Maruti Udyog Ltd. vs K.A. RAMESH

THE complainant''s case is as follows: THE complainant availed of loan and purchased a Maruti Zen car bearing Registration No. TN-07-X-6663 on 7.12.1998 by executing a hire purchase agreement. THE complainant has also paid some of the instalments due towards the hire purchase and thus paid in all more than Rs. 3 lakhs towards the cost of the vehicle. He has also incurred an additional expenditure of Rs. 1,50,000/- for periodical service and maintenance of the car. THE vehicle was left with the 1st opposite party in good condition on 26.8.2000 for check-up after completion of 10,000 kms. THE complainant was surprised to learn that the vehicle met with an accident when it was subject to final inspection and road test. THE accident had occurred due to the negligent and defective service of the 1st opposite party. THE vehicle has suffered extensive and severe damage. While so, the complainant received a letter from the 1st opposite party calling upon him to collect the vehicle on payment of service charges. THE 1st opposite party is duty bound to replace it with a new car instead of repairing and giving the same to the complainant. Hence the 1st opposite party sent a registered letter to the complainant calling upon him to take delivery of the car to which the complainant sent a suitable reply. THE car met with a major accident due to the negligent and irresponsible act of the 1st opposite party and, therefore, the complainant demanded replacement of the vehicle. While so, the 1st opposite party again sent a letter dated 16.10.2000 wherein they had admitted that the car met with an accident during the course of final inspection and road test. It is only on the advice given by the 1st opposite party and on the advice of M/s. Union Motors Services Ltd. and the instructions of the 4th opposite party the vehicle was left with M/s. Union Motor Services Ltd. with which the 4th opposite party is connected. THE complainant had issued a letter to the 4th opposite party apprising him of the facts and again sent a letter on 23.9.2000 a copy of which was sent to the Managing Director, Assistant Works Manager, Maruti Udyog Ltd., Chennai. In spite of several requests, no effort has been taken by the opposite parties to send any reply. It is to be pointed out that the complainant had left the vehicle with the 1st opposite party on the advice of the 4th opposite party. THE 4th, 3rd and the 1st opposite parties are inter-connected manufacturer, financier and service centres. THEre is no buyer to purchase the car. THE car had become a junk. THE complainant thus availed the services of the opposite parties for consideration to be paid. THE 3rd opposite party is the manufacturer while the opposite parties 1 and 2 are their agents. THE 4th opposite party is the financial organization inter-connected with them. Thus they are liable. THE complainant has been deprived of the utility of the car from 26.8.2000. Hence the complainant prays for a direction to the opposite parties to replace the Maruti Zen car with a brand new car or direct the opposite parties to pay a sum of Rs. 4,50,000/- and direct them to pay a sum of Rs. 40,000/- towards compensation for mental agony, along with interest at 24% p.a. and costs.

ON behalf of the 3rd opposite party, a reply version has been filed. They contended as follows: This Forum has no jurisdiction to entertain the complaint as it exceeds its pecuniary jurisdiction. The complainant is not a consumer. There is no privity of contract as between the complainant and the 3rd opposite party or as between the complainant and the 1st opposite party. There was no negligence or breach of any condition by the 3rd opposite party. There is no deficiency in service on the part of the 3rd opposite party. The 3rd opposite party has nothing to do with the opposite parties 1 and 2. The 3rd opposite party is the manufacturer and the dealings between the 1st opposite party and the 3rd opposite party are as between a dealer and a manufacturer on principal to principal basis. The 1st opposite party is a separate and distinct legal entity. The 3rd opposite party did not receive any legal notice. Hence there was no occasion for them to answer. The opposite parties 1 and 2 are not agents of the 3rd opposite party. Th complainant never hired the services of this opposite party. If the complainant had suffered any loss, it is not due to any act of omission or commission on the part of the 3rd opposite party. There is no cause of action. The 3rd opposite party, therefore, prays that the complaint may be dismissed with costs. The lower Forum accepted the complaint and directed all the opposite parties to replace the Maruti Zen car with a brand new one or to pay a sum of Rs. 4,50,000/- and also to pay a compensation of Rs. 40,000/- with cost of Rs. 1,000/-.

Aggrieved by the order of the lower Forum, the 3rd opposite party has preferred an appeal in A.P. No. 1037/2002 while the opposite parties 2 and 4 have preferred an appeal in A.P. No. 925/2002.

