FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that on 16/12/2016 the complainant purchased a car being Model Pulse RXL Diesel Red Colour, Chassis No.MEEAHBA11F5503142, Engine No.K9KA422E031198 and Registration No.WB-02AK-71440 from the O.P.-2, an authorize dealer of O.P.-1 at a consideration of Rs.5,65,000/- after obtaining a car loan of Rs.5,00,000/- from the State Bank of India. Further case of the complainant is that O.Ps. had promised for three free services. On 28/06/2017 complainant took his car to the service centre of O.P.-2 but not for free service. O.P.-2 had tendered a quotation for such repair mentioning the said service as second free service though the said second free service was due on 17/12/2017 or 10,000 KM running whichever is earlier but both the conditions were not applicable at that time. It was informed by the service personnel of O.P.-2 that second free service of the subject was already expired on 01/04/2017 as the date of sale is being shown on 31/03/2016 though the car was purchased on 16/12/2016. After checking of the greetings e-mail of O.P.-1 dated 01/04/2016, it is found that O.P.-1 had informed the complainant that the date of sale was on 31/03/2016. As such, the complainant has come to conclusion that the O.Ps. fraudulently sold him a second hand car and lodged complaint with Ballygunge P.S. on 01/07/2017. That 12/07/2017 O.P.-2 sent e-mail informing further extension of one year of Renault Secure (Extended Warranty) at their own cost as to console the complainant so that complainant may excuse and condone all the misdeeds and mischiefs by the parties but O.Ps. failed and neglected to explain as to why they sold a pre owned car and have tried to avoid their liability to replace the second hand car with a new one and as such by an e-mail dated 12/07/2017, complainant refused to take such consolation offer. Thereafter, complainant served legal notice dated 04/08/2017 to the O.Ps. and lodged a complaint before the D.C. South East Division of Kolkata Police against the O.Ps. After that, over telephone the O.Ps. told that they have changed the date of sale. They also sent SMS respecting extension of 3rd free service date. Being aggrieved the complainant filed this consumer complaint praying for a direction upon the O.Ps. to replace the pre owned car by a new one and other reliefs.
The O.P.-1 has contested the case by filing separate W.V. In their W.V. the answering O.P. has denied and disputed the material allegations of the complainant and have assailed the maintainability of the instant consumer complaint in its present form and in law. The specific case of the O.P.-1 is that no case has been made out against the O.P.-1 as the answering O.P. has authorized the O.P.-2 to sale and to provide service to the customers. The relationship between the O.P.-1 and the O.P.-2 is binding upon a Dealership Agreement. Thus, the O.P.-1 cannot be held vicariously liable for the acts or omission or commission as claimed to have occurred on the part of the O.P.-2. O.P.-1 has no control or authority over the O.P.-2. When the complainant reported the wrongful entry of the date of sale by the O.P.-2, they have corrected the same in their records. As the date was entered wrongfully, an auto generated mail was received by the complainant. The extension of warranty period was done and extension of free service period was also done. O.P.-1 also stated that there is no question of selling a pre owned car because an Odometer clearly shows the total distance travelled throughout the lifetime of a vehicle and it cannot be reset. The O.P.-1 has prayed for dismissal of the complaint.
The O.P.-2 has also contested the case by filing W.V. wherein they have challenged the maintainability of the case. They have also denied the allegations made out in the petition of complaint. O.P.-2 has stated in their W.V. that complainant registered the subject vehicle in his name with Motor Vehicle Authority after its purchase, he took financial assistance / loan from financer bank. So, the subject vehicle is under hypothecation and the complaint cannot be maintainable without implicated the Bank. Further case of the O.P.-2 is that on 29/06/2017 the subject car was placed to workshop when 2nd free service is required to be done but complainant asked to undertake accidental damage repair of front bumper and side for which estimate was given on 01/07/2017 as that was not under the warranty. On different occasions the car was reported to the workshop for repairing and the jobs were done satisfactorily and till 29/06/2018 the car plied 11,612 KM. O.P.-2 categorically stated in its W.V. that they have sold a brand new car to the complainant. There is neither any deficiency in service nor any unfair trade practice on the part of the O.P.-2 and the instant complaint is liable to be dismissed.
In the light of the pleadings of the parties the following points have been raised for the sake of proper and effective adjudication of the case.
- Whether the O.P.-1 sold pre-owned car (Model Pulse RXL, Diesel, Red Colour) to the complainant ?
- Whether the O.P.-2 sold the subject car to the complainant on 31/03/2016 instead of 16/12/2016 ?
- Whether the date of sale can be changed in the document ?
- Whether there was any deficiency in service and/or unfair trade practice on the part of the O.Ps.
- Whether the complainant is entitled to get relief or reliefs as prayed for ?
Decision with Reasons
Points No.-1 to 5.
All the points are taken together for the sake convenience and brevity in discussion.
Admittedly, the complainant purchased a car being Model No. Pulse RZL Diesel bearing registration No.WB-02AK-71440 from the O.P.-2, an authorized dealer of O.P.-1 on 16/12/2016 at a price of Rs.5,65,000/- by availing loan of Rs.5,00,000/- from the S.B.I. It is true that the O.Ps. had promised to provide three free services. First free service would be done upon running of 2,000 KM or within 02 months from the date of purchase whichever is earlier, second free service would be due upon running of 10,000 KM or 12 months from the date of purchase whichever is earlier and third free service would be due upon running of 20,000 KM or 24 months from the date of purchase whichever is earlier. A brief perusal of SMS dated 01/04/2017 of O.P.-1, complainant had been to the service centre of O.P.-2 on 28/06/2017 with the subject car for availing first free service where came to know that second free service elapsed on 01/04/2017 as the subject car was purchased on 31/03/2016. No doubt the O.P.-2 admitted their fault regarding date of purchase of car due to inadvertent and intimated the fault to the O.P.-1. That on 12/03/2018 such mistake was rectified and the complainant was offered extended warranty for one year. Complainant refused to accept such offer. O.Ps. further tried to compensate the complainant by offering 2 din Music System through e-mail dated 23/03/2018 Therefore, it is crystal clear that the O.Ps. rectified their mistake and also tried to compensate the complainant after elapsed on 01 year. Therefore, we are of the firm view that the conduct of the O.Ps. is not appreciable, certainly it amounts to unfair trade practice and rectification date in the document is with malafide intention.
The grievance of the complainant is that the O.Ps. sold a pre-owned car as the date of sale has been recorded on 31/03/2016 in the documents though the subject car was sold to the complainant on 16/12/2016. On the contrary, the plea of the O.Ps. is that they sold a brand new car to the complainant and the O.P.-1 corrected the sale date in their record as the date of sale was entered wrongly.
Undisputedly, no technical evidence produced by the complainant before the Forum to prove the alleged sale of pre-owned car. Even he did not make any effort for appointment of a technical expert in this regard. The onus is upon the complainant to prove the alleged sale of pre-owned car. No technical evidence having been produced by the complainant, he failed to discharge the onus placed upon him. The complainant used the subject car since its purchase without raising any objection. Therefore, the complainant is not entitled to refund the total price of the subject car.
Complainant has also alleged allegations of cheating and fraud against the O.Ps. but such allegations could not be adjudicated in a summary procedure.
The Ld. Lawyer appearing for the O.P.-1 Renault India Private Limited has argued that they have authorized O.P.-2 to sell the cars manufactured by them and to provide pre-sale and post-sale service to the customers on principal to principal relationship within the domain of activities streamlined by the Dealership Agreement. Therefore, O.P.-1 cannot be held liable for the acts or omissions and/or commission, as claimed to have occurred on the part of the O.P.-2, the Dealer. On perusal of photocopy of the Dealership Agreement we found there is justification in the submission. In our considered opinion, both the O.Ps. cannot escape themselves from their liabilities in regard to rectification of wrong date of sale of the subject car after lapse of 01 year 03 months in their system for which the complainant had to knock the doors of this Forum, which tantamount to negligence on their part.
We think it just and proper the complainant should get compensation for the negligent attitude and with malafide intention of the O.Ps. as discussed hereinabove. Thus, all the points under consideration are disposed of.
In the result, the case succeeds in part.
Hence,
Ordered
The complaint case be and the same is allowed on contest in part against the O.Ps. with litigation cost of Rs.20,000/-.
The O.Ps. are jointly and severally directed to pay Rs.1,00,000/- (Rupees One Lakh) only to the complainant as compensation within a period of 30 days from the date of this order together with litigation cost, in default, the complainant is at libert7y to put the case in execution according to law.
