(Passed on 14/12/2016)

PER SHRI.B.A.SHAIKH, HON’BLE JUDICIAL MEMBER

 1.     These three appeals bearing Nos. A/03/393, A/03/241 and A/03/46  are respectively filed by the original complainant , original opposite party (for short O.P.) No. 1 and original O.P. No. 2 against the same order dated 10/12/2002 passed by the District Consumer Forum, , Nagpur  in consumer complaint No. 413/1999 by which direction has been given to the O.P. Nos. 1&2 to pay  to the  complainant  compensation of Rs.25,000/- for physical and mental  harassment  and also to pay cost of litigation  amount Rs. 500/-.

 2.     The facts which are not  disputed, in brief  are as under.

          The original complainant  had purchased  a brand new car from the O.P.No. 1-delear  as manufactured by the O.P. No. 2. The said car was  purchased on 16/02/1999 and at that time only   one key  of that car was  handed over by the O.P. No. 1 to  the complainant. The O.P. No. 1 sent   telegram  dated 18/02/1999 to the complainant  & thereby  agreed and  admitted  that  one of the key  of that vehicle  is misplaced and it will  supply duplicate key as & when  it is  received and accordingly the intimation will be given to the original  complainant  by the O.P. No. 1. However, the said car was stolen  away on 23/02/1999  by some unknown thief. The complainant alleged that  the said car was stolen away  with the help of the  another key which was not  supplied  to him by the O.P. No. 1.  The said car was  subsequently   recovered  by the police  during investigation  and it was handed over  to the  complainant on 20/04/1999. It is alleged by the complainant that   he incurred  expenses  of Rs. 4400/- for repairing  of that  vehicle  as it was found in damaged  condition. The complainant issued  letter dated 03/05/1999 to the O.P.No. 1 claiming from it new car, compensation of Rs. 50,000/-, repairing charges  of  Rs. 4311/-  and expenses of Rs. 20,000/- with notice charges  of Rs. 3000/-.The O.P. No. 1 gave  reply of that notice and  denied  its  liability.  Therefore,  the  complainant  filed  the consumer complaint  before the  Forum against the O.P.Nos. 1&2 claiming  from them Rs. 50,000/- as compensation  for physical and mental harassment, Rs. 4400/- towards  repairing  expenses  incurred by him, Rs. 20,000/- towards the expenses incurred  for tracing  out the vehicle  and  obtaining it from the Court on Supurnama and Rs. 3000/- towards notice charges.  The complainant claimed  total  Rs.77,400/- from the O.P. Nos. 1&2.

 3.     The O.P. Nos. 1&2 had resisted that complaint by filing separate reply before the Forum.

          The O.P. No. 1 had denied that the car was stolen away with the help of same key which was not delivered  to the complainant. It was the main case of the O.P. No. 1 that there is no contractual obligation on the O.P.No.1 for delivery of duplicate key. The  complainant  had  singed  the delivery  memo  and he had taken  the delivery  to the vehicle  without any grievance  and without any objection. Therefore, the O.P. No. 1 had denied its liability.  Moreover, it is also  alleged  by the O.P.No. 1  that it had delivered duplicate key to the complainant on 21/03/1999

          The main submission of the O.P. No. 2 as per reply is that there is no privity of contract in between the complainant and  O.P.No. 2 and therefore no liability can be fastened on it.  It also submitted that  it is incorrect that  theft of vehicle  took place  due to non delivery of the second  key by the O.P. No. 1. Thus, according to the O.P. No. 2 there is no merit in the complaint and hence it may be dismissed.

 4.     The Forum below after hearing  both the parties and  considering evidence brought on record came to the conclusion  in the impugned order that  it is not proved  that car was stolen away with the help of the same key which was not  delivered to the complainant at the time of delivery of the vehicle. However, the Forum also observed in the impugned order that  though there is no specific contract in writing  about  the responsibility of the O.P. to deliver  two keys, there is an implied condition and implied warranty to provide two keys to the purchaser of new car & as second key was  not delivered to the complainant it constitutes deficiency in service on the part of the O.P. Nos. 1&2 and therefore, both are jointly and severally liable for payment of compensation to the complainant. The Forum therefore, assessed the compensation at Rs. 25,000/- and directed the O. P. Nos. 1&2 to pay the same jointly and severally to the complainant with cost of Rs. 500/-.

