AT HYDERABAD.

FA 1096 of 2009  against C.C. 43/2008, Dist. Forum, Khammam

Between:

L. Subrahmanyam Srinivasa Sai Babu

S/o.  Loknadha Rao, Age: 44 years

Proprietor,  R/o. Chuttugunta

Vijayawada, Krishna Dist.                           ***                         Appellant/

                                                                                                Complainant

And

1)  M/s. Hema Hyundai

Rep. by its Managing Director

15-1-425,  Opp. L. B. College.

Near  Mulugu Road, Warangal

2)  M/s. Hema Hyundai

Rep. by its Manager

Wyra Road, Khammam.                                       ****                       Respondents/

                                                                                                Opposite Parties

Counsel for the Appellant:                          M/s.  Sai Gangadhar C.

Counsel for the Resp:                                 M/s. M. Hari Babu

CORAM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

          &

          SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE TENTH DAY OF OCTOBER TWO THOUSAND ELEVEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          ***

1)                 Appellant is unsuccessful complainant.

2)                The case of the complainants in brief is that  the complainant purchased a second hand Indigo Merina  car   by paying  an amount of Rs. 3,15,000/- towards advance of  sale consideration from R2  Manager of R1  who deals in  sale of new as well as old cars.    He requested 10 days time  for delivery of vehicle  on the ground that there were several  encumbrances  to be cleared.   When he went there  he was requested to take another vehicle as the vehicle  purchased by him was not available.    There upon  he showed his dis-inclination  to purchase another car.   They have been postponing refund of the amount.  On that  he got issued a  registered notice  on  19.11.2007 for which a reply was given with false allegations.    They were liable to pay the amount  with interest.   Alleging deficiency in service he claimed refund of   Rs. 1,50,000/- together with interest @ 12% p.a., and costs.

3)                 The respondents  resisted the case.    They alleged that  they were dealers for the new cars manufactured  exclusively by  Hyundai Motors India Ltd. ,  and  the allegation that they agreed to sell an old car and received an advance consideration of Rs. 1,50,000/-  on  10.4.2007  and issued receipt are false.   The documents  filed would  show that it was a cash voucher and not cash receipt.   Cash vouchers will be issued for the expenditure meted out  daily,   and cash vouchers will not be issued to  the purchasers.    It is a forged and fabricated document.   They gave a correct reply to the notice issued.    The case does not come under the purview of he Consumer Protection Act.   R1 is not authorised  to sign on any cash receipt.   The person who signed as  ‘P.S. Vasu’  has no concern with them, and therefore they prayed for dismissal of the complaint with costs.

4)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A4  marked  while the opposite parties did not file any documents.

5)                 The Dist. Forum after considering the evidence placed on record opined that the voucher Ex. A1 was signed by  one  P. Srinivas @ vasu representing R1.  It was not a cash receipt issued by R1.   At any rate the person who signed  in the voucher was terminated from service  for mis-managing  the funds of the company evidenced from paper publication Ex. A4.    The complainant could not have purchased  an old car when the respondent company  is an authorised agent for sale of new cars manufactured by  Hyundai Company.   Mr.  Yugandhar, Managing Director  was authorised to sign on behalf of the company, and therefore the complainant is not entitled to any amount, and therefore dismissed the complaint.

6)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   Since the respondent did not deny  Ex. A1  it is for them to prove that  its employee has misused the name of the company, and was liable on the ground of vicarious liability.    Ex. A4 would not absolve the liability of the respondents for the acts of its employee, and therefore prayed that the complaint be allowed.

7)                 The point that arises for consideration is whether the order  of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                 The complainant while alleging that he paid Rs. 1,50,000/- towards advance for purchase of a second hand car  filed Ex. A1  cash voucher  issued by one P. Srinivas @  Sinu  mentioning that  Rs. 1,50,000/- was received towards  sale of Indigo car.  The complainant alleges that  the respondents viz., Managing Director and Manager  are jointly and severally liable  to refund the amount  when they expressed their inability to supply the very same car.   It is important to note that the complainant did not implead  the respondents by naming them.    He stated that  R1 is the Managing Director  while R2 is the Manager.    The respondents dispute that  Srinivas  who signed Ex. A1  is their Manager.   In fact he was terminated from service  when he was found indulging  in mis-appropriation of amounts.   It is true that his services were terminated one month after the transaction that alleged to have  taken place in between the complainant  and the said employee.   Undoubtedly vicarious  liability could be fastened on the principal -R1 if it is found that  employee acting on behalf of  R1  entered into the transaction authorised by R1.   R1 & R2  denied that they agreed to sell  an old car, and as such he paid an advance of Rs. 1,50,000/-.    In the first place, the contention of the respondents is that  they  do not deal in second hand cars.  They sell only new cars manufactured by  Hyundai Company.   When the respondents have taken such a contention 

the complainant could not prove that the respondents dealt in  second hand cars.    In the light of contention taken by the respondents that  R2 was not authorised nor  they deal in second hand cars  the complainant ought to have impleaded  P. Srinivas @ Sinu  by name so that  the part played by him  could be known,   and the liability if any  on R1  could also be considered. 

9)                 When an amount of Rs. 1,50,000/- was taken  the complainant could not have taken cash voucher instead of receipt.   The complainant ought to have  taken  steps against  P. Sinivas  @ Sinu  to whom he has paid the amount.    If really he received the amount representing that  R1 deal in second hand cars and  he was authorised to sell cars  on behalf of R1,   when R1 gave reply  under  Ex. A3 mentioning the said facts  the complainant neither  gave police complaint nor  impleaded him as a party.   If these  acts are permitted then  there is no end for the persons to lay false claims by colluding with erring employees,  more so when R1  has categorically stated that  they are not dealers  in second hand cars.  If really  the complainant is conscious of the fact that he had paid  Rs. 1,50,000/- bonafidely to  P. Srinivas @ Sinu for purchase of a second hand car,  and that he was acting as agent of R1 he could have taken all the steps so that  the said amount which he said to have  paid to  P. Srinivas could have been recovered provided he acts on behalf of  R1.   The complainant ought to have impleaded P. Srinivas  when R1 made it clear  that he has no authority  to sign on its behalf as Manager  or that it was transacting business of second hand cars.   When the complainant could not prove any of these  facts  mulcting liability  against them would be wrong.   We agree with the finding of the Dist. Forum.  We do not see any merits in the appeal.

10)               In the result the appeal is dismissed.  No costs.

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

10/10/2011

*pnr

UP LOAD – O.K.