SANJEEV THAPAR vs KRISHNA AUTOMOBILES

IN this complaint, the main grievance of the complainant Mr. Sanjeev Thapar is that he booked a new Fiat Palio car and deposited the due amount with O.P. No. 1 - Krishna Automobiles, INdustrial Area, Chandigarh. The Fiat Palio car of Tangerine Mist Colour for which the complainant had given a specific choice, was not available with O.P. No. 1 who transferred the matter for delivery of the car of said colour and description to O.P. No. 2 - M/s. Sandhu Automobiles Pvt. Ltd., Ludhiana. The car of Fiat Palio Make of the said colour and description was available at the show room of O.P. No. 1 and it was delivered to the complainant who found to his dismay that the car was not a new one but it was an old car which had been delivered to him and in this manner, he has been cheated and fraud committed on him by the O.P. Nos. 1 and 2.

THE complainant had approached O.P. No. 3 - I.C.I.C.I. Bank, Sector 9, Chandigarh for obtaining a loan for purchasing the said car and the said Bank has also been impleaded as O.P. No. 3. THE District Transport Authority, Distt. Ludhiana has also been impleaded as O.P. No. 4. It was, inter alia, alleged in the complaint that a temporary number of the Fiat Palio car was issued being PB-10-AD-temp./2002/7019 which was effective for one month from 26.6.2002 to 25.7.2002 whereas it ought to have been issued for the period w.e.f. 12.7.2002 to 11.8.2002. This date of 12.7.2002 has been taken from Annexure C-2, a letter of thanks issued by O.P. No. 1 - Krishna Automobiles and addressed to Shri Sanjeev Thapar. The temporary permit, however, mentions the date at item No. 11 as valid for 30 days i.e. from 26.6.2002 to 25.7.2002 and this Temporary Certificate of Registration was issued by O.P. No. 2 - M/s. Sandhu Automobiles Pvt. Ltd. The complainant claimed damages of a sum of Rs. 5,96,330/- comprising of the costs of vehicle as Rs. 3,70,900/-. Rs. 6,000/- was claimed as interest for one month from 12.7.2002 to 24.8.2002. A sum of Rs. 3,000/- was claimed as documentation charges. Rs. 16,430/- were claimed as two instalments @ Rs. 8,215/- each. Lastly, a sum of Rs. 2,00,000/- were claimed as damages for mental and physical agony and other losses.

Upon issuance of notice of the complaint, the O.P. Nos. 1 and 2 filed separate replies wherein they admitted the introductory facts regarding the booking of the Fiat Palio car of the aforesaid colour and description and about the same not being available with O.P. No. 1 who sent it to O.P. No. 2. O.P. No. 2 has in the written statement mentioned that the case of the said colour and description was supplied to the complainant on the joint request of the complainant and the O.P. No. 1, as the complainant wanted the delivery of the car in papers at Chandigarh. It was alleged that the complainant never visited Ludhiana Showroom of O.P. No. 2 and there was no question of the complainant being busy getting the car ready for delivery. The papers were prepared at Ludhiana and were delivered to the complainant directly at Chandigarh. The complainant read the papers and thoroughly went through the contents of the invoice, warranty and temporary registration and accepted the delivery of the car and papers with open eyes and now he is estopped from raising frivolous objections. The allegations of fraud and cheating were specifically denied by both the O.P. Nos. 1 and 2. It was contended that these allegations did not constitute deficiency in service on part of O.P. Nos. 1 and 2 and as such the complaint was not cognizable before the Consumer Disputes Redressal Agencies under the provisions of the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act].

