State Consumer Disputes Redressal Commission
Mr. Gursimran Singh Walia vs 1. M/S Jaycee Automobiles Pvt. Limited on 28 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint Case No : 32 of 2013 Date of Institution : 14.05.2013 Date of Decision : 28.11.2013 Mr. Gursimran Singh Walia, son of Sh. Kawaljit Singh Walia, resident of House No.523, Sector 36-B, Chandigarh. Complainant. VERSUS 1. M/s Jaycee Automobiles Pvt. Limited, Plot No.171, Industrial Area, Phase I, Chandigarh, through its Managing Director/Authorized Signatory (Authorized dealer of Audi India). 2. M/s. Audi India, 3 North Avenue, Level-3, Maker Maxity, Bandra, Kurla Complex, Bandra (East), Mumbai, through its President/Managing Director/Director (deleted vide order dated 09.07.2013). 3. Mr.Amit Gupta, Sales Representative, M/s Jaycee Automobiles Pvt. Limited, Plot No.171, Industrial Area, Phase I, Chandigarh. 4. The Registering and Licencing Authority, Sector 17, Chandigarh. 5. Indian Overseas Bank, Main Branch, Sector 7-C, Chandigarh. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh.Pankaj Chandgothia, Advocate for the complainant Sh.V. K. Sachdeva, Advocate for Opposite Parties No.1 and 3.
Sh. Jatinder Singh, Govt. Pleader for Opposite Party No.4.
Sh.Charanjiv Singh Pasricha, Advocate for Opposite Party No.5 Name of Opposite Party No.2, deleted vide order dated 09.07.2013.
PER JUSTICE SHAM SUNDER (RETD) PRESIDENT.
The facts, in brief, are that the complainant is one of the Directors of M/s Commando Caterers Pvt. Ltd., having its registered office at SCO No.491-492, Sector 35-C, Chandigarh, duly incorporated under the Indian Companies Act, 1956. It was stated that the complainant, and the Company, aforesaid, have separate and distinct entities. It was further stated that the complainant intended to purchase a new luxury car of Audi make, for his personal use. He contacted Opposite Party No.1, being the authorized dealer of Audi cars, in Chandigarh, and had meetings with its representative, at a Hotel, where he (complainant), alongwith his family, was residing. Finally, on 02.02.2012, the complainant visited the showroom of Opposite Party No.1, in order to finalize the purchase of the said car. It was further stated that the representative of Opposite Party No.1, represented that the performance of the vehicle, in question, was absolutely excellent and of high standards. It was assured by him to the complainant, that there would be no problem, with regard to the after sale service of the said car. It was further stated that, on the assurances aforesaid, the complainant finalized the purchase of a new Audi A6 2.0 TDI car (Colour Phanton Black with brown interior). Thereafter, Opposite Party No.1, raised final Performa Invoice dated 02.02.2012 Annexure C-1, in favour of the complainant, in the sum of Rs.37,70,000/-, being the total price of the said car. On 03.02.2012, an amount of Rs.37,70,000/-, vide Demand Draft dated 02.02.2012 (Annexure C-2), drawn on Indian Overseas Bank, Sector 7-C, Chandigarh, after raising the requisite loan, from Opposite Party No.5, was paid by the complainant, to Opposite Party No.1. It was further stated that the said demand draft, alongwith hypothecation letter of the Bank/Opposite Party No.5, from which the loan was raised, for purchase of the said car, was issued, from the account of Gursimran Singh Walia-complainant, and not the Company, of which he was the Director. It was further stated that receipt no.2090 dated 03.02.2012, in respect of the amount aforesaid, was issued in favour of Gursimran Singh Walia-complainant, by Opposite Party No.1.
