Haryana

StateCommission

A/1336/2017

MARUTI UDYOG LTD. - Complainant(s)

Versus

GURDIP SINGH AND OTHERS - Opp.Party(s)

SALIL SABHLOK

26 Oct 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.1336 of 2017

                                                 Date of Institution: 07.11.2017

                                                          Date of final hearing: 26.10.2022

Date of pronouncement: 18.01.2023

 

Maruti Suzuki India Limited, Regd. Office 1, Nelson Mandela Road, Vasant Kunj, New Delhi-110070.

…..Appellant

Versus

1. Gurdeep Singh S/o Sh. Jangir Singh, R/o Village Kheowali (Chamal), Tehsil and District Sirsa.
2. Hissar Automobiles, 5^th Km Stone, Sirsa Road, Hisar through its Partners/Proprietors.

…..Respondents

CORAM:    S.P. Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr. Salil Salok, Advocate for the appellant.

                   Mr. Amit Singla, Advocate for the respondent No.1.

                   None for respondent No. 2.

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

There is delay of 192 days in filing of the instant appeal the condonation of which has been sought by moving an application. The application is supported with an affidavit of Shri Ashish
Chauhan.  The appellant did not receive the certified copy of impugned order but got knowledge of the impugned order dated 16.03.2017 on 11.08.2017 on receipt of notice for appearance in execution proceedings against OPs. The appellant has handed over the case file to its local advocate for drafting of appeal, which was finalized on 09.10.2017.

2.      While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law.  Reference is made to the observation made by the Hon’ble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words “Sufficient Cause” have to be interpreted to advance the cause of justice. The Hon’ble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-

“11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In Brij Inder Singh Vs. Kanshi  Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5

 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.”

 

In the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 192 days in filing of the present appeal is condoned.

3.      The present appeal No.1336 of 2017 has been filed against the order dated 16.03.2017 of the District Consumer Disputes Redressal Forum, Hisar (In short Now “District Commission”) in complaint case No.477 of 2013, which was allowed.

4.       The brief facts of the case are that on 08.11.2010, the complainant purchased new Swift Desire 2 Di DS IV car for Rs.7,14,542/- from opposite party (OP) No. 1 with an assurance that the vehicle in question was manufactured in the year 2010. He got this car registered and was allotted No. HR-24N-7937 and in its registration certificate its manufacturing year was also mentioned as 2010. However, during service of this car on 09.11.2012 concerned service personnel suggested him to get its tyre replaced. Probing which raised some suspicion in his mind and on further from service personnel, complainant came to know that the said car including its engine, chassis and tyres all were manufactured in the year of 2008 and not of 2010 as assyred. Thereafter he got his car inspected from various experts and everyone opined that car was manufactured in the year 2008. Thereafter he visited office of OP No.1 and objected that old car manufactured in the year of 2008 was sold to him but OP No. 1 refused to indemnify the losses suffered by him. Faced with this situation, he got served a legal notice dated 24.11.2012 and a subsequent reminder dated 12.12.2012, but, to no avail. Thus, there being deficiency in service on the part of the O.Ps, hence the complaint.

5.      In its written version, OP No.1 filed reply and raised preliminary objections with regard to complaint being false, frivolous and vexatious, filed with malafide intention. Furthercomplainant was  said to have no locus standi and cause of action to file the same. Further it was assailed on the ground of  estoppel, maintainability, suppressing material facts. On merits, OP No. 1 submitted that representative of OP No. 1 never assured him that  the year of manufacture of the said car was 2010, rather the said car was a demo vehicle of the year 2008 model and same was clearly told to him, who after knowing all the same, purchased the car and this fact has also mentioned in the bill. Thus, there being no deficiency in service on the part of the OP No. 1, so this complaint deserves dismissal.

