By Smt. PREETHI SIVARAMAN.C, MEMBER

1. Case of the complainant: -

        The complainant is the RC owner of the vehicle ERTIGA LDI with Registration No. KL-10-AQ-5990, which was purchased from opposite party No.1. Though the opposite party No.1 promised the complainant to deliver the vehicle on 01/01/2014, it was only delivered on 04/01/14, after repeated demands. At the time of delivery of the vehicle, the complainant noticed that the year of manufacturing was missing from all the glasses except the windshield. When the complainant informed this to the first opposite party, the staff convinced the complainant that the practice of engrossing the year of manufacture on the glasses except the wind shield is withdrawn by the opposite party No.4 who is the manufacturer.

2.        The opposite party No.1 made him believe that the vehicle is of 2013 model and made him to sign an undertaking on a printed form in favour of opposite party No.2. Thus, the complainant took the delivery of the car believing the assurances as to the year of manufacture given by the opposite parties.

3.          On  24/01/2014, when the vehicle was taken to opposite party No.1 for the 1^st free service, the complainant noticed the tampered impressions of the year of manufacture on all the glasses of the vehicle. On examination, it was found that the year of manufacture appeared as 2012. Further, it was erased on a manner which could not be noticed or recognized by people other than experts. The 1^st opposite party and their staff required some time to the complainant for enquiring the matter and for that, the complainant agreed to wait for a day.

4.       Thereafter the complainant waited several days but there was no response from opposite parties and he under stood that he was cheated by the opposite parties. The complainant was under the belief that the vehicle delivered to him was a 2013 model. The opposite parties delivered a used/damaged car to the complainant. So that he had suffered much financial loss and hardships. Thereafter the complainant sent a lawyer notice to all opposite parties. Opposite party No.1 to 3 sent reply by denying the facts and opposite party No.4 did not send reply.

5.       So the complaint is filed by the complainant to replace the vehicle with a brand  new vehicle along with other reliefs.

6.        Opposite party No.1 to 3 filed version by denying the major averments in the complaint. Opposite party No.4 set exparte. According to them they had provided brand new vehicle as delivered by the manufacturer without any tampering, alterations or committing any fraudulent act. They never promised to settle the issue.

7.       On 31/01/2014, at 10 am, the complainant made a scene in front of the opposite party's office at Manjeri by putting his vehicle across the gate by fixing a banner with some malicious publications on it by totally preventing the way to the office premises and so they filed a complaint before the police and they removed the block. So, the complainant is trying to degrade their good will and reputation. As per the complaint and commission report, the year of manufacture is 2013. The vehicle is having no manufacturing defects. The complainant has not sustained any inconvenience or loss. No deficiency or unfair trade practice is committed by opposite parties and so the complaint has to be dismissed with cost.

8.  Now the points arise for consideration herein are;

1. Whether the opposite parties are deficient in service and whether there is unfair trade practice?
2.  Relief and cost.

9.      Point No.1

          The complainant is examined as PW1. Documents he produced were marked as Ext.A1 to A5. Ext.A1 is the copy of the Ledger account, Ext.A2 is the cash receipt, Ext. A3 is the under taking signed by the complainant, Ext.A4(s)are the copy of the lawyer notice and its receipts and Ext. A5 is the reply notice send by opposite parties No.1 to 3 to complainant. Opposite party is examined as DW1and the documents produced were marked as Ext.B1 and B2 series. Ext.B1 is the vehicle history, Ext.B2 (s) are the photographs along with the CD. Ext. C1 is the Advocate commissioner's report.

9.        According to the complainant, a damaged vehicle was supplied by the opposite parties. We have gone through the Ext. C1, Advocate Commissioner’s Report. Ext.C1 report states that only on the front glass, 2013 is seen. The other 9 glasses have scratches and it can be seen on a close examination that year of manufacture appeared as 2012 and the same prints were scrubbed. The opposite party didn't file objection upon the Ext. C1 Report. When the opposite party was examined, he deposed that “വാഹനം ഞാന്‍ പരിശോധിച്ചു2012 എന്നുള്ളത് tamper ചെയ്തതായി glass ല്‍ കണ്ടിട്ടില്ല. Witness adds......... മങ്ങിയപോലെയാണ്കാണുന്നത്.