2. It was further stated that Opposite Party No.1, later on, interpolated the name of the Company- M/s Commando Caterers Pvt. Limited, of which the complainant was the Director, on receipt Annexure C-6 and sales contract Annexure C-8, which act, in itself, amounted to deficiency, in rendering service, and adoption of unfair trade practice. It was further stated that till date, the said car could not be got registered, from the Registering and Licencing Authority concerned, in the name of the complainant, due to non-issuance of the correct title documents, in respect of the same (car), by Opposite Party No.1. It was further stated that even the Officials of the Bank/Opposite Party No.5, which financed the said car, were aware that the complainant had sold his earlier residential house, and was residing in Hotel J.W. Marriot, Sector 35-B, Chandigarh, alongwith his family. It was further stated that since the complainant did not have a true residential address, the Officials of Opposite Party No.5, mentioned his office address as SCO 491-492, Sector 35-C, Chandigarh, on the Credit Sanction Advice, Annexure C-4. It was further stated that since this fact was well within the knowledge of the Officials of Opposite Party No.1, initially, Performa Invoice was issued by it, in the name of the complainant, without mentioning any address therein.
3. It was further stated that, on 05.02.2012, at the time of delivery of the said car, it was, for the first time, pointed out by Opposite Party No.1, that the same (car) could not be delivered, in the absence of residential proof of the complainant. It was further stated that this fact was never earlier told to the complainant, by the Officials of Opposite Party No.1, and was deliberately concealed, in order to receive the price, aforesaid, from him (complainant), in respect of the car, in question. It was further stated that had such an objection, been raised by Opposite Party No.1, earlier to the issuance of Performa Invoice, or making of the payment aforesaid, in respect of the car, in question, the complainant, would not have gone in for purchase of the same, from it.
4. It was further stated that, thereafter, the Officials of Opposite Party No.1, misled the complainant, that he (complainant), being the Director of M/s Commando Caterers Pvt. Limited, could be delivered the said car, which could be registered at his office address. It was further stated that the Officials of Opposite Party No.1 told the complainant to provide a documentary proof, to prove that he was a Director of the said Company. It was further stated that the documents of the Registrar of Companies, which reflected the complainant, as a Director of the said Company, as also Pan Card, as address proof, were provided to Opposite Party No.1. It was further stated that, thereafter, the car was delivered to the complainant, alongwith its Temporary Certificate of Registration No.CH 58 T 0604.
5. It was further stated that Opposite Party No.1, instead of issuing the documents, in the name of the complainant, in respect of the said car, issued the same, in the name of the Company, aforesaid, of which he (complainant) was the Director. It was further stated that, perusal of various documents, issued in respect of the car, in question, revealed that the name of the Company was not mentioned, in the proper line of customer`s name, meaning thereby that the same had been incorporated/written later on, by the Officials of Opposite Party No.1. It was further stated that, when the complainant approached the concerned Registering and Licencing Authority/Opposite Party No.4, for registration of the car, in question, in his name, it did not entertain him, on the pretext that the documents, in respect of the same (car, in question), were issued, in the name of the Company, aforesaid, and not in his name.
6. It was further stated that the complainant, alongwith his father, approached Mr. Amit Gupta, Sales Representative of Opposite Party No.1, who apologized, for issuing the wrong title documents. It was further stated that by that time, the complainant had finalized the new residential house, but the representative of Opposite Party No.1, told that it would be a long and cumbersome procedure, to get the change of address done, on the said documents. The complainant was asked to provide his new residence proof, which he provided to Opposite Party No.1. It was further stated that even on the asking of the Official-Mr. Amit Gupta, of Opposite Party No.1, a rent agreement was got prepared between the complainant and the landlord-Mr. Mohinder Singh, in respect of House No.523, Sector 36-B, Chandigarh, and was handed over to him (Mr. Amit Gupta).
7. It was further stated that, thereafter, the car had a major break down, and was landed in the workshop of Opposite Party No.1. The same, after repairs, was handed over to the complainant. It was further stated that when the complainant asked for the correct title documents, in respect of the car, in question, he was told by the representative of Opposite Party No.1, that since the rent agreement, aforesaid, was not got registered, the same could not be considered, as a residence proof. The complainant was asked to provide other documents like passport, bank statement, BSNL landline connection etc. in his name, as a proof of residence. It was further stated that, in the meanwhile, the said car, again developed a major manufacturing defect. It was again landed, in the workshop of Opposite Party No.1, for replacement of the same (car), with a new one.
