Tamil Nadu

North Chennai

CC/169/2016

A.Raju S/o S.Anthony - Complainant(s)

Versus

The Propretor J.K.Bajaj Show Room - Opp.Party(s)

C.Venkatesalu

11 Sep 2018

ORDER

 

                                                            Complaint presented on: 21.10.2016

                                                                Order pronounced on: 11.09.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

  PRESENT:  TMT.K.LAKSHMIKANTHAM, B.SC., B.L., DTL.,DCL, DL & AL - PRESIDENT

              THIRU.D. BABU VARADHARAJAN B.Sc., B.L., :   MEMBER – I

 

TUESDAY THE 11^th  DAY OF SEPTEMBER 2018

 

C.C.NO.169/2016

 

 

Mr.A.Raju,

Son of S.Anthony,

No.3-1/46, Anna Street,

Kakkanji Nagar,

Vyasarpadi,

Chennai – 600 039.

                                                                                    ….. Complainant

..Vs..

 

1.JK AUTOMOBILES,

Authorised Service Centre for BAJAJ AUTO LTD.,

SG-2, Aishwaryam,

# 25-A, Redhills High Road,

Kolathur, Chennai – 600 099,

Rep. by its Partner J.Vijayshankar.

 

2.Shakthi Motors, 16 17,

No.946-949, Poonamallee High Road,

Purasaiwalkam,

Chennai – 600 084,

Rep. by its Managing Director.

 

 

 

3.M/s.Bajaj Auto Pvt. Ltd.,

Akurdi,

Pune- 411 035.

                              (* 1^st and 2^nd opposite parties names addresses were 

                              Amended as per order dated 18.07.2017 passed in

                              C.M.P.No.76 of 2017 in CC.No.169 of 2016)

 

.....Opposite Parties

Date of complaint                                        : 15.11.2016

Counsel for Complainant                            : M/s.C.Venkatesalu &

                                                                          V.Udayakumar

 

Counsel for 1^st opposite party                              : M/s.K.S.Kumar, K.M.Valsala

 

Counsel for 2^nd & 3^rd  Opposite Parties          : Ex – parte (23.12.2017)

 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.SC., B.L., DTL.,DCL, DL & AL 

                This complaint is filed by the complainant to direct the opposite party to pay a sum  of Rs.5,00,000/- towards compensation for mental agony and cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased Pulsar – 180-UG 4 ES Bike from the 1^st opposite party, who sub-dealer under the main dealers 2^nd & 3^rd opposite parties for an amount of Rs.88,696/- inclusive of Vat, Registration charges and Insurance charges on 07.04.2016 under hypothecation  with capital first Limited. The Engine No.MD2 A12DZ7FCG33184 & the chasis No. MD2A12 DZ7FCG 33 184, Engine No.DJZCFG63921. The colour of the vehicle is Blue and is insured with United India Insurance Company Limited. Validity period of Insurance is from 25.04.2016 to 24.04.2017. Insured value is Rs.73,193/- the vehicle was registered and the Registered No. TN-05-BF-0465  dated 30.06.2016 and the month and year of manufacturer is reflected as 10/15. The vehicle was booked on 08.04.2016. The 1^st opposite party had delivered the old model vehicle therefore there is deficiency in service on the part of 1^st opposite party. Mail was sent to 3^rd  opposite party and it was replied by them promising to rectify the same. The 2^nd and 3^rd opposite parties are main dealer and Head Office, notice is sent the opposite parties and they are collectively liable for delivering  the current model bike after taking back the vehicle already delivered and besides for grievances of mental agony and hardship to pay a sum of Rs.5,00,000/- towards damages/compensation. Legal notice was sent to opposite parties and 2^nd opposite party have replied with false and baseless allegations.