THE points for consideration are : (1) whether there is any deficiency in service on the part of the opposite parties 2 to 4?; and (2) if so, whether they are liable? The points: We are satisfied that these two appeals have to be accepted. For, the complaint as against them cannot be maintained. The order passed by the lower Forum deserves to be set aside as against these opposite parties. The complainant had taken delivery of the car on 7.12.1998. It is a new car that he took delivery of, for which he would say that he spent a sum of Rs. 1,50,000/- for periodical service. This is in fact a tall claim. For any car there will be guaranteed free service for a year or within the warranty period and to say that in spite of it he spent a sum of Rs. 1,50,000/- is on the face of it amusing. We are pointing out this circumstance only to highlight the fact how exaggerated the claim of the complainant is. Even according to his own statement, the complainant has used the car and it has done 10,000 kms. on the date when he left the car with the 1st opposite party on 26.8.2000 for servicing. It is stated in paragraph 4 of the complaint that the 1st opposite party undertook the service and agreed to deliver the car after servicing on the same day evening. It is further stated that when he went to take delivery, he was informed by the 1st opposite party that during the final inspection and road test, the car met with an accident and suffered severe damage and that a sum of Rs. 60,000/- was claimed from the Insurance Company. It is not explained who claimed the amount and who received the same. Again, it is stated that the accident was due to the negligence and deficiency of service rendered by the 1st opposite party. In paragraph 5 also it is stated that the 1st opposite party sent a letter on 30.9.2000 stating that the complainant could come and collect the vehicle on payment of service charges of Rs. 2,037/-. Again he has stated that though he had left the car for service only and not for repairs, M/s. Union Motor Services Ltd. have damaged his car and, therefore, M/s. Union Motor Services Ltd. is duty bound to replace him with a new car instead of repairing and giving the same to the complainant. It is also stated that on 9.10.2000 the 1st opposite party sent a registered letter to the complainant and that he sent a reply stating that the car had met with a major accident due to negligent and irresponsible act of the 1st opposite party. He further avers that the 1st opposite party again sent a letter on 16.10.2000 admitting that the car met with an accident during the course of final inspection and road test. It is further averred that the 1st opposite party only attempted to justify their irresponsible and negligent act and that the explanation given by the 1st opposite party is not proper and justifiable and it is only on the advice of the 1st opposite party and the instruction of the 4th opposite party the complainant left the vehicle with the 1st opposite party. He further avers in paragraph 5 that the 1st opposite party had admitted that even if the car is sold it will not fetch a higher price. Again, he repeats that it is pertinent to point out that the complainant has left the car for service with the 1st opposite party on the advice of the 4th opposite party. Again he refers to the letter of M/s. Union Motor Services dated 30.12.2000 in paragraph 6 and further contends that the condition of the car is very much deteriorated due to the accident caused by the 1st opposite party. He also refers to the fact that the 1st opposite party issued a legal notice on 22.2.2001. Thus, from these allegations it is clear that the complaint is directed only against the 1st opposite party and when the car was in the custody of the 1st opposite party it was taken out for final inspection and road test and in that course it met with an accident and the car suffered damage. While so, it is not known how the opposite parties 2 to 4 can be made liable at all. Merely by stating that the opposite parties 1 and 2 are agents of 3rd opposite party and the 4th opposite party is the financier and they are connected, the complainant cannot make them liable. It is necessary for the complainant to establish the connection by producing the necessary records therefor. Mere averments in the complaint cannot take the place of proof. Even according to the complainant, the 4th opposite party is only a financier. The 3rd opposite party, admittedly, is the manufacturer. There is nothing mentioned about the part played by the 2nd opposite party excepting to mention that they are inter-connected. It is not known how the financier and the manufacturer can be held liable for deficiency in service when the vehicle met with an accident while in the custody of the 1st opposite party.

