S. C. Vyas, President
1. This appeal is directed against order dated 27.04.12, passed by District Consumer Disputes Redressal Forum, Durg (hereinafter called 'District Forum' for short) in complaint case No.169/2011, whereby the complaint of the appellant herein was partly allowed and the OPs / respondents have been directed to pay Rs.6,500/‐jointly or severally along with interest @ 7 % p.a. from the date of filing of the complaint and also to pay Rs.1,000/‐as compensation for mental agony and Rs.1,000/‐as cost of litigation. The prayer for refund of cost price on account of unfair trade practice of the respondents was not allowed and therefore this appeal has been preferred for enhancement of the awarded amount by allowing the aforesaid prayer also.
2. It is not in dispute that respondent No.1 Sairam Automobiles & Services Pvt. Ltd. is the authorized dealer of Tata Motors at Bhilai, District Durg and respondent No.2 is the manufacturer of Tata Indica Vista Aura Quadrajet ABS model car, which was purchased by the appellant from showroom of respondent No.1. It is also not in dispute that in the month of April 2010 a scheme was launched by the Manufacturer by offering twenty free cars in a period of twenty days. Even the offer was valid at the time of purchase of the car in question and as per the offer during the period of offer 20 purchasers were to be refunded back cost of the car purchased by them. Under the same scheme the purchasers were required to pay only Re.1/‐for insurance of their car and remaining amount of insurance was to be borne by therespondents.
3. Case of the complainant was that the respondent No.2 published an advertisement in Dainik Bhaskar newspaper Raipur edition dated 29.04.10, whereby for the purpose of promoting sale of cars, offer of 20 free cars in 20 days was made. According to the offer, purchaser of any model of car was having an opportunity to get back the price of the car. Assured benefit of Rs.30,000/‐including insurance @ Re.1/‐was also offered and last date of the offer was 30.04.2010. The complainant on 29.04.10 purchased an Indica Vista Aura Quadrajet ABS model car from OP No.1 under the scheme on condition of deferred payment and the vehicle was delivered to the complainant on that very date under Vehicle Delivery Receipt. In that Vehicle Delivery Receipt the Ex‐Show Room price of the car was shown as Rs.5,27,199/‐ and against the insurance amount ‘free’ word was used. In that receipt Rs.1,500/‐was charged as handling charges under the head other charges, Rs.800/‐for temporary registration and Rs.5,100/‐was charged as Teflon / Dinitron charges. Insurance policy was also provided by the seller and in that policy the premium was shows as Rs.13,580/‐. Thus, in all Rs.5,34,599/‐were paid by the complainant to the respondent by Demand Draft on 30.04.10. Later on Sale Certificate was provided by the respondents along with tax invoice and pollution standard certificate. The Ex‐Showroom Price of the vehicle in the tax invoice was shown as Rs.5,13,620/‐including VAT and Entry Tax. Thus, there was difference of Ex‐Showroom Price of the vehicle shown in tax invoice and the price shown in the Vehicle shown in Delivery Receipt and an excess amount of Rs.13,579/‐was collected from the complainant on account of this difference, which was against the promise of free insurance. On inquiry no satisfactory reply was given by the OPs. It has also been averred by the complainant that Rs.1,500/‐ was also collected in excess by the OPs. This amount was continuously being collected from all other purchasers also though there was no reason for collecting that amount. It has also been averred in the complaint that as per the scheme 20 purchasers of cars were to be refunded the price of their car during a period of 20 days, but names of all 20 such winners were not declared by the OPs and thus the respondents / OPs have adopted deceptive and unfair trade practice, so punitive compensation is required to be awarded against them and the complainant is entitled for refund of price of the car and also refund of amount of Rs.13,579/‐and Rs.1,500/‐which were collected in excess of the Ex‐Showroom Price.
4. The respondents in their separate replies have refuted the allegations of deceptive and unfair trade practice on collecting extra amount from the complainant. OP No.1 / respondent No.1 in its written version averred that Ex‐Showroom Price of the vehicle was Rs.5,27,199/‐and in the Tax Invoice lesser price of the vehicle was only shown, so that amount of insurance which was paid in cash by respondent No.1 to the insurance company may be collected from the Manufacturer. Similarly, it has been averred that as per the authority given by the Manufacturer, Rs.1,500/‐were collected as handling charges. It has been averred that in the Vehicle Delivery Receipt, nothing has been charged against insurance and therefore free insurance was provided and only Ex‐Showroom Price of the vehicle was collected from the complainant.
