Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 227 (JK)

Amit Bakshi v. Fiat India Pvt. Ltd.

2010-04-28

B.L.Saraf, G.D.Sharma

body2010
Per Justice G.D. Sharma 1. The complainant namely, Mr. Amit Bakshi filed this complaint on 09.07.2004 with the allegations that he purchased Palio 1.9, ELX, Chassis No. 08051474, Engine No. 0059601 H, grey Colour for fixed price of Rs 4,94,584/-. The complainant has stated that out of the said sale price, an amount of Rs. 1,24,584/- was paid as booking amount in cash to OP no.2 and the balance price amount in the sum of Rs. 3,70,000/- was paid at the time of delivery through J&K Bank Ltd. Shalamar , Jammu. It is further stated that vehicle was delivered to him but unfortunately the sale letter and Form 22 were not given to the complainant by OP no.2 at the time of delivery of the vehicle. The vehicle was delivered on 05.09.2003 and despite repeated requests the above said documents have not been given to the complainant. It is also alleged that registered notice dated 25.05.2004 was served upon the OPs wherein it was reiterated that despite repeated visits being made, the above stated two required documents were not delivered. The car in question could not be made road worthy because of the lack of the above stated two requisite documents and in their absence the vehicle could not be registered with the competent authority (RTO, Jammu). It is also stated that an amount of Rs. 3,70,000/- was paid from J&K Bank Ltd. Shalamar, Jammu. In para 6 of the complaint it is alleged that recurring loss in business is caused. Interest had been paid to the Financial Institution. The complainant had been facing harassment and humiliation. Estimated compensation in the amount of Rs. 10 lacs is claimed. The reliefs prayed are:- (i) Direction to the OPs to issue Form 22 as well as Sale letter of the vehicle. (ii) Compensation in the amount of Rupees ten lacs. 2. In the written version, OP no. l has stated that he is the manufacturer of the car in question and has no direct knowledge of the business dealings entered by the complainant with OP no.2. That OP no.2 is not their agent but the relation of OP no. l and OP no.2 is that of a principal to principal and to that effect an agreement had been entered into. That OP no.2 is not their agent but the relation of OP no. l and OP no.2 is that of a principal to principal and to that effect an agreement had been entered into. Clause 1.4 of the agreement has been reproduced which runs:- It is hereby expressly agreed and acknowledged between the parties hereto that the dealer is a legal entity separate and distinct from the Company in all legal, financial and economic respects and shall carry on the dealer business referred to in this agreement under its own name and on its own account and at its sole risk. The Dealer is in no way the agent or representative of the company and shall not describe or represent itself as such. The dealer has no right or authority to bind the company under any contract or by any representation whatsoever, whether express or implied with any third parties or to assume any obligation express or implied in relation to any third parties on behalf of the company. That OP no.2 always gives delivery of the vehicle after making it road worthy. That the complainant has not made any allegation regarding the inherent manufacturing defect or any deficiency in quality, so, no liability of OP no. l arises. It is only a problem with regard to the sale and purchase of the car in question and relates to the alleged business dealing of OP no.2 with the complainant. 3. OP no.2 in the written version has admitted the receipt of payments of Rs. 3,70,000/- from the complainant but has set up a case of fraud and forgery on the part of the complainant. He has alleged that complainant with malafide intention has shown the price of the car in question at Rs. 4,94,584/- whereas, the actual price is only of Rs. 4,68,009/-. That on the assurance given by the complainant that he would later on make the remaining payment of Rs. 98,009/-, the delivery was made, but he resiled from his promise. That annexure-B colly attached with the complaint is forged and fabricated document. According to him. the complainant in connivance with the concerned Financial Bank has fabricated the above said documents. That the dispute is of civil nature and requires to be tried by the civil court because the question of forgery has to be determined. 4. That annexure-B colly attached with the complaint is forged and fabricated document. According to him. the complainant in connivance with the concerned Financial Bank has fabricated the above said documents. That the dispute is of civil nature and requires to be tried by the civil court because the question of forgery has to be determined. 4. In support of the complaint, the complainant has filed his affidavit and has also appeared for his cross examination. On behalf of OP no. l, Mr. Ajay Walinbe Company Secretary has filed his affidavit. OP no.2 had made application for sending annexures-B colly for expert examination which was opposed by the complainant by filing objections on 27.05.2005. The Commission had directed him to appear on the next date of hearing but he failed to appear and ultimately vide order dated 06.12.2006, he was set exparte and his right to cross examine the complainant was closed. The complainant in his affidavit has supported the allegations made in the complaint and further stated that on 23.07.2003, OP no.2 issued him a letter for the replacement of battery from Exide India. He has placed copy of that letter as annexure `A'. In cross examination made by the counsel of OP no. l, he has reiterated his stand that relationship between OP no. l and OP no.2 is that of a representative of the company (manufacturers). He has admitted that no amount of sale price was paid to OP no. l. Ajay Walinbe in his affidavit has supported averments made in the written version by OP no. l and reiterated that there is relationship of principal to principal between OP no. l and OP no.2. He has reiterated Clause 1.4 which has already been reproduced in the written version. 