2. WRITTEN VERSION OF THE  1^st  OPPOSITE PARTY IN BRIEF:

          The 1^st opposite party is J.K.Automobiles and is not a proprietary concern but a partnership concern. The 1^st opposite party is not a sub-dealer of 2^nd and 3^rd opposite parties but he is  an authorized dealer of the 3^rd opposite party. The complainant approached the 1^st opposite party through one Mr.Yuvaraj who is employed in “Didar Motors” which is a Honda showroom and the complainant is also employed in ‘SVS HONDA’. A Honda showroom. The finance arrangements are made by himself. The complainant wanted a blue colour bike. The 1^st opposite party enquired about the rates and the presence of the same colour bike from the 2^nd opposite party and informed the complainant regarding the same and also informed that 2015 model blue colour bike is only available and  2016 model was not yet supplied to them from the company. The complainant after visiting the 1^st opposite party’s show rook in the first week of April 2016 and enquired about the discount and other amounts payable by him. After 2 or 3 days later the complainant came to the show room of the 1^st opposite party and booked a Blue colour Pulsar 180 bike and paid Rs.18,000/- as initial payments on 05.04.2016 and taken delivery from the 2^nd opposite party’s  show room. He was given Rs.1,500/- discount on the vehicle cost and even before making full payment he had taken delivery on 07.04.2016. Thereafter the complainant paid Rs.2,000/- on 28.04.2016, Rs.7,510/- on 10.06.2016, and then the finance payment of Rs.59,772/- was credited to the dealer’s account on 29.05.2016. Rs.888/- was returned to him towards the insurance payment  adjustment. Only, after availing all the benefits for Oct.2015 model, the complainant opted to purchase the vehicle in the month of April 2016. Complainant was treated as a special customer the procedure was relaxed and delivered the vehicle at the time of initial payment.  The complainant has registered the vehicle only on 30.06.2016. Till then the vehicle was plying on the road, which is an offence. Being a vehicle show room employee, he is aware of all the details. He himself registered the vehicle. He could have abstained from registering the vehicle, if he really did not know about the model of the vehicle. He has not said that  he wanted only 2016 model. Therefore no deficiency in service on the part of the opposite parties, and there is no occasion for the complainant to suffer mentally and physically. No issue was brought to the notice of the 1^st opposite party and is not aware of the e-mail sent to the 3^rd opposite party. The complainant has chosen to file the complaint after using the vehicle for 2 months. The complaint is only abuse of process of law and frivolous and to be dismissed.

 

 

          3. The 2^nd and 3^rd opposite parties called absent, they were set ex-parte on 23.12.2016 for non filing of vakalath.. The 1^st opposite party filed proof affidavit  but no documents field. The complainant filed documents Ex.A1 to Ex.A8.

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

5. POINT NO :1 

          The complainant purchased a vehicle Pulsar – 180-UG 4 ES Bike, Blue colour from the 1^st opposite party and the delivery challan dated 07.04.2016 is Ex.A1. The invoice credit is in Ex.A2. The total cost is Rs.88,696/-. Registration certificate for the vehicle is Ex.A4, wherein month and year of the model is noted as October 2015. Ex.A5  is the e-mail  correspondence between the complainant and the customer service of Bajaj Auto Company. The complaint regarding the delivery of 2015 model is made by the complainant through this e-mail on 10^th July 2016, and it is being forwarded by the customer service to the concerned authority by reply dated 11^th July. Then a notice through the counsel was sent to opposite parties 1 to 3 under RPAD on 26.08.2016 and it was received by all of them and the proof of service is Ex.A7 & Ex.A8.

          6. The transaction is admitted by 1^st opposite party. The 2^nd  & 3^rd opposite parties were set ex-parte for non filing of vakalath. The contention of the complainant is that he purchased the vehicle  Pulsar – 180-UG 4 ES Bike on 06.04.2016  for Rs.88,696/- including Vat, Registration and Insurance under Hypothecation with Capital First Ltd., and insured with united India Insurance Company. It was insured but not registered by the  1^st opposite party. The complainant himself approached the concerned Regional Transport Authority. At that time only, the complainant came to know from RTO’s entry that the model of the vehicle was of the month and year October 2015. Aggrieved by the same the complainant sent e-mail to the customer service and also notices to the all the opposite parties. The 1^st opposite party is the authorized dealer of the 2^nd & 3^rd opposite party. The 3^rd opposite party is the manufacturer. Since there is no rectification done by the opposite parties, the complainant is before this Forum.       

          7. The 1^st opposite party resisted the complaint by saying that the complainant is an employee of the ‘SVS HONDA’ and he approached through his friend by name Mr.Yuvaraj, who is also an employee of the “DIDAR MOTORS”. And availed discounted benefits for the bike of model 2015. The payment was also made in instalments, and the finance payment of R.59,772/- was made on 29.05.2016. Since he being the employee of the same service and also referred by the person in the same service, he was treated as a special customer and the vehicle infact was delivered even earlier to his final payment. Being a vehicle show room employee, he is very much aware of the mode, make and other particulars, it is false to say that he came to know at the time of registration only. Therefore his contention is totally wrong and the complaint is to be dismissed.

          8. The evidence on record is Ex.A4, RTO Certificate  which indicates that the vehicle delivered is of the model October 2015. It is also an admitted fact that the vehicle delivered is of the month of October, 2015. The reasons purforth by 1^st opposite party is as follows: 1.The complainant knew the year and model of the vehicle as he is an employee of the same field. 2, He has not specifically asked for 2016 model.3. The complainant availed the discount benefits in view of model 2015 delivered to him.

          9. The complainant’s action against the opposite parties itself has proved that he has not aimed for an old model. The booking form is only available with 1^st opposite party & it has not been produced by 1^st opposite party to prove that the complaint had booked only 2015 model bike. There is no indication in the delivery challen or in the invoice credit as the vehicle is delivered under the discount offer. If really delivered on discount, there must be a deduction in its original value, indicating the discount availed by the customer in the receipt. On the part of 1^st opposite party there is no such document produced atleast from their files to prove their contention.

