BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint Case No  :  141 of 2010

Date of Institution :  08.03.2010

Date of  Decision   :  17.01.2011

Surjeet Singh Kohli s/o Late Sh. Sardara Singh Kohli, resident of H.No. 7, Nihal Bagh, Baradari Garden, Patiala, through his Special Power of Attorney Hardev Singh son of Sh. Kuldeep Singh c/o New Kohli Transport Company, Patiala.

….…Complainant

V E R S U S

[1]  EM PEE Motors Ltd., Plot No. 177, Indl. Area, Ph-I, Chandigarh through its Manager.

[2]     Toyota Kirloskar Motors Ltd., 10^th Floor Canberra Block Vittal Mallya Road, Bangalore Karnataka, through its Managing Director.

                         ..…Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

SH.ASHOK RAJ BHANDARI            MEMBER

          DR.[MRS.]MADANJIT KAUR SAHOTA     MEMBER

PRESENT: None for the Complainant.

         Sh. S.R. Bansal, Adv. for OP.

PER ASHOK RAJ BHANDARI, MEMBER

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        Concisely put, Mr.Gurjit Singh Kohli– son of the Complainant, booked a new model of Toyota Fortuner, launched by Toyota Motors, with OP No.1 on 03.08.2009 by depositing a Demand Draft of Rs.2.00 lacs against Receipt No.690, with the understanding that the vehicle would be delivered to him as early as possible and according to the merit list of booking. When the delivery was not made to him, he made frantic enquiries & personal entreaties with the OP No.1, but every time he was given vague & evasive excuses, which caused him enormous harassment & mental agony. It was alleged that to his utter surprise, OP No.1 had delivered the same vehicle under table to those persons, who had booked the vehicle after 3.8.2009. In this backdrop, a legal notice dated 04.12.2009 was served upon the OP No.1, who in turn replied that the vehicle would be reaching on 31.12.2009 and the Complainant was asked to deposit the balance amount. Even, OP No.1 issued a reminder to that effect, followed by a letter dated 26.12.2009 to the Complainant intimating him about the arrival of the vehicle and the Complainant was asked to deposit the payment and take delivery of the vehicle within 07 days of the intimation. Since OP No.1 unduly delayed the delivery of the vehicle and flouted the merit list prepared by them by delivering the same vehicle to persons, who had booked the vehicle after 3.8.2009 i.e. the date when the Complainant booked the same, the present complaint has been filed, alleging the above act of OP No.1 as gross deficiency in service and unfair trade practice.

2]      Notice of the complaint was sent to OPs seeking their version of the case.

3]      OPs in their joint written statement/ reply, while admitting the factual matrix of the case/reply, pleaded that vehicle was booked in the name of Gurjit Singh Kohli by depositing a Demand Draft of Rs2.00 lacs against Receipt No. 690, dated 3.8.2009. It was asserted that the OP No.1 had been asking the Complainant to deposit the balance payment and to take the delivery within 7 days from the date of intimation letter, but neither there was any response nor any payment was ever made by the Complainant to the OP No.1 for the reasons best known to him, so the question of delivery of the car against the payment of only Rs.2.00 lacs does not arise. Receipt of the legal notice dated 4.12.2009, reply thereto dated 9.12.2009 and letters addressed by OP No.1 to the Complainant dated 1.12.2009 and 26.12.2009 have not been refuted. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with heavy costs.

4]      Parties led evidence in support of their contentions.

5]      Since none appeared for the Complainant on 17.09.2011, therefore, we proceed to dispose of this complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in the absence of the Complainant.

