Delhi

West Delhi

CC/17/290

DARPAN - Complainant(s)

Versus

M/S BAS ENGINEERING PVT. LTD. - Opp.Party(s)

17 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI-110058

 

Complaint Case No. 290/2017

 

In the matter of:

 

SH. DARPAN

S/O SH. KANWAL SINGH

R/O WZ-77, HARIJAN COLONY

TILAK NAGAR, NEW DELHI-110018                                          ..……COMPLAINANT

 

VERSUS

1.M/S BAS ENGINEERING PVT. LTD.

RING ROAD HONDA,

A-2, UDYOG NAGAR INDUSTRIAL AREA,

ROHTAK ROAD, NEW DELHI-110041

 

 

2. HONDA CARS INDIA LTD.

409, TOWER B

DLF COMMERCIAL COMPLEX, JASOLA,

NEW DELHI-110025                                                                        …….. OPPOSITE PARTIES

 

DATE OF INSTITUTION:  JUDGMENT RESERVED ON:           DATE OF DECISION:

15.05.2017 17.11.2022    17.11.2022

 

CORAM

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Present: Mr. Akshay Bedi, counsel  for the complainant along with

                 complainant in person.

                  None for OP.1

                  Mr. Rakshit Jain ,counsel for OP.2

 

ORDER

Per: Mr. Anil Kumar Koushal, Member

 

            Facts of the present case as culled out from the record are detailed below:

2.       According to the complainant, OP.No. 2 is manufacturer of premium cars in India and  OP.1 is the authorized dealer of  OP No.2 and thus  OP. No.2 being in relation of master-agent is liable for the acts and omission of  OP. No.1.

3.       The complainant states that he was working as a Driver with Cab owner, associated with Cab providers like Ola, Uber etc., and was desirous of purchasing a car of his own and for running the same for the cab provider so as to earn a good livelihood for himself. The complainant thus approached OP.1 for purchasing a car which was to be run as a cab/commercial vehicle in May, 2016. He met with the Executive of OP. No.1  Mr.Aditya Dutt who dealt with his case. As per complainant, he  was represented by OP.No.1 that OP No.2 is making cars only in diesel and petrol versions, however, after the purchase of the vehicle,  OP. No. 1 shall get a duly approved CNG Kit fitted in the said Car so as to make it compliant with the norms for running the vehicle as a commercial vehicle/Cab and the OP No. 1 also assured of getting the registration of the said vehicle as commercial vehicle done. On the basis of  assurance of  OP No.1, the complainant agreed to purchase a 'Honda Amaze Car, the cost of which was represented to be Rs.6,32,158/- including the charges for the CNG Kit as well as the registration charges. On 30.06.2016, the complainant accordingly paid a sum of Rs.1,32,158/- as the down payment towards the purchase amount and for remaining amount, availed a loan facility from Syndicate Bank, Tilak Nagar branch, New Delhi, for a sum of Rs.5,00,000/-. which amount was credited by the said Bank to the account of OP No. 1 on 22.06.2016. After the payment of entire amount, when the complainant visited OP. No. 1 for taking the delivery of the vehicle, he was asked to pay a further sum of Rs.14,900/- claiming that there has been escalation in the cost. Although, the cost was agreed to be Rs.6,32,158/-, however, reluctantly the complainant paid a further sum of Rs.14,900/- and OP No. 1 thereafter delivered the vehicle i.e. Honda Amaze, 1.2 EMT (1-VTEC) Non Metallic Petrol, having  Chassis No.MAKDF151FGN201226, Engine No. L12B35110961 Colour Tafeta White, to the complainant vide Tax/Retail Invoice bearing No. H39832 dated 30.06.2016 and the temporary registration number was also allotted for the said vehicle. At the time of delivery, it was represented to the complainant that the complainant has to deposit the vehicle for few days with OP No.1 for the fitment of  CNG and for the registration of  vehicle and for completion of the paper work.

4.       As per complainant, 10 days after taking  delivery of the vehicle from OP.2,  he deposited the above said vehicle with OP. No. 1 on 10.07.2016 through its sales persons/executive Sh. Aditya Dutt having Employee Code No. 2085 and it was represented to the complainant that within two weeks the vehicle duly fitted with the CNG Kit along with the registration certificate shall be handed over to the complainant. After 2 weeks, the complainant again contacted OP No. 1 through its Executive Aditya Dutt for the delivery of the above said vehicle, however, the complainant was represented that on account of some unavoidable delay, it would take another 2 weeks for the delivery of the vehicle along with the CNG Kit etc., and the complainant again believed the said representation. However, even after the passage of said 2 weeks, the vehicle was not delivered and again the complainant was asked to keep patience as the OP. No. 1 claimed some technical glitch which has resulted in the delay. Thereafter the complainant kept on making enquiry at regular intervals and every time the complainant was asked to have some more patience and in this manner, weeks became months and from 10.07.2016 till the filing of the present complaint, the vehicle has not been delivered to the complainant nor any satisfactory answer is being given to the complainant, rather the complainant is given lame excuses just in order to further avoid him and to further mislead him.

