IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

                   Present:   HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                      PRESIDENT

                                   TMT. S.M.   LATHA  MAHESWARI,                                                       MEMBER  

F.A.No.294/2013

(Against the order passed in C.C.No.276/2007, dated 28.02.2012 on the file of the District Commission, Chennai (South))

MONDAY, THE 13^th DAY OF SEPTEMBER 2021.

 B. Dhanaraj,

24/2, Ground Floor,

Balakrishna Street,

Mylapore,

Chennai – 600 004.                                                       Appellant/Complainant

                    - Vs –

1.   Indus Motor,

      Represented by its Manager,

       “ Gulam Towers”

      46 to 49, Royapettah High Road,

      Royapettah,

      Chennai – 600 014. 

2.   Maruti  Udyog Limited.,

      Representerd by its Managing Director,

      11^th Floor, Jeevan Prakash,

      25, Kasturba Gandhi Marg,

      New Delhi – 110 001.

      Also at

      Palam Gurgaon Road,

      Gurgaon – 122 015.                                                Respondents/Opposite Parties         

Counsel for the Appellant/complainant                 : M/s. Rathina Asokan, Advocate.

Counsel for the 1^st Respondent/1^st Opposite Party : M/s. K.R. Ramesh Kumar, Advocate.

Counsel for 2^nd Respondent/2^nd Opposite Party     :  Publication effected in CMP   

             This appeal is coming before us for final hearing today, on 31.08.2021 and on hearing the arguments of the appellant on perusing the material records, this Commission made the following

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT.    

1.         This appeal has been filed by the appellant/complainant under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Chennai (South) made in C.C.No.276/2007, dated 28.02.2012 dismissing the complaint.         

2.        For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redressal Commission, Chennai (South).      

3.        The brief facts which are necessary to decide this appeal is as follows;-

           The complainant, who is an advocate with an intention to purchase a new car approached the 1^st opposite party, the dealer of the car Maruti Udyog Limited, manufactured by the 2^nd opposite party during the month of December 2006. When he walked into the 1^st opposite party’s show-room he was received by the Senior Sales Manager of the 1^st opposite party, one Mr. Srivatsta who took the complainant around the show-room and explained the features of various models of car displayed such as Maruthi Swift, and Maruthi  Zen Estilo models which were introduced in the market at that time.  The complainant had informed Mr. Srivasta that he would book a car after fortnight as it was middle of December 2006.  The complainant was specific for purchasing a car manufactured in the year 2007.  The said Srivasta also assured the complainant that even if booking was made during the middle of December 2006, the vehicle would be allotted only after complete payment of cost and so the car sold to the complainant would be positively of the year 2007 model. Again, when a specific query was made on 18.12.2006, the 1st opposite party had reassured the complainant that the model of the car would be the year of 2007. Further, the said Srivasta had informed the complainant that the 1^st opposite party is one of the leading Maruthi Car Dealers in Kerala and they are fresh entrant to Chennai and as such he knew the difficulties of the customers who booked a car in the year end.  He also re-assured that the complainant would be provided a car of year of 2007 model. Further, he added that their sole intention is only to keep the customers’ happy.  The complainant was induced to believe the words of the 1^st opposite party’s personnel that he would be delivered a car manufactured in the year 2007. Believing the words, the complainant booked a car by issuing two cheques for equal amount of Rs.5000/- each. During the 1^st week of January 2007, the said Srivasta called the complainant and requested him to make the complete payment of cost of the car. Even at that juncture, the complainant had enquired about the year of the manufacture and model of the car for which said Srivasta assured the complainant that he would get only model of 2007 Zen Estilo car. Thereafter, the complainant had issued cheque for a sum of Rs.34,400/- and the balance amount was paid on 09.07.2007.  After arrival of the car to the showroom, the 1^st opposite party had asked for complainant’s residence proof for registration and when the complainant produced LPG bill and the telephone bills the said Srivasta informed that he would arrange for a affidavit for address proof and deliver the car.  The complainant was informed that the car would be delivered on 18.01.2007 at about 10.00 a.m., however the car was delivered only at 11.30 a.m.  Thereafter, the complainant was continuously contacting the 1^st opposite party from the first week of February 2007 onwards to collect the Registration Certificate whereas it was given only on 22.02.2007 by the staff of the 1^st opposite party.  To his dismay, in the Registration Certificate the year of manufacturing was reflected as 2006 instead of 2007 as they promised. Immediately, the complainant raised objection  with the said Srivasta, the senior sales manager of the 1^st opposite party and requested him to replace it with a car of the year 2007 model but there was no proper response from the said Srivasta. Then the complainant was taken to one Mr. P. Srinivas who claimed himself as business head and the said P. Srinivas casually and lethargically told the complainant that the 2^nd opposite party is the manufacturer of the car and the 1^st opposite party only sells the same and hence the 1^st opposite party is in no way responsible for the year of manufacture. However, an apology letter was sent by the 1^st opposite party on 15.03.2007 wherein the 1^st opposite party had clearly admitted that the complainant wanted a car of manufacture of 2007 model.  Hence, the appellant caused legal notice, dated 28.03.2007 to the opposite parties for which there was no response from the opposite parties. Hence, he has come forward with the consumer complaint before the District Commission claiming for replacement of the Maruthi Zen Estilo 2006 model with a new one of the same with 2007 model or in alternative to pay a sum of Rs.1,00,000/- with interest at the rate of 18% per annum as compensation for deficiency in service and unfair trade practice committed by the opposite parties and another sum of Rs.50,000/- as compensation for mental agony with costs.

