This is a case under section 12 of the Consumer Protection Act filed by the Complainant

Smt. Anupama Aggarwal against the O.P Nissan Motor India Private Limited and others praying for direction to take back vehicle of the complainant and to pay vehicle price of Rs.7,94,850/- including VAT.  Further, she has prayed for insurance charges of Rs. 50,594/-. Besides that she has prayed for repayment of  road tax amounting to Rs.43,757/-.  Moreover, she has prayed for payment of pollution charge amounting to Rs.160/-, in addition to payment of Rs.99,960/- for payment made towards extra financial charges incurred by the complainant. Also she has prayed for direction for payment of Rs.6,875/- towards purchase of new battery for the vehicle. Apart from payment of the said amount she has prayed for payment of litigation cost and  cost for mental pain and agony.

            The case of the complainant, in brief, inter alia, is that the O.P Nissan Motors Private Ltd. manufactures car in India under the name and style as “Nissan”. The O.P MLA Auto India Private Limited is  the dealer/franchise of the said company at Siliguri. O.P Shri Arun Malhotra is the Managing Director of the O.P Nissan Motor India Private Ltd. and manages/controls the business  of Nissan.  On 15.07.2016 the complainant purchased one new branded vehicle from the Opposite party MLA Auto India Private Ltd.with the financial assistance of HDFC Bank Limited, Siliguri.  But the said car was manufactured in the year 2016. Said vehicle was registered in the name of the company by the R.T.O, Siliguri.  On 24.10.2017 it was found by the complainant that said vehicle was giving starting problem.  So, the complainant made contact with the dealer and its service personnel. It was found that the vehicle was suffering from battery defect.  The O.P. dealer made contact with Exide Industries Private Ltd. After assessment the Service Personnel of Exide Industries Private Ltd. prepared service sheet and  on the very sheet the service personnel of Exide Industries Pvt. Ltd. wrote in the remark column as “discharged”. The said Exide battery was manufactured in the year 2012 and the service personnel of Exide Industries Private Ltd. has clearly written the same in the battery Manufacturing Code Column. It was informed to  the complainant that the branded new vehicle battery could not be replaced as the warranty period of the said battery has already expired. Consequently the complainant purchased a new battery from Sandhya battery at Rs. 6,875/-. After such the replacement  problem of the vehicle was cured. On 10..4.2018 the complainant took her car for servicing purpose to Kaysons Ventures Pvt. Ltd. at Bhaktinagar, Jalpaiguri which is an authorized Service Centre of the O.P no.1 and after servicing of the vehicle the complainant was handed over. Repair order on showing date of sale of  vehicle was written as on 31.8.2014. The complainant looking at the date of sale was surprised.  The original date of sale of the vehicle was on 15.07.2016.  But the O.Ps have counted sale of battery of vehicle as on 31.8.2014 and thereby battery of the vehicle is out of warranty. So, old used vehicle has been sold to the complainant and tag number of new vehicle by the O.P Nissan Motors India Private Ltd. made in connivance with the O.P MLA India Private Ltd. Once a vehicle is sold and invoice is prepared, the sale server is updated as the period of warranty starts. The vehicle was first sold on 31.8.2014 and thereafter it has been re-sold on 15.7.2016 to the complainant as second hand used car by suppressing the previous sale.  On 10.5.2018 the complainant sent legal Notices to the Opposite parties to take back the vehicle and to pay the complainant the cost incurred by her for paying the road tax, registration charges, insurance along with extra charges borne by the complainant for getting the vehicle financed. The  complainant also requested the opposite parties to pay a  compensation charge of Rs.5,00,000/-, but despite receipt of the said notices the opposite parties failed to respond to the legitimate demand of the complainant. She is suffering from mental pain and agony due to unfair trade practice resorted by them. Therefore, they  have made the prayer for taking back the vehicle and to pay back the vehicle price amounting to Rs.7.94,850/-, insurance charge of Rs. 50,594/- and road tax amounting to Rs.43,753/-, pollution to the tune of Rs.160/-, extra financial charge Rs.99,960/-, cost of new battery for the vehicle Rs.6,875/-, litigation cost of Rs.1,00,000/-, compensation to the tune of Rs.5,00,000/- for the mental pain and agony suffered by the complainant for the unfair trade practice by the O.Ps. and  other orders.

            There is a postal endorsement that said MLA Auto India Private Limited did not run any business in the address as given in the cause-title by the postal peon.

