Har Auto Pvt. Ltd. Vs. G. Krishna Kumar and Another

K. CHANDRADAS NADAR : JUDICIAL MEMBER

The appellant was the 1^st opposite party in CC.95/11 in the CDRF, Kasaragod. The respondents were the complainants. The allegations in the complaint were that the 1^st complainant was doing business in Pharmaceuticals. Ramesh Rai was the authorized representative of the 1^st opposite party. He canvassed complainant No.1 for purchasing a new Maruti car. Ultimately complainant No.1 agreed to book one Maruti Alto car and he paid Rs.70,000/- in cash on 29.7.2010 to Ramesh Rai, the authorized representative of opposite parties 1 and 2. Ramesh Rai, gave order form No.1185 dated:29.7.2010 from the official form of the 1^st opposite party which was duly affixed with stamp of the 1^st opposite party. Complainant No.1 paid the balance amount of Rs.1,70,000/- on 30.7.2010 to Ramesh Rai. Ramesh Rai immediately signed order form No.1185 duly acknowledging receipt of Rs.1,70,000/-. The 1^st complainant went to the show room of opposite party No.1 to take delivery of the car but they told the 1^st complainant that the car booked by the 1^st complainant was yet to be received from the 3^rd opposite party/company and 1^st complainant could take delivery of the vehicle immediately on receipt of supply. The 1^st complainant again went to the show room on 3.8.2010 and requested the 1^st opposite party to give delivery of the car. The 1^st opposite party informed the 1^st complainant that Ramesh Rai was yet to come for duty and on the arrival of Ramesh Rai they would verify payment of money and deliver the car. Complainant No.1 went to the show room of opposite party No.1 on 4.4.2010. Then to the surprise of first complainant he was told that Ramesh Rai had not remitted the amount collected from complainant No.1 at the office of the 1^st opposite party. On 9.8.2010, notice was published by 1^st opposite party in the local Kannada Newspaper warning the public that Mr.Ramesh Rai, authorized representative of opposite parties 1 and 2 was absconding with effect from 4.8.2010 and Ramesh Rai was no more in the service of the Company. The 1^st complainant approached 2^nd complainant an association working for the welfare of consumers and sought their help. Complainant No.2 issued notice to opposite parties 2 and 3 but they did not deliver the car. Hence the complaint for direction to the opposite parties to deliver a new Maruti Alto Car and direct them to pay compensation of Rs.1,60,000/-.

2. Opposite parties 1 and 2 filed joint version and 3^rd opposite party filed separate version. Opposite parties 1 and 2 contended that Ramesh Rai was a friend of the 1^st complainant and they were not aware of a person by name Ramesh Rai who hails from Badiadka. He is the person who is bound to answer the allegations in the complaint. It is incorrect to say that Ramesh Rai persuaded the 1^st complainant to purchase new Maruti Alto Car. The amounts allegedly collected from the 1^st complainant are not handed over to opposite parties 1 and 2. The transaction if any between the complainant and Ramesh Rai was only personal in nature. The 1^st complainant never visited opposite parties 1 and 2. They came to know about the allegations only when the complainant started the proceedings. The opposite parties never issued any receipt to the 1^st complainant and if he is having any receipt it is created by him along with Ramesh Rai. Opposite parties 1 and 2 never authorized any person to collect amounts from a customer. The company is authorizing their representatives only to book vehicles. One Ramesh Rai of Yendaduka had been receiving amounts from customers fraudulently and with dishonest intention. He cheated several persons and opposite parties 1 and 2 published notice against Ramesh Rai in local Dailies and initiated legal action to save innocent customers. Opposite parties 1 and 2 are not liable for a criminal act done by Ramesh Rai. The 1^st complainant created documents in collusion with Ramesh Rai.

3. Opposite party No.3, the manufacturer of Maruti cars contended that there was no privity of contract between them and the 1^st complainant, and they have not received any consideration from the 1^st complainant and they are unnecessary parties to the proceedings.

4. Before the Forum, the 1^st complainant gave evidence as PW1, Exts.A1 to A8 were marked on his side. The 2^nd opposite party gave evidence as DW1. No document was marked on the side of the opposite parties.

5. The Forum after considering the evidence adduced held that opposite parties 1 and 2 were jointly and severally liable to compensate 1^st complainant and accordingly directed them to refund Rs.2,40,000/- paid to their employee for purchasing the car with interest from the date of complaint and costs of Rs.4000/- within 30 days failing which enhanced interest was liable to be paid at the rate of 12% per annum. 3^rd opposite party was exonerated from liability. The said decision of the Forum is challenged by the 1^st opposite party. The only question that arises for consideration is whether the findings of the CDRF, Kasaragode can be sustained on the admitted facts and evidence available.

