Sudip Ahluwalia, Member

This Revision Petition has been filed against the impugned Order dated 14.11.2018 passed by the Ld. State Consumer Disputes Redressal Commission, West Bengal in First Appeal No. A/882/2017, vide which, the Appeal filed by the Respondent No. 1/ Complainant was allowed, and the Order of the District Forum dismissing the Complaint was set-aside.

2. The factual background, in brief, is that the Complainant/ Respondent No. 1, intending to purchase a new vehicle, exchanged his old Tata Sumo (Reg. No. WB04F-1334) with the Opposite Party No. 1/Petitioner on 06.01.2014. An invoice dated 11.01.2014 was issued for a Tata Venture GX model at a price of Rs. 5,65,921/-, inclusive of taxes. The Opposite Party No. 1, by letter dated 24.01.2014, informed Reliance Capital Ltd./ Opposite Party No. 2/ Respondent No. 2 that the exchange value of the old car was Rs. 86,000/-, and the said amount was adjusted through the loan disbursement. Thereafter, a loan of Rs. 4,80,000/- was sanctioned in favour of the Complainant on 31.01.2014, repayable in 47 EMIs of Rs. 13,330/- each.

3. The vehicle was delivered to the Complainant on 05.02.2014 along with the Insurance cover note, key, and tool kit. An additional payment of Rs. 25,000/- was made by the Complainant on the same date. However, discrepancies were soon noticed inter alia that the Insurance documentation (issued through Reliance Insurance and Bharti AXA) reflected inconsistent information regarding the model, manufacturing date, and Insured value. Additionally, the exchange value of the old vehicle was shown as Rs. 40,000/- instead of Rs. 86,000/-. Upon use, the Complainant discovered that the delivered car was not new but had already run 9,000 km. Moreover, contrary to representations, the seating capacity was 6+1 instead of 7+1.

4. Despite repeated assurances by the Opposite Party No. 1 to address the issue, no remedial action was taken. A letter requesting replacement of the vehicle was refused by the Opposite Party No. 1 on 24.02.2014, prompting the Complainant to forward the same to Tata Motors Ltd. The latter too failed to take any steps. Follow-up emails were sent, and in a reply dated 07.03.2014, the Opposite Party No. 1 admitted that the vehicle had run 9,000 km. The Complainant, expressing inability to continue paying EMIs under these circumstances, wrote to the Respondent No. 2 requesting a temporary suspension of repayment obligations. Aggrieved with the deficiency in service on the part of the Opposite Parties, he filed his Complaint before the Ld. District Forum, Unit - I, Kolkata.

5. The District Forum vide its Order dated 14.07.2017 dismissed the Complaint. The Complainant/ Respondent No. 1 then filed his Appeal before the Ld. State Commission, which vide the impugned Order allowed it with the following directions:

"the Appeal stands allowed on contest against the Respondent No. 1. Respondent No. 1 shall, within 40 days from today, either deliver a new car (mfd. 2018) of similar specification without asking for any extra amount from the Appellant and take back the disputed car in question from him at its own cost and peril or refund the entire amount paid by the Appellant, towards the car, e.g., insurance premium, registration charge, Rs. 86,000/- being the value of old car of the Appellant and repay the loan amount to the Respondent No. 2 in full,. The Respondent No. 1 shall also pay Rs. 1,00,000/- to the Appellant as compensation and litigation cost of Rs. 25,000/- within 40 days from this day, i.d., simple interest @ 9% over the amount of Rs. 1,00,000/- shall be payable to the Appellant by it. In case, the Respondent No. 1 repays the entire loan amount, the Respondent No. 2 shall return the amount paid by the Appellant as EMIs so far. The impugned order is hereby set aside."

