Per – Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member
This complaint has been filed jointly by the Complainant No.1, namely – M/s. Rehab Housing Pvt. Ltd., and it Director, namely – Mr. Bhupesh Patel, the Complaint No.2 as against the Opponent No.1, namely – BMW Germany, the Opponent No.2, namely – BMW India Pvt. Ltd., and also against the Opponent No.3, namely – Navnit Motors Pvt. Ltd. The Opponents Nos.1 and 2 are the manufacturers of ‘BMW’ brand of luxury cars and the Opponent No.3 is a dealer of ‘BMW’ cars at Andheri (West), Mumbai. According to the Complainants, they decided to purchase a ‘BMW-X5 3.0d SAV (Highline) 2009’ model car and approached the Opponent No.3 – Dealer; on 29/8/2009. After discussions, the Complainants agreed to purchase the car for an aggregate price of `66,05,000/- and further amount of `14,02,514/- toward taxes, registration charges, insurance, service charges etc. Entire consideration was paid by the Complainant No.1 Company for the benefit of its Director, namely – Mr. Bhupesh Patel, the Complainant No.2 herein. It has been specifically pleaded by the Complainants that they were assured by Mr. Zubin Engineer, representative of the Opponent No.3 that the car manufactured in the year 2009 by the BMW Germany would be delivered to the Complainants. The Complainants paid the amount as demanded by the Opponent No.3 – Dealer; after taking loan from the HDFC Bank. The Complainants were to repay the loan to the HDFC Bank of `40,84,000/- by monthly Equated Monthly Installments (EMIs) of `1,13,444/- for a period of 36 months. For test-drive the Complainant No.2 was given a model of the year 2008. However, according to the Complainants, they had specifically agreed to purchase a car manufactured in the year 2009. The vehicle was delivered to the Complainants on 20/9/2009. After delivery of the car, the RTO Registration Book was handed over to the Complainants and they were shocked to know that the vehicle was manufactured in the year 2008 and the registration was done on 20/9/2009. On internet, the Complainant No.2 found that the vehicle in question was manufactured in the month of August-2008. Immediately, this fact was brought to the notice of the Opponent No.3 – Dealer, and to Mr. Zubin Engineer, representative of the Opponent No.3 in particular, by the Complainant No.2. According to the Complainants, Mr. Zubin Engineer was un-courteous and rude in his attitude. He was not in a mood to accept the fraud played by the Opponents. He was also pointed out that he had also not delivered to the Complainants a free laptop as the assured incentive and the Bluetooth integration unit which was a part of sample car shown to the Complainants. However, the Complainants have pleaded that Mr. Sharad Kachalia, representative of the Opponent No.2 subsequently installed the said Bluetooth integration feature in their vehicle. The Complainants felt cheated and defrauded and, therefore, they sent a notice through their solicitor on 4/10/2009 and requested the Opponents to replace a brand-new car of the year 2009 model by taking back the car of the 2008 model delivered to them. The Opponents Nos.1 and 2 did not send a reply but the Opponent No.3 denied the contention of the Complainants that the Opponent No.3 had assured to supply a car of 2009 year. The Opponent No.3 asserted that they had told the Complainants that the Complainants would be getting a BMW Car of 2008 year model itself. According to the Complainants, the Opponents are guilty of deficiency in service and unfair trade practice and, therefore, the Complainants have prayed that the Opponents may be directed to deliver forthwith a latest model of ‘BMW-X5 3.0d SAV (Highline) 2009’ car or in the alternative to refund to the Complainants an amount of `80,07,514/- together with interest thereon @ 18$ p.a., from the date of payment till the filing of the complaint, amounting to `93,28,752/- as per particulars of the claim mentioned at Exhibit-H. The Complainants also claimed an amount of `5,00,000/- on account of compensation towards mental torture and mental agony suffered by the Complainant No.1 besides costs of `50,000/-.
[2] We had issued a notice before admission to all the Opponents. On the returnable date, we heard Adv. S. B. Prabhavalkar on behalf of the Complainants, Adv. Mahesh Kumar on behalf of the Opponents Nos.1 and 2 and Adv. Subhash Dhutia on behalf of the Opponent No.3 on the point of admission.