5.       According to complainant, as the vehicle has not been delivered after the fitment of the CNG Kit, it has resulted in direct financial loss to him as had the delivery of the vehicle been made in time, the complainant would have plied/run the same as cab and would have easily earned Rs.60000-70000/- per month, because the Cab Owner with whom the complainant is associated, at present as driver, is easily earning about Rs.60000-70000/- per month and this is thus a direct loss of earning to the complainant to the extent of about Rs.4,50,000/- for last 10 months. Moreover, the complainant has also been made to run hither and thither by OP. No. 1 without any cause or reason, despite having received the entire payment of the vehicle causing him unnecessary hardships. Complainant further states that  apart from this, as he had availed loan facility from Syndicate Bank for purchasing the aforesaid vehicle, for which he is required to pay a sum of Rs.10,060/- as EMI towards the repayment of the loan and as the loan was disbursed in June 2016, till date the complainant has paid 10 installments totaling to Rs.1,00,600/ which amount the complainant has paid out of pocket. Had the vehicle been delivered in time as agreed and assured, the complainant would have easily paid the EMIS from his such earning but the complainant is unable to pay the EMIs properly, as neither he is able to run the vehicle nor his present income is sufficient to pay EMIs.

6.       Complainant states that in these compelling circumstances, he  was constrained to report the matter to OP No. 2 at its Customer Care Centre No. 01139898918 on 11.02.2017,  however, despite being duly apprised in this regard, the OP. NO. 2, who is in relationship of Master and Agent with the opposite party No. 1, has failed to direct OP No. 1 to deliver the vehicle to the complainant, which shows highhandedness and scant regard of the opposite parties to the plight of the customers.

7.       It is contended by the complainant that he has been made to suffer by the acts of the opposite parties as it was on the representation of OP No. 1 that it would get the necessary fitment for the CNG Kit done within 2 weeks that the complainant had agreed to purchase the vehicle from opposite party No. 1, for which vehicle the complainant had even availed loan facility with the  hope and belief that after the vehicle is delivered, the complainant would earn a good living out of it. However, the OPs have failed to deliver the vehicle to the complainant after the fitment of the CNG nor any satisfactory answer has been given in this regard and the complainant has been harassed and made to suffer mental agony and trauma, for which the opposite parties are liable to compensate the complainant.

 

8.       Finding no relief  to his grievance, the complainant got issued a legal notice dated 15.02.2017, thereby calling upon OP No. 1 to deliver to the complainant forthwith the aforesaid vehicle along with the duly fitted CNG Kit and the registration certificate along with necessary endorsement thereon about the vehicle being CNG pliant and to remit/pay to the complainant a sum of Rs.4,50,000/- for the loss suffered by him on account of non-delivery of vehicle within time along with compensation to the extent of Rs.5 lakh for the mental pain and agony which the complainant has been made to suffer on account of conduct and attitude of the opposite parties. But despite service of the legal notice, OP.No.1 has neither replied thereto  nor complied with the same.  As per the complainant,  OP No.1 has indulged in unfair trade practice  and OP NO.2 being the master to its agent, has failed to direct  OP NO.1 to ensure redressal of grievance of the complainant and is thus also liable for the deficiency of service apart from being vicariously liable for the unfair trade practice committed by OP No. No. 1 and as such both the opposite parties are guilty of involving into unfair trade practice as well as deficiency in services to the complainant, as defined under section 2 (g) of the Consumer Protection Act, 1986..

9.       By way of the present complaint, the  following reliefs are sought:

a)       To deliver to the complainant forthwith the aforesaid vehicle i.e. Honda Amaze, 1.2 EMT (1-VTEC) Non Metallic Petrol, having MAKDF151FGN201226, Chasis Engine No.  L12B35110961 Colour Tafeta White along with the duly fitted CNG Kit and the registration certificate along with necessary endorsement thereon as regards the vehicle being compliant with Government norms for CNG vehicles, in the interest of justice;

 

b)       Direct the opposite parties to remit/pay to the complainant a sum of Rs.4,50,000/- for the loss suffered by him on account of non delivery of vehicle in time, in the interest of justice.

c)       Direct the opposite parties to pay to the complainant a sum Rs.5 lakh as compensation for the mental pain and agony suffered by the complainant on account of the acts and omissions of the opposite party, in the interest of justice.

d)       Direct the opposite parties to pay a sum of Rs.21,000/- to the complainant towards the cost of the present litigation, in the interest of justice.

e)       Grant any other relief, as this Hon'ble Forum may deem fit and proper in the facts and circumstances of the case in favour of the complainant and against the opposite parties, in the interest of justice.

10.     Along with the complaint, the complainant filed copy of his election I Card, sales contract dated 06.05.2016 executed between OP.1 and the complainant for purchase of the vehicle in question, copy of tax invoice of the vehicle, copy of insurance of the vehicle, copy of statement of account of Syndicate Bank, Tilak Nagar, New Delhi  for the period from 01.5.2016 to 28.12.2016 filed on record to prove payment of consideration amount to OP.1, copy of receipt dated 10.07.2016 issued by Mr. Aditya on behalf of OP.1  towards receipt of delivery of vehicle for fitment of CNG etc., copy of legal notice dated 15.02.2017.

11.     Upon admission of the complaint on 24.05.2017, notice was issued to OPs.   Both the OPs 1 & 2 file their respective replies on record.

12.     In the reply filed by OP.1 a preliminary objection was taken by it that  admittedly the vehicle is a commercial vehicle and purchased by the Complainant for commercial purpose. Therefore, the provisions of Consumer Protection Act are neither attracted nor applicable to the facts of the present case and complaint deserves to be dismissed.  There is no relationship of consumer and service provider between the parties. The answering OP who is a dealer of Honda Cars/OP.2 has already given delivery of the car in a running condition and there is no complaint whatsoever towards running of the car. The alleged complaint is on account of non-clearance of the CNG by the Transport Department of Govt. of NCTD for which the answering OP cannot be held liable or responsible. It is submitted that the answering OP is only facilitating the fixing of CNG and get it cleared from the Government of NCTD. Therefore, the answering OP cannot be held responsible for any of the acts of Government of NCTD.

13.     OP.1 did not deny that  OP.2 is manufacturer and OP.1 is their  dealer. But it is wholly false that both are in any manner liable for any of the acts of the Transport Department, Government of NCTD. It is submitted that neither of the OPs are in any manner liable for any amounts as being claimed by the Complainant as there is no deficiency whatsoever on the part of OPs.

14.     OP1 stated that after the delivery of the car with due satisfaction of the complainant, the complainant approached the answering OP for fitting duly approved CNG in the car and the complainant was duly intimated that said CNG can be fitted only after prior approval of the Transport Department of the Govt. of NCTD and the OP after receiving the necessary instructions had sent papers to the Transport Department for clearance but for the reasons best known to the Transport Department, the said clearance has not been received till date.  OP.1 denied that any assurance was given to the complainant  that the vehicle would be fitted with CNG along with registration certification within two weeks. It is submitted that such assurance cannot be given nor was ever given as the grant of registration certificate is not within the purview and power of the answering OP and the same is granted by the Transport Department of Govt. of NCTD.  OP.1 submitted that as and when the complainant approached it, the complainant was informed that proper follow up is being done with the Transport Department but it appears that there are some technical hitches on the part of the Transport Department and therefore, the said clearance is not being given by the Transport Department and the complainant was assured that as and when the clearance is received, the Registration Certificate with endorsement of CNG would be immediately given to the complainant.

15.     OP.1 refuted the contention  of complainant regarding any financial loss as alleged or otherwise as wholly imaginary and disputed such imaginary loss cannot be adjudicated in the summary proceedings before this Commission. It is submitted that loss, if any, is required to be proved by a cogent evidence but it can only be done before an appropriate civil court. All other allegations as have been made are, therefore, specifically denied.

16.     OP.1 denied having received any legal notice from the complainant.  OP.1 also denied having intentionally committed any unfair trade practice and/or there is any deficiency of service on the part of the answering OP. OP.1 submitted that the  complaint is false and no relief whatsoever can be granted. The OP has no objection if the car is taken delivery by the complainant and as and when necessary clearance is received from the Transport Department, the OP shall carry out the CNG fitting and pass on the necessary Registration Certificate to the complainant. No reliefs as claimed can be granted to the complainant and the complaint deserves to be dismissed with costs.

17.     OP.1 did not file any document with its reply.

18.     In the reply filed by OP.2 it  submitted that a bare perusal of the Complaint makes it evident that none of the provisions of the Act are attracted to the subject matter of the present Complaint. The complainant has miserably failed to bring the present complaint within the ambit of section 2(1)(c) of the Act as against the answering OP. Further, the complainant has blatantly failed to raise any allegation against the answering OP and has failed to even address the critical aspects as outlined in section 2 (1) (c) of the Act. The Complainant has failed to disclose any 'defect' or 'deficiency in service' or 'unfair trade practice' under section 2(1)(f) (g) and (r) of the said Act qua the answering OP so as to bring the present complaint within the purview of the said Act.  According to OP.2, the complainant has clearly admitted in paragraph no. 3 of his complaint that he had purchased the subject car and wanted to run the same as a cab and for commercial purposes. Therefore, the complainant does not fall under the definition of a "consumer" as provided under section 2(1)(d) of the Consumer Protection Act 1986 (hereinafter referred to as "the Act"). In view of the same, the present complaint ought to be dismissed right at its threshold.

19.     OP.2 denied that the relationship between the answering OP and OP No. 1 is that of principal-agent and, therefore the answering OP are liable for the acts and omissions of OP No. 2. This statement made by the complainant is  vehemently denied as the same is not only incorrect and erroneous but it  seems that the complainant is perplexed with the exact roles performed by the answering OP and all its authorized dealerships including OP No. 1 herein. The complainant has merely assumed the relationship between the OPs to this complaint and wrongly impleaded the answering OP even though not a single allegation can be leveled against him.

20.     According to OP.2, the main grievance of the complainant resulting into the present complaint is with respect to the fact that the complainant had purchased a Honda Amaze Car on 22.06.2016 for an amount of Rs.6,32,158/-  which the complainant had paid to OP No.1. The complainant further averred that OP No.1 further asked the complainant to pay a sum of Rs.14,900/- claiming that there has been escalation in the cost of the subject car. The complainant therefore paid the additional sum to OP No. 1 on 30.06.2016. As per the allegations of the complainant, it was represented to the complainant by OP No. 1 that he had to deposit the subject car back with OP No. 1 for fitment of the CNG, for the registration of the vehicle as also for completion of the paper work. The complainant lastly alleged that the representatives of OP No. 1 delayed in delivering the subject car on one account or the other and till date the subject car has not been delivered to the complainant. In response to the said allegations, OP.2 submitted that the same mainly pertain to the authorized dealer i.e. OP No. I and not to the answering OP who share a principal to principal relationship between each other. The said relationship is derived from an express dealership agreement entered between the OPs herein which states that there is not agency relationship between the manufacturer i.e the answering OP and the dealership i.e. OP No. 1. Therefore, in view of the same, the acts and/or omissions of the dealership ie. OP No.I cannot be regarded as that of the answering OP and the liability of the same can also not be transferred. The liability of each party is limited to their scope and nature of work.  The answering OP  and all its dealerships including OP No. I are separate legal entities which exist and operate independently. The answering OP merely manufactures its pioneering product i.e. cars/automobiles and sells the same to each dealership on a no-name basis and upon bulk orders made by them. Thereafter, the authorized dealers including OP No.1 sell the cars to the end-consumers and the public at large, based on their own independent marketing strategies. OP.2  further  submitted that at no time  it is in contact with or privy to the end consumers and any commitments made with respect to delivery date of a car purchased by the end-consumer is a representation made by the authorized dealer alone and thus obligation for the same cannot be planted on the answering OP as both the OPs have their own roles to play and neither party assumes any liability for the acts/omission of the other. All ancillary services such as after sale service or delivery services (to the end consumer) are exclusively provided by the authorized dealers and not the manufacturer. In view of the same, it is submitted that the present complaint only pertains to OP No. 1 and further no allegations whatsoever have been raised or made against the answering OP, therefore impleading them in the array of parties is arbitrary and uncalled for. It is only in the case of any manufacturing defect that answering OP is required to meet its obligations as per the terms of the warranty and the dealership agreement. Any grievance with respect to deficiency in service and/or unfair trade practice can only be made against OP No.1. Furthermore, the aforementioned terms and conditions in the dealership agreement form a legally binding contract between the parties, who have to abide by them. This stance has been clearly laid down in UIIC vs. Harchand Rai 2004 (8) SCC 644.

21.     OP.2 submitted that the Complainant in the present case has not suffered any damage on account of the negligence of the answering OP and hence not entitled for any damages or compensation as prayed. Reliance is placed on Commercial Officer Manager, Patna vs Bihar State Warehousing Corporation, wherein the Hon'ble National Commission held that “…the award of compensation by the forums established under the Act has to be made on well recognized legal principles governing the quantification of damages or compensation. The Compensation, to be awarded has to be quantified on a rational basis on a consideration of material produced before the adjudicating forum showing the extent of injury suffered and the manner in which and the extent to which monetary loss has been caused thereby to the Complainant". The Complainant in the instant case has not suffered any loss on account of the answering OP's actions and the claim for the injury suffered is excessive and exaggerated. Under Section 14(1) (d) of the Act, the Consumer is entitled to claim compensation for the injury or loss suffered by him due to the negligence of the Opposite party. In the instant case there is no question of any negligence on the part of the Answering OP and no loss or injury has been suffered by the complainant due to the same. This stance has also been reiterated in Indian Airlines v/s Shri Rajesh Kumar Upadhyay, (1991) 1 CPJ 206 (210,211) (NC),  wherein the National commission held that "The Forums constituted under Consumer Protection Act are invested with jurisdiction under Sec. 14 (d) of the Act to award compensation to the consumers only for any loss or injury suffered by the consumers" due to the negligence of the opposite party'. Proof that there was negligence and that it had caused the particular loss or injury is a "sine qua non" for the award of compensation under this provision. Where there is no such proof, compensation cannot legally be awarded under Sec. 14 (d) of the  Act.”

22.     It is the contention of OP.2 that the obligation of the answering OP is to ensure that the cars manufactured by them are state of the art and safe for driving, however, sale of the car and its connected services are undertaken by its dealer. The answering OP has no role or liability whatsoever in respect of all such services.  The obligations of the answering OP pertain only to the warranty conditions of the cars manufactured by it and thus they cannot be made responsible for the services to be rendered by OP No. 1. In view of the same, the answering respondent cannot be made party to the present complaint.

23.     As per OP.2 the present complaint is bad for mis-joinder of parties as the complainant has impleaded the answering OP in the array of parties, when no liability can be fastened on them, who can only be liable to the extent that the subject car suffers from any manufacturing defect.

24.     OP.2 submitted that in the  light of  preliminary objections raised and reply submitted by it, the present   Complaint be dismissed in accordance with Section 26 of the Act.

25.     OP.2 filed with its complaint, copy of the renewal of dealership agreement dated 01.04.2012 entered into between it and OP.1, copy of the authority letter issued in favour of its Manager-Legal Mr. M.P. Hari Das, to sign the documents filed in this case and to pursue the matter.

26.     Complainant filed rejoinder to the reply filed on behalf of OP.1 and denied all the contentions and objections of OP.1 as baseless and contrary to the facts on record. Complainant denied the allegation of OP.1 that the vehicle purchased by him was commercial vehicle and was to be used for commercial purposes.  He submitted that he had purchased the vehicle for plying the same as cab not only for self use but also for earning his own livelihood which cannot be termed as a commercial purpose.  Complainant denied that there was no relationship of complainant as a consumer with OP.1 as a service provider.  He denied that the complaint is only qua non-clearance of CNG by the Transport Department, Delhi or that the OP.1 cannot be held liable for the same.  Complainant denied that OP.1 was only facilitating  fixing of CNG and getting it cleared from GNCTD of Delhi or that OP.1 cannot be held responsible or that the clearance of the vehicle for CNG  is merely an act of Government and OP.1 has no role to play therein.  Complainant submitted that OP.1 is only avoiding its liability  and responsibility towards its customers as it was  only on the representation of OP.1  that it would get duly approved CNG kit fitted in the car of the complainant and get it registered as such that the complainant agreed to purchase a car from it  for which the OP.1 has charged Rs.35,000/-  and now OP.1 cannot absolve its liability and say that there is no relationship  of consumer and service provider between the parties. The said amount is very much reflected in the sale  contract/estimate dated 06.05.2016 already placed on record and the same amount is also shown in the tax invoice dated 30.06.2016.  According to complainant, OP.1 had categorically told him to  deposit his new car with it  for few days  for fitment of CNG and its clearance  but despite passage of more than one and a half year, OP.1 has not got the vehicle cleared  nor has delivered back the vehicle to the complainant.

27.     Complainant submitted that the argument of OP.1 that the vehicle of the complainant has not been cleared by the Transport Department, Delhi  is ludicrous as it is  beyond comprehension  that the vehicle shall not be cleared by the Department for such a long time in case the OP.1 had fulfilled  all the formalities  including complete paper work. This clearly shows that  OP.1 had not put in serious efforts  to get the vehicle cleared  from the Transport Department.  No documentary evidence to the effect that the clearance was not granted by the Department has been placed on record.  As per complainant, had the complainant taken up the matter with the Transport Department and deposited the vehicle with them for approval of CNG kit,  it would have received an acknowledgement thereof  and also the objections raised to non-clearance of the CNG kit.  Complainant submitted that it is not the case of OP.1 that  from July, 2016 onwards till date,  it has not got approved  other vehicles sold by it from the Transport Department or it has not obtained clearance  for CNG of any other vehicle sold by it.  The OP.1 could not give any plausible explanation  as to why only the vehicle of complainant was not got approved for CNG fitment from the Transport  Department.   The OP.1 cannot be permitted to impute blame  to the Government Department for its own conduct, omission and commission. The complainant even had paid extra amount of Rs.14,900/- over and above the cost of vehicle of Rs.6,32,158/- on a representation made by OP.1 that there was escalation in the cost of vehicle.  Complainant reiterated that at the time of depositing the vehicle with OP.1 for fitment of CNG kit, he was  assured that the clearance for the same shall be received from the Transport Department within two weeks.  If at all there was any hindrance in clearance of the CNG kit in his vehicle, it was incumbent upon OP.1 to have apprised the complainant about it but nothing was done  either to deposit the papers with the Department  for approval of CNG kit  or any effort apparently made in that regard. Atleast the complainant was never apprised of any technical glitch faced by OP.1 in clearance of the CNG kit in his vehicle as no document to that effect has been placed on record.    All this has resulted in mental harassment and agony to the complainant.   The  obligation of OP.1 was not limited to supplying the car or that all the obligations of OP.1 have been fully complied with or that there is no complaint as to running of the car.  Complainant submitted that because of the deficiency on the part of  OP.1, he has not been able to earn his livelihood because of which he has suffered financial loss.  Complainant submitted that after delivery of the car, he approached OP.1 for fitment of CNG kit in the car and at no point of time he was told that the CNG kit can be fitted only after approval from the Transport Department.  Complainant contended that it is not he who had approached  OP.1 for fitting of CNG kit, rather it was the representation of OP.1 that OP.2 is manufacturing petrol and diesel vehicles and OP.1 after sale  of the vehicle, shall get a duly approved CNG kit fitted  and also get it cleared from the Transport Department, Delhi.

28.     Complainant submitted that mere assertion of OP.1 that the legal notice sent by the complainant was not received by it, does not  render such  notice incorrect or ingenuine or invalid, as claimed by OP.1.  The OP.1 has not disputed the address printed on the legal notice  and this itself is proof  of delivery of the notice to OP.1. Complainant also denied that the remedy to claim financial loss suffered by him in relation to earning his livelihood lies only before the Civil Courts.  The complainant contended that he is very much a consumer under the CP Act.

29.     Based on the above submissions, the complainant reiterated and reaffirmed the submissions made in the complaint.  

30.     Complainant also filed rejoinder to the reply of OP.2 and denied all the allegations made  in its  reply.  Complainant denied that none of the provisions of the CP Act apply to the facts of the present complaint and that the vehicle was purchased for commercial purpose. Complainant denied that he is not a consumer under Section 2(1)d) of the Act.  He reiterated that the vehicle was purchased for earning his livelihood.  He also denied that he  has not been able to prove deficiency or unfair trade practice under Section 2(1)(f),(g) and (r)  of the Act. According to the complainant, the dealership agreement  placed on record by OP.2 specifically covenanted  the dealership with the  condition in the clause No.4.5 of the agreement that the dealer  shall focus on and concentrate all his efforts on promoting  the sale of the products  and service of the automobiles to the customers so located  so as to be able to achieve such service level, customers convenience and customer satisfaction  standard as may be defined/laid down by the  company’s/OP.2 policy and guidelines, operational standards etc. issued from time to time.  Further as per the agreement, the company/OP.2 has reserved to itself the right to impose penalty on the dealer in case the dealer does not implement or adhere to the prescribed guidelines of the company/OP.2 and in case  of further non-compliance, the company shall have the right to terminate the contract.  All this shows that the dealer is bound by the  terms and conditions so imposed by the company/OP.2 and the dealer  is further duty bound to adhere to the customer service standards and conveniences and the company/OP.2 has the unilateral right to impose penalty and/or terminating the contract and thus it reflects clearly the principal-agent relationship between  OP.2 and OP.1 and not the principal to principal relationship, as alleged by OP.2.  When the complainant intimated to OP.2  on 11.02.2017 about the conduct of OP.1, it  failed to take any action against OP.1 or prevail upon it to  redress the grievance of the complainant in getting necessary approval from the Govt. Department. 

31.     According to the complainant, both OP.1 and OP.2 are hand in glove with each other and are just trying to shift the blame to each other.  Complainant submitted that the argument of OP.2  that it has no liability towards the complainant as no deal was made by the complainant with OP.2, is a far fetched  argument.  Rather it shows the scant regard  OP.2 has  for its consumers, who are left in lurch by its own dealers on the basis of false and misleading representations.  The OP.2 is vicariously liable to compensate  the complainant .  The ratio of this case is different from the one relied upon by OP.2. Complainant submitted that OP.2 and OP.1 being in the relationship of principal-agent  as stated  above, proves the privity of contract between the complainant and OP.2.  OP.2 is liable  for the acts of commission and omission of its dealer especially when  OP.2 was notified about the misdeeds of OP.1 by the complainant.

32.     Evidence by way of affidavit was filed by the complainant and he exhibited the documents filed on record as C.W.1/1 to C.W.1/6. 

