MRS. NEENA SANDHU, MEMBER

1.         This order shall dispose of the aforesaid two appeals, arising out of the order dated 11.2.2011, passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 215 of 2010, vide which it allowed the complaint and directed the OPs to pay a sum of Rs.15,000/- (exchange bonus), Rs.10,000/- as compensation alongwith litigation costs of Rs.5,000/- to the complainant, for adopting an unfair trade practice and unnecessarily withholding the payment of the exchange bonus and causing mental and physical harassment to the complainant/customer, within 30 days, failing which, the OPs were liable to pay the aforesaid full amount alongwith penal interest @ 18% p.a. since the date of filing the complaint i.e. 5.4.2010 till the payment was actually made to the complainant.

2.         Briefly stated, the facts of the case, are that the OP No.1, gave an advertisement in the Chandigarh Bhaskar on 27.3.209 with regard to sale of cars under exchange scheme. The complainant after going through the advertisement, approached OP No.1 and purchased a Hyundai  i-10 car on 31.3.2009 vide invoice No.H200800467 for his personal use, under the exchange bonus scheme, against the full and final payment, and also sold his second hand Hyundai X-ing car to the OP No.1 and submitted all the documents, as required by OP No.1. It was stated that under the exchange scheme, OP No.1 had to pay a bonus of Rs.15,000/- through cheque within a period of one month from the date of purchase of the car, to the complainant. The complainant also wrote letters to OP No.1 on 25.12.2009 and 25.11.2010, but no action was taken by the OPs. It was further stated that about 11 months passed, but OP No.1, neither issued any cheque of bonus, in favour of the complainant, nor acknowledged the letters, written by him. The complainant sent a legal notice dated 23.2.2010/24.2.2010 to OPs No.1 to 3, through Sh.Arun Kumar, Advocate, through Regd. Post, as well as under UPC, but they failed to release the bonus amount to the complainant. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by OP No.1, wherein, it took preliminary objection that the complainant did not fall within the definition of consumer under Section 2(1)(d)(i) of the Consumer Protection Act, 1986, and, as such, the complaint was not maintainable. On merits, the factum of purchase of a new vehicle, by the complainant was admitted. It was stated that under the exchange bonus scheme, the documents were to be submitted, by the complainant, within 110 days of the invoice, but the complainant failed to submit the same, despite repeated requests and reminders dated 7.6.2010 and 20.6.2010.  All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of OP No.1, nor it indulged into unfair trade practice.

4.         Reply was filed by OPs No.2 and 3, wherein, it was stated that the complainant was not entitled to the exchange bonus, as the answering OPs did not receive any documents from OP No.1, with regard to the exchange claim of the complainant.  It was further stated that on receipt of legal notice, he was informed that they have not received any documents and requested to submit all the documents, as per claim policy, so that the exchange bonus could be disbursed, but he failed to submit the same.   All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of OPs No.2 and 3, nor they indulged into unfair trade practice.

5.         The parties led evidence, in support of their case.

6.         The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the judgment.  

7.            Aggrieved by the order, passed by the learned District Forum, appellant/OPs No.2 and 3 filed appeal No.53 of 2011, whereas, appellant/OP No.1, filed appeal No.135 of 2011.

8.         We have heard the learned Counsel for the parties, and gone through the record of the case, carefully.

9.            Alongwith the appeal bearing No.135 of 2011 filed by Joshi Hyundai/appellant/OP No.1, an application for condonation of delay of 64 days, as per the applicant/appellant (as per the office report 75 days) in filing the appeal, was moved by it, on the ground that the certified copy of the impugned order was prepared on 16.2.2011 and delivered by hand on 21.2.2011, which was misplaced and ultimately traced on 7.5.2011, and thereafter, the appeal was filed resulting into delay.

10.       No reply to the application for condonation of delay was filed by the respondent No.1/complainant.

11.       In the application, as also in the affidavit filed in support of the application, by an authorized signatory of OP No.1, it was not specifically mentioned, as to on which date, the certified copy of the impugned order was lost, what efforts were made to trace the same promptly. The appeal was filed after 2 months and 15 days, of the normal period of 30 days, stipulated under Section 15 of the Act, for instituting the same. Even if, it be assumed that the certified copy was allegedly lost somewhere, due to the palpable negligence of the officials of OP No.1, that tentamounted to complete inaction and lack of bonafides, on their part. The appellant/OP No.1 has, set up a concocted story, to seek condonation of delay of 75 days (as per the office report), in filing the appeal. No sufficient cause is constituted for condonation of delay of 2 months and 15 days, in filing the appeal. The application, is, thus, dismissed.

12.       The Counsel for the appellants/OPs No.2 and 3 (Hyundai Motors) in appeal No. 53 of 2011, contended that the learned District Forum failed to appreciate that the respondent No.1/complainant is a Private Limited Company. It was further contended that the learned District Forum had no jurisdiction to entertain the complaint, as the complainant was not a ‘Consumer’ within the meaning of Consumer Protection Act, 1986 and the services of the appellants were availed of for commercial purpose. It was further contended that the complainant failed to establish on record any proof regarding the transfer of the old car in favour of the purchaser of the same. It was further contended that the complainant failed to produce any document to substantiate its claim that either he submitted the documents relating to the transfer of the old car to OP No.1 or produced the same before the learned District Forum. It was further contended that as per the exchange bonus claim policy, apart from the other terms and conditions, certain documents were required for final claim settlement such as :

1.         Invoice of the new car.

2.            Registration Certificate of the old car in the name of the customer, before transfer.

3.            Registration Certificate of the old car after transfer in the name of the purchaser other than in the name of the blood relative of the customer.

