Date of filing : 19-08-2010
Date of order : 10-02-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
C.C. 182/2010
Dated this, the 10th day of February 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Seedhi,
S/o.Abdul Rahiman,
R/at Shakker Manzil, Udyavara, } Complainant
1st Railway Signal, Manjeshwar.Po.
Kasaragod Taluk and District.
(Adv. Harshitha.K.M. Kasaragod)
1. Ramesh Rai, Sale Executive, } Opposite parties
HAR Auto Private Limited,
HAR CARS, Nullipady, Kasaragod.Po
Kasaragod.Dt.
2. The Manager,
HAR Auto Private Limited, HAR CARS,
HAR Avenue, Kannothumchal, Chovva.Po,
Kannur.Dt.
(Adv.Srikanta Shetty.K, Kasaragod)
O R D E R
SHRI.K.T.SIDHIQ, PRESIDENT
Shorn of details the factual matrix of the complaint are that the complainant approached opposite party No.1 on 31-7-2010 to purchase a new car SWIFT VDI by exchanging his Maruti Wagon-R bearing Reg.No.KL-14/G 8112. The price of the new Car was fixed as `5,74,313/- including insurance premium, life road tax and other accessories. The price of the Wagon car belongs to the complainant was fixed as `1,62,000/-. The opposite parties taken possession of the said vehicle including the original records and promised to deliver the new car to the complainant on 6-8-2010 and agreed to receive the balance amount after delivery. On 6-8-2010 when complainant approached to get the delivery of the new SWIFT VDI as promised by opposite parties they refused to deliver it saying that stock is not available with them and thereafter several times complainant approached opposite parties and on all occasions they failed to deliver the new car. At the same time they also failed to return his Car bearing Reg.No.KL-14/G8112 with original records or to pay the amount `1,62,000/- fixed by them. They are dragging the delivery of the car against their promise to deliver it on 6-8-2010. Complainant being a businessman suffered untold miseries, inconvenience and loss in business. He also suffered mental agony and suffering due to the act of opposite parties. The opposite parties have defrauded and cheated the complainant by way of non-delivery of the SWIFT car promised by them. Hence the complaint for an order directing the opposite parties to deliver the new SWIFT VDI white car as mentioned in the booking order and to pay interest @ 18% for `1,62,000/- to till date of delivery of new car and compensation of `50,000/- with cost of the proceedings.
2. Notice to opposite party No.1 sent by registered post returned as unclaimed since opposite party No.1 failed to collect the notice even after due intimation. Hence opposite party No.1 had to be set exparte. Opposite party No.2 appeared and filed version.
3. According to opposite party No.2, Opposite party No.1 was a sales executive of Har Cars, Kasaragod and not a sales executive of Har Auto Pvt. Ltd. Har Car Nullipady, Kasaragod. Neither opposite party No.2 nor Har Car was aware about the transaction and dealings of the complainant with opposite party No.1 regarding the purchase of car SWIFT VDI by exchanging complainant’s Maruti WagonR bearing Reg.No.KL-14/G8112 on 31-7-2010 or at any time afterwards. The said transaction of complainant with opposite party No.1 was outside the company business and was purely personal with opposite party No.1 and HAR CARS has nothing to do with that dealings. The complainant has never approached the showroom of HAR CARS at Kasaragod. HAR CARS never give an assurance or undertaking that new vehicle Maruti SWIFT VDI will be delivered to the complainant on 6-8-2010. The booking, promise of delivery, approaching of several times as alleged in the complaint and not related to opposite party No.2 or with the company in Kasaragod. Opposite party No.1 was a sales executive of the HAR CARS, Kasaragod till July 2010 and after drawing salary of the month of the July he left the company by cheating and committing breach of trust causing huge loss to HAR CARS. The fact of opposite party No.1’s act is published in the notice board of the company, published in news papers, police complaint lodged and sufficient awarness given to the public as well as customers who is having direct contact with the company. Hence who deal with opposite party No.1 was doing so at their own risk and opposite party No.2 is not liable for any consequences. At the time of alleged act of the opposite party No.1 he was not an employee of opposite party No.2 and dealing with complaint are not under the knowledge and with authenticated papers of opposite party No.2. Hence opposite party No.2 is not liable to pay any loss or damages even vicariously. The opposite party No.2 having their own true valuation procedure of old cars and having booklets of its own, in which the complainant has to sign and the company (OP No.2) will issue delivery receipt to the customers. The complainant has not given with such papers. The complainant in collusion with opposite party No.1 lodged false claim against opposite parties for unlawful gain. The allocation of the model are subject to availability of quota on each months which are informed to opposite party No.2 from time to time. Hence opposite party No.2 or its branch cannot assure a customer overriding this notification Minimum period of waiting for Maruti SWIFT VDI is 3½ months from the date of booking in the month of July and 6 months in August 2010. The opposite party No.1had committed act not as an employee of No.2 and therefore opposite party No.1 is as personally, individually liable to pay compensation claimed by complainant.
4. Complainant filed proof affidavit in lieu of oral evidence. He faced cross-examination by the learned counsel for opposite party No.2. Exts A1 & A2 marked. On behalf of opposite party No.2 Sri.Anilkumar.K, the sales officer of HAR CARS, Kasaragod submitted affidavit and subjected to cross-examination by the learned counsel for complainant and Exts. B1 to B6 marked on their side.
5. In this complaint the cardinal points to be settled is whether opposite party No.2 is vicariously liable for the act of opposite party No.1 or not? And what order as to relief and costs? Ext.A1 is the order booking Form of HAR CARS, HAR AUTO PVT LTD dated 31-7-2010. On the left side of Ext.A1 the details of the vehicle SWIFT VDI booked by the complainant with its price is shown. On the right side portion the details of the vehicle handed over to the opposite parties is also shown. There also in the column for the model booked SWIFT VDI is seen mentioned. Ext.A1 is signed by opposite party No.1.
6. According to opposite party No.2 Ext.A1 is not the present booking form and Ext.B1 is the specimen of the present booking form and Ext.B2 is the specimen booklet for the entrustment of an old vehicle for sale or exchange with opposite party No.2. Exts B3 to B6 are the e-mail messages showing the waiting period of different variants of Maruti vehicles.
7. The main contention of opposite parties is that the dealings of the complainant with opposite party No.1 was direct and on the day of entrustment of his Maruti WagonR for exchange and booking of new MARUTI SWIFT VDI car opposite party No.1 was not an employee of opposite party No.2. This is not sustainable. Firstly, even according to opposite party No.2, opposite party No.1 left the company after drawing the salary in the month of July 2010. This itself would make it clear that opposite party No.1 worked with opposite party No.2 up to 01-08-2010 since the salary for July will only be disbursed atleast only on 1st August 2010. The opposite party No.2 has no case that the salary for the month of July is paid earlier. The complainant approached opposite party No.1 in the office of opposite party No.2 on 31-7-2010. So it is clear that at that time opposite party No.1 was an employee under opposite party No.2. Moreover, during cross-examination complainant (PW!) deposed that he has booked the vehicle from the office of opposite party No.2 and he has contacted all the officials of opposite party No.2 and he approached opposite party No.1 from the office of opposite party No.2 and he entrusted his old vehicle in the office of opposite party No.2 and entrusted the key in the counter of the office of opposite party No.2.
8. All this would goes to prove that the dealings of the complainant with opposite party No.1 was not in the individual capacity of opposite party No.1 but was in the official capacity as an employee of opposite party No.2.
9. Further contention of opposite parties is that Ext.A1 is the order booking form prevailing during July 2010 and Ext.B2 is the specimen booklet to be signed by a customer who is intending to exchange his vehicle and therefore opposite party No.2 is not liable for the issuance of Ext.A1 towards the booking of the new car by exchanging the old car is also not tenable because no customer who is approaching the company of opposite party No.2 may aware about the specific forms kept by them for those purposes. As far as the complainant is concerned he got an official valid receipt (Ext.A1) for the exchange of the old car and booking of the new car from the company of opposite party No.2 issued by one of their official i.e. opposite party No.1. So why should he doubt and question about the genuiness of the booking receipt. Therefore opposite party No.2 cannot escape from the liabilities by putting the blame on opposite party No.1.
10. From the above it is crystal clear that opposite parties has committed both unfair trade practice and deficiency in service. Therefore they are liable to compensate the complainant for the loss, hardships and mental agony suffered by him.
In the result complaint is allowed and the opposite parties are directed to deliver a new MARUTI SWIFT VDI white car to the complainant after receiving the balance amount i.e. `3,09,313 ( 57131-162000) as per Ext.A1 booking order. In case of inability to deliver a new car then opposite party No.2 shall pay `1,62,000/- with interest @ 12% from 31-7-2010 till payment together with a compensation of `30,000/- . The cost of this proceedings is fixed as `5,000/- which shall also paid to the complainant within 30 days from the date of receipt of copy of the order.
Sd/- Sd/-
MEMBER PRESIDENT
Exts.
A1. Order booking form.
A2.Photocopy of RC KL-14-G-8112.
B1. Order booking form.
B2.Maruti True Value file.
B3. to B5. Copy of E-mails . Sails advice.
B6. Petition receipt. No.128444 issued by C.I. of Police.
PW1. Seethi.
DW1.Anilkumar.K.N.
Sd/- Sd/-
MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDANT
