State Consumer Disputes Redressal Commission
Manager M/S. Shivnath Automobiles ... vs Dr.Harsh Kumar Sahu on 16 December, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/15/413
Instituted on : 28.08.2015
Manager (Sale Department),
M/s Shivnath Automobile Private Limited,
211, Shastri Nagar Commercial Complex,
Opposite : Amit International Hotel, Supela,
Bhilai, District Durg (C.G.) ... Appellant.
Vs.
Dr. Harsh Kumar Sahu, S/o Alakhram Sahu,
R/o : House No.72, Village : Pendari,
Tehsil : Dhamdha, District Durg (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Prabhank Thakur, for the appellant.
Shri Tikeshwar Kumar, for the respondent.
ORDER
Dated : 16/12/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 07.07.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case No.C.C./14/96. By the impugned order, the District Forum, has allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to // 2 // pay within a period of one month from the date of order a sum of Rs.6,92,517/-, along with interest @ 18% p.a. from the date of filing the complaint i.e. 24.03.2014 till realisation. The appellant (O.P.) has further been directed to pay a sum of Rs.2,00,000/- towards compensation for mental agony and a sum of Rs.5,000/- towards cost of litigation to the respondent (complainant).
2. Briefly stated, the facts of the case are that on 28.09.2012, the respondent (complainant) contacted the authorized dealer of the Mahindra Company at Supela for purchasing Bolero Plus A.C. vehicle and paid a sum of Rs.10,000/- as advance. The respondent (complainant) booked a Bolero Plus A.C. vehicle at the price of R.6,92,517/-. The appellant (O.P.) told the respondent (complainant) that the vehicle would be delivered to him on 19.10.2012. Out of Rs.6,92,517/-, the respondent (complainant) paid a sum of Rs.10,000/- in cash to the appellant (O.P.) on 28.09.2012 for booking the said vehicle and prepared a D.D. no.393467 for remaining amount of Rs.6,82,517/- and provided the same to the appellant (O.P.), on the basis of which, after receiving a sum of Rs.6,92,517/- i.e. full price of the vehicle in question, the appellant (O.P.) delivered Bolero Vehicle of the Mahindra Company to the respondent (complainant). The appellant (O.P.) provided the vehicle to the respondent in which A.C. of other vehicle was fitted but it received the amount for A.C. of // 3 // Bolero Company. The assembled A.C. was of sub-standard quality, therefore, during the course of driving the vehicle and starting the above A.C., the working capacity of vehicle was started decreasing and within 3-4 months various defects were found in the vehicle and in the working capacity of the A.C. The respondent (complainant) contacted the appellant (O.P.) and informed it regarding the problem of the A.C. of the vehicle. The appellant (O.P.) mislead the respondent (complainant) and suppressed the true facts and told the respondent (complainant) to leave the vehicle in the garage for one or two days and the respondent (complainant) left the vehicle at the garage. The appellant (O.P.) after removing the minor defects, returned the vehicle to the respondent (complainant). The respondent (complainant) purchased the said vehicle from the appellant (O.P.) after seeing the working capacity of Bolero Plus A.C. Vehicle of his friend. The friend of the respondent (complainant) was having Bolero Plus vehicle since some years. But there is difference in the working capacity of vehicle of his friend and vehicle of the respondent (complainant), therefore, he doubted in the working capacity of the vehicle which was purchased by him. The respondent (complainant) got examined the vehicle from the Proprietor of Refrigeration Works and he gave information to the respondent (complainant) that the appellant (O.P.) instead of providing Bolero Plus A.C. vehicle, provided Bolero D.I. Turbo Plus Non A.C. vehicle to the respondent (complainant), in which A.C. // 4 // was separately fitted. He further that the A.C. was not fitted by the Company, but it was fitted later on. The vehicle in question was examined by the Mechanic, it was found that insulation was not found in the vehicle, whereas in the A.C. vehicle it is essential that insulation should be present. In the vehicle cooling and heating were not assembled. It appears that the vehicle in question was Non A.C. vehicle and local made A.C. was fitted by the appellant (O.P.) in the