(Delivered on 21/09/2021 )

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Appellant-  Mr. Shailesh Champalal Sharma has preferred the present  appeal  feeling aggrieved by the order dated 31/01/2012 passed by the District Consumer Forum, Gondia, in consumer Complaint  No. 44/2011.  (Appellant hereinafter shall be referred as complainant and respondents  as  O.P. for the sake of convenience )

2.         Short facts leading  to the  filing  of the present  appeal  may be narrated as under:-

            Complainant - Mr. Shailesh Champalal Sharma claims  to be resident of  Navegoan Bandh, Tahsil Arjuni Morgaon, District Gondia and has alleged that  he purchase  Tata Winger car from O.P. No.1- M/s. Nangiya Motors, on 03/07/2010. The said car was manufactured by the O.P. No. 3- M/s. Tata Motors.  After the purchase of the car same was duly registered with  the RTO. Complainant has alleged that when he received the RC Book and sale  certificate  from the O.P. No. 1- M/s. Nangiya Motors he came to know that  the  car purchased  by him was manufactured  in the month  of September-2008 i.e.  two years  prior  from  the  date of purchase.  The complainant had contended that  the said car purchase  by him cannot be called  as  new car but  can be counted  only as second hand car.   Further  the insurance company  also counted the life of the car as 14 years  from the date of manufacture.  O.P. No.1 - M/s. Nangiya Motors had made  a false  representation to the complainant  at the time of  selling  the car.  Complainant also came to know  that  the finance  was also not given  for the  car by  Tata Finance Company. Complainant has therefore alleged that the O.P.Nos. 1&2 namely Nangiya Motors  had indulged  in unfair trade practice  by selling  second hand car  and the  loan was also obtained falsely  from  Indusland Bank. Complainant  brought this fact to the knowledge of the O.P.Nos. 1&2- M/s. Nangiya Motors as well as O.P.No. 3- Tata Motors but there was no  reply and so complainant  was  compelled to file the Consumer Complaint  alleging deficiency  in service on the part of the O.P. Nos. 1 to 3.

3.         The O.P. Nos. 1 to 3 resisted the complaint by filing the written version. O.P.Nos. 1&2 have taken the  usual defence that the complaint  filed  by the  complainant  was not tenable in law and also that  there  was arbitration  clause  in the agreement. The O.P.Nos. 1&2 have also denied   the rest of the contentions . The O.P.Nos. 1&2 categorically  denied that  they had  handed over the second hand  Tata Winger Car to the complainant  or that there was  any deficiency in service .

4.         The learned District Consumer Forum, Gondia then went through the contents of the complaint , evidence affidavit  as well as documents filed by the complainant.  The learned District Consumer Forum, Gondia also went through the written version and evidence affidavit filed  by the O.P.Nos. 1&2 as well as O.P.No. 3.  The learned  District Consumer Forum, Gondia after  appreciation of oral argument and  documents  adduced  on record  came to the conclusion  that  there was substance  in the case of the complainant  that  the car purchased  by the complainant  was manufactured  in the  year  2008. The learned District Consumer Forum, Gondia also came to the conclusion that there was deficiency in service on the part of the O.P. Nos. 1&2 but there was no deficiency in service on the part of the O.P. No. 3. The learned District Consumer Forum, Gondia thus partly allowed the complaint and directed the O.P. Nos. 1&2 to pay compensation of Rs. 10,000/- to the complainant along with cost of Rs. 2000/- within a period of 30 days. Against this judgment and order dated 31/01/2012 passed by the learned District Consumer Forum, Gondia, the present appellant has come up in appeal.

5.         I have heard, Mr. Robin Somkuwar, learned advocate appearing for the appellant as well as Mr. P.N. Kothari, learned advocate for respondent Nos. 1&2 and Mrs. Nandini Thete learned advocate for respondent No. 3.  I have also gone through the written notes of argument filed by the appellant as well as respondent No. 3.

6.         It is an undisputed fact that  the present appellant – Mr. Shailesh Sharma had purchased  one Tata Winger Car from the respondent Nos. 1&2 namely M/s. Nangiya Motors  on 03/07/2010 and subsequently the said vehicle was also registered with RTO vide  registration No. MH-35/P-1976.  The respondent Nos. 1&2 in their written version have also not disputed this fact regarding sale of the Tata Winger Car to the appellant /complainant who was a consumer. It is submitted by  Mr. Robin Somkuwar, learned advocate for the appellant /complainant  that  though the learned District Consumer Forum, Gondia had appreciated  the fact that though  the car came to be purchased  in the year 2010 from the respondent Nos. 1&2  in fact the Tata Winger Car was manufactured  in the year 2008 and   therefore same was  second hand car. Mr. Robin Somkuwar, learned advocate  has drawn my attention  to the fact that the present  appellant /complainant  had paid the  entire  consideration  to the respondent Nos. 1&2  under  the impression  that  the Tata Winger Car was manufactured  in the year 2010 and not  2008. But later on appellant came to  know that the said Tata Winger Car was being used  as demo car and was actually  manufactured  in the year 2008. According to Mr. Robin Somkuwar, learned advocate  for the appellant, the learned District Consumer Forum, Gondia had rightly  given findings that  the respondent Nos. 1&2 had committed  deficiency  in service by making a false  representation that  the said car was  of the year 2010 but  the  learned District Consumer Forum, Gondia had committed  error  in not granting  the Compensation  as prayed  by the complainant.  Mr. Robin Somkuwar, learned advocate  for the appellant /complainant  has taken  me through  the various  documents which  are filed on record including  one copy of sale  certificate  issued by the Nangiya Motors  so as to show that the said car was manufactured  in the year 2008. I have gone through  the copy of Sale  Certificate  and same  shows  that  the year of the manufacture  of the car  was September-2008. It is argued by the learned advocate for the appellant  that  once the learned District Consumer Forum, Gondia had come to the conclusion  that the respondent Nos. 1&2 had indulged  in deficiency  in service then the learned District Consumer Forum, Gondia should have granted  the Compensation  of Rs. 3,00,000/-  as prayed  by the appellant /complainant after taking  in to consideration  the price of Tata Winger Car in the year 2008.

