Order-10.
Date-18/04/2018.
Shri Anupam Bhattacharyya, President.
The instant complaint has been filed by the complainants u/s.12 of the C.P. Act, 1986 praying for refund of Rs.32,050/- along with interest at the rate of 12 percent p.a. from the date of 31-07-2014 and compensation of Rs.5,00,000/-.
Complainant’s case, in brief, is that Complainant exchanged his old car bearing registration No. WB 02Y 4946 with the new car on 13.07.2014 under the exchange scheme offered by the OP2 as authorized dealer of the OP1 by paying Rs.5,23,179.00. The New car was delivered without number plate to the complainant on 08-08-2014. Mr. Prosenjit Sarkar, the sales consultant of OP2 had failed to deliver the new car within fifteen days from the date of booking and also failed to supply the accessories and also had not registered the new car with the concerned authority. Complainant further informed the OP2 that they owed to the complainant of Rs.25,350/- being the premium of Insurance of the Old Car Rs.16,900/- along with 50 percent no claim bonus under the exchange scheme but that still not credited into his account. Complainant further informed that for the negligent act of OPs he had to pay fines amounting to Rs.2,000/- to the Road Authorities for lack of Number Plate, RC Book, Smart Card being not provided by the OPs at the time of delivery of the car in spite of promise. By an e-mail to OP1, dated 22-09-2014, complainant informed for assistance and clarification for the inconvenience and OP acknowledged the same on 26-09-2014 but OP did nothing. So, finding no other alternative complainant had to send legal notices though OP replied sometime but received no fruitful results. Then, the Complainant has filed the instant complaint. Hence the instant complaint case.
The written version filed by the OP1, in brief, is that Complainant purchased the alleged vehicle with an alleged exchange scheme. OP2 is the authorized dealer having relation of OP1 on principal to principal basis. The OP2 is not the agent of OP1. General Motors India Pvt. Ltd. is not parent company of the OP1 but it is the manufacturer of the vehicle model mentioned in the complaint petition and does not run or maintain any dealership. OP1 has association with dealerships and has denied all the claims and allegations against them and prayed for dismissal of the case.
Considering the pleading of both sides the following points have been raised.
Point for Decision
- Whether the case is maintainable in its present form and law?
- Whether there is any cause of action to file the case?
- Whether the case is barred by limitation?
- Whether the complainant is entitled to get the relief as prayed for?
- What other relief/reliefs the complainant is entitled to get?
Decision with Reasons
Points No.1 to 5 . All the points are taken up together for the brevity of discussion and convenience.
The instant complaint is for refund of Rs.32,050/- along with interest 12 percent p.a. from the date of 31-07-2014 and compensation of Rs 5,00,000/-.
The Complainant’s main case is that the Complainant purchased a new Chevloret car under the scheme of exchange of old car offered by the OP-2, who has not supplied within 15 days of booking and other accessories and also failed to pay Rs.25,350/- which they owed to the Complainant as the premium of insurance of the old car for Rs.16,900/- along with 50 percent no claim bonus under the exchange scheme and for that the complainant has claimed for refund of Rs.32,050/- along with interest at the rate of12 percent p.a. since 31-07-2014 and complaint of Rs.5 lakhs.
On the other hand, the OP No.1’s main case is that the OP2 is not the agent of OP1 and OP2 is authorized dealer of OP1 and their relationship is on principal to principal basis. General Motors India Pvt. Ltd. is not parent company of the OP1 it is the manufacturer of the vehicle model of the complaint petition itself and does not run or maintain any dealership and has denied all the claims and allegations against them and prayed for dismissal of the case.
The instant case against OPs No. 2 and 3 has been taken up for ex parte hearing.
To prove the case both the parties have adduced Evidence on Affidavit and they have filed questionnaires and replies vis-à-vis along with relevant documents in support of their respective case.
Admittedly, the OP No. 2 is the authorized dealer of OP No. 1.
The instant complaint case is admittedly for exchange of old Chevrolet Spark Car No. WB-2Y-4946 with new Chevrolet Sail LS ABS under exchange scheme offered by OP No. 2 in the capacity of authorized dealer of OP No.1.
From the cause title of the Complaint petition it is clear that OP No.3 is Manager of OP No.2.
