Order:
Charanjit Singh, President;
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11, 12 and 13 against the opposite parties on the allegations that the complainant has bought one new Pulsar Motorcycle 135 CC bearing registration No. PB46-AB-1921, chassis No. MD2A17CY1HWE11344, Engine No. JEYWHE45328, Model 2018, Colour Bonyblack from opposite party No.1 on dated 20.1.2018 for sum of Rs. 59,992/-. On the same day the said opposite party No. 1 alongwith bill gave an insurance cover note of Bajaj Allianz General Insurance company Ltd. and new RC was issued in the name of complainant. After period of one month from the date of purchase of the above said new motorcycle, the complainant went to Baba Bajaj Agency for the service of the above said Pulsar Motorcycle 135 CC bearing registration No. PB46-AB-1921, Chassis No. MD2A17CY1HWE11344, Engine No. JEYWHE45328, Model 2018, colour Bonyblack from there complainant came to know that his above said motorcycle is already registered in the name of one Gagandeep Singh on 28.10.2017. The complainant came to know that Gagandeep Singh had purchased the above said Bike from Agency in installments and on his failure to pay the monthly installments motorcycle has been recovered from him and then sold to complainant by fraud. Many requests made by the complainant to the opposite parties to change his above said motorcycle and to give him brand new motorcycle but they did not pay heed on the genuine request of the complainant, lastly opposite parties refused to accept the request of the complainant. The complainant also filed an application to Deputy Commissioner Tarn Taran against the opposite parties for committing forgery with him but till date no action has been taken against the opposite parties. The complainant has prayed that the opposite parties be directed to deliver brand new Pulsar Motor cycle 135 CC alongwith compensation amount of Rs. 1,00,000/- and reasonable amount of Rs. 50,000/- to the complainant by way of costs of litigation counsel fee and pendent-elite and interest @ 12% per annum. Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. CW1/A, Copy of motorcycle Bill Ex. C-1, Copy of R.C Ex. C-2, Insurance Cover Note Ex. C-3, Attested copy of Challan Ex. C-4, Copy of application Ex-C-5, Attested copy of visit Job Card Ex. C-6.
2 After formal admission of the complaint, notice was issued to Opposite Parties and Opposite Parties appeared through counsel and filed written version contesting the complaint by taking preliminary objections that the complaint is not maintainable. The complainant has not come to this commission with clean hands and suppressed material facts which disentitles him from seeking any relief. True facts of the case are that Gagandeep Singh approached to purchase motorcycle in question and booked the same but he could not buy the same, because he could not arrange the money. Since he booked motorcycle in question, therefore, it was so entered on website of opposite party No. 2 on booking of the motorcycle in question, which does not affect the complainant in any way. Thereafter, the motorcycle in question was purchased by the complainant and the complainant was given all the relevant documents. It was registered in the name of the complainant with the registering authority. There is no other registration in the name of Gagandeep Singh of motorcycle in question. Thus, the complainant was given a brand new motorcycle and it was never plied on road by Gagandeep Singh and the name of Gagandeep Singh appeared on website of opposite party No. 2 due to earlier booking which does not mean that the complainant was given an used motorcycle to the complainant. The complainant has pleaded that he came to know after one month from purchase, hence can be said in February, 2018, but he has filed the complaint in September, 2018, therefore, the complaint is liable to be dismissed on the grounds of delay and laches. Infact, some malafide intention is there is in the mind of the complainant, therefore, he is trying to blackmail the opposite parties and trying enrichment by foul means. The complainant has no cause of action or locus standi to file the present complaint. There is no deficiency in service on the part of the opposite parties and the complainant has failed to give any instance of it. Further the complainant has not suffered any loss, so he is not entitled to any relief claimed in this complaint. Some complicated questions of law and facts are involved in this case and some serious allegations have been leveled in the complaint which requires lengthy procedure of summoning of records and witnesses, their examination and cross examinations to adjudicate upon, therefore this complaint could not be decided by the consumer Commission in summary way. Nowhere in the complaint, the complainant has stated that he is consumer qua the opposite parties. On merits, it was pleaded that since new motorcycle after use of a being used by the complainant and has been filed complaint after use of a long period, therefore question of paying anything to the complainant does not arise at all. The complainant has not specified here what kind of damages he has suffered which he is claiming. Infact, it is complainant who is harassing and dragging the opposite parties in to unwarranted litigations. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the complaint. Alongwith the written version, the opposite parties have placed on record affidavit of Kuldeep Singh General Manager Ex. OP-1.
