Chandigarh

StateCommission

A/140/2015

M/s Berkeley Automobile Limited - Complainant(s)

Versus

Surinder Singh - Opp.Party(s)

Sandeep Jasuja, Adv.

26 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	140 of 2015
Date of Institution	18.06.2015
Date of Decision	26.06.2015

 

1.        M/s Berkeley Automobile Ltd., Berkeley House, Plot No.27, Industrial Area, Phase I, Chandigarh through its authorised representative and Legal and Liasion Officer, Shri Om Parkash Sharma.

 

2.        Rajeev Handa (Ex Chief General Manager), Automobile Ltd., Berkeley House, Plot No.27, Industrial Area, Phase I, Chandigarh.

                        …..Appellants/Opposite Parties No.2 & 3.

                                Versus

1.        Surinder Singh son of Shri Arjun Singh resident of House No.202, Sector 25, Panchkula.

                        ..... Respondent No.1/Complainant.

2.        Maruti Suzuki India Limited, through its Regional Manager, SCO No.39-40, Sector 8-C, Madhya Marg, Chandigarh.

                        …..Respondent No.2/Opposite Party No.1.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

 Sh.Sandeep Jasuja, Advocate for the appellants.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 10.04.2015, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed Consumer Complaint bearing No.461 of 2013, filed by the complainant, only against Opposite Parties No.2 and 3, with the following directions:-

“11]      In the light of above observations, we are of the concerted view that the Opposite Parties No.2 & 3 are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed against OPs No.2 & 3 jointly & severally and dismissed qua Opposite Party No.1. The Opposite Parties No.2 & 3 are jointly & severally directed as under:-

[i] To refund Rs.3,40,000/- to the complainant along with simple interest @9% per annum from the date of deposit till it is paid;

 

 [ii] To pay an amount of Rs.25,000/- as compensation for deficiency in service and causing mental agony and harassment to the complainant;

 

[iii] To pay Rs.10,000/- towards the cost of litigation.

 

         This order shall be complied with by OPs No.2 & 3 jointly & severally within a period of 45 days from the date of its receipt, failing which they shall be liable to pay interest @18% per annum on the amount of Rs.3,40,000/- from the date of deposit till it is paid, and on the compensation amount of Rs.25,000/- from the date of filing this complaint till realization, apart from paying litigation cost of Rs.10,000/-. “ 