33.     OP.1 also filed its evidence by way of affidavit and exhibited the document filed on record  as Ex. R.W.1/1.  It may be noted that OP1 did not file any document along with its reply but has filed a letter dated 23.04.2018 written by it to the complainant after filing of the present complaint thereby requesting it to submit certain documents in order to process the case for endorsement  in relation to CNG kit on the Registration Certificate of the vehicle.

34.     OP.2 also filed evidence by way of affidavit and exhibited the documents filed on record as R.2/1 and R.2/2.

35.     Written arguments were filed by the complainant as well as by OPs 1 and 2 respectively.

36.     Oral arguments were heard on 22.09.2022 when counsel for OP.1 was not present.  Counsel for the complainant submitted that  no action was taken by OP.1 after the vehicle was deposited with it on 10.07.2016 for fitment of CNG kit and for seeking necessary approval from the Govt. of NCT of Delhi.  According to complainant, OP.1 filed on record along with its evidence,  letter dated 23.4.2018 almost  a year  after filing of the present case seeking certain papers from the complainant for processing the case for seeking approval from the Transport Department.  This is apparently an afterthought.  The complainant was not supposed to submit such papers again as the same had already been submitted to OP.1  at the time of delivery of vehicle to OP.1 on 10.07.2016.

37.     Counsel for OP.2 reiterated the stand taken in the written statement that  the vehicle in question was  a commercial vehicle and  was  to be used for commercial purpose.  He stressed that the relation of OP.2 with OP.1 was  on Principal to Principal basis and OP.2 had no role to play in the matter as OP.2 had not sold the vehicle to the complainant and no negotiations had taken place  in front of OP.2 regarding sale of the vehicle in question as also fitment of CNG kit therein.  Mr. Ayush Dutt who negotiated the deal was employee of OP.1.

38.     After hearing arguments of counsel for the respective parties, orders were reserved.  Now we proceed to decide the matter in terms of provisions of Order 38(2)CC) o of CP Act, 2019.  

39.     In order to understand the case of the parties, it is necessary to refer to the definition of consumer under the Consumer Protection Act, 1986 since the case was filed in 2017.  Relevant Section  2(1)(d) is reproduced below:

 

2(1)(d)        "consumer" means any person who—

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment; 

 

40.     On the point whether a person is a consumer or not, we are guided by the masterpiece judgment of the Hon’ble Supreme Court in the case of Laxmi Engineering Works vs P.S.G. Industrial Institute, decided on 4 April, 1995 ,  1995 AIR 1428, 1995 SCC (3) 583 wherein the  Hon’ble Court observed as under:

“24. ……………………

 (ii)Whether the purpose for which a person has bought goods is a "commercial purpose" within the meaning of the definition of expression "consumer" in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.

(iii)A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression "consumer".

 

 

 

41.        Now in the present case, the complainant has  categorically submitted that he was earlier working as a driver with a Cab company and  was  earning less and therefore, he wanted to have a car of his own and to ply himself as a cab driver with some cab provider company  to earn a good livelihood for himself. Therefore, he had purchased a new vehicle and wanted to have CNG kit fitted on it for his self-employment and make a good earning.   The aforementioned definition as also the verdict of Hon’ble Apex Court make it amply clear that the complainant is covered under the Explanation attached to Section 2(1)(d) of the CP Act, 1986 and can be very well termed as a “Consumer”.

42.          As regards  OP.1, the contention of complainant is that after he delivered the vehicle to OP.1 on 10.07.2016 along with all the necessary documents for CNG fitting and to get  the vehicle approved and registered with the Transport Department, no action whatsoever was taken by  OP.1 in that regard.  He continued to pursue the matter with OP.1 for expediting approval from the Transport Department so that he can start earning his livelihood and able to pay the loan taken by him from the Bank. But every time an assurance was given that there is some hitch in getting  approval from the Transport Department  and shall be resolved very soon.  No document whatsoever was ever asked from the complainant by OP.1.  No document in regard to any action taken by OP.1 in seeking approval from the Transport Department for the CNG fitment  of vehicle  of complainant has been placed on record by OP.1 to show that in fact the OP.1 was vigorously pursuing the matter with the Transport Department.  Because of the inaction of OP.1 he suffered financial losses  not only on account of  paying hefty interest on the loan amount but also  was deprived of his handsome livelihood which he had dreamt of.   He sent even legal notice to OP.1 but to no avail.  Ultimately the complainant was forced to file the present complaint for redressal of his grievance.  At this stage it is  important to refer to the letter written by OP.1 to the complainant on 23.04.2018 which has been filed on record  for the first time  not with the written statement of OP.1 but with the evidence so filed by it. Relevant part of the said letter dated 23.04.2018 of OP.1 to complainant is reproduced below:

“……

You have filed a case before the District Consumer Forum at Janakpuri vide complaint NO.290/17.

In this regard there are some documents that you are still required to submit- only then the endorsement can be done.

One Police clearance Certificate is required – this has to be arranged by you – sample draft is attached.

On receipt of both above  that are required for fitment/endorsement of CNG in your Amaze car engine number L12B35110961 – and Chasis  No.MAKDF151FGN201226. It will take 2/3 weeks for getting the needed registration certificate  with CNG fitment…………”                                                     (emphasis added).

43.      The tone and tenor of above letter demonstrates that OP.1 woke up from deep slumber only after receiving the notice in the present complaint.  Apparently before that no action whatsoever was taken by OP.1 from the date of delivery of vehicle to it on 10.7.2016 along with necessary documents by the complainant.  What prevented   OP.1 in  performing its duty after receiving the  required money for fitment of the CNG kit and seeking approval from the Transport Department.  If certain documents were deficient, why no steps were taken by OP.1 in seeking those papers from the complainant especially when as per own admission of  OP.1 documents were filed by the complainant.  For the last more than six years now the vehicle is lying idle with OP.1 and OP.1  did not budge till filing of the present complaint.  OP.1 never brought to the notice of this Commission or to the complainant that Transport Department has not cleared any  file  of  other vehicles sold by it in which CNG was fitted  in all these years  what to talk of complainant’s car.   This is a blatant case of  deficiency in service and gross negligence.

44.         As regards OP.2, based on the submissions made by it, we are satisfied that OP.2 had no role to play in the matter and the relationship of OP.2 was  based on Principal to Principal and not that of Principal and agent.  Therefore, OP.2 is absolved of  any action arising out of filing of the present complaint.

45.          For the foregoing reasons, we partly allow the  complaint to the extent of only against OP.1 and hold OP.1 guilty of  not only gross negligence and deficiency in service but also unfair trade practice for not taking any action in seeking approval for the CNG fitted car of the complainant all these six years and depriving the complainant of his livelihood.     We may note that the car of the complainant is lying idle with OP.1 for the last more than six years since 10.07.2016.  The warranty of the vehicle  has in any case expired  with the passage of time.   There will be normal wear and tear in the vehicle including battery discharge, tyres getting hard and unworthy of smooth movement on the road apart from vehicle being a depreciating asset having lost 60% of its value @ 10% depreciation per year.  Therefore, no useful purpose will be served by ordering OP.1 to deliver back the car to the complainant after getting necessary approval from the Transport Department.  It is, therefore, apposite to direct OP.1 to refund to the complainant, the amount of Rs.6,32,158/- + Rs.14,900/- received by it  from complainant towards purchase of the  Honda Amaze car and for getting the CNG fitted in it after seeking necessary approval from the Transport Department. Ordered accordingly.

46.     At this stage it may be noted that since the vehicle of the complainant is hypothecated with the Canara Bank (erstwhile Syndicate Bank), 112-A, Meenakshi Garden, Tilak Nagar, New Delhi-110018   from whom the complainant had taken a car loan of Rs.5,00,000/-, the said Bank shall be the first charge holder on the amount to be awarded by this Commission in case the complainant succeeds.   For the purpose of ascertaining as to what is the status of the loan payment as on date, the matter was listed for clarification on 17.11.2022.  During hearing on 17.11.2022, counsel for the complainant filed a statement of account issued by the Canara Bank, as per which  out of the total loan taken by the complainant towards purchase of the car in question, as on 31^st October,  2022, an amount of Rs.1,11,390.51 inclusive of interest is due from the complainant.  Accordingly OP.1 is directed to remit  a sum of Rs.1,11,390.51 by way of Pay order in favour of the Canara Bank, 112-A, Meenakshi Garden, Tilak Nagar, New Delhi-110018 out of Rs.6,47,058/-  so awarded  in favour of the complainant and the balance amount  of Rs.5,35,667/-  be remitted to the complainant.  For the harassment and agony and financial loss suffered by the  complainant in all these six years, OP.1 is directed to pay a sum of Rs.25,000/- as compensation to the complainant.   Let this order be complied with within 30 days of receipt of copy of this order.

          It is made clear that upon receipt of  balance loan amount of Rs.1,11,390.51 from the OP.1, the Canara Bank, Tilak Nagar, New Delhi shall issue a Certificate to the effect that there are no dues pending against the vehicle of the complainant as on date.   

A copy of this order shall be supplied to parties to the dispute free of cost  under Regulation 21 of CPR, 2020 on a written requisition/application being made by them in the name of President of this Commission.

File be consigned to record room.

 

 

(Richa Jindal)                                          (Anil Kumar Koushal)                       (Sonica Mehrotra)

  Member                                                      Member                                            President