| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 323 of 27-11-2018 Decided on : 10-12-2021 Sham Sunder Goyal aged 56 years S/o Tek Chand R/o Near Dharmashala Street, Near Bharti Public School, Goniana Mandi, Tehsil & District Bathinda.
........Complainant Versus Deep Automobile Private Ltd., (Deep Honda), Mansa Road, Bathinda, through its Managing Director/Chairman/Authorized Signatory Honda Cars India Ltd., Plot No. A-1, Sector 40/41 Surajpur Kasna Road, Greater Noida, Industrial Development Area, Distt. Gautam Budh Nagar, UP 201306 through its Managing Director/Chairman/Authorized Signatory
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member. Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Sushil Kumar, Advocate For opposite parties : Sh. Sandeep Baghla, Advocate, for OP No. 1. Sh. Ajay Singla, Advocate, for OP No. 2. ORDER Kanwar Sandeep Singh, President The complainant Sham Sunder (here-in-after referred to as complainants) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Deep Automobiles and another (here-in-after referred to as opposite parties). Briefly stated, the case of the complainants is that he is working in Public sector department. The opposite party No.1 Authorized Distributor of Honda Cars doing the business under direct control and supervision of opposite party No. 2. It is alleged that sales persons /officials of opposite party No.1 i.e. Gurpal Singh and Dalmeet Singh approached to complainant in month of August, regarding sale of their cars and allured him that opposite party No.2 has launched special additional offers for Govt. Employees, pensioners, CSD and CAs customers, selected corporate and self employed professionals like doctors, CAS, Lawyers and Architects, on new cars and because the complainant is working in Public Sector Department, they have best offer of free couple Trip to Dubai for complainant if he buys the car of Honda in between 01-07-2018 to 10-09-2018. They also given the brochure and term and conditions of scheme to complainant. They also assured that voucher will be given after purchasing the car and complainant has to fill the redeemed voucher number while filling the form e-mailed by opposite parties to complainant at the time taking the trip. It is further alleged that complainant made his mind to purchase Honda WR-V 1.5 VX MT for his personal use and booked the car by paying Rs. 10,000/- in cash vide receipt No. S-303 and also applied for loan in Axis Bank. On 31-08-2018 opposite party No.1 conveyed to complainant that his booked car has been received in showroom and complainant can take delivery of the same by paying price of car and other charges and also completing the other documentary formalities. The complainant on the same day transferred Rs, 10,49,050/- in the account of opposite arty No.1 after obtaining loan amount of Rs.10,55,000/- from Axis bank to get the delivery of Car . It is further alleged that when complainant reached showroom of opposite party No.1 to take delivery the New car Honda WR-V, he noticed that car having Eng. No.N15A15034297, have some dents/scratches on the right bumper of the new car. The complainant immediately brought this fact into the knowledge of opposite party No.1. On noticing the facts about dents/scratches, opposite party No.1 did not deliver that car to complainant and asked him that they will intimate him when another car of same model will be received in showroom. It is further alleged that thereafter on 03-09-2018, again officials of opposite party No.1 called the complainant to take delivery of new car. The complainant again reached to opposite party and took delivery of new car after paying balance amount of Rs, 5119/- in cash. It is further alleged that after delivery of car, when complainant demanded scheme voucher for Dubai Trip, opposite party No. 1 conveyed that they will give/deliver the voucher of free Dubai Trip to complainant in some days when the same will be received by opposite party No.1 from opposite party No.2. After waiting for some days, when nothing was received, complainant called opposite party No.1 and inquired about his free voucher trip to Dubai. The opposite party No.1 again postponed the matter and asked him to wait for sometime. When no response received from opposite party No.1, complainant lodged complaint with customer care/Toll free number 1800113121 on 06-10-2018 of opposite parties in this regard. Thereafter, complainant received e-mail from opposite party No.1 according to which he was not eligible for that trip as trip was available up to 31-08-2018 and because the delivery of complainant was on 03-09-2018 , he is not eligible. It is also alleged that as per terms and conditions of