This Complaint coming up before us for hearing on 20-12-11 in the presence of Sri C. Raghu Rami Reddy, advocate for the complainant, Sri P. Krishna, advocate for 2^nd opposite party and  1^st opposite party remained absent and set exparte, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

PER SMT.T.SUNEETHA, LADY MEMBER:     The complainant filed this complaint under section 12 of Consumer Protection Act seeking directions on the opposite party to refund an amount of Rs.1,40,000/- paid by the complainant towards advance along with interest @12% p.a., amounting to Rs.27,393/- from the date of cancellation  i.e., 08-09-09 till the date of realization and to award Rs.3,00,000/- towards compensation for mental agony. 

2.  In brief the averments of the complaint are these:

        The 1st opposite party invited applications for booking of Nano Passenger Cars. The complainant submitted her application bearing No.110350288, dt.17/04/2009 along with cheque for Rs.1,40,000/- of State Bank of Hyderabad dt.17/04/2009 bearing cheque No.742697 of Chandramoulinagar Branch, Guntur.   Later the 1st opposite party  sent allotment letter date 23-06-09 intimating to the complainant that the car shall be delivered between January-March 2011 through 2nd opposite party.

3.     Then the complainant not interested to take delivery of car in the year 2011 and she cancelled the booking of Tata Nano at the office of 2nd opposite party on 08-09-09.  The 2nd opposite party handed over the acknowledgement to the complainant with cancellation reference No. OLBOB 94467 and the 2nd opposite party informed to the complainant that advance deposit amount shall be refund within two months.   The 2nd opposite party instructed the complainant to contact call centre for further details.   Believed the version of the 2nd opposite party the complainant number of times contacted call centres for her money.   But no proper response from call centre.

4.     The complainant received an out dated cheque bearing No.152034 dated 18-03-10 of HDFC Bank for Rs.2,904.67 ps from the 1st opposite party.   The complainant when presented in her bank it was returned as invalid due to which the bank deducted Rs.111/- from her account.  

5.     The complainant got issued registered notice to opposite parties  who received and kept quite.    The complainant cancelled the booking of car for more than one year but the opposite parties have not refund the advance amount till today.   It amounts to deficiency of service on the part of the opposite parties.   Hence, the complaint.

6.   2^nd opposite party filed version and its contents in brief:

        The 2nd opposite party is only a dealer of Nano product group at Guntur.  He has to deliver the Nano cars as directed by the 1st opposite party.  This 2^nd opposite party is nothing to do with any dealings between purchasers and 1^st opposite party. If the complainant had issued a cheque for Rs.1,40,000/- it must have been in favour of 1^st opposite party and the consequences of issuing the said cheque relates to the 1^st opposite party and not to this 2^nd opposite party.

7.     The 2^nd opposite party knows only that complainant has cancelled her booking and nothing more is known to this 2^nd opposite party.  This complainant has no fiduciary relationship with this 2^nd opposite party.   There is no averments either in the complaint or in the legal notice lugging in the liability of this 2^nd opposite party.

8.     The 2^nd opposite party has not committed any deficiency of service as there is no jural relationship between the complainant and this 2^nd opposite party.   This 2^nd opposite party also tried to contact the 1^st opposite party on this issues, but he is not given proper information by either side and therefore he could not do anything in this matter.

9.     As seen from the statement of account furnished under Ex.A-5 it is not clear whether the complainant had issued the cheque bearing No.742697 having balance of Rs.1,40,000/- as the said statement is not reflecting that much of amount in complainant’s account.   

10.   The 2nd opposite party therefore prays that the Hon’ble Forum be pleased to dismiss the complaint with costs against the 2^nd opposite party.

11.   Both parties have filed their respective affidavits.   Exs.A-1 to            A-9 were marked on behalf of the complainant.   No documents were marked on behalf of 2^nd opposite party.   The 1^st opposite party remained exparte.

12.    Now the points for consideration are:

        1.   Whether the opposite parties committed deficiency of                                 service?

        2.  To what relief the complainant is entitled to?

13.  POINT No.1:  The complainant’s cancellation of booking of Nano car is in accordance with the condition laid down in the application form (Ex.A-1) which is as below:

            “a) An accepted booking can be cancelled any time by the Allottee after receiving intimation from Tata Motors in terms of clause 3 (b) above, Such Allottee has to register a cancellation request at the call centre and also submit a written notice of cancellation (mentioning the cancellation code given by the call centre) at the Tata Motors Passenger Car Dealership selected in the Application Form for taking delivery of the Tata Nano Car.   The written notice should be accompanied with original allotment letter in terms of clause 3 (b) and original Allottee’s  copy of the application form duly signed and stamped by the SBI officer.   On cancellation, the payment made by the allottee will be refunded by Tata Motors within 30 days of the request for cancellation, after deduction of cancellation charges of INR 2999   only to the Bank account number mentioned in the application form (b) in case of cancellation by retainees in terms of clause 4 (a) above the process of cancellation remains as mentioned in clause 7 (a).  The retained amount will be refunded only to the bank account number mentioned in the application form.   The accrued interest would be paid as cheque in the name of  ratainee and sent to the retainees address mentioned in the application form.   (c) the allottes/ retainess will be charged cancellation charges of INR 2999/-“. 

A request notice dated 08-09-09 Ex.A-3 submitted to the 1^st opposite party by the complainant is produced for perusal of the Forum. 

14.   The complainant on 19-12-11 filed memo to the following affect:

                “It is humbly submitted that the 2^nd respondent acted as agent on behalf of 1^st respondent and collected the cancellation intimation from complainant.   The complainant paid amount to the 1^st respondent.  Part of transaction took place at Guntur by 2^nd respondent”.

        The complainant to have territorial jurisdiction of the Forum made the  2^nd opposite party as a party, as cancellation was sent through it.   Under those circumstances, claim against 2^nd opposite party is not maintainable.

15.   The complainant paid Rs.1,40,000/- to the 1^st opposite party (as seen from Ex.A-1 and A-5).   On cancellation the 1^st opposite party have to refund the amount after deducting cancellation fee of Rs.2,999/- to the customer/complainant herein. But the 1st opposite party has send a belated cheque for Rs.2,409/- which is contrary to the conditions.   Therefore 1^st opposite party committed deficiency of service, hence liable to compensate the complainant.

16.   POINT No.2:-   The complainant cancelled the booking of car and asked for refund of the paid amount.   The 1st opposite party having received the payment failed to refund the amount on receipt of cancellation note which amounts to deficiency of service.   Thus the 1^st opposite party is liable to compensate the complainant.

17.   In the result the complaint is partly allowed as indicated below:

        1.     The 1^st opposite party is directed to refund Rs.1,37,001/-                   (Rupees one lakh thirty seven thousand and one only)                  (deducting cancellation charges of     Rs.2,999/- from paid                    amount of Rs.1,40,000/-) along with interest @12% p.a.,                        from the date of cancellation till realization.

        2.  The 1^st opposite party is directed to pay Rs.3,000/- (Rupees                  three         thousand only) towards compensation for mental                     agony.

        3.  The 1^st opposite party is further directed to pay Rs.1,000/-                    (Rupees one thousand) towards costs of the complaint.

        4.  The claim against 2^nd opposite party is dismissed without                       costs.

        5.  The amounts ordered above shall be paid within a period of                  six weeks from the date of receipt of the copy of the order.

             Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 21^st day of December, 2011.

MEMBER                                  MEMBER                  PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:   NIL

                                                                                           PRESIDENT