DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 35/2018 

QUORUM:

Order By:

JUDGEMENT

The present complaint filed by the complainant against OP for refund of excess amount charged than the actual paid by the complainant for the purchase of car, along with compensation for harassment, mental pain and agony suffered by the him, litigation cost and direction to OP to exchange the defective vehicle sold to him.

1. It is the case of the complainant that he has booked automatic Celerio car by paying Rs. 1,00,000/- as booking amount on 24.05.2017. The complainant was in urgent need of car and OP has promised to complainant to deliver the same within that month but despite his several request on 26th and 27th May 2017, the OP did not deliver the car and informed  that automatic car is not available because of which he had to take LXi Celerio, manual vide registration number DL6CQ5698, engine number K10 BN 792083, Chesis  number MA3ET DE1S00402846, as he has already given the booking amount of Rs.1,00,00/-  and the same cheque was encashed by the OP without taking consent of the complainant about change of model. Complainant submits that in the said model, the OP offered power window of Rs.7300/-, but issued the bill of Rs.6890/- only. Moreover, the installation was defective which though was corrected after many requests.
2. Further, Complainant submits that the pro forma invoice given by the OP mentioned the cost of the vehicle as Rs. 4,39,790/- and after deducting the company discount etc, the complainant paid Rs. 4,10,000/- but OP issued invoice dated 30.05.2017 of Rs.3,66,550.87/- only and complainant demanded the invoice of the amount that he has paid was not responded by OP.
3. Complainant further submits that on the very next day, i.e. on 01.06.2017, he was shocked and surprised to see that there were a jerks when the car was driven to 1st and 2^nd gear and power window was also not working properly. Complainant reported the above issues to OP that a defective car has been delivered to him and upon much protest, OP promised the complainant to repair the faults in the first service of the car. Complainant also submits  that the said vehicle was insured with Bajaj Allianz General Insurance Company Limited for the period from 30.05.2017 – 29.05.2018, vide policy number N88266679 dated 29.05.2018, showing the value of car as Rs. 3,84,418/- though the complainant had asked for hundred percent insurance of the car value which shows fraud practice on the part of the OP.
4. Complainant states that he has handed over his vehicle for first maintenance in June 2017 and detailed the problems like, jerks, power windows, logo, and other problems and despite assurance from OP complainant faced the same problems after delivery. The mails written to OP were not replied. The legal notice dated 27.11.2017, also not replied by OP. Complainant submits that because of harassment by OP complainant is not able to use his own vehicle and has suffered a great loss, the  acts of OP tantamounts to deficiency in service and OP is liable to pay damages for the losses suffered by the complainant. Complainant claims for the refund of Rs. 43,450/- being the excess amount charged from the complainant along with Rs. 1,00,000/- towards the harassment, mental pain and agony, Rs. 25,000/ towards Litigation expenses and directions to OP to exchange the defective vehicle sold to the complainant.
5. In support of his claim, complainant has filed the rate list of Maruti car, Ex. CW1/1; estimate cost of Celerio LXi, Ex. CW1/2; booking of Celerio AMT for a sum of Rs.1,00,000/-  lakh, Ex. CW1/3; copy of invoice dated 30.05.2017, Ex. CW1/4 and 5 and 5A; copy of policy, Ex. CW1/6, copy of various emails, Ex. CW1/7; copy of legal notice and speed post receipt, Ex. CW1/8 and 9.
6. Initially complainant has made three parties but vide order dated 22.03.2018, OP2, the manufacturer was deleted from array of parties. Upon notice, OP1 and 3 failed to appear and as such, were proceeded ex-parte on 20.02.2019, which order was set aside by Hon'ble State Commission vide order dated 18.07.2019 and OP1 and 3  were allowed to file their written statement.
7. In reply, OPs denied all the allegations of the complainant, stating that the complainant has no locus standi to file present complaint and the same is not maintainable both in law and on facts. The complaint is frivolous, manipulated baseless, and without any merit and the claims put forth are or not legally sustainable. OP submits that complainant has voluntarily purchased the car in question out of his free will by paying the consideration of Rs.1,00,000/-. The complainant has no cause of action against OP. The services were also provided by the OP1 to the complainant to his entire satisfaction. The OP submits that the present complaint is filed by the complainant in order to malign the prestige of OP and there is no fault whatsoever on their part. The allegations levied against them are absolutely false and wrong and there has been no deficiency in service on their part.  OPs further submit that complainant has made wrong allegation that OP has charged Rs. 7300/ for front power window and raise the bill of Rs. 6890/- instead. They have received the same amount which has been mentioned in the bill. The OPs also submit that the ex-showroom value of the vehicle is Rs.4,04,651/- and accordingly the IDV of the insurance is Rs.3,84,418/-. With respect to the logo, it has been clarified to the complainant through email that logo of LXi is not coming from Maruti. OP submits that they have always replied to the complainant, in respect of work whenever asked and also provided job sheets. The reply of the legal notice of the complainant has also been sent through the speed post. OP submits that the complaint is not maintainable and the complainant is not entitled to any relief and the same is liable to be dismissed with exemplary punitive cost against complainant.
8. OP has filed the board resolution, reply of the legal notice and the receipt of Rs.4,10,000/- .
9. The complainant has filed the rejoinder reiterating his version as mentioned in the complaint. Both the parties have filed their respective evidence and documents.
10. Perusal of the record shows that the three receipts in all have been filed by parties. Two are of Rs. 4,10,000/- , one filed by OP, and other filed by complainant and are same. The third receipt filed by the complainant of an amount of Rs. 3,66,550.87/-.    For the sake of convenience, we may refer it as receipts no.1, receipt no.2 and receipt no.3 respectively. All these three receipts bear same details viz. sold to, address, customer ID, sales executive name, vehicle ID, invoice number, invoice date, order number, order date, key number, booking dealer, delivery dealer. The only difference is with respect to the amount. The analysis of the receipt no. 1 and 2 show that the total amount paid by the complainant 4,10,000/- and the total invoice amount is Rs. 4,01,026/-. There is nothing mentioned under the head of ‘balance to collect/ pay’. Therefore, it is established that OP has charged Rs. 8,974/- in excess and bill does not show that the same has been returned to the complainant. The receipt no.3, filed by complainant does not show complete details of payment, therefore, cannot be considered for resolving the dispute in issue.
11. So far as defect in vehicle is concerned, the complainant is failed to discharge the burden to proof the same through any expert opinion. Complainant has also not filed any bill /evidence showing that he has been charged Rs.7300/ for front power window and OP raise the bill of Rs.6890/ only. Further, complainant also not filed any evidence towards the defect in power window, as well as the jerk’s complaint. No job card has been filed by the complainant. With respect to logo issue also, complainant failed to show that its OP liability to provide. Therefore, in the absence of any evidence, the same cannot be adjudicated upon.     
12. In view of the above discussion, this commission directs OP1 and OP3 jointly and severally are directed to return Rs. 8,974/- charged in excess along with the interest @6% p.a. from the date of payment i.e. 30.05.2017 till the date of payment within one month from the date of receipt of the order failing which the OP 1 and OP3 jointly and severally shall be liable to pay the interest @9% p.a. till its actual realization by the complainant.
13. The order be uploaded on the website after providing copy of the order to the parties as per CPA Rules, and thereafter the file be consigned to record room. 
14. The complainant could not be decided within the statutory period due to heavy pendency of the cases
15. The order contains – 07 pages each beers our signature.
16. Announced on 21.03.2023.