State Consumer Disputes Redressal Commission
N.K. Sharma vs India Auto Ltd., on 1 December, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 01-12-2008 Complaint Case No.C-213/2000 Shri N.K. Sharma, -Complainant R/o 502, Pandit Mohalla, Vill & P.O. Tughlakabad, New Delhi-110044. Versus 1. Managing Director, -Opposite Party No.1 India Auto Ltd., L.B.S. Marg, Kurla, Mumbai-400074. 2. Regional Manager, -Opposite Party No.2 India Auto Limited, Main NH-8, Near Birla Kanan, Shiv Murti, Rang Puri, New Delhi-110037. 3. Managing Director/ Chairman -Opposite Party No.3 (Through Shri P.K. Jain), PRJ Enterprisers, 882, East Park Road, Ajmal Khan Park, Karol Bagh, New Delhi-110005. 4. Manager Sales, -Opposite Party No.4 PRJ Enterprises, 882, East Park Road, Ajmal Khan Road, Karol Bagh, New Delhi-11005. 5. Field Officer, -Opposite Party No.5 (Through Shri G.S. Bakshi), PRJ Enterprisers, 882, East Park Road, Ajmal Khan Park, Karol Bagh, New Delhi-110005. CORAM: Mr. Justice J.D.Kapoor President Ms Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) On the allegation of having been sold a defective Car having manufacturing and inherent mechanical defects as well as delayed delivery of the car even after fulfillment of all the conditions, the complainant has filed the instant complaint and sought the following reliefs:-
(i) Rs. 17,013/- for the cost borne towards token tax, registration tax and miscellaneous charges and insurance.
(ii) Rs. 1,23,000/- as the expenditure incurred by the complainant for getting repaired the car as a result of the accident due to the inherent defects with brake system of the impugned car. Rs. 88,000/- of the aforesaid amount was remitted to the OPs for the repair in their workshop.
(iii) Rs. 6,000/- incurred as the additional expenditure on fuel consumption as estimated on the basis of the differences in the prices of petrol and diesel.
(iv) Rs. 4,00,000/- towards the humiliation, manhandling and other disparaging treatment and other injuries suffered by the complainant and his three advocate friends a sa result of the accident which occurred due to manufacturing defects with the brake system of the impugned car.
(v) Rs. 1,00,000/- for the hardship, humiliation and mental agony suffered by the complainant due to the successive defaults of the OPs.
(vi) Order alternatively to replace the petrol driven car in possession of the complainant by a brand of diesel driven car as booked by the complainant against the deposits by the complainant with the OPs and the complainant be paid as compensation of Rs. 6,46,000/- towards compensation.
(vii) Order for cost of the suit.
2. Allegations of the complainant, in brief, are that OP No.1 is a Mumbai based automobile manufacturing company having its regional office located at main NH-8, Birla Kanan, Shiv Murti, Rang Puri, New Delhi-110037 and manufactures UNO Fiat Car of all brands. They conduct their car selling business in Delhi through authorized agents who, interalia, include OP Nos. 3 & 4 OP No.5 approached the complainant on behalf of the OP No.1 to 4 in respect of the sale of a white UNO Fiat non-air-conditioned Diesel Car on 16.11.1999 on the terms and conditions including that the car will be a white UNO Fiat air-conditioned car. Supply of the car would be within one month. Thus time was the essence of the contract of sale. Transaction was confirmed by payment to the OP No.5 of a cheque of Rs.50,000/- drawn on the Bank of Maharashtra, Alaknanda, Kalkaji, New Delhi. The OPs, however, defaulted in delivering the booked brand of the car on the due date. To the utter disregard of the terms and conditions of the transaction the opposite parties imposed a further delay of three to four months to supply the car of the booked brand. The bargain was totally unreliable and was only a deceitful representation to induce the complainant to go in for the car through the opposite parties.