[3] At the outset, we are finding that the complaint as against the Opponent Nos.1 and 2 has been filed unnecessarily without there being any cause of action arising as against the Opponents Nos.1 and 2 to the Complainants. There was no privity of contract between the Complainants, on one hand and the Opponents Nos.1 and 2 on the other. The Complainants directly approached the Opponent No.3 – Dealer. The Complainants had negotiations with the Opponent No.3 – Dealer alone. The Complainants had paid the price of the car to the Opponent No.3 – Dealer after negotiations. So, all the transaction in respect of purchase of car was made between the Complainants, on one hand and the Opponent No.3 – Dealer alone on the other. The Opponents Nos.1 and 2, in the circumstances, appear to have been impleaded despite their being no cause of action and despite their being no privity of contract between the Complainants, on one hand and the Opponent Nos.1 and 2, on the other and on this ground alone, the complaint will have to be rejected as against the Opponents Nos.1 and 2 without bothering to see anything else.
[4] That apart, it was argued on behalf of the Opponents Nos.1 and 2 that they supply cars to the Opponent No.3 – Dealer on ‘principal to principal’ basis and when there is an agreement to supply the cars to the Opponent No.3 on ‘principal to principal’ basis, liability is of the Opponent No.3 – Dealer himself for anything that goes wrong between the customer and the Opponent No.3 – Dealer. The Opponents Nos.1 and 2 cannot be held liable for any wrongs committed by the Opponent No.3 – Dealer in dealing with his customers while selling BMW Cars. There are rulings of the Hon’ble Supreme Court and Hon’ble National Consumer Disputes Redressal Commission that when an agreement is executed on ‘principal to principal’ basis, the manufacturer cannot be saddled with the liability if, the Dealer commits any default or deficiency in performance of the contract he had entered into with the ultimate customer or consumer. This is yet another ground as to why at the stage of admission itself, the complaint will have to be rejected as against the Opponents Nos.1 and 2.
[5] Coming now to the liability of the Opponent No.3 – Dealer and the question as to whether we should admit this complaint against the Opponent No.3 – Dealer we are finding that the Complainant No.2 had approached the Opponent No.3 – Dealer for purchase of a BMW Car. The Complainant No.2 wanted a particular model. The Complainant No.2 was given test-drive of a model manufactured in the year 2008. After test-drive, the Complainant No.2 approved the model and decided to go further with the formalities of entering into an agreement with the Opponent No.3 to purchase a BMW Car of a particular model. In the sale agreement, a copy of which is annexed to the reply opposing admission of complaint as filed by the Opponent No.3 – Dealer it is nowhere mentioned by the Complainant No.1 or by the Complainant No.2 that they wanted BMW car of 2009 model. Date of delivery is mentioned as 30/8/2009 but, in the sale contract nowhere it is mentioned that the Complainant No.1 Company had booked the car of 2009 model. What is pertinent to note is the fact that test-drive was taken by the Complainant No.2 of 2008 model itself, which was then available with the Opponent No.3 – Dealer. Since, in this contract there is absence of vehicle make of the year 2009, the Complainants cannot be heard to say that the Complainants had booked a car of the year 2009 model itself. Certificate of Registration Form No.23 was filled-in and signed by both the Complainants. In that, it is mentioned that the car they were registering was of the year 2008. So, these two documents are clearly belying the statement made by the Complainants that they had booked the car of the year 2009. So, we cannot buy the arguments of the Complainants that they had applied for purchase of a BMW car of the year 2009 when they approached the Opponent No.3 – Dealer for booking of the car. When these two documents are showing in an unequivocal terms that the Complainants had booked the car of the year 2008 model, the case of the Complainants that they were taken by surprise when they saw the RTO Certificate, which mentioned that it was a car of the year 2008 model, though the Complainants had asked for a car of the year 2009 model.
