FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
The brief facts of the case are that the complainant purchased a Hyundai Eon Magna (+) car bearing registration No. WB 08D 0087 at a price of Rs.4,68,112/- on exchange his old Indigo CS (Diesel Car) after adjustment of Rs.1,55,946/- from OP-1. Complainant issued two A/C payee cheques of Rs.1,12,166/- and Rs.2,00,000/- respecitively in favour of J.J. Automobiles Limited. The subject car was delivered on 12.04.2017 though the metallic number plate was given by the M.V. department on 27.04.2017. As a result, the car was not used before obtaining metallic number plate. On scrutiny of the documents relating to the car, it was noticed that the ex factory price of the car was noted as Rs.4,17,500/- in the Booking Form dated 17.03.2017, the price of the Hyundai Eon Magna + 3G model has been mentioned as Rs.3,64,334/- in the Retail Invoice on adding VAT of Rs.45,787/- and the final retail invoice of the car has been recorded as Rs.3,61,560/-. The OPs have realized an excess amount of Rs.55,946/- from the complainant but no adjustment has been given for excess amount realization. This attitude of the OPs is tantamount to unfair trade practice.
Further case of the complainant is that the mandatory retail invoice was blank and unsigned by the representative of the dealer/company. That on 05.05.2017 the complainant took the car to the authorised workshop of Hyundai Company and had paid an amount of Rs.2,570/- for repair of the dent though such defect was noticed to the OPs at the time of delivery of the car. No warranty paper and / or documents were given to the complainant. Finding no other alternative, complainant sent a letter dated 12.05.2017 to the OPs 2 & 3 with a prayer to refund excess payment of Rs.55,946/- and reimbursement of Rs.2,570/-. On 20.05.2017 Customer Care Manager of OP-1 sent a email detailing an adjustment of Rs.4,12,166/-. The adjustment given by OP-1 is for higher price model Hyundai Eon Sportz Car instead of the purchased car. Complainant sent letter dated 30.05.2017 to the OPs 2 & 3 seeking their intervention and redressal of his grievances but such letter was unattended. Ultimately, the complainant sent a final notice dated 30.07.2017 to the OPs 2 & 3 but the OPs have willfully neglected to pay any heed the said letter dated 30.07.2017. Hence, the complainant has approached this Forum by way of consumer complaint seeking reliefs as per prayer.
The OP-1 has contested the case by filing W.V. contending inter alia that the consumer complaint is not maintainable either in law or in facts. The complainant has no cause of action to bring the case. The specific case of the answering OP is that the complainant approached to purchase a “Eon Magna + car ” and the ex-showroom price of the said car was Rs. 4,17,506/- excluding registration and insurance charges. Complainant wanted to exchange his old car and exchange value of the used car was Rs. 1,00,000/-. Answering OP further discount Rs. 55,946/- on different counts. Thus, the ex-showroom price of the car was reduced to Rs. 3,61,560/- . In addition to Rs. 3,61,560/-, the complainant was liable to pay a sum of Rs. 50,000/- on account of insurance and registration. Thus, the complainant was liable to pay Rs. 3,12,166/-. Complainant paid the aforesaid amount to the answering OP and car was delivered to the complainant. In fact, the complainant did not raise any dispute during delivery of car but subsequently raised various disputes. In course of discussion between the parties, it was found that the complainant is entitled to refund of Rs. 4,954/- and such amount was refunded to the complainant vide cheque No. 386693 as full and final refund. Complainant encashed the cheque. As such, the complainant is stopple estopped to file the instant complaint. There was no deficiency in service on the part of the answering OP. Registration fees and insurance premium were not included in the Retail Invoice. Accordingly, the OP-1 has prayed for dismissal of the consumer complaint.
The OPs 2 & 3 have jointly contested the case by filing W.V. contending inter alia that the consumer complaint is not maintainable in law. The car met with an accident and repaired at the mileage of 1270 Kms on 19.05.2017. The accidental repairs and damage due to negligence of owner cannot be said to be a manufacturing defect in the car. The answering OPs being the manufacturer of Hyundai Cars is limited to the extent of its warranty. The relationship between OPs 2 & 3 and OP-1 shall be on principal to principal basis. Therefore, nothing in this agreement shall be construed as authorizing the Dealer to act or otherwise represent itself as agent of HMIL. Thus, any agreement entered between the complainant and OP-1 cannot make the answering OPs liable in any manner. The answering OPs have no role in the instant case. The instant consumer complaint is frivolous and abuse of process. Thus, the complaint is liable to be dismissed with cost.
In the light of the above pleadings of the parties the following points necessarily came up for determination:-
- Whether there was any difference of price of the subject Hyundai EON Magna car + in the Booking Form and the Retail Invoice?
- Whether the OPs indulged in unfair trade practice?
- Whether the complainant is entitled to get relief as prayed for?
Decision with Reasons
Point Nos. 1 to 3:-
All the points are taken up together for sake of convenience and brevity in discussion.
Both parties have tendered evidence through affidavit. They have also filed BNAs. We have travelled the pleadings of the parties coupled with evidence as well as documents on record and also given a thoughtful consideration to the argument advanced before us.
