State Consumer Disputes Redressal Commission
M/S. Oddessey Motors Pvt. Ltd. vs Smt. Nirupama Nayak on 10 August, 2020
STATECONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
FIRST APPEAL NO. 181 OF 2015
(From an order dated 20.3.2015 passed by the District Forum,
Sambalpur in C.C. No. 08 of 2014)
M/s Oddyssey Motors Pvt.Ltd.,
At/Po/Ps - Ainthapali, Dist - Sambalpur
Represented through its Managing Director,
Sri Yogesh Jalan, aged about 35 years,
S/o Ashok Kumar Jalan,
Resident of Oddyssey Complex,
Po/Ps - Ainthapali, Dist - Sambalpur
... Appellant
Vrs.
1. Smt.Nirupama Nayak,
Qr No.TH 8/1,
Jyoti Vihar, Po - Jyoti Vihar,
Ps - Burla, Dist - Sambalpur (Orissa)
2. Manager,
Regional Office (Eastern),
Maruti Suzuki India Ltd.,
Ridme Residency Complex,
2nd Floor, Plot C, NH - 5, Bhubaneswar ( Orissa)
... Respondents
____________
For the appellant : M/s S.K.Samal & Associates
For respondentNo.1 : Mr. N.B.Das, Advocate
For respondent No.2: None
_____________
2
P R E S E N T:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY,PRESIDENT
AND
DR. S.MOHANTY,MEMBER
DATED THE 10th AUGUST,2020
ORDER
DR. D.P. CHOUDHURY,J., PRESIDENT This appeal is directed u/s 15 of erstwhile Consumer Protection Act, 1986 (hereinafter called the "Act") against the order dated 20.3.2015 passed by the learned District Forum, Sambalpur in C.C. No. 08 of 2014 wherein the District Forum has directed the appellant to pay excess amount of Rs.10,835/- with interest at the rate of 9% per annum from the date of delivery of the car to the complainant besides compensation of Rs.50,000/- and Rs.5,000/- towards cost of litigation within one month of the order failing which the appellant would pay interest at the rate of 12% per annum on the awarded amount from the date of order till its realisation.
2. Appellant was OP No.1 whereas respondent No. 1 was the 3 complainant and respondent No.2 was OP No.4 before the learned District Forum. Hereinafter the parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The case of the complainant as per the written submission made by the learned counsel for the complainant in nutshell is that the complainant purchased a new vehicle Maruti Suzuki Wagon R Stingray VXIBSH from the OPs on 12.2.2014 on payment of Rs.4,97,827/- . After dealer discount and Corporate discount the value of the vehicle became Rs.4,74,327/-. It is alleged inter alia that complainant has incurred loan of Rs.4,00,000/- from the Bank and said Rs.4,00,000/- was also paid to OP No.1.
4. It is also further submitted by the learned counsel for the complainant that the complainant had already paid advance of Rs.1,04,000/-. Although the vehicle was purchased but the documents were delivered 33 days after delivery of the vehicle 4 and the complainant was put to harassment by regularly visiting OP No.1 to get the documents like Owner's Manual & Service Booklet etc. It is further submission of learned counsel for the complainant that the complainant has made excess payment of Rs.11,171/- but in spite of approach the same was not returned. Apart from this complainant alleged that after the documents are received, he found the vehicle has been sold to another person whose name has been erased and name of the complainant has been inserted by handwritten letters. As such the complainant alleging deficiency of service and unfair trade practice against the OPs filed complaint before the learned District Forum.
5. Learned counsel for the appellant relying upon the written version submitted that there is no any deficiency of service on their part. Learned District Forum without following the material on record has allowed the complaint. According to him the complainant is entitled to return Rs.7,400/- including the special discount given by OP No.1 but not Rs.10,835/- as 5 ordered by the learned District Forum.