vehicle and fraudulently the appellant (O.P.) delivered Non A.C. vehicle to the respondent (complainant) by saying it A.C. vehicle. The respondent (complainant) informed the appellant (O.P.) regarding the deficiency in service committed by the appellant (O.P. ) then the appellant (O.P.) misled the respondent (complainant) and assured him that the appellant (O.P.) will provide a new vehicle if the respondent (complainant) will not make complaint to the Police. The respondent (complainant) was silent and was waiting for obtaining new vehicle. The appellant (O.P.) was threatening the respondent (complainant) on telephone by using indecent words and told him not to contact the appellant (O.P.) in future otherwise he will involve the respondent (O.P.) in false case and will sent him in jail. Thereafter, the respondent (complainant) sent legal notice to the appellant (O.P.) and also lodged report before Superintendent of Police, Durg and informed him that the appellant (O.P.) deceived him, but the appellant (O.P.) did not send reply of the legal notice and the Police also did not take any legal // 5 // action. After running the vehicle for near about 3 months, the respondent (complainant) parked the vehicle in his house with a hope that the appellant (O.P.) will provide a new vehicle in place of vehicle in question or will refund the amount along with interest, but inspite of passing of 1 ½ years the appellant (O.P.) did not provide A.C. vehicle of the Company nor refunded the amount. Hence, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in relief clause of the complaint.
3. The appellant (O.P.) filed its written statement and averred that the respondent (complainant) deposited a sum of Rs.10,000/- for purchasing Bolero Plus vehicle, but he did not book Bolero Plus A.C. vehicle. The respondent (complainant) deposited the amount for Bolero Plus Non A.C. Vehicle and Invoice No.INV13A000174 dated 27.10.2012 was issued to the respondent (complainant) in which it has been clearly mentioned Non A.C. which was provided to the respondent (complainant) at the time of delivery of the vehicle. The appellant (O.P.) informed the respondent (complainant) that Non A.C. vehicle was sold to the respondent (complainant). Due to non-delivery of the A.C. vehicle, on the request of the respondent (complainant), A.C. vehicle was sold to him. A.C. was fitted in the sold vehicle and the same was provided to him and the respondent (complainant) paid // 6 // a sum of Rs.6,92,517/- through D.D. dated 18.10.2012 in which the price of vehicle Rs.6,00,216, R.T.O. Charges Rs.68,991/- and price of A.C. Rs.23,310/- which was separately fitted, were included. After purchasing the vehicle, the respondent (complainant) left the vehicle in the workshop of the appellant (complainant) for servicing on 07.09.2013 and 15.01.2015, but he did not make any complaint regarding the A.C. The Bolero Plus Vehicle was working properly and no problem or complaint was found in the A.C. of the vehicle. The appellant (O.P.) sold a Non A.C. vehicle to the respondent (complainant) and in the said vehicle the A.C. was fitted after purchasing the same from market and the price of the same was recovered from the respondent (complainant). The respondent (complainant) purchased the vehicle on 27.10.2012 and thereafter on 07.09.2013 he left the vehicle to the workshop of the appellant (O.P.) for servicing and meter of running was showing 16101 kms. The appellant (O.P.) sold Non-A.C. Bolero Plus vehicle to the respondent (complainant). The respondent (complainant) expressed his desire to purchase A.C. Bolero Plus Vehicle but the appellant (O.P.) expressed its inability to sale the vehicle containing A.C. and the appellant (O.P.) did not obtain the price of the vehicle containing A.C. from the respondent (complainant) and it obtained price of Non. A.C. vehicle. On the request of the respondent (complainant) in the sold vehicle the A.C. was fitted from the open market, for which the respondent // 7 // (complainant) gave his consent and the respondent (complainant) make the payment for the above A.C. The respondent (complainant) is not entitled to get any relief and the complaint is liable to be dismissed.
4. Learned District Forum, after having considered the material placed before it by the parties, allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant), as mentioned hereinabove in para 1 of this order.