5. Heard the arguments. Mr. P.N.Raina, the learned counsel appearing for the complainant has reiterated the grounds of the complaint and further stated that any bilateral agreement, as is being alleged by OP no. l that of a principal to principal, would not bind the complainant because he is not a party to it. The complainant has purchased Palio car which is manufactured by OP no. l and annexures-B colly which established the sale of the said vehicle from OP no.2 uses the manufacturing name of Fiat Palio. In cross examination of the complainant, OP no. The complainant has purchased Palio car which is manufactured by OP no. l and annexures-B colly which established the sale of the said vehicle from OP no.2 uses the manufacturing name of Fiat Palio. In cross examination of the complainant, OP no. l could only elicit the fact that there exists relationship of principal to principal between OP no. l and OP no.2; and as such the complainant took OP no.2 as representative of OP no. l. Complainant was attracted to purchase Fiat Palio from OP no.2 by making the payment of the price, because the vehicle was of the make of Fiat India Pvt. Ltd. (OP no. l). The purpose regarding the purchase of a vehicle as contemplated under the J&K Consumer Protection Act is not achieved till it is made useable i.e. road-worthy. The vehicle in question which was purchased was not road worthy because of the non supply of the requisite documents delineated in the complaint and after making the price consideration the vehicle has remained in a stationary position. In this way; the complainant has not got any service for its use. The service component of a motor vehicle would not stop at a point that there exists some manufacturing defect in it but it would extend to the limit till it is used by the Consumer. No defence can be taken by the manufacturer i.e. OP no. l that in case some requisite documents of the purchased vehicle are not delivered by an agent, the principal is absolved of the liability. Under the Consumer Protection Act, a manufacturer is always liable. The defence taken by OP no. l is to the effect that, the present sale of car in question is 2nd sale because OP no. l had by creating the alleged relationship of a principal to principal with OP no.2 had absolved himself of any legal liability because sale price was accepted by OP no.2. That under the Consumer Protection Act, the relation-ship of a manufacturer and a consumer of that article is inseparable. 6. Mr. Arvind Khajuria advocate for OP no. l has reiterated the defence taken in the written version and laid stress that in this case, the motor vehicle namely, Fiat Palio had been sold by OP no. l to OP no.2 and he was not their agent but the relationship was that of a principal to principal. 6. Mr. Arvind Khajuria advocate for OP no. l has reiterated the defence taken in the written version and laid stress that in this case, the motor vehicle namely, Fiat Palio had been sold by OP no. l to OP no.2 and he was not their agent but the relationship was that of a principal to principal. He has referred to the contents of Clause 1.4 of the agreement in support of the above said contention. That OP no. l came to know about the alleged deficiency after the receipt of summons. He filed the written version where in para 3 it was pleaded: -- "as per the said dealer agreement the OP no. l sells an agreed number of cars to OP no.2 on a principal to principal basis, by virtue of which the dealer then sells the cars independently to the consumer, subject however, on terms and conditions of the dealer agreement. The dealer ensures that the vehicle that is sold to its customer is in a road worthy condition and is fit and fine in all respects". The company secretary of OP no. l namely, Ajay Walinbe has deposed on affidavit about the above said pleas taken in the written version and his evidence has not been in any manner shaken by the complainant. That OP no.2 who has filed the written version has not denied the existence of relationship of principal to principal but only plea taken in defence is that complainant has produced forged documents and has not paid the remaining price of Rs. 98,009/- on account of balance of sale price. In support of his contentions, he has cited the case of Maruti Udyog Ltd. v. Nagandar Prashad Sinha and Ors. (Revision Petition No. 674 of 2004 decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi) copy whereof is placed on the record of the case. We have considered the respective contentions of the counsel for the parties and perused the record. The facts of the case have established that OP no.2 has with-held Sale letter and Form no.22 from the date of delivery of the car in question to the complainant which was 05.09.2003. The only defence taken by him to resist the claim was that the balance amount of Rs. 98,009/-was not paid and that proforma for Fiat Car annexure-B colly dated 12.09.2003 is a forged document. The only defence taken by him to resist the claim was that the balance amount of Rs. 98,009/-was not paid and that proforma for Fiat Car annexure-B colly dated 12.09.2003 is a forged document. According to him, the price has also been inflated. After taking the plea of forgery OP no.2 absented. Under the Consumer Protection Act the definition of a Consumer encompasses in its ambit :- "A person who (hires or avails of) any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person." From the perusal of the definition of the "consumer" it transpires that OP no.2 had to provide the service of the purchased car in question after its delivery even if alleged basis of deficient price amount of Rs. 98,009/-. That question of fact was denied by the complainant and OP no.2 has failed to substantiate the plea by leading any evidence. From the above stated facts under law OP no.2 could not withhold the supply of Sale letter and Form no.22 from the complainant. He had the other remedy available to him to recover the balance amount if any. It is thus a proved case of deficiency in rendering service to a bonafide consumer and actionable under Consumer Protection Act. On the basis of the evidence produced on the record, the relation of principal to principal is established because the pleas taken by the OP no. l has not been rebutted by OP no.2. Since the controversy is not regarding the inherent manufacturing defect so there is no need for the discussion as advance by the learned counsel of the complainant that car was purchased because sit was manufactured by OP no. l. In this view of the matter, the law cited at the bar by Mr. Arvind Khajuria applies on all fours to the point involved in the present case. In view of the above stated facts and circumstances, we allow the complaint and direct OP2 to supply Sale letter and Form no. l. In this view of the matter, the law cited at the bar by Mr. Arvind Khajuria applies on all fours to the point involved in the present case. In view of the above stated facts and circumstances, we allow the complaint and direct OP2 to supply Sale letter and Form no. 22 to the complainant within a period of one month from today. The complainant is also found entitled to compensation in the sum of Rs. One lac from OP no.2 for the denial of the service. Litigation expenses are awarded in favour of the complainant in the sum of Rs. 6,000/-. In case OP no.2 fails to supply Form no. 22 and Sale letter within the above stated period then he would be liable to pay the price of the car amounting to Rs. 3,70,000/- alongwith interest @ 7% p.a and in that event the complainant shall deliver the car in question to OP no.2. The is consigned to records.