4.      Before the District Commission, the 1^st opposite party has not appeared and hence the 1^st opposite party was set ex-parte.  

5.     The complaint was resisted by the 2^nd opposite party denying the allegations levelled against them contending inter alia that the complainant purchased the car only from the 1^st opposite party on payment of consideration.  There is no privity of contract between the complainant and the 2^nd opposite party and as therefore the complainant is not a consumer under the provisions of the Consumer Protection Act. The complainant has no case of deficiency in service or unfair trade practice against the 2^nd opposite party. The 2^nd opposite party is unnecessary party to the complainant since there is no privity of contract between the complainant and 2^nd opposite party. By impleading the 2^nd opposite party, the complaint is bad for misjoinder of parties.  Even though the 2^nd opposite party is the manufacturer of the Maruthi Car the 1^st opposite party sells the said vehicle independently under its own invoice and sale certificate as against its own sale tax registration number with other local levies. The 2^nd opposite party had not misrepresented the year of manufacture of the car. The 2^nd opposite party had not entered into any contract with the complainant regarding the sale of the car and there is no locus standi to file any complaint against the 2^nd opposite party.  The complaint is not maintainable before the Consumer Commission and the 2^nd opposite party is not liable to pay any compensation to the complainant and hence sought for dismissal of the complaint.        

5.          Before the District Forum, both sides have filed their respective proof affidavits in support of their case.  On the side of the complainant, Exhibits A1 to A8 were marked and Exhibits B1 to B6 were marked on the side the 2^nd opposite party.

6.        Based on the above submissions and after analysing the evidences submitted by both sides, the District Commission dismissed the complaint holding that the complaint is devoid of merits and there was no deficiency in service and unfair trade practice on the part of the opposite parties. Aggrieved over the order of the District Commission, the complainant has preferred this appeal before this Commission.  

7.      Heard both sides and perused the materials on record.  Keeping in mind the submissions made on either side, we have carefully gone through the materials placed on record.  Since we have discussed the facts in detail above, we refrain from reiterating the same any further in this appeal and only the facts which are germane are discussed hereunder.   

8.       It is the grievance of the complainant that he booked a Maruthi Car, Zen Estilo during the month of December 2006 with the 1^st opposite party who is the dealer of the car manufactured by the 2^nd opposite party. At the time of booking the car, the complainant was very particular about the model of the car that he must be provided with a car of 2007 year model. This was accepted by the 1^st opposite party but later they delivered a car with a model of 2006. This fact was known to the complainant only at the time of receiving Registration Certificate.  Thus the complainant  was deceived by the 1^st opposite party which caused great mental agony to the complainant and hence he approached the District Consumer Commission with a complaint. But we are of the opinion that the complainant is entitled for compensation if he was delivered with 2006 model car instead of 2007 model car provided that he establishes that there was an assurance from the 1^st opposite party that they would provide a 2007 model car.  Therefore, it has to be seen as to whether the complainant had established his case that there was an assurance from the 1^st opposite party to provide 2007 model car prior to taking delivery of the car.  In this regard, we find that prior to taking delivery of the car on 18.01.2007, no correspondence was made between the complainant and 1^st opposite party and nothing was in writing from the side of the complainant asking for specific model of the car.  However, the learned counsel for the appellant relied on Ex A7 letter dated 15.03.2007 sent by the 1^st opposite party to the complainant.  In the said letter, according to the appellant’s counsel, the 1^st opposite party had sought for an excuse if they had in any way let the complainant down. The learned counsel for the appellant/complainant would contend that this wording found in the letter would prove the case of the complainant. The following is the excerpts of the said letter ;

“ During the whole of the above transaction period the model issue was neither discussed nor asked for, and as one is aware that the initial set of Zen Estilo cars in the market can  only be 06 models, in the first week of January 2007 as the transit time is itself minimum 10 to 12 days from MUL, Gurgaon”. 

We request your goodselves to kindly enjoy the proud ownership of the initial priority allotment of Zen Estilo and render your helping hand with your high repute and association to improve our relationship.  You may kindly excuse us if we had in any way, you may think that, let you down.  But, we are consciously sure that you will appreciate our services.”   

On careful perusal of the above letter, we find that the model of the car was not discussed prior to taking delivery of the car.  Further, only a general statement was made asking for excuse from the customer in a commercial parlance in order to keep the customers happy and maintain the good relationship between the customers and the dealers.  The said letter relied on by the appellant is in no way helpful to the case of the appellant/complainant to come to a conclusion that there was an assurance from the 1^st opposite party to provide 2007 model car and later the said assurance was violated and as such there was deficiency in service on the part of the opposite parties. In the absence of any communication from the complainant to the opposite parties prior to taking delivery of the car asking for particular model of the car, we are unable to appreciate the case of the appellant/complainant and therefore we agree with the findings of the District Commission as we do not find any error or infirmity in the order of the District Commission in dismissing the complaint as devoid of merits and therefore we come to the conclusion that the appeal is liable to be dismissed. 

11.      In the result, the appeal is dismissed by confirming the order of the District Commission, Chennai (South) made in C.C.No.276/2007, dated 28.02.2012.  There shall be no order as to costs in this appeal.                   

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                                PRESIDENT. 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Sep/2021