DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 28^th day of November 2023

CC.169/2015

Complainant

                   Dr. Ajay Kumar,

                   S/o G. Balakumar,

                   Villa No.8, Silver Garden,

                   Kannadikkal, Vengeri .P.O,

                   Kozhikode. 

                   (By Adv. Sri.P. E. Rajagopal)              

Opposite Parties

1.                Akshay Deepu. D. S,

Sales Consultant,

M/s. Phoenix Cars India Pvt. Ltd.,

N.H.17, Kannur Road,

Pavangad, Puthiyangadi.P.O,

Kozhikode – 673021

(By Adv. Sri.Benny Joseph.K)

2.                Bubin k. Joseph,

Sales Manager,

M/s. Phoenix Cars India Pvt. Ltd.,

12/493/1 N. H.17, Mannuthi Byepass,

Nadathara Post, Thrissur,

Thrissur - 680751

3.                 Ringloo,

Vehicle Stock Incharge,

M/s. Phoenix Cars India Pvt. Ltd.,

N.H.17, Kannur Road,

Pavangad, Puthiyangadi Post,

Kozhikode - 673021

4.                Ajith Bhasker,

Managing Director,

M/s. Phoenix Cars India Pvt. Ltd.,

N.H.17, Kannur Road,

Pavangad, Puthiyangadi Post,

Kozhikode - 673021

5.               Managing Director,

M/s. Volswagen Grop Sales India Pvt. Ltd.,

                          4^th Floor, Silver Utopia,

Cardinal Gracious Road,

Chakala, Andheri East, Mumbai,

Maharashtra – 400099

(By Adv. Sri.Azeem Mohammed)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

In the first week of February 2012, the first opposite party, who is the sales consultant of M/s Phoenix Cars India Pvt Ltd, Kozhikode approached the complainant, who is a doctor by profession, with an offer to sell and deliver a brand new Volkswagen Vento 1.6 L Diesel – Highline model car manufactured in the year 2011, with a discount of Rs. 40,000/- on the invoice price together with bumper to bumper free insurance for one year. He also offered an additional corporate discount of Rs. 15,000/- for doctors. Further he offered to sell and deliver 2012 model brand new Volkswagen Vento 1.6 L Diesel – Highline model car manufactured in the year 2012 with just the corporate discount of Rs. 15,000/- for doctors. There would be no discount of Rs. 40,000/- on the invoice price or bumper to bumper free insurance for one year for 2012 model. 