8. It was further stated that a Consumer Complaint bearing No.46 of 2012 titled as Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and others, was also filed in respect of the car, in question, in which this Commission, while holding the complainant, as a consumer, dismissed the same (Consumer Complaint), on merits, vide order dated 18.03.2013. It was further stated that, thereafter, the complainant approached Opposite Party No.1, for issuance of correct title documents, in respect of the car, in question, as also sent email Annexure C-15, in that regard. It was further stated that the car, in question, was still in the custody of Opposite Party No.1, and parked at its workshop at its risk. It was further stated that insurance of the said car had already expired on 04.02.2013, and the same could not be got renewed, in the absence of correct title documents, for registration of the same.
9. It was further stated that, on 28.03.2013, the complainant sent an email, as also a letter of the even date, through speed post, to Opposite Party No.1, through Mr.Deepak Jain, Director, Mr.Vijay Rana, Manager Sales, and Mr.Amit Gupta, Sales Representative, with a request to supply the required correct original title documents, in respect of the car, in question, for renewal of its insurance, as also registration of the same. In reply, the complainant received an email from Mr. Deepak Jain, Director of Opposite Party No.1, wherein, it was stated that he (complainant) was not the purchaser of the said car, and the same had been sold to M/s Commando Caterers Pvt. Limited. It was further stated that the insurance of the said car, could not be renewed for want of supply of correct title documents, and non- registration of the same (car). It was further stated that the aforesaid acts of Opposite Party No.1, with regard to the issuance of wrong title documents, and, thereafter, denying the same, were also brought to the notice of Opposite Party No.5, vide email dated 29.03.2013 Annexure C-18. Through the said email, the complainant sought various documents/information, from Opposite Party No.5, with regard to the sale of car, in question, in his favour. In response to the said email, Opposite Party No.5, furnished the required documents, certifying that the owner of the car was Mr. Gursimran Singh Walia, complainant.
10. It was further stated that on the basis of the said certificate/document, furnished by Opposite Party No.5, the complainant approached Opposite Party No.4, for registration of his car. Letter dated 03.04.2013, under the Right to Information Act, 2005, was sent by the complainant, to Opposite Party No.4, wherein the complete facts were mentioned by him. Vide the letter aforesaid, under the Right to Information Act, 2005, the complainant also sought information, with regard to the necessary steps to be taken, the documents required, in respect of residence proof, and other formalities, in order to get registration of the said car done, in his name. In response to the said letter, Opposite Party No.4, intimated the complainant, that the Temporary Certificate of Registration No.CH 58 T 0604 and Sale Certificate (Form No.21), were incorrect and wrongly issued by Opposite Party No.1, at the address of the SCO, in the name of the Company and, hence the car, in question, could not be registered, in his (complainant) name. It was further stated that by issuing the wrong documents of title, in respect of the car, in question, Opposite Party No.1, had violated the provisions of the Motor Vehicles Act, 1988, and the Rules framed thereunder. It was further stated that, initially, by issuing the Performa Invoice, in respect of the car, in question, in the name of the complainant, and later on, after receiving the amount, aforesaid, issuing the wrong title documents, in the name of the Company, aforesaid, which had a separate legal entity, than him (complainant), Opposite Party No.1, was deficient, in rendering service, as also indulged into unfair trade practice. It was further stated that the complainant approached Opposite Party No.1, through every possible means with a request, to issue the correct title documents, in his name, but to no avail. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for directing the Opposite Parties, to issue the correct title documents, in the name of the complainant, in respect of the car, in question, alongwith corrected new Transfer Registration Certificate, or in the alternative, to refund the entire amount paid by him, towards the price thereof, alongwith interest @18% P.A., from 03.02.2012, till realization; pay a sum of Rs.1,14,147/-, on account of increased road tax; compensation, to the tune of Rs.7,00,000/-, towards mental agony, physical harassment, punitive damages, and adoption of unfair trade practice; and Rs.33,000/- as cost of litigation.
