ORDER
1. (a) This Complaint is filed on 10/11/2008 under section 12 of the Consumer Protection Act, 1986. The Complaint in brief, is as hereunder. The Complainant had booked a Car (Chevrolet Spark LS) with the 2nd Opposite Party by paying a sum of Rs.25,000/-.
Though it was promised that the vehicle so booked would be delivered within four weeks, it was delivered subsequently after lapse of about four months from the date of booking that to as a result of the intervention of the husband of the Complainant who infact had to gift to that vehicle to the Complainant on their marriage anniversary. After quite some time, that vehicle bearing Registration No.KA-01-2342 was taken to the 2nd Opposite Party for servicing. On the same day evening after servicing, it was delivered to the Complainant. After going home, the Complainant noticed that the wheel caps of that vehicle were damaged. Immediately it was brought to the notice of the 2nd Opposite Party. The 2nd Opposite Party did not bother to verify and replace those damaged/scratched wheel caps. The husband of the Complainant gave a written Complaint to the Manager of the 2nd Opposite Party. Having realized the gravity of the situation, he agreed to replace the damaged caps. However, only one wheel cap was replaced. He told that replacement of the other wheel caps would be considered after the receipt of necessary information from the manufacturing Company of that vehicle namely, the 1st Opposite Party.
Only the left front wheel cap was replaced and the rear left side wheel cap was not replaced inspite of requests. In the circumstances, the above conduct of the Opposite Parties amounts to deficiency of service and on account of the same, the Complainant has been put to sufferance and loss. Accordingly, this Complaint is necessitated to direct the Opposite Parties to replace the damaged rear left side wheel cap of the vehicle in question with a brand new one which is free from any defect and to compensate the Complainant in a sum of Rs.50,000/- for the agony and sufferance, she had to undergo along with the cost of the litigation.
(b) Along with the Complaint, the Complainant has chosen to produce xerox copies of three documents marking them at Annexures A to C.
2.(a) The Opposite Parties were called upon to produce their Version of the case. The 1st Opposite Party have entered appearance through Counsel and produced their Version of the case. The 2nd Opposite Party inspite of opportunity, failed to produce their Version of the case. The defence of the 1st Opposite Party, as per their Version which is made available on 24/01/2009 in brief, is as hereunder. The 1st Opposite Party is a Company incorporated under the provisions of the Companies Act 1956. Without ascertaining the factual position, the Complainant has chosen to file this Complaint against this Opposite Party. The Complainant is not a Consumer within the scope and ambit of the Consumer Protection Act, 1986. The Sale Invoice stands in the name of R. Balaji and not in the name of the Complainant. The Complainant is not authorized by that Balaji to file this Complaint against the Opposite Parties. The allegation that the 1st Opposite Party remained deficient in rendering services to the Complainant is ill-founded. The relationship between the 1st Opposite Party and the 2nd Opposite Party is on principal to principal basis. The 2nd Opposite Party is not an agent of the 1st Opposite Party.
Sale of a vehicle can be either direct or through Dealer of the manufacturer. In the latter case, the vehicle is infact sold by the manufacturer to the Dealer and the Dealer in turn, sells the same to the Customer. There is no involvement whatsoever of this Opposite Party in that case. The allegation of deficiency of service as against this Opposite Party is denied since that allegation is a false one. The Complainant having taken delivery of the vehicle on 08/01/2008 without any dissenting note, cannot make hue and cry. There can be no cause of action against this Opposite Party for the Complainant. This very Complaint as against this Opposite Party is a misconceived one. In the circumstances, the Complainant is not entitled for any relief against this Opposite Party and this Complaint has to be dismissed with the cost of this Opposite Party.
(b) As already stated, the 2nd Opposite Party has chosen to remain absent in this case without any Version. 3. Since a consumer dispute arose, the parties were called upon to produce their evidence by way of affidavits and documents. Accordingly, the Complainant has chosen to produce her affidavit on 16/02/2009. For the 1st Opposite Party, one Yudhvir Singh S/o R.S. Dahiya has sworn to an affidavit which is made available in evidence on 07/03/2009. A list with one document is also made available by way of evidence by the 1st Opposite Party. As already stated, the 2nd Opposite Party this case have neither pleading, nor evidence in this proceeding. At the end, this Forum heard on merits. 4. In the circumstances, the following points do arise for our consideration and decision in this Proceeding and they are;
(i) Whether the Complainant is competent to invoke the provisions of Consumer Protection Act, 1986?
