State Consumer Disputes Redressal Commission
Prop/G.M. Ganesha Motors P. Ltd. & Anr. vs Sh. Amit Kumar. (Since Deceased) ... on 5 April, 2024
H. P. ST ATE CONSUMER DISPUTES REDRESSAL
COMMISSIO N SHIMLA.
First Appeal No. : 108/2020
Date of Presentation : 21.07.2020
Order Reserved on :20.03.2024
Date of Order :05.04.2024
_____
1. Prop./G.M. Ganesha Motors P. Ltd., NH-21 Gutkar, Tehsil
Balh, District Mandi, H.P. at present Village Chakkar, P.O.
Gutkar, Tehsil Balh, District Mandi, H.P.
2. Prop./G.M. Ganesha Motors P. Ltd. NH-88, Didwin Tikker,
District Hamirpur, H.P.
...... Appellants/Opposite Parties.
Versus
1. Mr.Amit Kumar Guleria, (deceased) through LRs S/o
Tamber Dhawaj Guleria, R/o V.P.O. Pairi, Tehsil Balh,
District Mandi, H.P.
.....Respondent/complainant.
2. Punjab National Bank, Gutkar Branch, District Mandi,
through its Branch Manager.
3. Punjab National Bank, Bhangrottu Branch, District Mandi,
H.P., through its Branch Manager.
.........Respondents/Pro-forma opposite parties
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Mr.R.K. Verma, Member
Whether approved for reporting?1
1
?
Whether reporters of the local papers may be allowed to see the order?
Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020)
For the Appellants: Mr.Shashi Bhushan, Advocate.
For the Respondent No.1: Mr.H.S.Rangra, Advocate vice
Mr.G.R. Palsra, Advocate.
For Respondents No.2 & 3: Mr.Jagdish Thakur, Advocate vice
Mr.Hem Singh Thakur, Advocate.
Per, Mr.R.K.V erma, Member
ORDER
Instant appeal is arising out of the order dated 07.01.2020 passed by Learned District Consumer Forum, Mandi in Consumer Complaint No.07/2019 titled Amit Kumar Guleria Versus Ganesha Motors & Ors.
Brief facts of Case:
2. Brief facts of the case are that the on 30.10.2016, complainant visited the opposite party No.1/Ganesha Motors and purchased a Fiat Punto car by giving Tata Zest car No.HP-33D-6890 in exchange. Old/Tata car was hypothecated with the pro-forma opposite party No.4/PNB. In order to sell their vehicle, opposite parties No.1 & 2/Ganesha Motors offered exchange price of Rs.4,90,000/- for the old/Tata car. Complainant was advised 2 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020) to get the Punto/new car financed for its full value from the financer. New/Punto car was purchased by complainant from the opposite party No.1/dealer against payment of Rs.8,07,542/- after giving the old/Tata car in exchange. Financial assistance to the tune of Rs.7,25,000/- was provided by the pro-forma opposite party No.3/PNB for the new car on the basis of certificate issued by the opposite party No.1/dealer. Remaining amount for the new car was paid in cash by the complainant to the opposite party No.1/dealer. Despite lapse of almost one year, opposite party No.1/dealer failed to credit Rs.4,90,000/- i.e. the price of old/exchanged Tata car to the loan account of new car maintained by the pro-forma opposite party No.3/financer bank. The complainant is paying loan installments of old and new vehicles to the pro-forma opposite parties No.3 & 4/Bank. The opposite parties indulged in unfair trade practice and were deficient in rendering the service. Hence, this complaint.
3 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020)
3. The opposite party No.1 did not appear before the learned District Forum despite being served and was proceeded ex-parte on 11.04.2019.
4. Subsequently, Sh.Dinesh Sharma, Advocate appeared on behalf of the opposite parties No.1 & 2/dealer. Ex-parte order passed against the opposite party No.1/dealer has not been set aside till date.
5. The complaint has been opposed by the opposite parties and pro-forma opposite parties by submitting separate replies.
6. The opposite parties No.1 & 2/dealer in their reply have admitted that a new Punto car was sold to the complainant in exchange scheme. Value of old/Tata car was never assessed as Rs.4,90,000/- as claimed. Vehicles are financed on the basis of invoices or bills and not the certificates like certificate (Annexure-C2). Authenticity of letter dated 16.09.2017 (Annexure-C3) is also disputed. The complainant never visited their premises for crediting 4 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020) Rs.4,90,000/- to the loan account of new/Punto car maintained by the pro-forma opposite party No.3/Bank. There was no deficiency in service or unfair trade practice. A prayer for dismissal of complaint was made.
7. Pro-forma opposite parties No.3 & 4/Bank in their reply have not disputed the fact that a new/Punto car was bought by the complainant from the opposite parties No.1 & 2/dealer by giving old/Tata car in exchange. On the request of the complainant, loan amounting to Rs.7,25,000/- was provided to purchase new/Punto car. Financial help was extended on 07.11.2016 for the new/Punto car by the pro- forma opposite party No.3/Bank. While availing loan facility for new/Punto car, letter dated 07.11.2016 (Annexure-C2) was shown by the complainant. In the said letter, a mention qua exchange of old/Tata car No.HP-33D-6890 was made. While taking loan for new/Punto car, the complainant and the opposite party No.1/dealer never disclosed that the old/Tata car to be given in exchange is financed by the pro-forma 5 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020) opposite party No.4/PNB branch Bhangrotu. Amount of exchange, if any, could not be adjusted in the new loan account. Loan accounts of the complainant are irregular from the beginning. There was no deficiency in service or unfair trade practice on the part of the opposite parties No. 3 & 4/Banks. A prayer for dismissal of complaint was made by the opposite parties No. 3 & 4/Banks.
