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Shailesh Champalal Sharma v/s M/s. Nangiya Motors, Through Branch Manager, Ravi Lokanlal Gupta, Gondia & Others


    First Appeal No. A/112 of 2012

    Decided On, 21 September 2021

    At, Maharshtra State Consumer Disputes Redressal Commission Nagpur

    By, THE HONOURABLE MR. A.Z. KHWAJA
    By, PRESIDING MEMBER

    For the Appearing Parties: -----



Judgment Text

1. Appellant- Mr. Shailesh Champalal Sharma has preferred the present appeal feeling aggrieved by the order dated 31/01/2012 passed by the District Consumer Forum, Gondia, in consumer Complaint No. 44/2011. (Appellant hereinafter shall be referred as complainant and respondents as O.P. for the sake of convenience )

2. Short facts leading to the filing of the present appeal may be narrated as under:-

Complainant - Mr. Shailesh Champalal Sharma claims to be resident of Navegoan Bandh, Tahsil Arjuni Morgaon, District Gondia and has alleged that he purchase Tata Winger car from O.P. No.1- M/s. Nangiya Motors, on 03/07/2010. The said car was manufactured by the O.P. No. 3- M/s. Tata Motors. After the purchase of the car same was duly registered with the RTO. Complainant has alleged that when he received the RC Book and sale certificate from the O.P. No. 1- M/s. Nangiya Motors he came to know that the car purchased by him was manufactured in the month of September-2008 i.e. two years prior from the date of purchase. The complainant had contended that the said car purchase by him cannot be called as new car but can be counted only as second hand car. Further the insurance company also counted the life of the car as 14 years from the date of manufacture. O.P. No.1 - M/s. Nangiya Motors had made a false representation to the complainant at the time of selling the car. Complainant also came to know that the finance was also not given for the car by Tata Finance Company. Complainant has therefore alleged that the O.P.Nos. 1&2 namely Nangiya Motors had indulged in unfair trade practice by selling second hand car and the loan was also obtained falsely from Indusland Bank. Complainant brought this fact to the knowledge of the O.P.Nos. 1&2- M/s. Nangiya Motors as well as O.P.No. 3- Tata Motors but there was no reply and so complainant was compelled to file the Consumer Complaint alleging deficiency in service on the part of the O.P. Nos. 1 to 3.

3. The O.P. Nos. 1 to 3 resisted the complaint by filing the written version. O.P.Nos. 1&2 have taken the usual defence that the complaint filed by the complainant was not tenable in law and also that there was arbitration clause in the agreement. The O.P.Nos. 1&2 have also denied the rest of the contentions . The O.P.Nos. 1&2 categorically denied that they had handed over the second hand Tata Winger Car to the complainant or that there was any deficiency in service .

4. The learned District Consumer Forum, Gondia then went through the contents of the complaint , evidence affidavit as well as documents filed by the complainant. The learned District Consumer Forum, Gondia also went through the written version and evidence affidavit filed by the O.P.Nos. 1&2 as well as O.P.No. 3. The learned District Consumer Forum, Gondia after appreciation of oral argument and documents adduced on record came to the conclusion that there was substance in the case of the complainant that the car purchased by the complainant was manufactured in the year 2008. The learned District Consumer Forum, Gondia also came to the conclusion that there was deficiency in service on the part of the O.P. Nos. 1&2 but there was no deficiency in service on the part of the O.P. No. 3. The learned District Consumer Forum, Gondia thus partly allowed the complaint and directed the O.P. Nos. 1&2 to pay compensation of Rs. 10,000/- to the complainant along with cost of Rs. 2000/- within a period of 30 days. Against this judgment and order dated 31/01/2012 passed by the learned District Consumer Forum, Gondia, the present appellant has come up in appeal.

5. I have heard, Mr. Robin Somkuwar, learned advocate appearing for the appellant as well as Mr. P.N. Kothari, learned advocate for respondent Nos. 1&2 and Mrs. Nandini Thete learned advocate for respondent No. 3. I have also gone through the written notes of argument filed by the appellant as well as respondent No. 3.