O.P. No. 3 - I.C.I.C.I. Bank filed reply wherein it was contended that the complainant had applied for loan of a car of Make Palio Model ELX priced at Rs. 4,25,756/-. The Bank considered the representation made by the complainant and after perusing Income-tax Returns, the Company sanctioned the loan of Rs. 3,60,000/-. This amount was sanctioned on the representation of the complainant that he would deposit the remaining amount of the price difference from his own account. It was contended that in case the complainant had applied for a loan of the car of make Palio 1.2 EL MS priced at Rs. 3,70,900/-, the Bank would not have sanctioned the said loan to him. It was contended that the complainant has not come before this Commission with clean hands. The complainant was required to deposit a sum of Rs. 85,756/- as the balance amount towards the said car to the Dealer as the margin money payable by him. This margin money was a primary consideration for the sanction of the loan to the loanee as the same would go a long way to secure the investment of the Company and show the bona fides of the loanee. It was alleged that the loanee had misled the Company by submitting false and forged documents. The loan was fully availed of and the loanee took delivery of the car and the same was to be registered with hypothecation in favour of I.C.I.C.I. Limited, which has the first and exclusive charge over the vehicle and the same shall stand as security for the due repayment and payment by the borrower of the loan facility granted. The Bank further alleged that the loanee failed to abide by the terms and conditions of the agreement and all the cheques on presentation to the Bank were received back as un-encashed due to insufficient funds in the account of the loanee. Only one instalment which was paid as advance has been encashed. The jurisdiction of the State Commission was also challenged on the ground that the rights arising out of the contract between the complainant and the Bank is in the nature of a contractual relationship and there is no deficiency on the part of O.P. No. 3. O.P. No. 4 did not file any reply. The O.P. No. 1 filed evidence in the shape of affidavit of Shri Sumit Passi, Managing Partner, M/s. Krishna Automobiles while O.P. No. 2 filed affidavit of Shri Ajay Pal Sandhu, Managing Director, Sandhu Automobiles Pvt. Ltd. O.P. No. 3 filed affidavit of Shri Kamal Mirg, Principal Officer, I.C.I.C.I. Bank Ltd., Sector 9, Chandigarh.

THE complainant sought time to file his evidence in the shape of affidavit but he failed to file the same. THE learned Counsel for the complainant placed on record a communication which he made with the complainant asking him to file his affidavit in this case. THE learned Counsel for the complainant informed this Commission on 10.1.2003 that despite the communication made to the complainant, the complainant has not responded and contacted and has consequently did not file any affidavit. THEreafter, the complaint case was fixed for hearing arguments. At the time of hearing of the arguments, the learned Counsel for the complainant mainly confined his case to the allegations of fraud and cheating committed by O.P. Nos. 1 and 2 in selling an old car as a new car. These averments regarding fraud and cheating by selling an old car as a new car have been specifically and categorically denied in the affidavits of the witnesses of O.P. Nos. 1 and 2 namely Shri Sumit Passi and Shri Ajay Pal Sandhu. The complainant, however, did not file his affidavit and discharged the burden placed on his shoulders to prove as a fact that he was duped and deceived in the manner as alleged in the complaint case. In nutshell, there is no evidence much less, reliable one to show that the O.P. Nos. 1 and 2 delivered an old car in place of a new car of Fiat Palio Make and description as mentioned in the complaint case and the documents placed on record. Apart from it, the main contention of O.P. Nos. 1 and 2 is that the complainant was sent the car as well as the relevant connected papers relating to the sale of the car at Chandigarh and delivered to him as he wanted registration of his car at Chandigarh. Since the complainant has failed to prove his averment regarding fraud and cheating practised upon him by the O.P. Nos. 1 and 2 and further since this Commission under the limited summary jurisdiction given to it under the C.P. Act, cannot examine and adjudicate the averments relating to fraud and cheating, it will not be appropriate for this Commission to go into this aspect and it would be more in the interest of the consumer/complainant that he is relegated to his remedy of approaching a Civil Court of competent jurisdiction by filing an appropriate suit regarding the redressal of his grievances and claiming appropriate reliefs against the O.Ps. particularly O.P. Nos. 1 and 2. So far as O.P. No. 3 is concerned, it has no direct role in this dispute regarding the supply and delivery of the car to the complainant and as a matter of fact, O.P. No. 3 is the concerned Bank which had provided funds by sanctioning loan to the complainant under the terms and conditions referred to above. The O.P. No. 3 cannot be said to be the provider of service to the complainant in this regard and deficiency in service cannot be fastened on O.P. No. 3. Needless to say that O.P. No. 3 has its own remedy against the complainant so far as the recovery of the unpaid amount of loan is concerned.

IN view of the foregoing discussion, we disposed of this complaint by relegating the complainant of his remedy of approaching a Civil Court of competent jurisdiction by filing an appropriate suit regarding the redressal of his grievances, if so advised, leaving the costs of this complaint case to be borne by the parties who have put in appearance before this Commission. Copies of this judgment be sent to the parties free of charge. Complaint disposed of.