First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.464 of 2012
Date of institution : 17.04.2012
Date of decision : 03.09.2015
Hemant Goyal Motors (P) Ltd., Rajpura Road, Patiala through its Chief Executive Officer Mr. A.K. Sharma.
…….Appellant/Opposite Party
Versus
Vijay Kumar Gupta son of Sh. Sukh Ram Gupta, resident of Gupta Hospital, Sherpur Road, Dhuri Distt. Sangrur. …..Respondent/Complainant
First Appeal against order dated 28.02.2012 passed by The District Consumer Disputes Redressal Forum, Sangrur.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. H. S. Guram, Member
Present:-
For the appellant : None
For the respondent : Sh. R.S. Joshi, Advocate
H. S. GURAM, MEMBER:-
This appeal has been preferred by the appellant (OP in the complaint) against the respondent of this appeal (complainant in the complaint), assailing order dated 28.02.2012 passed by the District Consumer Disputes Redressal Forum Sangrur, (in short 'District Forum'), in CC No. 285 dated 24.03.2011 vide which, the complaint filed by the complainant was accepted by directing OP No. 1 & 2 to pay the complainant an amount of Rs.40,000/- towards compensation on account of unfair trade practice and further to make payment of Rs. 7500/- as litigation expenses.
2. The brief facts of the case are that Sh. Vijay Kumar Gupta son of Sh. Sukh Ram Gupta approached M/s Hemant Goyal Motors, Sangrur for purchase of car in the month of January 2011. He requested the OPs that he wanted to purchase latest model of TATA NANO car. OP No.1 assured the complainant that the Nano car would be delivered to him on 18.01.2011. On 18.01.2011, the complainant purchased a Nano car bearing Engine No. 273MPF101PZYK39930, Chassis No. MAT612221AKP31579 from OP No.1. OP No.1 was also running a showroom of TATA Motors at Patiala and informed the complainant that the bill of the car, insurance cover note, temporary registration certificate and body cover of the car, would be issued in a day or two, whereas, the said car was to be delivered to the complainant on the same day i.e. 18.01.2011. On 21.01.2011, complainant visited the showroom of OP No.1 at Sangrur to obtain the above mentioned documents. He was given only insurance cover note, which was issued by National Insurance Company Limited having its office at Patiala. He was further informed that the bill of the car alongwith other documents would be provided to him in 2-3 days. He was also issued receipt dated 21.01.2011. Thereafter, OP No.1 provided the bill dated 18.01.2011 for Rs.1,67,971/-, alongwith temporary registration certificate dated 21.11.2011, and sale certificated dated 20.01.2011 for Rs. 1,66,971/-. On 25.01.2011, at the time of getting his car registered at Dhuri, the concerned clerk informed him that the model of car sold to him was of 2010 and not of 2011. Further, it was noticed that the insurance cover issued by the OPs bore the year of manufacturing as 2011, whereas sale certificates issued to him showed the model of car as December 2010. Thus, OPs had intentionally sold him a Nano car of model of 2010, instead of Nano car of model 2011. He visited the showroom of OP No.1 at Sangrur and requested them to either replace the car with new car of 2011 model or to refund his amount alongwith interest. But, the employees of the OP flatly refused to listen to his request and rather misbehaved with him. On failure to get any relief from the OPs, the complainant issued a legal notice dated 17.02.2011, through his counsel Sh. Rajinder Goyal, Advocate by registered post requesting OPs to replace the car in question with new model car of 2011 or to refund the price thereof. OPs sent a vague reply to his legal notice on 17.03.2011 by alleging different facts. On failure to get any relief from the OPs, he was forced to file the consumer complaint against them. The complainant prayed that directions be issued to OPs either to replace the car with new model of 2011 or to refund the price of car of Rs.1,67,971/- alongiwth insurance charges of Rs.3550/- and registration charges alongwith interest @ 18% per annum from the date of purchase of car on 18.1.2011 till the date of realization. He also prayed for issuing direction to the OPs to pay to him Rs.50,000/-, as compensation on account of mental agony, harassment and financial loss and further to pay Rs.11,000/- on account of cost of litigation.