11. Opposite Party No.1, in its written version, pleaded that the complainant had not approached this Commission, with clean hands, but, on the other hand, had distorted the correct and factual position, with utmost impunity, and, as such, the complaint was liable to be dismissed, at the very threshold, for suppression of material facts. It was further pleaded that the present complaint was barred by the principles of res-judicata, as a similar Consumer Complaint bearing No.46 of 2012 titled as Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and others, on the same cause of action, was filed by the complainant, on 07.09.2012, before this Commission, wherein a similar stand was taken by him, that he had not been issued the correct title documents, and the vehicle could not be got registered, in his name. It was stated that the said complaint was dismissed, on merits, by this Commission, on 18.03.2013. It was further stated that First Appeal No.321 of 2013 titled as Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Limited and others, against the order dated 18.03.2013, passed in the earlier complaint, has already been filed, by the complainant, in the National Consumer Disputes Redressal Commission, New Delhi, which is still pending. It was further stated that the instant complaint was also liable to be dismissed, as any adjudication of the subject matter, contained therein shall amount to recall/review of the order dated 18.03.2013, passed by this Commission, which was not permissible under the provisions of the Consumer Protection Act, 1986 (hereinafter to be referred as the Act only). It was further stated that the complainant is not a consumer, as defined under Section 2(1)(d) of Act, as neither there was sale of any vehicle, to him, nor any privity of contract came into being, between him and Opposite Party No.1.
12. It was further stated that the vehicle, in question, was purchased by M/s Commando Caterers Pvt. Limited, which is a juristic person, a Company, incorporated under the Companies Act 1956, having an independent commercial and business entity, with independent shareholders and Directors. It was further stated that the complainant did not intentionally attach copy of the invoice of the vehicle, issued by Opposite Party No.1, and, thus, tried to mislead this Commission. It was further stated that, on 02.02.2012, the complainant contacted and reported Opposite Party No.1, that he was one of the Directors of M/s Commando Caterers Pvt. Limited, and that the said Company, intended to purchase a new Audi A6 2.0 TDI car (Colour Phanton Black with brown interior), for its business purposes. It was further stated that, the complainant requested Opposite Party No.1, to issue Performa Invoice, in his name, but further represented that the said car, shall be purchased by the Company aforesaid. It was further stated that, on the request of the complainant, Performa Invoice dated 02.02.2012, in respect of Audi A6 2.0 TDI car (Colour Phanton Black with brown interior), was prepared by Opposite Party No.1, which had been annexed, by the complainant, as Annexure C-1. It was further stated that the reading of Performa Invoice reveals that the price of the vehicle, had been quoted as Rs.37,70,000/-, including sales tax, but it was specifically mentioned therein, that the prices prevailing at the time of delivery, shall be applicable, and the same was only an estimated landed cost. It was further stated that the said Performa Invoice did not guarantee the availability of the vehicle, unless it was confirmed by the dealer, and a sales contract was generated duly accepted, and signed by the customer.
13. It was further stated that, after receiving the Performa Invoice dated 02.02.2012, M/s Commando Caterers Private Ltd., through its Director-Gursimran Singh Walia, entered into contract with Opposite Party No.1. According to the sales contract, the ex-showroom price of the car, in question, had been agreed to at Rs.37,70,000/-, T/R and logistic charges to the tune of Rs.1,000/-. The cost of multimedia was agreed to be Rs.1,24,000/-. It was further stated that, thus, the total price of the car alongwith accessories had been agreed at Rs.38,95,000/-. It was further stated that, as per the promotional scheme, Opposite Party No.1, offered discount of Rs.2,25,000/-, and also agreed to provide exhaust piper finishers, free-of-cost, and the net amount, payable came to be Rs.36,70,000/-, in the name of M/s Commando Caterers Private Ltd. A copy of the sales contract dated 03.02.2012, which was annexed with the reply, in the earlier complaint, is Annexure R-1. It was further stated that the vehicle, in question was sold by Opposite Party No.1, to M/s Commando Caterers Pvt.
