainant. The complainant purchased the said car in the year 2016. But, he had filed this complainant only on 2018. The complainant has not explained the delay in filing the complainant which shows that this is a false complaint. Even though, the complainant had
-4-
used the vehicle extensively for all these long period, he has not raised any complaint about the vehicle or its service. He denied that the complainant raised complaint in person or by email. It is only a concocted story to cover up the delay. The mark of airbags of the vehicle is visible in the area which can easily be identified even by a child. Hence there was no unfair trade practice from this opposite party. Hence this complaint is to be dismissed with cost of this opposite party.
4. The Second opposite party filed version contenting as follows:- There is no privity of contract between complainant and this opposite party. The first opposite party is the dealer of second opposite party and if there is any complaint, the first opposite party alone is responsible. This opposite party has not received any amount from the complainant and has not delivered any car to complainant. Therefore the complaint is to be dismissed with exemplary cost of this opposite party.
5. On the above contentions, the points raised for consideration are:-
1. Whether there is any unfair trade practice from the part of
-5-
opposite parties. If so, whether the complainant is entitled to get
anything as claimed?
2. Reliefs and Cost.
6. The evidence in this case consists of oral testimony of PW1 and OPW1. Ext. A1 to A5, Ext.B1 and B2. Heard both sides.
7. Point No.1:- The complainant is the owner of Hyundai car which has been purchased from first opposite party. The grievance of the complainant is that at time of purchasing the vehicle, the first opposite party represented that the vehicle is having six airbags and that subsequently he found that the vehicle is having only two airbags which according to him is unfair trade practice of opposite parties.
8. The complainant has given evidence as PW1. Ext.A1 is the copy of RC book of the car. Ext.A2 is the copy of Order booking form. Ext.A3 is the Retail Invoice. He deposed in conformity with the complaint. The opposite parties admitted that the complainant has purchased the said vehicle from first opposite party. But according to second opposite party, he has no connection with the complainant and so he is not liable for anything. PW1 has also deposed that he
-6-
does not want any relief against second opposite party. So we have held that the second opposite party is not liable for any relief in favour of complainant.
9. The first opposite party denied that he disclosed that the car was having six airbags. According to him, at the time of booking by the complainant and delivery of the car to the complainant, there was no vehicle having six airbags with the first opposite party. On the other hand, complainant affirmed that the first opposite party offered a car to him which was having six airbags and subsequently he found that it contains only two airbags. The present sales consultant of first opposite party has given evidence as OPW1. OPW1 deposed that the complainant signed the checklist which does not contain that the vehicle was having six airbags. Ext.B1 is the copy of the happiness check list signed by the complainant. Ext.B2 is the copy of delivery check list. Both Ext.B1 and B2 do not contain that the car was having six airbags. But it is to be noted that neither Ext.B1 nor Ext.B2 contain that the car is having two airbags. There is no place in Ext.B1 and B2 to note the number of air bags. Ext.A4 is the brochure of the car. Though complainant alleged that the first opposite party had given Ext.B4 brochure to him, the first opposite party denied that it was issued by him. OPW1
-7-
deposed that Ext.A4 does not contain their seal. It is evident that Ext.A4 does not contain the seal of first opposite party. It does not mean that it was not issued by first opposite party to complainant. The first opposite party has no case that the complainant has forged Ext.A4 in order to see that the car purchased by him was having six airbags. The variant of the car of the complainant is i20 Asta (O) petrol. No doubt, Ext.A4 is the brochure of this variant. Ext.A4 contains that these variant is having six airbags. The specific stand taken by the first opposite party is that there was no such vehicle which is having six airbags with the first opposite party during the time of booking and delivery of the vehicle. As I already stated, the complainant purchased the vehicle on 21.12.2016. It can be seen from A4 that Ext.A4 is of 2015. As I already stated, first opposite party has no case that the complainant forged this brochure to suit his case. Therefore Ext.A4 would go to show that the case of first opposite party that at time of booking and delivery of vehicle, there was no such car having six airbags is false. Therefore the evidence adduced in this case would go to show that the complainant purchased the said car under the impression that it was having six airbags. So the first opposite party played an unfair trade practice upon the complainant.
-8-
10. The complainant first wants to get replacement of the said car. But it is to be noted that he purchased the car on 21.12.2016 and he filed this complaint only on 15.12.2017. Evidently he used the car extensively during this period. Therefore, there is no question of replacing the car. He also sought Rs.1,50,000/- as compensation. According to him, for installing new airbags Rs.40,000/- is necessary for one. The first opposite party has no case that no such amount is required to install airbags. They neither rebut this contention nor took any contention on this aspect. Therefore we are of view that the complainant is entitled to get Rs.1,50,000/- from the first opposite party as compensation. The complainant also wants to get cost for this proceedings. No doubt, he is entitled to get cost. Since he has not specified any amount as cost, we are of view that Rs.2,000/- is reasonable. So the point is answered in favour of the complainant.
11.Point No.2:- Since we found point No.1 as discussed above, the complainant is entitled to get compensation and cost.
-9-
In the result the complaint is allowed. The first opposite party is directed to pay Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) as compensation and Rs.2,000/- (Rupees Two Thousand Only) as cost to complainant within 30 days from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 1st day of January 2020.
Date of Filing: 15.12.2017
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Vinod Cheriyan. Technician, Idea.
Witness for the Opposite Parties:-
OPW1. Divya. Sales Consultant.
Exhibits for the complainant:
A1. Copy of Registration Certificate.
A2. Copy of Order Booking Form. Dt:16.02.2016.
-10-
A3. Copy of Retail Invoice. Dt:20.12.2016.
A4. Brochure.
A5. Copy of Email.
Exhibits for the opposite parties:-
B1. Copy of Happiness Checklist.
B2. Copy of Delivery Check List.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRF, WAYANAD.