6]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsel for the OPs. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having booked a new model of Toyota Fortuner, launched by the Toyota Motors, with OP No. 1 on 03.08.2009, by depositing a Demand Draft of Rs.2.00 lacs as booking charges and that the vehicle in question has not been received by him till December, 2009 from OP No.1, have all been admitted. It is also a fact that the Complainant served a legal notice upon the OP No.1 on 04.12.2009, to which the OP No.1 gave a reply on 09.12.2009. In the meantime, OP No.1 wrote letters to the Complainant on 1.12.2009 and 26.12.2009, asking the Complainant to take delivery of the vehicle, after paying the balance amount covering the full cost of the car. The Complainant has not till date paid the said balance amount to the OP No.1 to take delivery of the car booked by him earlier.

ii] The only dispute between the parties i.e. the Complainant on the one hand and the OPs on the other is in respect of some delay in delivering the car to the Complainant by OP No.1; whereas the contention of the Complainant is that even after the booking of the car on 03.08.2009, he was not given the delivery of the same during the next 04 months i.e. till December, 2009, but the persons, who had booked similar car on later dates, were given delivery of the car earlier by the OPs, using underhand means and by ignoring the merit/ seniority of the Complainant.

iii]   Rebutting all the allegations of the Complainant, the OP No.1 says say that the seniority/ merit list was never bypassed by them and the car in question was to be delivered only in the month of December, 2009, on receiving the consignment from the Supplier i.e. OP No.2. The Complainant has also not attached any document or evidence showing that OP No.1 had delivered cars to the persons, who had booked cars subsequent to the booking made by him before he was asked to take delivery of his car. On the same lines, the Complainant has also taken no steps to take delivery of the vehicle, as and when offered by OP No.1 to him after making full payment of the car. It is also clear from the documents put forth by the learned counsel for the OPs that the car in question was available even now and the same could be delivered to the Complainant, at this stage, without any hassles or problem. During the course of arguments, the learned counsel for OPs had categorically pleaded that the Complainant is deliberately avoiding to take delivery of the car, as he wants to have the same on old and un-revised rates, which was just not possible. It is clear that such a thing can’t be allowed as per standard practice followed by all the car dealers to sell the vehicles at the current and prevailing prices only. In our opinion, as well, there is no deficiency of service on the part of OPs on that account. Therefore, car can be delivered at current/prevailing prices only.

iv]    After analyzing all the facts of the case in details, it is quite clear that the Complainant had earlier paid a sum of Rs.2.00 lacs for booking the car in question with OP No.1 on 3.8.2009 and the said amount is still lying with OP No.1. It is also a fact that OP No.1 has neither refunded the amount of Rs.2.00 lacs, nor delivered the car to the Complainant so far. But at the same time, the Complainant had himself taken no steps to approach the OPs make payment of the balance amount and take delivery of the car, when OP No.1 wrote to him twice on 1.12.2009 and 26.12.2009 respectively, for the purpose. Therefore, there is not so much weight in the pleadings made by the Complainant, but at the same time, the Complainant is within his rights to receive the delivery of the car booked by him on paying a tidy sum of Rs.2.00 lacs, after paying the balance amount to OP No.1 and accordingly, he has rightly prayed for on these lines, which needs favourable consideration.

6]      In view of the above, in our opinion, the present complaint has some merit, weight and substance and it must succeed in part. We, therefore, allow the complaint in favour of the Complainant and against the OPs & pass the following order.

7]      The OPs shall, jointly and severally, do the following in favour of the Complainant:-

(i)    To deliver the new and latest model of Toyota Fortuner of Toyota Motors to the Complainant forthwith, after receiving the balance amount out of the total price from him as per the price prevailing on the date of delivery.

(ii)   To pay a sum of Rs.7000/- as litigation costs.

8]      The aforesaid order be complied with by the OPs, jointly and severally, within a period of 30 days from the receipt of its certified copy, failing which they shall pay interest @18% per annum on the booking amount of Rs.2.00 lacs from the date of its deposit i.e. 03.08.2009, till the date of delivery of the car to the Complainant, besides paying litigation costs of Rs.7,000/- and also delivering the new and latest model of Toyota Fortuner (Toyota Motors) car to the Complainant at the current/ prevailing price, as ordered. 

9]     Certified copy of this order be communicated to the parties, free of charge. After compliance, the file be consigned to the record room.

Announced

17.01.2011

                              Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                    Sd/-                                                

                                (ASHOK RAJ BHANDARI)

MEMBER

                                        Sd/-

(DR.[MRS.]MADANJIT KAUR SAHOTA)

MEMBER