Limited, vide retail invoice dated 05.02.2012, for a sum of Rs.36,69,000/-. It was further stated that Pan Number of the Company was also mentioned, in the said retail invoice. It was further stated that, on the request of a Director of M/s Commando Caterers Private Ltd., it was also mentioned, on the said retail invoice, that the car had been hypothecated, with Indian Overseas Bank/Opposite Party No.5. It was further stated that, on the request of the complainant, the vehicle was brought by Opposite Party No.1, from Ludhiana to Chandigarh.
It was further stated that the delivery of car was taken by a representative of the Company aforesaid. The complainant himself had duly signed the delivery note on 05.02.2012, and confirmed, in writing, that M/s Commando Caterers Pvt. Limited, had taken the delivery of new vehicle, in good condition and to the best of its satisfaction, together with all the relevant documents, and tools, as per manufacturers specifications, at the showroom of Opposite Party No.1. It was further stated that copies of the request letter dated 03.02.2012 and delivery note dated 05.02.2012 are Annexures R-4 and R-5, which were attached with the earlier complaint.
14. It was further stated that since the car was not sold to the complainant, in his individual capacity, but to M/s Commando Caterers Pvt. Limited, he (complainant) had no locus-standi, to file the complaint. It was further stated that Opposite Party No.1 also issued Temporary Certificate of Registration, dated 05.02.2012, for the said vehicle, as CH 58 (T) 0604. It was further stated that Opposite Party No.1, also issued Form No.22, i.e. Initial Certificate of Compliance, with Pollution standards, Safety standards of Components and Road Worthiness, certifying that the said vehicle, complied with the provisions of the Motor Vehicles Act, 1988, and the Rules framed thereunder, including various mass emission norms. It was further stated that after the purchase of the said car, the said Company also requested to supply various accessories, to be fitted therein, which were duly supplied and fitted. It was further stated that Opposite Party No.1, also issued Invoice No.PPS/11302 dated 14.02.2012, in the sum of Rs.1,29,999.99Ps., for various accessories. It was further stated that M/s Commando Caterers Pvt.
Limited, purchased the car, on 05.02.2012, yet, till 07.08.2012, it was not got registered, from the Registering Authority, despite all the documents, having been provided by Opposite Party No.1. It was further stated that the car was required to be registered, within 30 days, from the date of purchase of the same. It was further stated that all the documents relevant to the car, had correctly been issued, in the name of M/s Commando Caterers Pvt. Limited, as it purchased the same. It was further stated that all the allegations, leveled against Mr. Amit Gupta, who was earlier an employee of Opposite Party No.1, and had since left its job, were totally false and, as such, were denied. It was also denied that Mr. Amit Gupta apologized, for issuing the wrong documents, and told the representative of M/s Commando Caterers Pvt. Limited, to start the process for correction of documents, at the changed address of the complainant. It was also denied that the complainant handed over the complete documents to the said representative, and he suggested for the preparation of rent agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments were denied, being wrong.
15. Opposite Party No.4, in its written version, pleaded that no relief had been claimed, against it. It was further pleaded that Opposite Party No.4, could register the vehicle, only after all the relevant documents were delivered to it, by the owner thereof. It was admitted that, on seeking information, under the Right to Information Act, 2005, by the complainant, the same was supplied to him, vide Annexure C-20. It was stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice. The remaining averments were denied, being wrong.
