Date of Filing: 22-02-2017 Date of Final Order: 09-01-2018
Sri Asish Kumar Senapati, President
This is a complaint U/S 12 of the C.P. Act, 1986.
One Smt. Chhaya Roy (hereinafter referred to as the Complainant) lodged the complaint against The Manager, Lexican Motors (Tata Motors), Tata Motors Ltd and the Branch Manager, Bank of India, Cooch Behar Branch ( hereinafter referred to as the OPs) alleging deficiency in service and unfair trade practice.
The facts of the complaint case may be summarized in the following manner:
The Complainant purchased one Tata Nano Car from the OP No.1 on taking loan of Rs.2,83,776/- from the OP No.3 Bank. The OP No.1 delivered the Tata Nano Car at the house of the Complainant at Pundibari, Cooch Behar on 14.04.16 in the evening and on inspection by the family members, it was found that there was different in the colour of the door and rest of the body of the vehicle and the said fact was conveyed to the OP No.1 with a request either to change the car or to refund the amount but of no result. That on 21.05.16, the Complainant again lodged online complaint vide No.37881249704 before the OP No.2. Thereafter, the Complainant sent the vehicle to the show room of the OP No.1 and informed the defects but of no result and the OP No.1 did not provide any other papers except insurance policy, T.C. of Registration in spite of the fact that OP No.1 received Rs.32,000/- for obtaining Registration Certificate, Road Tax, Insurance Policy etc. Finding no other alternative, the Complainant sent legal notice to the OP Nos.1 and 2 dated 21.06.16 by Regd. Post with A/D and the OP No.1 replied to the notice without taking any positive measure to redress the grievances of the Complainant. The cause of action of the present case arose on 14.04.16. The Complainant filed the case praying for reliefs against the OPs alleging deficiency in service and unfair trade practice. The Complainant prayed for direction upon the OPs to refund Rs.21,378/- (Rs.32,000/- - Rs.10,622/-) and either to replace the vehicle or to refund the value of the vehicle. The Complainant also prayed for Rs.50,000/- for mental pain and agony, Rs.1 lakh for deficiency in service and unfair trade practice and Rs.15,000/- towards litigation cost.
The OP No.1 and 2 contested the case by filing Written Version. The OP No.1 filed w/v on 25.05.17 contending that the complaint is not maintainable and the complaint was filed for illegal gain. It was the version of the OP No.1 that the Complainant was not the owner of the vehicle as the vehicle was hypothecated to the OP No.3 and so the Complainant is not a consumer. The vehicle, in question, was delivered to the Complainant on 13.04.16 and the Complainant received the vehicle on good condition. The OP No.1 is not aware as to whether the Complainant lodged any online complaint vide No.37881249704 before the OP No.2 on 21.05.16. The OP No.1 asserted that the vehicle of the Complainant came for first free servicing on 24.05.16 and there was no complaint by the Complainant regarding the mismatch of colour of the car. The said car came to the workshop of the OP No.1 on 11.04.17 for second free servicing and OP No.1 on receipt of Lawyer’s notice of the Complainant replied to the Ld. Agent for the Complainant. That OP No.1 approached the Complainant for refund of Rs.13,875/- on proper receipt but the Complainant refused to accept the same. There is no deficiency in service/illegal trade practice of the OP No.1. The OP No.1 prayed for dismissal of the complaint with cost.
The OP No.2 Tata Motors Ltd. filed w/v on 03.05.17 contending that the case is not maintainable as the Complainant approached this Forum by suppressing the material facts. The OP No.2 denied that there was any mismatch of the colour of the car. The OP No.2 is not liable for refund of any amount received by the OP No.1. The OP No.2 also denied the allegation of deficiency in service and illegal trade practice against it. The OP No.2 prayed for dismissal of the complaint with cost.
On the basis of above versions, the following points are framed for proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per provision under Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service, as alleged by the Complainant?
- Whether the Complainant entitled to get any relief/reliefs, as prayed for?
DECISION WITH REASONS
Point No.1.
The Ld. Agent for the Complainant submitted that Complainant is a consumer under the OP Nos.1 and 2 as she purchased the Tata Nano Car (manufactured by the O.P. No.2) from the show room of OP No.1. In reply, the Ld. Agents for the OP Nos.1 and 2 stated nothing on this point. On a careful consideration of the submission of both sides and on perusal of the materials on record, we find valid substance in the submission of the Ld. Agent of the Complainant.
We find that Complainant is a consumer under the OPs in terms of Section 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The Ld. Agent for the Complainant has submitted that the cause of action arose at the residence of the Complainant within the jurisdiction of this Forum. He argues that cause of action arose when the car was delivered at the residence of the Complainant. It is urged that the claim amount is also within the pecuniary limit of this Forum. The Ld. Agents of the Ops stated nothing on this point. On a careful consideration, we are of the considered opinion that this Forum has both territorial and pecuniary jurisdiction to entertain the complaint. This point is thus disposed of.
Point Nos.3 & 4.
Both the points are taken up together for the sake of convenience and to avoid repetition.