3. Upon notice, OP No.1 made a statement that written reply submitted by OP No.2 be treated as its own reply. OP No.2 filed its written reply and took preliminary objections that the complaint filed by the complainant is not maintainable for want of territorial jurisdiction, because no cause of action ever arose within the jurisdiction of District Forum Sangrur. The delivery of the car had taken at Patiala, and the payment for the purchase of said car had been made by way of all documents pertaining to the sale of said car at Patiala. As such, the District Forum Sangrur, has no jurisdiction to entertain the complaint. It was further contended that the complaint is not maintainable, being false and frivolous and the said car was delivered to the complainant at Patiala, after he had conducted physical inspection, by thoroughly checking it, submitting his PAN card number, photocopy of Ration Card etc. As per the sales certificate, the model of car of 2010 was sold to him. Hence, there is no deficiency in service on its part. It was further submitted that there is no unfair trade practice on its part and there is no question of replacement of car, as prayed for replacing the car of model of 2011. On merits, it denied all the allegations of complainant and submitted that the car was actually delivered at their showroom at Patiala and not at Sangrur, as alleged in the complaint and hence it prayed that the complaint filed by the complainant be dismissed. OP No.3 was set exparte before District Forum Sangrur.
4. The complainant tendered in evidence affidavit of Ex.C-1 alongwith postal receipts dated 24.02.2011 Ex.C-3 to Ex.C-5, letter dated 21.11.2011 in the name of the complainant, wherein, original bill + Mud Flap + body cover was shown as pending written on letter pad of Heman Goyal Motors Ex.C-6, copy of insurance cover note dated 21.1.2011 Ex.C-7, proforma invoice dated 18.1.2011 for receipt of Rs. 1,67,971/- Ex.C-8, copy of the legal notice dated 07.03.2011 Ex.C-9, copy of the retail sale dated 20.1.2011 showing the cost of car as Rs.1,66,971/- Ex.C-10, sale certificate form No.21 issued by Hemant Goyal Motors Ex.C-11, Form No.22 issued by TATA Motors, delivery receipt dated 28.1.2011 Ex.C-13, temporary registration No. PBIIAR-0389 for 30 days Ex.C-14, letter of OBC bank dated 27.06.2011 Ex.C-15, photocopy of the receipt of Rs.5,000/- as advance taken from complainant as booking amount Ex.C-16, receipt challan dated 04.02.2011 Ex.C-17, copy of RC Ex.C-18 and closed his evidence. In rebuttal evidence, OPs tendered in evidence receipt dated 20.01.2011 Ex.R-1, satisfactory note 20.01.2011 Ex.R-2, PAN Card Ex.C-3, Voter Card Ex.R-4, Ration Card copy Ex.R-5, retail sale Ex.R-6, sale certificate Ex.R-7, initial Certificate Ex.R-8 and closed the evidence. On conclusion of evidence and argument, the District Forum accepted the complaint of the complainant and passed the order under challenge in this appeal. Aggrieved by impugned order, the OP No.1 & 2 have filed this appeal against the same.
5. We have heard learned counsel for the parties and also examined the record of the case. On the date of arguments, nobody appeared on behalf of the appellants in this appeal and on hearing the counsel for the respondent of this appeal and examining the record, we proceed to decide this appeal. We have also considered the application submitted by the appellant for placing on record some additional documents pertaining to granting of discount to the complainant, vide their Misc. application dated 28.04.2012, as per the directions of this Commission. The same application is allowed in the
interest of justice. We have gone through the additional documents placed on the record, vide annexure R-1 and R-2, vide application dated 24.04.2012 which pertained to booking of the Nano Car. From perusal of Ex.R-1. It is observed that the said car was booked at Sangrur through their executive, who had received an initial booking payment of Rs.5,000/- from the complainant. This fact was fully corroborated by Ex.C-16, which was issued by Harpreet Singh and which was handed over to OBC bank in order to get the said car financed from the said bank. On the face of Ex.C-16, it is written that Harpreet Singh s/o Satpal Singh had received Rs.5000/- advance payment from Dr. Vijay Gupta, being a representative of Hemant Goyal Motors at Patiala Road, Sangrur. The signatures of Harpreet Singh are in Punjabi dated 18.02.2011. From perusal of these documents, it is established that part of cause of action for booking the Nano Car by the complainant arose at Sangrur because the booking amount of Rs.5,000/- was given by complainant within the jurisdiction of District Forum Sangrur. Part payment also constitutes cause of action partly.