6. Learned counsel for the appellant further submitted that the complainant is liable to pay the accessory charges but the learned District Forum has committed error in law by not taking same into consideration for deduction of the same from the total consideration of the vehicle. According to him the complainant is entitled to refund of Rs.3,935/- and special discount of Rs.3,465/- as such total amount of Rs.7,400/- which was offered to the complainant but complainant being adamant did not receive the same.
7. It is also further submitted by the learned counsel for the appellant that OP No.1 has not sold any second hand vehicle but sold a new vehicle and owner's manual only shows some erase because of choice of colour of the vehicle being changed at the instance of the complainant and this part is clear from the contents of the owner's manual. It is clear from the owner's manual that the first service and the second service have been 6 entered in the manual after 12.2.2014. Further, OP No.1 denied to have made any delay in handing over the documents. Learned District Forum has thus passed order without considering the materials and evidence on record by allowing the complaint.
8. Learned District Forum after hearing both the parties passed the following order:-
"xxx xxx xxx In this view of the matter, we allow the case of the complainant against the OPs on contest. OPs are directed to return the excess amount i.e. Rs.10,835/- (Rupees Ten thousand eight hundred thirty-five) along with interest @9% (Nine per cent) per annum from the date of delivery of the car, compensation of Rs.50,000/- (Rupees Fifty thousand) for harassment by way of deficiency in service and unfair trade practice and Rs.5,000/- (Rupees Five thousand) towards cost of the proceeding within one month of the order, failing which OPs will pay interest @12% (Twelve per cent) per annum on the awarded amount from the date order till its realization."
9. The main point for consideration is whether the complainant has proved the deficiency of service and unfair 7 trade practice at the instance of the OPs.
10. Considered the submission of both the parties. Perused the DFR and the impugned order. It is admitted fact that vehicle has been sold by OP No.1 to the complainant on 12.2.2014, although the pre delivery inspection was made four months before the date of purchase i.e. on 25.11.2013.
11. It is found that the accessory charges have not been taken into consideration by the learned District Forum as it is demand of the complainant that accessories have to be given along with the vehicle. It is very common parlance of the vehicle business that accessories are never part and parcel of the vehicle sold. Therefore, Rs.6,900/- has been deducted rightly by OP No.1. After Rs.6,900/- is deducted, there remained Rs.3,935 to be refunded with amount of special discount of Rs.3,465/-. The complainant is entitled to get back Rs.7,400/- but not Rs.10,835 as ordered by the learned District Forum. Apart from this, the correction by hand in the owner's manual cannot be shown that 8 second hand vehicle was sold because the date of the service has been indicated in the manual itself as 13.3.2014 and 11.2.2015. Had there been entry earlier to 13.3.2014 towards service, the matter would have been otherwise to be considered as the sale of vehicle prior to sell of the same to the complainant. Also in this regard learned District Forum has rightly held that there is no sufficient proof that the second hand vehicle has been sold.
12. In view of the above, we are of the view that the complainant is entitled to get refund of Rs.7,400/- from OP No.1 but not Rs.10,835/- as held by the learned District Forum. So far harassment to the complainant is concerned, the complainant has not filed any affidavit to show that she has been running from Burla to OP No.1's shop time and again to get the documents. On the other hand, there is affidavit of OP No.1 that the allegation of complainant in this regard is not correct. So the deficiency of service or unfair trade practice on the part of OP No.1 is not proved so as to award compensation to the 9 complainant. Thus the order of the learned District Forum for awarding compensation on the basis of no evidence does never stand.
13. In the result, the appeal is allowed in part. The order of the learned District Forum is affirmed to the extent that the complaint is entitled to Rs.7,400/- to be paid by OP No.1 and the rest part of the impugned order is set aside. The said amount be paid within 15 days of receipt of this order failing which the same amount would carry interest at the rate of 12% per annum from the date of default till payment made.
Supply free copy of this order to the respective parties. DFR be sent back forthwith.
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(Dr.D.P.Choudhury,J President I agree.
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(Dr.S.Mohanty) Member 10 Cuttack August 10 , 2020