State Consumer Disputes Redressal Commission
Dr. Ing H.C.F. Porsche Ag vs Shiv Raj Sareen And Ors. on 19 November, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.920 of 2022
Date of Institution : 28.10.2022
Reserved on : 07.11.2024
Date of Decision : 19.11.2024
Dr. Ing. H.C.F. Porsche AG, Porscheplatz 1, D-70435 Stuttgart,
through Power of Attorney Holder, Ritesh Kumar Shandilya S/o late
Sh. Mool Chand Jha.
........Appellant/Opposite Party No. 2
Versus
1. Shiv Raj Sareen aged 38 years, S/o Late Sh. Ashok Kumar,
R/o House No.2247, Sector 32-A, Chandigarh Road, Ludhiana.
.....Respondent No.1/Complainant
2. Zenica Performance Cars Pvt. Ltd., Gold Course Road, Sector
53, Gurgaon-122001, through its Managing Director.
3. Chaitannya Bajaj, Manager Sales, Zenica Performance Cars
Pvt. Ltd., Gold Course Road, Sector 53, Gurgaon-122001.
.....Proforma respondents No.2 & 3/Opposite Parties No.1 & 3
Appeal under Section 41 of Consumer
Protection Act, 2019 to challenge the
order dated 27.06.2022 passed in RBT/CC
No.898 of 2017 by the District Consumer
Disputes Redressal Commission, Moga
Camp Court at Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member Present:-
For the Appellant : Ms. Isha Goyal, Advocate
For Respondent No.1 : None
For Respondents No.2 & 3 : None
2
First Appeal No.920 of 2022
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellant/OP No.2 i.e. Dr. Ing. H.C.F. Porsche AG through his Authorised Signatory has filed the present Appeal under Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') to set aside the impugned order dated 27.06.2022 passed by the District Consumer Disputes Redressal Commission, Moga, Camp Court at Ludhiana (in short the "District Commission") in RBT/CC No.898 of 2017 whereby the CC had been partly allowed.
2. Briefly, the facts of the case of the Complainant as made out in the Complaint before the District Commission are that the Complainant had booked a Porsche Nigh Blue Roof Convertible Car and had paid an amount of Rs.5,00,000/- to OP No.3 i.e. Chaitannya Bajaj, through cheque dated 07.12.2016. The Complainant had also deposited an amount of Rs.5,00,000/- in cash to OP No.3 on 22.03.2017 for and on behalf of OPs No.1 and 2 at Ludhiana. Meaning-thereby, the Complainant had paid an amount of Rs.10,00,000/- to the OPs. Subsequently, it was found that the model shown to the Complainant was totally different from the model which was shown to the Complainant at the time of booking. Thereafter, due 3 First Appeal No.920 of 2022 to that reason, the Complainant was compelled to change the color from Night Blue to Jet Black Metallic. Further it was mentioned in the Complaint that despite making requests and reminders for delivery of the car, it was not delivered within the reasonable period whereas the Complainant was ready to pay the balance amount. However, the OPs had failed to deliver the vehicle to the Complainant. Stating it to be a case of 'deficiency in service' on the part of the OPs, the Complaint was filed with the following prayer:-
"The Opposite Parties may be directed to refund the booking amount of Rs.10 Lakhs alongwith interest @ 18% per annum from its deposit dates and also to pay Rs.50,000/- as compensation for mental torture and harassment and Rs.25,000/- as litigation expenses."
In support of his version, the Complainant had tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.C-1 to C-6 and thereafter evidence was closed 3. Upon issuing notice to the OPs, OPs No.1 and 3 appeared through Counsel and contested the Complaint by filing written version wherein certain preliminary objections were raised stating therein that the Complaint filed by the Complainant was not maintainable as every efforts were made by the Complainant to misguide and mislead the District Commission. Other averments made in the Complaint were also denied. However, none had appeared on behalf of OP No.2 and he was proceeded exparte. 4 First Appeal No.920 of 2022
4. By considering the averments made in the Complaint and reply thereof filed by OPs No1 and 3 as well as by considering the oral arguments and evidence/documents available on the record, the Complaint filed by the Complainant was partly allowed vide order dated 27.06.2022. The relevant part as mentioned in para No.10 is reproduced as under:-
"10. In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the Complainant and direct the Opposite parties jointly and severally to refund the amount of Rs.5 lakhs (Rupees five lakhs only) to the Complainant alongwith interest @ 8% per annum from the date of its deposit with Opposite Parties i.e. 07.12.2016 till its actual realization. The compliance of this order be made by Opposite Parties within 60 days from the date of receipt of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance."
5. Aggrieved by the said order dated 27.06.2022 passed by the District Commission, the Appellant/OP No.2 has filed the present Appeal before this Commission by raising a number of grounds. 5 First Appeal No.920 of 2022
6. Notice was issued in the Appeal to the Respondents. Initially Mr. Rajesh Gupta Advocate had appeared on behalf of the Respondent No.1/Complainant and also filed written arguments. Counsel for Respondent No.1 was not present on the date of final arguments as well as on earlier three dates. None had appeared on behalf of Respondents No.2 & 3 inspite of service through publication.
7. Ms. Isha Gyal Advocate, learned Counsel for the Appellant has submitted that the District Commission on the basis of presumption of service, had passed the exparte order against the Appellant but had failed to consider that the Appellant was Foreign Entity and it was incumbent upon the District Commission to appreciate the settled preposition of law and procedure relating to service of summons to the Defendant/Respondent who were residing in abroad. Learned Counsel has further submitted that the District Commission has also failed to appreciate that both the Republic of India and Federal Republic at Germany are signatories to the Convention of Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters dated 15.11.1965 and both the Countries are bound to adhere to its Articles. In the present case, notice was not issued to the Appellant in terms of the procedure prescribed under the convention. Learned Counsel has further submitted that the service of notice was never made to the Central Authority in Germany to the Appellant and notice was never received by the Appellant. It cannot be said to be a case of valid service and 6 First Appeal No.920 of 2022 the judgment passed by this Commission is not binding on the Appellant. Learned Counsel has further submitted that the District Commission was not having jurisdiction to entertain the Complaint against the Appellant because of the reasons as mentioned above and the respondents were residing beyond the jurisdiction of the District Commission and no part or cause of action had arisen within the jurisdiction of the District Commission and as such the judgment passed by the District Commission is not sustainable because of improper service. Further it has been submitted that the District Commission had also failed to appreciate that the Appellant was not operating within the jurisdiction of the District Commission Moga or in the said territory. Further it has been submitted that the District Commission has also failed to appreciate that the Complainant himself had said that there was no specific allegations against the Appellant and it was simply on the basis of bald statement/averments made by Respondent/Complainant. Learned Counsel has further submitted that the Appellant is only manufacturer of the vehicle and in accordance with the settled preposition of law as has been held by various Courts that in absence of any manufacturing defect as alleged by Respondent No.1, the Appellant could not be held liable and the Appellant was not a proper/necessary party to the Complaint and as such the order is liable to be set aside. There is no fault on the part of the Appellant but the District Commission has held all the OPs are jointly and severally liable to pay an amount of Rs.5,00,000/- alongwith interest to Respondent No.1/Complainant. At the end, it 7 First Appeal No.920 of 2022 has been submitted that there is no allegation of any manufacturing defect in the vehicle against the Appellant. There is no 'deficiency in service' and 'unfair trade practice' on the part of the Appellant and there is no privity of contract between the Complainant and the Appellant. Learned Counsel has also relied upon judgments of cases i.e. "Tata Motors Limited Vs. Antonio Paulo Vaz" Civil Appeal No.574/2021, decided on 18.02.2021, "National Insurance Company Limited Vs. Babulal Lodhi & others" RP No.816-818 of 2009, decided on 01.04.2010, "Honda Cars India Limited Vs. Sudesh Berry & others" Civil Appeal No.6802/2021, "Porsche Automobile Holding SE & Another Vs. Hari Darshan Sevashram Private Limite & others" FA No.378 of 2013, decided on 14.05.2019, and "Praveen Kumar Mittal Vs. Porsche India Private Lmited & others" CC No.55 of 2018, decided on 09.10.2018 in support of his version.
8. Learned Counsel for Respondent No.1/Complainant has submitted written arguments wherein it has been mentioned that the Appeal has not been filed within the period of limitation of 45 days from the date of alleged service of impugned order, which is contrary to the Provisions of Section 41 of the CP Act, 2019. The Appeal has not been filed with the pre-requisite amount as required under Section 41 of the Act as the Appellant had not deposited 50% of the awarded amount so ordered by the District Commission. Further it has been mentioned that the Appeal is totally misconceived and unsustainable in law as it has been filed only to avoid the payment of 8 First Appeal No.920 of 2022 Rs.5,00,000/- and interest thereupon @ 8% per annum. Certain material facts have been concealed/suppressed and as such this Appeal is an abuse of process of law and the Appeal is liable to be dismissed with heavy cost. At the end, it has been mentioned in the written arguments that the Appeal being devoid of merits is liable to be dismissed as the order has been passed after proper appreciation of evidence/documents available on the record.