(ii) If so, whether the alleged deficiency of service by the Opposite Parties is established by the Complainant?
(iii) Whether the Complainant is entitled for any relief in her favour and against the Opposite Parties in this Proceeding?
(iii) What Order? 5. Our Findings to these points are as hereunder:
i) Yes
ii) Yes
iii) Yes
iv) As per the operative portion of the Order here below. 6. We shall strengthen our findings on the following:
R E A S O N S
POINT NO.1 (a):- The Complainant according to the 1st Opposite Party, cannot be a Consumer within the purview of the Consumer Protection Act, 1986. To contend so, reliance is placed upon the receipt issued by the 2nd Opposite Party regarding booking of the vehicle in question. The copy of that receipt dt.19/10/2007 is Annexure-A made available by the Complainant. That receipt reveals that the 2nd Opposite Party had received a sum of Rs.25,000/- from R. Balaji towards the purchase of the vehicle in question. In the context, it is contended that though the amount is so paid by that Balaji to the 2nd Opposite Party, that Balaji is none other than the husband of the Complainant and the booked vehicle was meant to be gifted to the Complainant in their marriage anniversary, Therefore, there is reason to infer that the Complainant is the “beneficiary” under the provisions of the Consumer Protection Act, 1986.
A beneficiary is competent to air his/her grievance in respect of the goods. That apart, the Complainant has made available a xerox copy of the Registration Certificate of the said vehicle and it reveals that the Complainant is the Registered Owner of that vehicle and that it was so registered as long back 09/01/2008 itself and that the said registration was valid from that date till 08/01/2023. It is further revealed in the said registration Certificate that the said vehicle has been hypothicated to Bank of India, Sanjaynagar, Bangalore in respect of the loan availed. Moreover, the Complainant has also made available a copy of a driving license. It discloses that the Complainant is holding a driving license of L.M.V. with effect from 01/02/2008.
(b) Therefore, when the above materials are taken into consideration cumulatively, it is but proper to hold that the Complainant is competent to invoke the provisions of the Consumer Protection Act, 1986. Ofcourse, it is for the Complainant to substantiate the allegation of deficiency of service on the part of the Opposite Parties and in case that is established, then and then only the Complainant is entitled for appropriate reliefs and not otherwise. With the above observations this point is answered in favour of the Complainant.
7. POINT NO.2(a):- The 1st Opposite Party admittedly is the manufacturer of the vehicle in question. However, the 1st Opposite Party has tried to impress upon this Forum that the 2nd Opposite Party is not their agent and that the relationship interse is principal to principal. Nodoubt, the 1st Opposite Party has made available a xerox copy of a document along with their affidavit on 07/03/2009 by way of evidence. That document is styled as “GM Retailership Agreement”. That Agreement was inforce from 01/01/2006 up to 31/12/2007, as revealed therein. Even though the 1st Opposite Party have tried to impress upon this Forum that the 2nd Opposite Party is independent by themselves and nothing to do with the 1st Opposite Party, the said Agreement so made available by the 1st Opposite Party itself goes to show that the above contention of the 1st Opposite Party is not true to facts. In the said Agreement which is tiled as “GM Retailership Agreement”, Clause-4 deals with the appointment of authorized Retailers of the 1st Opposite Party manufacturing–Company. As per the same, the 2nd Opposite Party is one of their Retailers. As per Clause-4.1 the 1st Opposite Party has so appointed the Retailers to identify themselves as an authorized Retailers of the 1st Opposite Party manufacturing-Company. As per Clause-4.5 of the said Agreement, with respect to activities conducted by or on behalf of the 1st Opposite Party–Company, the Retailer has to carryout the same as per the directions given there-under which includes collection of orders from the Customers, taking delivery of motor vehicles for direct sale, to carry out pre-delivery inspection, to report any damage to the vehicle, to collect the amount on behalf of the manufacturing–Company etc. As per Clause-9.3 of the said Agreement, Retailer has to provide service to all motor vehicles, including the Customer–paid services, whether or not the motor vehicle needing service was sold by the Retailer and the Retailer has to maintain records, as per the suitable format and make them available to the manufacturing-Company. As per Clause-9.4 of the said Agreement, the Retailer has to attend the Complaint of the Customer touching the vehicle. As per Clause-9.8, the Retailer has to provide body repair service for the motor vehicles and the Retailer may provide the same either through their own body shop or through somebody else. When all these factors are considered in the right perspective, there is every reason to conclude that the 2nd Opposite Party is a Retailer/Dealer of the 1st Opposite Party-manufacturing-Company. Wherefore, in the light of the dictum of the Hon’ble National Consumer Disputes Redressal Commission (reference to 2006 (1) CPR 263 NC in the matter between Mahantayya V/s M/s Mahalakshmi Tractor and others), it has to be held that the manufacturer deals with the Consumer through the Dealer and for the wrongs committed by the Dealer, the manufacturer is also liable since the liability of the manufacturer and the Dealer is joint and several. When that is the legal position, there is no substance in the contention of the learned Counsel for the 1st Opposite Party that they are not answerable for the wrongs, if any by the 2nd Opposite Party, as far as the customer Complainant is concerned.
