BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    19^th DAY OF JUNE 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to refund the difference amount of Rs.8,326/- towards insurance offered by OP to the complainant towards insurance premium of the complainant’s vehicle and delivery charges to refund Rs.9,670/- challan amount paid to the RTO office, to pay damages of Rs.1,00,000/- for deficiency in service, mental agony, financial loss, harassment, hardship caused to the complainant with interest @ 18 p.a and such other reliefs.

2.      The case of the complainant to be stated in brief is that:

The complainant submits that, the complainant has purchased a new KWID Climber 1.0 Car from the showroom of OP Company situated at No.76/1, Allasandra, Opp. to Jakkur Flying Training Center, Yelahanka, Bengaluru-64 on 19.03.2018 (Engine No.E104803 and chasis No.MEEBBA007J1561493) for a total cost of Rs.5,60,936/- and the said vehicle has been delivered to the complainant from the OP showroom.  That even though there is lot of competition and choice in the automobile market the complainant chosen the OP product believing higher productivity and service from the OP end.  But, it is very unfortunate to mention here that the complainant is not satisfied with regard to the following narrated items and services rendered by OP firm to him.  That OP officials while explaining the costs and services informed the premium of the insurance on the said vehicle as Rs.19,256/-, excluding nil depreciation of Rs.3,196/-.  Surprisingly the premium that has been paid by OP Company to the insurer company towards the said vehicle as per insurance policy vide policy No.NF179760 is only Rs.14,126/- including nil depreciation premium of Rs.3,196/- which is separately paid by the complainant.  OP did not explain the difference amount collected and kept quiet in this regard even though the complainant repeatedly enquired about the same.  The OP did not arrange any meeting with insurance officials and the complainant and thus the said insurance did not cover life tax, even though the complainant had paid excess amount towards the said premium.  Further at the time of deliver of the said vehicle the OP collected an amount of Rs.9,670/- vide invoice No.RIYHKSR180S00861 dated 19.03.2018 towards the delivery charges, whereas the OP did not provide any bifurcation for the same except only for Rs.737/- towards the challan paid by them in the RTO office vide challan No.EP001774706.  OP turned deaf ears regarding both issues and the complainant put to monetary loss in the above two issues.  OP has committed deficiency in service and also deviation of Code of conduct of Corporate Agents (as per IRDA guidelines).  The complainant is put to great hardship, loss and injury.

That the complainant has contacted the OP and communicated the OP by way of complaint and emails but the OP failed to respond to the same.  Later the OP has sent a mail stating that, THIS IS A MATTER OF COMMERCIAL/BUSINESS UNDERSTANDING BETWEEN THE DEALER AND INSURANCE COMPANY.  The OP is not supposed to respond in such manner as a very material fact that should not be forgotten that the business comes out of customer satisfaction.  Further the OP attitude in this regard also propagates wrong message into the market.  The complainant is a senior citizen and the OP has cheated the complainant.  OP act clearly shows their malafide attitude to cheat the complainant and thus the OP has committed deficiency in service.  That the complainant has undergone great hardship, loss and injury due to the deficiency in service by OP which OP is liable to pay compensation to the complainant.  The complainant has caused a legal notice dated 10.05.2018 to OP by RPAD and the said legal notice was served on OP on 14.05.2018 and OP has not complied the notice.  The act of OP is total unethical, unfair trade practice committed by the OP making them liable for both special damages and general damages and the OP would make themselves liable for criminal action.  Hence the complainant constrained to file this complaint.

3.      After issuance of notice, OP did appear and filed version.  By way of filing version OP has denied the claim of the complainant stating that at the time of delivering the said vehicle complainant has availed the benefit of “Free Comprehensive Insurance” and Free Extended warranty benefit.  In this context he has paid Rs.3,196/- for Bumper to Bumper coverage insurance.  Before availing the said insurance the sale executives of OP has duly informed the complainant about the Bumper to Bumper coverage after satisfying himself, complainant has agreed to avail this benefit, hence the allegations of complainant that the Respondent did not explain the difference amount collected and kept quit is strictly denied.  Further submits that, before proceedings for insurance after getting entire information and as said earlier after satisfying fully complainant has accepted and gave permission/authorization on 15.03.2018.  Further stated that collecting Rs.3,916/- OP has gave the receipt/debit note which has been entered into books of account.  Hence the allegation of complainant that the complainant had paid excess amount towards the premium is far away from truth.  OP admits that it has taken an amount of Rs.9,670/- which includes CGST of Rs.737-50 and SGST of Rs.737-50 in all Rs.9,670/- and the said amount has been collected for the expenses viz, Agency commission, transport charges from stack yard to show room, Tax to Government, RTO staff conveyances, washing and polishing expenses, fuel expenses, other incidental expenses which going to occur.  This fact has been clearly informed to the complainant.  When such being the fact there is no any deficiency of service on its part.  Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Narasimhan G.N, Deputy General Manager (Admin) of OP submitted evidence by way of affidavit.  Complainant produced certain documents.  Both parties submitted their written arguments.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1  We have gone through the contents of the complaint found at para.7 wherein it is stated that;

“The complainant is a senior citizen and the respondent has cheated the complainant.  The respondent act are clearly shows their malafide attitude to cheat the complainant and thus the respondents have committed deficiency in service.”  