16. Opposite Party No.5, in its written version, pleaded that no cause of action, whatsoever, arose to the complainant, against it. It was further pleaded that the complaint was bad for non-joinder of necessary parties, as loan was taken by three members, jointly, i.e. by Gursimran Singh Walia, Kamaljit Singh Walia and Lakhwir Kaur Walia, from the Indian Overseas Bank, for the purpose of purchase of car, in question, whereas, the complaint, had been filed by Gursimran Singh Walia only. It was further stated that, at the time of taking the loan, the car, in question, was hypothecated, in favour of Opposite Party No.5, vide Agreement Annexure OP-5/1. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.5, nor it indulged into unfair trade practice. The remaining averments were denied, being wrong.
17. The Counsel for Opposite Party No.1, however, made a statement on 26.07.2013 that Opposite Party No.3 adopted the written version, filed by Opposite Party No.1.
18. The name of Opposite Party No.2 was deleted from the array of the Opposite Parties, vide statement dated 09.07.2013, made by Counsel for the complainant.
19. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
20. Opposite Party No.1, in support of its case, submitted the affidavit of Mr. Deepak Jain, its Director, by way of evidence, alongwith which, a number of documents were attached.
21. Opposite Party No.4, in support of its case, submitted the affidavit of Mahavir Kaushik, HCS, its Registering and Licencing Authority, by way of evidence.
22. Opposite Party No.5, in support of its case, submitted the affidavit of Shri Brij Bhushan Aggarwal, its Chief Manager, by way of evidence.
23. We have heard the Counsel for the complainant, Opposite Parties No.1, 3 to 5, and, have gone through the evidence and record of the case, as also the written submissions, carefully.
24. The Counsel for the complainant submitted that, at the time of filing the earlier Consumer Complaint bearing No.46 of 2012 titled as Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and others, no cause of action had arisen to the complainant, for seeking the relief, that Opposite Party No.1, be directed to issue the correct title documents, in respect of the vehicle, in question, purchased by him, from it, on 05.02.2012. He further submitted that, in the earlier Consumer Complaint, only the relief of replacement of car, was sought, on the ground of manufacturing defects therein. He further submitted that refusal was made by Opposite Parties No.1 and 2, to issue the correct title documents of the car, in favour of the complainant, after the decision of the earlier complaint, on 18.03.2013. He further submitted that, thus, the cause of action arose to the complainant, for filing the instant complaint, directing Opposite Party No.1, to issue correct title documents of the car, in question, in his favour, after the decision of the earlier Consumer Complaint. He further submitted that, as such, the instant complaint was maintainable, as it is based on a completely distinct cause of action. He further submitted that by not issuing the correct title documents, in favour of the complainant, Opposite Party No.1 was deficient, in rendering service. He further submitted that the vehicle has been lying, in the garage of Opposite Party No.1, since 07.08.2012 and, in the absence of registration thereof, for want of issuance of correct title documents, it could not be plied on the road. He further submitted that the decision, in the earlier Consumer Complaint, did not have any impact, on the merits of the instant case.
25. On the other hand, the Counsel for Opposite Party No.1, submitted that in the earlier Consumer Complaint bearing No.46 of 2012 titled as Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and others, in paragraph number 9, it was, in clear-cut terms, stated by the complainant, that since Opposite Parties (No.1 and 2) failed to issue the correct title documents, as per the purchase order, Performa invoice etc., the vehicle could not be got registered, with the concerned Authorities. He further submitted that the complainant also sought relief, in the earlier Consumer Complaint, for replacement of the car, or refund the price thereof, to the tune of Rs.37,70,000/-, alongwith compensation and litigation costs. He further submitted that, in the earlier Consumer Complaint also, the parties led evidence, and, ultimately, the same was dismissed, on merits, by this Commission, on 18.03.2013, after affording full hearing to the Counsel for the parties. He further submitted that, in the instant complaint, the same relief, with regard to issuance of correct title documents, in favour of the complainant, alongwith other reliefs of refund of the price of car, and compensation, for mental agony and physical harassment, adoption of unfair trade practice, including punitive damages, and cost of litigation, have been sought. He further submitted that since the earlier Consumer Complaint bearing No.46 of 2012 titled as Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and others, on the same cause of action, was entertained, inquired into and dismissed, on merits, the instant complaint, on the same cause of action, was not maintainable, as it is barred by the principles of res-judicata. He further submitted that the car, in question, was purchased by M/s Commando Caterers Pvt. Limited, and not by the complainant, in his individual capacity, who is only the Director thereof. He further submitted that there was, therefore, no deficiency, in rendering service, on the part of Opposite Party No.1.
