FINAL ORDER/JUDGEMENT
SHRI REYAZUDDIN KHAN, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
The fact of the case in brief is that the complainant Mr. Amarnath Ghose had booked a brand new “Hyundai Creta” car by exchanging his old Wagon R From the OP 3. OP5 was the agent of OP3 who was involved in all negotiations and discussions with the complainant. The complainant purchased the car for a total consideration of Rs,13,98,325/-(Thirteen Lacs Ninety eight Thousand Three Hundred and Twenty Five)only from the showroom of Opposite parties expecting good services.After payment of full consideration amount except the balance amount of Rs,29,325/-which was to be paid at the time of delivery of the car.The delivery date was fixed on 24th April 2019 but failed as the OP5 intimated the same and assured the next delivery schedule and for this they were apologetic and to compensate for the inconvenience caused to the complainant ,the balance 29,325/- was waived off and not required to pay the amount.Later,OP3 and OP5 intimated that on 7th May 2019 the car would be delivered with all registrations,other accessories and all formalities completed before hand but again failed and committed to resolved the issue by 10th May 2019.The complainant has visited the OP3 on 7th may 2019 and there he was asked to pay the remaining amount of Rs,29,325/-which was waived off by the OP 3 as token of apology on account of gross irregularity.However,the complainant made the paymnent of Rs.29,325/- through his credit card.The complainant keeping good faith in the OPs agreed to handover the old car(Maruti Wagon R –VXI) on 7th may 2019.The Vehicle was delivered on 12th May after prolonged waiting and it was also intimated to the complainant that the company would refund 24,000/- instead of 29,325/- and the balance amount to be adjusted by providing window sunfilm and cover by the OPs.Later.the complainant stated that till date no refund has made from the OPs .Further,OP5 stopped responding and contact No. remained switched off.Therafter,complainant has fervently tried to contact with the OPs and constantly intimated his grievances through mails,calls and also person to OPs but the OPs have not paid any heed to the complainant. That the complainant finally received the documents and other accessories of the car in question on 25th July,2019.However,the complainant was further constrained to pay Rs,1040/- for number plate under pressure from OP4.After being harassed by the OPs and left with no other option,the complainant sent a legal notice on 23.08.2019 but none of the OPs have replied to the legal notice.The complainant further stated that due to the ,mentioned acts of the OPs the complainant has suffered immense mental,physical and financial agony and has been hindered from using his car that he has purchased from his hard earned money.The OPs are jointly and severally liable for causing mental agony and serious mental stress due to breach of trust,deficiency in service,practicing unfair trade practices and negligent conduct.The complainant approached the Commission with the prayer as mentioned in the complaint petition.
The OP 1 has contested the case by filing their WV contending inter alia that Hyundai Motor India Ltd.(HMIL) is the manufacturer of the passenger car of brand “Hyundai” and the cars are sold to the public in general through independent dealership and that HMIL is not involved in direct selling of the passenger cars to the customer and the same is not applicable in present case.The HMIL enters into independent dealership agreement with respective dealers and in the present case,HMIL entered into dealership agreement dated 10.04.2007 with “M/S Finex Merchants Private Limited” ie,OP No.2.The OP2 is an independent and separate legal entity which is operating its dealership of Hyundai cars in the name and style of “Saini Hyundai”(OP3) and HMIL has no control over the acts/omissions/operations of the OP2 .That HMIL is the manufacturer of the passenger cars and they are liable towards the manufacturing error/warranty obligations aloneThe present complaint is filed without an iota or hint of allegations against HMIL or performance of the vehicle in question.HMIL and thus no reason,whatsoever for impleading HMIL as a necessary party and such the name to be deleted from the array of parties.It is submitted that “Relationship between the dealer and HMIL is one of the Principal-to Principal basis and not as a Principal-to-Agent”,hence HMIL could not be held liable for acts & omissions of a dealer as held by NCDRC in the matter titled as Maruti Udyog Limited Vs Nagender Prasad Sinha(RP No.674/2004 and 676 or 677 of 2004 decided on 04.05.2009).The complainant has filed with a malafied intention to gain unjust profits at the hands of the answering OP and therefore the complaint ought to be dismissed on this ground.
The OP2 have contested the case by filing their W/V contending inter alia that the case is not maintainable for mis-joinder of the party.It is barred by the territorial jurisdiction.