5. Respondent No.2, who was OP No.2 before the District Forum in its separate written version has also refuted the allegations leveled in the complaint and averred that relationship between the Manufacturer and the Dealer was that of principal to principal and because the vehicle was supplied by the Manufacturer to the Dealer after payment of full price of the vehicle, so thereafter responsibility of the Manufacturer came to an end and if some wrongs have been done by the dealer, then the Manufacturer cannot be held responsible for such wrongs. It has also been averred that no allegation of any defect in the vehicle or manufacturing defects have been leveled by the complainant and so no cause of action arises against the Manufacturer. It has also been averred that under the scheme names of all the 14 winners were duly published by OP No.2 through newspaper advertisement and no unfair trade practice has been committed in this regard.
6. Learned District Forum after having considered the rival contentions and the material placed before it by all parties, by the impugned order has held that only Rs.1,500/‐were collected by the respondents in excess and this amount is required to be refunded because it was not clarified as to under which head this amount was collected and why. So far as allegation regarding non‐publication of names of 6 winners is concerned it has been held that for this deficiency in service only Rs.5,000/‐can be awarded to the complainant and not refund of price of the car. It has also been held that Ex‐ Showroom Price of the vehicle was Rs.5,27,199/‐and only that amount was collected from the complainant, thus the insurance was provided free, so there was no deficiency in service or unfair trade practice in this regard.
7. We have heard arguments advanced by both parties and perused the record of the District Forum.
8. Contention of the complainant is of threefold, firstly he submitted that Ex‐Showroom Price of the vehicle was Rs.5,13,620/‐ against which Rs.5,27,199/‐was collected from him and thus, benefit of free insurance was not provided and in fact that amount was collected from him. His second contention is that without any basis Rs.1,500/‐ were unnecessarily and in excess of price were collected from him, which comes in the category of unfair trade practice; and lastly it has been submitted that unfair trade practice and deceptive practice was committed by the Manufacturer as well as the Dealer in not declaring the names of last 6 winners and thus, he was deprived of chances to be a winner. So, he was entitled to refund of price of the car.
9. Learned counsel for the respondent No.2 has very vehemently opposed these contentions. So far as Local Dealer is concerned, none appeared and it was being proceeded ex‐parte. Counsel for respondent No.2 contended that relationship between the Dealer and Manufacturer was of principal to principal and not of agent and principal and therefore if some wrongs have been done by the Dealer, then the Manufacturer cannot be held responsible. So far as the allegation that names of winners were not declared, in this regard it has been submitted that names were declared and contention of the complainant cannot be accepted that he could also be a winner and therefore he is entitled for refund of price of the car.
10. We have considered the aforesaid arguments and other contentions raised by both parties in the light of available record. Annexure–A is the copy of newspaper Dainik Bhaskar Raipur edition dated 29.04.2010, in which advertisement of Tata Motors was published having heading '20‐20 offer' under which it has been written that 'TWENTY DAYS TWENTY CARS FREE' and last two days are available for the offer. In this advertisement itself Scoreboard of Winners were also published, which contains names of 14 persons who were declared winners under the scheme till that date. It has also been stated in the advertisement that all the purchasers of cars shall have assured saving of Rs.30,000/‐+ opportunity of getting a car free and for that purpose the purchasers were requested to purchase a Tata car, write a slogan and then to get change of refund of price of the car. In the last it has also been stated that 'Terms and conditions applied. Offer valid till 30th April 2010 or till stocks last. Assured benefit includes insurance @ Re.1/‐where applicable'.
