State Consumer Disputes Redressal Commission
T.R. Sawhney Motors (P). Ltd. vs Ashwani Kr. Singh Dayal & Anr. on 23 October, 2017
IN THE STATE COMMISSION : DELHI
( Co n s t i t u t e d u n d e r S e c t i o n 9 o f t h e Co n s u m e r P r o t e c t i o n A c t , 1 9 8 6 )
Date of Decision: 23.10.2017
First Appeal No.423/2014
(Arising out of the order dated 18.03.2014 passed in Complaint Case
No.604/2011 by the District Consumer Disputes Redressal Forum-V,
Shalimar Bagh, Delhi)
M/s. T.R. Sawhney Motors P. Ltd.,
FIE Patparganj, Delhi,
33-34, Hari Chand Mela Ram Complex,
Wazirabad Road, Delhi. ....Appellant
Versus
1. Shri Ashwani Kumar Singh Dayal,
S/o Shri T.R. Dayal,
EF-21, Inderpuri, New Delhi.
2. Maruti Suzuki India Ltd.,
Plot No.1, Nelson Mandela Road,
Vasant Kunj, New Delhi. ....Respondent
CORAM
Justice Veena Birbal, President
Ms. Salma Noor, Member
1. W h e th e r r e p o r t e r s o f l o c a l n e ws p a p e r b e a l lo we d to s e e th e j u d g m e n t?
2. To b e r e f e r r e d t o th e r e p o r te r o r n o t?
Justice Veena Birbal, President
1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, "the Act") wherein challenge is made to Page 1 of 10 order dated 18.03.2014 passed by the Consumer Disputes Redressal Forum (V), (in short, "the District Forum") in CC No.604/2011 whereby the aforesaid complaint has been allowed and the appellant/OP No.2 has been directed as under:
"1. Replace the car sold to the complainant bearing chasis No.178603 Engine No.38357 bearing registration No.DL 3C BS 1897 with a brand new car of the same make and model.
2. Pay to the complainant a sum of Rs.30,000/- on account of compensation for the pain and agony suffered by him.
3. Pay to the complainant a sum of Rs.5,000/- as cost of litigation."
2. Briefly the facts relevant for the disposal of present appeal are that a complaint under Section 12 of the Act was filed by the respondent No.1 herein i.e. the complainant before the District Forum stating therein that on 27.02.2011, the respondent No.1 had purchased a new Maruti SX4 VXi CNG car from the appellant/OP No.2 and had paid the agreed price. Respondent No.2 herein i.e. OP No.1 before the District Forum is the manufacturer of the said car. On the same day, respondent No.1/complainant was given delivery of the car having chasis No. 178603 Engine No.38357 bearing registration No.DL 3C BS 1897. It was alleged that at the time of delivery, the vehicle showed a meter reading of approx. 120 KM, however, the said fact was not recorded by the appellant/OP in the service book. It was alleged Page 2 of 10 that the first service of the car was due after a month as such on 03.04.2011, the respondent No.1/complainant had taken the car for servicing at the service station owned and managed by respondent No.2/OP No.1 in the name of Maruti Sales and Service (Delhi) at C-119, Naraina Industrial Area, Phase-I, New Delhi. It was alleged that at the time of accepting the car for service, respondent No.1/complainant was informed that the service was delayed by one month and the said vehicle was recorded in the name of one Shri Rakesh Kumar Chopra resident of S-4, West Angad Nagar, Laxmi Nagar, Delhi and was sold to him on 31.01.2011. Respondent No.1/complainant was also informed that the warranty of the vehicle would commence from the date of its first sale. It was alleged that the respondent No.1/complainant was shocked to learn that he was cheated by the appellant/OP No.2 as a second hand car had been sold to him. It was alleged that at the service station he was provided with service job order and the customer feedback Performa showing the name of Rakesh Kumar Chopra as owner of the vehicle in question. It was alleged that the respondent No.1/complainant took the matter with the appellant/OP No.2 but no response was given. Thereupon, he had lodged a complaint with respondent No.2/OP No.1 and was assured that his grievances would be resolved. It was alleged that on 14.11.2011 Shri Kamal Kishore, G.M. of appellant/OP No.2 visited the respondent No.1/complainant and assured for the redressal of his grievances. However, thereafter Page 3 of 10 there was no response. He had again written a letter dated 19.04.2011 to the appellant/OP No.2 and respondent No.2/OP No.1. Thereupon, the sales executive of appellant/OP No.2 had brought to the respondent No.1/complainant a satisfaction note on which the respondent No.1/complainant had recorded his previous complaint. It is alleged that grievances of the respondent No.1/complainant were not redressed. Ultimately, he had filed the aforesaid complaint before District Forum.
