Per Justice Sham Sunder , President This appeal is directed against the order dated 2.8.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed OP Nos.2 & 3 to pay to the complainant the exchange bonus of Rs.15,000/- alongwith compensation of Rs.25,000/- and litigation costs of Rs.2500/-, within a period of thirty days from the date of receipt of a copy of the order, failing which, they were made liable to pay the same alongwith penal interest @ 12% p.a. since the date of filing the complaint i.e. 22.2.2010 till the amount was actually paid. However, the complaint against OP No.1, was dismissed. 2. The facts, in brief, are that being attracted by the advertisement of the OPs regarding exchange bonus of Rs.15,000/- on Hyundai Santro & Hyundai i10 cars, published in ‘The Tribune’ dated 24.10.2008, the complainant visited the showroom of OP-1 on 27.10.2008 and purchased a Hyundai i10 car and also handed over the keys of his old Daewoo Matiz car to Sh. Umesh Sharma, sales executive of the OPs, on the same day, who assured that he would get the exchange bonus of Rs.15,000/- within 6 months i.e. on or before 27.4.2009. Thereafter, the complainant made persistent enquiries, from the OPs, regarding the status of his exchange bonus. He also visited OP Nos 1 & 2. He sent emails and reminders to them for giving the exchange bonus, but to no avail. Ultimately, a legal notice dated 5.1.2010 was served upon the OPs, but still the exchange bonus was not given to the complainant. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter to be called as the Act only), was filed by him. 3. OP-1, in its reply, admitted that Hyundai i10 car was purchased by the complainant from it. It was, however, stated that the complainant was informed that for availing of the exchange offer and the discount, floated by OP Nos. 2 & 3, the requisite documents, were to be submitted to them (OPs 2 & 3) who were to credit the amount, in favour of the complainant after scrutiny of the same. It was further stated that the complainant sold his car to some outsider, and not to OP No.1, as it did not deal with the sale/purchase of the old cars. It was further stated that there was neither any deficiency, in service, on the part of OP No.1,nor it indulged into unfair trade practice. The remaining allegations, were denied, being wrong. 4. OP Nos.2 & 3, in their separate written reply, stated that the exchange claim was valid only if the same alongwith the necessary documents was received by them within 120 days , from the date of the sale of car, from the concerned selling dealer, and that if the old car was transferred 30 days prior, or 105 days after the purchase of the new Hyundai car. It was further stated that OP Nos.2 & 3 did not receive all the necessary documents from OP-1, for approval of exchange bonus. It was further stated that neither the registration certificate of the old Matiz car, in favour of the third person, nor proof of sale of the car, was produced, by the complainant, to support his claim, that the car had been sold by him. It was further stated that the complainant met the officials of the OPs, as a result whereof, the concerned dealer was asked, to send all the required documents for exchange claim, but they did not receive any such document. It was further stated that the OPs were neither deficient, in rendering service, nor they indulged into unfair trade practice. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum, accepted the complaint, and passed the order, in the manner, referred to, in the opening para of this order. 7. Feeling aggrieved, the instant appeal was filed, by the appellants/OP NOs.2 & 3. 8. We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 9. An application for condonation of delay of 23 days, in filing the appeal was also filed by the applicants/appellants. It was stated, in the application, that the delay of 23 days, in filing the appeal, occurred, as the order passed by the District Forum was sent for opinion, to the Advocate, who recommended the filing of the appeal. Thereafter, the case was sent to the Corporate office of the Company for obtaining the sanction, for filing the appeal. However, as the legal Manager had gone to Korea for the official work of the Company, in this view of the matter, the sanction for filing the appeal was delayed. It was further stated that the sanction was received on 22.8.2010, and, thereafter, without any delay, the appeal was prepared and the same was filed. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. 10. No reply to this application was filed, but the same was opposed by the respondents. 11. The grounds, set up, in the application, are duly supported by an affidavit of Sh.Manish Kumar, an authorized signatory, on behalf of the applicants/appellants. From the grounds, set up, in the application, it is evident that a cumbersome procedure was required to be followed, before the sanction, could be granted, for filing the appeal. It was not a one man show. In the first instance, the Advocate was to give his opinion, as to whether, it was a fit case, for filing an appeal. Thereafter, the documents were to be sent to the Head Office for examination by the Legal Manager, to find out, as to whether, it was a fit case for filing the appeal. It is evident from the application, that the Legal Manager had gone to Korea, in connection with some official work of the Company. Therefore, his legal opinion could not be sought in time, resulting into delay, in filing the appeal. It is settled principle of law, that every lis, should normally be decided, on merits, than by default. The Consumer Foras are also required to adopt a liberal approach, while deciding the application, for condonation of delay. It was established by the applicants/appellants, that the delay, in filing the appeal, of 23 days, was neither intentional, nor deliberate, but, on account of the reasons, referred to above. Sufficient cause for condonation of delay is, thus, constituted. The application is, thus, allowed and the delay of 23 days, in filing the appeal, is condoned. 