3. The complainant demanded back his deposits with the OPs. The same was refused by the OPs to be refunded immediately and without any interest. The complainant on the suggestion of the OPs changed the option of non air-conditioned to air-conditioned car and as desired by the OPs, deposited in advance the price of the changed brand of the car amounting to Rs.3,73,975/-. They agreed and undertook to arrange the supply of the car by 15.1.2000.
4. OP No.3 & 4 through a telephonic message on 14.1.2000 confirmed the receipt of the payment in advance the price of the promised brand of the car and desired the complainant to visit their showroom immediately in connection with the transaction to be materialized on 15.1.2000. The complainant was denied the delivery of the car to the utter disregard of their promise. The Ops confronted the complainant with a demand of payment of an additional amount of Rs.30,000/- which according to them was necessitated to meet the payment of the increase in the sales tax which was to undergo upward revision after 15.1.2000.
5. The complainant raised the demand to refund his money which was again refused by the Ops. The complainant unwillingly at about 8.30 P.M. took delivery of one Petrol driven car at a price of Rs.3,19,000/- higher than its invoice. The Ops delivered car (bearing Model code-W31, Engine No.1001529 and Chessis No.2027865) which was predated model with a manufacturing date of some times earlier than August, 1999. It was a defective piece having some manufacturing and inherent mechanical defects. It was a rejected piece which the Ops in no way were able to sell it in the market. Even the balance amount of the complainant has so far not been refunded irrespective of his visit at two times at their office and showroom for the purpose. One of the keys of the car was also kept by the OPs and is still under the possession of the Ops.
6. The complainant was in due course of the transaction entitled to the delivery of the booked brand of the car as distinguished from the delivery of the impugned brand of the car which was delivered to the complainant by mere deceitful and fraudulent means of the OPs. The car, in the possession of the complainant, nonetheless, was in the ownership of the Ops who had knowingly and willfully retained one of the key which was still with them. The impugned car was never bargained by the complainant and devolved on the complainant solely due to the compulsion exercised on him by the OPs.
7. The car was an old car manufactured prior to August, 1999 as distinguished from a model of January, 2000 assured by the OPs.
Due to inherent defects of its brake system, the car was confined to the workshop of the OPs for repair which took a long time and the entire settlement claimed Rs.1,23,000/- including claim of Rs.88,000/- by the workshop alone owned by the OPs. The repair work as was handled by the OP No.6 on behalf of opposite parties had also been quite recklessly attended and thus was far from satisfaction even after the cash payment of the aforesaid amount to the OPs.
8. A legal notice dated 29.5.2000 was sent to the OPs to settle the matter amicably. They, however, refrained from any settlement. The cause of action first occurred on 15.12.1999 when the OPs failed to deliver the booked brand of the car, which subsists and still persists.
9. In their joint reply, OP No.1 and 2 took the following pleas:-
(i) That the genuine claim of the complainant is less than 5 lacs and therefore, the appropriate forum for complainant to approach is the District Forum and not the State Commission. The complainant has not even annexed the copy of F.I.R which is a mandatory requirement and without which even insurance amount cannot be claimed.
(ii) That the car of the complainant has met with an accident and the terms and conditions of warranty cease to exist as soon as car meets with accident.
(iii) That the complainant does not disclose any cause of action as against the OP Nos. 1 & 2 as they never promised the complainant about delivery schedule of car.
(iv) It is true and correct that OP Nos.1 & 2 are conducting their car selling business in Delhi through PRJ Enterprises Ltd. now known as M/s Sanmati Motors. OP Nos. 1 & 2s relationship with its dealers is on principal to principal basis and OP Nos.1 & 2 are in no manner responsible for all the acts undertaken by OP Nos. 3 to 6 in respect of dealings in Uno Fiat Cars of all brands.
(v). That nowhere in the terms and conditions does average fuel consumption be ever mentioned. Once complainant has opted for the available model of Petrol, A/c Uno car, he has categorically entered into a fresh contract, with new terms and conditions and after taking delivery of the new opted car without any protest, he cannot now be allowed to allege that he was coerced and forced to change his option and the present car was thrust on him.