6. It is admitted in the complaint itself that the alleged payments of Rs.70,000/- on 29.7.2010 and Rs.1,70,000/- on 30.7.2010 towards price of Maruti Alto Car were made to one Ramesh Rai. For the purpose of effecting these payments, the 1^st complainant never went to the show room of the 1^st opposite party. It is alleged in the complaint that when the 1^st complainant paid Rs.70,000/-, Ramesh Rai issued Ext.A1 filled up order booking form and on payment of Rs.1,70,000/- on 31.7.2010 Ramesh Rai issued Ext.A2 temporary receipt for the vehicle. In both Exts.A1 and A2 only Ramesh Rai has signed as authorized signatory of the 1^st opposite party. Opposite parties 1 and 2 have contended that these are documents created by Ramesh Rai a friend of the 1^st complainant. Ramesh Rai mentioned in the complaint was never their authorized agent but the authorized agent was one Ramesh Rai of Yendaduka, that too the agents of the 1^st opposite party were authorized to receive only booking order of vehicles and not price of the vehicles booked by them. Ext.A1 shows that normally minimum booking amount is Rs.2000/- and there is no prohibition in receiving more than Rs.2000/-. But in this case the conduct of the 1^st complainant appears to be rather strange because even before visiting the show room of the 1^st opposite party he chose to pay the entire price of the vehicle. Therefore there is force in the contention that Ramesh Rai must be the friend of the 1^st complainant. It also appears that opposite parties 1 and 2 effected Ext.A3 publication in a local daily stating that Ramesh Rai of Yethaduka who was an employee of the 1^st opposite party company was absconding from duty since 4.8.2010. He had flouted company rules and regulations and had entered into financial and other transactions with various individuals illegitimately on personal basis for which the 1^st opposite party was not responsible. The photograph of Ramesh Rai is also given. According to DW1 Ramesh Rai mentioned in Ext.A3 is a person different from Ramesh Rai mentioned in the complaint and Exts.A1 and A2 were created for the purpose of filing the complaint. It is not their authorized booking form or receipt. But the arguments could have been accepted only if opposite parties 1 and 2 had produced in evidence similar order booking forms and receipts used at that point of time on behalf of the 1^st opposite party. In the absence of production of such documents it is difficult to accept the argument of opposite parties 1 and 2. It is pertinent to notice that for the purpose of booking vehicles the forms should have been left with their agents or employees. For all the transactions legally entered into by them, opposite parties 1 and 2 would be answerable. The question is whether as an agent binding transaction was entered into between the 1^st complainant and Ramesh Rai so as to bind opposite parties 1 and 2.

7. It is pertinent to notice that the definite allegation in the complaint is that on 29.7.2010 Rs.70,000/- was paid in cash to Ramesh Rai, when the order booking form was issued to the 1^st complainant. As against this allegation as PW1 the 1^st complainant admitted that on the said day he handed over his old car to Ramesh Rai , Rs.70,000/- was fixed as selling price and Ramesh Rai ought to have handed over that amount to the Company. The 1^st complainant further admitted that all the dealings for purchasing the car were done at his medical shop. Ramesh Rai told him that he was working under the 1^st opposite party showing his visiting card. The 1^st time the complainant went to the show room of the 1^st opposite party was on 3.8.2010. All these happened in the back ground of the fact that the 1^st complainant and Ramesh Rai were friends. That they were friends is further evident from the fact that the 1^st complainant never filed a complaint before the police against Ramesh Rai. Nor did he choose to implead Ramesh Rai as a party to the proceedings before the consumer Forum. So, remedy is sought against opposite parties 1 and 2 only because value of the car was paid allegedly to their agent. So, even if all other contentions of opposite parties 1 and 2 are brushed aside it remains that in order to make the principal liable for the misdeeds of an agent the agent should be a necessary party. But the alleged agent is not impleaded as a party. At the same time the Forum has held that opposite parties 1 and 2 if they wish, can take appropriate legal proceedings against Ramesh Rai to recover the amount paid to the complainant in compliance with its order. But without Ramesh Rai in the party array the Forum cannot make an order binding on Ramesh Rai. Had he been made party no one knows whether he would have denied the receipt of any money from the 1^st complainant. So without considering his contentions the Forum was not in a position to make orders binding on him. This itself is sufficient to hold that Ramesh Rai, even if he was an agent of opposite parties 1 and 2, was a necessary party to the proceedings. So far the complainants did not find it necessary to implead Ramesh Rai for no obvious reason as admitted by the 1^st complainant himself. So, opposite parties 1 and 2 cannot be legally made liable to pay or refund the amount allegedly received by Ramesh Rai. The evidence as a whole indicates that the amount allegedly received by Ramesh Rai was never paid to opposite parties. In short the conclusions of the CDRF, Kasaragod cannot be legally sustained and the complaint was liable to be dismissed.

In the result the appeal is allowed. The order of the CDRF, Kasaragode in CC.95/11 dated:22.12.2011 is set aside. The complaint is dismissed and considering the facts and circumstances of the case the parties are directed to bear their costs in the appeal.