1. COMPLAINANT-Terence Correya by this complaint under Section 17 of the Consumer Protection Act, 1986 (for short the "CP Act") claims refund of this amount Rs. 4,00,000/- allegedly deposited with the respondents for purchase of a diesel "Zen" car, with interest @ 18% p.a., besides Rs. 1,00,000/- as general damages, from the latters.
2. RESPONDENT No. 1-Maruti Udyog Limited (for short "MUL") is a public limited company manufacturing various models of Maruti cars. RESPONDENT No. 2, M/s. Ras Motors Pvt. Ltd. at the relevant time, was dealer of respondent No. 1 at Gwalior.
The facts as unfolded by the evidentiary material on record and which could not be controverted or challenged by any party are these : complainant on 17.11.1997 booked a Zen Maruti car and deposited with respondent No. 2-dealer a sum of Rs. 3,15,679.72 by way of a demand draft (vide Annexure A/2) drawn on Vijaya Bank in favour of MUL. Total price of car as indicated in the invoice vide Annexure D/1 was Rs. 3,40,207.85 as against which the aforesaid amount was paid and the remaining amount of Rs. 24,528.13 subject to price variation, if any, was to be paid at the time of delivery of the car. The demand draft though deposited with respondent No. 2 was transmitted to respondent No. 1 by the former and the amount thereof was credited duly in the account of respondent No. 1 with State Bank of Travancore, Delhi, vide certificate Annexure D/4. Admittedly, no car was delivered to the complainant either by the dealer-R/2 or the manufacturer-R/1. It appears that MUL has terminated dealership of respondent No. 2 since January 1999.
The complainant''s claim that he has in fact booked Zen diesel with the respondents and had paid an additional sum of Rs. 84,231/- with respondent No. 2 on 2.1.1998 through another demand draft, is however not established and the reference of demand draft in the receipt Annexure A/3 was not found to be genuine. Similarly, contention of respondent No. 1-MUL that there was no booking of any car whatsoever by the complainant and that it was a clandestine loan transaction between the complainant and respondent No. 2, is also unsustainable in view of the clear documentary evidence, vide Annexures A/1, A/2 and D/1. The question thus arises whether both the respondents and more particularly respondent No. 1 (respondent No. 2 is ex parte) can be held deficient in their service and, therefore, liable to repay the said amount of Rs. 3,40,208.85 with interest and compensation to the complainant. Respondent No. 1-MUL alone has contested this complaint and it is contended that there was no privity of contract between the MUL and the complainant and that the complainant is not a "consumer" vis-a-vis this respondent. It is Counsel Mr. B.V. Bhargava took us through the terms and conditions of the dealership agreement (filed belatedly at the time of final arguments) executed in between MUL and M/s. Ras Motors Pvt. Ltd. and was at pains to explain that M/s. Ras Motors was not an agent of MUL but they both, i.e., the MUL and M/s. Ras Motors worked on principal to principal basis that is to say, the dealer used to purchase the vehicle from the MUL and then sell the same to the customers. It was further contended that whatever amount received from customer through dealer, was duly credited in the account of the dealer and the cars were supplied to the dealer who alone was responsible to deliver such cars to the individual customer. Interestingly, Shri Bhargava has also filed a judgment of a Civil Court (VIIth ADJ, Gwalior) wherein a suit filed by such a customer against the present respondents has been decreed only against respondent No. 2 but dismissed against respondent No. 1.
3. WE are, however, not impressed by the arguments and the said decision of Civil Court, we are afraid, has no relevant in the present case. Surely, it cannot be a precedent for this Commission nor it is binding on the complainant who was not party to that decision. The dealership agreement is a bipartite agreement between the two respondents to which, again the complainant or as a matter of that no customer was a party. It will not be also wrong to infer that a customer had no knowledge of the said internal arrangement between the respondents. What is important is the transaction of booking, its terms and conditions and the events which followed the said booking. Apparently, respondent No. 2 had received the money towards cost of the car from complainant on behalf of MUL. In fact, the draft was prepared in the name of MUL and the same was not only transmitted to the former but was duly credited to their Bank account. The details as to the price of various models of Maruti Cars, terms and conditions mentioned in the invoice and the booking form, were obviously laid down by the MUL who was also obliged to send the booked car to its dealer for its delivery to the complainant on payment of balance money, if any. The said balance money accounting for a few thousands was obviously meant to discharge the tax liability and the Commission of the dealer. The payment of Commission by respondent No. 1 to respondent No. 2 is a very material factor which together with other factors clearly go to show that in every such deal, the dealer was acting as an agent of the manufacturer. In fact, respondent No. 1 in the instant case was acting as an agent for both the parties i.e., the complainant and the MUL.