          10. The complainant booked the vehicle in the month of April 2016 is not denied by the 1^st opposite party. No proof is shown before this Forum by the 1^st opposite party that the complainant knew the make and model at the earliest time . Insurance for the vehicle was done by 1^st opposite party admittedly. Ex.A3, in the Insurance Certificate, manufacturing date of the vehicle  is shown as 2016. There is no explanation by the 1^st opposite party as to how the year is manipulated as 2016, when the vehicle was insured by opposite parties.  No document from the files of opposite party is put forth to prove that the complainant has availed concession.  The model and make is only  to be disclosed by the dealer i.e 1^st opposite party and the complainant is not the direct  employee of Bajaj auto co., therefore he ought not to have known the make and model. Hence the contention of the complainant that he came to know the make and model only at the time of registration is to be accepted as true. Though the complainant  booked the vehicle and purchased in the month of April 2016, the 1^st opposite party delivered the said vehicle  of 2015 October model proves that there is deficiency in service in delivering the old model vehicle instead of 2016 model. Therefore the complainant is entitled to get a  Pulsar – 180-UG 4ES Bike model 2016 and also to be compensated due to negligence  of opposite parties 1 & 2 and another   mental agony. The 2^nd and the 3^rd opposite parties  have not been represented by any person and having received the notices  there is no reply from 2^nd and 3^rd opposite parties. They have not come forward to deny the contention of the complainant.

          11. However,  the 3^rd opposite party is represented as the manufacturer and has nothing to do with the situation of the  present case. The non production of booking particulars   of the complainant also leaves reasonable doubt against 1^st & 2^nd opposite parties and it also confirms that there is no proper representation made to the complainant regarding the year of make and model.

12. POINT NO:2

          Admittedly 1^st opposite party had delivered to the vehicle to the complainant and invoice credit is given by the 2^nd opposite party. As per discussion held opposite parties 1 & 2 are jointly and severally liable for their negligent act and also to compensate for mental agony and the cost of the complaint. Therefore the complainant deserves getting back the vehicle Pulsar – 180-UG 4 ES Bike, Blue colour of 260 models. But, we are now in the month of September 2018, 2016 model of the same vehicle with same colour may not be available with opposite parties at present and there will also be practical difficulties to transfer the necessary documents between the parties. Moreover the bike has its depreciated value due to usage by the complainant for the part 2 ½ years.

13. Therefore, we are of the  considered view, and also it is fit  to order compensation for the negligent act attributed 1 & 2 opposite parties.  Therefore opposite parties 1 & 2 are directed to pay a  sum of Rs. 30,000/- for negligence and for  mental agony  suffered by the complainant, besides a sum of  Rs.5,000/- towards litigation expenses The complaint in respect the 3^rd  opposite party is dismissed.

In the result the Complaint is partly allowed. The Opposite parties 1 & 2  are   directed to pay a sum of Rs. 30,000/- (Rupees thirty thousand only)  for negligence and mental agony to the complainant besides, a sum of  Rs.5,000/- (Rupees five thousand only)  towards litigation expenses.  The complaint in respect of the 3^rd opposite party is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of the payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 11^th day of September 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 07.04.2016	J.K.Automobiles Delivery Challan, bearing Chassis No.MD2A12 DZ7FCG 33184, Engine No.DJZCFG 63921, from 1st opposite party to complainant – Original
Ex.A2 dated 08.04.2016	Invoice Credit bearing Invoice No.R/VS/585 and Challan No.R/CH/216 of Sakthi Motors (Main Dealer) issued by the 2nd opposite party to the complainant- Original
Ex.A3 dated 25.04.2016	United India Insurance Company Limited, certificate of Insurance bearing policy No.0127003116P101 148866 for the period from 25.04.2016 to 24.04.2017 – for the vehicle bearing Chassis No.MD2A12 DZ7FCG 33184, Engine No.DJZCFG 63921 issued to the complainant Xerox
Ex.A4 dated 30.06.2016	Certificate of Registration (10/2015) bearing Regn.No.TN-05-BF-0465 bearing Chassis No.MD2A12 DZ7FCG 33184, Engine No.DJZCFG 63921, Xerox
Ex.A5 dated 11.07.2016	Reply mail sent by customer service (Bajaj Auto.co.in) of the 3rd opposite party to the complainant assuring to rectify the mistake.
Ex.A6 dated 26.08.2016	Legal Notice sent by the complainant’s counsel to the opposite parties – Office Copy
Ex.A7 dated 29.08.2016	Acknowledgement Cards acknowledged by the opposite parties 1 & 2 and Indian Post Track Consignment in respect of 3rd opposite party- Original
Ex.A8 dated 16.09.2016	Reply sent by the 1st and 2nd opposite parties to the complainant’s counsel – Original

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY :

 

                                           …….. NIL ……

 

MEMBER – I                                                               PRESIDENT