Date of filing : 26-04-2011
Date of order 22-12-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.95/2011
Dated this, the 22nd day of December 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
1. G.Krishna Kumar, } Complainants
S/o. H.Ganapathi Bhat,
Kumbla.Po. 671321,
Kasaragod.District.
2. Hameed Kodiadka,
The President Consumer Welfare Association
Kaikamba, Uppala.Po.671322, Kasaragod.Dt,
Reg.No.309/2010 R/at Kodiyadka Cottage,
Attegoli, Po.Kayyar, Via.Uppala, 691322,
Kasaragod.Taluk.
(Adv.M.Abdul Khader, Kasaragod)
1. The Manager, M/s HAR Auto Pvt. Ltd, } Opposite parties
Nullipady, Kasaragod. 671121.
2. Sudheer, General Manager,
M/s HAR Auto Pvt. Ltd,
Authorized Dealer of Maruthi Cars,
Avenue, Kanothmchal, Choova.Po,
Kannur.670006.
3. The Chief Manager, (Marketing Division)
Maruthi Suzuki (India)Ltd, Haryana.122015
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
The case of the complainants is that inspite of the advance payment of `2,40,000/- towards the price of Maruti Alto Car through the authorized representative of opposite party namely one Ramesh Rai, the opposite party refused to deliver it stating that the payment made by the first complainant to their authorized representative has not been credited in their accounts. Second complainant Hameed Kodiyadukka is the President of the Consumer Welfare Association through whom first complainant earlier issued notice to opposite parties 2 & 3.
2. Opposite parties 1 & 2 filed a version jointly and opposite party No.3 filed separate version.
According to opposite parties 1 & 2 they are unaware about the person Ramesh Rai who hails from Badiadka and he is a friend of first complainant. That is why he is not arrayed as a party in these case. The said person is liable to answer the allegations averments made in the complaint. On merits the opposite parties 1 & 2 denies that Mr. Ramesh Rai persuaded the first complainant to purchase a new car who had a Maruti Car. The booking of new car and payment of advance are only friendly with Ramesh Rai and opposite parties 1 & 2 are not liable for the same. The amounts allegedly collected from first complainant is not accounted by opposite parties 1 & 2. The transactions, if any between the complainant and Ramesh Rai was only personal in nature and first complainant never visited the opposite parties 1 & 2 and never created any relationship each other. They came to know about the allegations only when the complainant started the proceedings. The opposite parties never issued any receipt to the first complainant and if he is having any receipt it is created by him with said Ramesh Rai by criminal conspiracy. The opposite parties 1 & 2 never authorized any person to collect the amount from a customer. The company is authorizing the representative only to book the vehicle. One Ramesh Rai Yendaduka has been received amount from customers fraudulently and with dishonest intention cheated several persons. The opposite parties 1 & 2 are not liable for the same. Because of the complaints reported above the opposite parties have published notice against Ramesh Rai in news dailies and initiated legal actions including police complaints to save the persons firm cheating and to avoid dealings with him. The opposite parties are not liable for the criminal act done by Ramesh Rai. The documents produced by the complainant are forged by colluding with Ramesh Rai.
3. According to opposite party No.3, the manufacturer of the vehicle, they have no privity to the alleged transactions nor received any consideration from complainant. They are unnecessary parties to the proceedings.
4. Complainant filed proof affidavit in lieu of examination-in-chief as PW1. Exts.A1 to A8 marked. He faced cross-examination by the learned counsel for opposite parties 1 & 2. On the side of opposite parties 1 & 2, 2nd opposite party filed affidavit as DW1 and he is cross-examined by the learned counsel for opposite parties 1 & 2. Both sides heard. Documents perused.
5. The specific case of the complainant is that one Ramesh Rai, the authorized representative of opposite parties 1 & 2 approached him and persuaded him to purchase a new Maruti Alto car inspite of his old Maruti car and accordingly on 29-07-2010 he paid `70,000/- and on 30-07-2010 he paid `1,70,000/- and in turn the authorised representative issued him in order booking form of opposite party HAR AUTO PVT LTD having Sl.No.1185 that is marked as Ext.A1. Ext.A2 is the temporary receipt dated 31-07-2010 with Sl.No.2100 for `1,70,000/- containing the stamp of the 1st opposite party. Ext.A3 is a news paper copy of Karaval of Kannada daily published on 09-08-2010 containing an advertisement in the form of a notice given by opposite party No.1 to the public containing photo of Ramesh Rai. In the said notice public is informed that Ramesh Rai who is an employee of the company is absconding from duty since 04-08-2010 and he flouted company Rules & Regulations and entered in to financial/other transactions with various individuals illegitimately on personal basis for which the company is not responsible. On the side of opposite parties no documents produced.
