KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.672/2005
JUDGMENT DATED 29/10/2010.
PRESENT
SHRI. M.V. VISWANATHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
N.I.Aboobacker
(Power of Attorney holder of Mohammed
Shameen) R/at Kunhikanam House, -- APPELLANT
Alampady.P.O, Kasaragod District.
(By Adv.G.S.Kalkura)
Vs.
1. M/s Shakthi Automobiles
Anangoor, Kasaragod.
2. M/s Shakthi Automobiles -- RESPONDENTS
Calicut Road, Manjeri.
3. The Regional Sales Officer,
TATA Engineering Loco Co.Lld;
North Kalamassery, Cochin,
Ernakulam.
4. M/s TATA Engineering & Locomotive Co.Lld;
Pimpri, Pune – 411018,
Maharashtra State.
(R1 & 2 By Adv.Joseph Markos & Ors.
JUDGMENT
SRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellant was the complainant and respondents were the opposite parties 1to 4 respectively in OP.No.124/04 on the file of CDRF, Kasaragod. The complaint therein was filed alleging deficiency in service and unfair trade practice on the part of the opposite parties in effecting sale of a vehicle to the complainant. It was alleged that the opposite parties sold an old model vehicle of the year 2001 instead of selling and supplying a vehicle of the manufacturing year 2002. It is also alleged that the opposite parties issued a sale certificate stating the year of manufacture as January 2002 by concealing the true fact that the said vehicle was manufactured in the year 2001. Thus, the complainant claimed compensation of Rs.1 lakh for the mental agony and financial loss suffered by him on account of the deficiency in service and unfair trade practice on the part of the opposite parties 1 to 4 namely, the dealers and manufacturers of the said vehicle.
2. The opposite parties 1 and 2 entered appearance and filed a joint written version denying the alleged deficiency in service. They contended that the complainant selected the vehicle at the business place of the second opposite party and after fully knowing the fact that the said vehicle was manufactured in the year 2001, the same was selected and purchased by the complainant from the second opposite party. The present complaint is filed by taking advantage of the mistake committed by the staff of the second opposite party in issuing the sale certificate by stating the year of manufacture of the vehicle as January 2002. It is also contended that the complainant has not suffered any financial loss as alleged. Thus, they prayed for dismissal of the complaint. The opposite parties 1 and 2 have also taken the contention that the complainant is not a consumer as defined in the Consumer Protection Act.
3. The opposite parties 3 and 4, the manufacturer of the said vehicle filed joint written version denying the alleged deficiency in service. They contended that the complainant is not a consumer as defined in the Consumer Protection Act and so the complainant is not entitled to claim any benefit under the Consumer Protection Act. The complainant purchased the vehicle (bus) for plying the same as a stage carriage. He purchased the vehicle for commercial purpose and so he is not a consumer as contemplated in the Consumer Protection Act. The opposite parties 3 & 4 being the manufacturers are not involved directly in the transaction with the complainant for sale of the vehicle. The opposite parties 1 and 2 are the dealers of the manufacturers and the transaction between the opposite parties 1 and 2 and that of opposite parties 3 and 4 are on principal to Principal basis. In fact, the manufacturers sold the vehicles to the dealers. The vehicle purchased by the complainant was manufactured during December 2001 and delivered to the dealer on 30th January, 2002. The complainant purchased the vehicle in the month of July 2002. The allegation that an old model vehicle was sold to the complainant is not correct. The complainant has not suffered any loss as alleged. There was no cause of action for filing the complaint. Thus, the opposite parties 3 and 4 prayed for dismissal of the complaint.
4. Before the forum below, the power of attorney holder of the complainant was examined as PW1 and the Senior Assistant in Sales Department of the second opposite party was examined as DW1. Exts.A1 to A7 documents were marked on the side of the complainant and B1 to B4 on the side of the second opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 22nd February 2005 dismissing the complaint in OP.124/04. Hence the present appeal.
5. We heard the learned counsel for the appellant/complainant and also the learned counsel for the respondents/opposite parties. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on A1 and B1 sale certificate stating the year of manufacture of the vehicle as January 2002, and submitted that as per A2 certificate of registration the year of manufacture of the vehicle sold to the complainant is shown as December 2001. Thus, the materials on record would show the unfair trade practice and deficiency in service on the part of the opposite parties in effecting sale of the vehicle covered by A2 registration certificate. Thus, the appellant prayed for setting aside the impugned order passed by the forum below and for allowing the complaint in OP.124/04 on the file of CDRF, Kasaragod. On the other hand, the learned counsel for the respondents/opposite parties supported the impugned order passed by the forum below and argued for the position that the appellant/complainant purchased the vehicle by fully knowing the fact that the said vehicle was manufactured in December 2001, and that the said vehicle was selected by the complainant with his full knowledge that the said vehicle was manufactured in December 2001. He also pointed out the delay in preferring the present claim alleging deficiency in service and unfair trade practice and argued for the position that the complainant has not succeeded in establishing the alleged deficiency in service and unfair trade practice on the part of the opposite parties. It is also submitted that the complainant purchased the vehicle for commercial purpose and so he cannot be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986. Thus, the respondents prayed for dismissal of the present appeal.
6. There is no dispute that the appellant/complainant purchased the vehicle (bus) from opposite parties 1 and 2 (respondents 1 and 2) and the aforesaid sale of the vehicle was effected on 5.7.02. Admittedly, opposite parties 3 and 4 are the manufacturers of the aforesaid vehicle and that opposite parties 1 and 2 are the approved dealers of the manufacturers. The opposite parties 3 and 4 (manufacturers) adopted the contention that they had no direct involvement in the sale of the vehicle to the complainant and that the dealings between the manufacturers and dealers were that of principal to principal basis. But the opposite parties have not adduced any evidence to prove the transaction between the manufacturers and dealers. On the other hand, it is an admitted fact that the opposite parties 1 and 2 were the approved dealers of the manufacturers at the relevant time when the appellant/complainant purchased the aforesaid vehicle, which is the subject matter of the complainant in OP.124/04. It is also to be noted that the warranty for the said vehicle was also provided by the manufacturers. The opposite party 1 and 2 being the dealers of the manufacturers, the complainant in OP.124/04 is well justified in preferring the complaint against the dealers as well as the manufacturers.
7. The respondents/opposite parties have also adopted the contention that the complainant is not a consumer as defined in the Consumer Protection Act as the appellant/complainant purchased the aforesaid vehicle (bus) for plying as a stage carriage. It is true that the purchase of the vehicle was for commercial purpose as the same has been using as a stage carriage. But, the complainant got the original complaint amended by filing IA.90/04. The Forum below allowed the aforesaid IA.90/04 vide order dated 4.8.04. Thereby, the complainant has also averred that he purchased the vehicle under self employment scheme for earning his livelihood and that he himself was working as driver of the vehicle. The aforesaid averment that the said vehicle was purchased for earning his livelihood by means of self employment has not been challenged by the opposite parties. It is also to be noted that DW1, the Senior Assistant in the Sales Department of the second opposite party has not challenged the aforesaid case of the complainant. Therefore, the case of the complainant that he purchased the vehicle from the opposite parties for earning his livelihood by means of self employment is to be accepted.
8. The opposite parties relied on A5 proceedings of the District Executive Officer, Kerala motor Workers Welfare Fund board and A7 copy of the registration certificate of the stage carriage bearing Registration No.KL 13 C 4323. A7 document would show that the complainant Mohammed Shameem purchased the stage carriage bearing Registration No.KL 13 C 4323 on 5.1.04 and the RC of the said stage carriage was transferred in the name of the complainant with effect from 5.1.04. It is to be noted that the vehicle involved in the present case was purchased by the complainant on 5.7.02. So, at the time of purchase of the said bus on 05.7.02, the complainant was not having any other vehicle. It can be concluded that the complainant purchased the vehicle involved in this case for earning his livelihood by means of self employment. Ext.,A5 proceedings would show that the complainant was working as a conductor in some other stage carriage during the year 2002. But, there is nothing on record to show that after getting the stage carriage bearing registration No.KL14 C 7895 on 5.7.02, the complainant was employed in any other vehicle as conductor or driver. So, A5 proceedings would not negative the case of the complainant that he purchased the said bus for earning his livelihood by means of self employment. The appellant/complainant has also vehemently averred that he was working as driver in the vehicle which was purchased by him on 5.7.02. Ext.A4 copy of the driving license would show that the appellant/complainant was authorized to drive aforesaid stage carriage at the relevant time. The forum below is justified in finding that the complainant is a consumer coming within the ambit of the Consumer protection Act, 1986 and the complaint in OP.124/04 is maintainable.
9. The complainant has got a definite case that he approached the first opposite party M/s.Sakthi Automobiles, Kasaragod for purchasing the aforesaid vehicle (bus) and that he remitted the sale consideration as per Bank Demand Draft with the first opposite party at Kasaragod. It is also the case of the complainant that the first opposite party supplied the aforesaid bus by contacting the second opposite party M/s Sakthi Automobiles, Manjeri. The opposite parties have not adduced any evidence to negative the case of the complainant that he paid the sale consideration for the said vehicle at Kasaragod. So, the complaint in OP. 124/04 filed before the CDRF, Kasaragod can be considered as maintainable and that the Forum below had the jurisdiction to entertain the dispute involved in the complaint. This State Commission have no hesitation to hold that the complaint as framed and filed is maintainable in law.
10. The appellant/complainant purchased the vehicle (bus) from the opposite parties 1 and 2 on 5.7.02. The vehicle got registered on 15.7.02. It can be seen that the said vehicle was purchased on 5.7.02. In the ordinary course, a customer who purchases a vehicle will expect a brand new vehicle. So, in the ordinary course, the complainant who purchased the vehicle during July 2002 was expected to get a vehicle manufactured in the year 2002. In the present case, the appellant/complainant got the vehicle, which was manufactured in December 2001. Then, it was incumbent upon opposite parties 1 and 2, the dealers of the said vehicle to get the written endorsement that the vehicle sold to the complainant is of the manufacturing year 2001 and that the customer/purchaser agreed for purchasing an old model vehicle. But, in the present case, there is nothing on record to show that the appellant/complainant purchased the vehicle, which was manufactured in the year 2001, by fully knowing the year of manufacture of the vehicle. In other words, there is nothing on record to show that the complainant who purchased the vehicle agreed or consented for purchasing the vehicle which was manufactured in December, 2001. It is for the dealers of the vehicle to get necessary written endorsement regarding the sale of an old model vehicle. But, there is nothing on record to substantiate the case of the opposite parties that the appellant/complainant purchased the old model vehicle with his fully knowledge and volition.
11. The documentary evidence available on record would show that the opposite parties 1 and 2 misled the appellant/complainant by issuing B1 sale certificate stating that the vehicle sold to the complainant was manufactured in January, 2002. Ext.B1 is the sale certificate issued by opposite parties 1 and 2 with respect to the vehicle purchased by the complainant on 5.7.02. In B1 sale certificate, it is specifically stated the month and year of manufacture as January, 2002. No reasonable explanation is forthcoming from the side of opposite parties 1 and 2 as to why such an entry was made in B1 sale certificate. Ext.A1 is only copy of B1 sale certificate. In all respects, A1 corresponds with B1 certificate.
12. DW1 has gone to the extent that A1 is not the sale certificate issued by the second opposite party/dealer. On the other hand, it can be seen that A1 sale certificate is the verbatim reproduction of B1 sale certificate. At the same time, DW1 has admitted the genuineness and correctness of B1 sale certificate. It is pertinent to note that B1 sale certificate was issued by the dealer of the vehicle to the Regional Transport officer for getting the vehicle registered by the transport authority.
13. Opposite parties 1 and 2 have got a case that the staff of the second opposite party mistakenly entered the month and year of manufacture of the vehicle as January, 2002 instead of December 2001. It is also the case of opposite parties 1 and 2 that the said vehicle was supplied to the second opposite party by the manufacturer (opposite party No.4) vide invoice No dated 31.1.02 and accordingly while preparing the sale certificate of the said vehicle the concerned staff of the second opposite party entered the manufacturing year as 2002. But, opposite parties 1 and 2 have not produced the aforesaid invoice dated 31.1.02 issued by the 4th opposite party/manufacturer to the second opposite party. The aforesaid invoice ought to have been the best piece of evidence to substantiate the case of opposite parties 1 and 2 that the said entry in B1 was made by a mistake committed by the concerned staff. The failure to produce the aforesaid invoice and the failure to examine the concerned staff would show that the said contention is adopted to avoid their liability in issuing B1 sale certificate with false entries.
14. The available materials and circumstances would only show that the month and year of manufacture of the vehicle were deliberately entered in the sale certificate in order to mislead the complainant/purchaser and thereby to obtain monetary gain in favour of opposite parties 1 and 2. The Forum below was fully convinced about the contention adopted by opposite parties 1 and 2. The Forum below failed to consider the failure on the part of opposite parties 1 and 2 in producing the necessary and relevant documents to substantiate the aforesaid contention regarding mistake committed by the concerned staff of the second opposite party. On the other hand, B1 and A1 sale certificate would make it abundantly clear that the complainant purchased the aforesaid vehicle with the bonafide belief and impression that the said vehicle was manufactured in the year 2002.
15. DW1, the sales assistant of the second opposite party has categorically admitted the fact that the year of manufacture is an important fact in deciding the market value of a vehicle. It is a common knowledge that the vehicle manufactured in the year 2002 will get more market value than the vehicle manufactured in the year 2001. There can be no doubt about the fact that the complainant who purchased the said vehicle in the year 2002 suffered financial loss by getting a vehicle which was manufactured in the year 2001. It may be correct to say that there was difference of one month only. In fact, the vehicle was manufactured in December 2001, but the opposite parties sold the vehicle to the complainant by stating that the vehicle was manufactured in January 2002. By the aforesaid one month, there occurred a difference regarding the year of manufacture. The complainant expected to get a vehicle manufactured in the year 2002. But, he got the vehicle manufactured in the year 2001. So, by the aforesaid suppression of the material fact, the complainant suffered financial loss.
16. The opposite parties (respondents) have no case that price of the vehicle manufactured in the year 2001 and that of the vehicle manufactured in the year 2002 is one and the same. The opposite parties have not produced any document to substantiate their case that there was no price difference with respect to the vehicles manufactured in December 2001 and the vehicle manufactured in January 2002. The complainant in A3 lawyer notice dated 12.8.03, it is specifically stated that he purchased the said vehicle on 5.7.02 on a sale consideration of Rs.4,46,397.27 including sales tax. The opposite parties have not succeeded in establishing that the said price was of a vehicle manufactured in December 2001. The opposite parties could not produce any invoice or other documents to show the actual price of the vehicle, which was manufactured in December 2001. It can only be concluded that the sale consideration of Rs. 4,46,397.27 was paid by the complainant for the vehicle which was manufactured in January 2002, So, the claim for compensation put forward by the complainant ought to have been allowed. The forum below cannot be justified in dismissing the complaint in OP.124/04 by stating that the complainant purchased the said vehicle by fully knowing the year of manufacture of the vehicle as 2001.
17. The Forum below much relied on the delay in preferring the complaint in OP.124/04. The definite case of the complainant is that he came to know about the actual manufacturing year of the vehicle only after getting the registration certificate. The vehicle was registered on 15.7.02. It is to be noted that the vehicle was subjected to higher purchase agreement. Naturally the original registration certificate and other documents will be with the financier. It is also to be noted that the sale certificate and other necessary documents for getting the vehicle registered by the Transport Authority will be forwarded by the dealer to the registering authority. In A1 copy of the sale certificate, the month and year of manufacture of the vehicle was shown as January 2002. The case of the complainant that he came to know about the actual month and year of manufacture of the vehicle only after getting registration certificate is to be believed and accepted.