12. Another application was filed, during the pendency of the appeal, by the respondent/complainant, for placing on record Annexure R-1. It was stated that the son of respondent No.1, received an e.mail, from respondent No.2, a dealer of the appellants, in which the claim of respondent No.1 had been admitted and the same had been cleared. It was further stated that the production of the e.mail was necessary to show the dubious conduct of the Company, as well as the dealer. It was further stated that the said e.mail is essential for the just decision of the case. 13. Notice of this application was given to the Counsel opposite, but no reply was filed. The application was, however, opposed by the Counsel for the appellants. 14. Annexure R-1,an e.mail, sought to be produced, is dated 10.5.2010, whereas, the complaint was decided on 2.8.2010. This document was very much, in the knowledge of the complainant, when the complaint was pending, in the District Forum. Since, the complaint was decided after about 3 months of the alleged receipt of this e.mail, there is nothing, on the record, to show, as to what prevented the complainant/respondent,from producing the same, at the relevant time. No reason, whatsoever, has been mentioned, in the application, as to what prevented the complainant/respondent from producing this document, by way of additional evidence, in the District Forum. Even the authenticity of this document, cannot be vouchsafed. Even otherwise, this document is not essential for the just decision of appeal. Under these circumstances, the application, being without merit, must fail, and the same stands dismissed. 15. The Counsel for the appellants, submitted that, since the requisite conditions required for availing of the exchange bonus, were not fulfilled, nor the requisite documents were supplied by the complainant, to the OPs, they could neither be said to be deficient, in rendering service, nor indulging into unfair trade practice. He further submitted that it was on account of these reasons, that the claim of exchange bonus of the complainant was rejected. No document was placed, on the record, as to when, the request of the complainant for exchange bonus, was rejected. It means that the request of the complainant for exchange bonus was never rejected. It was OP NO.1, the dealer, who sold the car, who was required to send all the documents, to the appellants/OPs, for the purpose of facilitating the availing of exchange bonus, by the complainant. C-4 is the e.mail, which was sent by OP NO.1/respondent No.2, to the appellants/OPs, whereby they were requested to clear the pending claims and credit the amount, to their vehicle account, at the earliest to avoid customer complaint. The details of all pending corporate, exchange, loyalty CSD claims, were attached with the e.mail. C-5 is the detail of the customers who had purchased new cars from OP NO.1 and the sale/transfer of the old cars, which were owned by them. It means that all the documents, which were required, for availing of the exchange bonus, were duly forwarded by OP NO.1, to the appellants/OP NOs.2 & 3. OP Nos. 2& 3 /appellants, did not write any letter, or send e.mail to OP No.1, as to which more documents were required by them, for the purpose of settling the exchange claim of the complainant. Had all the documents been not received from OP No.1, by OP Nos.2 & 3/appellants, for the purpose of settling the exchange claim of the complainant, they would have certainly, asked OP No.1, to send the same. The ground, set up by OP Nos.2 & 3, in their written reply, to the effect, that they did not receive all the relevant documents, for settling the exchange claim of the complainant was, therefore, false. The District Forum, was right in holding that such a false ground set up by OP Nos.2 & 3, in their written reply, was only to justify their malafide intention of not paying the exchange bonus to the complainant. The District Forum, was right, in holding that all the documents, complete in all respects, had already been sent to OP Nos.2 & 3, by OP NO.1, but they intentionally withheld the exchange bonus to the complainant. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same is rejected. 16. It was next submitted by the Counsel for the appellants, that the exchange bonus could only be paid, if the old car was transferred by the complainant, in favour of a third party, within 105 days of the purchase of the new vehicle. He further submitted that, since, in the instant case, the old car was not transferred within the stipulated period, aforesaid , he was not entitled to any such amount. It is to be seen, as to whether, there was any such condition which was incorporated by OP Nos.2 & 3, in any document at the time of extending the exchange bonus offer, to the customers, who purchased new Hyundai i10 car or not. C-1 is the advertisement, issued by the OPs, in the daily ‘The Tribune’, Chandigarh, Friday, October,24,2008. There is, no mention, in this document that the old vehicle was to be transferred by the owner, in favour of a third party, within the period of 105 days, after the purchase of new car, from their dealer. In C-1, the model of the cars, the offer, exchange discount in rupees or loyalty bonus in rupees, corporate discount, in rupees, and total savings upto certain limit had been mentioned. In case, there was any pre-condition for availing of exchange bonus, that the old car, was to be transferred, to a third party, within a period of 105 days, from the date of purchase of a new car, the same would have been certainly incorporated in the said advertisement. No other document, whatsoever, was placed, on the record, showing that any such condition was incorporated therein, for making the owner of the car, to avail of the exchange bonus. Such a false plea was introduced by the OPs, in their written reply, later on. The complainant in para 3 of the complaint , however, stated that, on the same day, he handed over the keys of his old Daewoo Matiz car alongwith other documents, such as RC insurance etc. to Mr. Umesh Sharma (an employee of OP No.1), after completing all the formalities regarding the exchange of the old car with the new car. When OP No.1, the dealer of OP Nos. 2 & 3, took possession of the old car, and, in lieu thereof, it handed over to the complainant a new car, no other formality remained to be fulfilled by the complainant or by OP-1. C-3 is the delivery letter dated 27.10.2008, which duly corroborated the version of the complainant. However, subsequently, on 22.12.2008, the car was sold by OP-1 to Mr. Ashwani Kumar. Annexure R-1/1 is a copy of the of the RC of Daewoo Matiz car, which was previously owned by Vinod Kumar, complainant and was transferred in the name of Ashwani Kumar. According to the Counsel for OP No.1, a copy of the RC, showing the transfer had already been sent to OP Nos. 2 & 3, but even thereafter, the exchange bonus was not released in favour of the complainant. Since the condition of sale of old car within 105 days, had not been incorporated in C-1, or any of the documents, placed by the OPs, before the District Forum, the same could not be introduced later on, just to deny the justifiable claim of the complainant. Under these circumstances, such a condition, which was not made known to the complainant, nor brought to his notice, through any letter or advertisement, his claim for exchange bonus, could not be arbitrarily rejected. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same is rejected. 17. It was next submitted by the Counsel for the appellants, that, no doubt, no such document was placed, on record, when the complaint was pending before the District Forum, yet, specific pleas, in this regard, were taken in the written statement, but no replication/rejoinder, having been filed by the respondent/complainant, the pleas taken up by OP Nos.2 & 3 in their reply, could be deemed to have been accepted as correct. This submission of the Counsel for the appellants, does not appear to be correct. The complaint was filed by the complainant. The OPs were given an opportunity to file written replies. They filed written replies. Thereafter, the parties joined issues. It was, on account of this reason, that the parties were called upon, to lead their evidence, by way of affidavits and production of documents. The parties availed of the opportunity and produced their evidence, by way of affidavits, as also got proved certain documents, before the District Forum. In these circumstances, the dispute was required to be decided, by the District Forum, on the basis of pleadings, as also the evidence. The mere fact, that no rejoinder or replication to the written reply of the OPs, was filed by the complainant, did not mean that, whatever, was stated by these OPs, in their written reply, stood admitted, by the complainant. In this view of the matter, the submission of the Counsel for the appellants, in this regard, being without merit, is dismissed. 18. In para-6 of its order, the District Forum, in clear- cut terms, held that the claim of as many as 18 customers vide Annexure C-4, was sent to OP Nos.2 & 3. It was also rightly held by the District Forum, in this para, that the claim of 18 customers related to only one dealer i.e. OP No.1 and there must be hundreds of dealers, in every State, and, as such, the OPs must be sitting over their claims, with regard to grant of exchange bonus. It was also rightly held by the District Forum, that the exchange bonus, was not paid to Vishnu Prasad, who had purchased car on 29.3.2009, as was evident from the Tribune dated 7.6.2010 Annexure C-16. Not only this, OP Nos.2&3, had been sitting over the claim, in question, but they were also causing harassment to the complainant by depriving him and many others of the amount of exchange bonus, which was due to them. The District Forum was, thus, right in holding that by giving false advertisement, OP Nos.2 & 3, were attracting customers, though, they had no intention of paying the exchange bonus, and, as such, they indulged into unfair trade practice by deceiving some innocent customers. 19. In the grounds of appeal, in para (l), the Counsel for the appellants placed reliance on M/s Hero Honda Ltd. Vs K.B.Murleedharan & Anr, 1986-94(NS) 955, Indian Airlines Corporation Vs Patel Ramubhai Shanker Lal & Anr, 1986-94 (NS) 437 and Vijay Traders Vs Bajaj Auto Ltd. ,1995(6)SCC 566, in support of the fact, that the liability of the appellants, being manufacturers of Hyundai cars, was limited and extended to its warranty obligations alone and error/omission/misrepresentations, if any, at the time of retail sales or services of the car, on the part of the dealer, and, as such, the liability of respondent No.2, could not be fastened, upon the appellants. However, at the time of arguments, no such plea was urged, by the Counsel for the appellants. Even otherwise, the exchange bonus was to be given by the appellants/OPs and not by OP NO.1/respondent No.2, which was the dealer and which sold the car, in favour of the complainant/respondent NO.1. Under these circumstances, only the appellants, who did not pay the exchange bonus, to the complainant, were liable and not the dealer respondent No.2, in any manner. No help, therefore, can be drawn, from the principle of law, laid down, in the aforesaid cases, mentioned by the Counsel for the appellants in para(l) of the grounds of appeal. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same is rejected. 20. No other point, was urged, by the Counsel for the parties. 21. The impugned order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 22. For the reasons, recorded above, the appeal, being without merit, must fail, and the same is dismissed with costs, quantified at Rs.3000/-. 23. Certified Copies of this order be sent to the parties, free of charge. 24. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
