KAMAL AND COMPANY vs Anil Kumar Daga

-THESE 134 appeals involved identical facts and raised common question of law and facts. THESE were, therefore, heard together and are now being disposed of by this combined order.

M/s. Kamal and Company, the appellant in all these appeals, is a partnership firm engaged in the business of marketing the products of manufacturer of automobiles. In so far as the dispute in the present appeals is concerned, the appellant was appointed as a dealer by M/s. Premier Automobiles Ltd., Pal Peugeot Ltd. The manufacturers, for marketing their cars manufactured in the name of 118 NE diesel (1.38 D), Premier Padmini (1.37 D), Fiat Uno and Peugeot 309. Here it would be worthwhile if reference be made to the manufacturers of the above mentioned cars, as was told to us by the learned Counsel for the parties. In this behalf we may usefully borrow the language from the case of the National Commission in the case of T.V. Sundaram Iyengar and Sons Ltd. v. Dr. Muthuswamy Duraiswamy and Another, II (2003) CPJ 176 (NC)=2003 CTJ 786 C.P. (NCDRD).

M/s. Automobiles Pego of France, an international car manufacturer, had entered into a joint venture agreement with M/s. Premier Automobiles, manufacture of Fiat cars in India, in order to manufacture and sale of Peugeot 309 model cars. The joint venture agreement was in the name of M/s. Kalyan Motor Co. Ltd. which was incorporated during 1994. Later this company was re-christened as M/s. Pal Peugeot Ltd., M/s. Premier Automobiles Ltd., who were manufacturers of Fiat cars in the country had a network of dealers spread all over the country. M/s. Kamal and Co., the appellant, was appointed by the manufacturers of the above cars as their dealer for marketing their cars in the territory of Rajasthan including Jaipur.

IT is in the above background that the case of the complainant respondent is that in order to purchase the aforesaid models of cars, as manufactured by the respondent manufacturers, they approached the appellant and booked their cars after having deposited sums ranging from Rs. 20,000/- to Rs. 25,000/- in each case as per terms and conditions of the manufacturers at the relevant time. They filed in the requisite application forms for priority registration of the cars of their choice and submitted the required amount to the appellant in the form of demand draft which were got prepared in the name of manufacturers and payable at the place where the manufacturers had their registered offices. Their case further was that since the cars as booked by them with the manufacturers through the appellant, could not be delivered to them within the specified time, they thought of cancelling their bookings. Accordingly they cancelled their bookings. Since on demand the amounts, deposited by them with the manufacturers through the appellant, could not be refunded to them, they filed their respective complaints before the respective District Forums. The Forum held that in not making refund of the amounts deposited by the respondent complainants, the appellant and the manufacturer respondents had rendered deficient services to them. The Forum accordingly directed the appellant, jointly with the manufacturer respondents, to refund the amount deposited by each of the complainant-respondent with interest as per agreement and also to pay a sum of Rs. 1,500/- each as compensation for mental agony and Rs. 500/- as cost of litigation to each of them. Aggrieved by such common orders of the Forums the appellant has preferred the present appeals. At the very outset the learned Counsel for the appellant urged that the issue involved in all these appeals stands squarely covered by the decision of the National Commission in the case of T.V. Sunderam (supra). On the other hand the learned Counsel for the respondent complainants urged that since they had booked their orders for purchase of cars with the appellant the appellant was liable to make refund of their amounts as directed by the Forum.

AFTER having given our thoughtful consideration to the submissions advanced before us we are of the opinion that the issue as is commonly involved in all these appeals and came up for consideration before the Hon''ble National Commission in the case of P.V. Sundaram (supra). AFTER having examined the question of liability of the dealer and manufacturer qua the complainants, the National Commission held in paras 12, 13 and 14 of the report as under: "....Assuming that Rs. 25/- is charged by Sundaram Motors for it to render service the question would arise as to what service it has to render under the terms of agreement and that to our mind that would appear only to receiving application along with demand draft/pay order in the name of Pal Peugeot Ltd. and then to forward the same to Pal Peugeot Ltd. Sundaram Motors would certainly be held deficient in service in case it does not do that and the customer loses his priority number for delivery of car to him. Sundaram Motors will also be perhaps liable if the application form and the demand draft/pay order/banker cheque is lost or there is delay in sending the same to the Pal Peugeot Ltd. Terms of the contract are specific that when booking is cancelled it is the Pal Peugeot Ltd., manufacturer, who has to refund the money with interest. Sundaram Motors does not come into the picture. It will be the manufacturer who will be deficient in service if amount is not refunded with interest as stipulated in the conditions of booking. We fail to see how Sundaram Motors would be liable for deficiency in service on the part of Pal Peugeot Ltd. and how it could be held that both are jointly and severally liable.