11. Thus, from this advertisement the offer made was very clear. It was declared that by 30.04.2010 twenty persons will get price of their car back on purchase of a car during the period of offer. It has also been stated that till the date of advertisement, 14 persons had already got the benefit and remaining 6 were to be selected during the period of those two days. There was assured benefit of Rs.30,000/‐including insurance also @ Re.1/‐. From this advertisement it is also clear that the Dealer or the Manufacturer none of them has offered that the amount of insurance would be paid by them. Annexure B is the Vehicle Delivery Receipt. In this Receipt, the Ex‐Showroom Price of Tata Indica Vista model Q‐jet Aura ABS car was firstly shown as Rs.5,04,258/‐, then by putting a horizontal line on this entry another figure Rs.5,27,199/‐has been written and nobody has put initial on the erased entry. So, from this document it is not clear as to whether price of the vehicle was Rs.5,04,258/‐or was in fact Rs.5,27,199/‐. In this regard OP No.1 has brought on record document Annexure D‐1, in which it has claimed that Ex‐Showroom Price of Indica Vista Quadrajet Aura ABS model was Rs.5,27,199/‐and handling charges were Rs.1,500/‐for Extended Warranty Rs.5,100/‐, insurance Rs.13,580/‐and for registration etc. Rs.33,632/‐. So the total was Rs.5,81,011/‐, but this document is not an authenticated document, because it does not bear signature of anyone. It appears only a typed paper, in the name of Sairam Automobiles & Services Pvt. Ltd., who was OP No.1 before the District Forum and so it is a document which was prepared by OP No.1 / respondent No.1 itself in its favour and therefore whatever price has been shown in this document as Ex‐Showroom Price of the vehicle, cannot be conclusively said to be Ex‐Showroom Price of the vehicle at the relevant time.
12. Most important document is the Tax Invoice, Annexure–F, in respect of the purchased vehicle, provided by respondent No.1 to the complainant on the date of purchase 30.04.2010. In this document, unit price of the product has been shown as Rs.4,58,018.87p. Then concession of Rs.11,785/‐was shown and after concession unit price became Rs.4,46,233.87p. Total tax on which was shown as Rs.67,385.75p. Thus gross total was Rs.5,13,619.62p. and after adjustment amount, it was Rs.5,13,620/‐. In the terms and conditions column of the same document, it has been clearly stated by ‘Above prices are current Ex‐Showroom Prices. Buyers will have to pay prices prevailing at the time of delivery.’ Delivery was given a day earlier, so it can safely be said that the price which was shown in Annexure–F was the actual Ex‐Showroom Price of the vehicle.
13. Respondent No.2 argued that in the Tax Invoice the insurance amount was deducted from the Ex‐Showroom Price for the purpose of recovery of amount from the Manufacturer and therefore it should not be presumed that the price which has been shown in the document Annexure–F was the Ex‐Showroom Price of the vehicle. We do not find this argument acceptable. Document Annexure–F is the document on the letter head of Tata Motors through Sairam Automobiles & Services Pvt. Ltd. and it was signed by Authorized Signatory of Sairam Automobiles & Services Pvt. Ltd. It has clearly been declared that the price which has been shown in this document is the Ex‐Showroom Price of the vehicle and when it has been shown in this document, then it cannot be said that the price which was shown in this document was not the Ex‐Showroom Price. From document Annexure–B as well as document Annexure–F it appears that the Ex‐ Showroom Price of the vehicle was in fact Rs.5,13,620/‐and extra amount was collected from the complainant by respondent No.1 equivalent to the amount of insurance and then it has been shown that the insurance was free, though the Dealer was required to collect only Re.1/‐for insurance as per the scheme, which clearly demonstrates a case of deceptive practice, under which it was shown that some benefit has been given, but in fact no such benefit in the form of providing insurance on payment of Re.1/‐only was given, but the premium of insurance was included in the Ex‐Showroom Price of the vehicle.
14. The word 'unfair trade practice' has been defined under Consumer Protection Act 1986 under Section 2 (1) (r). It is a long definition and for the purpose of present case the relevant portion of the definition is as under : ‐
'(r) 'unfair trade practice' means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:‐
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.
Explanation. – For the purpose of clause (2), 'bargaining price' means –
(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
(3) permits –
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme.
[Explanation. – For the purposes of this subclause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspapers in which the scheme was originally advertised;]
From this definition it is clear that if somebody withholds from the participants of any scheme offering gifts, prizes or other items free of charge, then it amounts unfair trade practice. Similarly, if a benefit which has been offered by advertisement but was not intended to be provided and if has been taken back in any other form, then this also comes in the category of unfair trade practice and thus not giving benefit of free insurance @ Re.1/‐comes in the category of unfair trade practice and OP No.1 did the same thing by showing excessive Ex‐ Showroom Price than the price which was mentioned in the Tax Invoice Annexure–F.
