Order-13.
Date-11/07/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that on 07-12-2016 she booked a new Maruti Car Swift Dzire LXI in exchange policy from the authorized dealer of Maruti Suzuki Car namely Dewar’s Garage Ltd.(OP1) by issuing a cheque being No.007744 amounting to Rs.95,000/- as booking charge. Booking was made under exchange policy and the complainant exchanged her old Tata Indigo Car being No.WB 19D7012. On 06-01-2017 OP1 also took over the said old car of the complainant and is enjoying the benefit of the said car of the complainant. The complainant applied for a bank loan from SBI Ballygunge Park Branch dated 13-12-2016 for the purpose of buying the new car (Swift Desire LXI) amounting to Rs.4 lakhs and loan has been sanctioned by the said Bank and the loan amount has also been duly credited in the account of OP1. In spite of payment of the booking amount as well as Rs.4 lakhs, OP1 failed to deliver the new car to the complainant. Registration of the car is also done by the OP. It is stated that the old Tata Indigo car was absolutely in working condition and the complainant was using it for her daily purpose and presently she has to hire cars to meet daily purpose and has to foot a bill of Rs.3,000/- per day to hire a car for travel/journey. The complainant also submitted a complaint against OP through a grievance box in the official website of Maruti Suzuki. Complainant has also served a legal notice dated 16-11-2017 upon the OP but to no good. The complainant has filed this case for refund of the cheque amount of Rs.95,000/- along with other reliefs in terms of prayer in the complaint.
OP1 has contested the case in filing written version contending, inter alia, that the instant proceeding is not maintainable in law and in fact and the complainant has no cause of action to file this case. It is stated that on December 7, 2016 the complainant approached the answering OP for purchase of Maruti Suzuki Dzire LXI in exchange offer of old vehicle being TATA Indigo. The answering OP made a valuation of the car and asset of the old car of Rs.50,000/- and also offered exchange bonus of Rs.28,000/- for the old car totalling at Rs.75,000/- on the same day i.e. December 7, 2012. The complainant also booked the new car with the answering OP on the self-same date. The complainant also deposited her old car on January 6, 2017. The representatives of the answering OP found out from the official website of Kolkata Traffic Police that about 56 unpaid citation cases and one unpaid sticker case in respect of old vehicle was pending on various dates including traffic violations cases under the Motor Vehicles Act. The complainant being approached virtually refused to pay the fine amount. The answering OP, as such, decided to exercise its Right of Lien over the new car until the complainant discharged the liabilities in respect of old car. The answering OP also issued a letter dated January 20, 2017 to the complainant requesting to clear the aforesaid pending cases in respect of old car or to pay an amount of Rs.18,000/- inclusive of service charge to enable the answering OP to clear the aforesaid cases but the said letter came back with acknowledgement with the postal endorsement “not claimed”. It is denied that complainant’s daily expenses have increased or that complainant had to bear Rs.3,000/- per day for hiring a purported car from travelling agency. This OP has denied deficiency of service. This OP has prayed for dismissal of the case.
OP2 has filed written version contending, inter alia, that the case is not maintainable in fact and in law. It is stated that complainant is not a consumer under C.P. Act and there is no privity of contract between the complainant and OP2. It is stated that the complainant has failed to set out any specific allegation of deficiency in service against this OP. it is stated that the answering OP has not committed any deficiency in service or indulged in unfair trade practice. It is stated that complainant has neither paid any amount to OP2 nor OP2 is liable to sell or deliver the vehicle in question to the complainant. It is stated that the complainant has filed a frivolous and vexatious complaint against this answering OP and the complaint is liable to be dismissed with cost.
Point for Decision
- Whether the OPs are deficient in rendering services to the complainant?
- Whether the OPs have indulged in unfair trade practice?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. Xerox copy of loan cum hypothecation agreement in between the complainant and SBI at Ballygunge Park, Xerox copy of cheque of Rs.95,000/-, Xerox copy of arrangement letter dated 15-12-2016, Xerox copy of vehicle delivery note, Xerox copy of evaluation of the old card, Xerox copy of vehicle receipt note as filed from the side of the complainant.