3. The complaint was opposed by the appellant/OP No.2 as well as by respondent No.2/OP No.1 by filing separate written statements. In its written statement, appellant/OP No.2 admitted the purchase of the car in question from it on 27.02.2011 and stated that the respondent No.1/complainant was owner of the car. It was alleged that name of Rakesh Kumar Chopra as owner of the car in question was recorded as a result of wrong entry caused by the computer or the data feeder. It was alleged that as per record of the Transport Department, respondent No.1/complainant was the first owner of the car in question. It was denied that a second hand car was sold to him as was alleged. It was further alleged that even the RC of the car in question records the respondent No.1/complainant as its first owner. It was further alleged that respondent No.1/complainant also received other documents for the purchase of the car i.e. Maruti DMS copy, smart card and check list etc. showing respondent No.1/complainant as first Page 4 of 10 owner of the car in question. It was also alleged that the respondent No.1/complainant had also checked the Kms at the time of its purchase. It was alleged that there was only a clerical mistake which would not harm the respondent No.1/complainant in any manner as the vehicle had not been sold to any other person except the respondent No.1/complainant. A prayer was made for dismissal of the complaint.
4. Respondent No.2/OP No.1 in its written had alleged that there was no cause of action against it. It denied any deficiency in service on its part. It was alleged that complaint was not maintainable as it had no privity of contract with the respondent No.1/complainant who had entered into agreement to sell with the appellant/OP No.2 and respondent No.2/OP No.1 had principal to principal relationship with the appellant/OP No.2 as such it had no concern with the transaction in question.
5. Respondent No.1/complainant had filed separate rejoinders to the written statement of the appellant/OP No.2 and respondent No.2/OP No.1 wherein he had denied the allegations made therein and had reiterated the stand taken in the complaint.
6. The parties had filed evidence in the form of affidavits.
7. After hearing the parties and considering the evidence on record, Ld. District Forum held that no evidence was placed on record by the appellant/OP No.2 and respondent No.2/OP No.1 that they had Page 5 of 10 attended the grievance of the respondent No.1/complainant. It was held that the stand taken by the appellant/OP No.2 that entry in the name of Rakesh Kumar Chopra was on account of wrong entry by the computer and data recorder was an afterthought. It was held that if defence was true in that event it ought to have stated so in the correspondence which the respondent No.1/complainant had with the appellant/OP No.2 prior to filing of the complaint. Accordingly, the District Forum allowed the complaint and directed the appellant/OP No.2 for replacement of the car and to pay Rs.30,000/- as compensation and Rs.5000/- as cost of litigation, as has been stated above.
8. Aggrieved with the aforesaid order, present appeal is filed.
9. Ld. counsel for the appellant/OP No.2 has contended that the appellant/OP No.2 has not committed any deficiency in service as has been held by the Ld. District Forum. It is contended that the complaint ought to have been dismissed for non-joinder of the necessary party i.e. Rakesh Kumar Chopra, who had not been made party to the complaint so that truth could have been revealed. It is contended that the District Forum did not consider the documents i.e. RC, bills, invoices of the car in question. It is contended that the aforesaid documents proves that the respondent No.1/complainant is the first owner of the car in question. It is contended that when the car was sold it had run 120 Km only and the same was due to testing by agency or by test drive. It is Page 6 of 10 contended that the respondent No.1/complainant did not raise any objection to the same while purchasing the car. It is further contended that District Forum failed to consider the same while passing the impugned order. It is further contended that there is no documentary evidence on record except the computer entry that the car in question was sold to Shri Rakesh Kumar Chopra. It is further contended that the District Forum has failed to consider that there is no document on record like RC, bill, invoice etc. to show the alleged sale of car to Shri Rakesh Kumar Chopra. It is contended that mere computer entry does not establish that Shri Rakesh Kumar Chopra was the owner of the car at any point of time. In these circumstances, it cannot be said that a second hard car was sold to respondent No.1/complainant. It is contended that impugned order is liable to be set aside.
