State Consumer Disputes Redressal Commission
Sumit Mohan vs Benchmark Motors Pvt. Ltd. on 24 August, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No.1185 of 2018 Date of Institution: 11.10.2018 Date of Final hearing: 17.08.2022 Date of pronouncement: 28.10.2022 Sumit Mohan S/o Sh.Surinder Mohan R/o H.No.661, Sector-8, Panchkula. .....Appellant Versus Bechmark Motors Pvt. Ltd., 363, Industrial Area, Phase-2, Panchkula through its Authorized Representative,Sh.Amar Sharma. Renault India Pvt. Ltd., SV Ramana Towers, 4th Floor, 37-38, Venkat Naryan Road, t.Nagar,Chennai-600017, Tail Nadu. .....Respondents CORAM: S.P.Sood, Judicial Member
Suresh Chander Kaushik, Member Present:- Mr.Varun Chawla, Advocate for the appellant.
Mr.Sandeep Jasuja, Advocate for the respondent No.1.
Mr.Hitender Kansal, Advocate for the respondent No.2.
ORDER S P SOOD, JUDICIAL MEMBER:
Along with this appeal there is an application for seeking condonation of delay of 221 days in filing of the present appeal and the appellants have sought condonation of this delay on the ground that complaint was allowed only against respondent No.1and 2, the appellant did not pursue to prefer appeal as the appellant was not inclined to enter into another round of litigation. The order of Ld. Forum was challenged by the respondents therefore under the circumstances, after much deliberations and discussions, the appellants deemed it necessary to prefer appeal before this Commission and in this process, the delay has occurred, which may be condoned in the interest of justice and under the circumstances of the case.
2. While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it can be taken into consideration that in case of any legal infirmity committed by the District Consumer Forum while passing the impugned order, which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law.
3. The Hon'ble Supreme Court while dealing with such a controversy has held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words "Sufficient Cause" have to be interpreted to advance the cause of justice. Reliance may be placed to the observations made by the Hon'ble Supreme Court in State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 as under:-
"11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause" should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned."
In this view of the above, we condone the delay of 221 days.
4. The present appeal No.1185 of 2018 has been filed against the order dated 19.01.2018 of the District Consumer Disputes Redressal Forum, Panchkula (Now In short "District Commission") in complaint case No.111 of 2017, which was allowed.
5. The brief facts of the case are that on 31.03.2017, the complainant booked the KWID car with opposite party (OP) No.1 vide booking requisition form and tendered a demand draft No.441320 amounting to Rs.4,49,753/- favouring OP. At the time of booking, OP No.1 told that the car was in transit and would be available by the evening of 31st March, 2017, but, in the evening OP told that car would be delivered by 02.04.2017 at 10.00 a.m. On 02.04.2017, the car was delivered to him but without documents. On 08.04.2017, the documents were handed over to him. On 07.04.2017, the complainant noticed that one of its bumper was repainted and there were spots on windscreen as well as left hand side of headlamp. He approached the OP No.1 and requested to replace the vehicle, but, OP NO.1 made allegations that complainant himself hit the vehicle and got it repaired. On 11.04.2017, the complainant sent an email and brought the vehicle to OP No.1 workshop, with assurance that he would not face any problem in near future. On 12.04.2017, the official of OP No.1 sent email apologizing for the allegations where it was inspected by the experts and he was surprised to know that its bonnet was also repainted, which shows that some accidental vehicle was supplied to him alleging it to be new. The complainant requested the OP No.1 to replace the vehicle but to no avail. He was shocked when the chasis number (M EEBBA000H2462678) was traced, it was different from the chasis number (MEEBBA00XH2466124), which was mentioned on the sale certificate and form no.22 provided to the complainant by the OPs. Thus there was deficiency in service on the part of the OPs.
6. Notice being issued to the OPs, however OP NO.2 was proceeded against ex parte vide order dated 05.07.2017 when it failed to appear despite service. OP No.1 filed separate reply submitting that on 31.03.2017, the complainant approached for purchase of new vehicle, however, the said particular model was not in the stock of the OP No.1. It was informed that particular model was in the stock of OP No.1 sister concern of Amritsar Dealership and same could be brought here in 5-6 hours through stock transfer. However as complainant wanted to purchase the said vehicle on 31.03.2017 itself so he requested for issuing the invoice of the vehicle on 31.03.2017 itself so that car in question may not be given to any other customer and he would take the delivery on 02.04.2017. The complainant was provided with the photocopies of retail invoice, form No.22 and sale invoice of the vehicle as the originals of the said documents were to be only given on encashment of DD/payment received from a customer, whereas the temporary registration certificate was handed over to him in original. On 08.04.2017, the other original documents of the vehicle were also handed over to him. It was denied that there was any defect or spots on the wind screen or at head lamp of the car, but, when the complainant brought the vehicle, it was found that there were marks of accidental damage. However, the complainant wrongly insisted for replacement of the vehicle. It was due to sheer oversight that incorrect chasis number on documents were issued to him on 08.04.2017, however, as complainant came back after one hour pointing out the said mistake, and after realizing the mistake, the correct documents were issued on the same day. Thus there was no deficiency in service on the part of the OPs.
