State Consumer Disputes Redressal Commission
M/S. Mahesh Enterprises vs Sky Automobiles & Anr. on 11 September, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/604
Instituted on : 09.07.2018
M/s Mahesh Enterprises,
Through : Proprietor Sudama Batra,
Address : Behind Peeli Building,
Sai Sutar Bhawan, Fafadih,
Raipur (C.G.) .... Appellant (Complainant)
Vs.
1. Sky Automobiles,
Authorized Dealer - Maruti Suzuki India Limited,
Address : Magneto The Mall,
Labhandih, G.E. Road,
Raipur (C.G.)
2. Maruti Suzuki India Limited,
Through : Managing Director / Director,
Address : 01, Nelson Mandela Road,
Vasant Kunj,
New Delhi- 110070 .... Respondents (OPs)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER HON'BLE SMT. RUCHI GOEL, MEMBER COUNSEL FOR THE PARTIES :
Shri Rakesh Puri, Advocate for the appellant (complainant). Shri Abhishek Agrawal, Advocate for the respondent No.1 (O.P. No.1). None for the respondent No.2 (O.P. No.2).
ORAL ORDER DATED : 11/SEPTEMBER/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 24th May, 2018, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.682/2014. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
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2. Briefly stated the facts of the complaint of the complainant are that, the O.P. No.1 is authorized dealer of Maruti Car and other vehicles and the O.P. No.2 is manufacturer of Maruti Cars. The O.P. No.2 has authorized the O.P. No.1 to sale the vehicles manufactured by it, and also to sale the parts of the vehicles. The complainant was in need of Car for his own use, therefore, he choose a new Swift VDI Model in the establishment of O.P. No.1. The on road price of the above car is informed Rs.7,23,706/-, out of which a sum of Rs.48,683/- is registration charges in the R.T.O. office and a sum of Rs.19,545/- is insurance expenses. The complainant has bonafidely believed on the price informed by the O.P. No.1. On 13.02.2014, the complainant had purchased Swift VDI Model car having Chassis No.MA 3FHEB IS 00 461268 and Engine No.D13A0399925 from the O.P. No.1 and the complainant had paid the above amount to the O.P. No.1. After some days of purchasing the above Car, the O.P. No.1 had provided the copy of Cover note of insurance and on line registration of the vehicle to the complainant. After receiving the above documents, the complainant found that in the policy issued by Bajaj Allianz General Insurance Company Limited the total insurance premium amount is mentioned as Rs.19,433/- , whereas the O.P. No.1 had taken a sum of Rs.19,545/- towards insurance premium. After seeing the difference amount, the complainant had demanded details of the entire amount, but the O.P. No.1 avoided to give the details. Then the complainant perused the invoice provided by the O.P. No.1, then he found that the besides VAT Tax in the value of the vehicle, a sum of Rs.5,000/- towards other charges and a sum of Rs.1,500/- towards other accessories charges, has been taken. The complainant // 3 // himself had taken information from the registration department regarding the registration charges according to which the registration charges of the vehicle is Rs.44,115/- and the above amount was deposited by the O.P. No.1 in the registration department, whereas under the above head, the O.P. No.1 had taken a sum of Rs.48,683/- from the complainant. The O.P. No.1 had taken extra amount from the complainant for registration charges and towards insurance premium. The O.P. No.1 has also received a sum of Rs.5,000/- towards other charges and Rs.1,500/- for other accessories, but in the vehicle of the complainant no other accessories were fitted and it was also not informed that for what purpose a sum of Rs.5,000/- was taken towards other charges. The authorised dealer of the O.P. No.2 has committed cheating and fraud with the complainant for which the O.P. No.2 is also responsible and liable. The OPs have committed deficiency in service and unfair trade practice. The complainant sent the notice to the OPs through his advocate through registered post on 25.06.2014, but in spite of receiving the above notices, the OPs had not give reply thereof and also did not refund the amount which was taken in excess. Hence the complainant has filed the instant complaint and prayed for grant of reliefs, as mentioned in the prayer clause of the complaint.
3. The O.P. No.1 has not filed its written statement and only filed its preliminary objection in which it is averred that the complainant has stated in his complaint in para (10) that the excess recovery was made by committing fraud with intent to commit crime u/s 420 I.P.C. and other relevant provisions f the Indian Penal Code. Having made such categorical statement, the instant complaint filed by the complainant is not tenable; instead of the consumer // 4 // complaint, the complainant should be directed to file the complaint before Criminal Court having jurisdiction to try such offences. The complaint filed by the complainant be dismissed and he be directed to have appropriate remedy in the proper Forum.
4. Before the District Forum, none appeared for the O.P. No.2 in spite of services of notice, therefore, the O.P. No.2 was proceeded ex-parte. The O.P. No.2 has not filed written statement, affidavit and documents.
5. The complainant has filed documents. Annexure 1 is Certificate of Registration, Annexure 2 is Certificate Cum Policy Schedule, Annexure 3 is Tax / Vehicle and Charges Invoice issued by Sky Automobiles, Annexure 4 is Form Receipt of Fees / Tax issued by Chhattisgarh Transport Department, Annexure 5 is price list of the O.P. No.1, Annexure 6 is notice dated 20.06.2014 sent by Shri Rakesh Puri, Advocate to the OPs.
6. The O.P. No.1 has not filed documents.
7. Shri Rakesh Puri, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the District Forum is erroneous. In para 10 of the complaint, the appellant (complainant) has specifically pleaded that the OPs have committed fraud and cheating with him and have also committed unfair trade practice. Shri Puri has drew our attention towards Section 2(1)(r) of the Consumer Protection Act, 1986. He further argued that according to Section 3 of the Consumer Protection Act, 1986 the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, the appellant // 5 // (complainant) has a right to file the consumer complaint or criminal prosecution against the respondents (OPs). Merely the pleading of the complainant that the OPs have committed fraud or cheating with him, does not bar him to file the consumer complaint against the O.P. Hence, the impugned order passed by the District Forum be set aside the case may be remanded back to the District Forum.
8. Shri Abhishek Agrawal, learned counsel appearing for the respondent No.1 (O.P. No.1) has supported the impugned order passed by the District Forum.
9. Before us inspite of service of notice none appeared for the respondent No.2 (O.P. No.2), but the respondent No.2 (O.P. No.2) sent its written submission through post..
10. We have heard arguments of learned counsel appearing for the parties and have also perused the record of the District Forum, as well as the impugned order and written submissions sent by the respondent No.2 (O.P.No.2) through post.
11. In para 7 of the complaint, the appellant (complainant) has specifically pleaded that the complainant had demanded the calculation chart or statement of account from the O.P. No.1, but the O.P. No.1 avoided to give the calculation chart or statement of account to him, then one being apprehension he perused the invoice, which was provided to him by the O.P. No.1, then he found that the O.P. No.1 had taken extra amount besides VAT Tax towards other charges and // 6 // other accessories to the tune of Rs.5,000/- and Rs.1,500/- respectively. In para 10 of the complaint, the complainant has further pleaded that the OPs have committed fraud, cheating as well as unfair trade practice with him.
12. Section 2(1)(r) of The Consumer Protection Act, 1986 runs thus :-
"(r) "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 represent 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) Represent 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;
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(vii) Gives to the public any warranty or guarantee of the performance, efficacy or length of life of a produce or of any goods that is not based on the 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 materially misleading or if there is no 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 // 8 // 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 anyting 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) .......
(3) ......"
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13. In Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC), Hon'ble Supreme Court has observed that "FORA under the Act have all the trappings of a Civil Court and judicial authority. The proceedings before them are legal proceedings".
14. In Probir R. Ghosh and Others Vs. Yule Financing & Leasing Co. Ltd. (2004) 1 CPR 52 (NC), Hon'ble National Commission has observed that "Question of Jurisdiction of Consumer Forum vis-à-vis Company Law Board - Depositor can file complaint under the Act or approach Company Law Board - Complainant petitioner had not approached Company Law Board before filing of complaint - Complaint was maintainable".
15. In Tamil Nadu Industrial Investment Corporation Limited Vs. J.R. David & Ors. 1995 (3) CPR 132 (NC), Hon'ble National Commission has observed that "The State Commission seems to have been oblivious of the provisions contained in Section 29 of the State Financial Corporation Act, 1951 which provision is distinct and different from the remedy available under Section 32 of the said Act. The appellant has the option to choose either of the remedies and if the remedy under Section 29 is chosen, then it cannot be considered as a deficiency in service on the part of the Appellant".
16. In Appeal No.F.A.23/2014 - The State of Tripura, Through Sri Partha Pratim Bhattacharjee Vs. The Principal Officer, Oxford University Press, vide order dated 13.02.2015, State Consumer Disputes Redressal Commission, Tripura, has observed thus :-
// 10 // "10. We have gone through the decision of the Hon'ble National Commission (Supra) referred by the learned counsel for the respondent. From the said decision, it is found that the learned counsel for the publisher of that case i.e. Pustak Mahal argued before Hon'ble National Commission in favour of enhancing the price of the books by screen printing or by putting stickers of the enhanced price on the original printed price of the books referring to the publication of rare books and out of print books, but the case as narrated in that revision case does not disclose that the respondent of that case purchased four books from the Pustak Mahal, revision petitioner if the same were of rare books and / or out of print books. But the fact remains that the Hon'ble National Commission in the said referred revision case has been pleased to accept the argument advanced by the learned counsel for the publisher. It further appears that the Hon'ble National Commission in the said revision petition case has been pleased to hold that the enhancement of price of the books by screen printing or by putting stickers of the enhanced prices on the original printed price of the books does not come within the definition of unfair trade practice as provided under Section 2(1)(r) of the C.P. Act, 1986. In fact, the Hon'ble National Commission has been pleased to hold that in doing so, the revision petitioner adopted no unfair trade practice. That being the position, it goes without saying that the putting of stickers or by screen printing of the enhanced price on the original printed price of the books is legally permissible to a publisher of books and that does not tantamount to unfair trade practice. Not only so, the Inspector, Legal Metrology could not show us any provision of law prohibiting the publisher to refix the prices of the books at an enhanced rate. So, considering all and relying on the decision of the Hon'ble National Commission, pronounced in the revision case (Supra), we are of the view that the allegation of the adopting unfair trade practice by the respondent - O.P., Oxford University Press, by way of enhancing the prices of the books has not been proved. So, the argument advanced by the Inspector, Legal Metrology appearing for the appellant -
complainant is found not acceptable legally."
17. Section 3 of the Consumer Protection Act, 1986 runs thus :-
"3. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
18. Looking to the provisions of Section 3 of the Consumer Protection Act, 1986, it appears that the provisions of this Act, shall be in addition to and not in derogation of the provisions of any other law for time being in force. The // 11 // appellant (complainant) has a right to choose a Forum. Both the legal rights are vested to the complainant to file complaint or to file criminal case. The complainant has chosen to file complaint before the District Forum. Therefore, merely on the ground that the complainant has pleaded regarding cheating and fraud, the consumer complaint cannot be prohibited.
19. Therefore, we allow the appeal filed by the appellant (complainant) and the impugned order dated 24.05.2018, passed by the District Forum, is set aside. The case is remitted back to the District Forum with a direction to provide opportunity to the respondent No.1 (O.P. No.1) to file its written statement and documents. As before us, the respondent No.2 (O.P. No.2) has not appeared, therefore, the District Forum, is directed to issue notice to the O.P. No.2 for appearing before it on the fixed date of hearing and also to provide opportunity the respondent No.2 (O.P. No.2) to file its written statement and documents. If the appellant (complainant) wishes to file documents and affidavits, then the complainant be afforded an opportunity to file the documents, in rebuttal. After hearing both the parties, the District Forum, will decide the case on own merits. The parties are directed to appear before the District Forum, Raipur (C.G.) on 01.10.2018. The office is directed to send the original record of the case to the District Forum, Raipur (C.G.) forthwith.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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