State Consumer Disputes Redressal Commission
Dr. Mandeep Kaur vs Maruti Udyog Ltd. Palam-Gurgaon Road, ... on 19 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1755 of 2009
Date of institution : 14.12.2009
Date of decision : 19.11.2013
Dr. Mandeep Kaur wife of Dr. H.S. Bajwa, Bajwa Nursing Home,
G.T. Road, Khanna, District Ludhiana.
.......Appellant- Complainant
Versus
1. Maruti Udyog Ltd. Palam-Gurgaon Road, Gurgaon (Haryana)
through the Chairman-cum-Managing Director.
2. Swani Motors Private Limited, 12, Feroze Gandhi Market,
Ferozepur Road, Ludhiana through its Managing Director.
......Respondents- Opposite Parties
First Appeal against the order dated
11.11.2009 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant :Ms. Ishma Randhawa, Advocate. For respondent No.1:None.
For respondent No.2:Shri Nimanyu Gautam, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Dr. Mandeep Kaur, has preferred this appeal against the order dated 11.11.2009 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short, "District Forum"), vide which the complaint filed by her under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") for the issuance of directions to the respondents/opposite parties to replace First Appeal No.1755 of 2009. 2 the car with a car of the same model with leather upholstery or to pay the price to be incurred for the leather upholstery, which comes to about Rs.58,000/-; to pay Rs.1,00,000/- as damages on account of mental pain, agony and deficiency in service and Rs.11,000/- as legal expenses, was dismissed.
2. As per the averments made by the complainant, in her complaint, respondent No.2 is the authorized dealer of opposite party No.1 for the sale of Maruti Suzuki cars. She approached them for the purchase of one Maruti car Model SX-4 ZXI and it was told to her that the price thereof with fabric material for upholstery was Rs.6,96,258/- whereas the price of such a car with leather upholstery was Rs.7,31,103.01P. She was also supplied with the pamphlet containing those facts. While acting upon that representation of the opposite parties, she purchased the car with leather upholstery for a sum of Rs.7,31,103.01P, vide Invoice dated 28.9.2007. After about 4 days of the purchase, she was shocked to learn that the material used for upholstery (front and rear seats) was of rexine (PVC) instead of leather as represented by the opposite parties. By making the above said false representation, they adopted unfair trade practice in order to cause wrongful gain to themselves. The cost of the material used for upholstery of the car was not more than Rs.2,000/-. She contacted opposite party No.2 personally and disclosed all these facts to it. She even got served notice dated 8.11.2007 under registered cover upon both the opposite parties but to no avail. In all these circumstances, she is entitled to the replacement of the car with another car with leather upholstery and First Appeal No.1755 of 2009. 3 in the alternative she is entitled to recover the price of the leather upholstery, which comes to Rs.58,000/- (approximately). On account of the deficiency in service on the part of the opposite parties, she suffered mental pain and agony and for that they are liable to pay Rs.1,00,000/- as compensation.
3. The opposite parties filed independent written replies. Opposite party No.1 admitted in the written reply that opposite party No.2 is its dealer and that the complainant had entered into a contract for the purchase of the car as mentioned in the complaint. It averred therein that opposite party No.2 is its dealer for sale and service of the vehicles on 'Principal to Principal basis', which is governed by Dealership Agreement. It was not a party to the transaction entered into between that opposite party and the complainant and there were no direct dealings with the complainant. No such representation/commitment was made by it to the complainant at any stage. The variant Maruti SX-4 ZXI has got ex- showroom price at the rate of Rs.7,37,064/- at Ludhiana and that variant comes with leather seat covers made of finest quality of imported Italian leather, tailored for a perfect fit and finish. The complainant has failed to make out any case of deficiency in service or unfair trade practice against it and, as such, has no cause of action to file this complaint against it. The allegations as made in the complaint are outside the scope of the ambit of the Act. The relief asked for by the complainant falls outside the ambit of clauses
(a) to (i) of Section 14(1) of the Act and, as such, the complaint is not liable to be rejected on that ground alone.
