M/s Automotive Manufacturers Pvt. Ltd vs P. Gangadhar & 2 Ors

R.K. Agrawal, J., President Member

This Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (hereinafter referred to the Act), has been filed by M/s Automotive Manufacturers Pvt. Ltd., Opposite Party No.1 in the Complaint under the Act, against the Order dated 01.06.2017, passed by the Telangana State Consumer Disputes Redressal Commission at Hyderabad (hereinafter referred to as the State Commission) in First Appeal No. 224 of 2016.  By the Impugned Order, the State Commission has partly allowed the Appeal, preferred by the Petitioner herein, and modified the Order dated 31.08.2016, passed by the District Consumer Disputes Redressal Commission, Adilabad (hereinafter referred to as the District Commission) in Consumer Complaint No. 55 of 2015, by setting aside the direction given by the District Commission to the Petitioner to replace the vehicle with new on returning the old model vehicle or to return the sale consideration of Rs.6,36,342/- and directing the Petitioner to pay a sum of Rs.1,88,824/-, being the difference amount of depreciation of the vehicle in question, along with interest @ 9% per annum from the date of purchase, i.e. 12.05.2014, till payment and further directing to pay a compensation of Rs.25,000/-.  In addition thereto, the costs amounting to Rs.2500/- awarded by the District Commission were retained by the State Commission.

The facts in brief are that on 12.05.2014 the Complainant, Respondent No.1 herein, approached the Petitioner, a Dealer of Mahindra & Mahindra Company vehicles, and purchased a vehicle, namely, Mahindra Quanto C2, for a sale consideration of Rs.6,36,342/-, for which Receipt No. 1415225 dated 12.05.2014 and Invoice, showing the year of manufacturing of the vehicle in question as 2014, were issued by the Petitioner and the vehicle was delivered to the Complainant on the same date.  On 26.06.2014 the Road Transport Authority, Adilabad registered the vehicle and given the registration number as TS-01-UA-0112.  Upon receipt of Registration Certificate (RC), the Complainant came to know that the vehicle was an old model and not a new vehicle, as it was manufactured in the month of August 2012 and not May 2014.  Upon the matter being taken up with the Petitioner, the Complainant was assured that 2014 model vehicle would be provided to him after contacting with Opposite Parties No. 2 and 3/Respondents No. 2 and 3 herein but all in vain.  Alleging that the Opposite Parties, including the Petitioner herein, had cheated and misguided the Complainant by delivering an old model vehicle of 2012 instead of 2014, which put him to financial loss and caused mental agony, the afore-noted Complaint came to be filed before the District Commission, seeking a direction to the Opposite Parties to return the sale consideration with 12% interest from the date of purchase or provide a new vehicle and also pay a sum of Rs.1,00,000/- as compensation and Rs.50,000/- as costs.

Upon notice by the District Commission, the Opposite Parties, including the Petitioner herein, contested the Complaint and filed their joint Written Version.  While admitting that the Complainant had purchased the vehicle in question from the Petitioner on 12.05.2014 by paying the aforesaid sale consideration, it was contended on their behalf that the Complaint was not maintainable in law or on the facts and was liable to be dismissed in limine.  While the Complainant was using the vehicle in question for ‘commercial purposes’, in order to enrich himself unjustly he had filed the Complaint by suppressing and misrepresenting the material facts.  When the Complainant approached the Petitioner on 12.05.2014 with a desire to purchase Mahindra Quanto C2 vehicle with a “silver” colour for taxi purpose, Opposite Party/Respondent No.2 after verifying the stocks intimated him that the vehicle sought for manufactured in the month of August, 2012 in the said colour was available.  With his own accord, the Complainant purchased the said vehicle, which was delivered to him after receiving the sale consideration.  None of the Opposite Parties misguided or cheated him, as alleged in the Complaint.  After registration of the vehicle in question with the Road Transport Authority on 26.06.2014, the vehicle was brought to the service centre of the Opposite Parties on several occasions, i.e. on 13.08.2014, 10.12.2014, 26.02.2015, 02.05.2015, 06.05.2015 and 30.06.2015 and though the vehicle had run for 51,540 KMs. on none of the occasions any complaint about its being manufactured in the year 2012 was made by the Complainant.  It was only afterthought of the Complainant that after 1½ years from the date of purchase of the vehicle in question, the Complaint had been filed to grab illegal gains from the Opposite Parties.