10. On the other hand, ld. counsel for the respondent No.1/complainant has argued that a well reasoned order has been passed by the District Forum. It is contended that appropriate relief has been granted in favour of the respondent No.1/complainant. Ld. Counsel for the respondent No.1/complainant has relied upon the judgment passed by the National Commission in Revision Petition No.2179/2014 titled Tata Motors Ltd. v. Prashant Bhai Premshankar Vyas & Ors. decided on 18.04.2016.
11. We have heard the counsel for the parties and perused the material on record.
Page 7 of 10
12. It is admitted position that the car in question was sold by the appellant/OP No.2 to the respondent No.1/complainant on 27.02.2011. It is also admitted position that respondent No.1/complainant had taken the car for the first service at authorized service station owned and managed by respondent No.2/OP No.1 on 03.04.2011. As per stand of respondent No.1/complainant, job-sheet received by him was showing that the car had already been sold to one Rakesh Kumar Chopra on 31.01.2011. To substantiate his stand respondent No.1/complainant has relied upon service job order and customer feedback performa which were supplied to him from the aforesaid service center, wherein name of Rakesh Kumar Chopra is mentioned as owner of the car. The issuance of aforesaid job-card being given to respondent No.1/complainant is not denied by appellant/OP No.2 and Respondent No.2/OP No.1. Respondent No.1/complainant has also placed on record the correspondence which has been reproduced in the impugned order of having entered into with the appellant/OP No.2 and respondent No.2/OP No.1 in this regard. By reading of the same it cannot be said that the allegations made by the respondent No.1/complainant were not refuted by the appellant/OP No.2 and respondent No.1/OP No.1 as has been observed by the Ld. District Forum. The official of the appellant/OP No.2 and respondent No.2/OP No.1 had also visited the respondent No.1/complainant. The respondent No.1/complainant has not placed on record any other Page 8 of 10 material i.e. RC, bills, invoices in the name of Rakesh Kumar Chopra. He has also not made the aforesaid person as party to the present complaint so that truth could have been revealed specially when the respondent No.1/complainant was having his address, telephone number etc. It is not his case that he had made enquiry from the aforesaid Rakesh Kumar Chopra and the said person had confirmed that the car was sold to him. RC on record shows the respondent No.1/complainant as first owner of the car. The car at the time of purchase had run 120 km only, which can be possible while testing by agency or in the test drive by the respondent No.1/complainant. Further no objection was raised by respondent No.1/complainant at the time of purchase. Further, the car in question is with the respondent No.1/complainant for the past about six years. It is not his case that the car in question had given any problem to him.
13. We have also gone through the judgment relied upon by the Ld. Counsel for the respondent No.1/complainant, which has been referred above. The same is not applicable in the facts and circumstances of the present case, as in the aforesaid case complete documents of sale in the name of previous owner were placed on record and sale was cancelled subsequently. Even the cancellation documents were placed on record.
14. Considering the totality of the facts and circumstances, we are of the view that the present is not a case for replacement of the car with Page 9 of 10 a new one as has been ordered by the Ld. District Forum. The stand of the appellant/OP No.2 is that wrong entry has been due to clerical mistake. The appellant/OP No.2 ought to have explained the same in a proper manner by filing affidavit of concerned. The wrong entry has caused harassment to respondent No.1/complainant. In these circumstances, the appellant/OP No.2 is liable to pay compensation to respondent No.1/complainant.
15. In the facts and circumstances of the case, we modify the impugned order and direct the appellant/OP No.2 to pay Rs.1,00,000/- as compensation to the respondent No.1/complainant which shall be inclusive of litigation costs.
16. Appeal stands disposed of accordingly.
17. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. Record of the District Forum be also sent back forthwith.
File be consigned to Record Room.
(Justice Veena Birbal) President (Salma Noor) Member Tri Page 10 of 10