10.      Hence this revelation leads to the point that the writing was faded. What the complainant stated in the complaint and affidavit is proved by Ext. C1 report and the deposition of opposite party No.1.  As far as a customer is concerned, the purchase of a new vehicle is a dream for himself and the whole family. From the 1^st free service itself they had noted the defects. The whole evidence leads to the fact that the opposite parties had supplied 2012 model instead of 2013 model. If the complainant is intending to resale the vehicle, certainly these scratches and scrubs will affect its value. He will get only the value of a 2012 model vehicle even though in RC it is shown as 2013 model. There is no dispute with respect to the model mentioned in the RC. By selling new model vehicle with parts of old model by misleading the customer is a deficiency in service and unfair trade practice hence all opposite parties are liable to compensate the complainant. The word deficiency as per Consumer Protection Act, reads as; s.2(g) “deficiency” means any fault, imperfection, short coming or in adequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. So, the facts and circumstances of the above case will certainly prove that opposite parties were committed deficiency in their service, as sited above.

11.Point No.2

            In view of above facts, the District Consumer Disputes Redressal Forum allowed the complaint on 30/06/2016 as follows: -

“1. The opposite parties shall replace the vehicle by a new model that is 2016 model of same vehicle to the complainant which is free from all defects.  If the same model is not available, they shall provide the new model.  The difference of value between2013 and model and 2016 model shall be paid by the complainant.

        The opposite parties shall further pay Rs. 25,000/-as compensation for mental agony suffered by the complainant and a cost of Rs. 10,000/-. On compliance of the above order the complainant shall return the old vehicle to the opposite parties. The liability of opposite parties shall be jointly and severally.  “

12.     Thereafter opposite parties No.1 to 3 together and oppositeparty4separately filed appeals before State Consumer Disputes Redressal Commission as A 638/2016 and A723/2016 respectively.   Appeal filed by opposite party No.4 in the complaint was allowed contenting that though not satisfied with the reason/explanation stated by appellant for not presenting contention before District Consumer Disputes Redressal Forum properly in the interest of justice opportunity was given to appellant and thereby the order of  DCDRF was set aside and remanded for fresh disposal after giving opportunity to the 4^thopposite party  to file version  raising  their contention and to adduce evidence if any.   There was also a direction to dispose the matter within 6 months from the date of receipt of records from the State Consumer Disputes Redressal Commission.  Appellant was also directed to pay cost of Rs. 10,000/- (Rupees Ten thousand only) to the complainant. Appeal 638/2016 filed by opposite parties No.1 to 3 disposed of granting liberty to the appellants to file fresh appeal, if they require against the order to be pronounced afresh by the District Forum. 

13.         On receipt of records from State Consumer Disputes Redressal Commission, the District Consumer Disputes Redressal Commission issued notice on 19/10/2020 to 4^thopposite party and complainant to appear before the District Commission on 16/11/2020.  On that day there was no representation from both sides.  Thereafter, case was posted to 18/12/2020 and 20/01/2021 but there was no sitting.   On 24/02/2021 case was again considered but there was no representation from both sides. Hence fresh notice was issued to opposite party No.4 and they represented on 09/04/2021 and prayed short time for hearing.   Since on that day complainant was being absent notice was ordered to complainant. Subsequent to that on 27/04/2021 and 16/06/2021 there was no sitting.  On 05/08/2021 again notice issue to both parties to appear on 28/09/2021 and on that day complainant was present but opposite party No.4 was absent and there was no representation also for opposite party No.4. Hence opposite party No.4 set exparte on that day and posted for affidavit of complainant. Thereafter complaint was posted to 18/10/2021, 15/11/2021, 23/11/2021, 26/11/2021 and finally on 30/11/2021.  On 30/11/2021 complainant submitted that since they filed affidavit already, they are not filing fresh affidavit.   But at the time of hearing complainant filed an affidavit on30/11/2021 to the effect that vehicle in dispute has disposed of.   Since no appearance for the 4^thopposite party, the appellant in A 723/2016 despite repeated notice the complaint was taken for orders. 

