KUNDAN KUMAR KUMAI

This is an appeal under section 15 of Consumer Protection Act, 1986, against the judgement and order dated 11/2/20 passed by the Ld. DCDRF, Jalpaiguri in CC/43/2018.

 Brief facts of the appellant’s case are that, the appellant is a renowned manufacturer of widely acclaimed vehicles and the vehicle in question being Nissan Evelia XVD therein engine no. E003340 chassis no. MDHTBAM20D8005402, having registration no. WD74 AM 1643, which had been purchased by the respondent no.1/complainant, from the respondent no.2/dealer, on 15/7/16, with the financial assistance of HDFC Bank Ltd., Siliguri. On 24/10/17 the respondent no.1/complainant, found that the vehicle was given starting problem. The respondent no.1/complainant, contacted with the respondent no.2/dealer and the service personnel detected, battery defect. The respondent no.2/dealer advised contact with the Exide India Pvt. Ltd., who after assessment by its service personnel, prepared a service sheet, where in the Remark column, wrote ‘discharge’. The said battery had been manufactured in the year 2012 and the same was reflected in the Battery Manufacturing Code Column. The respondent no.1/complainant, had been informed that as the warranty period of the said battery, had expired, it could not be replaced by a new battery. The respondent no.1/complainant, had then purchased a new battery from Sandhya Battery, for Rs.6875/- (Rupees six thousand eight hundred seventy-five) only. After such replacement, the starting problem of the vehicle had been solved.

On 10/4/18, the respondent no.1/complainant, had taken her vehicle to Kaysons Ventures Pvt. Ltd., Bhakti Nagar, Jalpaiguri, the authorized service center, of the appellant/complainant. After servicing of the vehicle, the respondent no.1/complainant, found from the repair order, that the date of sale of vehicle, was mentioned as 31/8/14. The respondent 1/complainant, became surprised that she had purchased the vehicle, on 15/7/16. For which reason, the battery of the vehicle had expired the entire warranty period. Hence, the respondent no.1/complainant, had been sold an old vehicle and the tag no. of the new vehicle had been prepared in connivance by the appellant/ Company, with the respondent no.2/dealer. On the vehicle being sold, invoice needed to be prepared and the sale server was updated as the period of warranty, commenced. In the instant case, the vehicle had been first sold on 31/8/14 and re-sold on 15/7/16, as second-hand car, suppressing the earlier sale. On10/5/18, the respondent no.1/complainant, had issued Legal Notice, to the appellant as well as the respondent no.2/dealer, to take back the vehicle and to pay her the cost, incurred for the road tax, registration charges, insurance along with extra charges borne to finance, the purchase of the vehicle and to pay compensation of Rs.5,00,000/- (Rupees five lakhs) only. Inspite of receipt of the Notice, the appellant/ Company, as well as the respondent no.2/dealer, failed to respond. Finding no alternative, she lodged a complaint before the Ld. Lower Forum, with necessary prayers. Hence this case.

The appellant/company, appeared to contest the case, by filing written version, wherein they had stated that, there was no deficiency in service on their part. They only sold vehicles to the authorized dealers and had no control upon such dealers, as the respondent no.2/dealer, was a separate legal entity, which dealt in sales and purchase of the vehicle, manufactured by the appellant/ Company. Therefore, the alleged deficiency in service, is from the sale and purchase of the vehicle, from the respondent no.2/dealer. Any manufacturing defect would be covered by the warranty only and the sole responsibility of deficiency in service was of the respondent no.2/dealer, as the relation between the appellant company and the respondent no.2/dealer, did not fall under the ambit of ‘principal to agent’ but was under the ambit of ‘principal to principal’ basis. The principle of the judgement passed by the Hon’ble Supreme Court in Indian Oil Corporation Vs. Consumer Protection Council Kerala & Anr. reported in II (1994) CPJ 21 (SC) had been relied upon.

It is further mentioned that the registering authority at Motor Vehicle Department, Siliguri had duly processed, signed and duly issued the registration number and registration certificate for the vehicle in question, as a new vehicle and therefore the allegation of old vehicle was not tenable. It is therefore prayed for dismissal of the complaint.

The postal endorsement upon the respondent no.2/dealer showed that there was no business in the address of the respondent, given and the case had been decided ex-parte against the respondent no.2/dealer.