THE warranty period is over. THE complainant does not proceed on the ground that there is any manufacturing defect. THE 1st opposite party is said to be only a dealer. THE complainant has left the car with the 1st opposite party for service and it was not a free service, but it was a paid-service. It was also not on the instructions of the 3rd opposite party. THErefore, if at all there was a contract, it was only between the 1st opposite party and the complainant. THE 3rd opposite party manufacturer has not been hired by the complainant to do any service. Nor on that day there was any subsisting contract between the 3rd opposite party and the complainant for maintenance of the car. THE minute the car has been sold by the 3rd opposite party through the dealer the 1st opposite party, the contract of sale comes to an end and if at all there is anything subsisting out of that, it will be only the liability of the manufacturer to make good if any damage is caused to the buyer on account of the manufacturing defect. THErefore, there cannot be and there is no privity of contract as between the 3rd opposite party and the complainant nor it can subsist for two years after the sale of the car. THErefore, the 3rd opposite party, by no stretch of imagination, can be held liable. For, they have not undertaken to do any service to the complainant. Nor the complainant has directly or indirectly hired the services of the 3rd opposite party. THE 1st opposite party only happens to be the dealer and also authorized to do servicing of Maruti cars. May be that within a period of one year or during the warranty period when there is any defect or any problem, it can be got executed through the 1st opposite party. But that cannot make the 3rd opposite party liable. More so when the complainant has not made out any ground of manufacturing defect in the car but would only say that the damage to the car was by reason of an action of the 1st opposite party in taking out the car for test when it met with an accident. THErefore, no cause of action would flow as far as the complainant is concerned as against the 3rd opposite party. Similarly, the claim as against the 2nd and 4th opposite parties also cannot be maintained since there is no material to hold that there is any privity of contract or that on the instructions of the 4th opposite party the car was left for service with the 1st opposite party. At best he has only availed of is the financial assistance either from the 2nd opposite party or the 4th opposite party for the purchase of the car. But that cannot make them liable to the complainant for the damage sustained by him while the car was in the custody of the 1st opposite party. There is no hiring of service by the complainant of the 2nd and 4th opposite parties. Learned Counsel for the respondents referred to the decisions reported in III (1999) CPJ 1 (SC); (2002) 3 M.L.J. 128; and 1998 (2) CPR 480 to contend that the appellants in AP 925/02 have neither filed any version nor have chosen to contest the matter before the lower Forum and, therefore, the matter stands concluded as against them and hence they cannot add any point in their favour in this appeal. Assuming that the order passed against them by the lower Forum amounts to an ex parte order, they have got a right of appeal. Therefore, while an appeal is preferred, the entire matter once again would be at large and there is no legal impediment for the appellants in putting forward their case. Moreover, the points urged by appellants in A.P. No. 925/02 are in the nature of legal submissions which can always be raised at any stage of the proceedings.

NOW coming to the three rulings relied upon by the learned Counsel: The ruling relied upon in the decision (2002) 3 M.L.J. 128, cannot apply to the facts of this case since the question decided there was whether an application to set aside the ex parte order can be entertained when a suit is taken up for hearing. When a petition is filed at a later stage, a learned Single Judge of the Hon''ble High Court held that it cannot be done. But this is not a case whether the appellants in A.P. No. 925/2002 are seeking to set aside an ex parte order. They have preferred the appeal to this Forum exercising the right granted under the provisions of the Act. Therefore, this decision will not apply.

THE decision in 1998 (2) CPR 480, is a case whether the opposite parties did not file their version and the State Consumer Disputes Redressal Commission, Punjab held thus: "When no written statement was filed by the opposite party before the District Forum, in appeal no ground on merits can be allowed to be raised by such a party." As we have already pointed out, this ruling cannot apply for the reason that the opposite parties are only urging a legal plea. THEy are not stating anything on facts. THErefore, this ruling cannot apply. Further, as we have already pointed out, when an appeal is preferred, all the issues are thus made open for consideration of the Appellate Forum and, therefore, neither the Appellate Forum nor the appellant can be on the ground of his failure to submit version, be prevented from urging or canvassing the points in his favour. THErefore, this ruling will also not apply. The last ruling viz., III (1999) CPJ 1 (SC) is only to the effect that the Consumer Protection Act does not permit a party to move an application for setting aside an ex parte order and, therefore, the order of the State Commission setting aside the ex parte order cannot be sustained. This ruling will also have no application to the facts of this case where we are concerned with the appeal against the order passed by the lower Forum. No doubt, before the lower Forum the opposite parties/appellants in A.P. 925/02 were set ex parte. But there is a provision as we have already pointed out, under Section 15 that "Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission....". Therefore, when such a right of appeal is there, the fact that the appellants were set ex parte before the lower Forum cannot in any way affect their right or stifle their grievance. Therefore, these three decisions are not helpful to the complainant.

In this connection, it is to be pointed out that the only allegation made in the complaint against the opposite parties 2 and 4 is that they are connected or inter-connected. Even assuming that they are connected, it is not shown how their being connected would make them liable assuming or granting that they are connected.

IT is also to be pointed out that the financier has issued a notice under Ex. A-32 calling upon the complainant to pay the arrears of instalment due by him. Therefore, more with a view to silence them the complainant has chosen to implead them as a party. Therefore, it is clear that the order of the lower Forum as against the opposite parties 2 to 4 cannot be sustained at all and the same deserves to be set aside. In the result, these two appeals viz., A.P. Nos. 1037/2002 and 925/2002 are allowed setting aside the order of the lower Forum dated 8.10.2002 in O.P. No. 293/2002 in so far as it relates to the opposite parties 2 to 4 only and with cost of Rs. 500/-. Two sets. Time: 2 months. Appeals allowed.