18. It is averred by the complainant that he approached the registering authority about the entry in the registration certificate with respect to the month and year of manufacture and It is only from the registering authority he could understand the entry in the excise Chelan issued by the manufacturer stating the month and year of manufacturing of the vehicle. The complainant approached the opposite parties to get the aforesaid entry corrected and ultimately the complainant issued A3 lawyer notice to the opposite to get the defects in the RC book corrected. Thereafter, the complaint in OP.124/04 was filed. It is to be noted that the complaint before the Forum below was filed within the period of limitation. The mere delay in preferring the complaint before the Forum below cannot be taken as a ground to deny the legitimate claim of the complainant.
19. The Forum below has wrongly relied on the decision in Jay Malhotra V.M/s Maruthi Udyog Ltd & Anr (2002 (III) CPJ 95 (NC). It is to be noted that in the aforesaid case the complainant therein claimed refund of the entire price of the vehicle or to get the vehicle replaced. In that case, the National Commission disallowed the aforesaid claim on the ground that the vehicle was extensively used by the purchaser for a continuous period of 7 months. But, in the present case on hand, the complainant has only claimed compensation of Rs.1 lakh for the unfair trade practice and deficiency in service on the part of the opposite parties. The aforesaid compensation was also claimed based on the financial loss suffered by the complainant. Thus, in all respects, the Forum below cannot be justified in dismissing the complaint in OP.124/04. We have no hesitation to set aside the impugned order dated 22nd February 2005 passed by CDRF, Kasaragod. Hence we do so.
20. The appellant/complainant has claimed Rs.1 lakh as compensation for the mental agony and financial loss suffered by him, on account of the unfair trade practice and deficiency in service on the part of the opposite parties in effecting sale of a 2001 model vehicle instead of selling a 2002 model vehicle. The complainant has not adduced any acceptable evidence to substantiate his claim for Rs.1 akh. There can be no doubt that the opposite parties have adopted unfair trade practice and deficiency in service in effecting sale of an old model vehicle. The complainant has not adduced any evidence to show the market value of the vehicle manufactured in December 2001 and also the market value of the vehicle manufactured in January 2002. In the absence of any such concrete evidence, some guess work is to be made in assessing a reasonable compensation. It is pertinent to note at this juncture that the opposite parties have also failed to adduce evidence to show the market price of the vehicles manufactured in the year 2001 and those of the vehicles of 2002. It is also to be noted that the opposite parties are the dealers and manufacturers of the vehicles and having acceptable evidence to show the market value of the vehicles manufactured in the year 2001 and that of the vehicles of 2002. This Commission is of the view that a compensation of Rs.15,000 will be sufficient to meet the ends of justice. So, the appellant/complainant is awarded a compensation of Rs.15,000/- for the mental agony and financial loss suffered by him. The opposite parties 1 to 4 being the dealers and manufacturers of the said vehicle are jointly and severely liable to pay the aforesaid compensation of Rs.15,000/- to the complainant in OP.124/04. The appellant/complainant is also awarded cost of Rs.1,000/-.
In the result, the appeal is allowed. The respondents/opposite parties are directed to pay compensation of Rs.15,000/- to the appellant/complainant for the unfair trade practice and deficiency in service on the part of the respondents/opposite parties. They are also liable to pay cost of Rs.1,000/- to the appellant/complainant. The aforesaid compensation is to be paid within one month from the date of receipt of copy of this judgment,
failing which the aforesaid compensation of Rs.15,000/- will carry interest at the rate of 9% per annum from the date of this judgment till the date of realization.
M.V. VISWANATHAN -- JUDICIAL MEMBER
M.K.ABDULLA SONA -- MEMBER