5. The respondent (complainant) has filed documents. Document Ex.P-1 is Receipt dated 28.04.2012 issued by Shivnath Automobiles Pvt. Ltd., Durg (C.G.) to the respondent (complainant), Ex. P-2 is Receipt dated 18.10.2012 issue by Shivnath Automobiles Pvt. Ltd. to the respondent (complainant), Ex. P-3 is Delivery Challan/Payment Details dated 19.10.2012 issued by Shivnath Automobiles Pvt. Ltd. Durg (C.G.) to the respondent (complainant), Ex. P-4 is Vehicle Receipt No.102 dated 19.10.2012, Ex.P-5 is Motor Vehicle Cover Note No.3799940 dated 19.10.2012 issued by Royal Sundaram Alliance Insurance Company Limited in favour of the respondent (complainant), Ex. P-6 is Tax Invoice issued by Shivnath Automobiles Pvt. Ltd. to the respondent (complainant), Ex. P-7 is registered notice dated 23.12.2013 sent by Shri Ganesh Kumar Dhruwanshi, Advocate to the Manager (Sale Department), Mahindra Finance Company, Bhilai Nagar, District Durg (C.G.), Postal Receipt, Ex.P-8 is particulars given // 8 // by Anil Refrigeration Works, Bhilai in respect of the Bolero Vehicle, D- 1 is Retail Invoice dated No.INV13A000174, D-2 is Vehicle History of vehicle bearing registration No.C.G.07-AH-4658, D-3 is vehicle history of vehicle bearing registration No.C.G.07-AH-4658.
6. Shri Prabhank Thakur, learned counsel for the appellant (O.P.) has argued that the impugned order passed by the learned District Forum, is erroneous and is liable to be set aside. The respondent (complainant) book non A.C. Bolero Plus Vehicle. From bare perusal of the invoice dated 27.10.2012 issued by the appellant (O.P.), it appears that the respondent (complainant) ordered for non A.C. Bolero Plus vehicle and at the request of the of the respondent (complainant) A.C. was separately fitted in the vehicle and amount thereof was recovered from the respondent (complainant). Initially, the respondent No.1 (complainant) deposited a sum of Rs.10,000/- with the appellant for purchasing Bolero Plus non A.C. vehicle and Receipt No.0039 dated 28.09.2012 was issued by the appellant (O.P.) in favour of the respondent (complainant) and thereafter the A.C. was fitted in the vehicle in question. The respondent (complainant) deposited a sum of Rs.23,310/- and the A.C. was in good condition. The respondent (complainant) did not make any complaint regarding the A.C. and the A.C. of the vehicle was working properly and no problem was found in the A.C. of the vehicle in question. The vehicle // 9 // was purchased by the respondent (complainant) from the appellant (O.P.) on 27.10.2012 and on 07.09.2013, the respondent (complainant) left the vehicle to the workshop of the appellant (O.P.) for servicing and at that time the vehicle had run near about 16101 Kms . Initially the respondent (complainant) his desire to purchase Bolero Plus A.C. vehicle, but the appellant (O.P.) expressed it's inability to supply Bolero Plus A.C. vehicle, then the respondent (complainant) purchased Bolero Plus Non A.C. vehicle voluntarily, therefore, the respondent (complainant) filed the instant complaint with ulterior motive and learned District Forum has erroneously allowed the complaint, hence the impugned order is liable to be set aside.
7. Shri Tikeshwar Kumar, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum and argued that the respondent (complainant) expressed his desire to purchase Bolero Plus A.C. Car. From bare perusal of the Motor Vehicle Cover Note and Receipt issued by the appellant (O.P.), it appears that the respondent (complainant) booked Bolero Plus A.C. vehicle and the amount was deposited for Bolero Plus A.C. vehicle. The appellant (O.P.) fraudulently separately fitted A.C. in the vehicle and delivered the Bolero Plus Non A.C. vehicle to the respondent (complainant) saying it Bolero Plus A.C. Vehicle and committed unfair trade practice, which comes within deficiency in // 10 // service The impugned order passed by the District Forum, and reasonable and does not call for any interference by this Commission. 8 We have heard learned counsel for the parties and have also perused the record of the District Forum.