(b) Now the Complainant has aired her grievance on 2 points and the 1st one is, the delay in delivery of the vehicle and the 2nd point is, tampering and changing the wheel caps of the vehicle. In Annexure-B which is made available by the Complainant, there is a recital that the delivery period is indicated as two weeks by the principal. Annexure-B is a xerox copy of the Pricelist of the models of the vehicles including the one referred to in the Complaint. It is generated by both the Opposite Parties. It is the grievance of the Complainant that, the 2nd Opposite Party promised that the vehicle would be delivered within four weeks and failed to so deliver. The 2nd Opposite Party has no explanation to offer in that regard.
As revealed in the evidence, though the booking was made on 19/10/2007, the vehicle in question was delivered only on 09/01/2008. Wherefore, it was for the Opposite Parties to explain the delay in delivery of the vehicle. The 2nd Opposite Party has no explanation. The 1st Opposite Party-Company has taken an indifferent attitude as if they are strangers. Wherefore that unexplained delay would certainly amount to deficiency of service within the purview of the Consumer Protection Act, 1986.
(c) Now it is the contention of the Complainant that, the 2nd Opposite Party while servicing that vehicle, had replaced the original wheel caps with damaged wheel caps and that it was noticed only after taking the vehicle to home and that when it was brought to the notice of the 2nd Opposite Party immediately, though the 2nd Opposite Party rectified the grievance touching the wheel cap pertaining to the left front wheel, the wheel cap of the left rear wheel has not been changed inspite of repeated requests. This contention of the Complainant has remained un-controverted. Absolutely there is no evidence on record to suspect the bonafides of the Complainant regarding the above allegation. As revealed in Annexure-C made available by the Complainant along with the Complaint, an opportunity was provided to the 2nd Opposite Party to rectify the mistake. Annexure-C letter of the husband of the Complainant to the 1st Opposite Party is dt.3/3/2008 and though that letter is received by the concerned official of the 2nd Opposite Party, there was no response to the same. As already stated, the 2nd Opposite Party have chosen to remain absent. In the circumstances, the above omissions also would certainly amount to deficiency of service within the purview of the Consumer Protection Act, 1986.
(d) Therefore, in the light of the above legal position as far as the liability is concerned, both the Opposite Parties are answerable to the Complainant in respect of the above deficiency of service. Accordingly, this point is answered. 8. POINT NO.3:- It is the contention of the Complainant that on account of the above commissions and omissions of the Opposite Parties, she was put to agony, sufferance and loss and that the same need be compensated apart from giving a direction to the Opposite Parties to replace the damaged rear left side wheel cap of the said vehicle with a new one. What we feel is, the Opposite Parties could have honestly attended the grievance of the Complainant without giving scope for any dispute. It appears wisdom did not prevail upon the Opposite Parties and they have driven the Complainant to this litigation. Wherefore, a reasonable amount need be provided to the Complainant by way of cost and compensation apart from giving a direction for the replacement of that damaged wheel cap. In the fitness of things, we fix that amount at Rs.5,000/-. Accordingly, this point is answered.
9. POINT NO.4:- In the result, we proceed to pass the following:
O R D E R Since the Complainant has established the alleged deficiency of service by the Opposite Parties, the Opposite Parties are jointly and severally liable to replace the damaged wheel cap of the left side rear wheel of the vehicle in question with a brand new one and to pay a sum of Rs.5,000/- by way of cost and compensation to the Complainant for the sufferance, agony and hardship to which the Complainant was put to on account of their deficiency of service touching the said vehicle. The Opposite Parties are granted 30 days from this date to comply this Order.
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