State Consumer Disputes Redressal Commission
Intercard (I) Ltd vs M/S Daimler Chrysler on 2 February, 2009
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: 02-2-2009 Complaint NO.C-39/2004. Intercard (I) Ltd, Through Its Director Mr. Sanjeev Dutta, A-11/A, Green Park ( Main), New Delhi-110016. . Complainant Versus 1. M/s Daimler Chrysler, Through Its Director (Sales & Mktg.) Sector-15/A, Chikhali, Pimpri, Pune-411018 Opposite Party No.1 2. M/s T N T Motors Ltd., Through: Mr. Ravi Talwar, Director, 212, Okhla Industrial Estate, Phase-III, New Delhi-1100 20 Opposite Party No.2 CORAM 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 (ORAL)
1. In the month of February 2003 the complainant showed his willingness to purchase a Mercedes Benz Car Model C-180, a product of the OP-1. As the complainant wanted to purchase the latest model the OP asked him to wait for the launch in the market of the latest model and after about three months confirmed that the latest model C180K has been launched in the market. Believing their version as true the complainant purchased the car on 03-06-2003 at a cost of Rs. 22,58,251/-. As a matter of fact the complainant had gone to purchase model C-180 that is a regular edition. However, the OP2 on behalf of OP-1 sold the model 180-K, which was neither a regular edition nor has ever been launched.
Even regarding the model C-180K being a limited edition neither any press release nor advertisements were there. Later on the complainant came to know during the pendency of the complaint that even the transport authority was not informed about C-180K being a limited edition.
2. From the aforesaid allegations the complainant has sought the following reliefs:-
i) To pass an order directing the OPs to return the whole amount taken against the purchase of the said car or exchange the said car with the latest version as on the date of filing of the complaint.
ii) To grant compensation of Rs. 2.00 Lac for harassment and mental agony and to pass any further order as deemed fit.
3. In its defence, the OP-manufacturer came up with the version that OP NO.2 is not the agent of OP NO.1 and there is no privity of contract between OP NO.1 and complainant in regard to sale of vehicle or alleged misrepresentation by OP NO.2. Therefore OP NO.1 is not a necessary party in the proceedings. Complainant is not a consumer. Complaint if frivolous, speculative and vexatious and is intended to exploit the consumer jurisdiction for making an untenable claim. As clarified by OP NO.1 vide letter dated 05.08.2003 that C-180 K was a limited edition version and was the most contemporary vehicle in the country at the time of its introduction. Therefore, complainant is not justified in having any grouse. As a matter of fact he had reasons to be satisfied for acquiring a C-180 K, which was the most contemporary vehicle at the material time. Further, if he wished to upgrade his car to C-200K a trade-in offer was made to him, vide this OPs letter dated 22.09.2003. OP is not aware of any misrepresentation by OP NO.2 and hence is not in a position to comment on the contention of complainant that OP NO.2 misrepresented the facts. No stone was left unturned to explain the matter to the satisfaction of complainant. The claim of complainant has no rationale or legal basis whatsoever and is a sheer adventurism intended to exploit consumer jurisdiction for making a speculative gain and therefore, such an effort should be met with appropriate judicial strictures and exemplary cost be awarded in favour of OP.
4. O.P.2-dealer also came up with similar objection of the Complainant being not a consumer and that the Complainant is trying to foist a speculative and vexatious claim and to exploit consumer jurisdiction for his personal gain. At the relevant time C-180 K was the latest model available in the C-Class range in the Indian Market and the same was offered to the complainant. C-180 K was a limited edition version and was the most contemporary vehicle in the country at the time of its introduction. Many times the dealer is also not aware of any new model to be launched by the company. The answering OP at no point of time pressurized the complainant to buy the same. There are times when the new models are introduced within very short period. It is specifically denied that the OP has stated that the model C-200K is with automatic transmission as alleged. Complainants vehicle was the latest offering at the time of purchase and no stone was left unturned to explain the matter to the satisfaction of complainant. OP NO.2 genuinely believes in customer service and treatment of customers with utmost curtsey. OP has always tried to stand by this principle.
5. The complainant has produced and relied upon the following documents:-
i) Letter dated 11-07-2003 written by the complainant to the OP that he had gone to purchase Model 180 the latest model but the OP informed him that 180-K was the latest model (Kompresso). On its representation he purchased 180-K whereas 180-K was not the latest model. He bought the vehicle offered to him as being the latest one keeping in view the reputation of the organization.
ii) Letter dated 5-8-2003 sent by the OP to the complainant informing that C-180 was indeed a limited edition and therefore had a short run in the country and therefore by the time he purchased 180-K it was the most contemporary vehicle in the country from Mercedes Benz class.
6. Through this letter dated 11-07-2003 it was also brought to the notice of the OP that they have felt cheated and they would like the matter to be resolved without further delay.
7. On behalf of the OP the Ld. Counsel has contended that none of the records show that there was any kind of misrepresentation from the part of OP, so much so, the complainant praised the dealer in his letter and confirmed having full faith. However, he was given such a shock on account of the fraud played on him. Counsel for the OP has contended that the complainant has never rebutted the plea that it was a limited edition and was widely published in the media.