2.             The facts, in brief, are that the complainant earned his livelihood by providing taxi service to the Banks, for which, he booked Dzire VDI White Car with Berkeley Automobiles Limited (Opposite Party No.2) at its premises on 17.07.2012 through its Executive Mr.Vikrant Thakur and paid a sum of Rs.3,40,000/-, in cash towards the booking vide Annexure C-1.  It was stated that the entire transaction/dealing had been recorded in the CCTV Camera installed by the Company, being monitored by Opposite Parties No.2.  It was further stated that the complainant was having the need of the vehicle immediately, which was to be given to the State Bank of Patiala, Sector 5, Panchkula for DGM and, as such, he was continuously contacting Opposite Party No.3, but suddenly he stopped picking up the phone. It was further stated that when the complainant visited the premises of Opposite Party No.2 on 28.08.2012 to know & get the delivery of the said booked car, he was told that Mr.Vikrant Thakur (Opposite Party No.2) had been sacked from the Company and a notice was also given in the newspaper dated 30.08.2012.  It was further stated that the complainant even went to the home town of Mr.Vikrant Thakur alongwith Mr.Sandeep Kumar and Mr.Rajiv Verma and met his parents but his mother instead of helping him, threatened to frame them in some false cases in Himachal Pradesh. It was further stated that when the complainant demanded refund of his booking amount from Opposite Party No.2, it did not refund the same.  It was further stated that the matter was brought to the notice of the Police and FIR No.248, dated 18.09.2012 (Annexure C-4) was registered.  It was further stated that the complainant kept on visiting Opposite Party No.2, for either getting delivery of the said car or refund of the booking amount, but to no avail. It was further stated that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.         In its written statement, Opposite Party No.1, took up preliminary objection that the complainant was not a consumer qua it, as he did not enter into any contract for sale with it nor hired its services for consideration. It was stated that the replying Opposite Party is the manufacturer of Maruti Suzuki vehicles and did not sell the vehicles directly to any individual customer. It was further stated that the relationship between Opposite Party No.1 and its dealers was based on principal-to-principal basis.  It was admitted that the complainant booked the alleged vehicle under a contract for sale of goods (Maruti Dzire VDI) with Opposite Party No.2, and entered into an agreement after having mutually settled terms and conditions of sale with Opposite Party No.2.  It was further stated that the complainant executed a separate sale agreement in the form of Order Booking Form dated 17.07.2012 with Opposite Party No.2.  It was further stated that  the complainant neither paid any amount to the replying Opposite Party nor it was liable to sell/deliver the vehicle, in question, to him. It was further stated that Opposite Party No.2, an erstwhile dealer, was a separate and independent legal entity.  It was further stated that the replying Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.
4.         In their written statement, Opposite Parties No.2 and 3, stated that the complainant was not a consumer of the replying Opposite Parties, as they did not receive even a single paisa from him on any account nor he produced any cogent evidence on record to show that he had ever deposited any amount with them.  It was further stated that the replying Opposite Parties only accepts Rs.10,000/- against a valid receipt as booking amount  and not Rs.3,40,000/-, as alleged by the complainant.  It was further stated that the booking form, so relied upon by the complainant, showed no receipt of any amount.  It was further stated that the said document was a fabricated one, which was duly prepared by the complainant either in connivance with Mr.Vikrant Thakur or fabricated by him (complainant), as the blank booking forms were freely available at the dealership of replying Opposite Parties. It was further stated that the replying Opposite Parties received some complaints from the persons/customers against Sales Executive, Mr.Vikrant Thakur and then the respondent unearthed a big scam operated by Mr.Vikrant Thakur, in which, it was found that, he in league and connivance with some customers had indulged into giving delivery of Maruti Swift/Dezire vehicles to the said customers on priority, who otherwise had no booking or right to take delivery of the same at priority. It was further stated that the complainant had on his own approached Mr.Vikrant Thakur and committed a deal outside the premises of replying Opposite Parties, as there was an average waiting period of six months for delivering the vehicle in question. It was further stated that when Opposite Party No.2, came to know about the misdeeds of aforesaid Mr.Vikrant Thakur, who eloped and still on the run, a police complaint dated 21.08.2012 (Annexure R-2/2) was made. It was further stated that the replying Opposite Parties, in order to inform the general public, that Mr.Vikrant Thakur indulged into illegal activities and they (Opposite Parties) would not be responsible for any dealing with him (Mr.Vikrant Thakur), published a public notice in the newspaper on 30.08.2012 (Annexure C-3). Thereafter, the replying Opposite Parties filed additional complaint dated 14.09.2013 (Annexure R-2/3) with the police authorities, which after conducting the investigation filed the challan (Annexure R-2/4). It was further stated that the replying Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.
5.         On 07.04.2014 Counsel for the complainant made a statement that the main relief was against Opposite Parties No.1,2 and 3 and he did not press the complaint against Opposite Party No.4, as such, on the said date, his name was deleted from the array of the parties.
6.         The complainant, filed rejoinder to the replies of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 
7.         The parties led evidence, in support of their case.
8.         None put in appearance on behalf of Opposite Parties No.1 to 3 on 30.03.2015, when the complaint was fixed for arguments.

9.             Thus, after hearing the Counsel for the complainant and, on going through the evidence, and record of the case, the District Forum, allowed the complaint against Opposite Parties No.2 and 3, as stated above. 

10.           Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.2 and 3.

11.           We have heard the Counsel for the appellants/Opposite Parties No.2 and 3, and have gone through the evidence and record of the case, carefully. 

12.           The Counsel for the appellants/Opposite Parties No.2 and 3 submitted that the District Forum while allowing the complaint failed to appreciate that the complainant mentioned in the complaint the names of 7 respondents and an important role was attributed to all of them, but in the array of parties he failed to implead the said persons. He further submitted that the presence of Mr.Vikrant Thakur in the proceedings before the District Forum was very necessary, as the entire story of the complaint revolved only around him (Vikrant Thakur) but the complainant got deleted his name by making a statement on 07.04.2014. He further submitted that the complainant had not produced any cogent/reliable evidence to show that he had paid any amount to the appellants for the purchase of car. He further submitted that the District Forum wrongly relied upon the booking form vide which alleged payment of Rs.3,40,000/- was made by the complainant, but the said document was neither a receipt of the amount, nor carried the signatures of Sales Manager/General Manager nor even tentative period of delivery of the vehicle was mentioned on the same. He further submitted that the District Forum did consider that the complainant mentioned the name of Mr.Rajeev Verma, who allegedly accompanied him at the time of payment of the alleged amount but he (Mr.Rajeev Verma) did not come to support him (complainant) or by filing his affidavit, in support of the case. He further submitted that the District Forum had taken an adverse view of the fact that the appellants did not produce on record the Day Book/Ledger to show that no money was received by them, in their account. He prayed for allowing the appeal and setting aside the impugned order.