 5.     As observed  above  the complainant  and O.P. Nos. 1&2 have filed  these three appeals  being aggrieved  by the said order.

 6.     The learned advocate Mr. U.M. Aurangabadkar appearing for the original complainant submitted that the appeal of the original complainant is restricted to the enhancement of the compensation  from Rs 25,000/- to Rs. 77400/- as claimed in the complaint.  He submitted that  the Forum erred in restricting  the compensation  of Rs. 25000/- though the complainant  incurred expenses  of Rs. 20,000/- for tracing out the car and taking it delivery  through  the Court and Rs. 4400/-  for its repairing  and Rs. 3000/- for notice charges. He also submitted that  the compensation   for physical and mental harassment claimed  was of Rs 50000/- and it is just and proper. Hence, he submitted that appeals of the O.P. Nos. 1&2 are liable to be dismissed  as though  there was no contract in writing,  the O.P. No. 1 had agreed to provide second key as per practice to the complainant.But it failed to deliver the same.  He also submitted that  the O.P. Nos. 1&2 are jointly and severally  liable to pay compensation  to the complainant  since it was their  joint responsibility  to provide  the second key  to the complainant and since they failed to do so, the Forum has rightly  held   both of them  jointly and severally  liable to pay  compensation. Thus he prayed for enhancement of compensation.

7.     On the other hand, the learned advocate of the  O.P. No. 1 has invited our attention  to the delivery  memo in support of  his submission  that the said delivery memo was signed by the complainant without putting  his grievance  about the second key and  accepting all the conditions  mentioned  in the said delivery  memo. He also submitted that  the complainant  accepted the vehicle  in good condition without any defect and made  no complaint about defect in the vehicle. He also invited  our attention  to  one of  the condition of  delivery  memo that  the O.P. No 1 is  not responsible or liable for any delay or discrepancy in terms of delivery or on the price charged  by the O.P. No. 1. Thus, the learned advocate of the O.P.No. 1 submitted that  there was contractual liability on  the O.P. No. 1 to provide second key to the complainant, the Forum erred in directing  the O.P. No. 1 to pay compensation  of Rs. 25,000/- to the complainant for non delivery of second key. He therefore requested that the impugned order may be set aside.

8.     The learned advocate of the  O.P. No. 2 also adopted  the aforesaid  argument  of the learned advocate of the O.P. No. 1 and in addition to same  he submitted that  there was relationship of principal   to principal  in between  O.P. Nos. 1 and 2   and in such a case the O.P. No. 2 cannot be  held  responsible  for not providing  the second key  to the complainant by O.P.No.1.  He was also relied  upon the  decision in the following  cases.

i.       Maruti Udyog Limited Vs. Nagender Prasad Sinha & Anr. , II (2009) CPJ 295 (NC).  In that case  there was  delay in delivery of motor vehicle  by the dealer  of the vehicle  to the complainant. The Forum had awarded interest at the rate of 18% on deposited money along with compensation awarded  by holding  Manufacturer and  dealer both  liable  to pay. The manufacturer  filed revision petition before the Hon’ble National Commission. It is held that  the  relationship between petitioner and  O.P. No. 2 was of principal to principal  basis  and dealer  is not  agent  & had no authority  to bind the company  by  contract and therefore, order holding  manufacturer liable  to pay interest  was set aside and it is held  that  the complainant  is at liberty to realize  award amount from authorized dealer.

 ii.      N. Balraj Vs. M/s. Agile Phototechniks (I) Pvt. Ltd. & Ors., 2016 NCJ 541 (NC).  In that case  as  complainant has failed to produce any evidence to the effect that there was any  manufacturing defect in machinery or that machine was second hand, so dismissal of complaint was found just and proper . Therefore,  it was  held that  the complainant is not entitled  to any relief.

 iii.     M/s. Spectrum Medical Industries Pvt. Ltd. Vs. Dr. Suresh Gupta & Anr. 2015 NCJ 641 (NC).  It is held  in the said case that where complainant has failed to prove  his pleadings  he is not entitled to get any compensation.

          Thus, the learned advocate of the O.P. No. 2 also submitted that the Forum erred in fastening the liability on O.P. No 2 and hence, the impugned order may be set aside.

