ORDER

SMT.SHARAVATHI S.M.  MEMBER

1.     This is the complaint filed by the complainant against the opposite party (herein referred to as OP) under section 35 of the Consumer Protection Act 2019 against Schmear Pvt. Ltd., by alleging deficiency in service in not registering the vehicle with the RTO though agreed to do it and also not providing insurance in a reasonable time and for replacing the vehicle with Bharath VI emission complaint and to get it registered, insured along with number plate, failing which to refund a sum of Rs.76,000/- along with the interest at the rate of 24% per annum from the date of payment and Rs.2,50,000/- towards damages and compensation and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that:-  OP is a dealer in two wheeler. Complainant purchased Suzuki Access 125 Two- wheeler (Bharat Stage iv- white colour) with Chassis no MB8DP11AJK8F48370 and Engine No.AF216144823 from OP at their showroom in HBR layout on 11/01/2020. The total cost of the vehicle along with registration and insurance was Rs.76,000/- as agreed by OP. He took delivery of the vehicle on 11/01/2020.  OP agreed to get it registered and process the insurance and complete the contract on or before 20/01/2020. Inspite of lapse of one month, OP did not do the  registration process. He visited OP show room on 17/02/2020 seeking the information regarding the registration of the vehicle. He was asked to come after some time. Afterwards he came to know that the registration of Bharath IV emission two wheeler have been banned from 01.04.2020 by Govt. of India. There was COVID  situation wherein the Govt. of India Locked down the nation due to which he could not approach the OP. After relaxation of the lockdown, when approached the OP over telephone, OP agreed to refund the amount of the two wheeler which it has received and asked him to come to discussion to the show room. When he went  there to discuss the refund of the amount, OP treated him rudely and did not get the vehicle registered or replace the vehicle and refunded the vehicle which amounts to illegal trade practice and deficiency in service. Hence had to file this complaint and prayed the same to be allowed.

3.     Upon issuing the notice,  OP did not receive the  same though intimated by the postal authorities and the same was returned as unclaimed and hence this Commission held as due service of notice and as OP was not present before the commission, on that day, he was placed exparte.

4.     In order to prove the case, complainant have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:–

1. Whether complainant has proved that OP is deficiency in service?

2. Whether the complainant is entitled for refund of amount of consideration with interest?

5.     Our answers to the above points are:-

POINT NO 1: IN THE AFFIRMATIVE

POINT NO 2: PARTLY IN THE AFFIRMATIVE

                              For the following:-                        

REASONS

POINT NO 1:

6.     As per Ex P1 and P2 the complainant purchased two wheeler ACCESS 125 DRUM CBS white colour by paying Rs.76,000/- on 11.01.2020 wherein OP agreed to provide HSRP, Number plate for the said amount. Ex P3 is the insurance document wherein the said vehicle without registration number has been insured by receiving Rs.4,741.81 towards own damage and 3^rd party liability. There is no mention of the vehicle number except RTO code KA 03.  Ex P4 is the Email correspondences between the complainant and OP wherein complainant has demanded OP to get the vehicle registered, failing which to refund Rs.76,000/- for which on 23.06.2020, OP has replied as hereunder;-

“Dear Sir

As said, you had purchased the Suzuki access 125, White, On 11^th of January and as mentioned at the time of delivery that the processing of the documents and the registration will be completed within 15 working days from  the date of purchase, but due to the Covid-19 there was delay being caused though there was no lock down at the time on which the registration should have been completed. The RTO was working at reduced staff as we had submitted the file it was taking time for the file to be processed from our end, unfortunately, the lockdown began as per the Government though the RTO  was operational we were denied access even after the lockdown was lifted due to COVID 19.

As specified it would be totally unfair to tell that it has taken 5 months to register the vehicle as the time of lockdown should not be considered in the time-delayed.

As per the telephonic conversation of refunding, the amount against the return of vehicle was discussed kindly request you to visit the showroom with the vehicle and get the issue settled as per discussed.

Kindly let us know when we can expect you and make our MD available.

Regards.”