We have also perused the documents filed by the OP1 i.e. letter dated 20-01-2017 returned to OP1 being “not claimed” by the complainant, Xerox copy of the cases of Kolkata Traffic Police in respect of vehicle No.WB19D7012 (old Tata Indigo Car of the complainant) and other documents on record.
It appears that the complainant booked one Swift Dzire LXI on 07-12-2016, booking amount being Rs.95,000/- against exchange policy and the bank loan disbursed was Rs.4 lakhs on 13-12-2016 by SBI Ballygunge to OP1. OP1 also took over the old car of the complainant on 06-01-2017. Complainant has alleged that on several occasions the complainant visited the dealer’s showroom to collect her booked car and each time OP committed to deliver next date and ultimately the complainant did not get the delivery of the car. The complainant, as such, has alleged deficiency of service against the OP1 and has stated that in spite of receiving the booking amount as well as Rs.4 lakhs, OP1 failed to deliver the booked new car to the complainant.
We find that the relationship between OPs1 and 2 is principal to principal. In the instant case the complainant has alleged that OP1 has not delivered the vehicle to the complainant and sought refund of booking amount with the compensation from OP1. We find that the present complaint as such, is not maintainable against OP2 and deserves to be dismissed on the said ground.
The Consumer Protection Act, 1986 is a Special Act and it gives remedy to the consumer in certain circumstances. Before the consumer can get any remedy against OP1 from the Fora set up under the Act, it must establish that there is some deficiency of service by OP1. Both the concepts “deficiency” and “service” have been defined u/s.2(g) and 2(o) of the Act. It is transpired from the materials and evidences on record that the complainant booked the new car in exchange policy on 17-12-2016; the old car was delivered by the complainant to the OP1 on 06-01-2017. After delivery of the car it transpired that 56 unpaid citation cases and one unpaid sticker case were pending against the old vehicle for various offences including traffic violations under the Motor Vehicles Act, 1988, as per the information available in the official website of the Kolkata Traffic Police for the period 19-03-2010 to 01-09-2016 and the old car was in possession of the complainant during the said period. We think that such pending cases are liabilities of the complainant in as much the same arrears prior to delivery of the old car by the complainant to OP1. We find that the complainant also did not discharge such liabilities despite numerous requests. OP vide letter dated 20-01-2017 intimated such fact to the complainant but the envelope containing such letter came back with postal endorsement ‘not claimed’. ‘Not claimed’ as we know tantamounts to service. Moreover, the onroad price of the new car is Rs.6,14,081/- the complainant had disbursed Rs.4 lakhs through bank loan from SBI and paid Rs.95,000/- as booking amount. Moreover, the disbursed amount has been put on hold by SBI, Ballygunge Park Branch and OP1 could not appropriate such amount and such fact was also intimated to OP1 by an email dated 03-05-2017. So, we find that the OP1 has not yet received the sum of Rs.4 lakhs. So, it appears that the complainant has not fully paid the principal for the new car and the loan amount has also been put on hold and, as such, the complainant does not have the right to seek possession of the new car. We also find that the vehicle has been registered and registration of the new car is also done by the OP1. Moreover, we also find that value of the new car as shown in the order booking/demand cheque list is Rs.6,14,081/- as it is evident from the evidence filed by OP1. So, we are constrained to hold that the complainant has not come before this Forum in clean hands. It is a maxim of law that one who claims equity must do equity also. After going through the documents and evidences on record we do not find that the complaint for alleged non-delivery vis-à-vis the complainant is covered u/s.2(g) and 2(o) of the Act. We are constrained to hold that the present complaint is devoid of any merit. The complainant has not suffered due to act of any omission or commission, on part of either of the OPs. The complainant as we find has filed a frivolous complaint against the OPs. The complaint is, therefore, liable to be dismissed with exemplary cost.
Consequently, the case merits no success.
Hence,
Ordered
That the instant case be and the same is dismissed on contest against the OPs with cost of Rs.10,000/- to be deposited to the Welfare Find of this Forum within one month from the date of this order, failing which execution will follow as per C.P. Act.