15. Similarly, in document Annexure–B, under the head price details Rs.1,500/‐were collected for ‘other if any’. It has not been clarified as to what were the other charges. Respondent No.1 by producing document Annexure D‐1 wanted to show that Rs.1,500/‐ were chargeable as handling charges, but so far as the car of the complainant is concerned there was no requirement of any handling charges, as it was taken into possession by the complainant from the Showroom of the OP No.1 / respondent No.1, so there was no requirement of any further handling charges. Thus, it is clear that the amount of Rs.1,500/‐was also unnecessarily charged on and above the Ex‐Showroom Price. These other charges has also not been mentioned in the Tax Invoice Annexure–F and by charging this extra amount again unfair trade practice has been committed by OP No.1 / respondent No.1.
16. Admittedly, the offer of the Company was to declare names of twenty winners, who were to get refund of their price of car. In the advertisement names of 14 persons were published. In the written version of OP No.2 also in paragraph No.7, it has been stated that names of 14 winners were published in the newspaper, under the scheme and nothing has been stated regarding the remaining six winners. So, it is clear that the names of remaining six winners were not published by the company. The price of the car which was purchased by the complainant was around Rs.5,13,620/‐and if on an average it is presumed to be a price to be refunded to the remaining winners or if some lesser amount is taken, even then at least Rs.30 Lacs were to be refunded by respondent No.2 to the purchasers of cars during the period of offer. That benefit which was required to be given to the purchasers have been withhold by the Manufacturer, which amounts deceptive practice and therefore unfair trade practice, as per the definition described hereinabove.
17. The complainant in this regard has drawn our attention towards a decision of Hon’ble National Commission dated 11.09.2006 in Consumer Complaint No.83 of 2007, Society of Catalysts Vs. Star Plus TV & Anr., wherein Hon’ble National Commission in similar circumstances has observed that a large amount of Rs.13.92 crore was earned from SMS messages and out of which prizes amounting to Rs.1.04 crore were distributed and still surplus amount was available with the Company, but so far as the complainant is concerned it was found that the complainant was a voluntarily consumer organization which has highlighted the unfair trade practice, so there arises no question of any compensation to the complainant, but the Star Plus TVand Bharti Airtel Ltd. were directed to deposit damages of Rs.1 Crore in the Consumer Welfare Fund and OPs were also directed to pay Rs.50
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,000/‐to the complainant as litigation costs. Thus, it is clear that the facts of the case were all together different, but the settled principle was that if it was a deceptive and unfair trade practice and some extra amount has been collected, then damages are required to be paid by the person, who collected that extra amount. If we follow this principle in the light of the facts of the present case, then keeping in mind the fact that there was thousands of persons who might have purchased Tata cars during the period of offer and out of them anyone could have been the winner, therefore it would not be fair to direct the OPs to refund the price of the car to the complainant and thereby indirectly declaring the complainant as a winner of the offer, but at that place we deem it appropriate to award an amount of Rs.50,000/‐to the complainant on account of deceptive and unfair trade practice committed by the respondents. 18. It has been submitted that relationship between the respondents was that of principal to principal, but no material has been brought on record to show that relationship of the respondents was that of principal to principal. Dealership agreement has also not been brought on record, which might be containing terms and conditions of Dealership and therefore both the respondents are jointly and severally liable to pay compensation to the complainant. 19. On the basis of aforesaid discussion, the appeal succeeds and is allowed. The respondents are directed to pay jointly and severally Rs.65,079/‐(i.e. Rs.50,000 + 13,579 + 1,500 = 65,079) to the complainant within a period of one month from the date of order otherwise the amount will carry interest @ 6% p.a. from the date of filing complaint, till the date of payment. The amount of compensation Rs.50,000/‐will also include the amount of compensation for mental agony and therefore no separate amount is being awarded in any other head. As the complainant himself appeared and argued the matter in person, therefore no further cost is awarded and it is directed that the amount of Rs.1,000/‐which was awarded by the District Forum as cost of litigation be also paid by the respondents to the complainant under joint and several liability. The appeal is thus disposed of.