Ongoing through the evidence and after hearing the parties, the Ld. DCDRF, Jalpaiguri, passed the impugned order directing the appellant and the respondent no.2/dealer, to pay jointly the sum of Rs.794850/- (Rupees seven lakhs ninety-four thousand eight hundred fifty) only, including that along with road tax, amounting to Rs.43757/- (Rupees forty three thousand seven hundred fifty seven) only, pollution charge, amounting to Rs.160/- (Rupees one hundred sixty) only, along with extra financial charges incurred, amounting to Rs.99960/- (Rupees ninety nine thousand nine hundred sixty) only, Rs.6875/- (Rupees six thousand eight hundred seventy five) only, was the purchase price, of new battery along with litigation cost of Rs.1,00,000/- (Rupees one lakh) only and compensation of Rs.5,00,000/- (Rupees five lakhs) only, towards metal pain and agony, within one month from the date of order, along with interest @ 9% per annum from the date of starting the case, on 24/8/18, to the respondent no.1/complainant. On failure to pay the above amount within 30 days, punitive damages would be levied amounting to Rs.500/- (Rupees five hundred) only, per day.

Being aggrieved by the above order the appellant preferred this instant appeal, on the ground that the Ld. DCDRF, Jalpaiguri, had erred in law and facts while passing the impugned judgement.

Decision with reasons

At the time of final hearing, the Ld. Advocate for the appellant/company, had assailed the impugned judgement on the ground, that the respondent no.2/dealer was a separate legal entity dealing in sale and purchase of the vehicle, manufactured by the appellant/company and therefore the direction passed by the impugned judgement was illegal. Moreover, the relationship between the appellant/company and the respondent no.2/dealer, was not as ‘principal to agent’ but rather as a ‘principal to principal’ basis and which was enumerated in the clause 22.1 of the Agreement, executed between the appellant company and the respondent no.2/dealer. That apart the registering authority, at Motor Vehicle Department, Siliguri, had duly processed and issued the registration no. and registration certificate, as a new vehicle and therefore the impugned judgement against the appellant/company, was not tenable. Reliance had been made on the principles of the judgement passed by the Hon’ble Supreme Court in Indian Oil Corporation Vs. Consumer Protection Council Kerala & Anr. reported in II (1994) CPJ 21 (SC) and National Insurance Company Vs. Babulal Lodhi & Ors, Punjab State Power Corporation   Vs. M/S Shree Polyphase Meters by the Hon’ble National Consumer Disputes Redressal Commission reported in 2010 (3) CPC 717 and 2012 (1) CPR 58 (NC), respectively and C. N. Anantharam Vs. Fiat India Ltd. and Ors passed by the Hon’ble Supreme Court in Special Leave Petition © nos. 21178-21180 of 2009.

Ld. Advocate for the respondent no.1/complainant, on the other hand has supported the impugned judgement, by submitting that the appellant/company had vicarious liability for the acts done by the respondent no.2/dealer. The appellant/company produced the dealership agreement for the first time before the Ld. Lower Forum and the agreement clearly stated that the relation between the two was a ‘principal to agent’. That apart the appellant/company, had admitted that the appellant had sold the used vehicle.

It was also argued that though the appellant/company, was involved in the marketing/selling and servicing, of the various models of vehicles, but never intimated or disclosed, regarding the existence of any dealership agreement, to the consumers. Moreover, the dealership agreement was between the appellant company and the respondent no.2/dealer, the same was not binding upon the respondent no.1/complainant. Furthermore, the appellant after being made aware of such fraudulent activity of selling an old car as new did not take any action and therefore the appellant/company, was liable vicariously for the misdeeds of the respondent no.2/dealer. Even then there was no provision to purchase any product of the appellant/company, to the appellant directly, the complainant had been bound to purchase the same from the respondent no.2/dealer, appointed for this purpose. Moreover, respondent no.2/dealer, had shut down their business and therefore the appellant/company, cannot escape from the liability. He has also submitted, that in view of the principle percolating from the judgement passed by the Hon’ble Apex Court in Jacob Punnen & Anr. Vs. United India Insurance Co. Ltd.  reported in 1 (2022) CPJ 87 (SC), the terms and conditions of the Dealer Agreement would not be binding upon the respondent/complainant and thus the appellant/company was liable. He had also relied in the judgement passed in G. Krishna Kumar & Anr. Vs. Har Auto Pvt. Ltd. & Ors reported in III (2016) CPJ 521, in New Indian Assurance Co. Ltd. Vs. Avadh Wood Products reported in II (2013) CPJ 10, Kalinga Auto Center Ltd. & Anr. Vs. Pratik Pattanaik reported in IV (2008) CPJ 270 and prays for dismissing the appeal.