7.     When this is taken into consideration, it becomes clear that OP has admitted to get the vehicle registered and insured for the amount it has received i.e. Rs.76,000/-. From the said letter, it also becomes clear that OP had telephonic conversation with the complainant and had agreed to refund the amount in case it could not get the vehicle registered. Probably due to the change in the act from 01.04.2020 regarding registration of Bharath IV to Bharath VI vehicle, the said vehicle was not registered by the OP. Though the sale had taken place in the month January 2020, OP was having ample time to get it registered and insured.  It is astonishing to know as to how the insurance company has issued the insurance without mentioned the RC number of the vehicle.  Whereas, it has mentioning only the engine number and chassis number and year of manufacturing as 2020. The problem would arise when the claim is made and it would be easy for the insurance company to repudiate the insurance for want of vehicle registration number. 

8.     Even inspite of it, even after 5 months, OP did not get the vehicle registered. In view of this, we are of the opinion that there is deficiency in service on the part of OP in vehicle not insured properly, and get it registered with the registration authorities as it had undertaken to do it. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

9.     Complainant has sought for the replacement of the two wheeler Bharath Stage VI emission norms along with number plate, insurance  and registration to be done by OP by taking back the vehicle already sold to him which is Bharath Stage IV emission. In the alternate complainant has also sought for refund of the cost of the vehicle i.e  Rs.76,000/- along with interest at 24% per annum and also the difference in the cost of the vehicle which he has to purchase, of the same model and colour and Bharath Stage VI emission and also claimed Rs.2,50,000/- damages for causing him mental agony , hardship and for not using the vehicle he purchased from OP for want of registreation.

10.   For the reasons stated while answering Point No.1, it becomes clear that OP failed to get the vehicle registered even having ample time i.e. before 01.04.2020 the day on which the Government of India banned registration of Bharath IV emission vehicle. In view of the same unless and until the vehicle is registered with the RTO authorities, the same cannot be taken on road and use the same for the purpose of the complainant. In view of this, and in view of the change in the act and rules, the old vehicle cannot be registered at present. Hence in the interest of the complainant, it is reasonable to order the OP to replace the vehicle sold to the complainant with a new vehicle of Bharath VI emission complaint and also get it registered with the RTO and also get it insured as agreed in respect of the earlier vehicle and also provide the HSRP number plate within 60 days from the date of receipt of this order failing which to refund Rs.76,000/- along with interest @ 18% per annum to the complainant. 

11.   The act of OP in not registering the vehicle in time made the complainant to keep the vehicle idle, has caused him mental agony and physical hardship for which we direct the OP to pay Rs.35,000/- as damages and for having made the complainant to approach this forum filing this complaint, we direct the OP to pay a sum of Rs.10,000/- as litigation and other expenses and  we answer POINT NO 2 PARTLY IN THE AFFIRMATIVE for the following:-

ORDER

1. The Complaint is partly allowed with cost.
2. OP i.e. SCHMEAR PVT. LTD., is hereby directed to hand over new two-wheeler of same model and register the same with new Insurance and HSRP number plate and also handover all the documents within sixty (60) days. Failing which OP is hereby directed to refund a sum of Rs.76,000/- to the complainant along with interest 18% per annum from 11/01/2020 till the payment of the entire amount.
3. In case replacement of the vehicle is not made by OP and amount as ordered is paid to the complainant with interest, then complainant is directed to handover the two wheeler of Bharath IV Emission to OP then and there itself.
4. Further OP is hereby directed to pay a sum of Rs.35,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses.
5. OP is hereby directed to comply the above order within 60 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.
6. Send a copy of this order to both parties free of cost.                 

     Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 18^th day of MARCH 2022)

MEMBER                   MEMBER                  PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the two receipts.

Ex P2: Copy of the Delivery note.

Ex P3: Copy of Insurance policy.

Ex P4: Certificate u/s 65B of the Indian Evidence Act.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:- Nil -

Copies of Documents produced on behalf of Opposite Party/s

 - Nil -

MEMBER                   MEMBER                  PRESIDENT

RAK*