6. Ld. Counsel for Petitioner has argued that the Respondent No. 1/ Complainant has suppressed material facts, especially the benefit of Rs. 1,50,000/- that was extended to him at the time of sale on account of the vehicle already having run 9,000 km. The Complainant knowingly accepted such benefit and now, with mala fide intent, seeks to evade EMI payments by filing a Complaint based on false and manufactured claims. The Complainant's conduct is further questionable as he made contradictory statements regarding the number of EMIs paid, initially stating only one instalment was paid, while in Memo of Appeal, specifically in Ground (iv), he claimed that three instalments were made; That the claim regarding receipt of the Rs. 86,000/- exchange value by Respondent No. 2 through the Complainant lacks evidentiary support, no document or cheque substantiates this assertion. The Complaint has been filed to mislead both the Financer and the Seller and is devoid of merit. Hence, the Petitioner prays that the Complaint deserves to be dismissed, as the Complainant failed to establish any deficiency in service or unfair trade practice warranting relief.

7. Ld. Counsel for Respondent No. 1 has argued that upon inspection, it was found that the subject car had already run 9,000 km, was a 6+1 seater, and had a manufacturing year of 2011, not 2013. These facts were confirmed through vehicle particulars issued by the Motor Vehicle Department and were later admitted by the Petitioner via email dated 07.03.2014. It was also revealed that the vehicle bore a different registration address, was of Bharat Stage-III emission category instead of the claimed Stage-IV, and showed signs of repainting. The documents further exhibited internal contradictions inter alia that two separate Invoices issued by the Petitioner showed different total prices, one of Rs. 5,65,911/- (24.01.2014) and second of Rs. 4,31,580/-(03.02.2014), raising serious doubts about the actual price of the vehicle. If Rs. 4,31,580/- was the correct price, then a refund of Rs. 1,04,434/- was due after accounting for registration, insurance, and nameplate charges. While the Petitioner claimed to have given a discount of Rs. 1,00,000/- or Rs. 1,11,837/- on a new car, there was no mention of such discount in any Invoice or Bill. The Petitioner, in their Written Statement before the District Forum, also claimed a Rs. 1,50,000/- discount due to the vehicle's prior usage of 9,000 km, effectively admitting that the vehicle was used and not new. The Petitioner further acknowledged their willingness to replace the vehicle, as recorded in the State Commission's order dated 07.08.2019.

8. Ld. Counsel for Respondent No. 1 has further argued that the Respondent No. 1 sent letters and emails seeking replacement and clarification. He also wrote to the Respondent No. 2, requesting a pause in EMI payments due to the dispute, having already paid seven instalments; That the Respondent No. 2 failed to verify the vehicle's status before loan sanction and colluded with the Petitioner in the sale of a used car under the guise of a new one. The Respondent No. 1, therefore, suffered financial loss, mental agony, and incurred legal expenses and garage charges totalling Rs. 1,67,000/- as of May 2023. The District Forum had dismissed the Complaint on 14.07.2017 without properly considering the evidence and documents. However, the State Commission rightly found the Petitioner guilty of deficiency in service and unfair trade practice. In view of these submissions, the Respondent No. 1 prays that the present Revision Petition be dismissed with costs and additional compensation of Rs. 4,00,000/- along with reimbursement of garage charges incurred to date be awarded to the Respondent No. 1.

9. We have heard both the Ld. Counsel for Petitioner and Respondent No. 1, and perused the material available on record.

10. The record would go to show that even accepting the allegations of the Respondent/Complainant at their face value, his own conduct and response in the circumstances was not what ought to have been that of a person of reasonable prudence. Assuming that there was any misrepresentation on the part of the Opposite Party No. 1/Petitioner in transferring old vehicle to him by claiming it to be a new one, still there was no occasion for the Complainant to unilaterally stop paying his outstanding loan at any stage to the Financier who had been arraigned as a Proforma Opposite Party in the original Complaint, although admittedly there is no allegation indicating any deficiency in service on the part of the said Financier.

11. Further, it is seen from the record that in response to the Complainant's letter dated 22.2.2014 (Annexure-M) in which he had asked the Opposite Party/Petitioner to replace the Car supplied to him, the said Opposite Party on 7.3.2014 sent him an email although denying his allegations as made, but it had at the same time also asked the Complainant to send the vehicle in question to its Workshop for rectification of its problems. But the Complainant in his wisdom chose not to send the said vehicle which act, in any event would have saved him from the problem of paying recurrent garage parking charges for the said vehicle, which he claims he is not liable to pay. This again is a manifest lack of prudence on his part.

