DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 147 of 27.4.2017

                                      Decided on: 2.2.2021

Parminder Kumar son  of Sh.Prem Chand, resident of 21-A, SST Complex, Patiala.

                                                                   …………...Complainant

                                      Versus

1. K.L.Nissan, a unit of Yashodha Motors Pvt. Ltd., Datsun Unit authorized dealer for Nissan Motors Pvt. Ltd., village Dhareri Jattan, Bahadurgarh, Rajpura Road, Patiala.
2. Managing Director K.L.Nissan, a unit of Yashodha Motors Pvt. Ltd., Datsun Unit Authorized Dealer for Nissan Motors India Pvt. Ltd., village Dhareri Jattan, Bhadurgarh, Rajpura Road, Patiala.
3. Nissan Motors India Pvt. Ltd., 5^th Floor, Orchid Business Park, Sohna Road, Sector 48, Gurgaon, 1220014.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. Jasjit Singh Bhinder, President

                                      Sh.Y.S.Matta, Member 

ARGUED BY

                                      Sh.Narinder Singh, counsel for complainant.

                                      Sh.Sanjay Khanna, counsel for OPs No.1&2.

                                      OP No.3 exparte.

 ORDER

                                      JASJIT SINGH BHINDER,PRESIDENT

1. This is the complaint filed by Parminder Kumar (hereinafter referred to as the complainant) against K.L.Nissan and others (hereinafter referred to as the OP/s).
2. Briefly the case of the complainant is that he purchased one Datsun ready go car from OPs No.1&2, the authorized dealer of OP No.3 on 8.3.2017 by paying Rs.4,03,200/- whereas actual on road price of said car on 8.3.2017 was Rs.3,63,000/-.  It is averred that the bill and other documents of the said car were handed over to him by the OPs on next date i.e. on 9.3.2017. It is further averred that the complainant handed over his old car to OPs No.1&2 and they deducted Rs.50,000/- as the cost of old. Insurance charges were  paid by the complainant.  Warranty for five years was also not issued by the OPs.
3. It is further averred that after receipt of  bills and other documents, the complainant was delivered the  car of model 2016 instead of 2017 for the amount of  Rs.4,03,300/- instead of Rs.3,63,000/-. The complainant requested the OPs for the refund of the excess amount they received and for replacing the car with new one of the model of 2017 but all in vain. The complainant also got sent legal notice to the OPs but to no effect.
4. It is further averred that after filing of the complaint, one person namely Harjinder Singh s/o Gamdoor Singh of village Sassa Gujran, Tehsil and District Patiala contacted complainant and told that before purchasing this car by complainant, the OPs have sold the same  to him and due to lack of funds and due to non passing of finance from concerned bank i.e. Magma Finance, OP No.1 took the car from his premises and handed over copy of insurance policy so issued to him at the time of purchase of above said car. Thus the OPs have not only sold old model car to the complainant but also sold second hand car to him.There is thus deficiency in service on the part of the OPs. Hence this complaint with the prayer to accept the same by giving directions to the OPs to replace the car with a new one of current model when replaced; to refund amount of Rs.90,000/-charged in excess alongwith interest @18% per annum  and Rs.25000/-as compensation.
5. Upon notice OPs No.1&2 appeared through counsel and contested the complaint by filing joint written reply while OP No.3 did not appear to contest the complaint and was proceeded against exparte.
6. In the written reply filed by OPs No.1&2 they have raised preliminary objections to the effect that the complaint is not maintainable in the present form as the complainant himself chose and selected the Datsun Ready Go car of the Model 2016. As such the complainant is estopped from filing the present complaint; that there is complicated questions involved in the present complaint therefore, this Forum has no jurisdiction to entertain and try the present complaint and is liable to be dismissed.
7. On merits, it is submitted that the complainant approached the OPs for the purchase of the car and after seeing the other cars he decided to purchase Datsun Ready Go car. It is further submitted that the complainant was having old car and he wanted to adjust the price of the old car, which was assessed as Rs.20,000/- in the price of the new car and  after agreeing to the said price he handed over the old car to the OPs. It is further submitted that the car which was selected by the complainant was delivered to him alongwith all documents. It is further submitted that the benefits of insurance was also given to the complainant in lieu of purchase of car of model 2016. It is further submitted that the ex-showroom price of the car in question is Rs.3,30,674/-, logistic charges Rs.6500/-, insurance charges Rs.16260/- and accessories  of Rs.15500/- total price of the car Rs.3,68,934/- out of which the complainant paid Rs.3,21,000/- and the remaining amount discounted to him and now the  complainant is leveling wrong and false allegations. It is denied that the said car was ever sold to Harjinder Singh or he ever took the same to his house from the premises of OPs. There is no deficiency in service on the part of the OPs. After denying all other averments the OPs prayed for the dismissal of the complaint.
8. In evidence the complainant tendered his affidavit,Ex.CA, affidavit of Malkeet Singh, Ex.CB, affidavit of Manmohan Singh, Ex.CC, affidavit of Harjinder Singh Ex.CD alongwith documents Exs.C1 to C18 and closed the evidence.
9. The ld. counsel for OPs No.1&2 tendered in evidence Ex.OPA affidavit of Naranjan Lal alongwith document Ex.OP1 and closed the evidence.
10. The parties filed written arguments. We have gone through the same, heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
11. The ld. Counsel for the complainant has argued that complainant purchased one Datsun ready go car from OPs No.1&2, the authorized dealer of OP No.3 on 8.3.2017 by paying Rs.4,03,200/-.The ld. counsel further argued that the actual sale price of the said car on 8.3.2017 was Rs.3,63,000/- and bill and other documents of said car were handed over to the complainant on the next date of purchase i.e. 9.3.2017.The ld. counsel further argued that the complainant handed over the old car to OPs No.1&2 and they deducted Rs.50,000/-.The ld. counsel further argued that after receiving the bill and other documents he came to know that he had purchased the car of 2016 instead of 2017 by paying the huge amount of

Rs.4,03,000/-instead of Rs.3,63,000/-.The ld. counsel further argued that the OPs have sold the old car instead of new car so they be directed to give new car or refund his money. The ld. counsel has relied upon the citation Tata Motors Limited Vs. Antonio Paulo Vaz 2014(1)C.P.R. 55 of the Hon’ble Goa State Consumer Disputes Redressal Commission.

12. On the other hand, the ld. counsel for the OPs has argued that the complainant himself has chosen and selected the Datsun ready go car model 2016. The ld. counsel further argued that the complainant exchanged his old car for Rs.20,000/-.The ld. counsel further argued that ex-showroom price of car was Rs.3,30,674/-,logistic charges Rs.6500/-,insurance charges Rs.16260/-and accessories of Rs.15500/- total Rs.3,68,934/- out of which the complainant had paid Rs.3,21,000/- and remaining amount was discounted to the complainant. So the complaint be dismissed.
13. To prove this case Parminder Kumar has tendered his affidavit, Ex.CA and he has deposed as per his amended complaint. He has also tendered affidavit Ex.CB of Malkit Singh and he has supported the evidence of the complainant. Manmohan Singh has tendered his affidavit, Ex.CC, he has also supported the evidence of the complainant. Affidavit Ex.CD of Harjinder Singh is material document of this complaint, who as per the complainant has previously purchased the said car and after that the same was sold to him. Harjinder Singh has deposed in his affidavit that on 31.12.2016 he has purchased the new car i.e. Dustan Ready go model 2016 from the OPs and he had got the same financed from Megma Finance Company. The opposite parties have assured that they will got the loan sanctioned from Megma Finance Co. and he  purchased the car bearing engine No.110330 and chassis No.9317625 model September/2016 and temporary No.PB-11-ZM(T)7900 and he also got the insurance from the Oriental Insurance Co. and then he took the car to his house and the photograph was also clicked at the time of delivery ceremony.
14. Ex.C1 is the bill of K.L.Nissan in the name of complainant for Rs.3,20,064/, Ex.C2 is pollution certificate,Ex.C3sale certificate. In this document year of manufacturing is mentioned as 28^th September,2016.Ex.C4 is the delivery receipt.Ex.C5 is description of car,Ex.C6 is insurance of the car in the name  of Parminder Kumar by Oriental Insurance Co. in which model of the car has been shown as 2016.In this insurance policy the engine number is mentioned as 110330 and chassis number is mentioned as 9317625. Ex.C9 is the legal notice sent to Managing Director of K.L.Nissan regarding selling of the old car,Ex.C10 is postal receipt. Ex.C11 is Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy and is material document. This policy is in the name of previous owner of car Harjinder Singh S/o Gamdoor Singh. In this policy the engine number and chassis number are same i.e. EN110330 and CH9317625 and this insurance policy is of 31.12.2016.
15. So from this document,Ex.C11, it is clear that previously the car in question was insured in the name of Harjinder Singh s/o Gamdoor Singh r/o Sassa Gujran, Bibipur, Patiala.Ex.C13 is also material document, it is a photograph which was clicked when this car was delivered to Harjinder Singh s/o Gamdoor Singh.Ex.C14 is the photograph when this car was handed over to the complainant.Ex.C15 is an application sent to the OP for RTI.
