By Smt. Padmini Sudheesh, President

The averments in the complaint are as follows:

            The complainant had purchased one 2004 Model Tata Indigo car on 6/4/05.  The permanent  registration was done on 11/4/05 vide Registration No.KL-08/AE-435.  At the time of purchase the respondents had offered to fix additional seat covers free of costs within a few days since there was no stock.  On 19/4/05 the 3^rd respondent telephoned the complainant and told that seat cover is ready at the show room and the car shall be taken to the show room on 20/4/05 morning and  shall be redelivered after fixing the seat covers by the evening.  Later 3^rd respondent took custody of the vehicle from the residence of the complainant.   At that time the vehicle had done only 200 kilometers and the 3^rd respondent promised that the vehicle shall be returned on the next day.  But the vehicle was not returned on that day and the complainant attempted to contact  that respondent over phone and was not available.  Other officials at the show room at Thrissur did not give any clear answer about redelivery.  On 22/4/05 the 3^rd respondent told the complainant over telephone about a defect to the  Power steering and wanted to affix her signature in a paper to correct it and the complainant put her signature in one computer printed paper without reading.  Later on 4/5/05 the respondent returned the vehicle and on 5/5/05 the complainant noticed that the vehicle had done 751 Kms.  There was no necessity of running 551 Km. for taking  the vehicle.  It was also noticed that the vehicle had underwent a major repair on the entire front portion and engine room and obviously on account of a major accident.  The original shape of the vehicle itself was seen lost.  Immediately she informed the matter to 3^rd respondent.  But he denied the vehicle involved in any accident and later admitted that a minor accident had occurred and repaired.  So the complainant sent letter to 1^st respondent and no response.  An E-mail was sent by the complainant’s husband  from Kuwait and a reply E-mail was received.  The Insurance company in which the vehicle was insured, the complainant known that accident claim is pending with the Insurance company and the accident was reported on 22/4/05.  Consequently lawyer notice was issued to 3^rd and 6^th respondents.  They have accepted the notice but kept silence.  The 5^th respondent send a reply notice, but no remedy.  Again he sent another letter to 5^th respondent, but no response.  Hence the complaint.

            2. The averments in the counter of 1^st and 6^th respondents are that the complainant has no case that there has  been any deficiency in service on the part of these respondents.  These respondents  are unnecessary parties.  The  2^nd respondent  is the dealer of the car for and on behalf of these respondents and the respondents 3 to 5 being principal officers of the 2^nd respondent are agents of these respondents are denied.  The relationship of these respondents with the 2^nd respondent is that of principal  to principal.  This respondent is in no way liable for the offers if any made by the 2^nd respondent or its officers.  This respondent has no control over the action of  respondents 3 to 5.  The allegation that she was unable to use the vehicle after 20//4/05 is not admitted and also denied the claim for loss or damage.  This respondent is not liable to give any compensation.  There is no cause of action against this respondent.  Hence dismiss the complaint.

            3. The averments in the counter of 4^th respondent is to the effect that there is no consumer relationship with this respondent by the complainant.  This respondent is not liable for the acts if any committed by the 3^rd respondent.  Hence dismiss the complaint.

            4. Other respondents called absent and declared exparte.

            5. The points for consideration are :

1) Is there any deficiency in service on the part of respondents ?

2) Is the complainant is entitled for the value of the vehicle and other expenses incurred for purchasing  the car ?

3) Other reliefs and costs ?

