DIST.CONSUMER DISPUTES REDRESSAL COMMISSION, KHURDA, BHUBANESWAR:
-ooOoo-
C.C.CASE NO. 412 /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.1345 dated 18/06/2020 towards booking of one BMW Bike F900-R. 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 …. to the show-room of the OP for a servicing appointment of his car. There, he expressed his desire to purchase one BMW bike F900-R 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 18/06/2020. Thereafter, the sales department of the OP issued a letter dated 17/11/2020 to the complainant wherein the complete booking details of the said Bike were provided along with terms & conditions. But the complainant did not come to take the booked Bike. So, on 12/12/2020, the OP sent an e-mail to the complainant informing therein about the hike in price of the said Bike which would come to effect from 21/12/2020 and requested the complainant to expedite the process of purchase as it had already been allocated in the name of the complainant. Again, on 12/01/2021, the OP sent another reminder mail to the complainant informing about the hiked price of the Bike and to make the rest payment. 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 Bike F900-R. 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 denies to refund the booking amount relying on the terms of the contract. For this, OP has relied upon the booking order dated 17/11/2020 (Annexure R-3) in which it is clearly mentioned in the clause No:13 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) 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 9th 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
