Order No. -23                                                                             Dt.-16/07/2015

             Sri A. K Das, President

Complainant’s case in short is that he decided to purchase quality car for personal use. Being attracted by the advertisement of the TATA INDICA VISTA CAR he visited  the showroom of Lexican motors at Kusumnagar, Matigara Darjeeling and took there a drive on the said car. At that time the service engineer of Lexican motors claimed that the said car will run 22.3 k.m. per litre of diesel. So the complainant decided to purchase a Tata Indica Vista Car. He paid Rs.5,29,736/- in total to Lexican Motors as price for the car, its accessories, registration charge etc. On 26/02/2010 a car viz Tata Indica Vista Aura III QJD bearing registration no. WB 74Q/7265 was delivered to him and he returned back to Jalpaiguri. Soon after that the complainant noticed that the fuel efficiency of the car was below the mark and it was much less than 22.3 kmpl. He reported this matter to the Service Engineer of Lexican Motors who gave assurance to the complainant that the mileage of the car would be increased upto 22.3 kmpl after 1^st and 2^nd servicing but there was no improvement of mileage of the car after 1^st and 2^nd servicing. On 09/08/2012 complainant went to the service station and there the engineer checked the mileage of the car twice without A/C and found that it was 13kmpl instead of 22.3 kmpl. They admitted the requirement of certain repairing of the car but as his wife and daughter were with him and it was then 6.50pm, he could not keep the car there and the service engineer assured him that they would take the car from his house for repairing but they didn’t keep their assurance. Thereafter the complainant contacted them on several times but in vain. The car is defective and the O.P. took no step to remove the defect and to increase the mileage of the car and that the O.Ps. sold him 1 year old car concealing its year of manufacture and thereby committed Unfair Trade Practice. The complainant availed the extended warranty scheme of the of the Company on payment of Rs.6,375, which provides 2 years extended warranty in addition to manufacturer’s warranty. So his car is well within extended warranty. On 31/08/2013 he served lawyer’s notice to Lexican Motors with request to take his car at their expenses and to return back the same within 15days or to provide him a new car. O.Ps. received that notice on 03/09/2013 but no fruitful result came out. Complainant asserts that the aforesaid acts of O.Ps. are glaring example of deficiency of service  and Unfair Trade Practice. Hence the complainant has filed the case and prayed for the reliefs as mentioned in the prayer portion of the petition of complaint.

Notice was served upon both the O.Ps. and both of them appeared but only O.P.1 has contested the case by filing a W/V denying and disputing the claims and contention of the complainant. The specific stand of O.P.1 is that the complaint is not maintainable and it is barred by the provision of Sec. 230 of the Indian Contract Act.1872. The claim of the complainant is barred by limitation. Under this background O.P.1 has prayed  for dismissal of the case with cost. O.P.2 has not contested the case, so case is heard ex-parte against O.P.2.

POINTS FOR CONSIDERATION.

1. Is the case maintainable both law and in fact?
2. Is the petition of complaint barred as per provision of Sec. 230 of the Indian Contract Act 1982 as alleged?
3. Is the claim of the complainant barred by limitation as alleged ?
4. Is the complainant a consumer as per C.P.Act 1986?
5. Are the O.Ps. guilty for deficiency in service and Unfair Trade Practice as alleged.
6. Is the complainant entitled to get the reliefs as prayed for?

DECISION WITH REASONS

              All six points are taken up together for consideration and decision for the sake of convenience.

             Seen and perused the petition of complaint and the Written Version filed by O.P.1 which are supported by affidavits. Also perused the Written Arguments and the documents filed by the parties.

              We have heard the oral arguments advanced by the Ld.Lawyers of both sides.

              Ld. Lawyer for the complainant has referred some decisions reported in AIR 2001, Supreme Court 416 [1994]1Supreme Court Cases 243, 1(2006) CPJ 1(SC), 2001(7) Supreme Court Cases 358, in support of his claim and contention. On the other hand Ld.Lawyer for O.P.1 has referred some decisions reported in AIR 2002 Supreme Court 126, AIR 2010 SC and AIR 199, Supreme Court 80 in support of his claim and contention.

            Seen and perused the aforesaid case laws.

