Haryana

Kurukshetra

CC/182/2020

Balbir Kashyap S/o Ranjeet Kashyap - Complainant(s)

Versus

M/s Jaswant Singh & Sons - Opp.Party(s)

Suresh Kashyap

18 Apr 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

                                                                    Complaint No.:    182 of 2020.

                                                                   Date of institution: 15.06.2020.

                                                                   Date of decision: 18.04.2022

 

Balbir Kashyap s/o Shri Ranjeet Kashyap, r/o Krishna Nagar Gamri, Thanesar, Tehsil Thanesar, District Kurukshetra.

                                                                                                …Complainant.

                                                     Versus

 

1. M/s Jaswant Singh & Sons, Pipli Road, behind 9^th Planet Hotel, Mohan Nagar, Kurukshetra, through its Proprietor/Authorized Person Manmohan Singh.
2. Mahindra & Mahindra Limited, Gateway Building, Apollo Bunder Bhagat Singh Road, Fort, Mumbai, through its Managing Director.
3. Mahindra Tractors, Mahindra & Mahindra Ltd., Farm Equipment Sector, Farm Division, AFS Headquarters, Mahindra Towers, 1^st Floor, Akurli Road, Kandivali (E), Mumbai-400101, India.

...Respondents.

 

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

                   ISSAM SINGH SAGWAL, MEMBER.           

 

Present:       Shri Suresh Kashyap, Advocate for the complainant.

                   Shri Paras Manocha, Advocate for the OPs No.2 & 3.

                   OP No.1 ex-parte vide order dated 05.02.2021.

 

ORDER:

 

1.                This is a complaint under Section 12 of the Consumer Protection Act, 1986 (for short “Act”).

2.                Going through the contents of the complaint, supportive documents and written statement, brief facts of the complaint are, on 23.09.2019, complainant purchased one tractor Mahindra & Mahindra DI 265 BP from OP No.1 after paying Rs.1,00,000/- as token money and paid Rs.25000/- on 09.10.2019 and balance amount of Rs.3,34,200/-  was sanctioned as loan by ICICI bank. The engine number and Chassis number of tractor was written on the tractor as RKC2BAN1855 and MBNAAACAEKRC04578 Model 2019, but the OP No.1 issued bill No.8548 dated 27.9.2019 with different engine number and Chassis number i.e. RKC2BAN1957 and MBNAAACAEKRC04647 respectively. It was also found that the said tractor was used earlier for 10 hours and there were 3-3 holes in the bumper on both sides. There were signs of dent and engine was not working properly and when the complainant told this one to the OPs, who assured to change the front show of the tractor, but later on, failed to do so. The OPs charged Rs.25,000/- in addition to the above for getting issue the registration certificate and insurance of the tractor, which was received by him on 14.02.2020 by speed post. The Ops gave defective/old tractor to the complainant by forging and fabricating false documents regarding engine and chassis number of the tractor. The complainant also filed a complaint dated 25.2.2020 to SP Kurukshetra against the OP No.1 with regard to above fraud, forgery and cheating, but no action has been taken by the police till date. Having no another alternative, complainant served legal notice dated 19.05.2020 through registered post AD to redresss his grievance, but the OPs failed to reply the same nor made the payment.

The complainant requested the OPs various times to replace to the tractor with new one of good condition or refund the cost price, but they failed to do so, which amounts to negligence and deficiency in services on the part of the OPs, causing him mental agony, harassment and financial loss, constraining him to file the present complaint against the OPs before this Commission.

3.                On receipt of complaint, notice was ordered to be issued against the OPs. OP No.1 failed to appear before the Commission and was proceeded against ex parte vide order dated 05.02.2021, passed by this Commission.

4.                OPs No.2 & 3 appeared and filed their written statement, pleading interalia, no cause of action; this Commission has no jurisdiction to entertain and try the present complaint; complainant is not a consumer. The commitment, if any made by the OP No.1 has been made in his personal capacity and answering OPs are not bound by such type of commitment. The liability of answering OPs is to the extent as mentioned in the service cum warranty booklet. The vehicle sold by the OPs No.2 & 3 to the OP No.1 are/were brand new vehicles. It denied receipt of any legal notice dated 19.5.2020 from the complainant. It is further submitted, the relationship between the OPs No.2 & 3 is that on principle to principle basis and OP No.2 & 3 are not liable for any act, omission and assurance or commission done by the dealer, if any. In order to support his contentions, he placed reliance upon case law titled Mercedes - Benz India Pvt. Ltd. and another, Appellants Versus Intercard (India) Ltd., Respondent, 2013 (3) C.P.J. 48 (National Commission, New Delhi).

5.                We have heard the learned counsel for the parties and gone through the case file as well carefully.

6.                Shri Suresh Kashyap, counsel for the complainant, in the course of arguments, in material respect, reiterated to the version made into the complaint and apprised the Commission about evidence adduced on record by the complainant. At the time of arguments, he placed on record original photographs of tractor Chassis number and Engine Number as Mark CA, CB and CC.

