DIST.CONSUMER DISPUTES REDRESSAL COMMISSION, KHURDA, BHUBANESWAR:

                                                -ooOoo-

C.C.CASE NO. 413 /2022

Mr. Srikant Pradhan, aged about 30 years,

S/o-  Biswanath Pradhan, 111/355, Gelapur, Gopinathpur,

Dhauli, Khordha – 751002, Odisha

E-mail : srikanta.pradhan6969@gmail.com

….     Complainant             

-Vrs.-

BMW Dealer, OSL, Prestige Private Limited,

Having  its registered office at : NH-16, Bhanpur,

Cuttack, Odisha, Pin - 753011

                                                                   ….     Opp. Party 

For the complainant      :         Mr.N.Shameem & Associates  (Adv.)

For the OP                     :         Mr. B. Jena & Associates (Adv.)

DATE OF FILING         :         14/12/2022

DATE OF ORDER        :         09/06/2023

ORDER

S.TRIPATHY, MEMBER 

1.       This Consumer Complaint is filed by the complainant  U/s 35 of the C.P.Act, 2019 for refund of booking amount from the OP (OSL Prestige Private Ltd.)

2.       The brief  fact of the complaint is that, the  complainant paid Rs.1,00,000/- to the OP vide money receipt No.2199 dated 07/08/2020 towards booking  of one BMW X6 xdrive 40 i M Sport M.Grey Bike. The complainant  had previously purchased  one BMW 520D Model car  from the same OP, wherein some manufacturing defect was found. So, the complainant did not wish to make another purchase from the OP and requested the OP to refund his booking amount. Despite several requests, OP did not refund the booking amount and when all the efforts of the complainant  became futile,  he sent a legal notice  to which the OP did not respond. So, the complainant being aggrieved by the non-responsive attitude of the OP, decided to take recourse from this Commission.   Hence this complaint.

3.       Upon notice, the OP appeared before this Commission and filed his written version. In his version, OP has denied each and every allegation made against him by the complainant.  It is contended by the OP in his version that, the complainant had come  down  to the show-room of the OP for a servicing appointment  of his car. There, he expressed his desire to purchase one  BMW X6 xdrive 40 iM Sport M.Grey Bike  from the OP and eventually  made a booking of the said Bike by paying booking amount of Rs.1,00,000/- vide fund transfer dated 07/08/2020. Despite several  e-mails, the complainant  remained silent. He neither made the rest payment nor did he cancel the booking of the said Bike. 

          It is further contended by the OP that as per their  terms and conditions, 10% of the ex-showroom price will be deducted as cancellation charges. In this  present  case, 10% of the ex-showroom price is 90,900/- and complainant had paid Rs.1,00,000/- towards booking amount to the OP. Hence, complainant is not eligible  to get the full amount of refund against the booking of the  said Bike. And, further the present complaint is liable to be dismissed with exemplary cost as the OP has suffered loss by allocating a Bike exclusively in the name of the complainant. 

4        Perused the  materials available on case record. It is not in dispute that,  the complainant had  paid Rs.1,00,000/- to the OP towards booking of one  BMW X6 xdrive 40 iM Sport M.Grey Bike. But, thereafter,  due to some reason or other, the complainant did not proceed with the process of purchase despite several reminders sent by the OP.  Now, the complainant wants the booking amount back from the OP, who denied to refund the booking amount relying on the terms of the contract. For this, OP has relied upon the booking order dated 07/08/2020 (Annexure R-2) in which it is clearly mentioned in the clause No:10 that “ In case of cancellation, 10% of ex-showroom price will be deducted as cancellation charges.” It is also  well within the knowledge of the complainant. After going through all the documents and the submissions made by the parties, it is viewed that, this is a contract between the purchaser and the seller. In order to purchase he had paid some advance money (token money). Later on,  cancellation of booking,   undoubtedly  amounts to breach  of contract. On that account, the seller is entitled to damages. Damages may be  pre- determined or determined after the breach occurs. In this present case, it is pre-determined which is 10% of the ex-showroom price.

Indian Law does not bring a distinction between liquidated damages and penalty. But the court or the competent authority is empowered to reduce the liquidated damages so determined  between the parties prior to the contract, if it is viewed as penalty. In the considered view,  10% of the ex-showroom price  comes around Rs.99,000/-   Booking amount is Rs.1,00,000/-.   If the entire booking amount will be appropriated by the OP, then it amounts to penalty.  It is not a liquidated damage. Since, it is viewed as a penalty damages so determined by the OP,  should be reduced. Hence it is ordered.

ORDER

The complaint is hereby   allowed  in part on contest against the OP. The OP is  hereby directed to return Rs.80,000/-  (Rupees eighty thousand) only to the complainant within 30 days from the date of communication of this order,   failing which the complainant will be  at liberty to execute the order  against the OP  in accordance with law.

The order is pronounced on this day the  9^th June,  2023  under the seal & signature of the President and Member (W) of the Commission.

                                                                            (S.TRIPATHY)

                                                                               MEMBER(W) 

Dictated & corrected by me

           Member ( W) 

                                                                             I agree

                                                                                                                                                 President   

                                                                             (K.C.RATH)

Transcribed by Smt. M.Kanungo, Sr.Steno