3 We have heard the Ld. counsel for the parties and have carefully gone through the record.
4 The combine and harmonious reading of the pleading and documents goes to prove that that the complainant has purchased a new Pulsar Motorcycle 135 CC bearing registration No. PB46-AB-1921, chassis No. MD2A17CY1HWE11344, Engine No. JEYWHE45328, Model 2018, Colour Bonyblack from opposite party No.1 on dated 20.1.2018 for sum of Rs. 59,992/- and on the same day the opposite party provided him the copy of insurance cover as well as new registration certificate. After period of one month from the date of purchase, the complainant came to know that the opposite party i.e. Baba Bajaj Agency has sold the said motorcycle which is already registered in the name of one Gagandeep Singh. Further he came to know that Gagandeep Singh has purchased the said bike from the agency in installments and on failure to pay the monthly installments the motorcycle was recovered from him and sold to the complainant. Thereafter, the complainant approached to the opposite party to replace the old motorcycle with the new one. The complainant has annexed copy of motorcycle Bill Ex. C-1, Copy of R.C Ex. C-2, Insurance Cover Note Ex. C-3, Attested copy of Challan Ex. C-4, Copy of application Ex-C-5, Attested copy of visit Job Card Ex. C-6. Whereas the opposite party in their reply stated that the complainant was given brand new motorcycle and it was never plied on road by any Gagandeep Singh. Further the opposite party stated that Gagandeep Singh approached the opposite party to purchase the motorcycle in question and took the same but he could not buy the same because he could not arrange the money well within time. Since Gagandeep Singh booked motorcycle in question, therefore, it was so entered on website of opposite party No. 2 on booking of the motorcycle in question, which does not affect the complainant in any way. Further the opposite party pleaded that the complainant came to know this fact one month after the purchase as well as he could not raise the objection in early stage. However, Gagandeep Singh has filed an affidavit whereby he booked new Pulsar Motorcycle 135 CC with the opposite party but his loan case was not passed by financer that is why he could no purchase the same. The whole controversy in question revolves around the point is that whether the opposite party has delivered the new motorcycle to the complainant or used one. The complainant has annexed various Job Cards of said motorcycle as Ex. C-6. At the top of Ex. C-6 the name of customer is written as Gagandeep Singh, Chassis No. is written as MD2A17CY1HWE11344, Engine No. is written as JEYWHE45328 and date of sale of the motorcycle in question is written as 28th October, 2017. The chassis No. MD2A17CY1HWE11344, Engine No. JEYWHE45328 are matched with the motorcycle which has been sold to the complainant. The date of visit is written as 17.1.2018 and the motorcycle has done 4109 Kilometers and Job type is written as second free service. Tax Invoice (Vehicle) Ex. C-1, Challan Ex. C-4 issued by the opposite parties to the complainant is dated 18.1.2018 which show the same Chassis Number and same Engine Number. Ex. C-6 i.e. Job card shows that second free service of the motorcycle having same chassis Number and same Engine Number is got done by Gagandeep Singh three days prior to the sale of the motorcycle to the complainant and at that time the motorcycle has done 4109 Kilometers. The date of sale on the Job Card Ex. C-6 to Gagandeep Singh shows as 28th October 2017 i.e. prior to 3 months approximately. On Ex. C-6 the service dealer is shown as Baba Motors. The entire record shows that the opposite parties have sold old motorcycle to the complainant instead of new one. Before the delivery of said motorcycle on 20.1.2018 the said motorcycle carried out 2nd free service which is not possible if a new motorcycle was sold to the complainant. There are some Job cards pertaining to free services and paid services which show that definitely above said bike is old one. The opposite party has nowhere controverted that the job cards placed on record by the complainant are not issued by the opposite parties. By selling the old motorcycle instead of new motorcycle the opposite party has committed deficiency in services and unfair trade practice. During the course of arguments the complainant has brought this fact in the notice of commission that the said motorcycle of the complainant has been stolen. The prayer of the complainant is either to deliver a new Pulsar Motorcycle 135 CC with compensation and costs of litigation. But this relief cannot be granted to the complainant as the motorcycle in question has been stolen and before theft of motorcycle in question, the complainant used said motorcycle for a consideration time. Hence, the complainant is entitled to compensation and damages on account of unfair trade practice and harassment given to the complainant by the opposite parties on account of deficiency in service as well as for unfair trade practice.
5 In light of the above discussion, the complaint succeeds and the same is hereby partly allowed in favour of the complainant and against the Opposite Parties. The opposite parties is directed to make the payment Rs. 15,000/- (Rs. Fifteen Thousand only) due to unfair trade practice and deficiency in services, Rs. 5,000/- (Rs. Five Thousand only) as compensation on account of harassment and mental agony and Rs 5,000/- (Rs. Five Thousand only) as litigation expenses. Opposite parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant shall be entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission
Dated 26.11.2021
