Case: General Motors (I) Private Limited Vs. Ashok Ramnik Lal Tolat

3. In the complaint, filed before the District Forum, Ahmedabad (Rural) (for short), the prayer of the respondent-complainant was as followscomplainant, therefore, most respectfully prays :That thisForum be pleased to hold that the opposite parties (joint and severally) to have practiced unfair trade practice, towards the complainant and direct them (jointly and severally) to remove unfair trade practice, practiced by them against the complainant;ThisForum be pleased to direct the opposite parties (jointly and severally) to remove the deficiencies in their services and negligence towards the complainant.ThisForum be pleased to direct the opposite parties (jointly and severally) to refund the complainant a sum of Rs.14,00,000/- (Rupees Fourteen Lakh) and Rs.1,91,295/- to the complainant along with the 18% interest, from the date of payment to the complainant and theForum be pleased to direct the opposite parties to forthwith to take back the said vehicle from the complainant, after refunding themoney with interest, as prayed;ThisForum be pleased to direct the opposite parties (jointly and severally) to pay compensation for physical and mental pain, shock, suffering, agonies, hardships, inconveniences and expenses suffered by the complainant, to the tune of Rs.50,000/- (Rupees Fifty Thousand) or as thought fit in the interest of justice, by thisle Forum be pleased to direct the opposite parties (jointly and serverally) to pay Rs.25,000/- to the complainant, as cost of this complaint.The case of the complainant is that he had passion for driving and dream to visit Leh Ladakh, Jammu & Kashmir and Nepal by driving a motor car. By surfing the internet, he read advertisement given by the appellant as followsa world without borders, an SUV to end all SUVs.the new Chevrolet Forester. With the Power of 120 horses under its borne unique All-Wheels (AWD), it literally puts the four corners of the earth within your easy reach. Itjust get you there. But get you there. But get you there in unmatched comfort and luxury by-road, off-road or no-road.Relying upon the same, he visited the agents of the appellant and was given a book titleda special journey calledHe was assured that the vehicle offered for sale will realise his dream. The brochure also assured thatvehicle in question is an SUV to end all SUVs. And …………… it will put the four corners of the earth within your each and ……….. itjust get you their every time. But getthere in unmatched comfort, by road, off-road or noHe was also shown visual presentation of the vehicle and was also given a copy of the VCD. Accordingly, he purchased the vehicle on 1st May, 2004 for Rs.14 Lakhs and got accessories worth Rs.1,91,295/- fitted and also got the vehicle insured and registered.6. Thereafter he realised that the vehicle was not fit forno road and dirtdriving as represented and had defects. Accordingly, he approached the appellant and its dealers who referred to themanual at pages 8-6 column 1 & 3 printed by the Company to the effect :driving ………… But please keep in mind that AWD Chevrolet is a passenger car and is neither a conventional off-road vehicle nor an all terrain vehicle …….. If the driving through water such as when crossing shallow streams, first check the depth of the water and the water stream bed for firmness and ensure that the bed of stream is flat ………… the water should be shallow enough that it does not reach underhe found that themanual was contrary to the assurance in the brochure, internet and the book titleda special journey calledHe also realised that the vehicle was not SUV but a mere passenger car, not fit foro road and dirtdriving. He could not realise his dream to drive it to Leh Ladakh, Jammu & Kashmir and Nepal. The action of the appellant was thus,He sought permission to removeand deficiencies in service and also to refund a sum of Rs.14 Lakhs the price of the vehicle and Rs.1,91,295/- the price of accessories with 18% interest from the date of purchase till the date of payment and also to pay compensation for physical and mental pain shock, suffering, agonies, hardships, inconvenience and expenses suffered by the complainant, to the tune of Rs.50,000/- or as thought fit in the interest of justice and the costs. The District Forum directed refund of Rs.14 Lakhs plus Rs.1,91,295/- towards cost of accessories with interest @ 9% per annum from the date of complaint to the date of payment subject to the return of the vehicle, apart from compensation of Rs.5,000/- for mental agony and Rs.2,000/- as costs of litigation.7. The said order of the District Forum was challenged by the appellant before the Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad (for short). The State Commission held that the vehicle had no mechanical or manufacturing defect but the advertisement that car was SUV amounted toAccordingly, in substitution of the order of the District Forum, the complainant was held entitled to Rs.50,000/- as compensation which included costs of litigation. But at the same time, the complainant was required to pay Rs.5,000/- towards costs for undeserving claim. The appellant was directed not to describe the vehicle in question as SUV in any form of advertisement, website, literature etc. and to make the correction that it is a passenger car as mentioned in the manual.8. Accordingly, the appellant complied with the said direction by issuing a disclaimer.9. The respondent preferred a revision petition against the Order of the State Commission while the appellant filed a cross revision petition.10. The National Commission held that the appellant could not be allowed to contest the finding of committingin view of its conduct in voluntarily complying with the order of the State Commission and filing cross revision without any justification and belatedly. Referring to the material on record, particularly, the undisputed correspondence, the said finding was also affirmed on merits. After referring to the definition ofunder Section 2(1) (r) of the Consumer Protection Act, 1986 (for short, it was concludedin view the above definition of unfair trade practice and the material obtaining on record more particularly the representations made and held out by the respondent in their brochures relating to the vehicle in question, themanual as also the clarification rendered by the manufacturer of the vehicle, there can be hardly any doubt that the motor vehicle Chevrolet forester AWD model was not a vehicle of the said description in as much as it was not a SUV vehicle. Therefore, the petitioner must have been misled on that score to believe that the vehicle offered for sale was a SUV. This act of the respondent would clearly fall within the mischief of unfair trade practice as envisaged in section 2(r) (supra). We therefore, affirm the findings of the State Commission in this behalf.After recording the above finding the National Commission proceeded to consider the relief to be given. It was held that the State Commission was not justified in reversing the direction of the District Forum once the commission ofwas established, even as per finding of the State Commission. Accordingly, the National Commission restored the relief given by the District Forum with slight modification asit is found that respondent has indulged in unfair trade practice which had misled the petitioner to purchase the vehicle in question, in our view, the most appropriate relief to the petitioner would be to reinstate the petitioner to his original position before the purchase of the vehicle viz., refund of the price of the vehicle along with some compensation in that behalf. Keeping in view that the vehicle was used by the petitioner for a period of about one year and it has run approximately 14,000 kms, we consider it appropriate that the respondent should refund a sum of Rs.12,50,000 (Rupees twelve lacs fifty thousand only) to the petitioner subject to the condition that the vehicle in question, without the accessories, which the petitioner got fixed at a cost of Rs.1,91,295/-, is returned to the respondent.The above was not the end of the journey, though the above relief met the claim of the complainant in his complaint. The National Commission proceeded to consider the issue of punitive damages forin selling the said vehicles to about 260 consumers. It was held that though the consumers had not approached the National Commission and a period of four years had passed, the appellant should pay punitive damages of Rs.25 lakhs and out of the said amount, a sum of Rs.5 Lakhs be paid to the complainant while the rest be deposited in theof the Central Government to be utilized for the benefit and protection of the interests of the consumers generally. Final operative order passed by the National Commission is as followsrespondents are hereby directed to pay a sum of Rs.12,50,000/- (Rupees Twelve Lacs Fifty Thousand only) to the petitioner towards price of the vehicle subject to the petitioner returning the vehicle in question without accessories to the respondents. The respondents are hereby called upon to deposit a sum of Rs.25 lacs (Rupess Twenty Five Lacs) as punitive damages with this Commission. Out of the said deposited amount, a sum of Rs.5 lacs (rupees five lacs) shall be paid to the petitioner-complainant and rest of the amount shall be credited to theof the Central Government to be utilized for the benefit and protection of the interests of the consumers generally. We also award a sum of Rs.50,000/- (rupees fifty thousand) in favour of the complainant to meet his cost of litigation before the three consumer fora. The liability to pay and deposit the amounts shall be joint and several on the respondents. We grant six weeks to the respondents to comply with the directions given herein above.

Reasoning: We have already set out the relief sought in the complaint. Neither there is any averment in the complaint about the suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The respondent complainant was satisfied with the order of the District Forum and did not approach the State Commission. He only approached the National Commission after the State Commission set aside the relief granted by the District Forum. The National Commission in exercise of revisional jurisdiction was only concerned about the correctness or otherwise of the order of the State Commission setting aside the relief given by the District Forum and to pass such order as the State Commission ought to have passed. However, the National Commission has gone much beyond its jurisdiction in awarding the relief which was neither sought in the complaint nor before the State Commission. We are thus, of the view that to this extent the order of the National Commission cannot be sustained. We make it clear that we have not gone into the merits of the direction but the aspect that in absence of such a claim being before the National Commission and the appellant having no notice of such a claim, the said order is contrary to principles of fair procedure and natural justice. We also make it clear that this order will not stand in the way of any aggrieved party raising a claim before an appropriate forum in accordance with law.