brochure of opposite parties and also as per assurance given by officials of opposite party No.1, Trip scheme was available for persons who purchased new Honda car between 01-07-2018 to 10-09-2018 and complainant has booked this car in the month of August by paying Rs, 10,000/- in cash vide receipt No. S-303 and also transferred the whole price of the car on 31-08-2018 out which billing amount is Rs, 9,93,500/- when complainant was first called to take the delivery on 31-08-2018. It is the fault of opposite parties that they could not deliver the car to complainant on that day due to dents/scratches on the new car. It is further pleaded that there is no where written in the terms and conditions of the brochure that purchaser of car will be eligible for scheme only at the time of delivery. Moreover as per terms and conditions of brochure, scheme period is written as 01-07-2018 to 10-09-2018 and it is also mentioned on the brochure that offers are valid for limited period or till the stock lasts and that discount will be given in lieu thereof, if offer is not accepted/availed by the purchaser. It is further alleged that due to adamant attitude of the opposite parties the complainant could not enjoy the new Honda car purchased under the allurement of wrong/false commitments on behalf of opposite parties and their officials and also could not get the free trip of Dubai for couple as assured by opposite parties. He has been suffering mental tension and agony, losses of reputation as well as monetary loss for which he claims Rs.1,00,000/- as damages. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to provide Free Dubai Trip for couple or pay Rs. 2,00,000/- in lieu thereof with interest and also pay Rs. 1,00,000/- as damages in addition to Rs. 20,000/- Upon notice, the opposite parties appeared through counsel and contested the complaint by filing written reply. Opposite party No.1 filed separate reply raising legal objections that the complaint is not maintainable in the present form; that the complainant is not consumer as defined under the 'Act'; that the complainant has misrepresented the true facts before this Commission with malafide intention to draw illegal gains. It is pleaded that the provision of trip to Dubai was offered by opposite party No.2 to the exclusion of relying opposite party. As per the conditions, the complainant had to apply to opposite party No.2 for availing the trip and had also to pay a sum of Rs.10,999/- per person as per the conditions that has been produced by the complainant himself. Furthermore, as per information sought from opposite party No. 2, it has transpired that the complainant had opted for another offer of trip to London, so provided by opposite party No.2 instead of said trip in question. Hence, the complainant is estoped by his act, conduct and acquiescence to file the present complaint; and that the complaint is false, frivolous and vexatious. On merits, the opposite party No.1 pleaded that the complainant had himself opted to purchase the car in question from opposite party No.1. The allegations qua allurement by the sales persons of replying opposite party as alleged is repudiated. It is denied that there was any assurance on part of relying opposite party to provide any trip to Dubai as alleged. As per the conditions produced by the complainant as well as the allegations of the complainant himself, the said trip was to be provided by the opposite party no.2. It is admitted that the complainant had deposited Rs, 10,000/- in cash vide the said receipt. It is pleaded that the complainant had visited the show room of relying opposite party for purchase of car in question on 31-08-2018. The availing of loan by the complainant is repudiated being not to the knowledge of relying opposite party. It is denied that there was any scratches on the Bumper of car bearing Engine No. N15A15034297 as alleged, rather the complainant had simply suspected the same, on which the replying opposite party conveyed to the complainant that another car would be made available to the complainant as per the requirement within 2-3 days and the replying opposite party had accordingly arranged for new vehicle. The complainant was delivered the car in question on 03-09-2018 to the satisfaction of the complainant. However, as per the commitment, details produced by the complainant himself, there was no offer of Dubai trip to the complainant by the replying opposite arty. The said trip was to be availed by the complainant by complying with the conditions so produced by the complainant from opposite party No.2 to the exclusion of replying opposite party. It is also denied that the replying opposite party had ever assured