7. After hearing both the parties, the learned District Commission, Panchkula has allowed the complaint vide order dated 19.01.2018. Relevant para is reproduced below:-
"(a) OP No.1 shall replace the vehicle with a new one. (b) OP No.1 shall pay a sum of Rs.25,000/- as the compensation for deficiency in service and also mental agony and harassment caused thereby; (c ) The OPs shall pay a sum of Rs.5,000/- as the cost of litigation to the complainant."
8. Feeling aggrieved therefrom, appellant-complainant has preferred this appeal.
9. This argument have been advanced by Sh.Varun Chawla, the learned counsel for the appellant as well as Sh.Sandeep Jasuja, learned counsel for the respondent No.1 as well as Mr.Hitender Kansal, Advocate for the respondent No.2. With their kind assistance the entire record of the appeal as well as the original record of the District Commission, the evidence led on behalf of both the parties had also been properly perused and examined.
10. Learned counsel for the complainant-appellant vehemently argued that at the time of booking, OP No.1 told that car in question was in transit and would be available by the evening of 31st March, 2017, but, in the evening OP No.1 told that car in question would be delivered by 02.04.2017 at 10.00 a.m. On 02.04.2017, the car was delivered to him without documents. On 08.04.2017, the documents were handed over to him. On 07.03.2017, the complainant noticed that entire bumper was painted and there were spots on windscreen as well as left hand side of headlamp. He approached the OP No.1 and requested to replace the vehicle, but, OP NO.1 made allegations that complainant himself hit the vehicle and got it repaired. On 11.04.2017, the complainant sent email to OP No.1 for complaining about vehicle. He brought to the vehicle in the workshop-OP No.1, it was assured that he would not face any problem in near future. On 12.04.2017, the official of OP No.1 sent email apologizing for the allegations. The complainant's vehicle was inspected by the experts and was surprised to notice that bonnet was also repainted, which shows that infact some accidental vehicle was supplied to him. The complainant requested the OP No.1 to replace the vehicle but to no avail. He was shocked when the chasis number (MEEBBA000H2462678) was traced as it was different from the chasis number (MEEBBA00XH2466124), which was mentioned on the sale certificate and form no.22 provided to the complainant by the OPs.
11. Learned counsel for the respondent No.1 vehemently argued that the car in question was delivered to complainant after he was completely satisfied in the show room and photocopy of such documents like form no.22 and sale certificate given to the complainant on the same day when he purchased the vehicle. It was admitted that original documents were handed over to the complainant on 08.04.2017 after encashment of demand draft made tendered by him as per normal procedure. It was denied that there was any defect either in the wind screen or at its head lamp. When complainant brought the vehicle, it was found that there were marks of accidental damage. However, the complainant wrongly insisted for replacement of the vehicle. The wrong chasis number on documents were issued to him on 08.04.2017, however, after realizing the mistake, the correct documents were issued on the same day. The complainant was not entitled for new vehicle or for any compensation as prayed for. Learned District Commission has wrongly allowed the complaint and thus the impugned order cannot sustain.
12. Learned counsel for the respondent No.2 vehemently argued that OP No.2 was manufacturer of the vehicle in question and the same was sent to the OP No.1 for sale. Further denied that the defective vehicle was sent to the OP No.1, hence the vehicle in question was not replaced with new one. Even otherwise no relief has been granted by the learned District Commission against it. Learned District Commission has wrongly allowed the complaint.
13. It is not disputed that on 31.03.2017, the vehicle in question was purchased by the complainant. It is not disputed that the bonnet of the car was painted as per the report of engineer. Ex. C-5,C-6, C-7 are letters and emails, which shows that the car in question supplied to the complainant was defective one.
14. It is admitted that complainant received the original documents from the opposite party No.1 after more than one week. Learned District Commission cannot order for replacement of the vehicle with new one. Hence, the order of replacement of the vehicle in question is set aside. The rest of the impugned order will remain same. With the above modification, the appeal stands disposed off.
15. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
16. A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.
17. File be consigned to record room.
28th October, 2022 Suresh Chander Kaushik S. P. Sood Member Judicial Member S.K (Pvt. Secy.)