6. It is an undisputed fact that the present appellant – Mr. Shailesh Sharma had purchased one Tata Winger Car from the respondent Nos. 1&2 namely M/s. Nangiya Motors on 03/07/2010 and subsequently the said vehicle was also registered with RTO vide registration No. MH-35/P-1976. The respondent Nos. 1&2 in their written version have also not disputed this fact regarding sale of the Tata Winger Car to the appellant /complainant who was a consumer. It is submitted by Mr. Robin Somkuwar, learned advocate for the appellant /complainant that though the learned District Consumer Forum, Gondia had appreciated the fact that though the car came to be purchased in the year 2010 from the respondent Nos. 1&2 in fact the Tata Winger Car was manufactured in the year 2008 and therefore same was second hand car. Mr. Robin Somkuwar, learned advocate has drawn my attention to the fact that the present appellant /complainant had paid the entire consideration to the respondent Nos. 1&2 under the impression that the Tata Winger Car was manufactured in the year 2010 and not 2008. But later on appellant came to know that the said Tata Winger Car was being used as demo car and was actually manufactured in the year 2008. According to Mr. Robin Somkuwar, learned advocate for the appellant, the learned District Consumer Forum, Gondia had rightly given findings that the respondent Nos. 1&2 had committed deficiency in service by making a false representation that the said car was of the year 2010 but the learned District Consumer Forum, Gondia had committed error in not granting the Compensation as prayed by the complainant. Mr. Robin Somkuwar, learned advocate for the appellant /complainant has taken me through the various documents which are filed on record including one copy of sale certificate issued by the Nangiya Motors so as to show that the said car was manufactured in the year 2008. I have gone through the copy of Sale Certificate and same shows that the year of the manufacture of the car was September-2008. It is argued by the learned advocate for the appellant that once the learned District Consumer Forum, Gondia had come to the conclusion that the respondent Nos. 1&2 had indulged in deficiency in service then the learned District Consumer Forum, Gondia should have granted the Compensation of Rs. 3,00,000/- as prayed by the appellant /complainant after taking in to consideration the price of Tata Winger Car in the year 2008.

7. On the other hand, the learned advocate for the respondent Nos. 1&2 has supported the findings given by the learned District Consumer Forum, Gondia. In this regard it would be relevant to deal with the findings given by the learned District Consumer Forum, Gondia in the order dated 31/01/2012. If we go through the para 19 of the impugned order dated 31/01/2012 the same is self speaking. The learned District Consumer Forum, Gondia has come to the conclusion that there was deficiency in service on the part of the respondent Nos. 1&2 namely Nangiya Motors in handing over the car manufactured in the year 2008 to the complainant. The learned District Consumer Forum, Gondia has also referred to the fact that the complainant had claimed compensation of Rs. 3,00,000/- but has pointed out that the complainant has not placed on record any documents as to what was the price of Tata Winger Car in the year 2008 and price in the year 2010 when the complainant purchased the same. On the other hand the learned advocate for the respondent Nos. 1&2 has submitted that the respondent Nos. 1&2 had given a discount to the consumer.

8. I have also gone through the various documents filed by the complainant before the learned District Consumer Forum, Gondia. Complainant has heavily relied upon the receipt regarding the payment towards the price of car. Complainant has also placed on record one copy of Motor Proposal Form for taking insurance from the ICICI Lombard General Insurance Company as stated earlier. There is no dispute regarding the fact that the car purchase by the complainant was manufactured in the year 2008. However I find that the complainant has not placed on record any documents like price list to show that what was the price of the Tata Winger Car in the year 2008 as well as in the year 2010 and so the learned District Consumer Forum, Gondia has rightly referred to this aspect. Appellant/complainant has not given any explanation on this count. I therefore, feel that the learned District Consumer Forum, Gondia has rightly granted compensation of Rs. 10,000/- for the harassment caused to the complainant. During the course of argument Mr. Robin Somkuwar, learned advocate for the appellant /complainant has relied upon one judgment in the case of M/s.Techno Mukund Construction Vs. Mercedes Benz, India Limited and Anr. decided by the Hon’ble National Commission on 20 January, 2011 in original petition No. 298 of 2000. In that case also the facts were similar and used Mercedes Benz car was provided to the complainant. In the present case before us the learned District Consumer Forum, Gondia has rightly come to the conclusion regarding deficiency in service and so this judgment will not help much in the case of the appellant.

9. Respondent Nos. 1&2 have also taken a plea that the appeal filed by the appellant was itself not tenable as the appellant has already received the amount of compensation without any objection and so he has no right to file any appeal. On this aspect he has relied upon one judgment in the case of Branch Manager, The New India Assurance Co. Ltd. Vs. Mr. Hemand Anant Khanvilkar, decided by the State Consumer Disputes Redressal Commission, Mumbai but in that case the amount sanctioned and paid to the complainant was accepted by him towards full and final

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settlement and so it was observed that there was no deficiency in service on the part of the insurance company. But in the present case facts are quite different. The learned advocate for the respondent Nos. 1&2 has also relied upon judgments in the case of (i.) Lala Kapurchand Godha and others Vs. Mir Nawab Himayatalikhan Azamijah, reported in AIR 1963 Supreme Court 250 and (ii) Shrdi Sai Baba Mandir Regd Vs. Vijay Kumar and another, decided by the Hon’ble High Court of Punjab and Haryana but the same are not directly applicable to the facts of the present case. In the light of the aforesaid discussion I must hold that there is no error or infirmity in the findings given by the learned District Consumer Forum, Gondia. I am therefore unable to accept the contentions advanced by the learned advocate for the appellant and so I find that the appeal is devoid of substance. As such I proceed to pass the following order. ORDER i. Appeal is dismissed. ii. No order as to cost. iii. Copy of order be furnished to both the parties, free of cost.
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