JUSTICE DEEPA SHARMA (ORAL) THROUGH VIDEO CONFERENCING

The present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”) has been filed against the order dated 30.09.2014 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh (for short “the State Commission”) in Appeal No.276 of 2014 whereby the Appeal of the Petitioner, Opposite Party No.2 in the original Complaint, (hereinafter be referred as “the dealer”), against the order dated 19.06.2014 of the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (for short “the District Forum”) in CC/530/2012 was partly allowed.  The District Forum had allowed the Complaint of the Complainant.

2.      The brief facts of the case are that the Complainant had booked a Maruti Dzire car with the dealer, through its manufacturer Maruti Suzuki Udyog Limited and paid a sum of ₹50,000/-.  Subsequently, he paid the balance amount of ₹6,30,000/- through RTGS in the account of the dealer.  On receipt of the entire sale price, the subject vehicle was delivered to the Complainant.  At the time of delivery of the subject vehicle, certain papers like Registration Certificate and insurance papers were not handed over to the Complainant.  On the assurance, that the papers would be subsequently delivered, the Complainant had taken the vehicle.  Subsequently, he learnt that although the dealer had taken the cost money of the new Maruti Dzire car but he has been given a second hand vehicle.  He approached the dealer who promised to replace the vehicle but when nothing was done, the Complaint was filed with the District Forum. 

3.      Before the District Forum, the defence taken by the dealer was that the Complainant and the employee of the dealer colluded for getting out of turn allotment of the said vehicle and the dealer is not liable for the act of its employee.  An FIR against the agent was also got registered since the said agent had duped many other customers of the dealer.

4.      Parties led their evidences before the District Forum.  The District Forum after perusing the entire evidence filed by the parties reached to the following conclusion:

      “19.     Hence, it is clearly established that the complainant who has paid the entire sale consideration and handed over the possession of the vehicle, was not provided with its proper documents whereas Opposite Party No.2 having admitted to have billed the vehicle in question in the name of Mr.Sarbjit Singh, and was not given the possession of any vehicle, preferred to name him accused No.1 in its additional complaint dated 14.09.2012 to the police authorities.

        20.       We are of the concerned view, that for all the wrong actions of employees of Opposite Party No.2, it alone is answerable for them.  Therefore, the Opposite Party No.2 is found deficient in giving proper service, and having indulged in an unfair trade practice.  The present complaint of the complainant, therefore, deserves to succeed against Opposite Party No.2 alone.  Since the entire sequence of events detailed in the complaint have happened at the premises of Opposite Party No.2 and the vehicles which were received by Opposite Party no.2 from Opposite Party No.1 were sold by it without any involvement of Opposite Party No.1, as well as the actions of the employees of Opposite Party No.2 are to be answered by Opposite Party No.2 and not by Opposite Party No.1, therefore, we do not find any merit against Opposite Party No.1, the present complaint must fail against it and the same is dismissed qua it.

21. xxxxxxxxxxxxxxxxxxxxxxx

22.  In the light of above observations, we are of the concerted view that the opposite party no.2 is found deficient in giving proper service to the complainant and having indulged in unfair trade practice.  Hence, the present complaint of the complainant deserves to succeed against the opposite party no. 2, and the same is allowed, qua it. The opposite party no. 2 is directed to:

A)    To pay ₹6,80,000/- along with interest @ 9% p.a. from the respective dates of deposit, till it is actually paid. The Opposite party no. 2 is directed to take back the vehicle in question from the complainant at its own expense.

B)   To pay ₹50,000/- to the complainant on account of deficiency in service, unfair trade practice and causing mental agony and harassment.

C)   To pay rupees 10,000 as cost of litigation.

5.      In the Appeal filed by the dealer, the State Commission after re-appreciating and re-assessing the evidences on record, upheld the order of the District Forum and has held as under:

      12.       It is clearly evident from Annexure C-1 that payment in the sum of ₹6,30,000/- was deposited in the Bank Account of Opposite Party No.2 on 26.06.2012 and 09.07.2012 by the complainant.  Respondent No.1/Complainant has specifically averred that he also made payment of ₹50,000/- in cash, for which an employee of the Opposite Party No.2, did not give any receipt.  The appellant/Opposite Party No.2 has disputed the payment of ₹6,30,000/- by respondent no.1/complainant on illogical grounds, despite the fact that there is adequate documentary proof, in support therefore.  As regards payment of ₹50,000/-, Sh. O.P. Sharma, Legal Officer in his statement (Annexure C-10) has stated that Sh.Abhineet Garg, complainant, deposited ₹50,000/- in cash while taking delivery of the vehicle.  On the other hand, the reliance of the appellant/Opposite Party No.2, as held by the District Forum in para 18 of its order, was on receipts and also delivery of vehicle from Opposite Party No.1 in its inventory and a solitary “ORDER BOOKING/COMMITMENT CHECKLIST” (Annexure R-2/9).  The District Forum rightly held that there was no record to prove that the vehicles received from the manufacturer, were against the booking of the perspective buyers and there was also no record to clarify that different vehicles received on different dates were delivered to the customers as per their priority established from the receipt of booking amount.  The District Forum also rightly held that documents placed on record by Opposite Party No.2 showed that the vehicles received from Opposite Party No.1 were billed in the name of Opposite Party No.2 as per Annexure R/C (Colly.) but there was no indication of these vehicles having been received against the booking amount received by Opposite Party No.2.

13.              It is also evident from Exhibits C-2 and C-3, which are copies of Temporary Certificate of Registration (Foil A) and Certificate-cum-Policy Schedule of Insurance Policy that the same were issued in the name of respondent no.1/complainant only when the appellant received the entire payment for the vehicle. 

14.              As regards the contention of the appellant/Opposite Party No.2 that the temporary certificate of Registration (Annexure C-2) was a fake document, it may be stated here, that the same bears the address of the appellant i.e. Berkeley Automobiles Ltd., Berkeley House 27, Industrial Area, Phase-I, Chandigarh.  The contention of the appellant/Opposite Party No.2 that the same, as per Temporary Certificate of Registration (Annexure R-2/6 Colly.) was in the name of Sh. Sarbjit does not establish that the document (Annexure C-2) was fake as both the documents are different foils.  Had the appellant/Opposite Party No.2 produced original record to this effect, before the District Forum, the position would have been different.  In any case, such a certificate was issued by the employee of the appellant/Opposite Party no.2 and if its employee has issued some fake or concocted document, the liability for the same cannot be fastened upon respondent no.1/complainant.

15.              It is clear from the statement dated 18.01.2013 of Sh. O. P. Sharma, Legal Officer (Exhibit C-10) that Sh.Vikrant Thakur, a Sales Executive in the appellant company prepared fake papers and he delivered the car to the complainant.  It is also evident from the statement of Sh. O.P. Sharma that Sh. Vikrant Thakur did not obey the Company Rules.  Sh. O.P. Sharma also clearly stated in his statement that Sh. Abhineet Garg deposited                 ₹3 Lacs through RTGS, Vijaya Bank dated 26.06.2013 and ₹3,30,000/- through RTGS, Vijaya Bank and the same were shown by sh. Vikrant Thakur in the booking account of Sarvshri Baljeet Singh and Avtar Singh respectively.  It is also mentioned in his statement that Sh. Abhineet Garg while taking delivery of the vehicle paid ₹50,000/- in cash for which he (Sh. Abhineet Garg) had no receipt.  From the statement of Sh. O. P. Sharma, it is crystal clear that Sh. Abhineet Garg deposited a sum of ₹6,80,000/-.  In the instant case, respondent no.1/complainant was duped by an employee of the appellant/opposite party no.2 and in the absence of any cogent evidence, the allegation of connivance by respondent no.1/complainant is nothing but only a figment of imagination of the appellant/opposite party no.2.  Proof of deposit of ₹6,30,000/- through RTGS (Exhibit C-1) and ₹50,000/- in cash, is corroborated through the statement of Sh. O. P. Sharma.

16.              It is also evident from the copy of FIR (Annexure R-8) that the same was lodged against Sh.Vikrant Thakur s/o Chaman Lal Thakur.  Thus, appellant/opposite party no.2 had utterly failed to prove, on the basis of any cogent evidence that there was any connivance of respondent no.1/complainant with Sh.Vikrant Thakur.  In our considered opinion, the Possibility to this effect is ruled out, when it is in evidence that  payment in the sum of ₹6,30,000/- was made by respondent no.1/complainant and certificate dated 06.09.2012 (Annexure C-1) to this effect was also issued by Vijaya Bank, SCO 37, Pocket no.1, Manimajra, Chandigarh.  Sh. O. P. Shama, Legal Officer has stated in his statement that a sum of ₹50,000/- was paid by respondent no.1/complainant (Abhineet Garg) in cash. 

17.              No doubt, the contents of affidavit dated 02.12.2013 (page 26-27 of D. F. file of Sh. O. P. Sharma are not in consonance with his statement (Exhibit C-10) but the same do not in any way wash out the contents of his statement (Exhibit C-10) which was apparently given by him spontaneously.  The contents of para 1 of affidavit filed by Sh. O. P. Sharma and Annexures R/A and R/B (bank statements) do not establish that the amounts of     ₹3 lakhs and ₹3,30,000/- was received in the account of Sh.Baljeet Singh and Avtar Singh respectively.   By not providing complete documents of the car, the appellant/opposite party no.2 was not only deficient in rendering service but it also indulged into unfair trade practice.

