State Consumer Disputes Redressal Commission
The Managing ... vs Consumer Protection Council, ... on 27 September, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.329/2007 (Against order in F.A.NO.207/2006 on the file of the DCDRF, Trichy) DATED THIS THE 27th DAY OF SEPTEMBER 2010 The Managing Director PL.A. Motors Ltd., Promenade Road Tiruchirapalli- 620 001 Appellant/ 1st opposite party Vs. 1.
Consumer Protection Council, Tamilnadu 2 RMS Bldg, Thillainagar Main Road Tiruchirapalli- 620 018 on behalf of A. Rajasekar 15, AVM Jothi Nagar, Kattur Tiruchirapalli 620 019
2. A. Rajasekar 15, AVM Jothi Nagar, Kattur Tiruchirapalli- 620 019 Respondents/ Complainants
3. Regional Manager (South) Maruti Udyog Ltd., 7th Floor, Capital Towers 180, Kodambakkam High Road Nungambakkam, Chennai 600 034
4. The Chairman Maruti Udyog Ltd., 11th Floor, Jeevan Prakash 25 Kasturiba Gandhi Marg 2nd and 3rd Respondents given up New Delhi 110 001 Respondents/ 2nd & 3rd Opposite parties The 1st and 2nd Respondents as complainants filed a complaint before the District Forum against the appellant /1st opposite party, and 3rd and 4th respondents/ 2nd and 3rd opposite parties, praying for the direction to the opposite parties to supply a new car alongwith compensation of Rs.3,00,000/- with cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.25.6.2007 in COP No.207/2004.
This petition coming before us for hearing finally on 7.9.2010. Upon hearing the arguments of the counsel for the appellant, and the 1st respondent in person, this commission made the following order:
Counsel for the Appellant/1st opposite parties: M/s. Veera Raghavan, Advocate 1st Respondent/ 1st Complainant: In person M . THANIKACHALAM J, PRESIDENT
1. The appeal is against the order of the District Forum, Trichy, in CC.No.207/2006, wherein a direction has been isued against the 1st opposite party, to suply a new car, taking the old car, or pay a sum of Rs.3,58,000/-, with compensation of Rs.20000/-, for unfair trade practice, as well for another sum of Rs.10000/-,for deficiency, with cost, dt.25.6.2007.
2. The 1st opposite party/ appellant, is the dealer of Maruthi Cars, manufacturer and marked by opposite parties 1 and 2, from whom the 2nd complainant, had purchased a new Maruthi Zen model, and took delivery on 30.4.2006, previously paying the entire amount. The 2nd complainant came to know, only on the next day, reading the pre-delivery coupon, with service manual, that the car was manufactured in July 2005, though he had booked the car, belonged to April 2006 model.
The 1st opposite party, instead of supplying a car manufactured in 2006, by practicing unfair trade practice, supplied a car of the year 2005, thereby he had cheated the 2nd complainant, for which though represented claiming new car, assurance given, not complied with, even after number letters, and legal notice.
Hence there should be a direction to supply a new car, failing which, full refund of the amount alongwith compensation, should be ordered, is the case of the complainant/respondent, in the appeal.
3. The 1st opposite party admitting the booking of the car, by the 2nd complainant, by paying advance, and took delivery of the car, after registration on 27.4.2006, on which date itself, the car was delivered, opposed the claim of the complainants, that there was no intention on the part of the 1st opposite party, to cheat the customer, that neither the complainant demanded a car, manufactured in the year 2006, nor the opposite party had assured, the 2nd complainant for a new car, which was supplied, though manufactured in 2005, which cannot be treated as deficiency in service, thereby praying for the dismissal of the car, denying further allegations also.
4. The District Forum, by its order dt.26.6.2007, has recorded a finding, that the 1st opposite party, having undertaken to supply a car of the year 2006, not only failed to supply, the car of the year 2006, whereas supplied but also failed to supply the car manufactured in 2005, which should be construed as unfair trade practice. In this view, a direction has been issued, as said above, which are under challenge in this appeal.
5. Heard the learned counsel for the appellant, and the 1st Respondent in person, perused the documents, lower court records, and the order passed by the District Forum. 2nd complainant absent.