            The O.P Nissan Motor India Private Limited and its Managing Director Arun Malhotra submitted written statement stating, inter alia, that there  is no deficiency in service on the part of the opposite party.  Rather, the O.P is a reputed automobile manufacturing company. It sells the vehicle to its authorized dealer and as such there remains no control  upon the opposite party MLA Auto India Private Ltd. Thus deficiency in service off-shooting their sale and purchase of the vehicle from showroom of the dealer is devoid of manufacturing defect which is covered by warranty. Sole responsibility shall be shouldered upon  the O.P. dealer M.L.A Auto India Private Ltd. Manufacturer and authorized dealer are two different legal entities who are carrying out their respective presence dealing with each other. In Indian Oil Corporation Vs. Consumer Protection Council Kerala and Anr.II(1994) CPJ 21(SC) it has been held by the Hon’ble Supreme Court that relationship  between the dealer and  the Indian Oil Corporation is one of the principal to principal  basis and not as principal to agent. Since the relationship was of principal to principal basis there was no privity of contract between Indian  Oil Corporation and the manufacturer. The vehicle is used as new  vehicle. Therefore, they have prayed for dismissal of the complaint.

                     Both the complainant Smt. Anupama Aggarwal and the O.P Nissan Motor India Private Limited and its Director Arun Malhotra have filed Written Version, Brief Notes of Argument in support of their contentions.  From the documents submitted by the complainant it appears that the O.P no.3 MLA Auto India Private Ltd. has purchased the vehicle on 15^th July, 2016, against the consideration amount of Rs. 7,94,850/-. Certificate  of registration stands in the name of Anupama Aggarwal, issued by the registering authority, Siliguri.  Besides that, they have paid a sum of Rs.43,757/- to the S.D.O, Siliguri Motor Vehicles Department for the period from 22^nd July, 2016 to 21^st July, 2021.  The O.P has paid Rs20,349/- on 14.7.18 through ICICI Bank.  The O.P Bajaj Allianz General Insurance Co. Ltd. insured Policy of the vehicle. The salient features of the motor insurance policy are :

1. Cashless accident claims services per policy terms;
2. Nissan  authorized repairs and genuine spare parts in repairs;
3. Hassle free, Fast & Convenient claims settlement;
4. Dedicated call center for policy related queries;
5. Seamless claims service at all authorized Nissan showrooms across India.

      The said period of insurance policy was from 15^th July, 2018 to 14^th July, 2019.  It has been mentioned that dealer of Nissan Motor Company is MLA Auto India Private Ltd. speaks that  Exide Service Centre stated that Anupama Aggarwal on 24.10.2017 in relation to vehicle No.WB-74-AM/1643 complained against the battery which was  repaired.  Sandhya Battery has charged a sum of Rs.6,875/- from the complainant.  Date of sale was on 31.8.2014. From the repair order it appears that they have charged repairing cost of Rs. 4,244..29 on 10.4.2018.  The balance-sheet of HDFC Bank, as detailed in Annexure-7,  shows that the O.P Anupama Aggarwal paid installments.

          Ld. Advocate Shri Nilay Chakraborty sent a legal Notice to all the O.Ps stating grievance in detail, inter alia, that on 15.07.2016 the complainant purchased Nissan new vehicle with the financial assistance of HDFC Bank, Siliguri.  The said car was manufactured in the year 2016.Said vehicle was registered in her name by the registering authority, Motor Vehicles Department, Siliguri. But the said vehicle was sold on 15.07.2016 from the show-room.  On 24.10.16 the complainant found that there was starting problem and the vehicle could not be started even after several attempts. They complained to the dealer MLA Auto India Pvt. Ltd..  The Service Personnel after assessing the problem found that the vehicle was suffering from  battery defect, but it did not make contact with the Exide Service Centre. Only they have repaired the battery, but did not charge for repair of said Exide battery and wrote in the remark column as “discharged”. In fact the battery was manufactured in the year 2007.  Two service personnel of Excide Industries Pvt. Limited appeared and after assessing the battery prepared a service-sheet. As the new branded vehicle was purchased, but the battery was out of warranty period. So, they did not make any replacement. The complainant purchased a new battery at Rs.6,875/-  from Sandhya battery after installation of which the starting problem was cured.  On 10.4.18 the complainant got her car serviced by Kayshop Vendor Private Ltd. being authorized service centre  of Nissan India Private Ltd. and after servicing  the vehicle the complainant was handed over the repair order on which date the sale was made. Old used vehicle was sold to the complainant by the dealer MLA Auto India Private Ltd.  by practicing fraud  and thereafter sale server is also updated, as if the warranty period starts.  In the instant case the vehicle was sold on 31.8.2014 and thereafter it was again re-sold on 15.07.2016 as second hand used car and they made the remark as if new branded.

      Having regard to the facts and circumstances as stated herein-before both the manufacturing company Nissan Motor India Private Ltd. and its Director had shouldered responsibility upon its authorized dealer the O.P  MLA Auto India Private Ltd. It is the contention of the O.P manufacturer that they have resold the Nissan branded motor vehicle, but the same was resold by the O.P M.L.A Auto  India Private Ltd. Thus, the authorized dealer is accountable and answerable for suppressing the material fact and reselling the vehicle as if new branded vehicle.  It falls within the meaning of unfair trade practice under section 2 (r) of Consumer Protection Act for reselling old Exide Battery The authorized dealer misrepresented that the vehicle was  new one if it look into the deficiency of service as enshrined u/s. 2(g) of the Consumer Protection Act it means that  the manufacturer company has vicarious liability for the acts done by its authorized dealer MLA Auto India Private Ltd.  The consumer has purchased the car from the authorized dealer of Nissan Motor India Private Ltd. Therefore, the matrix of equity provides that equity will not suffer wrong without remedy. Fact remains that old car was being resold by the dealer of Nissan Motor India Private Ltd namely, M.L.A Motor India Private Ltd. Therefore, they are jointly and/or severally liable to pay the amount.  Consequently, it is being held that the O.P shall refund a sum of Rs. 7,94,850/- to the complainant by the O.P Nissan Motor India Private Ltd. and others including his authorized dealer MLA Auto India Private Ltd. Further-more, they shall pay insurance of Rs.50,594/-. Besides that, they shall pay road tax amounting to Rs. 43797/-. Further, they shall pay pollution amount of Rs.160/-. Moreover, they will pay extra-financial charges incurred by the complainant amounting to Rs.99,960/-. Further-more , they shall pay a sum of Rs. 6,875/- towards purchase of new battery. In addition to that, they shall pay Rs.1,00,000/- towards litigation cost and a sum of Rs.5,00,000/- towards mental pain and agony.  It is within the knowledge of the O.P. Nissan Motor India Private Ltd. that such unfair trade practice is being done by its dealer MLA Auto India Private Ltd.  Therefore, no action against dealer was taken by the Nissan Motor India Private Ltd. Both the manufacturer of car and its car dealer are jointly and/or severally liable for misdeed in selling old car at new sale price.  They have played hide and seek game for which the innocent purchaser was in prey who has purchased with good faith and belief. No action was taken by the Manufacturer against the O.P MLA Auto India Private Limited. Both the opposite parties have sold out second hand car to the complainant without clarity and fairness. Therefore, the manufacturer and dealer have practiced  fraud upon the complainant who has purchased vehicle.  Therefore, they are liable to pay punitive damage due to having their knowledge about reselling second hand car as new one. Therefore, no action against dealer was taken by  Nissan Motor India Private Ltd.  In the result, the case succeeds.  Accordingly, it is

                                                      O R D E R E D :-         

That the case be and the same filed by the complainant against the O.P nos. 1 and 2 is allowed. Also the complaint case be allowed ex parte against the authorized dealer the O.P MLA Auto India Private Ltd. All the O.Ps shall jointly  pay vehicle price of Rs.7,94,850/- including VAT to the complainant.  Further the O.P shall pay insurance charge of Rs.50,594/- to the complainant.  All the O.Ps shall pay road tax amounting to Rs. 43,757/- to the complainant. All the O.Ps shall pay Pollution charge amounting to Rs. 160. Besides that, they will pay extra-financial charges incurred by the complainant amounting to Rs.99,960/-. More-so, they shall pay a sum of Rs. 6,875/- towards purchase of new battery. In addition to that, they shall pay Rs.1,00,000/- towards litigation cost including expenses in making correspondence and travelling for  realization of the said amount in question and a sum of Rs.5,00,000/- towards mental pain and agony. Such  amount shall be paid within  one month from the date hereof. It will carry interest @ 9% per annum to be paid by the O.Ps to the complainant from the date of filing of the case as on 24.8.2018. In the event of failure to pay the amount as awarded with interest amount within thirty days from the date hereof, the O.P shall go  on paying punitive damages of Rs. 500/- per day in respect of the amount as directed herein-before.

          Let a copy of this order be sent to the complainant and the Opposite parties each by speed post  with A.D.