State Consumer Disputes Redressal Commission
Mrs.Elaine Ester Roach vs M/S Mercedes Benz India Pvt Ltd., And ... on 3 July, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD C.C.NO.35 OF 2012 Between: Mrs Elaine Ester Roach D/o William Oscar aged 45 years, Occ: Business R/o H.No.5-67/7, Suryanagar colony, Alwal Secunderabad-010, rep. by her Special Power of Attorney Mr.P.Bharat S/o P.Krishna Murthy aged 35 years, Occ: Business, R/o H.No.1-11-222/2 Gurumurthy Lane, Begumpet, Hyderabad Complainant A N D 1. M/s Mercedes Benz India Pvt Ltd., rep. by Managing Director Mr.Peter Theodor Honegg, E-3, MIDC, Chakan, Phase-III, Chakan Industrial Area, Kuruli & Nighoje, Tal: Khed. Pune-501 2. Mr.Peter Theodor Honegg Managing Director of M/s Mercedez Benz India Pvt Ltd., E-3, MIDC, Chakan, Phase-III, Chakan Industrial Area, Kuruli & Nighoje, Tal: Khed. Pune-501 3. M/s Adishwar Auto Diagnostics Pvt Ltd., Mahavir Motors, rep. by Managing Director Mr.Diniyar Marshal MB Towers, Plot No.47 & 48 Madhapur, Hyderabad, AP-081 4. Mr.Diniyar Marshal Managing Director of M/s Adishwar Auto Diagnostics Pvt Ltd., MB Towers, Plot No. 47 & 48 Madhapur, Hyderabad, AP-081 Opposite parties Counsel for the complainant M/s Sujit Sasidharrn Counsel for the opposite parties M/s A.P.Venugopal QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE THIRD DAY OF JULY TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The complaint is filed claiming replacement of old car with new car together with compensation of Rs.10 lakh and costs of the complaint.
2. The averments of the complaint are that the complainant on 27.4.2011 purchased Mercedes Benz C250 Cdi car with Chassis No.WDD2040032 and Engine No.551911304662773. The executives of the opposite parties had informed the complainant that the year of manufacture of the vehicle would be 2011 and they do not have any vehicle of the year 2010. The complainant after receiving the documents, applied for registration with RTA, Secunderabad. The complainant after receipt of Form-32 (Registration Certificate) found that the model of the vehicle was 2010 make. The opposite party no.3 by paying fraud sold an old model car by representing that the car was of 2011 model. The complainant addressed several mails to the opposite parties seeking for replacement of the old vehicle with new vehicle and the opposite parties did not respond properly. The opposite parties misrepresented that new car will not have any face-lift as the same would be launched in the month of December 2012. The face-lift model was launched in the month of September 2011. The complainant would have waited in case the opposite parties disclosed true facts about the launch of new face lift model of Mercedes Benz Car. The face lift model car has features distinct from the features of the 2010 model car. The opposite parties deliberately misrepresented the complainant to sell the old model car. The complainant got issued notice dated 15.10.2011 calling upon the opposite parties to replace the vehicle with a new car of 2011 make and for payment compensation of Rs.1,00,000/- for the mental agony she suffered. The opposite parties did not respondent to the notice.
3. The opposite party no.1 filed written statement contending that the company is a distinct legal entity there was no need to implead its MD separately and consequently the name of opposite party no.2 be deleted or in alternative the written statement be considered as the written statement on behalf of the opposite party no.2 as well.
The opposite party no.3 is an authorized dealer in Hyderabad and the opposite party no.4 is its Managing Director. The authorised dealer, opposite party no.3 is interalia responsible for sale and service of vehicles. The opposite parties are independent business entitles and relationship between the opposite parties is on principal to principal basis. The cars manufactured by the opposite party no.1 in India are world class cars with a reputation for safety, comfort, quality and engineering precision. The cars manufactured the opposite party no.1 were introduced to the Indian market after obtaining approval/certificates of the Automotive Research Association of India.
4. The car sold to the complainant was manufactured in the year 2010. The authorized dealers stock the vehicle to facilitate immediate availability of vehicle to customers. Automobiles are not perishable commodities and manufacture of a vehicle a few months earlier does not affect the vehicle in any manner. The representation made by the opposite party no.3 is a matter between the authorized dealer and the customer and manufacturer has nothing to do with the representation. The opposite party no.3 informed the opposite party no.1 that no such assurance relating to date of manufacture was given.
5. A customer is always aware of the date of manufacture at the time of purchase, because Form 20 and 21 also specifically mentions the month and year of manufacture and the form duly signed by customer/vehicle owner is required to be presented by owner/purchaser at the time of registration. Insurance cover obtained by a vehicle owner contains the month and year of manufacture of the vehicle. The opposite party no.1 had given reply to the notice dated 15.10.2011 of the complainant.
6. There was on facelift and not a change in model of the car. A facelift is continuous process and it takes place consequent to the result of Research and Development activities of the manufacturers and also to meet the marked demands.
7. The GPA of the complainant filed his affidavit and the documents Exs.A1 to A15. On behalf of the opposite parties, the General Manager Legal-Affairs of the opposite party no.1 company, Raghunandan B.Pendse and Diniyar Marshal, the Managing Director of the opposite party no.3 company have filed their affidavits and the documents Exs.B1 to B8.
8. The points for consideration are:
1.
Whether the opposite parties have played unfair trade practice on the complainant?
2. To what relief?
9. POINT NO.1: The complainant purchased 2010 model Mercedes Benz Car 27.4.2011. The power of attorney holder of the complainant has stated that the executives of the opposite parties informed the complainant that year of manufacture of the vehicle is 2011 and they do not have any vehicle of the year 2010 and that on receiving the documents from the opposite parties they applied for registration of the vehicle with the Road Transport Authority Secunderabad and thereafter they received Form 23 (registration Certificate) and by going through the contents of the registration certificate she came to know that the vehicle supplied to them was 2010 make. They had sent several mails to the opposite parties for replacement of the vehicle with vehicle of 2011 make for which there was no response from the opposite parties.
10. The learned counsel for the opposite party no.1 has contended that the cars manufactured by the opposite party no.1 in India are world class cars with a reputation for safety, comfort, quality and engineering precision and there has been no allegation of manufacturing defect in the vehicle as also that the complaint is not maintainable as the power of attorney holder of the complainant filed the complaint which was not signed by the complainant.
11. Admittedly, the complainant has not made any claim that the vehicle supplied to her suffers from manufacturing defect. It is the contention of the complainant that the opposite party no.3 had supplied her 2010 make car showing it as of 2011 make. The Managing Director of the opposite party no.3 company had denied the plea of the complainant and stated that they had not informed the complainant at any time that they would supply 2011 model car.
12. He has stated that the complainant on her own accord selected the car and purchased it and that the complainant is a literate lady who had gone through the documents issued by the opposite party no.3 prior to purchase and also on delivery of the car.
He has stated the complainant was aware of the date of manufacture at the time of purchase as she was given form no.20 and 21. Form 21 is the sale certificate issued by the authorized dealer, which specifically mentions the month and year of manufacture. Form 20 is the application of owner of the vehicle for registration of his/her vehicle, which specifically mentions the month and year of manufacture and this form was duly signed by the complainant, as the customer is required to be present with both the documents i.e., Form 20 and 21 at the time of registration.
Further the insurance cover given to the vehicle owner at the time of delivery of the vehicle contains the year of the manufacture.
13. Section 2(1)(f) of the C.P. Act defines unfair trade practice as
(q) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;
(1) the practice of making any statement, whether orally or in writing or by visible representation which,
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
(viii)makes to the public a representation in a form that purports to be
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation. - For the purposes of clause (1), a statement that is
(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;
(2)permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.
Explanation .For the purpose of clause (2), "bargaining price"
means
(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
(3) permits
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme.
Explanation.
For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time, published, prominently in the same newspapers in which the scheme was originally advertised;
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.
(6) manufacture of spurious goods or offering such goods for sale or adopts deceptive practices in the provision of services.
(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.
14. The statement of the Managing Director of the third opposite party company is supported by documents, Form 20 and 21. Form 20 and 21 which contains the details as to the month and year of manufacture as 12/2010 besides the other details of the vehicle such as its class, makers name, chassis number and engine number etc. The complainant has applied for issue of temporary certificate of registration with the RTA Secunderabad. Thus, it is difficult to believe the version of the complainant that the opposite party no.3 had sold her 2010 model Mercedes Benz car informing her that it to be of 2011 model.
15. The learned counsel for the complainant had contended that the complainant has contended that the opposite parties admitting their guilt had offered the complainant a sum of `7 lakh and evaded to replace the car with 2011 model new car and further, he contended that the opposite parties informed the complainant that there will not be any face lift of Mercedes Benz car in the year 2011 and basing on the assurance of the opposite parties the complainant opted to purchase Mercedes Benz car preferring it it over Audi.
16. The email dated 10.8.2011 is addressed to one Natraj and it contains information about arrangement for the power of attorney holder of the complainant and his spouses travel to Monza race was in process and their stay would be at Caltarsort Grand Hotel Duca di Mantova and the estimate cost of the tip including traveling, stay and Monza race is `7,59,620/-. The power of attorney holder of the complainant was required to pay 30% of the amount of `7,59,620/- i.e., `2,27,886/-
to avail the offer. The offer by itself does not disclose that the opposite parties had misrepresented to the complainant 2010 model car as 2011 model car.
17. The contention of the learned counsel for the opposite parties that the relevant documents along with the vehicle were supplied to the complainant and at the time she has knowledge of the month and year of manufacture of the vehicle attains much significance in the backdrop of the statement of the Managing Director of the opposite party no.3 company that the complainant on her own accord selected the car after verifying the documents and purchased the car. This statement is not rebutted. As also the contention fo the counsel for the opposite parties that the power of attorney holder of the complainant cannot speak of facts within the personal knowledge of the complainant holds much water as it is evident that the complaint is not signed by the complainant and the complainant has not filed her affidavit in support of her plea that the opposite parties played unfair trade practice upon her.
18. The complainant has got issued notice to the opposite parties no.1 and 3 on 15.10.2011 that she purchased Mercedes Benz C250 Cdi through invoice dated 27.4.2011 and the Executives of the opposite parties informed her that the year of manufacture of the car would be 2011 and that they do not have any vehicle of 2010 model. In her notice the complainant refers to cheating and unfair trade practice stated to have been played by the opposite parties or her as under:
after its purchase she has applied for registration with the Road Transport Authority, Secunderabad for registration of the said vehicle. My client thereafter received the Form 23 (Registration Certificate) after 2 weeks and she was shocked and dismayed to see that in the said Registration Certificate the model fo the vehicle was shown as 2010 make. My client felt cheated as she has approached you in the month of April to purchase a 2011 model/make but unfortunately, no.2 of you had with a dishonest intention of playing fraud, to deceive her you sold a old make/model, even though you had promised to deliver a 2011 make vehicle.
My client did not know this fact at the time of sale of the vehicle and it was only when she received the papers covering the vehicle, she came to know the actual month and year of manufacture.
19. The entire gamut of the complainants case revolves around assurance purportedly made by the executives of the opposite parties that 2011 model car was sold to her and instead she was supplied with 2010 model car. As rightly pointed out by the learned counsel for the opposite party no.1, the complainant has not filed her affidavit nor did she sign the complaint. It may be true that the complainant had received the registration certificate within one week or two weeks from the date of purchase of the car. It is pertinent to note that for making application for registration of the vehicle, the month and year of manufacture of the vehicle is necessarily has be furnished to the registering authority. The complainant has been furnished with form 20 and 21 at the time the vehicle was handed over to her which specifically disclose month and year of manufacture of the vehicle. Thus, it cannot be said that the complainant has no knowledge of month and year of manufacture of the vehicle till she obtained the registration certificate.
