1. The complaint has filed by the complainant against O.Ps for playing fraud and cheating the complainant by doing unfair trade practices and for returning the investing as well as compensation.

2. The complainant’s case in brief is that the O.P. No. 1 has sold a Tata Nano CXC awasom to the complainant worth Rs 2,33,000 vide delivery challan dt. 14.10.14 in exchange offer. The O.P. sold a second hand vehicle to the complainant and it came to knew about the exchange offer. Knowing about exchange offer complainant approached to the local O.P. No. 1 who verified the pulser 135 motorcycle which was assessed at Rs 65,000. The O.P. handed over another NANO which was at less price than the financed TWISTXT according to the summary documents of contract. The vehicle met with an accident on 02.11.14 that is after purchasing of 18 days.

3. The O.P. 2 & 3 financed the loan of Rs 175,000 and EMI starting date 11.12.14 and EMI end date 11.1018. The market price of the TWISTXT was Rs 2,31,997. The O.P. delivered the car NANO CXC AWASOM which was less price than NANO TWIST. The complainant took delivery of the car and was availing services in the mean time when the car was sent for servicing to the local office of the O.P. 1 and after servicing the O.P. hand over billing in the name of Manoj Kumar Yadav which surprised the complainant and after inquiry it came to the knowledge that second hand car was sold to him which was previously insured by Birla Sun Life rather than National Insurance Company Ltd. The complainant informed about such cheating to the local O.P. and asked to rectify the wrongs done and till then complainant will not pay monthly installment. He ran door to door to the local O.P. but all in vain and then the complainant sent a pleader notice to the O.P. on 04.02.16 but not replied.

4. The O.P. deliberately and desperately have sold a second hand car in lieu of new one. The O.P. have sold a less valued car rather than the financed car. The O.P. have placed fraud and have cheated the complainant by doing unfair trade practices. The O.P. are liable to return the invested amount to the complainant as well as compensation not lastly Rs 15,000 and cost of litigation Rs 10,000 and the complainant is entitled for the following :-

1. Principal amount Rs 166,000
2. Compensation Rs 50,000
3. Litigation Cost Rs 10,000
4. Mental agony and harassment Rs 10,000

Total Rs 2,36,000

5. It is further submitted that the cause of action arose on 14.10.14 when the complainant got delivery of the car, on 29.12.14 when service was availed in the name of Manoj Kumar Yadav and also 04.12.16 when the pleader notice was sent to the O.P. The complainant claimed the following reliefs which O.Ps may be directed to pay  that is Invested amount of Rs 1,66,000 and also 12% interest per annum till date of payment and also pay amount of compensation of         Rs 50,000 and litigation cost Rs 10,000 and O.Ps may also be directed to pay Rs 10,000 for mental agony and harassment.

6. The O.P. 2 and 3 appeared and filed their WS on 24.08.16 stating therein that the complainant has not right, cause of action or entitlement against answering O.P. as it is submitted that in any event the complainant has no right basis or justification for pleading the answering O.Ps. in the said matter. It is further submitted that answering O.Ps is a company incorporated under Companies Act, 1956 and is engaged in the business as a non – banking financial corporation and is also engaged in granting loans to various individuals and have submitted that answering O.P role stood only in relation to finance the vehicle in question purchased by the complainant from the O.P. No. 1.

7. It is submitted that on application of the complainant the O.P. agreed to grant loan of  Rs 1,75,000 which was required to be repaid by the complainant along with interest in 47 equated monthly installments and in the agreement in writing dated. 25.10.14 entered between the answering O.P. and the complainant the O.P agreed to grant loan to the complainant vide contract no. 5001667268. He has also annexed agreement dt. 25.10.14 that is show cause. And it is further submitted that the complainant has hypothecated the sold vehicle with its additions, attachments and accessories by way of first charge. The hypothecation of said collateral took place on the execution of the agreement dt. 25.10.14.

8. It is further submitted that the complainant has been a chronic defaulter in repayment of the loan amount disbursed by the O.P. and the fact has also been admitted by the complainant in the complaint. It is submitted that complainant failed to repay the due installments on Rs 52,589 as on 02.08.16 and the complainant has defaulting in the regular payments of the installments as per the agreed repayment schedule and failed to repay the complete due installments within the agreed time frame.. He has also attached annexure, accounts statement dt. 02.08.16 as Annexure 2.

9. It is further submitted that on perusal of the complaint petition filed by the complainant it is apparent that no liabilities is made out against answering O.P. in the instant matter and yet the said answering O.P. has made mechanically impleaded as party to the complaint without any just cause as such is bad for misjoinder of the answering O.P. and the answering O.P. without any rhyme and reason only to harass and for reasons best known to them and therefore is bad for mis joinder of party and as not maintainable in law before this Hon’ble court. It is  submitted that since the case is misconceived not maintainable and entirely meritless as against answering o.P. it is just and proper that the name of answering O.P. be deleted from the records and all references to the answering O.P. be ordered to be expunged in toto and further prayed complaint of the complainant be dismissed with cost and needs to be penalized heavily for wasting valuable time of the Hon'ble court without any justified cause against answering O.P. and under such circumstances  stated above the complainant is not entitled to get any relief as claimed in this complaint against O.P. and the complaint should be dismissed with cost.

10. The O.P. No. 1 is the Tiwari Automobile, Dumka appeared and filed his showcause on 22.10.16 stating therein that the case of the complainant is not maintainable in the law or in facts and circumstances of the case. It is further submitted that the complainant approached to this O.P. 1 and requested him to buy a TWISt XY Nano Car from O.P. 1 in lieu for the exchange of a Pulsar 135 motor cycle and requested to arrange loan for the same from O.P. 2 and 3 and has prayed  as per understanding said O.P. No. 1 took Pulsar Motor Cycle for Rs 65,000 and arranged rest Rs 1,75,000 towards the loan from the O.P. 2 and 3. The aforesaid TWIST XT Nano car worth rs 2,31,997 only was delivered to the petitioner.

11. The car was delivered to the complainant and was availing services and it is further submitted that the aforesaid car was booked for one Manoj Kumar Yadav earlier who did not turned up to buy the vehicle in question and after repeated request from the O.P. No. 1 Manoj Kumar yadav did not turn up to buy the vehicle in question and under such circumstances the O.P. 1 after fulfilling the formalities and sanction of the loan delivered  the aforesaid vehicle in question to the consumer and the vehicle in question was taken from the showroom after pre delivery inspection to the complainant and further that the vehicle delivered was a new one but at the time of first servicing since the vehicle was booked for a different person Manoj Kumar prior to the purchase so during the first servicing an incorrect billing was done which was subsequently corrected and the correct copy was supplied to the complainant and under a wrong impression and under a commission started claiming the vehicle in question to be a second hand but the correct fact is this that the vehicle was so delivered to the complainant was a new one and the consumer by bringing this complaint is making false and bogus submission before this court.

12. It is further submitted that at the time of purchase the complainant has requested the O.P. No. 1 to get his vehicle insured and so as per tag of the O.P. No. 1 The Insurance was done from Birla sun life and this grievance of the consumer that the O.P. got the Insurance from Birla Sun life rather than oriental Insurance is vague and cannot be entertained by this court. It is further submitted that claim of the consumer that a second hand vehicle was delivered to him is false and vague and only the aforesaid vehicle was booked with a different person earlier who did not turn up to buy the vehicle in question and it was subsequently sold to this consumer and at the time of first servicing an incorrect print out was obtained by the complainant the consumer wants to take advantage of the same and harass the O.P. 1.  It is further submitted that considering above facts the complaint of the complainant may be dismissed.

13. The main point to be decided in this case is that whether O.P. 1 deliberately and desperately sold second hand car in lieu of new car to the complainant and the O.P. No. 1 has taken a less value car then financed car!

