DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 6th day of October, 2023
Present : Sri. Vinay Menon V., President
: Smt. Vidya A., Member
: Sri. Krishnankutty N.K., Member Date of Filing: 24/11/2020
CC/149/2020
Sumesh Meppat,
S/o. Gopalan,
Meppattu house, Thenkara
Mannarkkad, Palakkad – 678 581. - Complainant
(By Adv. T.T. Sunil Kumar)
Vs
- The Manager,
True Value,
Indus Motors Pvt.Ltd.,
West Hill, Calicut - 673 005.
- The Manager,
Indus Motors Pvt. Ltd.
Corporate Office, M.G Road,
Thevara, Ernakulam – 682 013.
(OPs by Adv. J. Kamesh) - Opposite parties
O R D E R
By Sri. Vinay Menon V., President
- O.P.1 is a dealer of pre-owned cars. The 2nd O.P. is the corporate office/ head office of the 1st O.P.
- Complainant purchased a pre-owned Maruti Swift car from the 1st Opposite party on 27/1/2018. At the time of purchase there were no patent damages to the car. The 1st opposite party made the complainant believe that they sell only accident free cars and no further history need be looked into. Believing the goodwill generated by OPs the complainant purchased the car. During 2020, when the complainant was intend on disposing off this car for purchasing another car, staff of 2nd OP informed the complainant that the said car had met with a major accident and that they would not purchase the car from the complainant. Further the 1st O.P. had over-priced the car, which cost only lesser amount at the relevant point of time of purchase. Complainant alleges that the 1st OP had resorted to unfair trade practice and has made unlawful gains at the expense of the complainant. This complaint seeks compensation under multiple heads and other incidental and ancillary reliefs based on the unlawful and unfair trade practices allegedly resorted to by the opposite parties.
- The opposite parties filed version repudiating complaint pleadings stating that the complainant had knowledge of the minor accident that had occurred to the car. The car had a market value of Rs.3,20,000/-, but was sold for a reduced cost Rs.2,90,000/- considering the accident. There was no unfair trade practice or unlawful gains and sought for dismissal of the complaint.
- Pleadings and counter pleadings considered, the following issues were framed by this Commission:
1. Whether the O.P.s had revealed the factum of accident to the complainant?
2. Whether the nature of repair was minor or major?
3. Whether there was over pricing of the car?
4. Whether there is any deficiency in service on the part of the O.P.s?
5. Whether the complainant is entitled to the reliefs claimed?
6. Reliefs as to cost and compensation?
5. (i) Complainant filed proof affidavit and marked Exts. A1 to A4. Complainant was examined as PW1. Commission report and documents forming part of the commissioner’s report filed by the expert commissioner were marked as Exts.C1 & C2 respectively. Marking of Ext.C2 is objected to on the ground that there is no recital regarding Ext.C2 in C1 and there is no Section 65 B certification.
Since this Commission is not bound by the strait jackets of Indian Evidence Act and in the absence of a contention on the part of opposite parties that these documents were forged or concocted, objection raised by the opposite parties regarding the necessity of Section 65B certificate is rejected.
(ii) Ext.C2 is a set of documents, 3 photographs and a CD containing the soft copy of the photographs. As to how non-recital of the documents in Ext.C2 in Ext.C1 would render the entire Ext. C2 redundant or inadmissible in evidence is not made clear by the counsel for opposite party. Hence this objection is also rejected.
(iii) Opposite parties filed proof affidavit. No documents were marked on their part.
Issue No.1
6. Complainant’s case is that the car purchased by him did not suffer from any patent defect at the time of purchase from the opposite party. The opposite parties denied this claim and stated that the complainant was aware of the ‘minor accident’ that the car had suffered and it was in view of this minor accident that the opposite parties had reduced the price of the car from Rs.3,20,000/- to Rs.2,90,000/-.
7. Even though the counsel for the opposite parties had at the time of hearing vehemently argue that they were not the seller of the car, but only an interface between the actual seller and the complainant, in view of the contentions in the version as well as the contents in Ext.A3 reply notice dated 13/8/2020 issued from opposite party No.2 to the complainant, wherein it is unequivocally admitted that the complainant had purchased the car from the 1st OP, we are not inclined to subscribe to the contention raised by the counsel for opposite parties at the time of hearing. The transaction between the complainant and 1st OP is a sale transaction.
It would also be pertinent, at this juncture to refer to the fact that the complainant had filed an application as IA 453/2022 seeking a direction to opposite parties to produce the documents (terms and conditions) pertaining to the transactions. This application was allowed on 5/12/2022 directing the opposite parties to produce the documents sought for. There was also a direction by this Commission to the opposite parties to file an affidavit stating cause for non-production in the event they are unable to produce the said document. The opposite parties did not file the documents or file an affidavit in compliance with the order dated 5/12/2022 in IA 453/2022. In this premise, this Commission can very well resort to adverse inference as against the opposite parties wherever deemed necessary.
8. The terms and conditions entered into between the complainant and the opposite parties would have made clear the condition of the car at the time of sale. Since the said terms and conditions were not produced by the OPs in violation of a clear and explicit order directing them to produce the said document, we can safely presume that the opposite parties had failed to disclose the factum of accident to the complainant.
Issue No.2
9. Next question pertains to the nature of accident suffered by the car. Per opposite parties the accident was only a minor accident. Subsequent to the OP filing versions, the complainant took out an expert commissioner whose report was marked as Ext.C1. Ext.C2 is the CD and photographs taken by the complainant.
10. The expert commissioner has reported in paragraph 4 of Ext.C1 report that “this vehicle had met with a major accident and undergone major body repair and other mechanical works at the workshop of Indus Co.Ltd. at Angamali”. Thereafter the commissioner has detailed the work carried out on the car in paragraph numbered 1,2 & 3 in page 2 of the commission report. In paragraphs 4 & 5 the expert commissioner reports that the works carried out has compromised the structural integrity of the car which would seriously affect the strength of the frame. The commissioner has also reported that the vehicle was in a good running condition.
11. Even though both parties had filed objections to the commission report they had not brought the commissioner to commission for his evidence. Hence the objections filed by the parties cannot be of assistance to this Commission. We therefore are constrained to rely on the contents in Ext.C1.
12. In view of the contents in Ext.C1 stated supra we hold that the accident that occurred to the car was a major one.
13. We are not taking recourse to the opinion of the expert commissioner regarding the valuation as we are of the opinion that the expert commissioner has failed to ascertain as to how he has arrived at the valuation of the car at the relevant period.
Issue No.3
14. The next grievance of the complainant is with regard to the alleged over-pricing of the car. In order to substantiate this contention, the complainant had marked Ext. A1 price list.
15. Apart from this price list there is no evidence forth-coming from the complainant to prove that the cars of a specific make is to be sold at a specific price only and that the 1st O.P. had transgressed this limit. Further it is upto the seller to fix the price of goods, without overstepping legal limits fixed. Without clear evidence of price fixing or over- pricing, this issue cannot be considered fruitfully or effectively. In the absence of any further evidence, this issue stands unproved.
Issue No.4
16. As already stated the opposite parties had failed to produce the terms and conditions entered into between the parties at the time of entering into a sale and that they had failed to file affidavit stating the cause of non-production of the said document. Hence adverse inference as against the O.P.s can be resorted to.
17. Further, this Commission is not blind to the fact that the brand ‘True Value Cars’ hold substantial sway and public attention and goodwill in Kerala. We are also not blind to the brand value of the 2nd opposite party. Hence, a layman who approaches the 2nd OP or its offshoots would naturally be under the impression that the cars that he can purchase would be defect free or at the most they would disclose the entire history so that he would be able to make a studied choice.
Even if we consider the fact the complainant is the lawyer, we cannot expect him to view everything with a legal mind or suspicion or caution and care. Even the best of astute lawyer will be a layman in some other field and cannot be expected to profess the same skill and diligence that he would bestow upon his case files and the facts therein. Complainant has also stated that the opposite parties had assured the complainant that the car was in good condition and had not suffered any damages. Deliberate non-production of the documents pertaining to the sale also solidifies the case of the complainant.
18. Consequently we hold that the opposite parties had deliberately withheld material information regarding the history of the car from the complainant. Even if law permits the seller to not disclose patent defects, the opposite party had a duty to reveal latent defects that occurred seven years prior to the sale. The complainant was denied his right to make a studied choice before purchasing the car in issue. Therefore there is deficiency in service and unfair trade practice on the part of opposite parties 1 & 2.
Issue Nos. 5 & 6
19. Resultantly, we hold that the complainant is entitled to the following reliefs:
1) The opposite parties 1 & 2 shall jointly and severally be liable to pay an amount of Rupees Two lakhs only (Rs. 2,00,000/-) to the complainant for unfair trade practice.
2) The opposite parties 1 & 2 shall jointly and severally be liable to pay an amount of Rupees One lakh only (Rs. 1,00,000/-) to the complainant as cost.
3) The opposite parties shall comply with the aforesaid directions within a period of 45 days from the date of receipt of a copy of this order, failing which the opposite parties shall pay a solatium of Rs.500/- per month or part thereof from the date of this order till date of payment of the entire amounts as stated above.
Pronounced in open court on this the 6th day of October, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant :
Ext.A1 – Original price list for June 2020
Ext.A2(series) – Copy of lawyers notice dated 3/8/2020 with postal receipt.
Ext.A3 – Original reply notice dated 13/8/2020
Ext.A4 - Original delivery receipt dated 27/1/18.
Exhibits marked on the side of the opposite party: Nil
Court Exhibit:
Ext.C1 – Commission report dated 20/10/21
Ext.C2 - Series of 8 documents and one CD and 3 photographs submitted alongwith Ext.C1
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – Sumesh Mepat (Complainant)
Witness examined on the side of the opposite party: Nil
Court Witness: Nil
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