The complaint has no cause of action, baseless, frivolous, misconceived, malafide and vexatious either in facts or in law.It is particularly denied that the OP3 working under the name of Saini Hyundai is a showroom for automobile and is a unit of Finex Merchants Pvt.Ltd.The complainant has included the OP3 for the purpose of territorial jurisdiction.OP2 denied that he is not engaged of business of old car and its spare parts.OP2 stated that OP4 was one of the executives of this OP2 not the Manager and OP5 was one of the sales representatives of this OP2 and both have left the job and they are no more the employee of the OP2.The OP2 further stated that the price of the car in question was Rs,12,16,496/- and not Rs,13,98,325/-so the question of negligence, deficiency in service and fraud cannot arise.As stated by the complainant that Rs,29,325/- which was to be paid at the time of delivery and date fixed for 24th April 2019 and later, OP5 informed the complainant about the laxity as a token of apology the amount of Rs,29,325/- was waived off was totally false and frivolous. It is mentioned that OP2 have never committed any such date for delivery of the car on 24th April 2019,as at the relevant period of time Loksabha Election was going on and the delivery of the new car was not possible.OP2 never made any false assurance to its purchaser including the complainant.OP2 further mentioned that it is well established agreement with the Principal that OP1 herein that except any special offer by the manufacturer company, no distributor has any right to give additional discount to any its client therefore the question of giving any discount of Rs,29,325/- to the complainant had never arose.The question of refund any amount either Rs,29,325/-or Rs,24,000/ by the OP2 is nothing but the story of cook and bull.The OP2 provided the accessories of the car free of cost.If at all any such assurance is made by any sales person beyond the rules the he is personally liable to meet such assurances and the OP2 is no way related with such false assurances. It is further stated by the OP2 that due to Loksabha election 2019 and as per election rules all the registrations of new car was temporarily suspended by the Motor vehicle Authority,therefore no delay in delivery of all papers on the part of the OP2 cannot arise at all.OP2 further stated that no such legal notice or phone calls has been received so reply of questions or answer cannot arise.It is further stated that it is the bounded duty of all purchaser to pay the money for number plate,therefore the question of pressure upon complainant are of no substance. All the allegations made by the complainant against the OP2 is baseless, false and harassing in nature and the complainant is not entitled to get any relief as per prayer.
OP4 and OP5 have not contested the case and not filed the WV.Hence the case proceeds ex-parte against OP4 and OP5.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. The complainant has filed his Evidence supported by affidavit. Only W/Vs have been filed by the OP Nos.1 and 2 and OP Nos.3,4 and 5 not filed WV.The case have been proceeded ex-parte against OPs No.3,4 and 5. No questionnaire has been filed by any of the parties. The OPs have not filed their E- Chief The complainant has filed his BNA.OP1 Filed the BNA also.
The fact of the case in brief is that the complainant had booked a brand new car namely “Hyundai Creta” by exchanging his old Wagon R from the OP3.Total consideration of the car was 13,98,325(Thirteen Lacs Ninety Eight Thousand Three Hundred and Twenty Five) only from the showroom of OPs.The complainant had paid the entire consideration amount except Rs,29,325/- which was to be paid at the time of delivery.As per the Tax Invoice annexed with the complaint petition, dated 07.05.2019 the price of the car with all taxes(SGST/CGST/CESS) stands Rs,12,16,496 (Rupees Twelve Lacs Sixteen thousand four hundred Ninety six)only.The complainant failed to submit any document/Bank payment/cheque which proved that the price of the car was 13,98,235(Thirteen Lacs Ninety Eight Thousand Three Hundred and Twenty Five) only which he had paid to the OPs.There is no whisper of dues of Rs,29,325/-or a note anywhere, it was mentioned that the balance amount to be paid at the time of delivery of the car in question.OP5 was the person who was directly involved in all the negotiations and discussions with the complainant and the point of contact.The complainant mentioned the different dates(24th April 2019, 7th May 2019,10th May 2019,12th May 2019,15th May 2019,23rd May,27th May 2019) were given for delivery of the car by OP5,here also the complainant fails to submit any documental evidences where it can be established that OP1 and OP2 are liable to their commitment for delivery of the car.The complainant has made all the correspondences to OP4 and OP5 regarding delivery of the car in questions,waiving of the amount of Rs,29,325/- and again payment of Rs,29,325/- then refund of Rs,24,000/ and adjustment of balance money in providing of window sunfilm and cover.As it is mentioned in the WV of the OP1 that HMIL is the manufacturer of the passenger cars and they are liable towards the manufacturing error/warranty obligations aloneThe present complaint is filed without an iota or hint of allegations against HMIL or performance of the vehicle in question. “Relationship between the dealer and HMIL is one of the Principal-to Principal basis and not as a Principal-to-Agent”.So it is evident that OP1 is no way involved in dealing with customer service like payment,delivery of vehicle directly to the customer.
OP2 mentioned in their WV that OP2 have never committed any such date for delivery of the car on 24th April 2019,etc..as at the relevant period of time Loksabha Election was going on and the delivery of the new car was not possible.OP2 never made any false assurance to its purchaser including the complainant.OP2 further mentioned that it is well established agreement with the Principal that OP1 herein that except any special offer by the manufacturer company, no distributor has any right to give additional discount to any its client therefore the question of giving any discount of Rs,29,325/- to the complainant had never arose. If at all any such assurance is made by any sales person beyond the rules then he is personally liable to meet such assurances and the OP2 is no way related with such false assurances. After close scrutiny of documents it is found that “Saini Hyundai” OP3’s role not clearly defined by the complainant as all the documents and transactions related to purchase or sale of the vehicles indicates “Finex Merchants Pvt.Ltd”.
It is also observed that complainant has not submitted a single document related the vehicle in question,the price of the old vehicle which was exchanged.
So,the complainant miserably fails to provide any documentary evidence against OP1 ,OP2 and OP3 which can establish that the OPs have been deficient in its services and not delivered the vehicle with all legal documents and accessories on the expected date.All the communications were made verbally with the OP4 and OP5 who further left the job.
In view of what has been stated above we are of the considered view that the complainant has failed to establish the case against the OP1,OP2
Hence,it is,
ORDERED
That the complaint case be and the same is dismissed on contest against the OP1, OP2 and ex-parte against OP3,OP4 and OP5.No order as to costs.
Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties.