26. The core question, that arises for consideration, is, as to whether, the instant complaint is not maintainable, for the reason, that the earlier Consumer Complaint bearing No.46 of 2012 titled as Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and others, having been filed by the complainant, almost on the same cause of action, was dismissed, on merits, appeal against which is already pending, on behalf of the complainant/appellant, in the National Consumer Disputes Redressal Commission, New Delhi. For determination of this question, the facts of the earlier Consumer Complaint, and the instant Complaint are required to be taken into consideration, alongwith the reliefs sought for. As stated above, earlier, the complainant filed the Consumer Complaint bearing No.46 of 2012 titled as Sh.Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Ltd. and others. In paragraph number 9 of the earlier Consumer Complaint, it was, in clear-cut terms, stated by the complainant that since Opposite Parties (No.1 and 2) failed to issue the correct title documents, as per the purchase order, Performa invoice etc., the vehicle could not be got registered, with the concerned Authorities. It means cause of action arose to the complainant, seeking direction to Opposite Parties No.1 and 2, in that case, for the issuance of correct title documents of the car he purchased. The complainant, however, sought reliefs of replacement of the car, with a brand new defect-free of the same model, colour, specifications etc. or in the alternative to refund Rs.37,70,000/- being its total price plus accessories, alongwith interest @12% per annum, alongwith compensation, towards mental agony and physical harassment, and cost of litigation. If he did not seek specific relief regarding the issuance of correct tile documents, in the prayer Clause, he deemed to have abandoned or relinquished the claim, in respect of a part of cause of action, which had already accrued in his favour. That complaint was finally heard, and decided vide order dated 18.03.2013, Annexure C-14. Against the said order dated 18.03.2013, passed in the earlier Consumer Complaint, the complainant has already filed First Appeal No.321 of 2013 titled as Gursimran Singh Walia Vs. Jaycee Automobiles Pvt. Limited and others, in the National Consumer Disputes Redressal Commission, New Delhi, which is pending decision. In the instant complaint, the complainant sought relief to direct Opposite Party No.1, to issue the correct title documents, in his name, in respect of the car, in question, alongwith corrected new Transfer Registration Certificate, or in the alternative, to refund the entire amount paid by him, towards the price thereof, alongwith interest @18% P.A., from 03.02.2012, till realization; pay a sum of Rs.1,14,147/-, on account of increased road tax; compensation, to the tune of Rs.7,00,000/-, towards mental agony, physical harassment, punitive damages, and adoption of unfair trade practice; and Rs.33,000/- as cost of litigation. Perusal of the contents of the earlier and the instant Complaints, clearly goes to show that reliefs sought for, are almost identical, except that the relief of issuance of correct title documents, was not sought, in the earlier complaint though cause of action, in that regard, had arisen to the complainant at that time. The earlier complaint was finally heard and decided on merits. Since the complainant, intentionally abandoned and relinquished the claim, in respect of a cause of action, which had arisen to him, at the time of filing the earlier complaint, he could not claim such a relief in the instant complaint. Even otherwise, it is evident from Annexure-1, the sales contract, that it was issued, in the name of M/s Commando Caterers Pvt. Limited, through Gursimran Singh Walia, Annexure-2, the receipt and Annexure-3, the retail invoice are also in the name of M/s Commando Caterers Pvt. Limited. Annexure -4 is the letter, written by the complainant, to the Vice President, Audi Chandigarh, stating therein, that he was authorized by the Company, to get the delivery of the said Audi car. Annexure-5 is the delivery