Haryana

Ambala

CC/64/2021

Gulshan Kumar - Complainant(s)

Versus

TVS Motor Col Ltd - Opp.Party(s)

In Person

03 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     64 of 2021

                                                          Date of Institution           :     08.02.2021

                                                          Date of decision    :     03.10.2022.

 

Gulshan Kumar, aged about 35 years, son of Sh. Ram Sawroop, resident of VPO Bhareri Kalan, Tehsil Naraingarh, District Ambala.                                                                                                                                ……. Complainant

•  

 

1. TVS Motor Company Ltd., D-3, Amaltash Marg, D Block, Sector 10, Noida, Uttar Pradesh 201301 through its prop./owner/ authorized signatory,
2. TVS, Walia Motors, Shahzadpur Road, Saha Chowk, Saha, District Ambala, through its Manager/ prop./ authorized signatory.
3. Deepak Kumar @Deepak Walia son of Sh. Randhir Singh, resident of Village Thakurpura, (Kalalti), Tehsil Barara, District Ambala C/o TVS, Walia Motors, Shahzadpur Road, Saha Chowk, Saha, District Ambala.

 

….…. Opposite Parties

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:        Complainant in person.

                     Shri R.K.Grewal, Advocate, counsel for the OP No.1.

                   OPs No.2 & 3 already ex parte.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To handover new motorcycle along with Registration Certificate/ complete documents, Insurance, and accessory OR to pay an amount of Rs.64,085/ i.e. prize of the motorcycle Rs.52,085/- + insurance Charges Rs.4000/- + RC charges Rs.4500/- + File charges Rs.3500/- = Total Rs.64,085/-.

 

ii) To pay a sum of Rs.1,00,000/- on account of loss, harassment, pain, agony suffered by the complainant.

 

iii) To pay Rs.10,000/ - as litigation expenses

OR

                   iv) Grant any other relief, which this Hon'ble Commission deems fit and proper as per the facts and circumstances of this case.

 

2.             Brief facts of this case are that the complainant had purchased a new TVS motor cycle i.e. Starcity Plus 110, Frame No.MD625FF14HIP30389, Engine NO.FFIPH1068945, Colour Black (in short the vehicle), vide Bill No.3 dated 24.4.2018, on making payment of Rs.52,085/- to OPs No.2 and 3. OP No.1 is the manufacturer of the said vehicle. At the time of purchasing the said vehicle, OPs No.2 and 3 also received an amount of Rs.10,000/- from the complainant for the following reasons: Rs.4500/- for preparation of Registration Certificate of the vehicle; Rs.2000/- for insurance  and Rs.3500/- for preparation of file. Thereafter, the complainant approached the OPs and requested to handover the said documents but they always postponed the matter on one pretext or the other. Ultimately, the OPs told the complainant that  they failed to trace the engine number and Chassis number of the said vehicle. On the request of the OPs, the complainant landed his vehicle in the premises of OPs No.2 and 3 on the assurance that the same will be returned to him within 7 days.  At that time, OP No.3 also received an amount of Rs.2000/- from the complainant in the name of insurance of the above said vehicle but thereafter neither the documents were provided to him nor the vehicle was handed over to him.  In the month of June 2020 when the complainant again approached OPs No.2 and 3 and requested to handover the above said vehicle and its documents, they told him that since they have failed to trace the engine and chassis number thereof, therefore, they are ready to pay total amount of Rs.64,000/ (i.e. price of motorcycle, preparation of file /documents and insurance) to the complainant. Resultantly, OPs No.2 and 3 handover a cheque bearing No.059273 dated 03.07.2019 in the sum of Rs.50,000/- pertaining to UCO Bank, Branch Saha, District Ambala, as part payment and assured that they will also pay the remaining amount of Rs.14,000/- to the complainant within short period. However, the said cheque stood dishonoured vide memo dated 4.7.2020  with remarks "Funds Insufficient”. Thereafter, immediately the complainant approached OPs No.2 and 3 in the matter but to no avail. Hence, the present complaint.
3.           Upon notice, the OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability etc. On merits, it has been stated that the two-wheelers manufactured by OP No.1 are sold on "principal-to-principal basis" to its various dealers across the country. The dealers are independent parties and not the agents of OP No.1 and they act on their own behest. The complaint filed by the complainant does not fall within the definition of consumer dispute' under the Act as there is neither any manufacturing defect proved in the vehicle in question nor any deficiency in service being established against OP No.1. The relationship  between any dealer and OP No.1 is on principal-to-principal basis. All the issues relating to booking, delivery, registration, servicing, customer relations, etc., are independently handled by dealers. OP No.2, at the time of selling the said vehicle, was not an Authorized Dealer of OP No.1.  As per the records of OP No.1, one, M/s Ahluwalia Automobiles was the Authorized Dealer of OP No.1. The parent dealer (Authorised Main Dealer) of M/s Ahluwalia Automobiles was M/s Surabhi TVS. OP No.1 has neither taken any sale consideration from the complainant nor any amount towards registration of the subject vehicle. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, none appeared on behalf of the OPs No.2 and 3, before this Commission, therefore, they were proceeded against ex-parte vide order dated 08.04.2021 (OP No.3) and 06.04.2022 (OP No.2)
5.           Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-4 and closed the evidence of the complainant. On the other hand, learned counsel for the OP No.1 has made a statement that written version of OP No.1 be read as evidence of OP No.1 and closed the evidence on behalf of OP No.1.
6.           We have heard the complainant and learned counsel for OP No.1 and carefully gone through the case file.
7.           Complainant has submitted that he purchased the vehicle in question from the OPs No.2 and 3 for Rs.52,085/-. The OPs No.2 and 3 had also taken an amount of Rs.10,000/-, from him for the preparation of registration certificate, insurance and file charges etc. however they did not supply him the necessary documents even after receiving the entire sale consideration amount from him. Thereafter the vehicle in question was taken over by the OPs No.2 and 3 on the ground that its engine and chassis number are not traceable. Ultimately OPs No.2 and 3 had agreed to pay Rs.64,000/-(i.e price of the motorcycle, preparation of file/documents and insurance) to the complainant but they handed over cheque bearing No.059273 dated 03.07.2019 in the sum of Rs.50,000/-, towards part refund of the amount of the said vehicle, which was bounced when presented before the bank concerned and thereafter by not redressing the grievance of the complainant by refunding the entire amount paid by him towards the said vehicle, the OPs have not only committed deficiency in service but also indulged into unfair trade practice.       
8.            The learned counsel for OP No.1 has submitted that since the dispute is qua non providing of necessary documents in respect of the vehicle in question or in the alternative non-refunding of the amount paid towards price of the said vehicle by OP No.2 and at the same time there is no allegations of any manufacturing defect in the vehicle in question, as such, the manufacturer i.e. OP No.1 cannot be said to be at fault. He further submitted the OP No.2, at the time of selling the said vehicle, was not an Authorized Dealer of OP No.1.
9.           From the perusal of challan dated 24.04.2018, Annexure C-1, it is evident that the complainant paid an amount of Rs.52,085/- to OPs No.2 and 3 for the purchase of the vehicle in question. The plea of the complainant is that over and above the said amount, OPs No.2 and 3 had also received an amount of Rs.10,000/- from him for preparation of Registration Certificate of the vehicle insurance  and file charges, yet, neither the said documents were provided to him and at the same time,  vehicle in question was also taken over by OPs No.2 and 3 on the ground that its engine and chassis nos. are not traceable, ultimately, OPs No.2 and 3 had agreed to pay total amount of Rs.64,000/ (i.e. price of motorcycle, preparation of file/documents and insurance) to the complainant, but, they handover a cheque of Rs.50,000/-, which stood dishonoured vide memo dated 4.7.2020  with remarks " Insufficient Funds”. In order to prove that the said cheque got dishonoured, the complainant has placed on record the said memo as Annexure C-4 having been issued by the UCO Bank. 
10.           It is significant to mention here that perusal of contents of the complaint filed by the complainant as also from the arguments put forth by him, it has been observed that the dispute raised by the complainant is only with regard to non-supply of documents in respect of the vehicle in question, at the time of sale thereof, or refund of the entire amount paid by OPs No.2 and 3-dealer and not with regard to any manufacturing defect in the said vehicle. Thus, under these circumstances, before coming to any conclusion, we are making it clear at this stage itself that OP No.1 being manufacturer of the said vehicle cannot be held responsible for any deficiency in rendering service or adoption of unfair trade practice in the matter. Therefore, this  complaint filed against the OP No.2 is liable to be dismissed, in view of ratio of law laid down by the Hon’ble Supreme Court in the case Tata Motors Ltd. v. Antonio Paulo Vaz and Ors. 2021 SCC OnLine SC 125 wherein it was held that a vehicle manufacturer cannot be held liable for any deficiency in service by the dealer or the authorized centre in rendering assistance for repairs of the vehicle.

