M/s Berkeley Automobiles Limited, #27, Industrial Area, Phase-I, Chandigarh through its Legal-cum-Liaison Officer, Om Parkash     Sharma, Legal-cum-Liaison Officer.

……OP-1/Appellant

V E R S U S

1.       Biresh Chaubey, # 2021, Air Force Quarters, Sector 47-C,     Chandigarh.

…. Complainant/Respondent

2.       Maruti Udyog Ltd., Sector 19, Udyog Vihar, Gurgaon, Haryana.

3.       CSD Depot Ambala, Barrack No.02, P.O. No.8, Allenby Lines, Ambala.

4.       CSD Base Depot, Mumbai, No.-T/31 Ex.Ordn. Depot, Camp Signal, Hill Avenue, Sewri, Mumbai – 400033.

 ....OPs No.2 to 4/Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE JUSTICE SHAM SUNDER, PRESIDENT.

                S.  JAGROOP SINGH   MAHAL, MEMBER.

Argued by:          Sh. Sandeep Jasuja, Adv. for the appellant.

                   Sh. P.C. Chaudhary, Adv. for respondent No.1

                   Dr. G.K.S. Taank, Adv. Central Govt. Senior Panel Counsel, for respondent No.3 and 4.

                   Respondent No.2 (appeal against respondent No.2 dismissed vide order dated 21.4.2011)  

PER  JAGROOP  SINGH   MAHAL, MEMBER

          This appeal has been filed by OP No.1 against the order dated 3.12.2010 passed by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) whereby the complaint filed by the complainant was allowed and OP No.1 was directed as follows;

“(i)      To pay interest on the money blocked with the Complainant i.e. Rs.4,16,939/- [Rs.12,000/- + Rs.4,01,469/- + Rs.3,470/-] @ 9% per annum from the respective dates of deposits, till the date of realization.

(ii)        To pay compensation of Rs.50,000/- for causing physical harassment, mental agony and pain to the Complainant on account of non-delivery of a Maruti Swift car to him through CSD Canteen mechanism.

(iii)       To pay a sum of Rs.7,000/- as litigation costs.

                              The aforesaid order be complied with by the OP No.1, within a period of 45 days from the receipt of its certified copy, failing which OP No.1 shall pay the amount awarded as at (i) in the foreogings, along with interest @18% per annum from the respective dates of deposits by the Complainant and from the date of filing the present complaint i.e. 17.05.2009 on Rs.50,000/-, till realization, besides paying the costs of litigation as Rs.7,000/- to the Complainant.”

2.                 Briefly stated,  the complaint booked one Swift VXI Car with appellant/OP No.1 - Berkeley Automobiles Chandigarh through CSD i.e. OP No.3, by paying a sum of Rs.12,000/-, vide Receipt dated 18.02.2010 and also submitted requisite documents with OP No.1 on 22.02.2010. It was stated that at the relevant time, the price of the car was quoted as Rs.3.95 lacs, but later on, he was told that prices have increased by Rs.6,470/-, upon which he paid a sum of Rs.1,02,470/- including amount rate. In the meanwhile, SBI (i.e. State Bank of India) released the loan amount to the appellant on 23.03.2010. It was alleged that OP No.1 handed over the draft dated 29.03.2010 amounting to Rs.4,01,469/- and asked the Complainant to wait for approval from CSD  OP No.3. Again, when he was told of further increase in prices by OP No.1, he prepared another draft of Rs.3470/- and kept on waiting for the instructions from OP No.1, with both the drafts. It was stated that he has paid one EMI of Rs.6083/- to SBI on 20.04.2010 against the loan and the second one was due on 20.05.2010. The OP-1, however, did not tell him that the sale of cars through CSD was to be stopped w.e.f. 10.4.2010 or that he should deposit the drafts with OP-3 from 5.4.2010 to 9.4.2010 nor he gave him the approval letter due to which he could not get delivery of the car before 10.4.2010It was stated that due to this act of the OPs, the complainant suffered financial loses as well as mental and physical stress. Hence, this complaint, alleging deficiency in service and unfair trade practice on the part of the OPs.

3.                 In its reply OP No. 1 pleaded that the price of the car quoted was as per the price existing on the said date and the Complainant was specifically told that the price shall be charged which would actually exist on the date of delivery. It was denied that the Complainant was ever asked to wait for approval. In fact, the Complainant being a service personnel, was to apply for the CSD approval and bring the same. It was stated that the Complainant had later brought the required documents and after getting the documents ready for applying for approval, the said documents were returned to the Complainant for submitting the same before CSD, Ambala. The Complainant had then submitted the said documents for approval before CSD, Ambala for taking approval for purchasing the car in question. Thus, taking of approval was a matter between Complainant and CSD, in which the appellant/OP No.1 had no role to play. It was pleaded that the sale pertaining to Chandigarh was stopped by CSD on 10.04.2010 and the Complainant was, therefore, refused the delivery order. But the Complainant was offered to take the car through Haryana CSD, which he refused due to higher taxes and chose to wait for opening of the sale and prepared the draft of enhanced amount in anticipation of opening of sale. It was stated that if the Complainant was not interested in taking the vehicle, he could collect the booking amount. Denying all other facts of the complaint, a prayer was made for dismissal of the complaint.

