Fiat India Pvt. Ltd. vs Syed Hasan Bukhari

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. 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 23.2.2002 from the dealer M/s. Vivek Automobiles (OP -2) who was the dealer of the car manufacturer M/s. Fiat India, OP -1. On 9.4.2002, the Complainant noticed defects for which the Complainant approached OP on the same day i.e. on 9.4.2002 then on 13.6.2002 and thereafter on 29.7.2002, 8.8.2002, 23.9.2002, 6.10.2002, and two more times and then on 20.11.2002, 28.11.2002, 16.12.2002, 14.4.2003, 30.10.2003, 16.12.2003, 29.12.2003, 16.1.2004, 19.5.2004, 28.5.2004, 25.7.2004, 5.3.2005, 8.3.2005, 13.3.2005 and finally on 27.5.2005. 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 Nokia 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.

THE District Forum allowed the complaint and passed an order dated 21.6.2010 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. 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.

THEREFORE , the Petitioner/OP challenged the order of the State Commission by filing this Revision Petition.

I have heard the learned Counsel for both the parties. The Counsel of 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 favour 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. 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 and Anr.,, II (2009) CPJ 295 (SC) : RP/674/2004 which was decided on 4.5.2009. 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.

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.

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 bona fide. 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. 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 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.