8. Rejoinders denying the contents of the replies and reiterating those of the complaint were filed by the complainant.
9. Thereafter, the parties adduced evidence in support of their respective pleadings.
10. After hearing learned counsel of the parties, learned District Commission allowed the complaint of the complainant against the opposite parties No.1 & 2/dealers.
11. Feeling aggrieved by the order of learned District Commission, the appellants/dealers preferred the instant appeal before this Commission.
6 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020)
12. We have heard learned counsel of the parties and have also gone through the record carefully.
13. Learned counsel of the appellants/dealers has submitted that the impugned order is bad in law as the same suffers from illegality, surmises and conjecturers. He has submitted that car No. HP-33D-6890 projected by the respondent No.1/complainant as his own car was not owned by him but the same was in the name of one Mr.Ankush Redhu. He has further submitted that the complaint filed by the respondent No.1/complainant was barred by limitation and that the same was also not otherwise maintainable as the previous complaint filed by him on the same cause of action was withdrawn by him. He has further submitted that the appellant No.1/dealer could not effectively contest the complaint before the learned District Commission below as unfortunately despite service he could not appear and was proceeded against ex-parte. Hence the impugned order 7 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020) passed by the learned District Commission below deserves to be set aside.
14. On the other hand, learned counsel of the respondent No.1/complainant has submitted that factually the transaction between appellant No.1/dealer and complainant is based on exchange policy which includes free insurance for one year. He further submitted that the appellant has not paid the price of the old car amounting to Rs.4,90,000/- which was given by the complainant in exchange. Therefore, the impugned order does not require any interference and prays that appeal of the appellants/dealer be dismissed.
15. The learned vice counsel appearing on behalf of the respondents No.2 & 3 has also supported the impugned order and submitted that the same does not require any interference by this Commission.
FINDINGS
16. The admitted fact which emerges on record are that the respondent No.1/complainant had purchased Punto 8 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020) car from the appellants/dealers for a sum of Rs.8,07,542/- in exchange of old car No. HP-33D-6890 on 30.10.2016. The value of the old car of the respondent No.1/complainant was settled at Rs.4,90,000/- which has not been paid by the appellants/dealers to him.
17. The appellants/dealers in their reply have not specifically denied that the respondent No.1/complainant had exchanged his old car No.HP-33D-6890 but in appeal it was contended that the respondent No.1/complainant had given old car No.HP-33D-6890 in exchange which was not owned by him but by one Mr.Ankush Redhu. But the appellants have not produced any material to show that the complainant had given old car No.HP-33D-6890 in exchange. On the contrary, the respondent No.1/complainant has specifically pleaded that he had exchanged his old car No.HP-33D-6890. In his affidavit also, he has deposed that he had given car No. HP- 33D-6890 in exchange. As per copy of registration certificate, Annexure C-1 car No.HP-33D-6890 is owned by the 9 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020) complainant. In view of this there is no merit in the contentions of the appellants/dealers that the exchanged car was not owned by the respondent No.1/complainant.
18. The legal objections raised by the appellants/dealers regarding limitation and maintainability of the complaint on the ground that the previous complaint was withdrawn by the respondent No.1/complainant has been dealt with and rejected by the learned District Commission in para 11 of the impugned order and we do not find any reason to reach at different conclusion. The earlier complaint filed by the respondent No.1/complainant was withdrawn by him with intent to file fresh complaint impleading the financer of the vehicle which was given in exchange by him. Under the Consumer Protection Act there is no bar for filing fresh complaint after withdrawal of the earlier complaint. The instant complaint has been filed by the complainant immediately after withdrawal of the earlier complaint and as such this complaint cannot be held to be barred by limitation. 10 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020)
19. It is true that the appellant No.1/dealer was proceeded against ex-parte by the learned District Commission below vide order dated 07.03.2019 after he failed to appear despite service. He also did not take any step to set aside the ex-parte order passed against him. However, he participated in the proceedings and filed joint reply along with the appellant No.2/dealer and also led evidence. The learned District Commission also afforded him opportunity of being heard on merits. In view of this, no prejudice has been caused to him and as such the impugned order cannot be set aside on this ground as prayed for by him.
20. In view of the above stated facts, we do not find any infirmity in the order passed by the learned District commission below and same does not require any interference.
21. Consequently, appeal of the appellants/dealers fails and same is hereby dismissed.
22. Parties are left to bear their own costs. 11 Prop/G.M.Ganesha Motors P. Ltd. & Anr. Versus Amit Kumar Guleria &Ors.
(F.A. No.108/2020)
23. Certified copy of order be sent to the parties and their counsel(s) strictly as per rules. File of District Commission below alongwith certified copy of order be sent back and file of State Commission be consigned to record room after due completion. Appeal is disposed of. Pending application(s), if any, also disposed of.
Justice Inder Singh Mehta President R.K.Verma Member Veena 12