8. If the above pleading is taken into consideration the respondent has cheated the complainant with malafide intention.  To prove the case of the complainant on the basis of the allegations of cheating this Forum has no jurisdiction.  Since the procedure being adopting by this Forum is in the summary nature.  In this context we placed following decisions:

1. I (1993) CPJ 88 (NC) in the case of N.Shivaji Rao vs. M/s.Daman Motor company & ors.,

Consumer Protection Act, 1986 – Sec.2(1)(c) - complaint – fraud and cheating – State Commission declined to adjudicate the complaint because of complicated questions including fraud and cheating – hence appeal.

Held: It is evident from above that it is not a case of supply of defective goods or of deficiency in rendering service. Prima facie it is a case of fraud and cheating as alleged by the appellant – Complainant himself. Consequently, the factum of fraud and cheating would have to be established first before a consumer forum can arrive at a finding of deficiency of service. We agree with the view expressed by the State Commission that the Consumer Protection Act and the machinery there under cannot be effectively utilized for determining complicated questions of the fraud and cheating. The appeal is rejected and the order of the State Commission is confirmed.

2. I (1996) CPJ 283 in the case of Dr.Sudhir G Rao vs. Kokila & Ors

Consumer Protection Act, 1986 – Section 2(1)(c) – complaint – fraud – complaint filed – allegations of fraud and cheating – whether investigation can be done by the Redressal forum ? – No

Held: As per the averments made in the complaint, the case set up by the Complainant is of fraud regarding which no investigation can be done by the Redressal forums.

Held further: In the present case, as referred above, deficiency of service on the part of the Ops is only incidental to the act of fraud and cheating alleged to have been committed by the Ops.

So, having regard to these facts, we are constrained to hold that this complaint is untenable.

3. Hon'ble Karnataka State Commission, Appeal no.1109/2011 dtd.02.08.12 in the case of M/s.Praveen Gift centre vs. Smt.Jyothi Jain, wherein it is held that:

5. The LC for the appellant has submitted that the complaint filed by the Complainant is not maintainable. The DF has no jurisdiction to entertain the complaint as the respondent/Complainant has alleges fraud and cheating played by the appellant in selling the goods for wrongful gain and to cause wrongful loss to him. He further submitted that the order passed by the DF is against the documents that have been produced by the appellant before it as the invoices were prepared in the name of a third person.

6. Admittedly, the Complainant/respondent has purchased four mobile handsets from the appellant/Op in all for Rs.94,150/- on 07.11.09. Admittedly, the invoices were raised in the name of Mr.Sandeep. If at all, the respondent was unaware of Mr.Sandeep she should not have accepted the bills. Moreover, both the parties agrees that the respondent has purchased the mobile sets in the name of third person. That means it creates a doubt that the Complainant/respondent has purchased 4 mobile handsets for commercial purpose and not for her own use. It is not the case of the respondent that the mobile handsets which were purchased by her are suffering from any manufacturing defects. The only grievance is that the Op/appellant has duped and cheated her. If at all, there is fraud and cheating played by the appellant as alleged by the respondent/Complainant for which she is at liberty to approach appropriate court for relief. DF has no jurisdiction to entertain the complaint. In the result, we pass the following:

ORDER

Appeal is allowed. The impugned order is set aside. The complaint filed by the Complainant is dismissed with a liberty to approach appropriate court for relief.

9. Hence in the light of the decision we come to the conclusion that, this Forum has no jurisdiction to try and dispose this case.  The only option left open to the complainant is to approach the competent court of law having got jurisdiction to try the same.  Accordingly we answered the point No.1 in the negative.

10. Point No.2:-  In view of our findings on point No.1 this issue does not survive for consideration.

          11. Point No.3: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed.  Anyhow an option is left open to the complainant to approach the competent court of law having got jurisdiction to try the same.  Both parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 19^th day of June 2019)

MEMBER                                                            PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 06.02.2018.

Sri.Shivarama Arnady

Documents produced by the complainant:

  Witnesses examined on behalf of the Opposite party dated
  09.01.2019.

                Sri.Narasimhan G.N.  

Documents produced by Opposite Party – Nil.

MEMBER                                                             PRESIDENT

Vln*