The District Commission after hearing learned Counsel for both the Parties and on appreciation of the evidence adduced and the documents filed by them, while dismissing the Complaint as against Opposite Parties No. 2 and 3/Respondents No. 2 and 3 (Branches of the Petitioner), allowed the Complaint in part as against the Petitioner, holding that there was deficiency in service on its part in providing an old model vehicle to the Complainant and consequently issued the aforesaid directions, including the direction to replace the vehicle in question.

Aggrieved with the Order passed by the District Commission, the Petitioner herein carried the matter in Appeal before the State Commission.  The State Commission on reappraisal of the matter and the documents placed before it partly allowed the Appeal, observing and directing thus:

“12) It is not in dispute that the Appellant had sold the vehicle in dispute to the Respondent for a consideration of Rs.6,36,342/- on 12.05.2014.  It is also not in dispute that the vehicle supplied to the Respondent is of 2012 model.  The only dispute is that at the time of delivery, it was stated by the Appellant that the vehicle is of 2014 model and that after registration of the vehicle, it has come to the knowledge of the Respondent that the vehicle is make of 2012 year.  On complaint, the Appellant assured to replace the vehicle by consulting the Respondents 2 and 3.

13)  The counsel for the appellant would contend that the Respondent No.1 is not a ‘consumer’ as defined under the Act as the same is put to commercial use, which is negated by the counsel for the Respondent No.1 relying on the Judgment rendered by Hon’ble Supreme Court of India in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, AIR 1995 SC 1428, wherein it was clearly observed that if the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self-employment’, such purchase of goods is yet a ‘consumer’.  In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a ‘commercial purpose’ and he does not cease to be a consumer for the purposes of the Act.  Evidently, from Ex.A3, it is clear that the Respondent purchased the vehicle by availing loan from M/s Mahindra & Mahindra Financial Services Ltd., Nirmal.  Hence, the Respondent No.1 very much falls within the definition of ‘consumer’ and is not a ‘commercial purpose’ as the same is being used for the purpose of his earning livelihood.  We totally agree with the contention put-forth by the counsel for the Respondent No.1.

14)  Both the appellant and the respondent No.1 failed to bring on record the copy of invoice so as to verify whether there is a mention of manufacturing year and month of the vehicle on it.  However, the counsel for the Respondent No.1 filed the copy of invoice, copy of statement of account of loan, copy of cover note of the vehicle at the first instance and copy of the vehicle at the second instance and copy of the certificate of registration and would contend that only from the verification of Certificate of Registration, it has come to the knowledge of purchaser that the vehicle is of 2012 model but not 2014 model.  It is the specific case of the Respondent No.1 that, on complaint, the appellant assured to replace the vehicle by consulting Respondents No. 2 and 3, which is denied by the Appellant.  Be that as it may, it is not in denial that the Appellant supplied 2012 model vehicle.  The Appellant would contend that as the Respondent No.1 opted for silver colour, the subject vehicle was delivered and the same was received after due verification.  We may state that the dispute is with regard to supply of old model vehicle but not against the colour.  In the light of the same, we do not believe the contention of the Appellant to be true.  On account of supply of 2012 model, the Respondent No.1 suffered agony and loss, which is quite natural as the value of the vehicle will be decreased even without being put to use.  Probably, to sell-out the old model, the Appellant appears to have enjoyed such a tactic.

15)  The counsel for the Respondent No.1 would contend that a perusal of the cover note bearing USGIA 0001462212 of Universal Sompo General Insurance Co. Ltd., for the period from 12.05.2014 to 11.05.2015 would go to show that the value of the vehicle insured is shown at Rs.6,04,524/- while the value in the invoice is shown as Rs.6,36,342/- and at the time of insurance for the subsequent period, obtained with Chola MS General Insurance vide policy No.3368/00705253/000/00 for the period from 22.05.2015 to 21.05.2016, the value of the vehicle is shown at Rs.4,15,700/-, thus, there is a decrease in the value of the vehicle to the tune of Rs.1,88,824/-.  Even a perusal of statement of account would go to show that the insured amount is shown at Rs.6,36,342/- and the premium amount is shown as Rs.26,800/-.  Though the insured amount is shown as Rs.6,36,342/- in the statement of account, the IDV (insured’s declared value) is shown as Rs.6,04,524/-.  Nothing prevented the appellant from mentioning the value of the vehicle at Rs.6,36,342/-.  However, this fact is not denied by the Appellant.

16)  It transpires that during the pendency of the complaint before the District forum as also the appeal before this Commission, the subject vehicle, in question, is put to use by the Respondent No.1, for his livelihood and is being run for more than 50000 kms.  In such a circumstance, the question which arises for consideration is as to what would be just and appropriate order to be passed in the facts and circumstances of the case.  In our view, the most appropriate order which can be passed would be to direct the Appellant to pay to the complainant the difference between the price paid to it by the Respondent No.1 and the insured value shown in the subsequent policy as the Appellant supplied the vehicle of 2012 model as against 2014 model.  As far as the registration charges and insurance amount are concerned, the Respondent No.1 would have to bear the same, as usual, an owner of vehicle does.  The value of the vehicle is admitted by both the parties at Rs.6,36,342/- and the insurance value of the vehicle at the first instance is shown at Rs.6,04,524/- while after on year, the value of the vehicle is shown at Rs.4,15,700/- thus, there is a decrease of Rs.1,88,824/-.

17)  For the reasons stated supra, ordering replacement of the vehicle or refund of the cost of the vehicle would not justify under any circumstance.  The Appellant, is, therefore, directed to pay a sum of Rs.1,88,824/- to the Respondent No.1 for supplying 2012 model vehicle instead of 2014 model.  In this regard, we lay our hands on the Judgment rendered by Hon’ble National Commission in the matter of Shree Automotives Pvt. Ltd. and another vs. Partha Kumar Chatterjee, decided on 24.09.2014 in RP No. 2860 of 2014.  We may further state that the Appellant as a dealer is responsible for its own acts in supplying the vehicle of old model, to which, the Respondents No. 2 and 3 are no way responsible.

18)  The learned counsel for the appellant would contend that a person who buys a goods or commodity has to keep eyes wide open and has to be aware about the product or good being purchased.  Further, that when the Respondent No.1 had taken the vehicle with the knowledge of the year of manufacturer and model of the year and used it, the customer is not entitled to raise a plea of unfair trade practice and in that regard, relied on the Judgment rendered by Hon’ble National Commission, New Delhi in the matter of Marine Container Services (Ind) Pvt. Ltd. vs. Mercedez Benz India Ltd., and another, reported in (2011) NCDRC 43, decided on 20.01.2011.  We may state that the facts in the case reported therein and the facts in the case on hand are different and distinct.  In the said case, the purchaser had knowledge about the model and manufacturer year of the car, whereas, in the case on hand, the purchaser had no knowledge of the year and manufacture of the vehicle.  For the aforesaid reason, we answer the point framed for consideration at paragraph No. 12, supra, accordingly.

19)  In the result, we allow the appeal in part and modify the orders of the forum below dated 31.08.2016 made in CC No.55/2015 setting aside the direction to replace the vehicle with new one on returning the old model vehicle or to pay the sale consideration amount of Rs.6,36,342/- and we direct the Respondent No.1 to pay Rs.1,88,824/- being the difference amount of depreciation of the vehicle in question, along with interest @ 9% per annum from the date of purchase i.e. 12.05.2014 till payment and further direct to pay a compensation of Rs.25,000/- and we retain the costs awarded by the forum below.  The appeal is disposed of accordingly and the parties to bear their own costs.  Time for compliance : four weeks.”

It may be mentioned here that in terms of Para-17 of the Order passed by the State Commission, reproduced above, the depreciated value of Rs.1,88,824/- with interest, as awarded, is to be paid by the Petitioner (the Appellant before the State Commission) to the Complainant (Respondent No.1) and not by the Complainant (Respondent No.1) to the Petitioner.  Therefore, it appears that in Para-19 of its Order the State Commission has inadvertently directed “Respondent No.1” to pay the said amount whereas it should be “Appellant”, the Petitioner herein.

Still aggrieved with the Order passed by the State Commission, the Petitioner is before us in the present Revision Petition.

We have heard learned Counsel for the Petitioner and have perused the Orders passed by the State Commission and the District Commission, grounds taken in the Memo of Revision Petition and the documents filed along with it.