14.          It can be seen that there was an order by the District Forum on 30/06/2016 in this matter. There is nothing brought before this Commission to adjudicate the complaint afresh except the fact that the disputed vehicle has been sold out by the complainant and which is proved through the affidavit of the complainant. But the 4^thopposite party remained exparte against repeated notice from this Commission.   He did not appear and there is no version or affidavit on behalf of opposite party No.4.  It can also be seen that he had submitted before the State Commission in his appeal that, he had filed version before the District Forum,  but it was no considered.  The complainant had issued before filing this complaint notices to all opposite parties regarding his grievance at the first instance itself.   But there was no reply to the notice from the 4^thopposite party.  Other three opposite parties replied   denying the allegations against them.  It can be concluded that the attitude of the 4^thopposite party towards the applicant/consumer is a deficient service rather unfair trade practice.   The 4^thopposite party filed appeal with prayer to contest the matter before District Forum and it was allowed also.  Thereafter he again kept silent.   It can be seen that the ultimate aim of 4^thopposite party is to drag the matter to the maximum possible extend.  A consumer complaint filed in the year 2014 coming for the consideration of District Commission after 6 years of it filing. It is not proper to allow the 4^thopposite party to cause misscarriage of Justice by this sort of unfair trade practice.  The complainant is entitled to redress his grievance without further delay.

15.        The complainant purchased the vehicle in the year 2014 and as per a complaint before the District Commission allowed considering the grievance to replace a same specification vehicle of 2016 model and complainant was directed to pay the difference in value of the vehicle 2013model and 2016 model to the opposite parties. There was also a direction to return the old model vehicle to the opposite parties at the time of compliance of the order.   But at present the complainant submitted an affidavit stating that the vehicle in dispute has been disposed of and so the order to return the vehicle to the opposite party is not possible and so adequate compensation is prayed.   So, the Commission considered the present value of 2021 model vehicle involved in the complaint to assess the compensation and it was found    as Rs. 8,85,000/- (Rupees Eight lakh eighty-five thousand only).  The complainant has not stated the price which he received at the time of sale of his old vehicle.   He has claimed the price spent for the old model old vehicle as Rs. 8,90,000/-(Rupees Eight lakh ninety thousand only). Since the complainant has not stated the value of the vehicle, he obtained at the time of disposal of the old vehicle we assess the value of the vehicle after reducing 50% of depreciation of the old vehicle as Rs. 4,45,000/-(Rupees Four lakh and  forty five thousand only). Now it can be seen that the complainant has to raise an amount of Rs. 4,40,000/-(Rupees Four lakh and forty thousand only) to purchase a 2021 model vehicle which the opposite parties bound to pay to the complainant.  It can be seen that the opposite parties prolonged the matter without any sufficient reason and caused inordinate delay in adjudicating the disputes between the parties.  Hence, we find that the complainant might have suffered financial as well as mental agony.   We allow Rs. 1,00,000/- (Rupees One lakh only) as compensation due to the above reasons.   We also allow Rs. 25,000/- (Rupees Twenty-five thousand only) as cost of the proceedings.  It can be seen that the grievance as alleged by the complainant stands proved and we find that the opposite parties are liable to compensate the complainant.  But the fact that remains the 4^th opposite party has not contested the claim during the proceedings. In the interest of justice, we direct the fourth opposite party to redress the grievance of the complainant. If the 4^thopposite party has got any contention regarding the unfair trade practice and deficiency in service and the liability thereon has to be agitated against opposite parties No. 1 to 3.

16.   In the light of the above facts and circumstances the Commission allows the complaint as follows: -

1. The 4^th opposite party is directed to pay Rs. 4,40,000/- (Rupees Four thousand and forty thousand only) to the complainant as the difference of value of 2013 and 2016 model vehicle.
2.  The 4^th opposite party is directed to pay compensation of Rs. 100,000/-(Rupees One lakh only) to the complainant on account of deficiency in service and unfair trade practice on the part of 4^thopposite party and thereby caused mental agony and sufferings to the complainant.
3. The opposite party No.4 is directed to pay Rs.20,000/-(Rupees Twenty  thousand only) as cost of the proceedings.
4. The 4^thopposite party is at liberty to proceed against opposite parties No.1 to 3,  if they have got  contention  that there is no  unfair  trade practice and on  deficiency in service  on their part. 

         The 4^thopposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled to get interest at the rate of 9% per annum on the above amount from the date of receipt of the copy of this order till realisation.

Dated this 31^st day of December, 2021.