            6. The evidence consists of Exhibits P1 to P27and Exhibit R1.

            7. Point No.1: The complainant is a house wife and her husband is working abroad.  She had purchased one 2004 model Tata Indigo Car on 6/4/05.  The permanent  registration of the vehicle was done on 11/4/05 vide registration No.KL-08/AE-435.  On 20/4/05 the 3^rd respondent had taken the vehicle from the residence of complainant under the pretext  to fix new seat covers.  But the vehicle was not returned even on the next day and the complainant tried to contact the 3^rd respondent but was not available.  On 22//4/05the 3^rd respondent told the complainant over telephone that there is a defect for the functioning of power steering  and to correct it by the company the complainant should affix her signature in a paper and the complainant came to the residence of respondent and obtained her signatures.  On 4/5/05 at 7.30 PM the 3^rd respondent returned the vehicle and on the next day the complainant noticed that the vehicle had done 751 Kms. And  also noticed that the vehicle had underwent a major repair on the entire front portion and engine room on account of a major accident.  After that the complainant enquired about it with the 3^rd respondent and notice sent to the 2^nd respondent.  But there was no reply.  According to her she had suffered much hardship and at last this complaint has filed.  The 1^st, 4^th and 6^th respondents filed counter and others remained exparte.  The selfsame counsel is appearing for the 1^st and 6^th respondents.  In the counter the 1^st respondent stated that the relationship of this respondent with the 2^nd respondent is that of principal to principal.  Other than attending to the claims under the warranty, this respondent is in no way liable or responsible for the offers if any made by the 2^nd respondent or its officers at the time of sale.  They also stated that the 1^st respondent has no control over the actions of respondents 3 to 5 and not liable for the alleged damage.  The averments in the counter filed by 4^th respondent is formal and no defence is raised.  In the counter the 6^th respondent sated that he has  no control over the actions of respondents 3 to 5 and not liable for the alleged damage caused to the complainant’s car by the 3^rd respondent.  He also stated that there is no merit in the complaint and liable to be dismissed.  From the counter of above mentioned respondents   there is no serious contention.  All of them stated that they are not liable for the acts committed by other respondents.  The 1st and 6^th respondents further stated that the complainant  has to put strict proof for each and every allegation.  The definite case of the complainant is that the new car purchased by her on 6/4/05 for an amount of Rs.4,99,611/-was taken away by the 3^rd respondent on 20//4/05 under the pretext to fix seat covers and not returned in time and returned after a heavy repair due to an accident.  The car was taken bt 3^rd respondent in showroom condition and not used by the complainant.  The 3^rd respondent who was the sales executive of the 2^nd respondent was the person who has taken the vehicle from her residence.  According to the complainant the vehicle was met with an accident and returned after a major repair.  In the counter no serious denial is there.  The complainant has produced documents and  marked as Exhibits P1 to P27.  Exhibit P26 series are the photos and negatives.  The photos show the condition of the vehicle after the accident.  The gravity of the incident occurred due to the acts of 3^rd respondent is revealed   from Exhibit P26 series and not opposed by the respondents.  According to the complainant at the time of purchase the respondents had offered to fix additional seat covers free of costs within a few days as there was no stock.  Later the 3^rd respondent telephonically informed the complainant about the availability of the seat cover and taken the vehicle on 20/4/05 in show room  condition and he promised to return on the next day itself.  But it was not returned.  Later on 22/4/05the 3^rd respondent told the complainant that there is a defect to the power steering  and to correct it signature of the complainant is necessary and also obtained the signature.  After that on  24/5/05 evening the 3^rd respondent returned the vehicle and the next day the complainant noticed the major repair on the entire front portion and engine room.  According to her it was due  a major accident.  She also noticed that the vehicle had done 751 Kms. As against 200 Kms.  Immediately after this she informed  these aspects to the  3^rd respondent and he had denied and later agreed and told that an accident had occurred and was repaired.  The 3^rd respondent who has done all these mischief remained absent and set exparte.  There  is also no counter  evidence to the evidence of complainant.