6. The learned counsel for appellant, urged before us, that there is no plea of deficiency in service, or negligence on the part of the opposite parties, or clear unfair trade practice also, and this being the position, the District Forum, without considering these facts, despite the opposite party had supplied a new car, unnecessarily issued a direction for the issue of new car, alongwith compensation, which require to be set aside, which are opposed.
7. It is the common case of the parties, as pleaded in the complaint, alsoand as admitted by the 1st opposite party also, that the 2nd respondent/ complainant, booked a Maruthi Zen model car, on 20.4.2006, by paying a sum of Rs.10000/-, as advance that he had made the further payment of Rs.3 lakhs on 25.4.2006, in addition a sum of Rs.46,723/- by cash, representing the entire sale consideration. It is also an admitted, and proved fact, that a new Maruthi Zen car was supplied to the 2nd complainant, registered on 27.4.2006, delivered on the same day. For the said car, insurance coverage was taken, RC book also obtained. Thus, without any murmur or any protection objection, the 2nd complainant took the vehicle, and thereafter alone he blamed the opposite parties, for the reason best known to him, that the supply of the car, manufactured in 2005, should be construed as cheating the consumer, since he had expected a car, manufactured in April 2006, would be delivered. Thus when he demanded a car, manufactured in April 2006, not complied by the dealer, resulting this complaint, wherein we find a casual reference, as what the opposite party has done is deficiency of service, under Sec.2(g) of the Consumer protection, and is also an unfair trade practice under Sec.2 (r) of the same Act. Except these plea, we find no other terms and conditions, based upon any contract between the parties, so as to test, whether the terms and conditions of the contract, were violated, leading to deficiency in service, or unfair trade practice.
8. In this context, the learned counsel for the appellant, invited our attention to the following decision viz.
1. (1998) 3 SCC 247- Marine Container Service South Pvt Ltd., Vs. Go Go Garments
2. (2008)4 SCC 504; Godfrey Philips India Ltd., vs. Ajay kumar
3. II (2008) CPJ 16 (SC)- National insurance Co. Ltd., Vs. Sethia Shoes
4. (2009) SCC 684- Secretary, Bhuvaneshwar Development Authority Vs. Susanta Kumar Mishra
5. IV (2008)CPJ 18 (SC)- KLM Royal Dutch Airlines Vs. Director General of Investigation and Registration to enlighten us, in the absence of plea of deficiency in service, negligence etc., the 2nd complainant, is not at all entitled to any relief, which was not properly considered by the District Forum. In the first judgement, the Apex Court has held the Contract Act applies to all the litigants to before the commission, under the CP Act, included, thereby showing, based upon the contract alone, the alleged deficiency in service should be determined. What is unfair trade practice, is explained in the second judgement, referred above, based upon the definition also, Sec.2(r), while defining unfair trade practice, says for the purpose of promoting the sale, if the dealer adopts any unfair method or deceptive practice, including the grounds available under sub Sec.1, that should be construed as unfair trade practice. In the complaint, there is no explanation, how the 1st opposite party had practiced, unfair trade practice, except saying, that the 2nd complainants expectation was not fulfilled. As rightly submitted by the learned counsel for the appellant/ 1st opposite party, for not satisfying the expectation of the buyer, a case cannot be taken under unfair trade practice. Therefore, we are unable to say, by going through the pleadings, the 1st opposite party had exercised or practiced any unfair trade practice, and on this ground, though the District Forum has held so, we are unable to confirm the findings, and we will record our reason, in addition hereafter also.
9. In the 3rd judgement referred above, it is the dictum of the Apex Court, in the absence of pleadings and evidence, the complainant is not entitled to succeed, in a case of alleged deficiency, thereby it justified the dismissal of the complaint, in that case.
10. In the 4th cited case, the Apex Court has ruled that before granting any relief to the complainant, the consumer forum should be satisfied that the complaint, relates to any of the matters specified in Sec.2(1) (c ) of the Act, and if non of these is alleged and made out, the complaint will have to be rejected. The Apex Court has insisted that the pleadings are necessary to grant the relief on proof, otherwise not mere asking, based upon surmise and conjecture.