6.      In its separate written version, OP No.2 raised preliminary objections with regard to lack of privity of contract, complaint being bad for mis joinder of parties and maintainability. On merits, OP No. 2 submitted that complainant purchased the vehicle in question from OP No. 1 the dealer and entered into agreement after having mutually settled the terms and conditions with OP No. 1. The complainant neither paid any amount to answering OP No. 2 towards the price of car nor OP No. 2 sold any vehicle to complainant. Infact OP No. 1 is an agent of OP No. 2 and all the rights, titles and ownership of vehicles stand transferred to OP No. 1 as and when the vehicles are handed over or entrusted to transporters at the factory of OP No. 2 at Gurgaon/Manesar. The sale transaction took place between OP No. 1 and complainant to which OP No. 2 was not a privity at all. Thus, there being no deficiency in service on the part of the OP No. 2 and requested to dismiss the complaint.

7.      After hearing both the parties, the learned District Commission, Hisar has allowed the complaint vide order dated 16.03.2017, which is as under:-

“On the face of it, it is clearly established that un-fair-trade has been committed by the respondents with the complainant. Resultantly, this complaint is hereby allowed, with a direction to respondents, to pay the difference of cost of car between 2008 Model to 2010 Model of the relevant dates with interest @ 9% per annum from date of filing the complaint i.e. 7.11.2013 till payment. Complainant is also hereby awarded compensation of Rs.1,00,000/-(Rupees one lac only) for his harassment and mental agony etc. This order be complied with by the respondents within 30 days, from the date of receipt of copy of this order.”

8.      Feeling aggrieved therefrom, O.P No. 2-appellant has preferred this appeal.

9.      This arguments have been advanced by Sh. Salil Sablok, learned counsel for the appellant as well as Sh. Amit Singla, learned counsel for respondent No.1. With their kind assistance entire record of appeal as well as that of the District Commission including whatever evidence has been led on behalf of  both the parties has also been properly perused and examined.

10.    Learned counsel for the appellant argued that  there is no privity of contract between appellant and complainant in so far as sale of vehicle is concerned. The relationship between the appellant and its dealer i.e. the OP No.1 is based on principal to principal under the dealership agreement and the appellant is not liable for any act of omission or commission if any committed by the OP-1. The learned District Commission has wrongly allowed the complaint against the appellant jointly with OP No.1.

11.    Learned counsel for the respondent No.1 argued that appellant is the manufacture of the said car and all the sales by its various authorized dealers is under the guidance/supervision of the appellant with each and every detail of the sold vehicles including respective engine Nos. & Chasis Numbers. Learned District Commission has rightly allowed the complaint of the complainant fastening joint liability and prayed for dismissal of the appeal.  

12.     It is admitted fact that the complainant purchased a new vehicle for Rs. 7,14,542/-  from the concerned agency.   It is also admitted that the vehicle in question was purchased by the dealer from the manufacturer.  The plea of the appellant was that it was not liable to pay any compensation to the complainant as there was no privity of contract between appellant and respondent No.1-complainant in so far as sale of vehicle is concerned. Since the vehicle in question was sold by the  opposite party No.1-Hisar Automobiles to the complainant-Gurdeep Singh, therefore it is the OP No.-1  which is liable to pay the compensation solely.   As per Ex.C-1, on 08.11.2010, the complainant purchased the vehicle from the OP No.1 amounting to Rs.7,14,542/-.  The OP No.1 should have disclosed all the true facts regarding the vehicle in question to the complainant at the time of purchasing the vehicle as the OP No.1 and also about the status of the car earlier being a demo car of 2008 model to the complainant.   This is how The OP No.1 was responsible for selling the car of 2008 model to the complainant.  The OP No.1 was only liable to pay the compensation and not OP No.2 i.e. manufacturer.  Since, there is deficiency in service  as well as unfair trade practice on the part of the O.P No.1 also so, the OP No.2 was not liable to pay any amount. 

13.    In view of the above, while accepting the appeal partly, the impugned order passed by the learned District Commission is modified to the extent that the OP No.1- Hisar Automobiles is held liable to  pay the compensation awarded by the learned District Commission alone without any contribution from appellant i.e. OP No.2.  With this modification, the appeal stands disposed off.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

15.              Application(s) pending, if any stand disposed of in terms of the aforesaid order.

16.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

17.              File be consigned to record room.

 

18^th January, 2023  Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

S.K

(Pvt. Secy.)