7.         On the other hand, the learned advocate for the respondent Nos. 1&2 has supported the findings given by the learned District Consumer Forum, Gondia. In this regard it would be relevant  to deal with  the findings given  by the  learned District Consumer Forum, Gondia  in the order dated 31/01/2012. If we go through the para 19 of the impugned  order dated 31/01/2012 the same is self  speaking. The learned District Consumer Forum, Gondia has come  to the conclusion  that  there was  deficiency  in service on the part of the respondent Nos. 1&2 namely Nangiya Motors in  handing over  the car manufactured  in the year 2008 to the complainant.  The learned District Consumer Forum, Gondia has also referred to the fact that  the complainant  had claimed  compensation  of Rs. 3,00,000/- but  has pointed out that  the  complainant  has  not placed  on record any  documents  as to what was  the price  of  Tata Winger Car in the year 2008 and price  in the  year 2010 when the complainant  purchased the same.  On the other hand   the learned advocate for the respondent Nos. 1&2 has submitted that the respondent Nos. 1&2 had given a discount to the consumer.

8.         I have also gone through  the various  documents filed by the complainant before the learned District Consumer Forum, Gondia. Complainant has heavily relied upon the receipt regarding the payment towards the price  of  car. Complainant has also placed on record one copy  of Motor Proposal Form for taking  insurance  from the ICICI Lombard General  Insurance Company as  stated earlier. There is no dispute regarding the fact that  the car purchase  by the complainant  was manufactured  in the year 2008. However I find  that the complainant  has not placed  on record  any documents  like price list to show that  what was the price of the Tata Winger Car in the year 2008 as  well as in the year  2010 and so the learned District Consumer Forum, Gondia has rightly  referred  to this aspect.  Appellant/complainant  has not given any explanation on this count. I therefore, feel that the learned District Consumer Forum, Gondia has rightly granted compensation of Rs. 10,000/- for the harassment caused to the complainant. During the course of argument   Mr. Robin Somkuwar, learned advocate for the appellant /complainant has relied  upon one judgment  in the case of M/s.Techno Mukund Construction  Vs. Mercedes Benz, India Limited and Anr. decided by the Hon’ble National  Commission on 20 January, 2011 in original petition  No. 298 of 2000.  In that case also the facts were similar and used Mercedes Benz car was provided to the complainant.  In the present case  before us the learned  District Consumer Forum, Gondia has rightly  come to the conclusion  regarding  deficiency  in service  and so this judgment  will not help much  in the case of  the appellant.

9.         Respondent Nos. 1&2 have also  taken a plea that  the appeal filed by the appellant  was itself  not tenable  as the appellant has already  received  the amount of compensation  without  any objection and so he has no right  to file  any appeal.  On this  aspect he has relied  upon one judgment  in the case of Branch  Manager, The New India  Assurance  Co. Ltd. Vs. Mr. Hemand Anant Khanvilkar, decided by the State Consumer Disputes  Redressal Commission, Mumbai but in that case  the amount sanctioned  and paid to the complainant  was accepted by him towards full and final settlement and so it was observed  that  there was no deficiency  in service on the part of the insurance  company. But in the present case facts are quite different.  The learned advocate for the respondent Nos. 1&2  has also relied upon  judgments  in the case of (i.) Lala Kapurchand Godha and others Vs.  Mir Nawab Himayatalikhan Azamijah,  reported  in AIR 1963 Supreme Court 250 and (ii) Shrdi Sai Baba Mandir Regd Vs. Vijay Kumar and another, decided by the Hon’ble High  Court of Punjab and Haryana but the same are  not directly  applicable  to the facts of the present  case. In the light of  the aforesaid  discussion I must hold that  there is no  error or infirmity  in the findings given  by the learned District Consumer Forum, Gondia. I am therefore unable to accept the contentions advanced by the learned advocate for the appellant and so I find that the appeal is devoid of substance. As such  I proceed to pass the following  order.

ORDER

i.          Appeal is dismissed.

ii.          No order as to cost.

iii.         Copy of order be furnished to both the parties, free of cost.