7.                Shri Paras Manocha, counsel for the OPs No.2 & 3, in the course of his arguments, also reiterated to the version made into the written statement and also apprised the Commission about evidence adduced on record by the OPs No.2 & 3.

8.                From the arguments and pleadings of the parties, this Commission has firstly to decide whether the OPs No.1 & 2 received any premium qua the policy in question from the complainant or OP No.3 or not.

9.                There is no dispute regarding sale of tractor in question by the OP No.1 to the complainant. The complainant contended that the OPs sold old/defective tractor to him, as engine number and chassis number as mentioned in the tractor and bill/RC are different from each other. He further contended that the said tractor was used earlier for 10 hours and there were 3-3 holes in the bumper on both sides. There were signs of dent and engine was not working properly. This Commission finds the contention of the complainant, plausible, because, in the Bill Ex.C2 and Registration Certificate of tractor in question Ex.C4, Chassis Number as MBNAAACAEKRC04647 and Engine Number as RKC2BAN1957, whereas, from perusal of original photographs of Chassis number and Engine number of tractor in question Mark CA and CB, it is found, Chassis Number as MBNAAACAEKRC4578 and Engine number as RKC2BAN1855, which are different one, as mentioned in bill Ex.C2 and Registration Certificate Ex.C4 of tractor in question. Moreover, at the time of preparing the Registration Certificate, the Chassis Number and Engine Number were taken by sketch pen/pencil, from the original surface of Chassis number and Engine Number of the vehicle, which, in the case in hand, are both different one, as mentioned in the bill/ Registration Certificate, as compared to mentioned on the tractor in question, which is an act of deficiency in service, misrepresentation and unfair trade practice, on the part of OPs. So, this Commission comes to the conclusion that the tractor in question, sold to the complainant, was of different Chassis number and Engine number as shown in original photographs of Chassis number and Engine Number as Mark CA and CB, as compared to bill Ex.C2 & Registration Certificate Ex.C4. In this regard, the OPs No.2 & 3 contended that OPs No.2 & 3 was the manufacturer of the tractor in question, not the dealer or distributor and the relationship between the OPs No.2 & 3 is that on principle to principle basis and OP No.2 & 3 are not liable for any act, misrepresentation, omission and assurance or commission done by the dealer, if any. The view of this Commission is fully supported by the case law cited (supra) by the counsel for OPs titled Mercedes - Benz India Pvt. Ltd. and another Versus Intercard (India) Ltd., wherein, in Para No.9 it is held that the relationship between the manufacturer and the dealer was on principle to principle basis….. Appellant No.2 was the authorized dealer and not the agent or distributor of the manufacturer. The manufacturer sold the vehicles and spares to the Authorised Dealer on principle to principle basis. The Manufacturer cannot be held liable for the misrepresentation, if any, made by the Authorised Dealer…..State Commission was not justified in directing the manufacturer to refund the costs of the car on return of the same by the Respondent and to pay the compensation of Rs.5,00,000/- to be equally shared by the dealer. So, any act of deficiency in service, misrepresentation and unfair trade practice, done on the part of OP No.1, the OPs No.2 & 3 cannot be held liable jointly and severally for the same. Complaint qua OPs No.2 & 3 is liable to be dismissed.

10.              Now the burden was only upon the OP No.1 to deny the allegations of the complainant, by leading cogent and convincing evidence on the record, but the OP No.1, instead of contesting the case by appearing before this Commission, proceeded against ex-parte, so, this Commission has left with no other option except to believe the contention of the complainant, as there is no ground to disbelieve the contentions of the complainant. Non-contesting of complaint, despite receipt of notice of it, by the OP No.1, further cements the version of complainant. It has been established on record that the OP No.1 sold the old/defective tractor to the complainant having different Chassis number and Engine number on it, as shown in original photographs of Chassis number and Engine Number as Mark CA and CB of tractor in question, as compared to the bill Ex.C2 and Registration Certificate Ex.C4, which is an act of deficiency in service, misrepresentation as well as unfair trade practice, on the part of the OP No.1, for which, the complainant is entitled to refund the amount of the tractor in question, from the OP No.1.

11.              In view of our above discussion, we accept the present complaint against OP No.1 and direct it to refund Rs.3,83,875/- (Rs.4,30,000 – Rs.46,125 as CSTS+SGST), cost of tractor in question as per bill Ex.C2/-, subject to return the old/defective tractor in question, by the complainant, to the OP No.1. The OP No.1 is also directed to pay Rs.50,000/- to the complainant, as compensation for mental agony and physical harassment, caused to the complainant, due to an act of deficiency in service, misrepresentation and unfair trade practice, on the part of the OP No.1, alongwith Rs.5,000/-, as litigation expenses. The OP No.1 is further directed to make the compliance of this order within a period of 45 days from the date of preparation of certified copy of this order, failing which the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OP No.3. Complaint qua OPs No.2 & 3 is dismissed. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Dated:18.04.2022.

    

                                                                                        (Neelam Kashyap)               

(Neelam)                    (Issam Singh Sagwal)                   President,

Member.                    (Member).                                     DCDRC, Kurukshetra.           
 

 

 

Typed by: Sham Kalra, Stenographer.