The Complainant’s main case is that OP No. 2 did not deliver the new car in exchange of old car as per exchange scheme offered by OP No. 2, dealer of OP No. 1 within fifteen days of booking and for that the Complainant has prayed for refund of Rs.32,050/- along with interest at the rate of12 percent p.a. since 31.07.2014 and compensation of Rs. 5 lacs.
On the other hand the OP No.1’s case is that no consideration money was given to OP No.1 and the relationship as to agreement in between OP No. 1 and OP No. 2 & 3 is on principal to principal basis and OP No. 2 is not their agent and for that there is no vicarious liability and for that the Complainant is not entitled to get any relief from OP No.1.
In this regard the Ld. Lawyer for the OP No. 1 has advanced argument as well as mentioned in their BNA that the dipsute in between OP No. 2 and the Complainant is relating to purchase of new vehicle by exchange of old one under exchange scheme offered by OP2 in the capacity of Authorised Dealer of OP1 and the same is on principal to principal basis.
In this regartd the OP1 has cited a case of Hon’ble National Commission in Jaswant Singh Vs. Malwa Automobile (P) Ltd. and Ors., IV (2011) CPJ 300 (NC) where the parties are interacting on a principal to principal basis as in the present case and it has been held that there is no cause of action and for that the complainant is not entitled to get any relief from OP1.
On the other hand, the Ld. Lawyer for the complainant has advanced argument that the aforesaid reported decision is not applicable in the case on the ground that in that case the relationship of agency was not established as the dealer had acted beyond the scope of employment as the manufacturer had specifically notified him to sell the cars manufactured in 2002 at a discounted price but in this case offer for exchange was given by OP2 in the capacity of authorized dealer of OP1.
He has further argued that no such exchange scheme could be unilaterally floated by the OP2 without authority bestowed and the knowledge, participation and responsibility of the OP1.
He has argued referring the e-mail of OP1 dated 25-09-2014 that OP1 acknowledged OP2 as his enfranchised dealer and requested him for assistance and clarification in the matter and the Sales Manager of OP2 was advised to provide necessary possible assistance and for that OP1 cannot escape his liability with the plea of agreement on principal to principal basis.
By that E-mail OP1 has advised OP2 to provide necessary possible assistance.
This e-mail is sufficient to hold that OP-2 is admittedly the authorized dealer of OP1 and acted as per instruction of OP-1 and thus there is clearly existence of the question of agency and for that OP-1 has no scope to escape from his liability.
In this connection the Ld. Lawyer for the complainant has advanced argument referring the reported decision of Hon’ble Supreme Court in AIR (2005) SC 3087 in the case of Chairman, LICI vs. Rajiv Kumar Bhaskar where the Hon’ble Supreme Court has held the legal concept of relationship as to Agency.
Considering the argument advanced by both sides and also considering reported decision referred by both sides, it is clear that the exchange of vehicle was done as per instruction of OP-1 and for that all the OPs are jointly and severally liable.
In this case the OP-2, the dealer and the OP-3 the Manager of OP-2 Company have not turned up to contest this case. They have not filed any written version in spite of service of notice and as such the case has been taken up ex parte against them.
In this case the Complainant has prayed for refund of Rs.32,050/- along with interest at the rate of 12 percent p.a. from 31.07.2014.
The OP-1 has not categorically challenged the claim of the complainant for Rs.32,050/- along with interest at the rate of 12 percent p.a. since 31-07-2014. We do not find any cogent rebuttable evidence from the side of OP1 or in other wards there is no agreement to that effect has been established by them and for that we are of view that considering present rate of interest complainant is entitled to get refund of Rs.32,050/- along with interest at the rate of7 percent p.a. from 31-07-2014 to the till realization and litigation cost of Rs.2,000/-.
Hence,
Ordered
That the instant case No.386 of 2017 be and the same is allowed on contest in part against OP1 and ex parte against OPs 2 and 3.
All the OPs are jointly and severally liable to pay the awarded amount.
OPs are directed to pay Rs.32,050/- along with interest at the rate of7 percent p.a. from 31-07-2014 till realization and litigation cost of Rs.2,000/- to the complainant within 30 days from the date of this order, in default, the OPs to pay fine at the rate ofRs.100/- per day delay and the amount so accumulated should be deposited to this Forum.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.
