Brief fact of this case is that, the complainant had booked one TVS JUPITER –VI-SMW Scooter(silver colour) from the OP.No.1 and paid an advance of Rs.5000/- and obtained the money receipt with an assurance to deliver the booked vehicle within a week time and the OP.No.2 is the Manufacturer of the said vehicle for OP.No.1. But the OP.No.1 failed to supply the said vehicle within the promise period. After several contacts made by the complainant, the OP.No.1 informed the complainant to take his booked vehicle on 02.11.2022. The complainant rushed to take over the vehicle from Op.No.1. Thereafter the OP.No.1 forced the complainant to deposit a sum of Rs.93,000/- only for the value of the vehicle including Insurance and Registration charges. The Op.1 has also informed the complainant that the advance amount of Rs.5000/- has been adjusted for the choice Registration number of the vehicle. After payment of said amount one vehicle invoice has been provided vide invoice No.1791 dt.04.11.2022 for an amount of Rs.75460/- to the complainant by Op.No.1 and also charged an extra amount of Rs.960/- for handling and transport charges which is completely illegal. The Op.No.1 provided the invoice and insurance copy for an amount of Rs.82249/- out of Rs.93,000/-.the money receipt has not been provided for the rest amount of Rs.10751/-. All the formalities regarding payment and all other documents on 02.11.2022 and vehicle have been registered on 11.11.2022 vide Regd.No.OD34 R4361, but the OP.No.1 delivered the said vehicle on 21.11.2022 only to suppress his loop holes. That, one vehicle master copy was downloaded from Govt. Website “Vahaan” it has come to the notice that the sale date of the said vehicle mentioned as 26.07.2022 instead of 04.11.2022 and the vehicle supplied to the complainant is of “TITAN GREY” colour instead of Silver colour which has been earlier booked by the complainant. Now the complainant is in worries and anxieties that the vehicle supplied to him is a second hand which has earlier been sold on dt.26.07.2022 to some other person. When the complainant informed the matters to the OP.No.1 he misbehaved the complainant and warned him to leave immediately from his show room otherwise he may attack. Finding no other way the complainant left the show room and decided to take shelter in Your Hon’ble Forum to get justice. Further when the complainant went to the Authorised service station of Op.No.2 for Ist free service at Kumar Automobiles,Hatiatangar,Keonjhar on 16.12.2022 and after completion of Ist free service the Authorised Service station supplied an invoice vide No.5587 dt.06.12.2022 and it has been reflected that the next due date for free service will be on 23.03.2023 of 3^rd free service. When the complainant asked for the same the service manager intimated the complainant that as the vehicle has been purchased on dt.26.07.2022 he has not eligible for second free service. Due to aforesaid dereliction of duty, failure and negligence by Op.No.1, the complainant has to sustain a great loss. The complainant has been harassed, who is in worries and anxieties. The Op.No.1 is actuated with deficiency of service as well as drifted in to unfair trade practice for which are liable for cost, expenses and compensation. The complainant prays before the Hob’ble Forum for the following reliefs. Order may be passed to Op.No.1 to pay the extra amount of Rs.960/- for handling and transportation charges and an amount of Rs.10751/- for which money receipt has not been given. Rupees 25000/-may be paid  for harassment and mental agony with cost of the present proceeding and  any other reliefs as entitled for.

The complainant relies upon the following documents:

1. Copy of money receipt for Rs.5000/-
2. Copy of the cheque for Rs.93000/-
3. Copy of the Vehicle invoice.
4. Copy of Insurance policy.
5. Copy of Copy of R.C.particulars.
6. Copy of the Vehicle Master downloaded from Website-2.
7. Copy of Ist Free service with Service invoice..5 copies.

On the above complain the case is admitted and notice issued to the Ops for filing written version.

Written version of Opposite Party No.1.

In the written version the OP No.1 stated that the complaint petition filed by the complainant is not maintainable and there is no cause of action to file the case. The petitioner is not entitled to get any relief as he has not approached the Hon’ble Forum with clean hand and suppressed the real fact. It is not correct to aver in para-1 of the petition that the respondent No.2 is the manufacturer of the said vehicle for respondent No.1 though there is no specific relief against the respondent No.2 but only to fair trial of the case the respondent No.2 has been made party to this case. That, it is out and out false to aver in para No.4 ,5 ,7,8and 9 of the petition are imaginary, false which have not been specifically admitted by the aforesaid OP No.1 are deemed to have been denied by him. The real fact of the case is that the complainant had paid Rs.5000/- on 21.10.22 for booking of a TVS JUPITER-BS-VI Scooter. After receipt of the afore said vehicle the OP.No.1 intimated the complainant to take his vehicle from his show room on 01.11.2022 and on 02.11.22 the complainant came to the show room of the OP.No.1 for taking delivery of his booked vehicle and so-moto deposited Rs.93,000/- only for the value of the vehicle including insurance, registration charges and other spare parts. Out of which Rs.5000/- has been adjusted for choice registration number of the vehicle. Out of rest Rs.93000/- the cost of ex-show room price of the vehicle is Rs.75,460/-, Insurance paid Rs.6789/- ,Registration Fees of the said vehicle isRs.4910/- and cost of accessories fitted amounting to Rs.4516/- comes in total to Rs.91675/- Hence in such circumstances an amount of Rs.1275/- was to be returned to the complainant. In fact an amount of Rs.2400/-, the amount he had to get and the discount amount of Rs.1275/-thus amounting to Rs.2400/-was given to the petitioner in cash. That the Op.No.1 has not committed any negligence and any dereliction in his duty. In para 6 of the complaint petition made a false allegation against the sale date of the vehicle in question is mentioned 26.07.22 instead of 04.11.22 for which the complainant was in mental tension that a second hand vehicle which had been sold earlier on 26.07.22 was sold to him as it faced some technical difficulties with an ulterior motive to defame the OP.No.1 In fact the manufacturing month of the vehicle in question is July 2022 and the date of Registration as per E.VAHAN is 06.11.22. Hence the respondent No.1 reserves the right to sue against the complainant for bringing such false allegation. In the aforesaid premises the present C.C.case is liable to be dismissed against the OP.No.1 being devoid of any merit.

The OP relies upon the following documents:-

1. Affidavit.1no.

Written version of Opposite Party No.2.

The answering OP.No.2 TVS Motor Company Ltd. Is a company incorporated under the provisions of the Companies Act,1956 and subsisting under the Companies Act,2013. All the averments made in the complaint are false, misleading and untenable. The complaint against the OP No.2  is not maintainable both in law and on facts. That the two wheelers manufactured by the OP No.2 are sold ”on Principal to Principal basis” to its various dealers across the country with full payment. The dealers are independent parties and not the Agent of the OP.No.2 and they act on their own behest and behalf for which the OP No.2 holds no liability. All the issues relating to booking, delivery, Registration, servicing, customer relations etc. are independently handled by dealers hence OP No.2 is not responsible for the acts and omission of Dealers. The OP No.2 is in no manner responsible/liable with respect to the present dispute. In view of the aforesaid submission, the OP.No.2 most respectfully prays herein to delete the name of the OP No.2 from the array of parties having no nexus to the issue alleged in the complaint and no specific allegation being made against the OP.No.2. As there is no deficiency of service on the OP.No.2 the present complaint is liable to be dismissed with heavy cost on the part of OP.No.2. and pass any other orders in the interest of justice.

On the above pleadings the following issues are framed to decide the case.

1. Whether the case is maintainable?
2. Whether any cause of action arises on this case?
3. Whether Ops have made any deficiency of service?
4. Whether the complainant is entitled to get any relief sought for?
5. Whether the case is bad for non-joinder and mis-joinder of necessary parties.

                                         FINDINGS                                                                

All the issues are interrelated to each other so discussed jointely.It is admitted fact that OP.No.2 TVS Motor Company Ltd. is a formal party in this case. The complainant has no liability against OP.No.2. The complainant booked the TVS JUPITER-BS-VI-SMW Scooter on dt.21.10.22 by paying Rs.5000/- as an advance amount and purchased the said scooter on dt. 04.11.2022. by paying Rs.93,000/- but the Op.No.1 supplied the tax invoice of Rs.82,249/- and could not supply the tax invoice for Rs.10,751/-. The complainant also complain that the Op.No.1 supplied a Titan Grey Scooter instead of Silver colour .The complainant has not supplied any document regarding booking of silver scooter. The Op.No.1 in his written version has calculated the cost of vehicle in total of Rs.91,675/- including accessories and amount of Rs.2400/- was returned to the complainant in cash. So far as the complain of not disclosing the 2^nd hand vehicle sold to the complainant which was clarified from the date of registration as per e-Vahaan is 26.07.22. to prove the said matter the complainant has not supplied any appropriate documents. So question of deficiency of service and unfair trade practice by the Ops is not proved. So, the Op.No.2 has cited a decision of Supreme Court recently in SGS India ltd.Vs.Dolphin International Ltd.Civil Appeal No.5759 of 2009 relied on the decisions of Ravneet Singh Bagga Vs.KLM Royal dutch Airlines & Anr.(2000)1 SSC 66 and Indigo Airlines Vs.Kalpana Rani Debbarma & Ors,(2002)9 SCC 424 where in both of these cases the ratio was that the burden of proving the deficiency in service is upon the person who alleges it and finally held as follows:” The onus of proof that there was deficiency ofin service is on the Complainants. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side.”So burden of proof lies on the complainant but the complainant could not prove his case. The OPhas not made any deficiency of service or unfair trade practice. So the complainant is not entitled to get any relief.                                                                 

                                                                      ORDER

The complaint petition being devoid of merits is dismissed without any cost.