The terms "Agent" and "Principal" are defined in Section 182 of the Indian Contract Act which thus read as follows:
"182. ''Agent'' and ''Principal'' defined.-An ''agent'' is a person employed to do any act for another, or to represent another in dealings with third person. The person for whom such act is done, or who is so represented, is called the ''principal''."
4. THE Contract Act does not draw a fine distinction between different classes of agents and the Act is not exhausted and so far as the law relating to agency is concerned, it merely lays down general principles. In determining legal nature of relationship between the alleged principal and agent, the use or omission of the word "agent" is not conclusive. We must, therefore, examine the true nature of the agreement and the subsequent dealings amongst the parties and then decide whether it established relationship of agency under the law. THE relationship of principal and agent may be constituted-(a) by express appointment by the principal; (b) by implication of law, from conduct or situation of the parties or from the necessity of the case; or (c) by subsequent ratification by the principal of the acts done on his behalf.
In the instant case, the sequence of events as already stated hereinabove, leaves no manner of doubt that notwithstanding different wordings used in the agreement of dealership entered into between respondent No. 1 and respondent No. 2, the latter was clearly acting as an agent of the former in booking Maruti cars, accepting the booking amount and remitting the same to the former and making ultimate delivery of cars to the customers. Both the respondents were, therefore, jointly and severally responsible to either deliver the car or to refund the booking amount with interest to the complainant.
This Commission in Appeal No. 894/99, Maruti Udyog Limited v. Sukhdev Prasad Chaturvedi and Another, and Appeal No. 1134/2000, Smt. Kiran Goel v. Fairdeal Marwar Garage Ltd. and Another, decided on 3.1.2001 and 22.5.2001 respectively, has in almost similar fact situation, held that the MUL together with the dealer was responsible jointly and severally to refund the booking amount to the customer. It is significant to note that in both these cases, the MUL was one of the opposite parties and in Appeal No. 894/99 the same dealer i.e., M/s. Ras Motors Pvt. Ltd. was also a opposite party along with MUL. It is further significant to note that the order passed in Appeal No. 894/99 has been affirmed in Revision (No. 1359/2001) by the National Commission. The legal position on the point thus stands settled i.e., to say, the dealer and the manufacturer are liable to refund the amount of booking in the event of non-delivery of vehicle.
5. AS a last leg, learned Counsel for respondent No. 1 tried in vein to show that the complaint was barred by limitation. It was pointed out that the amount in question was deposited way back on 17.11.1997 whereas the complaint is fled on 26.10.2002. We are again not impressed by the arguments. Initially, the complainant has been corresponding with respondent No. 2 insisting for delivery of the vehicle (see Annexures A/4 to A/9). He then on 25.7.2000 wrote to the Regional Manager of respondent No. 1-MUL bringing all the facts to his notice and seeking repayment of his amount. Respondent No. 1 did respond and set a letter dated 1.8.2000 (Annexure A/11) to the complainant assuring him to take remedial measure in the matter. There was some telephonic conversion also between the complainant and the said Regional Manager. The complainant again on 13.12.2000 set a letter together with his affidavit and other documents evidencing payment of money through M/s. Ras Motors Pvt. Ltd. It was only when no action was taken by respondents that the present complaint was filed. The cause of action for complaint has obviously arisen when no payment was made despite notice dated 15.2.2002 sent to both the respondents. The complaint is, therefore, found to be within limitation. The C.P. Act is a benevolent legislation intended to protect the interests of the consumers. Initially, no limitation was prescribed for filing complaint under the Act and it was only in 1993 (w.e.f. 18.6.1993) that new Section 24A providing limitation period, was inserted. So while construing the said provision of limitation, we have to take a liberal view and a genuine claim of a honest consumer should not be allowed to be defeated on the technical ground of limitation.
6. IN the result, the complaint succeeds to the extent indicted above. Both the respondents, i.e., Maruti Udyog Limited and M/s. Ras Motors Pvt. Ltd. are directed to pay jointly and severally, to the complainant a sum of Rs. 3,15,679.72 with interest @ 6% p.a. from the date of deposit i.e., 17.11.1997 till payment. The respondents shall also bear complainant''s cost of this complaint and the same is quantified at Rs. 2,000/-. Complaint allowed.