the complainant to provide any trip as alleged. It is also pleaded that the complainant has not complied with any of the conditions for availing the said trip i.e. filing the form, furnishing the details of invoice, insurance, valid passport and the demand draft in favour of Team Promoters Private Limited. The complainant has not complied with any such condition. Even as per the information received from opposite party No.2, the complainant had opted for another offer of trip to Landon, so provided by opposite party No.2, that was on the basis of lot. The opposite party No. 1 has no connection to the said trip to be provided by oppose party No.2 However, the e-mail sent was relating to the date of sale of vehicle that was 03-09-208 and since the complainant had not complied with any condition upto the stipulated period, the complainant cannot draw benefit of the present allegation. It is denied that there was any fault of opposite party No. 1 to not deliver the vehicle on 31-08-2018 as alleged, rather the complainant had not taken the delivery of vehicle and the replying opposite party in further satisfaction of the complainant had provided another vehicle to the complainant. After denying all other averments of the complainant, the opposite party No. 1 prayed for the dismissal of the complaint. Opposite party No.2 also filed separate written reply and raised preliminary objections that the allegations made by the complainant in the complaint are false and frivolous and the same has been filed with the ulterior motive to harass and defame the opposite party No.2. It has been pleaded that in June, 2018, opposite parties launched a promotional offer according to which customer will get a Dubai holiday voucher on purchase of any Honda Car between 1-7-2018 and 10-9-2018. It is pleaded that the offer given to the complainant was for the limited period only and the same has already communicated to him in the very beginning. It was explained to the complainant in the beginning only that he he wish to avail the offer, he has to buy the car in between 1-7-2018 and 10-9-2018. As per terms of the offer, the complainant has to get himself registered within 30 days from purchase of the car and to submit his essential documents like passport and other related documents. The complainant failed to get himself registered within 30 days of the purchase of car, hence, was not entitled for the offer. It is also pleaded that manufacturer (opposite party No. 2) sells cars to dealer (opposite party No.1) which in turn sells cards to end consumer based on their own independent marketing initiative. The complainant was not satisfied with the car offered by opposite party No. 1 and in view to satisfy the complainant, opposite party No. 1 offered another vehicle from its stock. The same model or the colour as demanded by the complainant may not be readily available with opposite party No. 1. Further preliminary objections are that the compliant is bad for non joinder of parties as complainant has not impleaded Team Promotions Private Limited, who was providing the service; that the complainant in the present complaint had not been able to discharge the onus bestowed upon him under the Act to prove the any deficiency in service of opposite party No.2; that the complaint is malicious and has been filed with ulterior motives and without any cause of action; that the complainant has not approached this Commission with clean hands and the malafide intention of the complainant is apparent from his conduct itself; that the complainant has not suffered any damage due to any acts of opposite party No.2.; that the complaint cannot be adjudicated in the present summary proceedings and only civil court has jurisdiction to try and decide the matter. On merits, the opposite party No. 2 has pleaded that the opposite party No.1 and answering opposite party are distinct and separate entities. The relationship that exists between the opposite parties is on principal to principal basis. It is pleaded that the opposite party No. 2 cannot be held liable for any independent act and or omission, committed by the other opposite party. It is denied that the complainant was assured/promised that a free voucher of Dubai will be given to him. It is also pleaded that before buying the car under the scheme, the complainant was made privy to the terms and conditions of the offer which clearly stipulated the deadline of the offer and other formalities. The entire transaction was done by the complainant with opposite party No.1 and opposite party No. 2 was not a party to the same. The allegations of the complainant is bald and baseless and the same cannot be relied upon. The complainant