             Now after due consideration of arguments of the Ld. Lawyers of both sides and the materials on record we find that admittedly the complainant purchased one Tata Indica Vista Aura III QJD having registration no. WB 74Q/7265 on 26/02/2010 from O.P.1 (Lexican Motors) on payment of Rs.5,29,763 in total and he decided to purchase that car being influenced by the advertisement and leaflets of Tata Indica Vista Car. It is coming out from the petition of complaint that before purchase of the car the complainant took a test drive on the Tata Indica Vista Car in the showroom of O.P.1 and at that time the service engineer of Lexican Motors told him that the car will provide 22.3 kmpl. Soon after purchase and delivery of the car the complainant noticed that the fuel efficiency of the car was much less than the mileage 22.3kmpl. He reported the matter to the service engineer of O.P.1 who told him that after 1^st and 2^nd servicing the fuel efficiency of the car would be increased upto 22.3 kmpl but there was no improvement of fuel efficiency of the car after its 2^nd servicing. On 09/08/2012 the complainant went to the service station and requested the service engineer to check the mileage of the car. The service engineer checked the mileage of the car twice without A/C and found that it was 13kmpl instead of 22.3kmpl. The copy of the tax invoice dated 09/08/2012 filed by the complainant supports such claim of the complainant.

            Admittedly the complainant resides at Jalpaiguri town and he is a businessman and he purchased that vehicle for his personal use and not for any commercial purpose. The registration number of the car supports such claim of the complainant. We find from the documents filed by the complainant that initially the warranty period of the vehicle in question was for 2 years from the date of purchase and that warranty  period was extended for further 2 years after expiry of manufacturers warranty and this extended warranty will expire on completion of 4 years i.e. after 26/02/2014 as the car was delivered to the complainant on 26/02/2010. Now we find that this case was filed on 05/12/2013. Therefore it is clear that complainant is a consumer and the case was filed well within the period of limitation as per provision of Consumer Protection Act 1986. It was contended by the Ld. Lawyer for the O.P.1 that the complainant had no cause of action to file this case and this Forum has no territorial jurisdiction to hear and to dispose off the matter in dispute. A plain reading of the petition of complaint goes to show that there were a bundle of facts before the complainant to file this case. It has been held by the Hon’ble Supreme Court of India in Blom Dekor Ltd. Vs. Subhash Himatal Desai case reported in 1994 (6) SCC, 322C that, “cause of action, it is meant every fact which it traversed it would be necessary for the Plaintiff to prove in order to support his right in a judgement of the court. In other words a bundle of facts which is necessary for the plaintiff to prove in order to succeed in a suit.” It is settled principle of Law that, it is no doubt true that even if a small fraction of cause of action arises within the jurisdiction of the court, the court will have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a part of cause of action and nothing less than that. Admittedly the complainant has been facing difficulties and trouble in his car a few days after purchase of the car and he reported the matter to O.P.1 time and again. O.P.1 gave him assurance to remove the defects of the car but in vain. Admittedly complainant is a permanent resident of Jalpaiguri and he purchased the car for his personal use. Therefore we find that the complainant had sufficient cause of action to file this case before this Forum, his claim is not barred by limitation and this Forum also has territorial as well as pecuniary jurisdiction to hear and to dispose of this case. Here we shall have to keep in mind that the Consumer Protection Act is a beneficial statute enacted with social purpose securing protection to the consumer from all sorts of deficient and unfair practices by sellers and/or service providers.

