Complaint filed on: 28-09-2021
Disposed on: 31-05-2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU
CC.No.74/2021
DATED THIS THE 31st DAY OF MAY, 2022
PRESENT
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER
Complainant: -
Padmashree.B.T,
D/o Thimmaiah,
Aged about 23 years,
R/at Byala village, Bellavi Hobli,
Tumakuru Taluk
(By Sri.Ramesha, Advocate)
V/s
Opposite parties:-
- The officer In-charge,
Kia India Pvt. Ltd,
Godrej Woods Man Estate
Hebbal Kempapura,
Bengaluru – 560 092
- The Officer In-charge
Taapasi Motors Pvt. Ltd
Authorized Dealers of
Kia India Pvt. Ltd
No.5AC-722 and 725
8th Main Road, HRBR Layout,
Kalyana nagar, Bengaluru - 560043
(OP No.1-By Sri.Himanand.D.C, Advocate)
(OP No.2-By Sri.B.Siddeshwara & Associates)
ORDER
SMT.G.T.VIJAYALAKSHMI, PRESIDENT
This complaint was filed by the complainant under Section 35 of Consumer Protection Act, 2019 to direct the Opposite parties (hereinafter called as OP No.1 and OP No.2) to give back the excess amount of Rs.2,62,000-00 with interest and registered the car before the proper authority by incurring all the fine and expenses and to pay Rs.10,00,000-00 towards compensation, Rs.5,00,000-00 towards damages and Rs.50,000-00 towards cost of litigation with interest to the complainant.
2. It is the case of complainant that, the 1st OP is the Corporate Office situated at Bengaluru and the 2nd OP is the Authorized dealer of Kia Motors. The complainant intends to buy Kia HTK 1.5 diesel car on part payment and part loan and she got invoice for the said car from the 2nd OP for the loan purpose and accordingly the 2nd OP has given quotation on 12-01-2021 through invoice stating on road price of the said car was Rs.14,96,103-00. On 6-2-2021 the complainant has paid Rs.5,50,000-00 and on 10-2-2021 she paid Rs.2,50,000-00 by way cash to the 2nd OP and the 2nd OP has issued receipt to the complainant. On 23-2-2021 the bank officials have issued DD for Rs.7,00,000-00 to the 2nd OP and accordingly the complainant has paid Rs.15,00,000-00 to the 2nd OP towards purchase of Kia Seltos Car. On 2-4-2021 the 2nd OP has delivered the car to the complainant with chassis No.MZBEP813LMN227518 and Engine No.D4FAMM235826 with temporary Reg.No.KA2021-TR-2490V with insurance and same was hypothecated to Canara Bank, Narayana Hrudayalaya Branch, Bengaluru.
The complainant further submitted that, the 2nd OP has not registered the said car at the RTO office, Tumakuru and also not submitted the documents before the bank and not given the documents of the car to the complainant. The complainant requested the 2nd OP several times for getting permanent registration of the car. On 23-8-2021 the 2nd OP issued notice to complainant demanding for balance amount of Rs.5,13,000-00 for registration of the car.
The complainant further submitted that, the OPs have committed deficiency of service and cheating and defrauding the complainant. The OPs have received excess amount from the complainant against the actual value of the car and the OPs have not get the permanent registration of the car well within time. Due to that the complainant has suffered both mentally and physically and not used the said car without permanent registration number. On 17-9-2021 the complainant has issued legal notice to the 2nd OP calling upon him to clear legal formalities for getting permanent registration of the said car. The said notice was duly served to the 2nd OP but till today the OPs have not responded to the said notice. The OPs have committed deficiency in service. Hence, this complaint.
3. After the service of notice, the OP No.1 and 2 have appeared through their learned counsel and filed separate written version.
4. In the written version, the 1st OP submitted that with respect to the allegation of the complainant towards excess amount being charged for the concerned vehicle and non registration of the concerned vehicle by the 2nd OP, it is stated that the 2nd OP is an authorized dealer/service centre of the 1st OP and not its agent and they work on principal-to-principal basis. Further the complainant has not been able to proof any allegation/deficiency in service on the part of the 1st OP and thus it is humbly submitted that no adverse inference can be drawn against the 1st OP. Since there is no allegation made against the 1st OP, thus there exists no liability of 1st OP towards the complainant and the present complaint is a mis-joinder of parties as the 1st OP is neither a necessary nor a proper party for the adjudication of the present complaint. The OPs no1 and 2 are separate legal entities and work on the principal to principal basis as per the agreement signed between the parties. Thus the 1st OP is not responsible for the alleged acts and representation of the 2nd OP. Hence the 1st OP prayed to dismiss the complaint.
5. In the version, the 2nd OP submitted that, the relief claimed against the 2nd OP is false, vexatious and not maintainable either in law or on facts and the same is liable to be dismissed in limine. The complaint is not maintainable for the fact that necessary parties are not made parties to the complaint. The complainant has not approached the OP nos.1 and 2 directly and she approached through DSA agent Mr.Sujith Subramanian. The said DSA agent has given him proforma invoice by using the employee. As per rules and regulations, Rs.1,99,000-00 no cash will be collected and so the said statement of the complainant paying Rs.5,50,000-00 to the 2nd OP on 6-2-2021 and Rs.2,50,000-00 on 10-2-2021 is purely false and the transaction is between the said DSA agent and the complainant, the said transaction is not within the knowledge of the 2nd OP. Without completing the total payment by colluding with the DSA agent and internal staff, the complainant has taken the delivery of the car which is a huge loss to the 2nd OP. The complainant has not produced any proof of making full payment to the 2nd OP and all other allegations made in the complaint is hereby denied as false and the complainant is to put strict proof. Hence, the 2nd OP prayed to dismiss the complaint with cost.
6. On behalf of complainant, the SPA holder of complainant has filed affidavit evidence and produced Exs.P1 to P15 documents. On behalf of 1st OP one Ms.Prerna Kothari, Executive-legal has filed her affidavit evidence and on behalf of 2nd OP one N.Varshitha, Authorised representative has filed affidavit evidence and also filed certified copy of FIR and complaint.
7. We have heard the arguments of the learned counsel for the complainant and OPs and also perused the materials on record. The points that would arise for determination are as under:
1) Whether the complainant proves that there is deficiency in service on the part of OPs?
2) Is complainant entitled to the reliefs sought for?
- Our findings aforesaid points are as under:
Point No.1: In the affirmative
Point No.2: As per the final order
REASONS
- Point Nos.1 and 2:
Admitted facts between the parties are;
- The complainant purchased the Kia Seltos Diesel car/vehicle from the 2nd OP on 23-2-2021 the bank officials had issued DD for Rs.7,00,000-00 to the 2nd OP. On 10-2-2021 Rs.2,50,000-00 paid by way of cash and on 6-2-2021 Rs.5,50,000-00 paid. On perusal of the receipt voucher dated 6-2-2021, it is clearly mentioned that the amount transferred through KBL C-account and receipt voucher dated 10-2-2022, specifically mentioned that “the cash received by chandan”.
- The car was temporarily registered with Chassis no.MZBEP 8132MN227518 and Engine no.D4FAMM235826 with temporary Reg. no.KA2021-TR-2490V with insurance and same was hypothecated to Canara Bank, Narayana Hrudalaya branch, Bengaluru and also the 2nd OP issued Tax Invoice for Rs.11,69,000-00 on 31-3-2021. The 2nd OP has not permanently registered the said car at the RTO office, Tumakuru and also not submitted the documents before the bank and not handed over the documents of the car to the complainant.
- On 23-8-2021 the 2nd OP issued notice to complainant demanding for balance amount of Rs.5,13,000-00 for registration of the car (Ex.P2)
10. The main contention of the complainant is that, the 2nd OP after receiving the full amount, the delivered the car on 2-4-2021 with temporary registration and failed clear legal formalities for getting permanent registration of the said car.
11. On the contrary, the contention of the 2nd OP is that, the complainant not approached the 2nd OP directly and she approached through DSA agent Mr.Sujith Subramaniam. The said DSA agent has given him proforma invoice by using the employee. As per rule and regulations more than Rs.1,99,000-00 no cash will be collected. Thus the payment of Rs.5,50,000-00 on 6-2-2021 and Rs.2,50,000-00 on 10-2-2021 is denied. Further, the 2nd OP submitted that, without completing the total payment by colluding with the DSA agent and internal staff, the complainant has taken the delivery of the car and the complainant has not produced any proof of making full payment to the 2nd OP.
12. On perusal of the Ex.P2 produced by the complainant, it is seen that, the proforma invoice issued on 12-1-2022, the Ex-showroom price of the car is Rs.11,69,000-00, TCS @ 0.75, Road Tax @18.87% and fastag, registration charges, Accessories kit. Totally for Rs.14,96,103-30 issued proforma invoice and totally collected Rs.15,00,000-00 from the complainant.
13. The Terms and Conditions of Proforma invoice read as follows;
“2. Approximate delivery will be 3 weeks from the date of confirmed PO/PAYMENT.
6. Invoicing & Registration of the vehicle against Full payment.
7. Cars would be delivered only after the realization of cheques/DD & after the RTO registration”
Lastly, it clearly mentioned that “For further assistance kindly contact Mr.Arun”. As per the above terms and conditions, without confirmation of full payment, there is no invoicing, temporary registration and delivery of the vehicle taken place.
14. During the course of arguments, the counsel for complainant submitted that, when he visited showroom, the complainant approached team leader “Arun”, where he issued proforma invoice, in his presence only cash paid in counter and received the acknowledgement. Team leader “Arun” is also present at the time of taking the delivery of the car. Arun is staff/employee of the 2nd OP and he is not an agent/3rd party to the 2nd OP showroom. From the first day to till delivery of the car, Arun assisted the complainant. On the strength of the proforma invoice dated 12-1-2021 given by the team leader “Arun”, the bank sanctioned the loan and DD dated 23-2-2021 given by the bank directly for Rs.7,00,000-00 (Ex.P3).
15. The counsel for the 2nd OP submitted that, the 2nd OP on 8-10-2021 lodged the complaint in Banasawadi police station and it is in investigation stage. The certified copy of FIR and complaint produced by the 2nd OP discloses that, there is some problems in the 2nd OP organization between staff and management like forgery, fraud and misappropriation of funds from the staff name “Arun, Sujith Subramanian, Alfred Ramachandran, and Siddarajaiah.H.K. This problem is purely 2nd OP internal problem. Knowing all these things and after lapse of four months, the 2nd OP issued notice dated 23-8-2021 (Ex.P12) to the complainant and it read as follows;
“We are hereby issuing the notice. Our relationship started with your purchase of KIA car. The vehicle was delivered to you on 2-4-2021 with T.R.No.KA2021-TR-2490V and Insurance No.KIA/SN827822.
We regret to inform that, during our internal audit it was found that you have not paid full price of the vehicle as d detailed below. We could not immediately indentify the errors.
Car Model : KIA SELTOS HTK MT 1.5 DIESEL
Chassis No : MZBEP813LMN227518
T.R.No (Reg. Number : KA2021-TR-2490V
Invoice Price of the car : 12,38,000.00
(On the date of delivery)
Amount paid by you as per
Our records : 7,25,000-00
Balance Due : 513,000.00”
16. After delivery of the car on 2-4-2021 with temporary registration dated 31-3-2021, the 2nd OP raised the objections regarding payment made by the complainant and also made some allegations against complainant. The complainant has taken the delivery of car colluding with the staff. For this, the 2nd OP has not placed any convincing material to show that the complainant has colluded with staff and taken delivery of the said car. The 2nd OP is not disputed the proforma invoice and Tax invoice issued by the staff (i.e. Arun) and bank sanctioned the loan for Rs.7,00,000-00 on the basis of proforma invoice. But disputed the sales voucher issued by the staff on 6-2-2021 and 10-2-2021 for Rs.5,50,000-00 and Rs.2,50,000-00 respectively.
17. For the fault of internal staff of the 2nd OP the complainant was compelled to approach this Commission for documents and permanent registration pertaining to the KIA Seltos HTK MT 1.5 Diesel car. The internal dispute between the staff and 2nd OP management does not taken away the rights of the complainant. Hence, for the acts of staff/employees, the employer will be liable.
18. In the course of arguments, the learned counsel for the 1st OP submitted that, the 1st OP is manufacturer and there is no allegation against the 1st OP. Further the 1st OP relying upon the following citations are;
1) The Hon’ble Supreme Court in Intercard (India) Ltd. V. Merceds-Benz India Pvt. Ltd. and Anr. (R.P.C. No.599 of 2015) upheld the order of the NCDRC in Mercedes-Benz India Pvt. Ltd. and Anr. v. Intercard (India) Ltd.(First Appeal No.100 of 2009) where it has conclusively held that the authorized dealers are not the agents or distributors of the manufacturer (OP-1 herein) hence the answering OP cannot held liable against any action of the dealer:
2) Tata Motors Ltd. v. Bhupinder Singh (NCDRC, order dated 24-5-2010).
3) SGS India vs. Dolphin International Ltd. (AIR 2021 SC 4849).
The principles laid down in the above citations are squarely applicable to the present case on hand therefore, the 1st OP is not liable to pay any compensation to the complainant and the present complaint is liable to be dismissed against the 1st OP.
19. Without permanent registration from 29-4-2021 to till today, the car is not used by the complainant but its value is diminished and deteriorated. As per rules of insurance company for one year depreciation is 10%. Without using the car, the value is decreased 10% and minimum 5% deteriorated. The complainant has purchased the said car for her daily use and also for taking her grandfather to the hospital from Tumkur to Bengaluru. Usually the car is purchased for convenient use like medical emergency to attend functions and visit temples at distance places and so on. But the purpose of purchasing the car is not served in the instant case. So the complainant has forcefully depending on rented car for daily use and other purposes. Hence, she is entitled to get the average expected expenses of Rs.20,000-00 per month.
Totally, the complainant is entitled the compensation in the following heads;
- Depreciation of the car from 31-3-2021 - Rs.1,11,055-00
to 31-5-2022. 10% on IDV value
(i.e.Rs.11,10,550-00 X 10)
2. Detoriation of the car Rs.55,527-00
5% on IDV value
(i.e.Rs.11,10,550-00 X 5)
3. Average expenses for the month is Rs.2,60,000-00
Rs.20,000-00 from 29-4-2021 to
31-5-2022 (i.e. Rs.20,000-00 X 13 months)
Total Rs.4,26,582-00
20. After collecting the full amount from the complainant, failed to clear legal formalities for getting permanent registration of the said car, amounts to deficiency of service on the part of 2nd OP. The 2nd OP already collected the amount from the complainant for Road Tax, Registration Charges, Fastag, Extended Warranty and Basic Accessories kit. Hence, the 2nd OP is liable to register the KIA HTK 1.5 diesel car of the complainant before the RTO by incurring all the fine and expenses. Hence, it is just and proper to direct the 2nd OP to pay Rs.4,26,582-00 as compensation and Rs.10,000-00 as litigation expenses. Accordingly, we proceed to pass the following:
ORDER
The complaint is allowed in part.
The 2nd OP is directed to register the Kia HTK 1.5 diesel car of the complainant before the proper authority by incurring all the fine and expenses.
Further the 2nd OP is directed to pay Rs.4,26,582-00 as compensation and Rs.10,000-00 as litigation cost to the complainant.
The complaint against the 1st OP is dismissed.
The 2nd OP is further directed to comply the above order within 30 days from the date of receipt/knowledge of the order.
Furnish the copy of order to the complainant and opposite parties at free of cost.
(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 31st day of May, 2022).
LADY MEMBER MEMBER PRESIDENT
