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2014 SCC OnLine NCDRC 659

National Consumer Disputes Redressal Commission New Delhi

(From order dated 27.11.2013 in First Appeal No. 615 of 2010 of the Delhi State
Consumer Disputes Redressal Commission, Delhi)
Fiat India Pvt. Ltd. Now Known as New Holland Fiat (India) Pvt.
Ltd. through its Director, 303, Central Plaza, 166, CST Road,
Kalina, Mumbai-400 098, Maharashtra … Petitioner;
Versus
1. Mr. Syed Hasan Bukhari S/o Jb. Syed Abdullah Bukhari, R/o
4099, Bukhari House, Nizamul Mulk Sreet, Jama Masjid Delhi-
110 006
2. M/s Vivek Automobiles through its Director/Manager, A-1,
Mohan Cooperative Industrial Estate, Mathura Road, New Delhi
… Respondent.
Revision Petition No. 1235 of 2014
Decided on October 10, 2014
For the Petitioner : Mr. Puneet Aggarwal, Advocate
For the Respondent No. 1 : Mr. Rais Farooqui, Advocate
For the Respondent No. 2 : Nemo
ORDER
DR. S.M. KANTIKAR, MEMBER:— The present Revision Petition has been filed before
this Commission under Section 21(b) of the Consumer Protection Act, 1986 against
the impugned order dated 27.11.2013 in Appeal No. 615/2010 passed by the State
Consumer Disputes Redressal Commission (in short, ‘State Commission’). The State
Commission allowed the Appeal filed by the Appellant and modified the order passed
by the District Consumer Disputes Redressal Forum, (in short, ‘District Forum’) in
Complaint No Consumer Complaint 299 of 2006 dated 21.11.2013.
2. This Revision Petition pertains to manufacturing defect, and the question arises
that who will be liable whether the manufacturer or the dealer. The Complainant
purchased Fiat Palio Car on 23.02.2002 from the dealer M/s Vivek Automobiles (OP-2)
who was the dealer of the car manufacturer M/s Fiat India, OP-1. On 09.04.2002, the
Complainant noticed defects for which the Complainant approached OP on the same
day i.e. on 09.04.2002 then on 13.06.2002 and thereafter on 29.07.2002, 08.08.2002,
23.09.2002, 06.10.2002, and two more times and then on 20.11.2002, 2811.2002,
16.12.2002, 14.04.2003, 30.10.2003, 16.12.2003, 29.12.2003, 16.01.2004,
19.05.2004, 28.05.2004, 25.07.2004, 05.03.2005, 08.03.2005, 13.03.2005 and
finally on 27.05.2005. The Complainant took the car to the authorized garage at OP-2
for removal of defects. The car was serviced for 6 times but no satisfactory results the
defects continued to persist. The Complainant took 2 years extended warranty. Once
at the instance of OP-2 the Complainant took the car to inter workshop namely
“Dynamic Automobiles” in Noida for removal of defects which cannot be rectified there
as well. Due to malfunctioning of the car, the Complainant met with an accident to but
escaped unhurt. Hence, alleging the deficiency in service and unfair trade practices.
The Complainant filed a complaint before the District Forum with a prayer that OPs be
directed to refund complete amount paid, and also compensation for mental agony
and cost.
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3. The District Forum allowed the complaint and passed an order dated 21.06.2010
awarding an amount of Rs. 40,000/- to the Respondent No. 1 as compensation on
account of harassment and mental agony and cost of litigation.
4. Aggrieved by the order of the District Forum the Complainant preferred an First
Appeal before the State Commission and prayed for enhancing the quantum of
compensation. The State Commission allowed the Appeal and modified the order of
the District Forum and passed an Impugned Order which enhanced the amount
awarded by the District Forum to Rs. 80,000/-and further directed the Petitioner to
pay a sum of Rs. 3,60,000/- as price of the car and cost of Rs. 10,000/- to the
Respondent No.-1.
5. Therefore, the Petitioner/OP challenged the order of the State Commission by
filing this Revision Petition.
6. I have heard the learned Counsel for both the parties. The counsel Petitioner
vehemently argued that, the Appeal filed by the Complainant before the State
Commission was time barred, the Complainant had already received award amount of
Rs. 60,000/- from the OP. I have perused the copy of the receipt issued by the
Complainant in favor of OP. The car was already run for 3 years, about 47781 kms, and
thereafter the consumer complaint was filed by the Complainant for alleged
manufacturing defect of mileage. Hence, there were no manufacturing defects and any
deficiency in service on the part of the OP.
7. The counsel further submitted that relationship of dealer and manufacturer is on
“Principle to Principle” basis. Hence, the OP-2 was not an agent of the Petitioner/OP.
He also relied upon the judgment of this Commission in Maruti Udyog Ltd. v. Nagender
Prasad Sinha, RP/674/2004 which was decided on 04.05.2009. The OP/Petitioner is
not a service provider but a manufacturer. He further submitted that, the Fora below
never sought any expert opinion regarding the manufacturer defects. Hence, prayed
for dismissal of the complaint.
8. I have perused the agreement (Anx R-2) between the OP-1 and OP-2, the Clause
1.4 states as:—
1) It is hereby expressly agreed and acknowledged between the parties hereto that
the dealer is a legal entity separate and distinct from the Company in all legal,
financial and economic respects and shall carry on the dealer business referred to
in this agreement under its own name and at its sole risk. The Dealer is in no
way the agent or representative of the company and shall not describe or
represent itself as such. The dealer has no right or authority to bind the company
under any contract or by any representation whatsoever whether express or
implied with any third parties or to assume any obligation express or implied in
relation to any third parties on behalf of the company.
9. Thus, it is clear that, as per terms if Dealership Agreement, after sales services
are to be rendered by the dealer. OP-2 has sold the car to the Complainant
independently in perfectly running/roadworthy condition. Thereafter, rendered the
services whenever brought to his workshop. It is quite surprising that, why
complainant waited for 3 years to file a complaint? It appears the intentions of
complainant were not bonafide. It was negligence on the part of the complainant also,
it was contributory negligence. The defects mentioned in the job cards are repairable.
Therefore, the complainant does not deserve for full price, except for the compensation
towards the repairs only.
10. On the basis of the entirety of facts, evidence on record and the agreement
clause 1.4 as stated supra, the petitioner-manufacturer is not liable to pay
compensation. Accordingly, I set aside the order passed by the State Commission and
direct the dealer, the OP-2 shall repair the vehicle and make it roadworthy within 30
days from the receipt of the order and would issue fresh warranty for 6 months. It is
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also borne in mind that, the complainant visited several times to OP-2 who suffered
loss and mental agony, for which Rs. 1,00,000/- to be awarded as just and proper
compensation. The order shall be complied within 60 days from the date of receipt of
the order otherwise it will carry interest @ 9% till its realisation. No order as to costs.
———
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