6. PW1 during cross-examination against the proof affidavit filed in lieu-of-examination in chief has deposed that Ramesh Rai approached him for purchasing a car and at that time he was owning a Maruti 800CC car and since he want a Maruti Alto car he opted to purchase it and Ramesh Rai came to his Medical shop from where the booking was made and all the dealings for the purchase of car was done and he handed over his old car to Ramesh Rai for which `70,000/- is fixed as selling price. Exts A1 & A2 are handed over by Ramesh Rai to him from his medical shop and he paid `1,70,000/- to Ramesh Rai and at the time of transaction Ramesh Rai told him that he is working in Har Cars Pvt Ltd and he showed his visiting card and he told that the car will be delivered on 3-8-2010. Since the car is not delivered he contacted Ramesh Rai and Ramesh Rai told that the specific colour of the car is not reached in the show room and it will be delivered within 2 days. On 3-8-2010, 4-8-2010 and on 5-8-2010 he approached opposite parties 1 & 2 directly and they told that they did not receive the amount paid by the complainant. PW1 further stated that he has not lodged any police complaint against Ramesh Rai since company officials told that they have already filed complaint against Ramesh Rai before the police and hence it is not necessary to file a complaint by him. PW1 denied the suggestion that since he and Ramesh Rai are friends and therefore he did not implead him as party. He also denied the suggestion that he has concocted Exts A1 & A2 documents. He further stated that after seeing the advertisement he came to know that Ramesh Rai was cheating him. He also deposed that he entrusted the amount to Ramesh Rai as an agent of the Har Cars Company.
7. We did not see any thing to discredit that testimony of PW1. One of the contention of opposite parties 1 & 2 is that the Exts A1 & A2 are concocted documents. If so the opposite parties 1 & 2 ought to have filed criminal complaint against complainant for creating such documents. That was not done by them.
8. DW1 in his affidavit has stated that they are unaware of a person named Ramesh Rai hails somewhere near to Badiadka and he is a necessary party to the proceedings and they came to know about the allegations only when they received the copy of the complaint and they have not issued any receipt to the complainant and the receipts produced by the complainant are created in connivance with Ramesh Rai and their company is authorizing the representatives only to book the order for the vehicle. One Ramesh Rai of Yenadadukka has received amounts from customers and fraudulently cheated persons.
9. In cross-examination DW1 stated that he know about the publication of notice in Karavel daily dated 9-8-2010 against Ramesh Rai. According to DW1 the photo shown Ext.A3 and the person mentioned in the complaint as Ramesh Rai is not one and the same person because the address of Ramesh Rai shown in the complaint and in their records are different and Ramesh Rai appointed by the company only to canvass the people and to bring them to their show room and he was not authorized to deal any financial transactions with the customers. DW1 further deposed that he cannot say whether signature contained in Ext.A1 is that of Ramesh Rai and Ext.A2 is a fabricated document issued from Har Cars Pvt Ltd.
10. During hearing the only contention pressed by the learned counsel for opposite parties is that the complaint is bad for non-joinder of necessary parties since Ramesh Rai is not made as a party to the proceedings.
11. As against this contention, learned counsel for the complainant has cited a judgment reported in I (2006) CPJ 112 (NC).MAHANTAYYA V MAHALAKSHMI TRACTOR & ORS In that case the Hon’ble National Commission has held that manufacturer is liable if their dealer is misappropriated the amount.
12. It is well settled principle that Master is vicariously liable for the wrong committed by his servant. The opposite parties has no case that Ramesh Rai was not their authorized representative when he obtained order booking form and money from the complainant. According to them Ramesh Rai was authorized only to canvass the people to their show room. Even according to opposite parties Ramesh Rai has flouted the rules and regulations of opposite party No.1 company and dealt personally with customers. How a customer know about the rules and regulations of the company and how a customer know to what extent their authorized representatives have given authority? The order booking form nowhere state that the amounts/price for booking shall only be paid in their counters and they are not responsible for the payment made to the authorized representatives. So these are only feeble defenses and are not sustainable.
13. The contentions that agent is a necessary party is not sustainable and we hold that opposite parties 1 & 2 are jointly and severally liable to compensate the complainant even if Ramesh Rai is not made a party to the proceedings and his non-implication as an opposite party is not fatal for a just and fair disposal of the case.
14. In this case we did not find any incriminating evidence to fix liability on the part of opposite party No.3 the manufacturer of the vehicle. Hence they are exonerated from liabilities.
In the result complaint is allowed and opposite parties 1 & 2 are directed to refund the sum of `2,40,000/- (two lakhs forty thousand only), which is collected by their employee towards the purchase of the car, with interest @ 9% from the date of complaint till payment together with a cost of `4000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order. Failing which opposite parties 1 & 2 shall be liable to pay an enhanced rate of interest @ 12% for the said amount from the date of complaint. Opposite party No.3 is exonerated from liabilities. The opposite parties 1 & 2, if they wish can take appropriate legal proceedings against Ramesh Rai to recover the amount paid to the complainant in compliance with this order.
MEMBER MEMBER PRESIDENT
Exts.
A1.29-07-2010 Order Booking form
A2. 31-07-2010 Temporary Receipt Vehicle
A3. Karavel News paper
A4. 3-11-2010 letter sent by complainant No.1 to President Consumers Welfare
Association, Uppala.
A5. 11-11-2010 copy of the office copy Registered letter sent to OP No.2 &3
A6. Postal receipt
A7& A8 Postal acknowledgement card.
PW1. Krishnakumar.G.
DW1.Sudhir.C.C.
MEMBER MEMBER PRESIDENT
Pj/