8. We have accorded careful consideration to the rival claims and contentions of the parties and the documents available on record.
At the outset, to say that the complainant is not a consumer is highly fallacious argument as there is a distinction between commercial activity and commercial purpose. Had the complainant purchased the vehicle for further sale to earn profit only then it could have come within the ambit of commercial purpose. He had purchased only one vehicle for his use and merely because it was engaged in some commercial activities does not mean that it was used for commercial purpose.
9. The view taken in the case of Laxmi Engineering Works v. PSG Industrial Institute 1995 3 SCC 583 was prior to the amendment of the Consumer Protection Act and recently the National Commission in the case of Harsolia Motors v. National Insurance Co. Ltd. (First Appeal No. 159/2004) while relying upon and after discussing the ratio of Laxmi Engineering Works (supra), took the following view:-
If the goods are purchased for resale for commercial purpose then such consumer should be excluded from the coverage of Consumer Protection Act 1986. Such illustration should be that a manufacturer who is producing one product A for such production he may be required to purchase articles, which may be raw material then purchase of such articles, could be for commercial purpose. As against this, the same manufacturer if he purchases a refrigerator, a television or an air conditioner for his use at his residence or even in his office, it cannot be held to be for commercial purpose, and for this purpose he is entitled to approach the Consumer Forum under the Act.
10. In support of this view, the National Commission relied upon the subsequent judgment of the Supreme Court delivered after the amendment in the Act, reported as Regional Provident Fund Commissioner v. Shiv Kumar Joshi (2000) 1 SCC 98, in which it was held that:-
The combined reading of the definitions of consumer and service under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words consumer and service as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Sec. 2(1)(o) of the Act.
11. On merits, it is apparent and crystal clear that the complainant had been sold by way of misrepresentation a limited edition, which was never launched in the market whereas the complainant had gone to purchase a regular edition C-180 and thereby he has suffered financial loss and since there is no re-sale value of limited edition the complainant has suffered immensely financially as well as could not even use the car the value of which happened to be Rs. 22.00 Lacs or so. The OP has failed to produce any document to show that it had ever come with 180-K model in the market. Inspite of having written so many letters to the OP as to the information whether the vehicle supplied to the complainant 180-K was the latest version or not the OP failed to come out with the truth.
12. It is a known trade practice that whenever a new model is going to be launched in the market advertisements in the newspapers or in the electronic media are given. In case of 200-K, which was subsequently launched by the OP, it was widely published in the economic Times. Photocopies of such publications in the newspapers have also been produced. In its letter dated 5-8-2003 it was categorically admitted that 180-K was a limited edition. Reproduction of the said letter is necessary and is as under:-
At the outset we thank you for your letter dated July 30, 2003 regarding the purchase of a C-190 Kompressor vehicle.
We wish to inform you that the C-180 Kompressor was indeed a limited edition and therefore had a short run in the country. Please note that at the time of your purchase, the C-180 Kompressor was the most contemporary vehicle in the country from the Mercedes Benz C-class stable.
13. It is immaterial whether the complainant has run the car for 50-60,000 Kms as what is material for us is that such gross misrepresentation was made by the OP that the customer suffered huge financial loss, mental agony, harassment and lost mental peace. This is the grossest kind of deficiency in service and an unfair trade practice.
14. The circumstance of having paid Rs. 2.5 Lac extra shows that it was a limited edition and the complainant was aware of that is of no avail as the said amount was paid only on the suggestion of the OP that it was the latest edition. OPs are guilty of highly unfair trade practice and grossest kind of deficiency in service.
15. The endeavour of the Consumer Forum / Commission should be to put an end to the dispute between the consumer and the trader or service provider once for all. If the opposite parties are directed to replace the vehicle by a new vehicle or the goods with new goods of similar description and specification which should be defect free or the latest model, the replaced goods or vehicle being defective cannot be ruled out. Similarly, if the traders or service providers are directed to remove or rectify the defects, the possibility of the removal of defects being not to the satisfaction of the consumer cannot also be ruled out. In such circumstances, the parties will be relegated to square one and they will enter into a second or third bout of litigation.
16. In the given facts and circumstances of the case and nature of unfair trade practice and deficiency in service, we allow the complaint in the following terms:-
i) The OP 1 manufacturer shall refund the cost of the vehicle on its return and shall also pay a further sum of Rs. 5,00,000/- as compensation for the financial loss suffered by the complainant besides mental agony and harassment, which shall be shared by OP 1 manufacturer and OP -
2 dealer, as we find the dealer equally liable and responsible for misrepresenting to the complainant as to the vehicle being the latest model though it was a limited edition which was not even launched. Complainant shall complete all requisite formalities for transfer of the vehicle in the name of OP-1.
ii) OP-1 and 2 shall pay a further sum of Rs. 20,000/- as cost of litigation.
17. Complaint stands disposed of in aforesaid terms. Payment shall be made within one month from the receipt of a copy of this Order.
18. Copy of Order as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK