IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 31stday of January, 2022
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 79/2019 (filed on 03-06-2019)
Petitioner : Jaya Antony,
W/o. Saji Joseph Mathew,
Perekkattu House,
Bharananganam P.O.
Aravakkulamkara,
Vs.
Opposite Parties : 1) The Manager,
M/s. Nippon Motor Corporation
Private Limited, Nattakom P.O.
Kottayam – 686 013.
2) The Managing Director,
M/s. TotayaKirloskar Motors Pvt.
Ltd. Plot No.1, Bidadi Industrial area,
Rama Nagar (Dt.)
Karnataka – 562109.
(For Op1 and 2, Adv. Sajan A. Varghese)
O R D E R
Sri. Manulal V.S. President
The case is filed under Section 12 of the Consumer Protection Act, 1986.
The brief facts of the present complaint are that on 24-12-2018 the complainant had placed an order to the first opposite party for a Yaris model car which is manufactured by the second opposite party. The vehicle bearing chassis no. MBJB23F3x070068010618 was delivered to the complainant on 1-1-2019 by the opposite parties. Complainant had paid the entire amount as per the Performa invoice issued to him at the time of booking. It is averred in the complaint that at the time of booking he had demanded for a vehicle which was manufactured in the month of December 2018. However when temporary registration certificate is obtained heknew that the vehicle delivered to him was one which was manufactured in the month of June 2018. After that the though the complainant sent several e-mail to the opposite parties demanding for replacement of vehicle but his efforts became vain. Thereafter the complainant sent a lawyers notice to the opposite parties but they sent a reply notice stating false contentions.
It is alleged in the complaint that by delivering a six month old vehicle the opposite parties had caused a loss of Rs.2,00,000/- for the resale value of the said car. It is further alleged in the complaint that the opposite parties deliberately cheated the complainant by suppressing the fact that they have only an old vehicle in stock and delivered the same to the complainant after receiving Rs. 14,52,458. According to the complainant the acts of the opposite parties amounts to deficiency in service . Hence this complaint is filed by the complaint praying for an order directing the opposite parties Rs. 2,00,000/- as compensation for the loss suffered by him .
Upon notice OPs No.1 & 2 appeared through counsel and filed separate versions. Version of the first opposite party is as follows:
First opposite party is the dealer of the Toyota vehicles. It is admitted by the first opposite party that the complainant purchased a Toyota Yaris-1.5 (ZC) car. First opposite party has never made any order or request stating that the complainant should be given a vehicle manufactured during December 2018 alone whileshe booked the vehicle. The make and model of the vehicle sold to the complainant was not suppressed by the first opposite party at any time. The vehicle was sold after disclosing all the details of the vehicle. It is submitted in the version that the complainant was demanding for the vehicle with silver metallic colour and wanted the vehicle to be delivered on or before 31-12-2018. The complainant was told about the delay that may occur for waiting for a vehicle with silver metallic colour and informed that only one vehicle with said colour was available as ready stock. Each and every details including the date of production and expected date of delivery of the same was explained to her at the time of demonstration. It was only after having fully convinced with her need and being informed about all details of the vehicle complainant purchased the vehicle. A vehicle delivered to the customer on 31-12-2018 will get the registration probably by first or second week of January 2019. It is quite natural that though the registration is of 2019 the make or model of the vehicle will only be of 2018. There will be no loss of any value for the vehicle for the said reason. Nothing has been concealed from the complainant at the time of sale. The value of the vehicle is assessed based on the model of the vehicle which is in fact the date of registration and not the date of manufacture or make of the vehicle. All other averments made in the complaint were denied and prayer has been made for dismissal of the complaint with cost.
Upon notice second opposite party appeared through counsel and filed versionstating that the alleged purchase of the car from the first opposite party is admitted. It is submitted in the version that all the transactions with dealers are on Principal to principal basis, the second opposite party is not aware of ultimate customer of dealer as such there is no privity of contact between the second opposite party and ultimate customer of the vehicle as far as the subject vehicle is concerned. The second opposite party is not responsible for any of the act, omissions or commission of any act by its dealers because dealers are not agents of the manufacturer. The business pattern prevailing between the first and second opposite party is that the first opposite party purchases the vehicles as per their requirement and independently effects the sale to its customers. The sale conducted and service offered by the first opposite party to the end customers are purely at the discretion of the first opposite party and the second opposite party is not connected with the same..Thus, there is no deficiency on the part second opposite party and prayed for dismissal of the present complaint.
