Sri Partha Kumar Basu, Hon’ble Member
The complaint is filed by the Complainant against the OPs u/s 35 of the Consumer Protection Act 2019 for the deficiency in service. The complainant prays before this commission to direct the OPs for replacement of the second hand vehicle or refund of the purchase price of the sold article along with compensation and cost.
The facts in brief as averred by the respective parties are that the complainant after coming across the website of OP1 company chose to purchase a second hand vehicle originally manufactured and registered in 2019. The OP2 is the Managing Director of OP1 company. Being guided as per that website, the complainant approached OP3 car dealership for the purpose of purchasing the second hand car. It is stated that during discussions held with OP 4 at his office (partner of OP3 dealership) it was categorically mentioned by the complainant that he would purchase the said vehicle provided all the specifications as hosted in the website matches with the vehicle actually, to which both the OP4 and OP5 (partners of OP3 dealership) agreed. Based upon such projections, the complainant had undergone through an agreement dated 29.11.2022 which was executed between the complainant and OP3 company for purchase of the used car for an amount of Rs.350000/- against an advance tendered for Rs.15000/- for an agreed condition to pay the balance consideration amount by 05.12.2022 that was ultimately paid by complainant on 02.12.2022. The money receipt of the said payment was issued by OP6, being the previous owner. After delivery of the said vehicle and issuance of delivery note to the complainant, the odometer read as 11350 km. But upon sending the vehicle to the OEM on 20.12.2022, the complainant came to know that the vehicle travelled for 64464 km. As per workshop record, during previous visit of the said vehicle through the previous owner on 16.03.2022, the odometer reading was as 64464 km. So it was falsely projected by the OP1 and OP2 before the complainant that the car had covered only 11350 km which was discovered by him as higher by 53464 km. than actual. It is also stated that the complainant had to cough up another Rs 47000/- for repair work at OEM workshop on account of break oil tank, clutch plate repair, suspension related work and replacement of few light fittings.
As per the complainant, all the OPs, in league with one another, have misrepresented the facts to him while selling a second hand car by tampering the odometer and concealment of few other mechanical defects. Alleging that the aforesaid acts amounted to deficiency in service and unfair trade practice on the part of the OPs, the complainant filed a consumer complaint before this commission for refund of the consideration price of Rs 350000/- or alternatively to replace the existing vehicle with another vehicle of same specification and condition as hosted in website, along with reimbursement of his incurred cost of Rs. 22000/-, Rs. 25000/- and Rs. 37049/- on account of various repair works, suspension work and cost for name transfer with insurance charges alongwith a compensation to the tune of Rs 250000/- + interest @ 12% and a litigation cost of Rs 50000/-.
The complainant in support of his contentions exhibited various records alongwith complaint petition as well as evidence serialising from ‘A’ to ‘I’ by annexing running page serial no 17 to 29 which are copies of extracts of website portal of the OP 1 company claiming the distance that the car traversed as 11000 KM (annx A), Agreement dated 28.11.2022 (annx B) and not 29.11.2022 which appears due to oversight of complainant, Money receipt dated 02.12.2022 (annx C), Delivery note dated 02.12.2022 (annx D), Dealer’s delivery details record showing Odometer reading as 11505 KM (annx E), OEM’s service record dated 20.12.2022 in favour of previous owner cum OP6 seller showing Odometer reading as 62465 (annx running page 22) and not 64464 due to possible oversight from the complainant, OEM repair document dated 23.12.2022 for Rs. 20965/-(annx F- 3 pages), Bank statement showing payment proof by complainant for Rs. 14655/-(annx G), Insurance record receipt in favour of complainant for Rs. 12049/- (annx H) and Reply email dated 20.12.2022 of OP1/OP2 website company denying responsibility (annx I) on the complaint.
It is also stated that the complainant had to cough up another Rs 47000/- for repair work at OEM workshop on account of break oil tank, clutch plate repair, suspension related work and replacement of few light fittings. It was further stated that complainant had to further pay to OP3 an amount of Rs. 25000/- and Rs. 12049/- on account of Insurance and other charges etc.