6. We have gone through the judgment of the District Forum and also considered the written reply submitted by the OPs and find that no affidavit was filed by them to rebut the affidavit filed by the complainant. As discussed in the District Forum judgment, different documents were issued to the complainant on different dates and they were not issued on same date and the statement is made on oath by the complainant in his affidavit and it went unrebutted by the OPs, in absence of their contrary affidavit on the record. The allegations pertaining to delivery of car and documents at Sangrur were not specifically denied by the OPs.
7. From perusal of Ex.C-7 insurance cover note, it was issued by the National Insurance Company Limited. In the said document, the year of manufacturing of the car was shown as 2011. However, on the top of it, the insurance company has specified broker code and broker name as TATA Motors Insurance Broker and Advisory services Limited. In the instant case, the car sold to the complainant was by TATA Motors only. Thus, the point raised by the complainant that the car sold to him was of 2010 model which was sold to him as being a new model is quite evident on the record.
8. We have to examine the legal objections as raised by the counsel for the appellant in the grounds of appeal i.e. with regard to the jurisdiction. The counsel has also made a reference to the "Sonic Surgical" (Supra), wherein, Hon'ble Apex Court observed that the claim can be filed before the District Forum, where the cause of action has arisen wholly or in part. The claim cannot be filed in the branch office, where no cause of action had arisen at all otherwise it would lead to miscarriage of justice. To support this proposition, he referred to the judgments of this Commission in First Appeal No. 675 of 2008 dated 30.08.2011. First Appeal No. 1088 of 2008 decided on 23.2.2012, in which after discussing the judgment of Sonic Surgical that in case there was no cause of action arisen in the Branch Office then certainly, the District Forum covering the Branch Office did not have any jurisdiction to entertain the complaint. So far as this legal proposition is concerned, we do no dispute this legal proposition, but it is also to be seen whether the facts of the present case are covered by the above judgment.
9. The complainant in his complaint in para No. 3 (a), has specifically mentioned that car was purchased from OP No.1 through OP No.2, and payment was partly made of booking of car at Sangrur. He also placed on the record Ex.C-16, vide which, being the "Kacha Receipt" with regard to the receipt of the payment, it was issued to complainant at Sangrur. From these documents, it is clear that part payment was received at Sangrur and furnished cause of action in part at Sangrur. Therefore, partly cause of action had arisen at Sangrur and hence the District Forum Sangrur had the territorial jurisdiction to entertain the complaint, where branch office of OPs is also situated. Therefore, we do not accept the plea raised by the appellants in the grounds of appeal that the District Forum Sangrur, has no territorial jurisdiction to entertain the complaint.
10. So far, as the plea taken by the appellants in the grounds of appeal that the District Forum had not taken into consideration the other point raised in the written statement about hire purchase agreement and as such the order of the District Forum was not tenable or in the alternative, the case be remanded for fresh decision. The point of financing the car by hire purchase agreement between the complainant and financer will not affect the status of the complainant being a consumer. As such, we do not agree with the contention raised in the grounds of appeal that District Forum was to decide this point while deciding the complaint.
11. In case we are to analyze all the facts and circumstances of the case, it is clearly made out that the appellants/OPs sold the old vehicle showing it as a brand new vehicle, which, amounted to unfair trade practice on their part. Therefore, the complaint was rightly allowed by the District Forum and we have no hesitation to affirm the findings of the District Forum in this appeal.
12. In view of above observations, we do not find any merit in this appeal and the same is dismissed with no order as to costs.
13. The appellant had deposited an amount of Rs.23750/- with this Commission at the time of filing the appeal and this amount with interest accrued thereon, if any, be remitted by the registry to complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to the parties. The OPs are further directed to comply with the order of the District Forum.
14. The arguments in this appeal were heard on 24.08.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar)
Presiding Judicial Member
(H.S. Guram)
Member
September 03,2015
RK 2