The Ld. Agent for the Complainant submits that the OP No.1 delivered the defective vehicle to the Complainant and the same was not replaced in spite of repeated requests. It is argued that the OP No.2, being the manufacturer, is also liable for replacement of the defective car. It is urged that OP No.1 received Rs.32,000/- from the Complainant for Registration Certificate, Road Tax, Insurance Policy etc. but only Insurance Policy of Rs.10,622/- and T.C. of Registration were provided to the Complainant, So, the Complainant is entitled to get back the rest amount. He further argued that the Complainant purchased the vehicle on the basis of Quotation-cum-Proforma Invoice issued by OP No.1 (Annexure –A) from which it appeared that total discount was Rs.30,000/- but OP No.1 in its letter dated 09.07.16 (through his Ld. Advocate) informed that the Complainant is entitled to get back Rs.13,875/- showing discount of Rs.24,000/- in lieu of Rs.30,000/- as mentioned in Annexure-A. He submits that the OP No.1 is liable to pay compensation for unfair trade practice. It was urged that OP No.1 did not inform the Complainant about his entitlement of Rs.13,875/- before 21.06.16. He argued that OP No.1 and 2 did not take proper step for replacement of the defective vehicle.
The Ld. Agent for the OP No.1 has submitted that the Complainant purchased a Tata Nano Car from the OP No.1 on 13.04.16 and she informed the OP No.1 in writing that she received the vehicle in good condition. It was urged that the Complainant went to the workshop of the OP No.1 for free servicing of the car on 24.05.16 and 11.04.17 (Annexure –E) but she never intimated about the alleged mismatch of colour of the vehicle and it appeared from service history that the vehicle ran 1166 km up to 24.05.16 and 6,156 km. as on 11.04.17. It was urged that the allegation of mismatch of colour of the vehicle had no basis. It was further contended that OP No.1 received Rs.2,73,776/- through the OP No.3 and the OP No.1 responded to Lawyer’s notice of the Complainant dated 21.06.16 intimating that the OP No.1 approached the Complainant for refund of Rs.13,875/- but the Complainant refused to accept the said amount on proper receipt. It was submitted that OP No.1 had no deficiency in service or illegal trade practice. He prayed for dismissal of the complaint with cost.
The Ld. Agent for the OP No.2 submitted that the OP No.2, being the manufacturer of the vehicle, in question, had no liability to refund any amount received by the OP No.1 from the Complainant. It was urged that there was no mismatch of colour of the vehicle, in question, and it was evident from the conduct of the Complainant. It was submitted that the Complainant went to the workshop of the OP No.1 for free servicing on 24.05.16 and 11.04.17 but she never informed about mismatch of colour of the vehicle and only the routine servicing was done. It was argued that complaint is not maintainable against the OP No.2.
Admittedly, the Complainant purchased a Tata Nano Car from the OP No.1 on 13.04.16 by taking financial assistance from the OP No.3. Admittedly, the OP No.1 issued one Quotation-cum-Proforma Invoice (Annexure-A) in which the details of price and discount were mentioned. It appeared from the said Quotation-cum-Proforma Invoice that discount amount was Rs.30,000/- but it appeared from the reply dated 09.07.16 (Annexure-B) that the OP No.1 submitted an Account stating Tata Motors discount of Rs.24,000/- and Tata Motors extra support Rs.3,000/- i.e. total Rs.27,000/- in lieu of Rs.30,000/- as reflected in Quotation-cum-Proforma Invoice (Annex.1). As per statement of account mentioned in the Lawyer’s reply dated 09.07.16, the refundable amount was Rs.13,875/-. On a careful consideration over the matter, we are of the view that the OP No.1 had retreated from its Quotation-cum-Proforma Invoice (Annexure-A) regarding the amount of total discount. The OP No.1 had decreased the amount of discount at a subsequent stage. The O.P. No. 1 is duty bound to give discount of Rs.30,000/-. Therefore, the refundable amount would be Rs.13,875/- plus Rs.3,000/- i.e. total Rs.16,875/-. The OP No.1 did not inform the Complainant that any amount was refundable to her and it only responded to the Lawyer’s notice of the Complainant informing that refundable amount was 13,875/-.
Considering the above facts, we are constrained to hold that OP No.1 is liable for unfair trade practice by holding the refundable amount for a considerable time and giving less discount to the Complainant in spite of mentioning the amount of discount in the Quotation-cum-Proforma Invoice (Annex.1).
We think that the Complainant is not entitled to get any relief against the OP No.2 as the Complainant has failed to establish that there was any mismatch of colour of the vehicle or manufacturing defect in the Tata Nano Car. The Complainant has not claimed any relief against the OP No.3.
In the result, the complaint case succeeds in part.
Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby allowed on contest against the OP No.1 with cost of Rs.2,000/- and dismissed on contest against the OP No.2 without cost and dismissed ex-parte against the OP No.3 without cost.
The OP No.1 is hereby directed to pay Rs.16,875/- to the Complainant by A/C Payee Cheque to the Complainant by 45 days from the date of Final Order. The OP No.1 is also directed to pay Rs.2,000/- as litigation cost and Rs.10,000/- for unfair trade practice to the Complainant by 45 days from the date of this order, failing which the OP No.1 has to pay Rs.50/- for each day’s delay and the accumulated amount is to be deposited in the State Consumer Welfare Fund.
Let plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost for information & necessary action. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