note, in the name of M/s Commando Caterers Pvt. Limited. Annexure-6 is the Motor Insurance Cover Note-Private car, in the name of M/s Commando Caterers Pvt. Limited. Annexure-8 is the Temporary Certificate of Registration, in the name of M/s Commando Caterers Pvt. Limited. Annexure A10, is a copy of the gate pass, in the name of M/s Commando Caterers Pvt. Limited. Annexure-12 is the invoice, in the name of M/s Commando Caterers Pvt. Limited. Annexure-13 is another invoice, in the name of M/s Commando Caterers Pvt. Limited, and Annexure A-14 is the satisfaction note, in the name of M/s Commando Caterers Pvt. Limited. Endorsement was also made on Annexure-7, by the complainant, that he had received all the documents, relating to the vehicle. At the time of receipt of the documents, the complainant very well knew that the same were issued, in the name of M/s Commando Caterers Pvt. Limited. In these circumstances, the principles contained in Section 11 and Order II Rule 2 of the Civil Procedure Code, shall be applicable to the instant Complaint. It is, no doubt, true that the strict provisions of Section 11 of the Civil Procedure Code are not applicable, to the complaints, before the Consumer Foras, yet, the principles analogous to res-judicata and the provisions of Order II, Rule 2 Sub-Rule-2 of the Civil Procedure Code, could be applied, as those are based on public policy. The issues involved, in the instant complaint, were directly and substantially in issue, in the earlier complaint also. The instant complaint, is, thus, not maintainable, being barred by the principles of res-judicata, and Order II Rule 2 Sub Rule 2 of the Code of Civil Procedure, referred to above.
27. The Hon`ble Supreme Court has repeatedly held that if a plaintiff omits to sue, in respect of or intentionally relinquishes any portion of his claim, he shall not, afterwards, sue in respect of the portion, so omitted or relinquished. As stated above, since, in the earlier complaint, the complainant had intentionally abandoned and relinquished the claim, by not seeking specific relief, in the prayer clause, that correct documents of title of the car be issued, in his favour, though he made a mention in that regard therein. Since the complainant abandoned and relinquished the claim, with regard to the issuance of correct title documents, in the earlier complaint, he cannot be permitted to claim that relief, in the instant complaint. The Hon`ble Supreme Court of India, in Kunjan Nair Sivaraman Nair vs Narayanan Nair And Ors. 2004 (3) SCC 277, held as under:-
The doctrine of res-judicata differs from the principle underlying Order II Rule 2 in that the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order II concerns framing of a suit and requires that the plaintiffs shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for such relief he shall not be afterwards be permitted to sue for relief so omitted.
28. Similar principle of law, was laid down, in M. Nagabhushana Vs. State of Karnataka and Others, 2012(1) RCR (Civil) 807 (SC). The National Consumer Disputes Redressal Commission, New Delhi, in Revision Petition No.1767 of 2006, titled as Maruti Udyog Limited Vs. K.V. Krishnam Raju and Ors., decided on 08.10.2010 also held that the principles analogous to res-judicata and the provisions of Order II, Rule 2 Sub-Rule 2 of the Civil Procedure Code, could certainly be applied to the complaints, filed before the Consumer Foras, as those are based on public policy. Since, it is held that the complaint is not maintainable, as it is barred by the principles analogous to res-judicata and the provisions of Order II, Rule 2 Sub-Rule 2 of the Civil Procedure Code, no further investigation, on merits, of the case, is legally permissible. The complaint is, thus, liable to be dismissed.
29. For the reasons recorded above, the complaint, must fail, and the same is dismissed, with costs, quantified at Rs.10,000/-.
30. Certified Copies of this order be sent to the parties, free of charge.
31. The file be consigned to Record Room, after completion Pronounced.
November 28, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Rg.