First Appeal No.1755 of 2009. 4
4. Opposite party No.2 in its written reply admitted that it is the dealer of opposite party No.1 and that the complainant purchased the car, as mentioned in the complaint, from it for the amount mentioned in the invoice. It denied the other averments made in the complaint and pleaded that the models of the cars and the accessories thereof is the concern of opposite party No.1 and it only sells away the cars as received from that opposite party, without making any change therein. It is opposite party No.1, who launches the model along with accessories as per specifications mentioned in the concern literature/brochure. They sell the cars as per the brochure supplied to them and no further representation is made by it independent of that brochure. The material used in the seats was as per the details given in that brochure, which was supplied to it by opposite party No.1. Before purchasing the car, the complainant had taken a test drive and in connection therewith the car was taken to Khanna. After test driving, the complainant fully satisfied herself by examining the material very closely. The entire literature of the car was also handed over to her and she as well as her husband Dr. H.S. Brar after being satisfied about the car and the material used therein purchased the same and paid the money. No representation was made by it independently and it is nothing to do with the seats of the car, which are being manufactured by opposite party No.1. The cars are being sold in the same position in which these are purchased from the said opposite party. No false representation regarding the upholstery was made by it. No unfair trade practice was adopted by it at any stage and the averments made to that First Appeal No.1755 of 2009. 5 effect by the complainant are highly derogatory and defamatory. The complainant intentionally and wilfully concocted a false and frivolous story and there is no truth therein. The complaint is misconceived and is not maintainable. The complainant did not approach the District Forum with clean hands and suppressed the material facts, which disentitles her to any such relief claimed in the complaint.
5. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing the learned counsel on their behalf dismissed the complaint, vide aforesaid order.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
7. It was submitted by the learned counsel for the complainant that from the oral as well as documentary evidence produced by the complainant before the District Forum, it stands proved that opposite party No.2 quoted different prices for the same model of the car (SX4 ZXI) and the price of the model with leather upholstery was more than the other model; which itself shows that the extra price was being charged for the leather upholstery. It was specifically mentioned in the Invoice Ex.C-1, issued at the time of the sale of the car, that it was a model with leather upholstery. The complainant proved the defect in the goods i.e. the leather upholstery, by examining the expert; namely, Kewal Ram Badhan, whose affidavit was proved on the record as Ex.CW1/P. That witness is expert in the leather goods and the opinion expressed by him in his affidavit is First Appeal No.1755 of 2009. 6 admissible. As per his affidavit, both sides of front and rear seats had the covering of the material, which was not leather. From that evidence, it stands proved that not only the defective goods were supplied to the complainant by the opposite parties but they are also indulged in unfair trade practice by making representation that the car had the leather upholstery and by charging the price in excess. The District Forum committed a wrong while ignoring all this evidence produced before it. Once the claim is made by the opposite parties that the model "leather" has leather upholstery, all parts of the material covering of the front and the rare seats were required to be of leather and the District Forum wrongly concluded that only the contact area was liable to be of leather and the non- contact area could have been of some other material. Such a finding cannot be sustained. In all these circumstances, the complainant is entitled to the amount, which was charged in excess by the opposite parties for the model leather and for the unfair trade practice they are liable to pay the compensation as claimed in the complaint.
8. On the other hand, it was submitted by the learned counsel for opposite party No.2 that the claim, if any, regarding the leather upholstery was made to opposite party No.1-manufacturer and it had sold the car in the same condition in which it was received from that opposite party. Therefore, no liability can be fastened to it. It relied upon the brochure as issued by opposite party No.1 and collected the price as per the documents issued by that opposite party. No order for the refund of the price or for payment of compensation can be passed against this opposite party. He also submitted that even if First Appeal No.1755 of 2009. 7 there was a claim that the upholstery of the car was made of leather, even then only the contact part thereof was to be of leather and the non-contact part could have been of some other good material. It is the deposition of the expert of the complainant himself that the contact part of the seats was made of leather. Therefore, it cannot be held that the goods so supplied to the complainant were defective or that there was any such unfair trade practice on the part of opposite party No.1.