            8. After noticed the aspect of accident and repair the complainant sent a registered letter to the 2^nd respondent on the next day itself and no reply is received from them.  The accident occurred to the vehicle is not denied by the respondents.  The vehicle is insured with United India Insurance Co. and the 3^rd respondent had brought the vehicle to workshop for  accident claim works.  On knowing this the complainant requested the insurance company not to entertain the claim without hearing her.  After notifying the accident occurred to the vehicle on 5/5/05 the complainant  sent letter to 2^nd respondent.  Ext.P10 is the copy of letter sent on 6/5/05 by the complainant to 2^nd respondent.   Ext. P11 is the postal  receipt.  No reply is sent by the 2^nd respondent to that letter.  They had to reply for the letter because a grave mischief is done by their sales executive, the 3^rd respondent.  Again on  13/5/05 she had sent a letter to the 2^nd respondent and no reply is also there.  The copy of letter is produced and marked as Ext. P16 and Ext. P17 is the postal receipt.  Another copy of letter produced by complainant and marked as Ext. P18 showing the default and deficiency on the part of 2^nd respondent.  In that letter she had expressed her suspicion about the foul play of the respondents.  To that letter also there was no reply.  At last on 3/6/05 she was caused to send a lawyer notice and a reply was sent by the 2^nd respondent only.  The reply of the 2^nd respondent is marked as Ext. P21 and contains the request of Koyenco Autos for time to take a decision.  In that they have expressed the view that they have no prior knowledge  about the incidents.  But this is not acceptable since there is an E-mail reply from them and marked as Exhibit P13.  Exhibits P10, P12, P16 and P18 are the letters sent by the complainant to the 3^rd respondent and no response was there except an E-mail message.  On 24/6/05 the 2^nd respondent sent the Exhibit P21 letter to the complainant seeking 15 days time to arrive a decision.  After that there was no information from them and the complainant was forced to send another letter dated 12/7/05 and the copy is marked as Exhibit P22.  After that there was no further information or action on the part of respondents.  The 5^th respondent who had sent the Exhibit P21 letter to complainant also did not accept the notice issued from the Forum.  They not even appeared and contested the matter. From the records it is realized that they are willfully abstained  from the legal proceedings initiated by the complainant.  The grave mistake and mischief done by their sales executive are known to them and they remained idle by justifying the actions of 3^rd respondent.  The act of  Koyenco show that all the plays are with their connivance.  The vehicle was taken by the 3^rd respondent   in show room condition and plied the vehicle illegally for 551 Kms.  On the way the vehicle met with an accident and the nature of accident is seen from the photos produced by the complainant and also from the surveyors report.  By committing such a huge unjust act the respondents remained mum without responding.  The situation of the complainant was very miserable.  She had purchased the vehicle with much expectation and she, the owner could not use the vehicle even for one day.  The respondents 2 to 4 cheated the complainant easily.  The 3^rd respondent who is primarily liable for this unjust  and illegal act trapped the complainant.  Upon the questioning of complainant he had admitted that the vehicle met with an accident and got repaired.  There is no evidence to the contrary and all the records speak the case of complainant true and genuine.  The 4^th respondent who has produced a letter and marked as Exhibit R1 states that every malpractices were committed by 3^rd respondent and nobody is responsible for the alleged acts.  It is like a confessional   statement of 3^rd respondent.  But we are not in a position to believe this letter under the circumstances of the case.  The Ext.R1  letter is a computer print and not handwritten and there is not even other signature to compare also.  Moreover the complainant who was very vigilant about the acts of the respondents and consequences immediately responded against the Koyenco and no response was from them.  So we seriously suspect the genuineness of Ext. R1.  Ext.P21 is a reply to the Ext.P19 lawyer notice and is dated 24/6/05 speaks nothing about Ext. R1 letter.  The R1 letter is dated 7/6/05 and Ext.P21 is dated 24/6/05.  If Ext. R1 was executed before Ext.P21 they can very well intimate this fact to complainant. Even after Ext. P21 there was no action from the part of Koyenco and the complainant again sent Ext. P22 letter.  So Ext. R1is a concocted  document and is an attempt by the Koyenco to shift the entire burden on the head of 3^rd respondent.  The service deficiency of respondents 2 to 5 is proved and this point is found against them.

            9. Point No.2 : The deficiency in service of respondents 2 to 5 is proved.  There is no evidence against the respondents 1 and 6.  No service deficiency is established against them.  The complainant did not even intimate the matters to the manufacturers.  This is not a case alleging manufacturing defect and the respondents  1 and 6 are not responsible for the acts of respondents 2 to 5.  So the  respondents 2 to 5  are liable for the loss and sufferings suffered by the complainant.  There is no other remedy except replacement of a new vehicle.  She is not entitled for separate compensation because after the redelivery 4/5/05 she is using the vehicle. If she is entrusted the car to the concerned authorities at that time she is definitely eligible for separate compensation.  Now we are in the view that she is eligible to get a new car of the same brand and   she is not entitled for separate compensation.

            10. In the result the complaint is allowed and the respondents 2 to 5 are directed to deliver a new car of the same brand and is at liberty to take the disputed car from the complainant after delivery of the new car.  The respondents are directed to pay Rs.2000/- (Rupees Two thousand only) as costs to the litigation.  Comply the order within two months.

            Dicated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 20^th day of January 2009.