9. The respondent (complainant) filed document Ex.P-1 and Ex.P- 2 which are money receipts dated 28.09.2012 issued by appellant (O.P.) in favour of the respondent (complainant) through which the respondent (complainant) deposited a sum of Rs.10,000/- and Rs.6,82,517/- respectively for purchasing Bolero Plus A.C. White vehicle. Ex. P-3 is Delivery Challan / Payment Details dated 19.10.2012 issued by the appellant (O.P.) in favour of the respondent (complainant) where in it is mentioned that the model is Bolero Plus A.C. In Ex.P-4 which is Vehicle Receipt No.102 issued by Mahindra and Ex.P.5 which is Motor Vehicle Cover Note issued by Royalal Sundaram Alliance Insurance Company Limited, it is specifically mentioned that Model of Vehicle is Bolero Plus A.C. It appears that the respondent (complainant) booked Bolero Plus A.C. vehicle and he deposited the amount for the same. If the appellant (O.P.) was unable to provide Bolero Plus A.C. vehicle to the respondent (complainant), then in the money receipts and other documents the appellant (O.P.) it would have been mentioned that model of the vehicle is Bolero Plus Non A.C. vehicle but above documents indicate that the amount was // 11 // received by the appellant (O.P.) from the respondent (complainant) for supply of Bolero Plus A.C. vehicle.
10. The appellant (O.P.) admitted that the A.C. was separately fitted by it in the vehicle in question. It appears that the appellant (O.P.) provided Bolero Plus Non A.C. vehicle to the respondent (complainant) and it fitted A.C. in the vehicle . The appellant (O.P.) sold non A.C. vehicle to the respondent (complainant) by saying it A.C. vehicle and the act of the appellant (O.P.) comes within category of unfair trade practice and thus the appellant (O.P.) committed deficiency in service, therefore, the finding recorded by the District Forum is just and proper.
11. The Learned District Forum awarded a sum of Rs.2,00,000/- to the respondent (complainant) towards compensation for mental agony to the respondent (complainant). We find that it is on higher side and a sum of Rs.50,000/- is just and proper to award compensation for mental agony to the respondent (complainant), therefore, we hold that the respondent (complainant) is only entitled for getting a sum of Rs.50,000/- towards compensation for mental agony instead of Rs.2,00,000/- as awarded by the District Forum. So far as cost of litigation awarded by the District Forum to the respondent (complainant) is concerned, it is just and proper.
// 12 //
12. The Learned District Forum has directed the appellant (O.P.) to pay within a period of one month from the date of order a sum of Rs.6,92,517/- along with interest @ 18% p.a. from the date of filing of the complaint i.e. 24.03.2014 till realisation. The interest awarded by the District Forum, is also on higher side and it is just and proper to award interest @ 9% p.a.
13. The Learned District Forum awarded a sum of Rs.6,92,517/- in favour of the respondent (complainant), but the District Forum, did not give any direction regarding old vehicle. The respondent (complainant) himself pleaded that the Bolero Plus Non A/C vehicle is parked in his house. If the old vehicle is in possession of the respondent (complainant), then the same will be returned by him to the appellant (O.P.) and the appellant (O.P.) will pay a sum of Rs.6,92,517/- to the respondent (complainant).
14. Therefore, we partly allow the appeal filed by the appellant (O.P.) and it is directed that the appellant (O.P.) will pay within a period of 45 days from the date of this order a sum of Rs.6,92,517/- to the respondent (complainant) along with interest @ 9% p.a. from the date of filing of the complaint i.e. 24.03.2014 till realisation. If the Non A.C. Bolero Plus vehicle is in possession of the respondent (complainant), then he will return the same to the appellant (O.P.). It is further directed that the appellant (O.P.) will pay a sum of // 13 // Rs.50,000/- (Rupees Fifty Thousand Only) to the respondent (complainant) towards compensation for mental agony instead of Rs.2,00,000/- as directed by the District Forum. Remaining part of the impugned order will remain unaltered and is affirmed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) Pre2ident Member Member Member /12/2015 /12/2015 /12/2015 /12/2015