Having the above settled position, now we have to see the pleadings, once again.
11. A careful reading of the complaint, does not disclose there was a contract between the parties, or the 1st opposite party had agreed to sell a Maruthi Zen car, manufactured in the year 2006 alone, though booking had taken place, in this case, in 2006 April. The car manufactured in 2005, is not prohibited to be sold in 2006, as if having expiry date. No provision of any law, or any terms and conditions between the parties, were brought to our notice, if a car was booked in the year 2006, a car manufactured in that year alone should be delivered supplied. True, if a model with specification is booked, then the dealer is bound to honour the same, deliver the vehicle as per the model agreed. In this case, we do not have any materials, including the invoice, that the opposite party had agreed to supply only a car, manufactured in 2006. The repeated assertion of the 2nd complainant in the complaint, that if a car is booked in April 2006, he expects to deliver a car manufactured in April 2006, is not possible, in the absence of any specific agreement/ undertaking. It is for the purchaser to insist the year of manufacturing, while booking the car, if did so, then failure alone could be construed as violation, amounting to deficiency, or even unfair trade practice.
In this case, nowhere it is said, that the 2nd complainant had agreed to supply a car manufactured in April 2006. It is not necessary, that he should be told, that the car of the year 2005 would be supplied, since it is not the case of the 2nd complainant, that the car manufactured in 2005, is having vast difference from the car manufactured in 2006, for the same price, or lesser price. Therefore the non-supply of the car, manufactured in April 2006, cannot be construed, as unfair trade practice, in the absence of plea regarding the contract for the same, that too, in the absence of any protest by the 2nd complainant, while taking delivery of the vehicle, with satisfaction, a car manufactured in 2005.
12. The District Forum, has taken very seriously about the preliminary service done to this car. Whenever a new vehicle arrived from the manufacturer, it is for the dealer to service, keep it fit for sale, and in this way, it seems there was service, which cannot be faulted.
13. Unfortunately, in the insurance policy, the year of manufacture of this car is given as 2006, which is admitted as mistake by the 1st opposite party, which could be accepted, in view of the registration of the vehicle, wherein we find the year of manufacturing as 2005, giving other particulars, as required for registration of a new car. Therefore, taking advantage, that a mistake crept in the policy, we cannot presume that there was a contract between the 2nd complainant and the 1st opposite party, for the supply of a car of the year 2006, forgetting the fact the contract was only to supply a new Maruthi Zen car, which was supplied, in this case admittedly.
14. It is not the case of the complainant, that in the car supplied, there was any defect, such as manufacturing or otherwise, or it failed to function, etc. It seems, as seen from the records, and as pleaded by the 1st opposite party, after booking of this car, there was some more concession for the Maruthi Zen car, manufactured in the year 2006, including cash discount, and insurance benefit. It seems, when it was sought for by the 2nd complainant, not conceded, resulting this problem, which cannot be termed, as unfair trade practice. When the complainants have reported to the authorities concerned, as usual, they replied that they will look into the matter, and when investigated they felt, there was nothing wrong, in the supply of the car, manufactured in 2005, though the car was booked in 2006, which cannot be taken as if, that they have admitted and agreed to supply a car, manufactured in the year 2006, as recorded by the District Forum, erroneously. If really, there was an understanding, or agreement or contract between the parties, at the time of the booking, that a car manufactured in 2006 alone should be delivered, on seeing the RC, atleast the 2nd complainant should have refused to take delivery of the vehicle, insisting a new vehicle, manufactured in April 2006, which he failed, thereby in our considered opinion, by his own conduct, he is estopped from claiming a new car, manufactured in 2006. The District Forum, without considering the absence of plea, regarding the contract, and any plea regarding deficiency in service, has erroneously came to the conclusion, as if there was deficiency in service, as well unfair trade practice, in which findings we are unable to endorse, thereby the appellant has made out a case for success, and the appeal deserves to be accepted.
15. In the result, the appeal is allowed, setting aside the order of the District Forum in CC No.207/2006 dt.26.6.2007, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the petitioner, duly discharged.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Miscellaneous