Telangana

Mahbubnagar

CC/10/130

Kum. S.Tejaswini - Complainant(s)

Versus

Head Car Product Group - Opp.Party(s)

DR S VENKATA SUBBAIAH

13 Jul 2011

ORDER

  BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

                                                                                  Wednesday, the 13^th day of July, 2011 

 

        Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

                        Sri A. Veerupakshi, B.A., LL.B., Member        

      Smt.D.Nirmala, B.Com., LL.B.,Member

 

C.C.NO. 130  Of   2010

 

Between:-

Kum. S. Tejaswini D/o Dr. S. Venkata Subbaiah, age: 21 years, Occ: Medical Student, 5-171, Kiran Convent, Sheshadrinagar, Mahabubnagar.  

                               … Complainant

 

And

1. Head, Car Product Group, Tata Motors, 5^th Floor, One Forbes,  Dr.V.B. Gandhi Marg Fort, Mumbai – 400 001. 

2. Chief Manager, State Bank of India, Mahabubnagar Branch,  Near Old Bus Station, Mahabubnagar. 

3. Star Motors, Near Mayuri Garden, Appanapally, Mahabubnagar.  

                                                                                                                              … Opposite Parties

 

 

 This C.C. coming on before us for final hearing on 8-7-2011 in the presence of Sri Dr. S. Venkata Subbaiah, Advocate, Mahabubnagar for the complainant and Sri J. Ramakrishna Reddy, Advocate, Mahabubnagar for OP-1, Sri V. Vignaneshwara Sharma, Advocate, Mahabubnagar for OP-2,    Sri Shaik Abdul Mujeeb, Advocate, Mahabubnagar for OP-3 and the matter having stood over for consideration till this day, this Forum made the following:   

 

O R D E R

  (Sri P. Sridhara Rao, President)

 

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to pay a sum of Rs.2,00,000/- towards the amount paid along with interest and also to pay compensation besides costs of the complaint.   

 

2. The averments of the complaint in brief are that:- The complainant booked for a TATA Nano Car by paying a sum of Rs.3,999/- on 24-4-2009 and Rs.1,40,000/- on 11-7-2009 through the OP-2 and got the Unique Identification Number (UIN) 110034157. Based on the general public opinion about the name of the Car, the complainant cancelled the allotment of the Car and handed it over to OP-3 on 22-12-2009 asking to pay back the total amount with interest. Thereafter the complainant continuously asked the OPs.1 and 2 to refund the amount with interest.  But the efforts were just ignored. Getting frustrated with the same, the complainant served a legal notice by registered post to the OPs.1 to 3 on 18-10-2010.  That also could not bring any response till the date.  Therefore, the complainant is entitled to complain against the opposite parties for paying the amount with interest and damage-compensation for mental agony altogether an amount of Rs.2,00,000/-. Thus the present complaint is filed for the aforesaid relief.  

 

3. The opposite party No.1 filed counter denying the averments of the complaint and stated that the complainant had applied for booking of a TATA Nano Car through the financier i.e., OP-2 under a financial agreement exclusively executed between the complainant and the financier i.e., OP-2 upon fully agreeing with their terms and conditions where this opposite party was not a party to the said contract/arrangement and does not have any role over the act/conduct of the said financier/OP-2 and hence this opposite party has been unnecessarily impleaded.  It is further stated that the complainant makes out no ground for relief under the provisions of Sec.14 of C.P. Act, and that the onus lies on the complainant to show that the reliefs as contemplated U/Sec.14 can be given for the defect in goods supplied or deficiency in service provided to the complainant and hence it is crystal clear that there has been no deficiency in service and/or unfair trade practice on the part of the answering the opposite party.  It is also further stated that the complainant is not a consumer within the provisions of the C.P. Act as she has neither purchased any goods nor availed any services by paying the consideration and further this opposite party has already refunded the booking amount of Rs.1,40,000/- to the financier/OP-2 on  27-1-2010 as per Clause 7(f) of the terms and conditions of the booking and hence this opposite party is not responsible to pay any interest on the booking amount and therefore the complaint is liable to be dismissed with costs. 

 

4. The opposite party No.2 having entered into his appearance and after availing sufficient opportunity ultimately not filed any counter.   

 

5. The opposite party No.3 filed counter denying the averments of the complaint and stated that there is no whisper in the complaint that this opposite party is a dealer of TATA Motors (Cars) and running the business in the name and style of Star Motors in Mahabubnagar District, that the present transaction took place between the complainant and OPs.1 and 2 and for the said transaction this opposite party is unconcerned for booking the Car and refunding the amount, and that this opposite party is not competent to cancel the booking of Nano Car but in fact the OP-1 is only the competent authority for the same and OP-2 has to refund the amount paid by the Nano Car customer and therefore the question of deficiency on the part of this opposite party does not arise.  It is also further stated that one K. Samuel Sudhakar who said to have received the cancellation letter dated 22-12-2009 under his acknowledgment from the complainant is no way concerned with the firm of this opposite party and no such named person working in their firm and therefore the complaint is liable to be dismissed with exemplary costs.   

 

6. Thereupon the complainant in support of her claim filed her affidavit evidence and got marked Exs.A-1 to A-10.  On the other hand, the OPs.2 and 3 filed their affidavit evidence separately and got no documents marked while the OP-1 did not choose to file any separate affidavit evidence except the counter earlier filed by it and got no documents marked. 