                                    Findings

The complainant in support of his case filed oral and documentary evidence both. As oral witness he has filed the affidavit of following persons –

  CW1 – Rajendranath Mandal

And has also filed the following documentary evidences which are as follows –

Exhibit 1 – Photocopy of certificate of registration JH04H0470

Exhibit 2 – is the photocopy of insurance cum policy schedule from 25.10.15 to 24.10.16

Exhibit 3 – is the retail invoice dt. 29.12.14

Exhibit 4 – is the summary of loan contract account

Exhibit 5 – is the photocopy of delivery challan dt. 14.10.14

Exhibit 6 – is the photocopy of Voter ID

Exhibit 7 – is the pleader notice dt. 04.12.16

Some documents which were filed but not exhibited are as follows :-

1. Photocopy of passbook
2. Photocopy of receipt of Rs 3,000 dt. 12.1.16
3. Notice to the complainant by arbitrator dt. 16.11.16
4. Photocopy of application before arbitration proceedings.
5. Photocopy of contract details in regard to Nano Twist.
6. Photocopy of pleader notice dt. 16.05.16 sent by Tata Motors Ltd. by O.P. No. 2 and 3 to the complainant.

14. The O.P. in support of his case has filed some documentary evidence which are as follows:-

Exhibit A - is the letter of the complainant dt. 14.10.14 to getting the insurance certificate

Exhibit B – is the delivery challan dt. 14.10.14

Exhibit C – is the realized order by Tata Motors finance Ltd. dt. 25.10.14

Exhibit D – is the photocopy of consumer discounts for December 2014

Exhibit E – is the price list of Tata Nano of Tata models dt. 06.10.14

Apart from that the O.P. has filed some other documentary which were not exhibited. They are as follows :-

1. Screen report Govt. of Jharkhand transport department
2. Retail invoice dt. 11.12.14
3. The retail invoice dt. 23.12.15
4. Certificate of insurance cum policy schedule dt. 24.10.14 to 20.10.15.

15. Heard the Learned Counsel of O.P. 1, 2 and 3 but at the time of argument the complainant lawyer Sangeeta was called for several times but she did not turn up and lastly a notice was also sent by the peon of this court but she did not turn up to argue the case. As such without hearing the complainant but the documents and evidences adduced on behalf of the complainant were properly scrutinized and we also gone through the documents filed on behalf of both the O.Ps. in this case.

16. It is admitted on behalf of the O.P. No. 1 that he never sold an old car or second hand car to the complainant. The new car was sold to the complainant. The complainant alleged this allegation merely on the basis of Exhibit 3 which is retail invoice issued by the complainant on 29.12.14 and it is submitted that one Manoj Kumar yadav was named in the invoice and it is further submitted that in the said invoice the insurance company was shown Birla Sunlife Insurance company. Against this allegation the O.P. No. 1 has clearly stated that the said vehicle in question was booked in the name of Manoj Kumar Yadav and in spite of repeated request he did not turn up to the delivery of the car then on their request of the complainant the said car was delivered to him and after proper inspection of pre delivered instruction.

17.  So far is invoice is concerned Exhibit 3 is dt. 29.12.14 in which the name of Manoj Kumar was written. But from perusal of the invoice dt. 11.12.14 here in this case the name of Rajendranath Mandal is written.  Exhibit 3 is dt. 29.12.14 but the retail invoice  dt. 11.12.14 is much before dt. Of Exhibit 3 in which the name of Rajendranath Mandal is mentioned and it is further admitted fact that after purchase of the vehicle the vehicle in question met with an accident which is after 18 days and to that purpose the vehicle in question brought to the service centre for repairing and after that the retail invoice dt. 11.12.14 was issued.  It appears that the in the mistake of system the retail invoice name of Manoj Kumar Yadav dt. 29.12.14 was issued.  It also appears from the retail invoice dt. 22.03.12 in that invoice the name of the complainant Rajendranath Mandal is mentioned.