Fact remains that the complainant purchased a Hyundai EON Magna + car bearing registration No. WB 08D-0087 from the OP-1 on exchange his old car, ex showroom price of the car was Rs. 4,17,506/- excluding Insurance, Registration, Road Tax and number plate, exchange value of the used car was Rs. 1,00,000/- and OP-1 also offered discount of Rs. 55,946/- on different counts. Car was delivered to the complainant and the OPs have realized an excess amount of Rs. 55.946/- from the complainant. The OPs 2 & 3 are the Sales Head (East R.O.I) and Head HMI Sales & Marketing Officers of Hyundai Motor India Ltd.
The grievance of the complainant is that as per Booking Form the ex-factory price of Hyundai EON Magna + Car was Rs. 4,17,500/- but in the Retail invoice the price of the car has been mentioned as Rs. 3,64,334/-. Thus, the OPs have realized an excess amount of Rs. 55,946/-. Therefore, the attitude of the OPs was tantamount to unfair trade practice.
On the contrary, the defence of the OP-1 is that there was over payment of Rs. 4,954/-, such amount was refunded to the complainant and the complainant unconditionally accepted the cheque without any protest. Insurance Premium and Registration Charges were not included in the invoice. There was a minor typographical error in the email dated 20.05.2017 and the car of the complainant has been wrongly mentioned as Hyundai EON Sportz instead of Hyundai EON Magna +. There was no unfair trade practice on the part of the OP-1.
On perusal of the order Booking Form (Annexure-A), we find that the price of Hyundai EON Megna + car was Rs. 4,68,112/- and on discount of several heads as well as exchange value of old car the total price of the car comes to Rs. 3,12,166/-. Annexure-B is the photocopy of Retail Invoice dated 27.03.2017. It goes to show that the price of Hyundai EON Magna (+) 3G is Rs. 3,61,560/- including VAT/Sale Tax. Thus, it is crystal clear that there is difference of ex-showroom price of the car in the annexure-A & B and the complainant paid excess amount of Rs. 55,946/- to the OP-1 refunded Rs. 4,954/- to the complainant being the excess amount and the complainant encashed the cheque amount. The OP-1 remained silent regarding the discrepancy of price of the car mentioned in the Booking Form and Retail Invoice in spite of several reminders. Therefore, we are of the considered opinion that there was unfair trade practice on the part of the OP-1 regarding ex-showroom price of the car. Thus, the complainant is entitled to refund (Rs. 55,946/- -Rs. 4,954/-) = Rs. 50,992/- from the OP-1. Complainant is not entitled to Rs. 2,570/- as repairing cost of “Dent” as damage/caused after delivery of car and any damage of car due to accident is not covered under any warranty and the complainant has to bear the cost of such damage and separate warranty paper as Hyundai Motor India Ltd. do not provide any separate paper for warranty of tyre & battery. Thus, the consumer complaint is liable to be allowed in part against the OP-1.
The OPs 2 & 3 operate with all its dealers on a principal to principal basis and there is no privity of contract between the complainant and the OPs 2 & 3. The liability of the OPs 2 & 3 being the manufacturer of the Hyundai cars, is limited and extends only to the warranty obligations. Any error, omission, misrepresentation, if any during retail sale of the cars on the part of the dealer concerning any aspect in respect of the car cannot be fastened and/ or made attributable to HMIL, in any manner whatsoever. The issue of excess payment, tyres, new battery are under the domain of OP-1.
The Hon’ble NCDRC sin the case of Hero Honda Motors Ltd. Vs. K.B. Murleedharan & Ors reported in 1994 (2) CPC 80 held as follows:-
“According to the agreement arrived at between the manufacturer and the Dealer, copy of which has been filed on record, it is clear that transactions between the Manufacturer and the Dealer were as principal to principal. Thus, the Dealer did not accept the amount from the customers as agent of the Manufacturer. He used to accept the amount on his own behalf and then to place the order with the Manufacturer for the supply of the motor cycle against payment. In the present case, it is not the case that the amount deposited by the complainant with Dealer had bee passed on by the latter to the Manufacturer. As noticed above, the Dealer was not acting as agent of the Manufacturer”.
Based on the above discussion, there was no unfair trade practice on the part of the OPs 2 & 3 and the complainant is not entitled to get any relief against the OPs 2 & 3. Thus, the consumer case is liable to be dismissed against the OPs 2 & 3. All the points under determination are disposed of.
In result, the case succeeds in part .
Hence,
Ordered
That the complaint case be and the same is allowed on contest in part against the OP-1 with litigation cost of Rs. 5,000/- (Rupees five thousand) only and also dismissed on contest against the OPs 2 & 3 without any cost.
OP-1 is directed to refund Rs. 50,992/- (Rupees fifty thousand nine hundred ninety two) only being the excess showroom price of the Hyundai Eon Magna (+) car bearing registration No. WB-089-0087 to the complainant within 30 days from the date of this order along with litigation cost.
OP-1 is further directed to pay Rs. 5,000/- (Rupees five thousand) only to the complainant for harassment, mental pain and agony within the stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP-1 transgresses to comply the order.