[6] Second deficiency as alleged by the Complainants as against the Opponent No.3 – Dealer is in respect of not providing a free laptop. In the Sale Contract or in the Tax Invoice, nowhere it is mentioned that the Complainants would get a free laptop as a part of an incentive. It was contended by the Opponent No.3 – Dealer that actually, the Opponent No.3 – Dealer had given a special discount of `5,00,000/- towards purchase of the car to the Complainants and that the same was to honour the customer relations and to continue business relations for longer time. The Opponent No.3 – Dealer further pleaded in the reply opposing admission of the complaint that in addition to the said discount further discount of `2,50,000/- was extended to the Complainants in fitment accessories. Besides the Director of the Opponent No.3 – Dealer further granted discount of `50,000/- at his own discretion. So, total discount given to the Complainants in this bargain of selling a BMW car was of `8,00,000/-. When this is so, it is puerile to argue that laptop which is worth `30,000/- to `40,000/- was not given as a part of incentive, which the Opponent No.3 – Dealer had agreed to give, when the Opponent No.3 – Dealer has in fact, given discount of `8,00,000/-. So, there appears to be no merit in this complaint of the Complainants and moreover, what is being given free cannot be a matter of ‘consumer dispute’. For the price paid by the Complainants, they have been given a BMW car of the year 2008 model and while selling this car, a discount of `8,00,000/- was given to the Complainants. In this view of the matter, the grievance of the Complainants that they were not given free laptop by the Opponent No.3 – Dealer is appearing to be fallacious and not worthy of any reliance.
[7] Thirdly, it was grievance of the Complainants in this complaint alleging deficiency in service that Bluetooth integration device was not fitted in the BMW car purchased by the Complainants. But then, in paragraph (06) of the reply opposing the admission of the complaint, as filed by the Opponent No.3 – Dealer it has been mentioned that the Opponent No.3 – Dealer fitted the said device in the car of the Complainants. In fact, charges for the same amounting to `50,000/- are yet to be received from the Complainants. The Complainants, in paragraph (06) of the complaint itself, clearly mentioned that Mr. Sharad Kachalia, representative of the Opponent No.2 subsequently installed said Bluetooth feature in the said vehicle and the said facts were recorded by the Complainant No.2 vide his e-mail dated 26/9/2009. Thus, we are finding that the Complainants should have no grievance even as against the Opponent No.3 – Dealer. The Opponent No.3 – Dealer had sold the car to the Complainants of the year 2008 model. The Complainants nowhere mentioned in the sale agreement that they wanted a BMW car of the year 2009 model. The Complainants were given obviously some discount because the Complainants were purchasing a car of the year 2008 model which was then available with the Opponent No.3 – Dealer and on which test-drive of the car was taken by the Complainant No.2. All these facts leave us in no doubt that the Complainants cannot ex-facie prove that there has been any deficiency in service even on the part of the Opponent No.3 – Dealer. As such, we are finding no substance in the complaint filed by the Complainants even as against the Opponent No.3 – Dealer. The complaint is liable to be rejected at the stage of admission itself.
[8] There is another aspect of the matter. The Complainant No.1 Company was purchasing a luxury car of BMW make. The Complainant No.1 Company purchased this car to enhance its prestige and the status of its Director, namely – Mr. Bhupesh Patel, the Complainant No.2 herein in the market because the Complainant No.1 Company is in housing development industry. The Complainants have to deal with so many customers of high status and repute. The Complainants wanted to project that theirs was a company of high standards and of high repute and, therefore, they decided to purchase a BMW car for its Director, the Complainant No.2, by shelling out an amount more than `80,00,000/-. Such a company must be held to have purchased this car from the Opponent No.3 – Dealer for ‘commercial purpose’ only and as such, in terms of explanation appended to Section-2(1)(d) of the Consumer Protection Act, 1986 the Complainants cannot be permitted to file a consumer complaint. On this ground also, this complaint is liable to be rejected at the stage of admission itself.
Hence, we pass the following order:-
ORDER
The complaint is not admitted and stands rejected in limine.
The Complainants are jointly and severally directed to pay an amount of `10,000/- to each Opponent in terms of Section-26 of the Consumer Protection Act, 1986 for filing a frivolous and vexatious complaint within a period of one month from the date of receipt of this order.
Inform the parties accordingly.
Pronounced on 21st February, 2012