4.            Transfer of ownership fee receipt (in case transfer date is not mentioned on the transferred registration certificate).

It was further contended that neither the documents were submitted by the complainant nor by respondent No.2, to the appellants, for grant of exchange bonus and, as such, they could not be held responsible. It was further contended that the learned District Forum failed to appreciate that since the complainant had to submit the requisite documents within prescribed period of 120 days, which he did not submit, and, as such, he was not entitled to the exchange bonus, as claimed. It was further contended that the dealer was not authroised to make any commitment, on behalf of the appellants.   

13.       The learned Counsel for the appellant/OP No.1, in appeal No. 135 of 2011, contended that the learned District Forum misread, misconstrued and misinterpreted the entire documentary evidence produced by OP No.1.  It was further contended that the learned District Forum had failed to appreciate the fact that the benefit under the exchange bonus was applicable on fulfillment of the terms and conditions, under the scheme. The complainant failed to submit the required documents within the stipulated period. It was further contended that the OP No.1 had written letters dated 7.6.2010 and 20.6.2010 to the complainant, but he did not submit those documents. He further submitted that, thus, there was no deficiency, in service, on the part of OP No.1.

14.       The learned Counsel for respondent No.1/complainant contended that in response to the advertisement issued by the OPs, the complainant purchased a Hyundai i-10 car on 31.3.2009 under the exchange bonus scheme, and all the documents were submitted, as required by OP No.1. It was further contended that under the exchange scheme, OP No.1 was to pay the exchange bonus of Rs.15,000/- through cheque within a period of one month, from the date of purchase but he did not receive the said bonus. He approached the OPs through letters dated 25.12.2009 and 25.1.2010 but when nothing positive came out, a legal notice dated 23/24.2.2010 was sent to the OPs but to no effect.

15.            Undisputedly, OP No.1 sold the new car, in favour of the complainant, and purchased his old car, under the exchange bonus scheme. Carbon copy of the invoice vide which, the new car was sold to the complainant, was in possession of OP No.1. It could not be imagined that while purchasing the old car of the complainant, by OP No.1, and taking physical possession thereof on 31.3.2009, it did not receive the R.C of the old car. The Managing Director of the complainant, in his affidavit, in clear-cut terms stated that all the requisite documents of the old car sold by the complainant to OP No.1 were submitted by him. Had the requisite documents of the old car purchased by OP No.1, from the complainant, been not received by it, it would not have slept over the matter, for a long time, as it was for the first time, vide letter dated 7.6.2010 P-2, that it asked the complainant to submit the requisite documents. Again a letter dated 20.6.2010 P-3, was written by OP No.1, to the complainant, in this regard. P-2 and P-3 letters were written by OP No.1, long after the receipt of letters C-3, dated 25.12.2009, C-4 dated 25.1.2010 and legal notice C-5 dated 23.2.2010, from the complainant for payment of exchange bonus. Thus, the OPs, concocted a story that the exchange bonus was not paid, as the requisite documents were not submitted by the complainant. The OPs, thus, were deficient, in rendering service to the complainant, by not paying it the exchange bonus, to which it was entitled. The submission of the Counsel for the appellants, in this regard, being devoid of merit, is rejected.

16.       The contention of OPs No.2 and 3, that they are not liable for any act of their dealer because the relationship between the manufacturer and the dealer is on principal-to-principal basis and errors/omissions, if any, committed by the dealer it is solely responsible for the same. OPs No.2 and 3, failed to produce any document, to the effect, that the relationship between the manufacturer and the dealer was on principal-to-principal basis. Therefore, OP No.2 and 3 are also responsible for the acts of omission and commission of their dealer under vicarious liability. 

17.       The submission of the Counsel for the OPs, that the complainant is not a consumer qua the OPs, because the abovesaid car was purchased in the name of M/s KGS Printek, a Private Limited Company, and the same was being used for commercial purpose, being also devoid of merit is rejected, because in para No.2 of the complaint, it has been specifically mentioned that this car was purchased for the personal use of its Chairman and the complainant company is not generating any profit out of it. Therefore, it cannot be considered that the complainant has purchased this car for commercial purpose. As such, the complainant Company is not dealing, in the business of sale and purchase of cars. The complainant, thus, falls within the definition of a consumer, and the complaint is maintainable.

18.       The District Forum awarded Rs.10,000/- as compensation to the complainant for adopting unfair trade practice, in withholding the exchange bonus, on false grounds by OP No.1, as also for causing physical harassment and mental agony to it (complainant). It may be stated here, that the complainant is a Private Limited Company and, as such, a Juristic person. No physical harassment and mental agony could possible be caused to a Juristic person. Under these circumstances, the findings of the District Forum, regarding the grant of compensation of Rs.10,000/-, to the complainant, for indulgence into unfair trade practice, by OP No.1, being correct are affirmed, whereas, its findings for the grant of compensation for physical harassment and mental agony to the complainant, by OP No.1, as indicated above, being incorrect are reversed. To this extent, the impugned order requires modification. 

19.       For the reasons recorded above, the appeal bearing No.53 of 2011 filed by appellants/OPs No.2 and 3 (Hyundai Motors) being devoid of merit, is dismissed, with the modification, as indicated above.

20.            Appeal No.135 of 2011, filed by the appellant/OP No.1, is dismissed, with the aforesaid modification.

21.       The parties are left to bear their own costs. 

22.            Copies of this order be sent to the parties, free of charge.  

 Pronounced.                                                                        

19^th September, 2011.