Learned Counsel for the Petitioner stated that the State Commission erred in not considering that upon verification of the Registration Certificate issued by the Road Transport Authority on 26.06.2014 the Complainant had come to know that the vehicle in question was a 2012 model and not a 2014 model and that the Complaint had been filed after 1½ years i.e. on 18.08.2015, by which time he had already driven the vehicle in question for 51,540 kms. and availed regular and periodical services from the workshop/service centre of the Petitioner on various dates, stated above; the Complainant was estopped from making the present claim; had the Complainant aggrieved by the sale of an old model, he would not have driven it for more than 50,000 kms. and availed all the services for the same; the vehicle was being used for ‘commercial purposes’ and as such the Complainant was not a ‘consumer’ under the Act; availing loan and thereafter purchasing the vehicle in question is not sufficient to hold that the Complainant was a ‘consumer’ and was not using the vehicle for ‘commercial purposes’ on the ground that he was using it for earning his livelihood; the insurance papers of both Universal Sompo General Insurance Co. Ltd. and Chola MS General Insurance Company were not produced before the District Commission and could not have been relied upon by the State Commission; and, therefore, the Order passed by the State Commission is liable to be set aside.

The Complainant has sent his written submissions, justifying the Order passed by the State Commission on the ground that the State commission has reasonably modified the Order passed by the District Commission and, therefore, the present Revision Petition, which has been filed by the Petitioner against the Order passed by the State Commission, deserves to be dismissed.

The contention of the Petitioner that the Complainant was always aware that the vehicle in question was a 2012 model and, therefore, estopped from filing the Complaint after 1½ years, by which time he had already driven the vehicle for more than 50,000 kms., is misconceived.  For filing a Complaint, Section 24A of the Act provides for a limitation period of two years from the date on which the cause of action has arisen.  Admittedly, the vehicle in question was purchased on 12.05.2014 and the Complaint had been filed on 18.08.2015. Even if the contention of the Petitioner is accepted that the Complainant was aware about the vehicle being 2012 model since 12.05.2014, when the cause of action accrued upon purchase of the vehicle in question, the Complaint filed on 18.08.2015 was certainly within the limitation period of two years as it had been filed precisely after 1 year, 3 month and 6 days.

Further, as the direction given by the District Commission to replace the vehicle or to return the sale consideration has been set aside by the State Commission, it is not necessary for us to comment anything on the question whether the Complainant was justified in taking the vehicle in question to the workshop/service centre for periodical services, without complaining about it being of old model 2012, and in plying/running the vehicle, which had covered more than 50,000 kms. as on the date of filing of the Complaint.  Had the said direction been not set aside by the State Commission, the said question would have been relevant, having a bearing on the fate of the Complaint.

Coming to the plea of the Petitioner that the Complainant was not a ‘consumer’ under the Act as he was using the vehicle in question for ‘commercial purposes’, we find that no supporting document/evidence has been filed by the Petitioner either before the Fora below or before this Commission. In the absence of the same, it cannot be not be ascertained whether the Complainant was doing any business, wherein he had a number of vehicles, including the vehicle in question, and was generating profits by using the said vehicles for commercial purposes, or to the contrary he had only the vehicle in question and he was using it for earning his livelihood.  The burden to prove the plea taken is on the Petitioner but it has failed to prove it.  Merely stating that the Complainant was not a ‘consumer’ is not sufficient to hold so.  In such a situation, the presumption would be that the Complainant was a ‘consumer’ and, therefore, the State Commission has rightly negated the stated plea though on different ground.

As regards the last submission of the learned Counsel for the Petitioner that the insurance papers of both the aforesaid Insurance Companies were not produced before the District Commission and, therefore, the State Commission could not have relied upon the same while passing the Impugned Order, it may be stated that there is no bar as regards production of additional document/evidence. Any party, be it plaintiff or defendant, may file the additional document/evidence along with an Application, seeking permission to file the same.  In the present Case, it appears that certain documents, including the insurance papers, were filed by the Complainant before the State Commission and the State Commission while exercising its Appellate Jurisdiction and in order to do complete justice between the parties, has taken into consideration the said insurance papers and only thereafter it has partly allowed the Appeal, preferred by the Petitioner, by setting aside the direction given by the District Commission to the Petitioner to replace the vehicle in question or return the sale consideration to the Complainant and in its place directing the Petitioner to pay the depreciated value of the vehicle in question, quantified at Rs.1,88,824/-, along with 9% interest together with compensation of Rs.25,000/-.  In our considered opinion, there is no illegality or perversity in the Order passed by the State Commission.  We uphold the same.

In the result, the Revision Petition fails and is dismissed accordingly.