12. He, further, claims that the vehicle promised to him was of the year 2013, but was actually found to be of the year 2011. To support these contentions, Ld. Counsel for the Respondent has drawn our attention to the Motor Vehicle Insurance Cover Note (Annexure-J) in which the year of manufacture has been depicted as "2013", and the seating capacity is shown to be "7+1". But, it needs to be remembered that the aforesaid Cover Note in his name was in response to his own signed proposal for Insurance, in which the role of the Opposite Party would be limited. There is no document on record directly issued by the Opposite Party, which would go to indicate that it had at any point represented that the vehicle was actually of the year 2013, and not 2011. Further, the fact that a substantial discount on the said vehicle apart from the value of his previous vehicle had been granted to him would also go to indicate that he would be aware of the fact that it could not be a brand new vehicle. At any rate, it is not clear as to how he came to know subsequently that the vehicle had already run 9000 kms. prior to his purchase, and why he could not have known about the same at the time of taking its delivery.

13. For all the aforesaid reasons, the opinion of the Ld. District Forum that the claim of the Complainant/Respondent was not convincing, and that he had filed the Complainant as a device to prevent payment of the loan instalments, when he found himself unable to do so after the very first instalment cannot be considered altogether unreasonable, although in his Affidavit in Evidence, in Para 11, the Complainant had stated that he was paying the EMI month by month of the Proforma Opposite Party and had paid 7 months EMI in the 14-15 months following the delivery of vehicle to him.

14. The Ld. State Commission in its impugned Order, however, allowed the Complainant's Appeal by taking note of various misrepresentations alleged on the part of the Opposite Party, without mentioning anywhere as to how it was satisfied that the Proposal Form for the Insurance Policy showing the seating capacity of the vehicle as well as the years of its manufacture had been filled-up by anyone from the Opposite Party side, even though, the Form itself had been signed by the Complainant.

15. Consequently, we are not in agreement with the final decision of the Ld. State Commission.

16. Our attention was also drawn to an earlier Order passed on 7.8.2019 in this Revision Petition, on which date Ld. Counsel for the Petitioner/Opposite Party had stated that his client was ready to provide the Complainant/Respondent with a new Car provided that the old Car was returned to it with all the up-to-date papers and free from hypothecation. The offer per se would appear to be logical and reasonable. At that juncture, Ld. Counsel for the Respondent/Complainant stated that he would seek instructions of his client on such proposal. But, no actual response to the proposal was given on behalf of the Respondent. Subsequently, on 1.9.2023, Ld. Counsel for the Petitioner drew attention of the Bench to the previous Order dated 7.8.2019, and reiterated that even as late as in 2023, his client was still willing to deliver a new Car to the Respondent subject to providing the No Objection Certificate from the Financier alongwith up-to-date statutory documents pertaining to the vehicle. Ld. Counsel for the Respondent thereafter again sought time to seek instructions from his client, but no categorical submission was made from his side at any stage thereafter.

17. Consequently, considering the entire material on record and overall facts and circumstances, we dispose off the instant Revision Petition by modifying the impugned Order to the extent that the Petitioner shall supply a new vehicle in place of the disputed vehicle to the Respondent/Complainant, subject to the latter returning the said vehicle to the Petitioner alongwith the requisite NOC from the Financier and the updated statutory documents pertaining to the same.

18. For this purpose, the Respondent/Complainant shall himself write to the Petitioner stating that he would be ready to deliver the vehicle to the Opposite Party for its exchange on a specific date within the next three months following the date of this Order, and alongwith his letter he shall also enclose copies of the requisite NOC from the Financier, and updated documents pertaining to the vehicle, the originals of which he will hand over to the Petitioner/Opposite on the actual date when he receives the new vehicle on returning the disputed vehicle. The Order of the Ld. State Commission awarding compensation and litigation costs in favour of the Complainant is set aside.

19. Parties are directed to bear their own costs.

20. Pending application(s), if any, also stand disposed off as having been rendered infructuous.