Upon notice, OP 1 and OP 2 in their W/V have averred that the complaint was not maintainable against them as they took up a number of preliminary objections that they are providing free service and no consideration price was paid to them and hence they are not responsible for any service taken from third parties. They also contended that as no sale consideration for the car in question was given / transferred to them by complainant, the instant complaint is not maintainable against them. It was also asserted in the W/V and evidence that their website is an online marketplace and they are intermediary in terms of the IT Act 2000 who are not liable for any activity between the website users, neither they are liable for any third party user. As the OP1 and OP2 company have no role to play in the vehicle listed by the users, wherein they being company only provides a facility to the users to display listings pertaining to sale of pre-owned cars that can be viewed and interacted by and between the seller and buyers as users, hence they are not liable for any deficiency if caused by third parties. The OP1 and OP2 also pleaded that they are governed by the terms and conditions of their business process as hosted in the said website.
The OP1 and OP2 also contended that being an issue of resale goods, the complaint is not maintainable under the CP Act 2019.
The remaining averments were denied pleading that there was no deficiency in service or unfair trade practice on their part, OP1 and OP2 prayed for dismissal of the complaint.
The parties led evidence in respect of their respective cases. The Commission heard counsels for the contesting parties and gone through the evidence and record of the case carefully. All the points are taken up together for the sake of brevity and to avoid repetition. For the sake of convenience, the parties are referred to as arrayed in the complaint.
The case is being contested by OP1 and OP2 wherein it is running ex-parte against OP3, OP4, OP5 and OP6 as per order no 6 dated 26.05.2023 of this commission. Despite notice, none of OP3, OP4, OP5 and OP6 put in appearance. Hence they were proceeded against ex parte.
Both the parties have also adduced respective evidences on affidavit. The Complainant has filed BNA rebutting the averments of the OP and has affirmed the allegations levelled in the complaint. The complaint argued that OP has claimed that being an intermediary they are responsible, saddled with liabilities arising from any transaction entered into by any third party through or the information hosted/displayed by the intermediary’s website. If a product is not genuine or deficient, then it is the seller’s liability and the OP1/OP2 alongwith seller, be held liable.
Taking into consideration the facts of the case and averments/documents/Evidence made by both the parties this commission now deals with the case in hand as follows :-
As per Section 2(7) (i) of Consumer Protection Act, 2019, “Consumer” means any person who:
“buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”
In the instant case, there is no claim or cogent proof from OP1 & OP2 in support of their claim that complainant obtained the goods for resale purpose. Hence the contention of the OP1 and OP2 that the complainant not a consumer, is untenable.
The OP1/OP2 stated that they are providing free service and no consideration price was paid to them and hence they are not responsible for any service taken from third parties. This defences taken by the OP1/OP2 do not sound convincing in this case as the Consumer has visited the OPs website, considering the goodwill of the OP1/ OP2, to purchase the materials and believed that the promise/declaration appeared against the displayed item/product is true and reliable. The OP1/OP2 should have been fully vigilant to ensure as to whether the sellers registered on his website are selling the displayed and promised products or not ? Being the portal/platform provider, the opposite party owns the liability of making sure that the product of such bigger brands must be genuine and worthy enough to match the status of the platform on which it is being sold. The relevant portion of the Consumer Protection Act 2019 is quoted hereinbelow :-
(16) "e-commerce" means buying or selling of goods or services including digital products over digital or electronic network; (17) "electronic service provider" means a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction sites;
Since the OP1/OP2 are a commercial entity, operating to earn profit and hence can not escape from its liability under the garb of uncertain terms as contended above. The OP1/OP2 have received the complaint but has not placed/filed any report of investigation carried out by it on the complaint to prove its fair conduct. It has also not been revealed by the OP1/OP2 as to what action has been taken against their vendor for selling deficient products through OP1/OP2 portal ? If the OP1/OP2 were so concerned about their website/platform/portal users, they should have taken deterrent actions on the seller of deficient products and a notification to that effect would have been posted on the website but the OP1/OP2 are silent on this issue. Though the OP1/OP2 are neither manufacturer nor seller, yet it is under a commercial obligation to provide genuine product, if the same are being promoted/displayed for sale, under the garb of genuine product claim, on it’s portal. The OP1/OP2 demonstrates which proves that they had all information and knowledge of making for offer for sale of deficient product since the exhibit shows that the odometer reading with claim of reduced kilometre reading as a malpractice.