13.           After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded, hereinafter.

14.           The first question, that falls for consideration, is, as to whom, the amount of Rs.3,40,000/- was paid by the complainant. Admittedly, the complainant wanted to buy a Swift Dzire VDI White Car for the purpose of giving it on rent to a leading Bank for earning his livelihood. As per the complainant, he was called by Mr.Vikrant Thakur on 17.07.2012 in the office of M/s Berkley Automobile Ltd. The complainant alongwith Sh.Rajiv Verma filled the Customer Docket Book and counted the cash amount of Rs.3,40,000/- at the cashier’s counter, in the presence of cashier Mr.Om Sawroop. Mr.Vikrant Thakur went upstairs at 1^st floor and after meeting the Sales Manager Sh.Gurman Singh, came back at the cashier’s counter and stated that the booking for “Dzire VDI White Car” has been made. Mr.Vikrant Thakur made the entry of Rs.3,40,000/- and put the stamp of the Company in the Booking Order/Commitment Checklist Customer Copy (Annexure C-1). A bare perusal of the said document (Annexure C-1) shows that name of the complainant, his address, mobile number, PAN number, color, booking date, ex-showroom price, insurance price and also booking amount of Rs.3,40,000/- paid, in cash, were also mentioned therein.  The said document (Annexure C-1) was also stamped by Opposite Party No.2, and the address on the said document was mentioned as “Berkeley Automobiles Limited, Plot No.27, Industrial Area, Phase I, Chandigarh”. The said document was duly signed by Mr.Vikrant Thakur, official of Opposite Party No.2. So, it is clearly proved that an amount of Rs.3,40,000/- was paid by the complainant to Mr.Vikrant Thakur.

15.           The next question, that falls for consideration, is, as to whether, the appellants being the employer of Mr.Vikrant Thakur, who received the amount from the complainant and allegedly embezzled the same, were liable to refund the same. As per the complainant, M/s Berkeley Automobile Ltd. was deficient in providing proper service to him, as even after the passage of 1½ months of receipt of an amount of Rs.3,40,000/-, there was no news about the tentative date of delivery of the vehicle. When on 28.08.2012 he visited the premises of Opposite Party No.2, he was informed that it had sacked its employee, Mr.Vikrant Thakur, and that it had no knowledge about the booking of the car, in question. The said plea taken by the appellants, at this stage, cannot be believed because a bare perusal of Annexure C-1 shows that the amount of Rs.3,40,000/- was paid by the complainant, in cash, to Mr.Vikrant Thakur and if Mr.Vikrant Thakur misused the blank document (Annexure C-1) and stamp of the Company, there was no fault of the innocent customer i.e. complainant, who gave his hard earned money to him, at the time of booking of the car.

16.           The appellants also drew our attention to a copy of the public notice, which was published by them in the newspaper ‘Indian Express’ (at page No.38 of the file), in which, it was mentioned that Mr.Vikrant Thakur, Sales Executive was found indulging into mal-practice with the customers of M/s Berkeley Automobiles Limited and, as such, his services were terminated w.e.f. 25.07.2012 and criminal action had been initiated against him. It was also mentioned in the said notice that any person who would deal with Mr.Vikrant Thakur, shall do so at his own risk and cost and M/s Berkeley Automobiles Limited or any of its sister concerns shall not be responsible for the consequences of any deal/business done with him (Vikrant Thakur). It is no doubt, true that the appellants informed the general public by publishing the public notice in the newspaper but the same is of no significance to the complainant, as admittedly he (Mr.Vikrant Thakur) being their employee they could not escape their liability towards the complainant in so far as the loss on account of fraud/embezzlement committed by their  said  employee was concerned. So, the appellants are liable to refund the amount to the complainants.

17.           The next question, that falls for consideration, is, as to whether, other persons whose names mentioned in the complaint were necessary parties. It is, no doubt, true that the complainant mentioned few other names, such as Mr.Sandeep Kumar, Mr.Rajiv Verma, Mr.Gurnam Singh and Mr.Om Sawroop, as other Opposite Parties, but preferred not to implead them as parties. In his rejoinder, the complainant has submitted that earlier he filed a complaint before the District Forum, where, the said Forum was directed to make the Company as a party instead of the persons by name and as per its directions, the same was withdrawn and he filed the complaint before it (District Forum) but inadvertently due to typographical error, the names of the Opposite Parties remained as 2 to 7, whereas, Opposite Party No.3 be read as Rajeev Handa and Opposite Party No.4 as Mr.Vikrant Thakur. It is true that the names of the persons mentioned in the complaint are mostly of the employees of M/s Berkeley Automobile Limited. So, M/s Berkeley Automobile Limited was solely liable for the acts of commission and omission on the part of its employees. It cannot absolve itself of the liability of any act of omission or commission on the part of its employees. So, we are of the considered opinion that the complainant had rightly impleaded the Company as a party.

18.           The next question, that falls for consideration, is, as to whether, any evidence was produced to prove that Annexure C-1 was fabricated. As per the appellants/Opposite Parties No.2 and 3, the said Order Booking/Commitment Checklist Customer Copy (Annexure C-1) is a fabricated document. On the other hand, the complainant denied that Annexure C-1 is not a genuine document and stated that the said document was issued at the time of booking of the car and after the receipt of an amount of Rs.3,40,000/-.  The onus was upon the appellants/Opposite Parties No.2 and 3 to prove that the said document (Annexure C-1) was false and fabricated one, but they failed to prove the same. In the absence of any cogent proof, the bald plea taken in their reply/version could not be believed.

19.           The next question, that falls for consideration, is, as to whether, the appellants/Opposite Parties No.2 and 3 were deficient in not refunding the amount received by Mr.Vikrant Thakur. Annexure C-1 is a copy of Order Booking/Commitment Checklist Customer Copy. From this document, it is proved that Mr.Vikrant Thakur, an employee of the appellants received an amount of Rs.3,40,000/- from the complainant on 17.07.2012, at the time of booking of Swift Dzire VDI car and after the receipt of the said amount, the appellants/Opposite Parties No.2 and 3 retained his hard earned money and neither delivered the said car nor refunded the amount to him, for which, he was unnecessarily dragged into litigation by filing the consumer complaint before the District Forum, due to the fault of the employee(s) of the appellants/Opposite Parties No.2 and 3, which certainly amounted to deficiency in rendering service on their part. So, we are of the considered opinion that the District Forum rightly held that at the relevant point of time i.e. on 17.07.2012, when Mr.Vikrant Thakur received an amount of Rs.3,40,000/- and signed Annexure C-1 at the premises of Opposite Party No.2, he was acting on behalf of Opposite Party No.2, in his capacity as its employee and for acts of omission and commission of Mr.Vikrant Thakur, Opposite Party No.2, was vicariously liable. 

20.           The next question, that falls for consideration, is, as to whether, the complainant was entitled to compensation, as awarded by the District Forum. The answer, to this, is in the affirmative. It is, no doubt, true that after the deposit of hard earned money of the complainant i.e. Rs.3,40,000/- for booking of the Swift Dzire VDI car, the appellants instead of intimating the complainant regarding the date of delivery of the said car, told that the Company did not receive the said amount of Rs.3,40,000/- from the complainant regarding booking of the car. As such, we are of the considered view that the District Forum rightly awarded compensation to the complainant for mental agony and physical harassment caused to him at the hands of Opposite Parties No.2 and 3.

21.           Moreover, the District Forum rightly held that the complainant was not able to use the money, which was blocked and also suffered loss for not having enjoyed the same to his advantage and, therefore, he was also entitled to a simple interest on the said amount till the same was paid back to him.

22.            Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in allowing the complaint, against Opposite Parties No.2 and 3, as stated above.   Hence, the order passed by the District Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

23.           For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties No.2 and 3, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the District Forum is upheld.

24.           Certified Copies of this order be sent to the parties, free of charge.

25.           The file be consigned to Record Room, after completion.

Pronounced.

26.06.2015                                                         Sd/-         

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

rb

 

                                  STATE COMMISSION

FIRST APPEAL No. 140 of 2015

(M/s Berkeley Automobile Ltd. & Anr. Vs. Surinder Singh & Anr.)

Argued by:

 

Sh.Sandeep Jasuja, Advocate for the appellants.

 

Dated the  26^th  day of  June, 2015

                                               

                Alongwith the appeal, an application, for permission to place on record, copy of Day Book/Ledger as Annexure D, by way of additional evidence, was moved by the appellants/Opposite Parties No.2 and 3, on the ground, that the same was essential for the just decision of the appeal.

2.         Arguments, on the application, aforesaid, at the preliminary stage, were heard.

3.         It may be stated here, that, in case, at this stage, the application for placing, on record, Day Book/Ledger as Annexure D, by way of additional evidence, is allowed, that will delay the disposal of the appeal, thereby defeating the very purpose of the provisions of Section 13 (3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of the Consumer Disputes. Thus, there is no justification, whatsoever, to allow the application, for placing on record Day Book/Ledger as Annexure D, by way of additional evidence, at this stage. The application is accordingly dismissed.

4.         Arguments, at the preliminary stage, in the main appeal already heard.

5.         Vide our detailed order of the even date, recorded separately, the appeal, filed by the appellants/Opposite Parties No.2 and 3, has been dismissed, at the preliminary stage, with no order as to cost. The order of the District Forum has been upheld.

6.         Certified copies of the order be sent to the parties free of charge.

 

          Sd/-                                Sd/-                                         Sd/-

[DEV RAJ] MEMBER

[JUSTICE SHAM SUNDER (RETD)] PRESIDENT

[PADMA PANDEY] MEMBER