From the facts and submissions made by the Ld. Advocates, it transpires that the facts are not much in dispute, only the legal aspect of whether the appellant/company could also be held liable, for the mischief committed by the respondent no.2/dealer. The appellant/company, has tried to invoke the dealership agreement, as a weapon for deflecting the liability, arisen due to the fault of the respondent no.2/dealer. In this regard, the appellant/company had relied in the judgement passed by the Hon’ble Supreme Court in Indian Oil Corporation Vs. Consumer Protection Council Kerala & Anr. reported in II (1994) CPJ 21 (SC). But in the said judgement also, the Hon’ble Supreme Court, while allowing the agreement on ‘principal to principal’ basis had insisted on intimating the customers in writing at the time of enrolment of the customer. In other words, it would mean at the time of purchasing the vehicle the respondent no.2/dealer, was duty bound to intimate the respondent no.1/complainant, about such agreement between the appellant/company and the respondent no.2/dealer but apparently this does not appear to have been complied with. The Hon’ble Supreme Court, in another case involving the Insurance policy, had categorically laid down that such terms of policy needed to be informed to the policy holders and the lack of such intimation would result in deficiency of service, as reported in Jacob Punnen & Anr. Vs. United India Insurance Co. Ltd.  reported in 1 (2022) CPJ 87 (SC). Therefore, the bottom-line is, on failure to disclose such a vital piece of information, would result in deficiency of service. More so, when it had all the wherewithal to do so, as it was also involved, with the publicity, regarding the vehicle it manufactured. This non-disclosure of the existence of the dealership agreement, may perhaps have been vital, in influencing the decisions, made by the respondent no.1/complainant, because had the same being done, she would have definitely nurtured second thoughts, on pursuing with the transaction, with the respondent no.2/dealer. This is further vindicated by the fact, that the vehicle in question, would not have had the protection of the appellant/company, after the expiry of the warranty, especially when the attitude of the respondent no. 2/dealer is such, that at the slightest pretext, he is prone to take to flight, as established in the instant case, when he closed his business, after the case was filed.

The appellant/company, on the other hand, inspite of being intimated about the vehicle in question had failed to take any punitive steps against the respondent no.2/dealer, but rather justified the action of the dealer, when it mentioned in the para 7 of the written argument that the respondent no.1/complainant had purchased the 2nd hand vehicle from the respondent no.2/dealer and had tried to involve the appellant/company for compensation. On the other hand, the appellant/company had tried to extricate itself, by stating that the Registering Authority of Motor Vehicle Department, Siliguri, had issued a registration no. and certificate as new vehicle. But in this connection, it needs to be mentioned that the documents relied on by the Registering Authority have to be supplied by the respondent no.2/dealer. Therefore, this contention of the appellant/company, also failed. Moreover, the respondent no.2/dealer is nowhere to be located as the service of notice had been returned with the postal remark, as ‘addressee cannot be located’ which again is convenient, to both the appellant and the respondent no.2/ dealer to come out with the defence, they had relied upon, but also increases the suspicion, of both the appellant/company and the respondent no.2/dealer, being hand in glove, with the mischief committed upon the respondent no.1/complainant.

Hence from the above observation, the only conclusion that can be arrived is that the instant appeal fails.

It is therefore

Ordered

That the instant appeal be and the same is dismissed on contest but without costs.

The impugned order is hereby affirmed.

The appellant is directed to comply with the directions passed in the impugned order, within 45 days from the date of receipt, of this order, failing which the conditions mentioned in the order would be attracted.

Copies of the order be sent to the parties, free of cost.

Copy of the order, be sent to the Ld. DCDRF, Jalpaiguri, for necessary action.