Managing Director M/S Fortune Cars Pvt Ltd vs Harikrishan S Hirani

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 29.09.2014 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in FA No. A/11/583, vide which, while dismissing the appeal, the order passed by the District Forum, Thane dated 07.04.2011, allowing the consumer complaint no. 130/2010 filed by the present respondent was upheld.

BRIEFLY stated, the facts of the case are that the respondents No. 1 and 2 / complainants went to the showroom of the petitioner/OP No. 1 and booked a ''Tata Indigo Manza'' vehicle by paying advance sum of Rs. 1,00,000/ - in cash. Thereafter on 27.03.2010, they cancelled the booking of ''Tata Indica Manza'' and instead, booked another car ''Fiat Grand Punto Di Emotion Pack'' and paid a further sum of Rs. 1,60,000/ - to the petitioner/OP -1. The complainant then obtained loan from HDFC Bank which was disbursed to them on 08.05.2010. A total amount of Rs. 6,31,549/ - was paid by complainant no. 1 to OP 1 on 08.05.2010. The delivery of the car was taken by Mrs. Hirani, wife of complainant no. 1 and mother of complainant no. 2 on 16.05.2010. However, the car was delivered without RTO registration and they were asked to bring the car back on 18.05.2010 for registration. While taking the delivery of the car, the complainants found stains on bumpers of the car and also found that polishing was not done and some other minor problems were also there. They suspected that a used car had been passed on to them, although they had booked top -end model for the car. They were given insurance policy for the car which was dated 04.04.2010 and valid till 03.04.2011. The said policy mentioned the year of manufacture of the car as 2010. However, the OP 1 and 2 had issued a ''vehicle delivery acknowledgement note'' which mentioned the year of manufacture as 2009. It is stated by the complainants that the said car was complying with Euro -III emissions, whereas the OP could not have sold the car not complying with Euro -IV emissions with effect from 01.04.2010. The complainant then sent legal notice to the OPs and filed consumer complaint in question, demanding that the entire amount of Rs. 6,31,549/ - should be refunded to them alongwith interest @18% p.a. from Feb. 2010 and further compensation of Rs. 1,00,000/ - should be given for mental torture and inconvenience and a compensation of Rs. 2 lakh be given for negligence alongwith Rs. 50,000/ - as litigation cost.

THE complaint was resisted by the petitioner/OP -1 by filing reply before the District Forum in which it was stated that the matter should have been referred for arbitration and also the District Forum Thane had no jurisdiction to deal with the matter. The OP -1 further mentioned that the car was booked in the name of complainant no. 2, Gaurav Hirani but the loan had been taken in the name of Harikrishan Hirani. The complainant was given a car with special discount of Rs. 35,000/ -. The car could not be registered in time as the complainant wanted the car to be registered in the name of Gaurav whereas the loan was in the name of Harikrishan Hirani. The registration process could not be completed as the complainants failed to take the car to the office of the RTO. The OP -1, in their written statement, however, have not made any mention of the issue whether 2009 -model car was supplied to the complainants. Op -2 Tata Motors and Op 3 and 4, M/s. Fiat India also filed their written version saying that there was no lapse on their part. The District Forum after considering the material produced before them concluded that the Op -1 had sold a car manufactured in the year 2009, by pretending it to have been manufactured in 2010 and thus cheated the complainant. The District Forum directed Op -1 to pay the amount of Rs. 6,31,549/ - alongwith interest @10% p.a. and take the car back into their possession and also to pay Rs. 50,000/ - as damages alongwith Rs. 10,000/ - as cost of litigation.

BEING aggrieved against the order of the District Forum, the petitioner/OP -1 challenged the same before the State Commission. However, the State Commission dismissed the appeal upholding the view that the petitioner had passed on a car manufactured in 2009 to the complainant making it appear that it was a car manufactured in the year 2010. Being aggrieved against this order, the petitioner is before us by way of the present revision petition.

AT the time of hearing, the learned counsel for the petitioner submitted that the complainants have admitted in the complaint itself that the ''vehicle delivery note'' did mention the year of manufacturing as 2009. In fact, the petitioner had allowed them discount of Rs. 35,000/ -, only because of the fact that the vehicle was manufactured in the year 2009. The order form for the vehicle also carries the remarks "Old vehicle 2009". The gate pass issued for the delivery of the vehicle also mentions the year of manufacture as 2009. However, all these documents were not duly considered by the consumer fora below. Hence, the orders passed by them were not in accordance with law and should be set aside and the consumer complaint should be dismissed.

RESPONDENT no. 1 and 2 submitted their arguments orally and also gave their written submissions. They stated that they were never told that the vehicle was manufactured in the year 2009. Moreover, the vehicle could not be registered with the RTO, because new Emission norms became applicable with effect from 01.04.2010. The petitioner had not bothered to reply to numerous complaints filed by the respondents. The orders passed by the consumer fora below were in accordance with law and relief had been rightly allowed to the complainants. The complainants further stated that the insurance policy which had been obtained by the petitioner, wrongly mentions the year of manufacture as 2010. The discount of Rs. 35,000/ - was offered by the petitioner on account of promotion of their sale on the occasion of auspicious day, i.e., "Akhaya Trithya" every year. The discount was not related to the sale of used and old model car. The complainant had not been able to use the vehicle, because the registration could not be done. It was the duty of the petitioner to fulfil the requirements of the Motor Vehicles Act before delivering the vehicle to the consumer. The impugned car was lying idle for the last 5 years, i.e., since the date of its purchase in 2010, due to non -registration and incurring depreciation and parking and security cost. The revision petition should therefore be dismissed and the orders passed by the consumer fora below upheld.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

THE main issue that merits our consideration is whether the petitioner supplied a 2009 vehicle to the complainants, giving them the impression to believe that it was a 2010 vehicle. The petitioners have taken the plea that they allowed a discount of Rs. 35,000/ - on the price of the vehicle to the complainants, since it was 2009 -model vehicle. On the gate -pass and other documents, it was mentioned that the vehicle was manufactured in the year 2009. However, the petitioners have not been able to explain as to how the insurance policy mentions the year of manufacture of the vehicle as 2010. Admittedly, the insurance policy was obtained by the petitioner even before the delivery of the vehicle. The delivery of the vehicle was given on 16.05.2010, whereas the Insurance Policy issued by Future Generali India Insurance Company Limited is valid from 04.04.2010. The interalia presumption is that the year of the manufacture was wrongly mentioned by the petitioners, whether deliberately or otherwise, at the time of taking said insurance policy. It is made out, therefore, that the allegation that the petitioner wanted to give impression to the complainant that the vehicle was a 2010 -model vehicle is true.

FURTHER , the petitioners have taken the plea that the booking order form mentions the words ''Old Vehicle 2009'' on its top, which implies that the booking was made for the old vehicle only. The contention of the complainants is that these words were subsequently written in hand by the petitioner. In this regard, it may be observed that the written reply filed by the petitioners before the District Forum nowhere mentions that the petitioner sold the said car after telling the complainants clearly that it was a 2009 -model car. The petitioners have stated as follows in their written reply: - "The complainant at the time of booking, selected a car which was offered and available with a special discount on the retail price (Rs. 35,000) alongwith prevailing schemes."

FROM the above, it is clear that the complainants selected the car on which the discount of Rs. 35,000/ - was available, but it is also very clear that they were never told by the petitioners that it was a 2009 vehicle.

FOR the reasons stated hereinabove, we are in agreement with the Fora below that the petitioner is required to refund the entire amount of Rs. 6,31,549/ - which it had received from the complainant alongwith interest on that amount @10% p.a. and take back the car which the petitioner had delivered to the complainant. However, considering all the facts and circumstances of the case including that interest @10% p.a. has been awarded to the complainant, we do not find any justification for payment of any compensation to them. We, therefore, modify the orders passed by the Fora below to the extent that the petitioner shall pay a sum of Rs. 6,31,549/ - alongwith interest on that amount @10% p.a. from the date the said amount was paid to them, alongwith cost, quantified at Rs. 10,000/ -, against the delivery of the car which they had supplied to the complainants. If, however, it is found that the complainants have been using the car in question, after 18.05.2010, the petitioners shall only pay 25% of the price of the car as compensation to the complainants.