The next question which falls for consideration is, as to how much kilometre the car in question had covered at the point of sale. OPs projected in website as well as on the date of taking delivery that the car covered 11000 Kms, but as per service record of OEM such odometer reading record got unfolded as to 62465 km, instead of 11000 km, (and not 64464 km as claimed by complainant, may be due to oversight, but retaining the merit of his side of argument). It is to be noted that, the year of manufacture and the usage of the car since the date of first purchase also determines the value of the car. Hence, the older the car, the less it will cost, and vice versa. A car that traversed less will command a better price than a car of the same make and model but run more. A car which has been put to heavy usage would cost less than a car of the same age but put to lighter usage or used only occasionally. The longer the age and higher the usage, the higher the depreciation. Therefore, the older or more running car, will suffer higher depreciation and lower the material value. Thus, we are of the opinion that it is proved beyond doubt that the OP3 to OP6 in order to get higher price for the car misrepresented and wrongly projected to the complainant that the vehicle had covered only 11000 Kms whereas in fact it had already covered 62465 km on previous occasion as per previous owner’s service report from the OEM dated 16.03.2022. Since vehicle was registered in the name of opposite party no.6, they by allowing other OPs to derive undue benefit, by misrepresentation, was also deficient in rendering service and indulged into unfair trade practice.
As the OP3 to OP6 did not contest then in all fairness, the exhibited documents carry sufficient evidentiary value and thus it is abundantly clear and proved beyond doubt that the OPs no 3 to 6 in order to get higher price for the car misrepresented and wrongly projected to the complainant that the vehicle had covered only 11000 Kms whereas in fact it had covered 62465 Kms. Since the vehicle was registered in the name of OP 6, they by allowing OP no 3 to 5 to derive undue benefit, by misrepresentation, were also deficient in rendering service and indulged into unfair trade practices. The main deficiency is, however, attributable to OP No.3 to 6 for which reliance can be placed on a case titled as Faqir Chand Sikri Vs G.S.Oberio 2016(I)CPJ 463, wherein the Hon'ble NCDRC, New Delhi held as under ;-
".........The vehicle remained in possession of the Opposite Party for one month. The complainant was taken for a ride because he had purchased the car for Rs. 1,73,000 believing that it had run upto 47,000 kms only, whereas it had covered more than 60,000 kms. on the date of purchase. The onus of proof lies on the dealer. It was his duty to show to the Commission that when he had purchased the car, it had run to how many kms. That record is not available. This record should have been prepared when the car was purchased from Sh. Gurpreet Singh. The Opposite Party has stepped into the shoes of Sh. Gurpreet Singh. He is liable for the omissions and commissions committed by both of them."
It is to be noted however that this observation is limited only to the particular facts and circumstances of the present Complaint. It is also a fact that the OP1 and OP2 are listed in their own website. It is also a fact that the OP3 to OP6 have played wrong by citing false claim in such public domain with reduced odometer reading and being a party to tampering the vehicle odometer which is not genuine even on a casual glance. It is the duty of the e-commerce site to verify the Vendors and Suppliers that have listed their products so that in future such incidents of malpractices do not recur.
The complainant has not provided any cogent evidence in support of the claim that the repair work of the second hand vehicle in question was a fault of the OPs, which appears to be incidental. The all other costs like re-registration, Insurance charges are also allied in nature. There can not be any unjust enrichment of the claims. As such, the prayer of the complainant on these ground is not tenable.
Hence the complaint case succeeds partly. The instant case be and the same is hereby allowed on contest against the OPs with costs.
ORDER
Each of OP 3, OP 4, OP 5 and OP6 are directed to pay a compensation for causing mental agony and harassment to complainant for Rs.35,000/- (Rs.Thirty Five thousand) only to the complainant, which is estimated at 1 / 10 th of the purchase value of the car as fair and just.
Each of OP3, OP4, OP5 and OP6 liable and are directed to pay the litigation cost of Rs.2,000/- (Rupees Two thousand) only within 60 days from the date of passing this order.
The order be complied with by each of OP3, OP4 , OP5 and OP6 within a period of 60 days from the date of this order, failing which the amount of compensation will be payable by the respective Opposite Parties alongwith a simple interest @ 12% per annum, from the date of filing the complaint, I/D complainant shall be at liberty to file execution case of the decreetal amount.
The OP1 and OP2 company e commerce company dealing in marketplace is directed to henceforth make due diligence of their main website users before allowing them to be registered on its site and to take punitive actions against the proven cases of irregularities and malpractices in order to avoid confusion in the minds of general consumers so that in future such incidents of malpractices do not recur.
The complainant is at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OPs within 60 days from the date of passing of this order.
Let a copy of the certified order be supplied free of cost to the parties as per CPR.
That the final order will be available in the following website www.confonet.in