failed to comply with the terms of the offer and that is why he was not eligible for the Dubai Trip. It is further pleaded that the main allegation of the complainant is against opposite party No.1 dealer that they failed to deliver the car to the complainant in time in such a scenario no liability to pay compensation for alleged damages can be fastened against the answering opposite party. After denying the other averments of the complaint, prayed for the dismissal of the complaint. In support of his complaint, the complainant tendered into evidence photocopy of brochure along with terms and conditions containing 4 pages ( Ex.C-1), photocopy of repayment schedule containing 2 pages (Ex.C-2), photo copy of photographs (Ex.C-3 to C-5), photo copy of commitment details (Ex.C-6), photo copy of invoice (Ex.C-7), photo copy of e-mail (Ex.C-8), photocopies of loan detail (Ex.C-9 & C-10) and affidavit of Sham Sunder Goyal dated 25-11-2018 ( Ex.C-11). In order to rebut the evidence of the complainants, opposite party No.1 tendered into evidence affidavit of Deepak Kumar Sales Manager dated 05-02-2019 (OP1/1) and closed evidence. Opposite party No.2 tendered into evidence photocopy of authority letter (Ex.OP-2/1), photocopy of dealership agreement (Ex.OP2/2) photocopy of terms and conditions containing pages 1 to 3 (Ex.OP2/3), affidavit of M.K Bipin dated 05-01-2019 (Ex.OP2/4) and closed evidence. We have heard learned counsel for the parties and gone through the record. These are undisputed facts between the parties that in June, 2018, opposite parties launched a promotional offer according to which customer will get a Dubai holiday voucher on purchase of any Honda Car between 1-7-2018 and 10-9-2018. The complainant booked WR-V 1.5 VX MT car and paid Rs. 10,000/- in cash. On 31-8-2018, he transferred an amount of Rs. 10,49,050/- in the account of opposite party No. 1 and car offered to him was accepted by him and the car was delivered to the complainant on 3-9-2018, but the Dubai Tour offer was not provided to complainant. The main allegation of the complainant is that he booked his car and transferred the entire money/price of car, in that time period but the opposite parties did not provide him free tour of Dubai as promised by them. On the other hand, the version of the opposite parties is that complainant did not complete the formalities. As per terms of the offer, the complainant has to get himself registered within 30 days from purchase of the car and to submit his essential documents like passport and other related documents. The complainant failed to get himself registered within 30 days of the purchase of car, hence, was not entitled for the offer. Ex. C-1 is the Brochure which reveals that Scheme period was 1-7-2018 to 10-9-2018. Admittedly, the complainant paid the price and took delivery of the car on 3-9-2008 meaning thereby that period of delivery of the vehicle falls under the scheme. The opposite parties have not placed on file any document to show that complainant was ever asked to supply any documents or complete any other formality to avail the free tour offer. Rather e-mail dated 15-10-2018 sent to complainant by the opposite party No. 1 reveals that opposite party No. 1 admitted the delivery of vehicle on 3-9-2018 but stated that trip was only eligible till 31-8-2018. This e-mail of the opposite party No. 1 is falsified by their own document/Brochure Ex. C-1 which finds mentioned that scheme period was 1-7-2018 to 10-9-2018. Even the document Ex. OP-2/3 placed on file by opposite parties clearly finds mention that this promotional offer of Assured Dubai Holidays trip was available to the customers who have purchased Honda Cars between 1st July, 2018 and 10th September, 2018. Thus, there is deficiency on the part of the opposite parties in not providing free tour package to complainant as offered and committed by them at the time of purchase of car. Now the point for consideration is regarding relief to which complainant is entitled to. Keeping in view the position/circumstances of international tours in these days, free tour to Dubai cannot be allowed to the complainant. The complainant has claimed Rs. 2,00,000/- in lieu of free Dubai trip. However, in view of the the facilities offered by the opposite parties to the purchaser of car and charges to be born by purchaser, as per Ex. C-1, it would meet the ends of justice if an amount of Rs. 1,00,000/- (One Lac only) is allowed to complainant as compensation on all counts. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 10-12-2021 (Kanwar Sandeep Singh) President (Paramjeet Kaur) (Shivdev Singh) Member Member
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