18.              The indulgence into unfair trade practice by the appellant/opposite party No, 2 is further corroborated from the contents of the Job Card-retain cash memo dated 04.08.2012 (Annexure C-5) in respect of Swift Desire Car, bearing Chassis No. 178392 Registration No. CH 38T 9781 which was delivered to the Complainant but deliberately, the name and address was not mentioned.  The District Forum was also right in holding that the appellant/opposite Party No. 2 should have retained the possession of the vehicle and not allowed to leave its premises if there was any doubt about the wrong delivery of the vehicle to the complainant.

19. Insofar as the contention of appellant/Opposite Party No. 2 that, in the present case, the allegation of fraud, cheating and misrepresentation are involved and the same cannot be adjudicated upon by the Consumer Fora, it is a fact duly borne, on record, that respondent No. 1/Complainant made payment towards the price of the car and he was issued Temporary Certificate of Registration and Insurance Policy also but was denied other documents.  The fraud, if any, was committed by an employee of the appellant/Opposite Party No. 2 and that is an internal affair of the appellant/Opposite Party No. 2 vis-à-vis the employee who committed such a fraud and the case of the respondent No.1/complainant is very specific and clear that despite making payment, he did not get the required documents in absence of which, he was not able to get the vehicle registered and use the same.

20.  The contention of the appellant/Opposite Party No. 2 that Sarvshri Baljit Sing, Avtar Singh and Sarbjit Singh were not impleaded as necessary parties is also devoid of merit.  Respondent No.1/Complainant made the payment to the appellant /Opposite Party No. 2 and if the payment made by him (respondent No. 1/Complainant) has been accounted for in the account of Shri Baljit Singh and Shri Avtar Singh, for whatsoever reason, no blame for the same could be fastened on respondent No.1/Complainant as he made the payment.  Therefore, this objection of the appellant/Opposite Party No.2, being devoid of merit, does not have any substance and the same stands rejected.

6.      Learned counsel for the dealer has raised the same contentions before me which were raised before the District Forum as well as the State Commission.  Learned counsel for the Complainant has also argued this matter and has stated that the dealer in this Revision Petition has intentionally concealed the documents which were part of the record of the Foras below with the intention to mislead this Commission.

7.      I have heard the arguments and perused the file.

8.      It is well settled proposition of law that jurisdiction of this Commission under Section 21(b) of the Act is very limited.  The party who has filed the Revision Petition is duty bound to show on record that there is perversity in the impugned order or that the impugned order is contrary to the settled proposition of law.  It has been held by Hon’ble Supreme Court in numerous cases including “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269” as under:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said  power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.

9.      Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under:

  “17.  The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”   

10.    In T. Ramalingeswara Rao  (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has held as under:

“12. When the two Courts below have recorded concurrent  findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

11.    In the present case, as is clear from the concurrent finding of the Foras below that the findings are based on cogent evidences led by the parties.  Admittedly, for buying the subject vehicle, the Complainant had paid a sum of ₹6,30,000/- through RTGS to the dealer and admittedly, the dealer had delivered the subject vehicle to the Complainant against the successful deposit of the cost price of the vehicle.  Although, the contention is that the Complainant has failed to show any booking receipt of Maruti Dzire vehicle, but this contention loses its sheen in view of the fact that a Maruti Dzire vehicle was duly supplied to the Complainant.  If there was no booking, why was the vehicle delivered to the Complainant.  It is not the case of the dealer that the vehicle had been received by the Complainant on behalf of some other persons.  The receipt of the money through RTGS and the delivery of the vehicle to the Complainant clearly establish that the dealer had sold the subject vehicle to the Complainant which later on was found to be second hand.  The findings of the Foras below are thus based on the evidences led by the parties on record.  I found no perversity in the impugned order.    

12.    Hon’ble Supreme Court of India in the case of “Haryana Gramin Bank and Another Vs. Madan Lal – (2011) 15 Supreme Court Cases 113” has clearly held that the principal has a vicarious liability for the wrong doings of its officials. 

“9.    The petitioner is vicariously liable for the wrongdoings of its officials/ employees which resulted in monetary loss to the respondent and the Consumer Fora did not commit any error by entertaining and allowing the complaint filed by him and dismissing the appeals and revisions filed by the petitioners. The argument of the learned counsel that the complainant had made manipulations in the passbooks cannot be entertained because no evidence was produced by the Bank to prove the factum of manipulations. In the result, the special leave petition is dismissed.”

13.    Since the dealer is liable for the act of its employee it cannot escape its liability under the law.  The order is also not against the proposition of law. 

14.    The present Revision Petition has no merits and the same is dismissed with no order as to costs.