The complainant has filed the proof affidavit in lieu of chief examination and got Exhibit a1 to A5 were marked. . On the other hand, the first and second opposite party hasfiled separate proof affidavit in lieu of chief examination.Exhibit B1 and B2 were marked from the side of the second opposite party. No documentary evidence is produced on the side of the first opposite party..
On evaluation of complaint, version and evidence on record we would like to consider the following points?
- Whether there is any deficiency of service from the opposite party sustained to the complainant?
- Whether the complainant is entitled to get any compensation from the opposite party?
- Reliefs and costs if any?
There is no dispute on the fact that the complainant had purchased a Toyota Yaris-1.5 (ZC)model car from the first opposite party. Exhibit A2 is the proformainvoice dated 24-12-2018 by the first opposite party to the complainant. On perusal we can see that exhibit A2 is issued for Rs.4, 52,448 The specific case of the complainant is that he was given a car which was manufactured six months prior to the date of purchase in spite of her demand for a vehicle manufactured in the month of December 2018.
On the other hand, thefirst opposite party contended that at no point of time the first opposite party ever assured the complainant that she would be delivered a December 2018 model vehicle. It is further submitted by thefirst opposite party that the make and model of the vehicle sold to the complainant was not suppressed by the first opposite party at any time and the vehicle was sold after disclosing all the details of the vehicle. According to the first opposite party,the complainant was demanding for the vehicle with silver metallic colour and wanted the vehicle to be delivered on or before 31-12-2018. The complainant was told about the delay that may occur for waiting for a vehicle with silver metallic colour and informed that only one vehicle with said colour was available as ready stock. Each and every details including the date of production and expected date of delivery of the same was explained to her at the time of demonstration.
The second opposite party contended that there is no privity of contract between the complainant and the second opposite party as the vehicle in question was sold by the first opposite party to the complainant. The learned counsel contended that the relations between the manufacturer ie second opposite party and its dealer i.e. first opposite party are based on principal to principal basis and not on principal to agent basis and thus the manufacturer i.e. second opposite party is not aware of the ultimate customer of the dealer. It is contended that the issue involving in the present case is regarding the sale of the vehicle and the manufacturer never sells the vehicle and it is the authorized dealer who sells the vehicle to its customer.
We have perused the A1 temporary registration certificate which shows the month and year of manufacturer as June, 2018. The chassis number is shown as MBJB23F3x070068010618 and engine No.2NRX325804. The opposite parties have not disputed about the particulars as contained in exhibit A1.
Though the first opposite party contended that they have informed the complainant that there was no stock of metallic silver colored car which was manufactured in the month of December 2018, the first opposite party did not produce the order form or any other evidence to show that they informed the complainant that the delivery of the car with the specified colour would take time. The Hon’ble Supreme Court in a recent Judgment dt. 6th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant. The Hon’ble Supreme Court further held that if the complainant is able to discharge its initial onus, the burden would then shift to the Opposite Party.
In version and proof affidavit, it is admitted by the first opposite party that though the booking of the car was done in the month of December 2018 they sold a car which was manufactured in the month of June 2018. In view of above, it is established on record and rather admitted in version and affidavit, that the vehicle sold to the complainant was manufactured in June 2018 and not in December 2018 was a glare deficiency in service and unfair trade practice on first opposite party.
As a sequel to above discussion, we partly allow the present complaint against the first opposite party with the following directions:-
That the opposite party shall pay an amount of Rs.1,00,000/- to the complainant on account of loss and hardship and harassment.
Order shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the award amount will carry 9% interest from the date of this order till realization.
Pronounced in the Open Commission on this the 31st day of January, 2022
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of temporary registration certificate (KL-05-AU-TEMP-2563)
A2 – Copy of proforma invoice dtd.24-12-18 issued by 1st opposite party
A3 –Copy of lawyers notice dtd.12-03-2019
A4 – Postal receipt
A5 – Postal acknowledgement card
Exhibits marked from the side of opposite party
B1 - Copy of Board resolution dtd.13-06-19 by 2nd opposite party
B2 – Copy of dealership agreement dtd.07-03-15
By Order
Senior Superintendent