9. We have heard the oral arguments raised by learned Counsel for the Appellant and have also gone through the written arguments submitted by Respondent No.1/Complainant and documents/ evidence available on the record
10. Admittedly, at the time of filing the Appeal, the Appellant had deposited Rs.25,000/- but the Respondent No.1/Complainant has mentioned in the written arguments that 50% of the awarded amount was required to be deposited under the new Act, 2019. It is pertinent to mention here that the Complaint was filed by the Complainant under old Act, 1986. The Hon'ble National Commission has dealt with the same issue in case titled as "M/s Sahyog Homes Limited & others Vs. Gautam Sure Kumar" F.A. No.674 of 2020, decided on 12.10.2020 (Bunch Matter. Para No.19 of the order is relevant which is reproduced as under:-
"19. Thus, from the law laid down by the Hon'ble Supreme Court in various decisions referred to above as also the Hon'ble Delhi High Court and applied by the Larger Bench of this Commission as already referred hereinbefore, we are of 9 First Appeal No.920 of 2022 the considered opinion that now it is well-established that a right of Appeal is a vested and a substantive right which cannot be altered, modified by putting stringent conditions as that right of Appeal had accrued to the person concerned from the date of initiation of the proceedings i.e. from the date of filing of the Complaint before the appropriate fora under the 1986 Act be it the District Consumer Disputes Redressal Forum, the State Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission, unless the modification which has been made subsequently in the 2019 Act has been made retrospective in operation. In the present cases, the Provisions of the Second Proviso of Sub- Section (1) of Section 51 of the 2019 Act has not been made retrospective in operation and in view of the Sub-Section 3 of Section 107 of the 2019 Act as also Section 6 (c) and (e) of the General Clauses Act, 1897, the right of Appeal which had accrued to these persons from the date of filing of Complaint stands as a vested and substantive right and cannot be changed. Thus, in view of the foregoing discussions, we are of the considered opinion that the Second Proviso of Sub-Section (1) of Section 51 of the 2019 Act shall not be applicable where the person aggrieved is challenging the Order passed by the State Commission in an Appeal arising out of a Complaint Case filed prior to 20th / 24th July 2020 when the 2019 Act came into operation/was enforced."
As per the provisions of the Act as well as the above judgment, the mandatory amount of Rs.25,000/- has been deposited by the Appellant at the time of filing of the Appeal and as such the Appeal is maintainable qua the depositing of pre-requisite amount and as such the plea raised in the written arguments by Respondent No.1/Complainant does not carry any wait.
10First Appeal No.920 of 2022
11. With regard to second issue as mentioned in the written argument that the Appeal has not been filed within the period of limitation i.e. within 45 days from the date of service of impugned order dated 27.06.2022. It is pertinent to mention here that the Appeal was filed on 28.10.2022 whereas the Appeal was to be filed within a period of 45 days from the date of service of the impugned order. No separate application has been filed for condonation of delay by giving detailed reasons. Simply it has been mentioned in the ground of Appeal that the Appellant came to know about proceedings pending before the District Commission on 26.09.2022. Simply the averments have been made while narrating the facts of the case but nowhere it has been prayed and nowhere in the grounds of Appeal or in any Application that there was a delay and same be condoned.
12. Admittedly, the notice was issued to the Appellant as per provisions of Section 34 sub Clause 2 (d) of the Act wherein it has been mentioned that the notice was required to be sent where such person was residing or working. As per admission on the part of the Appellant, it is apparent that the Appellant/ OP No.2 became aware of the proceedings before the District Commission on receipt of certified copy of the impugned order dated 27.06.2022. It proves that the address of the Appellant was correct on which the District Commission had sent/dispatched the summons alongwith the copy of the Complaint but it was the Appellant only who had chosen not to appear. Neither he filed reply nor raised any objection with regard to service and with regard to jurisdiction. The Appellant had also failed 11 First Appeal No.920 of 2022 to prove that he was not properly served as no such objection was raised before the District Commission. Moreover the Appellant was necessary and proper party in the proceedings before the District Commission. The Appellant Company was owned by Volkswagen Group of Companies of Germany and was represented in India through its wholly owned India subsidiary i.e. Skoda Auto Volkswagen India Private Limited through which it sells its manufactured vehicles in India. Respondent No.2/OP No.1 was its dealer in Delhi NCR through which the Respondent No.1/Complainant had booked its vehicle. Meaning thereby there was a privity of contract between the Appellant and Respondent No.1/Complainant. The District Commission was having jurisdiction to issue notice against the Appellant and the same was also received but it was the Appellant who had chosen not the file reply. Moreover, OPs No.1 and 3 have challenged the impugned order and as such, this plea of the Appellant/OP No.2 is not acceptable.
13. Notice was sent to the Appellant/OP No.2 on the same address as mentioned in the Complaint. The service was presumed to be done on the expiry of period of 30 days as the notice was sent through registered post but it was not received back and by drawing presumption of service, the Appellant/OP No.2 was proceeded exparte and it cannot be said it was not a service. Moreover, the Appellant had also not challenged the exparte order before this Commission but he straightway challenged the final order passed by the District Commission. The reasons are required to be given as to 12 First Appeal No.920 of 2022 how he was proceeded exparte but he thought it proper not to challenge the exparte order. From the facts as mentioned above it has been proved on record that the Appellant was necessary party. By twisting the facts as mentioned in the Appeal that he was not aware of the proceedings and the order was received by him late whereas he could have filed the Application for deletion of his name before the District Commission from the array of the parties but no such Application was filed. The judgments relied upon by the Appellant are not applicable to the facts of the case.
15. For the reasons as mentioned above, we do not find any merit in the contentions raised by learned Counsel for the Appellant and the Appeal being devoid of any merit is hereby dismissed.
16. The Appellant had deposited an amount of Rs.25,000/- at the time of filing of the Appeal with this Commission. Said amount, alongwith interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission in accordance with law. The Respondent No.1/Complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
17. Since the main case is decided, the pending Application(s), if any, are also disposed off.
13First Appeal No.920 of 2022
18. The Appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER November 19, 2024 (MM)