BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                         C.C.No.44/2013

Dated this the  31^st day of August 2017

(Date of Institution: 30.10.2013)

Pannierselvam, son of Kailasam                       

Vadakalathur village                      

Pattamangalam Post                

Keezvelur Taluk

Nagapattinam District, Tamil Nadu.

….     Complainant

Vs

1.  V.AR.N. Motors                       

      Authorised Suzuki Dealer                 

      1A, Valluvar Street, Nehru Nagar    

      Bharathiyar Street, Karaikal Town and District

      Puducherry State.

2. Suzuki Motorcycle India Private Limited              

    Village Kherki Dhaula Badshahapur,

    NH8, Link Road, Gurgaon (Haryana) 122 004.

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt.  D. KAVITHA,  B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru S. Bashyam, Advocate        

FOR THE OPPOSITE PARTIES: For OP1 – Ms. J. Anandhi, Advocate   

For OP2 :    Ex parte

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the

1. the opposite parties to receive back the two wheeler manufactured in the year 2010 and replace with a two wheeler manufactured in the year 2013;
2. to direct the opposite parties to pay a sum of Rs.1,00,000/- as compensation towards mental agony, pain and sufferings and
3. to direct the opposite parties to pay the cost of this proceedings. 

2.  The case of the complainant is as follows:

The complainant, in order to purchase a Suzuki GS 150 R 2013 Model motor cycle has advanced a sum of Rs.34,068/- with the first opposite party on 30.04.2013 and the balance amount was paid by Sinduja Finance as loan.  The first opposite party has also registered the vehicle with the Regional Transport Office under registration No. PY 02 M 8607 alleging that the vehicle was 2013 model and delivered the same to the complainant on 30.04.2013 itself.   It is stated by the complainant that he has purchased the vehicle for gifting the same to his bridegroom.  Later, on perusal of R.C. Book, the complainant came to know that the vehicle was manufactured in the year 2010 and thereby he sustained mental agony.  The complainant approached the first opposite party and requested to receive back the vehicle and deliver a vehicle manufactured in the year 2013, but there was no proper response from them.  The complainant lodged a complaint with Station House Officer, Karaikal on 11.06.2013 who enquired the same and informed the complainant to seek remedy through Consumer Forum.   On 27.06.2013 the complainant sent a legal notice to the opposite parties, however, no reply was sent by the opposite parties.  Hence, this complaint. 

          3. The second opposite party remained absent and set ex parte.

4. The reply version filed by the first opposite party briefly discloses the following:

          That the present complainant is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed.  Further, this opposite party stated that this Hon’ble Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986.       Further, this opposite party stated that the complainant had purchased the Suzuki GS 150R 2013 Model two wheeler Motor Cycle from the OP1 to offer as “Sreedhana” to the bridegroom at the time of marriage of the complainant’s daughter.  Hence, the two wheeler purchased by the complainant was not meant for his exclusive personal use.  As such the complainant is not a consumer as per sub-clause (i) of Section 2 (1) (d) of the Consumer Protection Act, 1986.

          5. This opposite party stated that the two wheeler purchased by the complainant was registered with the Assistant Registering Authority, (Transport Department Karaikal Government of Puducherry) with registration
No. PY-02M-8607 date 08.05.2013 as per Annexure-C2 of the complaint, in which the date of manufacture of the vehicle has been shown as “01/2013” by the Asst. Registering Authority Karaikal.  Section 40 of the Motor Vehicle Act, 1988 prescribes that every owner of a motor vehicle shall cause the vehicle to be registered by a Registering Authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept.  Hence the responsibility for the registration of the vehicle rests with the complainant under Section 40 of the Motor Vehicle Act, 1988.  As per Section 40, the complainant has presented his application in Form -20 under Rule 47 of the Central Motor Vehicle Rules, 1989 to the Licensing Authority /Asst, Registering Authority, Karaikal, by providing the information therein against Colum 17 of the Form 20, stating that the month & year of manufacture, of the vehicle as “01/2013”.  On the strength of complainant’s information as contained in his application only, the month and year of manufacture of the vehicle has been provided in his Registration Certificate by the Registering Authority.  Further, the  imputation of the complainant that the first opposite Party sold the vehicle manufactured in the year 2010, stating that it was manufactured in the year 2013, through false propaganda, is not hold good. The complainant has not issued any Pre- Consumer complaint notice to the Registering Authority or the Licensing Authority or not added them as necessary party to his complaint to prove his claim.  Hence, the complaint is hit by non-joinder of necessary party.  The complainant misconceived the term of manufacturing date of the vehicle with the date of manufacture of its integral components of Chassis Number and Engine Number.  The complainant has not made out any case that the vehicle purchased and registered is manifested with any defect.   The complainant is not entitled to any relief whatsoever.       Hence, prayed for dismissal of the complaint with exemplary costs. 

          6. The second opposite party remained absent and set ex parte.

7. The complainant was examined himself as CW1 and Exs.C1 to C6 were marked.  One Deshratan Marwah, Assistant Manager of second OP company was examined as CW2 and marked Ex.C7 (3 pages).  On the side of opposite parties, the proprietor of first opposite party namely Kumar was examined.  However, no documents have been marked.  The Assistant Motor Vehicle Inspector, Transport Department, Karaikal was examined as RW2 and Ex.R1was marked through him.

8.  Previously, one Kumaresan, Manager of OP1 company was examined as RW1 and marked Ex.R1 the power of attorney.  Later, the learned Counsel appearing for OP1 filed a memo seeking permission to withdraw the Special Power of Attorney given to the said Kumaresan since he had gone abroad and could not appear for cross examination.  The said memo was allowed and the evidence of said Kumaresan was eschewed.  Instead one Kumar, the Proprietor of OP1 company was RW1, however do documents marked through him.   

9.       Points for determination are:

1. Whether the Complainant is the  Consumer?
2. Whether the opposite parties indulged in unfair trade practice?
3. To what relief the complainant is entitled for?

10.  Point No.1:

 Admittedly, there is no dispute with regard to the purchase of motor cycle by the complainant from the OP1.   The first opposite party alleged that the complainant had purchased the motor cycle to offer as "Sreedhana" to the bridegroom and that the two wheeler purchased by the complainant was not meant for his exclusive personal use and therefore, the complainant is not a consumer.    It is pertinent to mention here that as per Section 2 (1) (d) of Consumer Protection Act, it clearly envisages that "consumer" means any person who

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)………

In the present case, the complainant has purchased a Suzuki GS 150 R Motor cycle from the first opposite party on 30.04.2013 by paying an advance amount of Rs.34,068/- vide receipt Ex.C1 and gifted the same to bridegroom.  Hence, this Forum found that the complainant is a consumer as per Sec. 2 (1) (d) (i) of Consumer Protection Act. 

          11. Point No.2:

It is alleged by the complainant that in order to purchase a Suzuki GS 150 R 2013 Model motor cycle, he  has paid a sum of Rs.34,068/- as advance with the first opposite party on 30.04.2013 vide Ex.C1 and the balance amount was paid by Hinduja Leyland Finance Limited, Chennai .  The first opposite party has also registered the vehicle with the Regional Transport Office under registration
No. PY 02 M 8607 vide Ex.C2 stating that the date of manufacture is "01/2013" and delivered the same to the complainant.   It is further alleged by the complainant that he has purchased the vehicle for offering as a gift to his bridegroom.  Later, on perusal of R.C. Book with its engine number and chassis number, the complainant came to know that the vehicle was manufactured in the year 2010 and thereby he sustained mental agony.  The complainant also alleged that he approached the first opposite party and requested to receive back the vehicle of 2010 model and deliver a vehicle manufactured in the year 2013, but there was no proper response from the OP1.  The complainant lodged a complaint with Station House Officer, Karaikal on 11.06.2013 vide Ex.C3 who enquired the same and instructed the complainant to seek remedy through Court of Law vide Ex.C4.   On 27.06.2013 the complainant sent a legal notice vide Ex.C5 to the opposite parties.  Though it was received by the OP1 vide Ex.C6, no reply was sent by the opposite parties.  Hence, the complainant filed this complaint to direct the OP1 to get back the vehicle and to deliver a 2013 model new vehicle and also seeking compensation for the loss and mental agony suffered by him. 

          12. On the otherhand, the OP1 alleged in the reply version that the responsibility for the registration of the vehicle rests with the complainant as per Section 40 of the Motor Vehicle Act, 1988 and as per the information provided by the complainant in column 17 of the Form 20, the month and year of the vehicle is entered as 01/2013 in Form 20 by the Registering Authority.   Hence, this opposite party has not committed any deficiency of service.   The Registering Authority or the Licencing Authority is not added as a necessary party to this complaint and hence, this complaint is hit by non-joinder of necessary party.  Hence, prayed for dismissal of the complaint.

          13. We have carefully perused the complaint, reply version of OP1 and the evidences and documents of both parties and the arguments of both parties counsels.  It was admitted by both the parties that the complainant purchased a Suzuki GS 150 R motor cycle, on paying an advance amount of Rs.34,068/- from the first opposite party on 30.04.2013 vide Ex.C1.  It is alleged by the complainant that the first opposite party has falsely represented and sold the said vehicle Suzuki GS 150 R as 2013 model, while it was 2010 model.   The complainant requested the first opposite party to replace for 2013 model vehicle, but the first Opposite Party refused to do so.   Further, on perusal of Ex.C2, the R.C. Book, the Regional Transport Authority also entered in the column "Date of Manufacture as 01/2013".   To refute the contentions of the complainant, the first opposite party has stated that the responsibility for registering a vehicle with the concerned authority rests only with the customer / complainant and based on the particulars given by him in Form 20, the Transport Authority has made the entry in the R.C. Book and the first opposite party being seller of the vehicle has nothing to do with the same.  It is further alleged by the first opposite party that the complainant has misconceived the term of manufacturing date of the vehicle with the date of manufacturing of its integral components of Chassis number and Engine Number.  The learned Counsel for the complainant has stated that it is the general practice that the Form 20 and Form 21 should be prepared by the seller only and the purchaser / customer will affix the signature   in the Form 20 and the same will be given by the seller to the Transport Authority.  The Form 21, Sale certificate will be given only by the Seller.  To that effect, the RW1 stated in his cross examination that

"It is true that only after verifying the Form-21 the Engine Number, Chassis Number and the year of manufacturing are to be incorporated in Form 20 by the complainant.  It is not the mistake of the complainant that the mentioning of year of manufacturing as 2013 in Form 20". 

          14. With regard to the plea of OP1 that this complaint is bad for non-joinder of necessary party, this Forum observed that there is no contract between the Regional Transport Authority and the complainant for any commercial transaction.  The Regional Transport Authority not indulged in any commercial activities.   It has performed its statutory duty.  Hence, the question of non-joinder of necessary party does not arise.    However, the Assistant Motor Vehicle Inspector of Regional Transport Department was examined as RW1 and he also deposed during his cross examination that "Form 20 should be signed by the Party.  Form 21 should be signed by the OP1-Dealer.  Ex.R2 is the copy of application furnished by the complainant under Form 20 along with other connected documents.  In which, both Form 20 and Form 21 reflects the "Month and Year of Manufacture as 01/2013". 

          From the evidences of RW1, it is clear that the OP1 themselves stated in Form No.21 the manufacturing date as 01/2013. 

          15. The complainant has summoned and examined one Deshratan Marwah, the Assistant Manager Legal and Secretarial Department, Suzuki, Delhi who is the manufacturer of Suzuki Motor cycles as CW2, deposed before this Form and marked Ex.C7, which clearly shows that the disputed vehicle was manufactured on 09.01.2010.  Hence, it is clearly proved that the complaint alleged vehicle was manufactured in the year 2010.  From the above facts and circumstances, this Forum observed that the OP1 alone falsely represented that the vehicle was manufactured in the year 2013 and sold the same to the complainant.  The above act of false representation made by OP1 is amounts to Unfair Trade Practice. 

16.  Since the complainant has established his case, he has to be compensated accordingly.  The complainant prayed in his complaint for compensation and to direct the opposite parties to receive back the 2010 model vehicle and to replace with 2013 model.  The vehicle is still under the use of complainant.  Further there is no possibility to replace with 2013 model since such model will not available with the opposite parties as on date.   Hence, instead of replacing the vehicle, this Forum observed that the first opposite has to return back the cost of the vehicle to the complainant.  Since the complainant is still using the vehicle, he is not entitled to get interest for the loan available from the financier for the balance amount of the vehicle.    However, the complainant is entitled for compensation towards loss and injuries suffered by him due to the act of the first opposite party.  The complainant has stated that he has paid part amount  as advance to the OP1 towards cost of the vehicle and the remaining amount was paid by one Hinduja Leyland Finance Limited .  On perusal of materials available in this case, the complainant has not produced the invoice of the vehicle and also documents  relating to loan availed by him from the said Hinduja Leyland Finance Limited.  However, on perusal of Ex.C2 the Certificate of Registration, it reveals that one Hinduja Leyland Finance Limited has paid the amount to the OP1.  On perusal of the Insurance Certificate, which is annexed in Ex.R1 series, the Insured Declared Value is Rs.64,700/-.  Hence, this Forum comes to the conclusion that the cost of the vehicle is Rs.64,700/- and the said amount should  be returned by the OP1 to the complainant. 

          17. This Forum observed that there is no deficiency in service made out against second Opposite Party, the complaint against OP2 is liable to be dismissed. 

18. Under the above facts and circumstances,  this Forum has come to the conclusion that the complainant has clearly established his case and has proved the unfair trade practice of the opposite parties leading to loss and sufferings to the complainant.  Thus, the complainant is entitled for the compensation and the first opposite party is liable for their unfair trade practice. 

19. POINT No.3:

            In view of the discussions made supra, this complaint is hereby allowed and the first opposite party is directed 

1. To pay a sum of Rs.64,700/- towards the cost of the vehicle to the complainant; 

          2. To pay a sum of Rs.25,000/- as compensation towards loss, mental agony suffered due to the Unfair Trade Practice.

          3. The first opposite party is directed to pay a sum of Rs.5000/- towards cost of this proceedings. 

          4. The complaint as against OP2 is hereby dismissed. 

          5. The complainant is hereby directed to return the vehicle to the OP1 after the compliance of this order.

           Dated this the 31^st   day of August  2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER

COMPLAINANTS' WITNESS:  

CW1           30.01.2015           K. Panneerselvam

CW2           30.06.2017           Deshratan Marwah,  Asst. Manager (Legal)

OPPOSITE PARTY'S WITNESS:  

RW1           27.05.2016           P. Kumar     

RW2           25.09.2015           P. Kumaresan, Assistant Motor Vehicle Inspector

COMPLAINANT'S SIDE DOCUMENTS:

OPPOSITE PARTY'S EXHIBITS:   

Ex.R1         series                             True copy of application furnished by the complainant

under Form 20 along with other connected documents.

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

   MEMBER