4.                 OP/respondent No. 2 in its reply stated that it had no involvement in the transaction of sale of vehicle to the individual customer and their relationship with the dealer was that of Principal-to-Principal basis, only as per the Dealership Agreement executed between the parties.  It was further stated that the alleged sale transaction/ booking of vehicle in question had taken place between the Complainant and OP No.1 & 3 on the terms and conditions of sale settled between them for which OP/respondent No.2 was not privy to the alleged transaction. All other allegations of the complaint were denied by OP No.2 and pleaded that there was no deficiency in service on its part.

5.                 In their joint reply OPs No. 3 and 4, pleaded that it had nothing to do with the matter, as it was a deal between the Complainant and OPs No. 1 & 2. In case of Persons Below Officers Rank (PBOR’s), the sanction was to be granted by the General Manager Canteen Store Department HQ at Mumbai. The role of OP No.3 was limited to the extent of forwarding the applications of the PBOR’s after checking, to the General Manager, Canteen Store Department, HQ Mumbai, who in turn processed the applications and on availability of the budget, accorded sanctions. It was stated that the territorial jurisdiction of
OP No. 3 was state of Haryana and the U.T. Chandigarh does not come within the territorial jurisdiction of OP No.3 w.e.f. 10.04.2010. In the case of the Complainant, sanction had been granted by OP
No. 4 on 25.3.2010, which was duly conveyed to the complainant, thereafter, he was free to purchase the car from any dealer located in the State of Haryana. OP No. 3 would issue the release order as and when the Complainant deposited the cost of the car with it. Pleading no deficiency in service on their part, a prayer for dismissal of the complaint was made by OP Nos 3 &4.

6.                 Parties led evidence in support of their case. 

7.                 After hearing the complainant in person, ld. Counsel for the OPs and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated in the opening para of this order

8.                 Feeling aggrieved, the instant appeal has been filed by the appellant/OP No.1

9.                 We have heard the ld. Counsel for the parties and have perused the record.

10.             The learned Counsel for the appellant/OP No.1 has argued that the appellant/OP No.1 has been indicted vide para No.7 of the impugned order, on the ground that they did not communicate to the complainant/respondent that the sale of vehicles ex-Chandigarh would be stopped w.e.f. 10.4.2010, that the appellant did not hand over to the complainant the approval received from the CSD Headquarters at Ambala/Mumbai, though the same was lying with the appellant and that the complainant was not told that he should deposit the documents during the period from 5 to 10 April, 2010. It is argued that all these allegations are factually incorrect nor was there any duty cast upon the appellant to provide this advice/information/ warning to the complainant/respondent. His contention is that the sale of the vehicles through CSD canteen was stopped by OP Nos. 3 and 4 regarding which the appellant had no prior knowledge nor is their any evidence to prove that the appellant was ever informed about this date by OP Nos.3 and 4 in advance. We have gone through the written statement filed by OP No.3 and 4 in which there is no such mention if the said information was ever conveyed to the appellant. The complainant also has not produced any evidence to prove this fact. When the appellant itself was not aware of the fact that sale of AFD goods through CSD Canteen ex-Chandigarh would be stopped w.e.f. 10.4.2010, it cannot be expected to pass on this information to the complainant. It, therefore, cannot be said that the appellant was deficient in service on this ground.

11.             As regards the approval received from OP No.4 regarding the purchase of the car by the complainant, the OP Nos. 3 and 4 have mentioned in para No.6 and 8 of their reply that the information about the sanction accorded on 25.3.2010 had been conveyed to the complainant. It may be mentioned that it was the complainant who was to approach OP Nos. 3 and 4 for the purchase of the car and when the sanction was accorded, according to OP Nos. 3 and 4 the complainant was duly informed. There was therefore, no deficiency in service in this respect also on the part of the appellant. None of the parties produced the Rules and Regulations governing the Canteen Stores Department before the District Forum and the learned District Forum decided about the procedure from its own without any reference to the Manual issued by the Unit Run Canteen (hereinafter referred to as URC). However, at the stage of arguments, we asked the parties to produce the Rules and Regulations and in this respect the counsel for the complainant produced the Manual for Unit Run Canteens 2005. On the other hand the Counsel for respondent No.3 & 4 contended that the said Manual has since been amended and a new Manual issued in 2008 was in vogue. The counsel for respondent No.3 & 4 produced the Manual of 2008. We have gone through the said Manual and we are of the opinion that it exonerates the appellant from any liability with respect to the present transaction.

12.             The procedure for purchase of AFD items such as cars etc. is given under para No.1.13 (at page 4 of the Manual ), in para 9.6 (page 67 of the Manual) and para 22 (page 129 of the Manual). According to para 1.13 of the Manual the individual customer (i.e. complainant in this case) would obtain information from CSD Area Depot Manager about the availability of these items with the respective dealers and the dealers, in turn, will keep CSD Area Manager informed about the availability of the items from time to time. Under para 9.5 it is again provided that it is the responsibility of the Area Manager of CSD Depot to obtain and provide information about the availability of the items and he will obtain this information from the suppliers/local dealers and keep himself apprised from time to time to avoid inconvenience to the customers. In the present case the said information can be said to have been obtained/supplied because there is no dispute about it.  The contention of the complainant is that he did not obtain the said information from the CSD or Depot but contacted the appellant and the appellant provided the information to him. There was therefore, no deficiency in service on the part of the appellant in this respect. According to para 1.13 the individual customer is required to submit the prescribed form duly filled in and countersigned by the Unit Commander along with a crossed bank draft in favour of the “Canteen Stores Department Public Fund Account (main)”, towards price of the item. This amount was not deposited with the Depot and rather the complainant kept the draft with himself which was given to him by the appellant for this purpose.  It is further provided that after completion of formalities at the Depot, like preparation of official receipt, local supply (LS) order on suppliers etc. the individual is given an authority letter and copy of LS order, which is to be submitted to the distributor/dealer for getting the delivery of the item demanded. Para 9.7 of the manual provides that the customer should personally collect all the relevant documents from the depot. Para 22 (c) further provides as to what documents are to be obtained by the customers from the depot. Again the same are to be obtained by the customer and not by the dealer of the car. Clause (d) also makes it clear that the customer should personally collect all the relevant documents from the depot. It was therefore, the responsibility of the complainant to obtain the documents from the depot and to produce the same before the dealer for the delivery of the vehicle. The District Forum in para 7(viii) wrongly mentioned that it was not for the complainant to take all those papers to CSD office of Ambala for seeking approval for the purchase of the car. It is further observed by the learned District Forum that the approval (received from OP No.4) was lying with the appellant and not with the complainant without which it was not possible for the complainant to deposit the bank draft with OP No.3 without taking along the letter of approval issued by the CSD as well as other related documents. We are, however, of the opinion that while reaching this conclusion the District Forum did not consider the facts mentioned by OP Nos.3 & 4 in their written reply to the effect that the approval letter was already lying with OP No.3 and information about it had already been given to the complainant. There is no requirement for the appellant to have furnished the said approval letter to the complainant for taking it to OPs No. 3 & 4 who already had the approval with them. It had issued the bank draft and handed it over to complainant to deposit it with OP No.3. If the complainant slept over the matter and did not go to OP No.3 for depositing the bank draft, he cannot blame anybody else but himself. There was therefore, no deficiency in service on the part of the appellant, if it handed over the bank draft to the complainant for depositing the same with the CSD Ambala (i.e. OP No.3).

13.             The above discussion makes it clear that the appellant was not wanting in any respect so far as the transaction of the sale of the car to the complainant, through CSD Canteen was concerned. All the functions required to be performed by the appellant had been correctly performed without any delay. No liability therefore, could be imposed on the appellant if sale of car through CSD canteen was stopped w.e.f. 10.4.2010.

14.             The learned Counsel for OP No.3 and 4 has argued that the CSD canteens work for welfare of the serving and retired servicemen, on no profit no loss basis and therefore, the relationship of consumer and service provider do not exist between them and the complainant. The learned Counsel further contended that where a service is rendered without any charge, no consumer complaint can be filed. This argument is factually incorrect. Para 1.8 (page 2) of the Manual for Unit Run Canteen-2008 provides as follows:-

“1.8.   The following are the main objectives of the CSD:-

§                    xxx                       xxx                       xxx

§                    xxx                       xxx                       xxx

§                    Generate reasonable profitability to sustain the organization, permit growth and provide additional facilities for troops and their families.

§                    xxx                       xxx                       xxx

§                    xxx                       xxx                       xxx”

It therefore, cannot be said if the URC are being run on no profit no loss basis. Since the OP No.3 is earning profit on the sales through the URC, it would be deemed as a service rendered by it, and the CSD would be liable for damages/compensation in case of any deficiency on its part.

15.             In the present case there is no allegation in the complaint if there was deficiency in service on the part of OP Nos. 3 and 4. Otherwise also the facts, as emerge from the complaint and the written reply filed by the parties  show that there was no deficiency in service on the part of OPs No. 3 and 4.

16.             In view of above discussion, we are of the opinion that there was no deficiency in service on the part of any of the OPs. If the complainant failed to purchase the car, it was due to his own fault because  he did not deposit the bank draft with OP No.3 promptly after he received it from the appellant and did not obtain the documents as mentioned in para No.22 (c) of the Manual. He did not even verify by going to OP No.3 as to when would there be holidays and when his bank draft/documents could be deposited for the purchase of the car. He slept over the matter and therefore, cannot blame anybody else but himself.

17.             Since there was no deficiency in service on the part of the appellant, the impugned order cannot sustain. The appeal is liable to succeed and the same is hereby allowed. There is no merit in the complaint and the same is dismissed.  The appellant would refund the amount, if any, deposited with it by the complainant.  Parties are left to bear their own costs.

          Copies of this order be sent to the parties free of charge.

Pronounced.

22^nd December, 2011                                                      sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

                                                                                      sd/-

[JAGROOP SINGH MAHAL]

MEMBER

mp