JOHN RAMANATT vs THOMAS OOMMEN

APPEAL Nos. 804/98 and 951/98 are from order in OP. 132/98 on the file of the Consumer Disputes Redressal Forum, Pathanamthitta. The opposite parties 1 to 3 are appellants in APPEAL No. 804/1998 and opposite party No. 4 is the appellant in APPEAL No.951/1998. The complainant approached the District Forum with a grievance that attracted by Ext. A2 advertisement by the 4th opposite party, placed Ext. A1 vehicle order on furnishing the DD for Rs. 50,000/-. Before that on 8.7.1997 he had submitted Ext. A3 quotation for a Premier Diesel Car "Status" manufactured by the 4th opposite party. He paid the balance on 1.10.1997 and the vehicle was delivered on 12.1.1998. His grievance is that he was compelled to pay Rs. 7,000/- more towards the price of the vehicle which according to him was not consistent with Ext. A2 advertisement and hence the same would amount to unfair trade practice. Consequently he wanted return of the excess amount with compensation. Opposite parties 1 to 4 remained ex parte thereupon the complainants proved his case by getting itself examined as P.W. 1 and producing Exts. A1 to A4. On the basis of the said evidence the District Forum found unfair trade practice and on that finding made a direction to return excess payment of Rs. 7,000/- with Rs. 10,000/- as compensation and costs Rs. 500/-. Aggrieved by the said direction these two appeals are filed by opposite parties 1 to 3, and opposite party No. 4. The learned Counsel for the appellant urged, though they did not file any version and adduce evidence, it is open to them to show that even as per the evidence tendered by the complainant he is entitled to the relief that is now granted. It is also sought to be maintained, that if the order of the District Forum is violative of any provision of law, though the opposite party is ex parte he can show the order is infirm.

IT was sought to be maintained that Ext. A2 was not a complete document and a relevant portion of the same was deleted and only a part of the advertisement was produced, therefore, the said document could not have been made the basis for the finding. Then it is also urged that as per the condition in Ext. A1 the opposite parties are entitled to change the price without notice and the customer is bound to pay the price ruling at the time of delivery. The said condition in Ext. A1 ought to have been given effect in deciding the question. According to them had the District Forum adverted to the said aspect, the District Forum could not have reached the conclusion which it reached. On the other hand the learned Counsel for the first respondent/complainant sought to support the decision of the District Forum maintaining, that there was absolutely no intentional interference with the advertisement and the relative importance sought to be attached to the omitted portion is only negligible as could be revealed from the allegedly omitted part itself. Where as the rest of the portion in Ext. A2 advertisement was given emphasise, the said part is only insignificantly printed far below the advertisement. In short according to him the said part cannot be given any significance. The complainant had availed a loan on agreement to pay interest for paying price of the car and the delay in delivery of the car has inexhorably effected him inasmuch as he had to pay heavy interest on the said loan. Alongwith the Appeal 451 the appellant produced 4 documents with a petition to receive the same. Since the document, particularly document No. 1 is the full advertisement, we consider that the documents that are sought to be admitted in evidence are relevant and are also necessary for a complete and proper adjudication of the point involved. Therefore, these documents are received in evidence and are marked as Exts. A5 to A8.

With due regard to the nature of the contest the advertisement in question has got paramount importance. The material portion of the advertisement A1 reads- "Rush in. Zoom Out. Buy now and save Rs. 25,000/- ................................................... Special low price - Rs. 2,45,000/-. Test drive one today and make a quick decision as this offer is open for a limited period only. Offer closes on 15th July, 1997.

THE portion which is now stated to be omitted is in Ext. A5 the complete advertisement; it contains a statement to the effect that, ''the price is subject to change without notice''. THE very look at the advertisement would show, said part of the advertisement is certainly not as prominent or emphatic as the rest of the portion and it could be read only with much strain, the words are so small the same can escape even a watch full eye. This character of the advertisement bears a pivotal importance in judging whether the case of the complainant that there was unfair trade practice is acceptable or not. THE advertisement shows that the author of the advertisement intented to convey and catch the attention of the public is the discount that he offers and also the price of the vehicle which the advertiser describes is a special low price. In interpreting the effect of the advertisement the part that is non projected certainly inconsistent with the message and assurance which the advertiser wanted to convey to the public. THE advertisement without any ambiguity conveys the message that the author of the advertisement is prepared to offer the car, at the total price of Rs. 2,45,000/- provided the customer abides by the condition, the customer should avail the benefit on or before 15th July, 1997. Admittedly the complainant booked the car furnishing an advance of Rs. 50,000/- on 12.7.1997. Thus he complied with the condition in the advertisement. Now the effect of the condition in Ext. A1 has to be considered. Ext. A1 is dated 14.7.1997 whereas the advertisement offered to give the car for the aforesaid price, if the benefit is availed on or before 15.7.1997. Therefore, the advertisement has relevant and force covering the period of Ext. A1. Having regard to the said aspect one cannot read the effect of the said clause in Ext. A1 so as to nullify the effect of the advertisement. If really the opposite parties had no intention to deliver the car for the said price in Ext. A1 to the customer who had complied with the conditions therein, they could not have made such advertisement. In judging unfair trade practice, it is necessary to keep in view the definition of unfair trade practice under Section 2(1)(r) of the Act.

AS per the definition of ''unfair trade practice'' a practice which for the purpose of promoting sale adopts any unfair method or deceptive practice would be unfair trade practice. The public representation which would materially mislead public as to the price of a product will be taken in by the said definition. The sub-clauses in Section 2(1)(r) are not exhausive but are only illustrative as the definition is an inclusive definition. Admittedly, when the vehicle was delivered on 12.1.1998 the complainant had to pay Rs. 7,000/- more towards the price of the vehicle. Having made Ext. A2 advertisement the opposite parties could not have realised Rs. 7,000/- more claiming that the price was enhanced before the date of delivery. In the context it is not known as to when the price was increased by the manufacturer, that also is an aspect which will have bearing in considering the argument of the learned Counsel for the appellant. With due regard to the above, we are unable to agree with the learned Counsel for the appellants when they maintained that the advertisement could not have been made the basis for finding that the opposite parties are guilty of unfair trade practice. Learned Counsel for the appellant in Appeal 804 made an alternative argument that since himself is only a dealer and since the price was raised by the manufacturer, he could not have been made liable for the relief. Admittedly, he is the dealer and Ext. A5, the additional document gives the details of authorised dealers one among whom is the appellant in Appeal 804. There is no can that they were not aware of the advertisement by the manufacturer. They continued to project themselves as such and dealt with the complainant. We are not persuaded to agree with the learned Counsel for the appellant in Appeal No. 804 when it is urged that since they are only the dealer, they cannot be made liable for the relief granted by the District Forum. The last argument by the learned Counsel for the appellants was at any rate the compensation awarded is on the higher side, particularly as the compensation exceeds the amount that is claimed to have been received in addition by the opposite parties. It is also urged by the learned Counsel that no basis for fixing the quantum of compensation also is revealed from the order. In para 6 of the impugned order the District Forum finds that there is delay in delivery of the vehicle and also unfair trade practice. It is on the said finding that the District Forum fixed the quantum of compensation at Rs. 10,000/-. It is urged by the learned Counsel since there is only a delay of 2 months and 10 days from the date of final payment, the said delay cannot be considered to be such that the manufacturer or the dealer could be made liable to pay compensation. The learned Counsel for the complainant sought to support the fixing of compensation on the ground that Ext. P4 would show that the complainant availed a loan for purchasing the vehicle. How far the delay in delivery of the vehicle would have relevance in fixing the compensation should be considered in the context of the said aspect also and the finding of unfair trade practice also should have bearing on the question of quantum of compensation. We have confirmed the finding that have unfair trade practice. As indicated, the nature of the deriliction should necessarily have nexus in fixing the compensation. Even assuming delivery was delayed by a period of 2 months and 10 days though by itself need not be the basis for awarding compensation in addition to the fact that the complainant had availed a loan and also that the opposite parties are guilty of unfair trade practice are that cannot be ignored and when the totality of the aforesaid deriliction is taken into account, we consider that the compensation fixed is not on the higher side. We see nothing to interfere; the appeal fails and the same is dismissed. Appeal dismissed.