           Ld. Lawyer for the O.P. Also argued that the complaint is barred by the provision of sec 230 of the Indian Contract Act 1872 as the O.P.1 is the authorised dealer of the said vehicle and the O.P.2 is the manufacturer of the said vehicle and as such relationship in between O.P. 1 and O.P.no 2 is that of Principal and agent and so in such circumstances the Principal is liable for the defect of the said vehicle as alleged by the complainant. Ld. Lawyer for O.P.1 has referred a case Marine Container Services South Pvt. Ltd., Appellant, V Gogo Garments, Respondent, reported in AIR 1999. Supreme Court 80 in support of his above claim and contention. Ld. Lawyer for the complainant in reply argued that the consumer contract and the Law of Contract are different. The Law of Contract is founded within the Common law and the Statute law has been developed to clarify and to protect the interest of the consumers against potentially more powerful commercial interest. Statute Law associated with Consumer Protection are designed to provide a remedy to the consumer which is not provided via the Common Law. One feature of Statute Law in the Consumer Protection Legislation is the absence of privity allowing a consumer to hold a retailer accountable for a product, even if a third party supplier manufactured the product. So only the broad principles of Contract law is applicable. Now from the decision referred to above by the Ld. Lawyer for O.P.1 we find that in this decision Hon’ble Apex Court has held that, “The Contract Act applies to all, litigants before the commission under the Consumer Protection Act included. Whether in proceedings before the Commission or otherwise, an agent is entitled to invoke the provisions of Sec.230 of the Indian Contract Act and, if the facts found support him, his defence based thereon cannot be brushed away”. Admittedly O.P.1, the Manager Lexican Motors, wherefrom the complainant purchased his car, is a selling agent of the manufacturer  viz. Tata Motors (O.P.2) and the Ld. Lawyer for O.P.1 has also taken the defence for his client O.P.1 invoking the provision of Sec 230 of the Indian Contract Act 1872. Sec 230 of the Indian Contract Act 1872 runs as follows -

           Agent cannot personally enforce nor be bound by, Contracts on behalf of principle. “In the absence of any contract to that effect, an agent cannot personally enforce contract entered into by him on behalf of his principle nor is he personally bond by them.”     

           Therefore in view of the provision of Sec.230 of the Indian Contract Act 1872 and the decision of the Hon’ble Supreme Court of India referred to above O.P.1 being an agent of O.P.2, Tata Motors is not liable for defect of the car purchased by the complainant from it (O.P.1). But for this reason we cannot say that the complaint is barred.

           The allegation of the complainant is that he purchased one Tata Indica Vista Aura III QJD (manufactured by Tata Motors) on 26/02/2010 from O.P.1, agent of O.P.2 after being satisfied regarding fuel efficiency of that car(22.3kmpl). from the leaflet of Tata Motors and the assurance of the service engineer of Lexican Motors(O.P.2) and within a few days he found that the fuel efficiency of his car was 13kmpl instead of 22.3kmpl. O.P.2 though appeared after receiving notice of this case didn’t contest the case. Now from the Written Version filed by O.P.1 and the document filed by the complainant we find the said allegation of the complainant is well founded. Therefore O.P.2 being manufacturer of the car is solely responsible for the sale of defective car to the complainant and despite complainant’s repeated requests through O.P.1 the grievance of the complainant was not fulfilled by O.P.2 Tata Motors. Such inaction on the part of O.P.2 Tata Motors compelled the complainant to knock the door of this Forum for proper redressal. Therefore in our considered opinion O.P.2 Tata Motors is guilty for deficiency in service as well as Unfair Trade Practice as alleged by the complainant.

           In view of our above discussions we find and hold that the complainant is entitled to the reliefs as specified below.

           All points are disposed of.    

           In the result the case/application succeeds against O.P.2.

           Hence, it is

O R D E R E D

            that the case /application is dismissed on contest without cost against O.P.1, The Manager Lexican Motors and the case is allowed ex-parte against O.P. 2 Tata Motors with cost of Rs. 5000/-. The O.P.2 Tata Motors is hereby directed to take back the Car/vehicle referred to above from the complainant at their own expenses and to return the same to him after increasing the mileage upto 22.3kmpl as assured, within a period of 30days from the date hereof,

OR

to replace the car/vehicle in question with a new one within 30 days from the date hereof, OR

 to pay the price of the vehicle including the life time tax, etc. within 30 days from the date hereof failing which it will carry interest @8% p.a. till realisation .

             The complainant do get an award of Rs. 25,000/- against O.P.2 in the head of compensation for mental pain, harassment agony, etc., suffered by him.

             The O.P.2 is hereby directed to comply the aforesaid directions and to pay to the complainant aforesaid cost of Rs.5,000/- and the compensation of Rs.25,000/- within 30 days from the date hereof failing which he will have to bear interest @ 8% p.a. till realisation/compliance and the complainant shall be at liberty to put this order into execution in accordance with law.

               Let copy of this final order be supplied to the parties free of cost forthwith in terms of Sec.5(10) of West Bengal Consumer Protection Rules 1987.