DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 60/2015

1.      Planetcast Media Services Limited

          (Formerly known as Essel Shyam Communication Ltd.)

          Through its Authorized Signatory

Having its office at:

C-34, Electronic City,

Sector-62, Noida-201307              

2.      Sh. Lalit Jain

          S/o Sh. Dharam Kishore Jain

          C/o Essel Shyam Communication Ltd.

C-34, Electronic City,

Sector-62, Noida-201307                                  ….Complainants

Versus

Frontier  Autoworld Pvt. Ltd.

Through Mr. Shishir Nagam

 (General Manager)

Having its office at:

G2, MGF Metropoliatan Mall,

Press Enclave Road,

Saket, New Delhi                                                      ….Opposite Party-1

Volkswagen Group Sales India Pvt. Ltd.

(through its Director)

Having its registered office at:

Silver Utopia, 3^rd & 4^th Floor,

Cardinal Gratious Road,

Chakala, Andheri East Mumbai                            ….Opposite Party-4 

                                                  Date of Institution      :         02.03.15           Date of Order              :         07.05.19

Coram:

Sh. A.S. Yadav, President

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts of the complaint as stated are:

1. The complainant No.1, Essel Shyam Communication Ltd. is a company engaged in the business of providing SATCOM services. The complainant No.2, Mr. Lalit Jain is the whole time Director of the Complainant Company. In December, 2014 complainant No.1 considered purchasing a vehicle for complainant No.2. Meanwhile it came to know that the prices of the car were going to increase from January, 2015. Complainant’s enquired about various luxury car model’s available in the market, thereafter complainant No.2 was approached by OP No.1 i.e. Frontier Autoworld Pvt. Ltd. who is the authorized dealer of Volkswagen cars manufactured by OP No.4 Group Sales India Pvt. Ltd. (hereinafter referred to as OP No.4). The representative of OP No.1 assured the complainant that the car manufactured by OP No.4 i.e. “Vento Car TSI Automatic Highline Petrol Car” has the best features in the luxury cars segment and is a ‘value for money’ car.

1. It is further averred that relying upon the representations, assurances, promotional scheme and sales offers of the OPs, the complainant No.2 decided to purchase a new ‘Volkswagen Vento Car TSI Automatic Highline Petrol Car’ for his personal use. OP No.1 represented that these vehicles are order specific and in order to purchase the vehicle, one has to book the vehicle in advance. The OP No.1 further assured that on immediate booking all the benefits of taxes would be provided and the vehicle shall be delivered in the last week of January or latest by the first week of February, 2015.  Accordingly, the complainant company booked the said vehicle on 24.12.14 in the name of the complainant No.1 and also paid a booking amount of Rs.25,000/- from his personal account vide a cheque dated 24.12.14  drawn on Standard Chartered Bank, Noida.
2.  Accordingly complainant No.2 executed a Sales Contract form dated 24.12.14 for purchase of the car, copy of the same is annexed as Annexure C-6.  In the said Sales Contract Form OP No.1 had expressly undertaken to deliver the said car in the last week of January, 2015 or latest by first week of February, 2015.
3. It is further averred that the on 04.02.15 the complainants informed the OPs that the complainants had applied for loan to HDFC Bank   regarding the purchase of the said vehicle.  On enquiry by the complainants about the delivery of the said car, OP No.1 raised a proforma invoice/quotation dated 04.02.15 for an amount of Rs.11,40,608/- in favour of the complainant company. In the meantime, to show its bonafide towards the purchase of the car the complainant company paid a portion of the sale price being the down payment of an amount of Rs.3,59,422/- vide cheque dated 06.02.15 which was duly encashed by the OP No.1.
4.  It is further stated that on 1902.15 the HDFC Bank sanctioned the loan applied by the complainant company. Information regarding the same was sent by an email dated 19.02.15 to OP No.1 alongwith the loan approval letter. To utter shock and surprise of the complainants, on enquiry on 20.02.15 OP No.1 informed the complainant company that the car booked by the complainants was sold to some other persons on 18.02.15.  
5. Aggrieved by the act of OP No.1, complainants approached  this Forum with the prayer to direct OPs to refund Rs.3,84,422/- being the amount paid by the complainants alongwith interest @ 24% per annum from the date of payment till realization. Additionally to direct the OPs to pay Rs.1,15,000/- towards compensation  for harassment, mental agony, inconvenience alongwith litigation charges.

2. OP No.1 & 4 resisted the complaint by filing their written statement respectively.
   1. OP No.1 raised objections inter-alia stating that the complainants distorted and concealed material facts such as that in the last week of January, 2015, OP No.1 allotted the booked car to complainant No.1. It was informed to complainant No.2 and one Sh. C. Gurushankar the representative of the complainant’s. OP-1 asked the complainants to make the balance payment of the car and take the delivery of the car as the booked car had reached the showroom.
   2.  It is submitted by OP No.1 that as per the policy and terms (point No.6 in the Sales Contract Form) mentioned in the Sales Contract Form the customer has to make full and final payment within 3 days after the intimation by the dealer of the availability of the car for delivery, otherwise the vehicle shall be allotted to the next customer as per the booking order sequence. The terms mentioned in the Sales Contract Form were duly explained and it is only after understanding the said term the complainants signed the contract form.
   3. It is next submitted that the complainants requested OP No.1 for holding the delivery of the car to the next person in the sequence till first week of February, 2015. OP No.1 agreed to the same but asked the complainants to deposit some amount towards the invoice of the car and the complainants in turn handed over the cheque of Rs.3,59,422/- on 06.02.15. After receiving the part payment of the car in the first week of February, 2015 OP No.1 again requested the complainants to make the balance payment and take the delivery of the car as OP No.1 cannot hold the stock for long.
   4.  It is further submitted that on 07.02.15, the representative of the complainant company informed OP No.1 that the complainant is taking auto loan on the car from HDFC Bank and since one of the Directors of the complainant company is out of country the formalities of the bank could not be completed on time.  As the car was bought in the name of the complainant No.1 and was also to be financed  in the name of the firm, the policy of the car restrained the bank to approve the loan amount as all the directors of the company are liable to sign the bank documents.
   5.  OP No.1 further submits that on 15.02.15 the complainant was informed about the allotment of vehicle/car to the next customer as per booking order sequence as the complainant was not able to pay full and final payment to OP No.1 within the allotted time.  OP No.1 conveyed to the complainant that that the next vehicle/car will be dispatched to the complainant company. It is submitted on 19.02.15 the representative of the complainant informed the OP No.1 about the return of the Director of the complainant company from abroad and also about the factum of signing of the loan agreement with the bank.  It is further submitted  that OP No.1 was kept in dark by the complainants about the financing of the vehicle from HDFC Bank until 7^th February
   6. It is next averred that the OP No.1 received an email dated 23.02.15 for cancellation of the booking and refund of the paid amount. The OP No.1 refunded the amount within 5 working days of the request of cancellation and refund by way of cheques.  Thus, it is not OP No.1 but the complainants who have failed to perform obligations mentioned in the Sales Contract Form, therefore it is prayed that the complaint be dismissed with cost. 
3. OP No.4 resisted the complaint on the ground that the OP No.4 being the manufacturer of the vehicle in dispute deals in marketing, sale and servicing of Volkswagen Group Vehicles through its dealers across India appointed on principal to principal basis.  OP No.4 submits that in the present case the complainant company has not received the delivery of the vehicle, hence the role of OP No.4 is not invoked in the said transaction, thus the question of deficiency on the part of the OP No.4 does not arise. On these grounds, dismissal of the complaint has been sought.
4. Complainants have filed separate rejoinders to the reply filed by OP No.1 and OP No.4 reiterating the averments made in the complaint.
5. Affidavit of Gitanshu Rustagi C/o M/s Planetcast Media Services Ltd. / Essel Shyam Communication Ltd. has been filed on behalf of complainant No.1. Complainant No.2, Director of M/s Planetcast Media Services Ltd. (formerly known as Essel Shyam Communication) has filed his own affidavit in evidence.
6. On the other hand, no affidavit has been filed in evidence on behalf of OP No.1.
7. Affidavit of Sh. Umesh Khadpe, Chief Manager Legal has been filed in evidence on behalf of the OP No.4.
8. Written arguments have been filed on behalf of the contesting parties.
9. After having heard the arguments of the AR of the complainant and learned counsel for OP No.4 it is noticed that dealer of the Volkswagen Group i.e. OP No.1 was to deliver “Vento Car TSI Automatic Highline Petrol Car” to the complainants by last week of January or latest by first week of February.
10. The 8^th point in the terms and conditions is that the vehicle shall only be delivered upon receipt of payment in full. In case of sale through finance company. Direct Selling Agent/Direct Marketing Agent, delivery will be made only upon receipt of relevant document and payment from finance company.
11. The main contention between the parties is that the vehicle which was to be delivered in the last week of January or first week of February was not delivered to the complainant instead was sold off to some other customer.  As per the averments of the complainants OP No.1 was informed initially regarding the financing of the vehicle which fact is denied by OP No.1. OP No.1 controverted the same stating that they were first told about finance of vehicle on 07.02.14; the time when OP No.1 was expected to deliver the vehicle.  Further on perusing of the documents placed on the record it is noticed that the complainants made a down payment of 3,59,422/- only in the first week of Feb. It is observed from the bank receipt to OP No.1, annexed as Annexure C-9 that the vehicle in question was hypothecated to HDFC Bank Ltd. Further an email dated 19.02.15 is placed on the record wherein loan approval letter by HDFC Bank is sent to OP No.1 annexed as Annexure C-10.
12. From the facts stated above we find no reason to believe the version of the OP No.1 that the said vehicle in question which was to be delivered in the last week of January or the first week of February, OP No.1 asked the complainants to take the delivery but rather than paying the full amount of the vehicle, OP No.1 was informed in the first week of February that the said vehicle was financed and hypothecated to HDFC Bank limited. It was further informed to the complainants that it would not be possible for OP No.1 to hold the stock for long, therefore the complainants should make the full payment and take the delivery of the vehicle, which was not done.
13. The 6^th point of the sales contract form signed by the  parties states:

          “that the customer has to make the full payment of the vehicle within three days after intimation by the dealer; otherwise the vehicle shall be allotted to the next customer as per the booking order sequence.

Therefore, as per Sales Contract Form, OP No.1 could not have delivered the vehicle to the complainants without receiving full and final payment from the complainant. It was the complainants who failed to perform the obligations signed by them on the Sales Contract Form, therefore the complainants having failed to do so cannot claim the OPs to be deficient in service for their own failure to provide the finances as regard the vehicle. Further more OP No.1 had refunded the amount of Rs.3,59,422/- paid by the complainants vide cheque dated 27.02.15.

14. As regards OP No.4, being the manufacturer of the vehicle and the complainants not having purchased the vehicle so far, there is no privity of contract between the OP No.4 and the complainant company. Therefore, we are of the opinion that no cause of action arose qua OP No.4.
15. For the reasons citied above and particularly in the failure of making the payment available to OPs and demanding delivery or raising objections on vehicle being sold to the other customer are neither valid nor reasonable. We therefore dismiss the present complaint with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 07.05.19.