20. The learned counsel for the opposite party no.1 has relied upon the decision of the Honble Madras High Court in R.Sundar Vs R.Viswanadhan in CRP 6 of 2009 decided on 19.1.2009 wherein the High Court relied on the ratio laid in Janaki Vashdea Bhojwani v. Indusind Bank Limited of the Honble Supreme Court.
In the aforementioned decision the Honble Supreme Court held:
Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct". In civil dispute the conduct of the parties is material. The appellants have not approached the Court with clean hands. From the conduct of the parties it is apparent that it was a ploy to salvage the property from sale in the execution of Decree. On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
21. The learned counsel for the opposite party no.1 company has also relied upon the decision of the Honble National Commission in Mercedes Benz India Pvt. Ltd., and another Vs Intercard (India) Ltd., in F.A.No.100 of 2009 decided on 9.5.2013. In that case the Honble National Commission set aside the order of the State Commission that the opposite party no.1 herein misrepresented to the complainant that it was going to launch a new model. The National Commission held that the relationship between manufacturer and dealer is on principal to principal basis and the complainant failed to prove that there was any misrepresentation on the part of the authorized dealer as a result of which he had said to have suffered huge financial loss.
22. We find acceptable force in the contention of the learned counsel for the opposite party no.1 that the authorized dealers stock the vehicles to facilitate immediate availability of vehicle to customers and automobiles are not perishable commodities and manufacture of a vehicle a few months earlier does not affect the vehicle in any manner. His contentions that giving face lift to the existing model or in other words launching a new model depends upon several factors some of which are even beyond the control of the opposite party no.1 company and as such one cannot tell with certainty as to the likelihood of launching new model and month and year of the face lift of the vehicle is noteworthy as it is an undisputable fact that in the age of high competition, launching a new model involves risk and depends upon high end technology and fluctuating market position and several other factors.
23. For the foregoing reasons and in view of the ratio laid in the aforementioned decisions, as also in the absence of any evidence to show that the opposite party no.3 assured the complainant that they had supplied 2010 model car by informing the complainant that it is of 2011 model car and they do not have any 2010 model car left unsold, we do not find any deficiency in service on the part of the opposite parties nor can it be said that the opposite parties played unfair trade practice upon the complainant. The complaint is devoid of any merits and is liable to be dismissed.
24. In the result, the complaint is dismissed.
There shall be no separate order as to costs.
MEMBER MEMBER Dt.03.07.2013 కె.ఎం.కె* APPENDIX OF EVIDENCE WITNESSES EXAMINED For Complainant For opposite parties NIL NIL EXHIBITS MARKED For complainant Ex.A1 Copy of tax invoice Ex.A2 Copy of Form No.22 Ex.A3 Copy of Sale Certificate Ex.A4 Copy of Certificate of Registration Ex.A5 Copies of emails exchanged between complainant and Ops Ex.A6 Copy of email addressed to Ops Ex.A7 Office copy of legal notice Ex.A8 Returned postal cover Ex.A9 Office copy of postal complaint along with postal receipts Ex.A10 CC of certificate of incorporation of OP2 Ex.A11 Copy of list of signatories of OP2 Ex.A12 Copy of list of signatories of OP1 Ex.A13 Original special power of attorney Ex.A14 Email addressed by opposite party no.3 Ex.A15 Photographs For the opposite parties Ex.B1 Copy of dealer agreement Ex.B2 Copy of Form no.21 Ex.B3 Copy of Insurance Cover Not Ex.B4 Copy of delivery acknowledgement by OP3 Ex.B5 Copy of Tax Invoice Ex.B6 Copy of Tax Receipt Ex.B7 Copy of Form 22 Ex.B8 Copy of screen printout from the service Of Road Transport Authority MEMBER MEMBER