3. The complainant accepted the offer and opted to purchase 2012 model vehicle for Rs. 11,37,784/-. The complainant placed an order on 6/02/2012 for 2012 model car. Thereafter a sales contract was executed and payment was effected by way of cheque. The first and second opposite parties demanded a further payment of Rs. 3,000/- towards service charges and the said amount was also paid by the complainant by way of cheque. The vehicle was delivered on 14/02/2012. The second opposite party, who is the sale manager, handed over a vehicle data sheet on 15/02/2012 which showed that the chassis number of the vehicle is WVWM11601CT01A277, with the manufacturing year as 2011. On enquiry, the first and second opposite parties informed the complainant that the vehicle falls under VIN chassis cut off for the year 2012. They also promised to provide the relevant documents from the fifth opposite party, which would show 2012 as the year of manufacture. The promise made by the first and second opposite parties were confirmed by the 3^rd and 4^th opposite parties. Later, on 17/02/2012, the complainant received an e-mail message stating that the vehicle identification number cut off for the year 2011 for that model vehicle is WVWM11600CT021879. To another e-mail sent by the complainant requesting to confirm whether it is 2012 model, he received a reply from the third opposite party, the vehicle stock in charge, stating that “As you may refer any number which is greater than the number mentioned in the letter are 2012 model”.
4. On receipt of the above communication on 27/07/2012 the complainant contacted the Regional Transport Officer, Kozhikode and made a request to get the registration of the vehicle changed from 2011 to 2012 in the registers concerned and also in the documents. But the registering authority expressed their inability to change the year of manufacture as there was no endorsement by the Deputy Transport Commissioner. It was also informed that the Deputy Transport Commissioner cannot make necessary endorsement without proper instruction from the manufacturer. The complainant had informed the difficulty in changing the year of manufacture to the first and fourth opposite parties, who then promised that the year of manufacture would be changed from 2011 to 2012 without delay.
5. On 2/05/2013, a reminder was issued to the second opposite party whereupon the second opposite party had informed the complainant that they would be able to provide necessary documents for changing the year of manufacture within one year. On 28/7/2014 the complainant lodged a complaint before the Customer Care of the manufacturer and it was assured that his concerns would be addressed on priority basis.  On 15/08/2014 the complainant sent a reminder to the fifth opposite party, but in vain. The opposite parties have promised to sell and deliver a brand new 2012 model vehicle for the invoice price with corporate discount of Rs. 15,000/- to the complainant, but delivered a 2011 model car, which amounts to unfair trade practice and deficiency of service. On 11/11/2014, a lawyer notice was issued to the opposite parties, but the same evoked no response. The acts of the opposite parties have resulted in gross mental agony to the complainant, besides monetary loss. Hence the complaint requesting for replacement of the car with a brand new 2012 model car along with Rs. 5,00,000/- as compensation for the monetary loss and Rs. 75,000/-  as compensation for the mental agony and hardship and also Rs, 15,000/- as cost of the proceedings.
6. The opposite parties 2, 4 and 5 have filed written version. The first opposite party has adopted the contentions in the written version of then second and fourth opposite parties. The third opposite party was set ex-parte.
7. The contentions of the second and fourth opposite parties,  in brief, are as follows; 

The complaint is belated. The complainant had approached them for purchase of a Volkswagen Vento Diesel Highline car. The allegation that the complainant was canvassed by the first opposite party and that they had offered a 2011 model car with a discount of Rs. 40,000/- and additional corporate discount of Rs. 15,000/- is false and hence denied. The further allegation that they had also offered a 2012 model car with corporate discount of Rs. 15,000/- with no further discount are unknown to them. The complainant had placed an order on 6/02/2012 and a sales contract was executed and the required payment was also made. The vehicle was delivered to him on 14/02/2012. The complainant then enquired about the year of manufacture of the car and it appears that he was informed by the sales executive that the cut-off date for the chassis would be provided to him. Later, the complainant was issued a letter signed by the authorised signatory of the manufacturer stating that the vehicle identification cut-off for the year 2011 as WVWM11600CT021879. The complainant again sought for a clarification and it was clarified that any number which is greater that the above number is 2012 model. However, by that time the vehicle had already been registered and the registering authorities had noted the year of manufacture as 2011. These opposite parties are not in a position to comment on what had transpired between the complainant and the fifth opposite party. The year of manufacture of the car is 2011. Neither the complainant had made any specific demand that the car delivered to him should be manufactured in 2012 nor had these opposite parties made any promise to that effect. The complainant has not produced anything to show that an additional discount of 40% was offered for the cars manufactured in 2011. There was no unfair trade practice adopted by these opposite parties and there was no deficiency of service on their part. It is, therefore, prayed to dismiss the complaint with costs.

8. The contentions in the written version of the fifth opposite party, in a nut-shell, are as follows;

The complaint is barred by limitation. The relationship between the fifth opposite party and the dealer is on principal to principal basis. It is the responsibility of the dealer to deliver the car to the end customer as per the order of the end customer.The 5^th opposite party does not deal with or is concerned with the end customer at the time of delivery of the car which is in the exclusive domain of the dealer. The fifth opposite party delivers the car to the fourth opposite party pursuant to the request placed from time to time. As such, the fifth opposite party is not liable for any alleged non delivery of a car in the manufacturing year 2012 by the dealer to the complainant and the alleged promises held out and representations made by the dealer to the end customer at the time of sale of the car. The fifth opposite party is not a party to the sales contract. There is no privity of contract between the complainant and the 5^th opposite party. There is no service provided by the fifth opposite party to the complainant for the same to be considered as deficient. Further, no trade practice carried out by the 5^th opposite party with the complainant for the same to be considered as unfair. There is no cause of action against the 5^th opposite party and they are unnecessary party to the proceedings. All the allegations, claims and demands of the complainant are denied. None of the reliefs is allowable. With the above contentions, the 5^th opposite party also prays for dismissal of the complaint.