 9.     Thus, it is seen that on 16/02/1999 when new car was purchased by the complainant from the O.P. No. 1, only  one key of that car was handed over to him.  Therefore, complainant  had written  letter on 17/02/1999 to the O.P. No. 1 stating   there in that  he received  only one key  of the vehicle  and he was  told that  second key was misplaced and  it will be sent to him  later on as and  when  found. It is also stated in that letter that the complainant  is not  comfortable  with the  missing key. He had  therefore, requested   the O.P. No. 1 to kindly change all the locks  of his  car for its safety or to submit in writing  about  missing key.

          The O.P.No. 1 on receiving that application, sent telegram on 18/02/1999 to the complainant to the following effect,

          “One key of your vehicle is being misplaced. We have  placed an order for duplicate key. As and when we receive, it your will be informed  accordingly.”

 10.   The O. P. No. 1 in  its  reply filed before the Forum stated in para No. 11 that  the duplicate key was made available to the complainant on 21/03/1999 and since  the  complainant  wanted to change the locking system itself, the  same was done to  the satisfaction of the complainant.

 11.   Thus it is crystal clear that though  there is no contract in writing  for supplying  two keys to the complainant, still the O. P. No. 1 on receiving  the complaint from the complainant  had agreed to provide  duplicate second key to the complainant  and it has also  specifically  stated as above in the reply that  duplicate key actually was made available to the complainant on 21/03/1999. However, the O.P. No. 1 has not proved that the duplicate key was actually made available to the complainant on 21/03/1999. Therefore, the said pleading of the O.P. No. 1 without any evidence, cannot be accepted.

 12.   We thus find that  when the O.P. No. 1 had agreed to provide the duplicate key  to the complainant. But  duplicate key was not provided  to the complainant.  It is also  regular practice observed by the dealer that  whenever new  car is purchased  two keys  are provided by the dealer to the purchaser.  Thus it is well  accepted practice that   two keys of newly purchased car are provided   at the time of purchase.  Thus  the same practice is not  adopted in the present case.  However, the O.P. No. 1  had agreed to provide the second key as observed above.

 13.   In our view  when the second key  as  demanded by the complainant was not provided to him and as the car was stolen  away within a week of its purchase  it can not be said  that   on account  of not providing  the second key to  the  complainant, car with the help of  same key was stolen away.  So far as   the O.P.No. 2- Delear  is concerned it is not disputed  that  the keys are  also  manufactured  along with car by the manufacturer. Therefore, it is also responsibility of the  O.P.No. 2 to furnish the second key to the purchaser i..e complainant and as it failed to do so it is liable  to pay compensation  of Rs. 25,000/-  to the complainant.

 14.   The aforesaid  decision  relied on by the learned  advocate of the O.P.No.2 are not  applicable  to the  facts and circumstances  of the present  case since  they are totally  different from  those of said  cases.  There is no question of any principal to principal relationship in between O.P. Nos. 1&2 in the present case as the O.P. No. 2 is also  liable  to pay compensation  for  not providing  the second key to the  complainant by way of implied contract  as above. 

15.      So far as question of  quantum of compensation   is concerned, we find that  the  compensation  granted by the Forum at  Rs. 25,000/-  is just and proper  since  it is not  disputed that  the stolen car has been subsequently  recovered  by the police during  investigation. The complainant  produced  receipt about  his   incurring expenses  for repairing of the vehicle  to the tune of Rs. 4311/-.  He has not produced  any evidence to  show that he has incurred  expenses of Rs. 25,000/- for taking possession of   the vehicle  through Court and for other relevant  purpose.  Therefore, the Forum has rightly  not granted  that  compensation.  The complainant  claimed  compensation of Rs. 50,000/- for  physical and mental  harassment .  We find that  compensation claimed  at Rs. 50,000/- is excessive and exorbitant  under  the facts and circumstances of the case  discussed above. Therefore, we find that the Forum has properly considered  evidence brought on record and came to the correct conclusion and findings.  There is no merit in all these three appeals & hence, they  it deserve to be dismissed.

ORDER

i.       All these three appeals, bearing Nos. A/03/393, A/03/241 and A/03/46 are hereby dismissed.

ii.      No order as to cost in   three appeals.

iii.     Copy of order be furnished  to both the parties free of cost.