9. The brochure of the car was proved on the record by the opposite parties as Ex.R-4. In that brochure under the heading "Designed to Please" it is mentioned that the model had leather upholstery for an elegant look and feel. However, the astrick has been put against that entry, which shows that it was only in the specific model that there was leather upholstery and in the other models the upholstery was made of fabric. The complainant proved on record her affidavit Ex.CW1/A in which she deposed about each and every fact as averred in the complaint. Those averments also stand substantiated by the documents proved by him on the record Ex.C-1 to Ex.C-3. Ex.C-2 is the quotation of the Model SX4 (ZXI- Leather) and Ex.C-3 is the quotation for the Model SX4 ZXI. The price quoted for the first model was Rs.7,31,103/- whereas the price quoted for the second model was Rs.6,96,258/-. Those quotations itself shows that the excess amount was for the leather upholstery. It is very much clear from the Invoice Ex.C-1 that the complainant purchased the first mentioned model having leather upholstery. In view of the brochure proved on the record and the evidence First Appeal No.1755 of 2009. 8 produced by the complainant, it stands proved that she had purchased that model, which was having leather upholstery.
10. The next question to be decided is, whether the model so sold to the complainant had leather upholstery or not? For corroborating the averments that upholstery was not made of leather the complainant examined one Kewal Ram Badhan, who proved on record his affidavit Ex.CW1/B. In that affidavit he deposed about his qualification and experience in the leather/footwear technology. He stated that he is a technocrat in the field of leather/footwear. He holds a diploma in Footwear Technology and Advanced Footwear Technology (AFT) from India and Advanced Diploma in Footwear Technology (ADFT) from College of Technology, England. It has also been deposed by him in his affidavit that he retired as Deputy Director (Leather/Footwear) and that he had got 40 years' experience in the field of leather footwear. In the absence of any evidence to the contrary, it is to be concluded from this deposition that he is an expert in the field of leather/footwear technology and, as such, the opinion expressed by him is admissible in evidence. He deposed in the affidavit that he examined the material used in the seats of the car and found that the covering material of upholstery, wherever it was exposed on both sides on front and rear seats, was not of leather but of some synthetic material.
11. From this affidavit and the document proved on the record by the opposite parties as Ex.RW-1/3, the District Forum came to the conclusion that it was not proved that the upholstery of the seats was First Appeal No.1755 of 2009. 9 not of leather but was of some other synthetic material and consequently, there was no false representation made by opposite party No.2 while selling the car to the complainant. The District Forum not only misinterpreted the deposition as contained in that affidavit but also wrongly relied upon the document Ex.RW-1/3, which is not a part of the brochure but was photostat copy of the booklet of opposite party No.2 regarding "genuine accessories". Moreover, it is mentioned in that document itself that the said cover was made of finest quality of imported Italian leather, tailored for a perfect fit and finish. The District Forum also placed reliance on the definition of 'upholstery' as contained in the website of google by reproducing the relevant portion thereof in para no.12 of the order. It failed to take into consideration the actual meaning of that definition and misapplied the same to the facts of the present case. That definition talks of two zones i.e. contact area and non-contact area. The furniture should only be described as "leather" if both the "contact" and "non-contact" areas are leather and where only the "contact area" is leather, then the furniture should not be described as leather unless the description "leather chair with non-leather areas" is used. If that definition is applied correctly to the representation as made by the opposite parties, it becomes clear that the seats, sides of which were made of material which are not leather, could not have been described as leather upholstery. This wrong representation and charging of much more amount on the basis of that representation clearly amounts to unfair trade practice First Appeal No.1755 of 2009. 10 on the part of the opposite parties for which they are bound to pay compensation to the complainant.
12. In view of the above discussion, the present appeal is allowed, the order passed by the District Forum is set aside and the complaint is allowed. Opposite party No.2 is directed to pay Rs.34,845/- i.e. the difference of the price of the model SX-4 ZXI (leather) and the ordinary model SX4 ZXI (Rs.7,31,103/- minus Rs.6,96,258/-). Both the opposite parties are directed to pay Rs.1,00,000/- as compensation to the complainant, which shall be paid by them jointly and severally. They are also directed to pay Rs.8,000/- as costs of litigation. Compliance of this order be made within a period of one month from the date of receipt of copy of this order.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) November 19, 2013 MEMBER Bansal First Appeal No.1755 of 2009. 11