11.     In this view of the matter, it is held that only OPs No.2 and 3-dealer were to contest the allegations levelled by the complainant against them.  However, as stated above, notice of this complaint was sent to OPs No.2 and 3 seeking their version of the case, yet, nobody appeared on their behalf, despite service, therefore, they were proceeded ex-parte. This act of the OPs No.2 and 3  draws an adverse inference against them. The non-appearance of the OPs shows that they have nothing to say in their defence against the allegations made by the complainant. Therefore, the assertions of the complainant went unrebutted & uncontroverted. Since the OPs No.2 and 3 chose not to put in appearance before this Commission, as such, we are of the view that the contention raised by the complainant on this account is correct. From the perusal of copy of cheque dated 3.07.2019 of Rs.50,000/-, it is evident that OP No.3 issued the said cheque in favour of the complainant, which stood bounced. In our considered opinion the main fact that the said cheque was issued in favour of the complainant by the OPs No.2 and 3 because they failed to provide the vehicle in question to him the complainant otherwise there was no reason for the OP no.2 and 3 to handover the said cheque to the complainant. By neither providing the documents to the complainant in respect of the vehicle in question nor refunding the amount received by OPs No.2 and 3 (in respect of the vehicle in question and also for necessary documentation  for registration/insurance), they have committed deficiency service and are thus not only liable to refund the amount of Rs.64,085/-, to the complainant alongwith interest, but are also liable to compensate to the complainant for the mental agony and physical harassment caused to him. They are also liable to pay the litigation expenses, to the complainant.  

12.     In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.1 and allow the same against OPs No.2 and 3. They  jointly and severally are directed as under:-

1. To refund the amount of Rs.64,085/- to complainant alongwith interest @4% p.a. from 24.04.2018  i.e the date of purchase, till realisation.
2. To pay Rs.3,000/- as compensation for the mental agony and physcial harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

The OPs No.2 and 3 are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 5% per annum for the period of default. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

      Announced on: 03.10.2022.

 

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President