18. It is also appears from the invoice dt. 11.12.14 the name of insurance company is National Insurance company Ltd.  which is corroborated by the certificate of insurance cum policy schedule issued by National Insurance Company which is from the period of 21.10.14 to 20.10.15.  Admittedly the vehicle in question was purchased on 14.10.14 by the complainant and thereafter the vehicle was insured to the National Insurance Company Ltd. and from the perusal of this certificate it also appears that there was no registration no. it was new one as mentioned is new and manufacturing order is also 2014.

19. From the perusal of other documents which is a report called from Aditya Birla which is also on record it is clearly mentioned in the report of Branch Manager Birla Ltd. that his company is not entitled to issue any insurance policy schedule life therefore the vehicle in question bearing registration no. JH04H0470 never insured by the company in the name of Manoj Kumar Yadav of Ghogha Thekcha, Dhamnilatta, jarmundi, Dumka and further stated that this company has never insured any motor vehicle or any other similar type of vehicles. This document does not corroborate the retail invoice Exhibit 3 and also the allegation of the complainant. That the vehicle in question was sold or second hand to the complainant. 

20. So far as the question of saving less value car rather than financed car is concerned it is admitted fact that the complainant has taken a loan amounting Rs 1,75,000. From O.P. 1 and 2 which is corroborated by exhibit 4 the summary of loan contract account.

21. From the perusal of Exhibit c and E it appears that Tata Nano CXE car is valued Rs 2,36,725 as per Exhibit E and as per Exhibit C the asset value was given Rs 2,35,997 and financed  amount was shown as Rs 1,75,000. It also shows less stamp charging Rs 4,000 and less discount charging Rs 2,000 and amount payable is Rs 1,72,600. It is also admitted fact that the value of the pulsar motorcycle was assessed Rs 65,000 which was exhibited D. Less of consumer discount for October 2014 and Nano Twist discount was Rs 3500 and Nano Awesom discount was Rs 4,000 alleging that price of Nano Twist was higher that is Rs 2,31,997 and price of Nano Awesom was less than Nano Twist. But this fact has not been corroborated or established by documentary evidences. The vehicle in question which was sold to the complainant is Nano CXC. As per price list dt. 06.10.14 the price of Nano CXC was Rs 2,36,725 and which is discount given rs 4000 and after deducting discount the capital value of the Nano CXC was Rs 2,31,997 is mentioned in Exhibit C and that amount was taken claiming that O.P. No. 1 is delivered the less value car in place of higher value car has not fully establish as its is clearly apparent from Exhibit C, D and E.

22.   So far as the liabilities of O.P. 2 and 3 is concerned admittedly they  are financer and relationship between complainant and O.P. 2 and 3 are financer and borrower and no relieve has been sought by the complainant against this 2 O.Ps that is 2 and 3.

23.  As such they are not responsible in any way in this case. So far as O.P. 1 is concerned the main allegation and amount related of the complainant sought against him but the complainant has not established his allegation or charges beyond reasonable doubts. The O.P. 1 has not deliberately or desperately sold car or second hand car to the complainant.

24.  As the Insurance Certificate which is filed and also on the record for the period of 21.10.14 to 20.10.15 the certificate of registration cum policy schedule issued by National Insurance Company which is from 21.04.12 to 20.10.15 in which it is clearly mentioned that vehicle is new one as such no registration no. is mentioned in that and admittedly the vehicle in question was delivered to the complainant on 14.10.14 and this certificate of insurance cum policy schedule was from 21.10.14 to 20.10.15. The complainant has not established this fact that vehicle in question was second hand.
25. From the aforesaid discussion we come to the conclusion that the complainant has not established the allegation labeled against O.P. 1 or O.P. 2 and 3 successfully. It is therefore, we

                                      Ordered

That this complaint case is hereby dismissed on contest without cost.

Let a copy of this order be served to both the parties free of cost.

          Let this document be deposited in the record room and also to be shown on the website of the commission.