A dealer cannot necessarily be an agent. If we refer to Law Lexicon ''dealer'' is seller of specified articles. For example in the present case Sundaram Motors is a dealer in cars. As to what are its terms with the manufacturer Pal Peugeot Ltd. for being its dealer of Peugeot 309 cars we have to see the terms and conditions on which the customer has booked the car. We cannot go beyond that and assume something which is not there. In the present case Sundaram Motors could well be classified as purchasers for resale. It is nobody''s case that Sundaram Motors is the agent of Pal Peugeot Ltd. Chitty on Contracts (para 31-002, 27th Edition) says "...but the doctrines of agency are not always so well worked out beyond the main affairs of their operation and the context in which the reasoning is used and the extent of its use may, therefore, require careful consideration in each case."

Sundaram Motors may be canvassing for booking of Peugeot-309 cars but that would also not make them liable for refund of the advance booking of Rs. 25,000/- as Sundaram Motors promised no such service. Even if we have to see the substance and not the form of transaction we are unable to agree with the State Commission that Sundaram Motors will be held to be deficient in service and may be liable to refund the advance amount along with manufacturer-Pal Peugeot Ltd. When we refer to the definitions of ''consumer'', ''complainant'', ''deficiency'' and ''service'' and contained in Sub-section (1) of Section 2 read with Clauses (c), (d) and (e) of Section 14 of the Act we fail to see how Sundaram Motors could at all be held liable."

On a comparative study of the terms and conditions, as noted down by the National Commission in the above case, with those as were produced before us by the learned Counsel for the parties we are satisfied that the facts in the cases before us were quite identical to those obtaining in the case of T.V. Sundaram. In all these appeals before us we find that initially the complainant respondent were required to fill up an application form in the prescribed proforma. In Column No. 8 in such application form he was given option to mention the dealer of his choice. Along with the application form he was to be given the terms and conditions of the priority registration. The terms and conditions of these priority registration have been reproduced by the National Commission in their decision cited supra. The very fact that the respondent complainant had a choice of making their decision about the dealer, suggests that the dealer was simply to render the services of transmitting their applications along with the draft of the amount to the manufacturers. If the car would have been sold by the manufacturer to the applicant then the agreement between the appellant as dealer and the manufacturer as supplier was to come into force and then the appellant was to be considered as an agent of the manufacturer. Since in none of the cases the contract matured, as no car to any of the complainant-respondents was sold, the dealer was not to be benefited by the transaction in any way and, therefore, his acting as an agent of the manufacturers does not come into picture. In view of the above and in conformity with the decision of the National Commission we hold that in none of the appeals the appellant can be held jointly liable with the manufacturer for the refund of the amounts deposited by them with the manufacturers. It is pertinent to mention here that the respondent complainants had contacted the manufacturer for cancellation of their bookings and not the appellants. By such conduct of the respondent-complainant also the above conclusion is arrived at. In the result the impugned orders, in all the 134 appeals, as against Kamal and Co. appellant, are set aside and cancelled. Consequently all such appeals are allowed with costs on parties. The manufacturer-respondents, made parties in individual complaint/appeal, do not appear to have challenged the impugned orders by filing appeals. They thus appear to have accepted the impugned orders as passed against them by the District Forum. They are, therefore, directed to pay to respondent No. 1 i.e., the complainants in their respective complaints, through demand drafts, the amounts, as decreed by the District Forum against them, within a period of next two months from the date of service of this order upon them, if not already paid, failing which the booking amounts in each case shall carry interest @ 15% p.a. from the date of payment of such amounts by respondent No. 1 to them till full and final payment of the decretal amount. Appeal allowed.