9. The points that arise for determination in this complaint are;

                 (1). Whether the complaint is time barred?

                 (2). Whether there was any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged?

                 (3). Reliefs and costs

10. Evidence consists of the oral evidence of PW1 and Exts A1 to A18 on the side of the complainant. No evidence was let in by the opposite parties. 
11. We heard both sides.
12. Points 1:  The opposite parties have taken a contention in the written version that the complaint is barred by limitation since it was filed after 3 years of the date of purchase of the car. As per Sec 24-A of the Consumer Protection Act 1986, the complaint has to be filed within two years from the date on which the cause of action has arisen. In this case, the car was delivered on 14/02/2012. The complaint was filed on 21/02/2015 after 3 years. But it is in evidence that on realising that the car delivered was of 2011 model, the complainant had been in regular touch with the opposite parties and communicating with them. Exts A12, A13, A14, A16 and  A17 would reveal the same. Finally on 11/11/2014 the complainant issued Ext A18 lawyer notice to the opposite parties, which also evoked no response. When all his attempts to get his grievances redressed through the intervention of the opposite parties failed, the complainant has approached this Commission with the present complaint on 21/02/2015, which is perfectly within time. The complaint is not barred by limitation.
13. Point No. 2:- The complainant has got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the e-mail sent by the first opposite party to the complainant on 5/02/2012, Ext A2 is the new Vento price list given by the second opposite party to the complainant, Ext A3 is the Volkswagen Vento year and offer news, Ext A4 is the carbon copy of the sales contract form, Ext A5 is the receipt dated 6/02/2012, Ext A6 is the tax invoice dated 7/2/2012, Ext A7 is the receipt dated 8/2/2012, Ext A8 is the copy of the temporary registration certificate, Ext A9 is the copy of the tax licence dated 10/02/2012, Ext A10 is the invoice dated 13/02/2012, Ext A11 is the copy of the insurance policy schedule, Ext A12 is the copy of the e-mail sent by the third opposite party to the complainant together with documents sent as attachment, Ext A13 is the response of the complainant for the e-mail sent by the third opposite party, Ext A14 is the response of the third opposite party for the reply sent by the complainant, Ext A15 is the copy of letter sent by the complainant to the RTO Kozhikode, Ext A16 is the copy of the e-mail sent by the complainant to the second opposite party, Ext A17 is the copy of the e-mail sent by the complainant to the Customer Care of Volkswagen India Pvt Ltd and the reply, Ext A18 series are the copies of the registered lawyer notice sent to the opposite parties.
14.  Going by the averments in the complaint, it can be seen that the allegations raised by the complainant against the opposite parties are twofold. The first allegation is that the benefit of the offer allegedly agreed to be given to him was not given by the dealer. The second and the serious imputation is that a car manufactured in the year 2011 was delivered to him instead of a car manufactured in the year 2012, which is against the promise and the sales contract.
15. Regarding the offer, the case of the complainant is that the first opposite party had offered to sell and deliver a 2011 model car with a discount of Rs. 40,000/- on the invoice price together with bumper to bumper free insurance for one year in addition to corporate discount of Rs. 15,000/- for doctors. Regarding 2012 model car, the offer was just the corporate discount of Rs. 15,000/- for doctors and there was no discount of Rs. 40,000/- on invoice price or bumper to bumper insurance for one year.  The complainant opted to purchase 2012 model car. But the car delivered to him was manufactured in the year 2011. However, no discount or other concessions were given to him. But this is stoutly denied by the opposite party, who has asserted that there was no such offer. Admittedly, no documents issued by the opposite parties are produced by the complainant to show that there was such an offer of discount from the part of the dealer. Ext A3 is downloaded by PW1 in the year 2014 as admitted by him in the cross examination. The same was not given to the complainant by the opposite parties. It is admitted by PW1 in the cross examination that there is absolutely nothing to show that Ext A3 was published by the opposite parties. Going by Ext A3, it can be seen that it was published by GOA ON WHEELS, an automobile website. In the absence of satisfactory evidence regarding any such offer of discount from the part of the opposite parties, they cannot be found fault with for not granting any discount or offer for the vehicle purchased by the complainant.
16. As already stated, the main grievance of the complainant is that a 2011 model car was supplied to him instead of a car manufactured in the year 2012. There is a clear admission in paragraph 7 of the written version filed by the opposite parties 2 and 4 which is adopted by the first opposite party that the year of manufacture of the car in question is 2011. Admittedly, the complainant placed the order on 6/02/2012. Payment of Rs. 11,37,784/- was effected on 6/02/2012. Service charge of Rs. 3000/- was also paid by him. The car was delivered to him on 14/02/2012. The definite case of PW1 is that he opted to purchase 2012 model vehicle and not 2011 model. There is absolutely no reason to disbelieve PW1 in this regard.   Even though PW1 was subjected to searching cross examination, nothing has been brought out to discredit his version.
17. The opposite parties have taken a contention in the written version that they had not offered to deliver a vehicle manufactured in the year 2012 to the complainant and it was not practically possible in the month of February. It is the further contention of the opposite parties that there is no document showing that they had agreed to deliver a 2012 model vehicle to the complainant. It is true that in none of the documents produced by the complainant including the sales contract form dated 6/02/2012 (Ext. A4), there is mention that a 2012 model car would be delivered to the complainant. But the mere fact that the consumer did not specifically demand for 2012 model vehicle in the sales contract form executed on 6/02/2012 by itself will not be sufficient to come to a conclusion that there was no promise to supply a 2012 model vehicle. It is equally important to note that Ext A4 does not specify that a 2011 model car is agreed to be sold. The order was placed on 6/02/2012 and Ext A4 was executed on that date and naturally one expects that a vehicle manufactured in that year will be supplied. The opposite parties have no case that they had impressed up on the complainant that he would be getting only the car manufactured in the previous year if purchased in February.   The consumer has the right to know every detail of the product that will be supplied to him. The consumer cannot be kept in darkness. It was the bounden duty of the opposite parties to inform the complainant that if the vehicle is booked in February, only the vehicle manufactured in the previous year would be supplied to him. As already stated, the opposite parties have no case that they had informed the complainant that only a car manufactured in the year 2011 would be supplied to him.
18. Apart from this, there are documents produced by the complainant indicating that the offer was to supply a 2012 model vehicle to the complainant. It is in evidence that the complainant has been agitating his grievances before the opposite parties when he came to know that the car delivered to him was manufactured in the year 2011. Ext A12 is the copy of the e-mail sent by the third opposite party to the complainant together with documents sent as attachment. In that document, it is stated that the cut off Vehicle Identification Number (VIN) for the production year 2011 for the Vento car is WVWM11600CT021879. Again to Ext A13 e-mail communication sent by the complainant asking to confirm that it is 2012 model, the 3^rd opposite party has responded as per Ext A14 that any number which is greater than the number mentioned in the letter are 2012 models. In Ext A17 e-mail sent by the manufacturer to the complainant, it is stated that they were in touch with the dealer at Kozhikode and were coordinating with them to resolve the concern of the complainant at the earliest and had assured that his concerns would be attended on a priority basis. It is very important to note that if there was no offer to deliver a 2012 model vehicle to the complainant, there was no necessity for the opposite parties to send the above communications to the complainant and they could have very well stated that the offer given to the complainant was to deliver a 2011 model vehicle only. Thus the above circumstances also fortify and lend support to the case of the complainant that the offer was to deliver a 2012 model vehicle.
19. It is also important to note that the opposite parties have not adduced any evidence. None of them has entered the box. Further it may be noted that when all his attempts failed, the complainant had issued Ext A18 lawyer notice to the opposite parties highlighting his grievances. It is clearly stated in Ext A18 that the offer was to deliver a 2012 model vehicle to him.  But it is seen that none of the opposite parties has responded to Ext A18. If their contention that there was no such offer and that the offer from their part was to deliver a 2011 model vehicle only,  nothing prevented them from sending a reply to Ext A18 stating the real facts. But that was not done. This is also a strong circumstance which goes against the case of the opposite parties.
20. From the above discussion, what emerges is that the opposite parties had promised to sell and deliver a brand new 2012 model Volkswagen Vento 1.6 L Diesel-Highline model car to the complainant, but what was delivered was a 2011 model car and there was neglect on the part of the opposite parties to properly address his concerns in the matter. The act of the opposite parties amounts to unfair trade practice and deficiency of service. Undoubtedly, the complainant was put to gross mental agony and inconvenience due to the act of the opposite parties. It is common knowledge that the model affects the resale value of the vehicle. The vehicle manufactured in the year 2011 may not fetch the resale value when compared to a 2012 model vehicle.  
21. The prayer in the complaint is to replace the car with a brand new car made in 2012. But it appears that it may not be practicable now. It is admitted by PW1 in the cross examination that the vehicle had run 90,000 kms by the year 2018. The complainant has no case that the vehicle is having any defects/complaints and he has been using it. In these circumstances, we are of the view that this is not a fit case where replacement of the vehicle with a brand new one of 2012 model is to be ordered. This is a fit case where adequate compensation has to be awarded to the complainant. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 2,00,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 7,000/- as cost of the proceedings. The opposite parties are jointly and severally liable. 
22. Point No.3 :- In the light of the finding on the above points, the complaint is disposed of as follows;

                  a)  CC.169/2015 is allowed in part.

b) The opposite parties are hereby directed to pay a sum of Rs. 2,00,000/- (Rupees two lakh only) as compensation to the complainant.   

c) The opposite parties are directed to pay a sum of Rs. 7,000/- (Rupees seven thousand only) as cost of the proceedings to the complainant.

d) The payment as afore stated shall be made within  30 days of the receipt of copy of this order, failing which, the amount of Rs. 2,00,000/- shall carry an interest of 6% per annum from the date of this order till actual payment.   

Pronounced in open Commission on this, the 28^th day of  November, 2023.

Date of Filing: 19/03/2015

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APPENDIX

Exhibits for the Complainant :

Ext.A1 – Copy of the e-mail sent by the first opposite party to the complainant on 5/02/2012.

Ext.A2 – New Vento price list given by the second opposite party to the complainant

Ext.A3 – Volkswagen Vento year and offer news.

Ext.A4 – Carbon copy of the sales contract form.

Ext.A5 – Receipt dated 6/02/2012.

Ext.A6 – Tax invoice dated 7/2/2012.

Ext.A7 – Receipt dated 8/2/2012.

Ext.A8 – Copy of the temporary registration certificate.

Ext.A9 – Copy of the tax licence dated 10/02/2012.

Ext.A10 – Invoice dated 13/02/2012.

Ext.A11 – Copy of the insurance policy schedule.

Ext.A12 – Copy of the e-mail sent by the third opposite party to the complainant together with documents sent as attachment.

Ext.A13 – Response of the complainant for the e-mail sent by the third opposite party.

Ext.A14 – Response of the third opposite party for the reply sent by the complainant.

Ext.A15 – Copy of letter sent by the complainant to the RTO Kozhikode.

Ext.A16 – Copy of the e-mail sent by the complainant to the second opposite party.

Ext.A17 – Copy of the e-mail sent by the complainant to the Customer Care of Volkswagen India Pvt Ltd and the reply.

Ext.A18 series - Copies of the registered lawyer notice sent to the opposite parties.

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 – Dr. Ajay Kumar, (Complainant)

Witnesses for the opposite parties 

Nil.

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True Copy,

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