(vi) That OP Nos.1 & 2 did not make any alleged promises to the complainant regarding delivery schedule of the booked car. The terms and conditions accepted by the complainant during booking of the car are applicable to both the parties and refund in cases of cancellations would have been made accordingly. The complainant himself took the decision to opt for a different version of Uno car and cannot blame OP Nos.1 & 2 for his decision. The complainant is obliged to submit an additional amount to be incurred at the time of delivery towards any increase in sales tax/excise etc. under laws/notifications passed by the Government.
(vii) The question of refund does not apply in this case as complainant never cancelled his booking on the contrary there was a novation of the old contract. It is vehemently denied that the complainant was refused refund of the amount as alleged. The complainant has taken satisfactory delivery of car with pre-delivery inspection and had brought the car for 1st service after driving 1717 km on 19.2.2000 and had absolutely no complaints whatsoever.
This is indicative of the fact that car was in perfectly sound condition and defects alleged by the complainant have arisen after he met with accident due to his negligence. The entire front portion of the car had to be repaired and changed due to magnitude and impact of such a massive accident.
(viii) OP Nos. 1 & 2 did not receive any legal notice. It is denied that an old car was delivered to the complainant and he was coerced to change the option.
10. In their defence of OP No.3 to 6 took the following pleas:-
(i) That the car of the complainant met with an accident and as per terms and condition of warranty, if any car or vehicle meets with accident, the warranty cease to exist as soon as car meets with accident.
(ii) That 2hen the complainant has taken another option to take the petrol AC Uno car then no question arise of Uno Fiat non A/C Diesel Car. Nowhere in the terms and condition does average fuel consumption be ever mentioned. The various study teams projected, however he was told that the car is likely to perform better than any car and is expected to give the best mileage. It was also intimated that the car is likely to take delivery time as per present trained from 40 to 45 days which the complaint accepted. The complainant was insisting for the car for early delivery but he was reminded of the delivery schedule. However, he was given an option for the change to any other available model. On 14.1.2000, he opted for the available Blue colour Fiat Car, which was given to him at the prevailing price. P.D.I on the car was carried out by the workshop personnel and delivered to the complainant to his utmost satisfaction for which he signed the delivery challan and invoice, where it is clearly mentioned that he has received the car in complete and fully serviceable condition.
At the time of delivery of Petrol Car, the complainant has signed the satisfactory note for the serviceability and completeness of the vehicle. The terms and condition accepted by the complainant during booking of car are applicable for both the parties and refund in cases of cancellation would have been made accordingly.
(iii) That the complainant is obliged to submit an additional amount to be incurred at the time of delivery towards any increase in sales tax, excise etc. under laws and notifications passed by the Government. The complainant has purchased the Car on 14th Jan, 2000 and came before this court in August, 2000 when the car met with an accident. He has not made any complaint of any type either brake system or thrust of car or any problem regarding the contract of Diesel or Petrol car. Complainant is an advocate and knows cons and pros of every facts and nobody can compel and constrain him in any manner.
(iv) The question of refund does not apply in this case as the complainant never cancelled his Booking on the contrary there was novation of the old contract. It is vehemently denied that the complainant has been refused refund of amount as alleged. The complainant has taken satisfactorily delivery of the car with P.D.I and had brought the car for first service after driving 1717 km on 19th Feb., 2000 and had absolutely no complaint whatsoever. The defects alleged by the complainant have arisen after he met with an accident due to his carelessness and negligent driving. The entire front portion of the car had to be repaired and changed due to the magnitude and impact of accident. The OPs attended the vehicle of the complainant with their best efforts with their best engineers. The vehicle was road tested and was given to the complainant after full satisfaction. The vehicle again came back on 8th March, 2000 at 2573 km for the accidental repair.
After completing the formalities of filling the claim form, estimate and all other relevant papers accidental repair was undertaken after the labour settlement with the Surveyor.
(v). That at no stage, it was informed to the workshop that the vehicle requires any repairs on its break system or any repair were carried out on it. No component have been changed for brake system. In claim performa he has not mentioned the case of accident as the failure of brake system.
(vi). That the customer has accepted the vehicle in serviceable and completeness for that he has signed the satisfactory note and did not bring out that he still requires the Diesel version of car not the Petrol one. During the routine repair at no stage there were any problem with the break which has lead to the accident as brought out by the customer. Even after the accident there was no problem with the brake systems which has caused the accident due to the brake failure.
No components of brake system has either been changed or replaced to make the vehicle serviceable. It is denied that an old car was delivered to the complainant and he was coerced to change the option. The cause of action does not arise at all in this case.
Prayer of the complainant be dismissed with cost.
11. We have heard the learned counsel for the parties at length.
12. Let us assume and accept the contention of OP No.3 to 6 that the complainant who is advocate by profession had himself opted to take the petrol AC Uno car though complainant stated that it was not the car he opted and the OPs failed to deliver the car on the stipulated date on the premise that the manufacturer had not manufactured the car nor the car was not delivered for further delivery to the consumer.
13. Admittedly the price paid by the complainant towards the car was 3,73,975/- though it was priced at Rs. 3,19,600/-. Immediately after the purchase the complainant approached OP No.3 to 6 and brought to their notice that the brake of the car was not properly functioning and the car was a defective car and it was an old car manufactured in August 1999. Due to the inherent defect in the brake system the car was sent to the workshop of the OP which took a long time. Unfortunately due to this manufacturing defect the car met with an accident and luckily the complainant survived. Even after the complainant intimated to the OPs in writing but the OP did not bother to take any action. So much so he filed a claim of insurance which was settled only after filing the instant complaint against the OP. The contention of the counsel for the OP that after the settlement delivery of the car was a fresh transaction is wholly devoid of substance. Had it been a fresh transaction then the balance price should have been returned to the complainant. Rather the OP charged further Rs. 54,375/- the difference in the price of two versions.
14. We have taken a view that whenever a consumer goes for a brand new vehicle instead of purchasing a second and third hand vehicle he does so to avoid any hardship or inconvenience that a second hand or third hand vehicle gives and the minimum expectation of the consumer who goes for the brand new vehicle is that it will not give trouble for two-three years or so and if he is taking the vehicle every two or three days or once or twice a month he does so at the cost of his precious time or business loss or financial loss etc, and at the cost of emotional sufferings also.
15. We have also taken a view that it is not necessary that a vehicle can be declared defective only if it suffers from manufacturing defect. The quality, standard, purity and potency of every goods has to be tested on the anvil of word defect as provide by section 2(1)(g) of the Consumer Protection Act, 1986. According to this provision any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods, amounts to defect.
16. In our view OP No.1 and 2 are guilty for unfair trade practice firstly by selling an old car representing it as a new car and that too selling highly defective vehicle having inherent mechanical defects and secondly deficient in service in not delivering the car on the stipulated date as according to them there was delay of manufacturing the vehicle and further supply to the dealers and thirdly having charged more than what was the actual price of the car.
17. For every defect and unfair trade practice the consumer is entitled to a compensation for the mental agony, harassment, physical discomfort, expected or actual loss suffered by him etc. as observed by the Supreme Court in Ghaziabad Development Authority Vs Balbir Singh-(2004) 5 Supreme court Cases 65.
18. In the given facts and circumstances of the case we allow the complaint in the following terms:-
(i) OP No. 3 shall refund Rs. 17,013/-
towards the Token Tax, Registration Tax, miscellaneous charges and insurance.
(ii) OP No.1 and 2 shall pay total compensation of Rs. 1,00,000/- for the various losses and also compensation for mental agony and harassment.
(iii) OP No.1 and 3 shall pay Rs. 10,000/- each as cost of litigation.
19. Aforesaid payment shall be made within one month from the date of receipt of this order.
20. Complaint is allowed and disposed of in aforesaid terms.
21. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
22. Announced on 1st December, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj