Torque Automotive Pvt. Ltd vs Dinesh Bhanwarlal Daga

THIS revision petition has been filed by the petitioner against the order dated 9.5.2013 passed by Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (in short, ''the State Commission '') in Appeal No. 3170 of 2012 - Torque Automobiles (P) Ltd. Vs. Dinesh Bhanwarlal Daga by which, while dismissing appeal, order of District forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent purchased car Skoda Laura on 8.12.2010 from OP No. 1/Petitioner and made payment of Rs.13,18,000/ - and took delivery of the car. This car was manufactured by OP NO. 3. Warranty card of OP No.3 was not given to the complainant. During the warranty period, service was done on 6.4.2011 and it appeared that colour of the door of the car was changing and there were other complaints. OP changed oil, lubricants etc. for which Rs.7,924/ - was paid by the complainant, but payment receipt was given in the name of Mihirbhai Maheshbhai by OP No. 1. Service book of car was also not given inspite of demand and legal notice. Later on, service book was given by OP No. 1, but it was general in which Skoda Superb, Skoda Laura, Skoda Yeti was written. This service book does not bear any stamp. It appears that previously this car was sold to Mihirbhai, so service book of the car was not given to the complainant and OP followed unfair trade practice. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP No. 1 and 2/petitioners filed reply and submitted that the complainant had seen and inspected car and after being satisfied purchased the car. It was admitted that warranty book was not given at the time of delivery of the car, but car was repaired and serviced. It was further submitted that this car was first allotted to Mihirbhai, but for some reason, he had cancelled the booking, but due to mistake of the staff, name of Mihirbhai could not be deleted and bill was generated in the name of Mihirbhai. It was further submitted that now service book has been delivered to the complainant and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP No. 1 and 2 to give new car to the complainant in place of old car or reimburse amount of the car and further awarded compensation of Rs.5,000/ - and Rs.2,000/ - as litigation expenses. Appeal filed by the petitioners was dismissed by leaned State Commission vide impugned order against which this revision petition has been filed. Heard learned Counsel for the petitioners and respondent in person finally at admission stage and perused record.

LEARNED Counsel for the petitioner submitted that car sold by the petitioner to respondent was new one and complaint has been filed only on the basis of suspicion due to service bill generated in the name of other person in whose name the car was earlier booked. It was further submitted that there was no complaint of change in colour of the car; even though, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. Respondent in person submitted that complaint was filed not on the basis of suspicion, but on the basis of delivery of old car and order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

PERUSAL of record reveals that as per retail invoice, car was sold by petitioner to respondent vide bill dated 14.12.2010 and Engine No. TMBCNE reflected in the retail invoice has been shown in registration certificate issued in favour of respondent. In that registration certificate, car has been shown as new and its month and year of manufacture has been shown as August, 2010. Respondent has not placed any evidence on record to substantiate his arguments that car sold by the petitioner to him was old one. Learned Counsel for the petitioner has also placed reliance on Rule 42 of the Central Motor Vehicles Rules, 1989 according to which, no holder of a trade certificate shall deliver a motor vehicle to a purchaser without registration, whether temporary or permanent. Had petitioner sold this vehicle earlier to Mihirbhai, respondent should have placed on record registration certificate of this vehicle issued in favour of Mihirbhai. In the absence of any such registration certificate and any expert opinion, it cannot be held that vehicle sold by the petitioner to respondent was old one. It is not disputed that first service bill issued by the petitioner to the respondent was in the name of Mihirbhai. It appears that only on the basis of this invoice respondent presumed that this car was previously sold to Mihirbhai. Respondent has already admitted in his reply that previously Mihirbhai booked this car, but as he cancelled his booking, his name was not deleted by mistake of the staff. It appears that only on this ground, bill for service charges was issued in the name of Mihirbhai instead of respondent, but this cannot be the sole basis for holding that vehicle delivered by petitioner to respondent was earlier sold to Mihirbhai.

RECORD further reveals that service book has also been given by the petitioner to respondent and time to time services have been given by the petitioner. Merely because service book is not specifically for Skoda Laura, it cannot be presumed that service book of this vehicle was given by the petitioner to so called earlier purchaser Mihirbhai.

JOB card dated 5.4.2011 also does not reveal complaint of change of colour of door of the car. Respondent has also not placed on record any evidence in support of his contention that colour of door of the car has changed. In such circumstances, it cannot be presumed that colour of door of the car changed and petitioner sold the old car. It appears that respondent has filed complaint alleging unfair trade practice only on the basis of suspicion. Learned Counsel for the petitioner has placed reliance on IV (2008) CPJ 18 (SC) - KLM Royal Dutch Airlines Vs. Director General of Investigation and Registration in which it was held that - "Element of unfair trade practice definitely stands at a higher and onerous platform than the deficient service. For making out a case of unfair trade practice an element is involved to the extent of making false and misleading statement and representation and in order to make a case of unfair trade practice such ingredients, which are part and parcel of the concept of unfair trade practice has to be alleged and must be proved and established.

IN the case in hand, respondent could not prove any unfair trade practice on the part of petitioner and learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and in such circumstances, revision petition is to be allowed.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and impugned order dated 9.5.2013 passed by learned State Commission in Appeal No. 3170 of 2012 - Torque Automobiles (P) Ltd. Vs. Dinesh Bhanwarlal Daga and order of District Forum dated 16.7.2012 is set aside and Complaint No. 390/2011 - Dinesh Bhanwarlal Daga Vs. Torque Automobiles (P) Ltd. is dismissed. There shall be no order as to costs.