16. On the other hand Naranjan Lal has tendered his affidavit, Ex.OPA and he has deposed as per the written statement. He has denied the allegations that Harjinder Singh s/o Gamdoor Singh r/o Sassa Gujran has purchased this car previously.
17. Admittedly Parminder Kumar has purchased this car Datsun Ready Go from the OPs vide bill,Ex.C1 for Rs.3,20.064/-.It is mentioned in the amended complaint in para No.6A that after filing of the complaint one person namely Harjinder Singh s/o Gamdoor Singh of village Sassa Gujran has contacted the complainant and told him that the OP No.1 has sold this car to him. Due to lack of funds and non passing of finance from Magma Finance OP has taken the car from his premises and insurance policy was  issued at the time of purchase .In the amended written statement in para No.6A this fact is denied and it is stated that the said car never sold to Harjinder Singh. But this written statement as well as the affidavit Ex.OPA are totally opposite to the documents which have been placed on the file. As already stated above the engine of the car sold to Parminder Kaur was E110330 and chassis No.9317625.As per the insurance cover of Oriental Insurance Co., Ex.C11, this car bearing the same engine number  and chassis number was sold to Harjinder Singh S/o Gamdoor Singh r/o Sassa Gujran District Patiala and there is photograph Ex.C13 when this car was handed over to Harjinder Singh S/o Gamdoor Singh by the officials of the OPs No.1&2.So it is clear that OPs have filed a false written statement as well as  false affidavit of Naranjan Lal, Manager of M/s K.L.Nissan, who is liable to be prosecuted U/s 340 of Criminal Proceedings Code for filing false affidavit in the Court.
18. When Parminder Kumar purchased the car he also got the same insured vide, Ex.C6 in which the engine number and chassis number are the same. So it is clear that this same car which was sold to Parminder Kumar s/o Prem Chand was previously sold to Harjinder Singh s/o Gamdoor Singh r/o Sassa Gujran, District Patiala. So clear cut fraud has been played by the OPs with the complainant and they have sold a car which was already sold to Harjinder Singh previously and which is clear from the photographs and copy of insurance policy. It was held by Tata Motors Limited Vs. Antonio Paulo Vaz (supra) that where sale of defective car of old model, there is deficiency in service and direction was issued to the OPs to replace the car with a new car of same model or to refund entire amount of car with interest.
19. As per bill,Ex.C1, Parminder Kumar had paid Rs.3,20,064 to the OPs on 8.3.2017.The OPs are guilty of selling already sold car to the complainant and they are also guilty for filing false affidavit and false written statement in the court. Now the OPs No.1&2 are directed to refund Rs.3,20,064 to the complainant alongwith interest @6% per annum from 8.3.2017 till realization. They are also directed to pay Rs.10,000/-as compensation and Rs.10,000/-as costs of litigation. The complainant is directed to return the car to OPs No.1&2 at the time of receipt of the amount.

Compliance of the order be made by theOPs No.1&2 within a period of 45 days from the date of the receipt of the certified copy of this order.

ANNOUNCED

DATED:2.2.2021         

                                    Y.S.Matta                           Jasjit Singh Bhinder

                                    Member                                       President