 

7.  The points for determination now are: 

 

1.  Whether the complaint of the present nature is maintainable before this Forum?
2.  Whether is there any deficiency of service on the part of the opposite parties in rendering service to the complainant as alleged?

(iii)  Whether the complainant is entitled for the relief sought for by her? 

 

    (iv)  To what effect? 

 

8. Point Nos.1 to 3:- The learned counsel for the opposite parties contended that the very complaint filed by the complainant itself is not maintainable before this Forum since the complainant makes out no ground for the relief under the provisions of Sec.14 of C.P. Act and therefore the complainant is not entitled for the relief sought for by her through this Forum and as such the complaint is liable to be dismissed.   

 

9. So, the question that has to be seen now is whether the complainant has made out any ground for the relief under the provision of Sec.14 of C.P. Act.  The undisputed facts of the case are that the complainant booked for a TATA Nano Car with the OP-1 by paying altogether a sum of Rs.1,43,999/- through the OP-2 Bank through whom the OP-1 introduced such scheme having tie up with it and got the Unique Identification Number (UIN) 110034157.  So, it is a fact borne out from the record that the complainant booked a Nano Car with the OP-1 through the OP-2 and got such Unique Identification Number. 

 

10. It is the further case of the complainant that subsequently based on the general public opinion about the Nano Car she cancelled the allotment of the Car and accordingly handed over the letter to the OP-3 on 22-12-2009 asking to pay back the total amount paid by her with interest but at last the said amount was not refunded to her by the opposite parties.  So, it is a fact borne out from the record that before the delivery of the Car itself, the complainant herself cancelled her order for booking of such Nano Car and it appears that she has given such letter for cancellation to the OP-3 asking for refund of the amount with interest.  That itself shows that admittedly the goods i.e., the booked Nano Car was not yet supplied or delivered to the complainant by the OP-1 and before that only the complainant herself cancelled her order for booking by presenting an application for the same on 22-12-2009.  In a decision reported in II (2010) CPJ 547 (C. Chandra Shekar Vs. Telco Construction Equipment Company Limited & Others) held that Sections 57 and 58 of Sale of Goods Act make it abundantly clear that in case of breach of contract for sale of goods the remedy for specific performance or recovery of sale consideration lies in the civil courts. That was the case where the complainant therein placed order with the opposite parties for purchase of some machinery but the main opposite party did not supply the said machinery despite receiving the entire sale consideration.  When the complainant took a plea that such act amounts to deficiency of service, the Hon’ble A.P. State Consumer Disputes Redressal Commission, Hyderabad further observed that the contract was for purchase of machinery viz., goods and in case of such contract for sale of goods a complaint can be filed under C.P. Act, only if the goods supplied from any defect or for the rendering of any service so as to attract the concept of deficiency in service.  In the case on hand it is not the case of the complainant that the goods i.e., the Nano Car supplied by the opposite party suffer from any defect. A perusal of the record clearly goes to show that admittedly the goods i.e., the Nano Car is not supplied by the OP-1 or not taken delivery of the same by the complainant.  So, in view of the principles laid down in the decision the complainant can file the complaint under C.P. Act only if the goods supplied suffer from any defect or for the rendering of any service so as to attract the concept of deficiency in service.  As the goods i.e., the Nano Car in the case is admittedly not at all supplied or delivered to the complainant and there is no deficiency alleged, at the most the complainant can seek her remedy through a competent civil court but not through this Forum.  Therefore, for the reasons stated above, we hold that it is a breach of contract simplicitor and this Forum has no jurisdiction to entertain the present complaint, and thus the complaint is liable to be dismissed as not maintainable, as such the complainant is not entitled for the relief sought for by her through this Forum.  The point Nos.1 to 3 are answered accordingly in favour of the opposite parties and against the complainant.                    

 

11. Point No.4:- In the result, the complaint is dismissed in toto.  In view of the facts and circumstances, both the parties have to bear their own costs.

 

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 13^th day of July, 2011.    

 

   I agree                                              I agree                                                        

 

 MEMBER                                MEMBER                           PRESIDENT                      

   Appendix of evidence

      List of Witness examined

 

On behalf of Complainant:                          On behalf of Opposite Parties:   

- Nil -                                                                   - Nil -

           

List of documents marked:-

On behalf of Complainant:-    

 

Ex.A-1: Photostat copy of Application Form.

Ex.A-2: Photostat copy of Bank Pay-in-Slip, dt.11.7.2009.  

Ex.A-3: Photostat copy of Letter, dt.22.12.2009.

Ex.A-4: Photostat copy of Statement of Account.  

Ex.A-5: Photostat copy of Letter, dt.6.3.2010.

Ex.A-6: Photostat copy of Letter, dt.1.7.2010.

Ex.A-7: Photostat copy of Letter, dt.8.3.2010.

Ex.A-8: Copy of Letter, dt.23.4.2010.  

Ex.A-9: Photostat copy of Letter, dt.18.10.2010.

Ex.A-10: Photostat copy of Postal Receipt, dt.19.10.2010. 

   

On behalf of OPs.:                  

- Nil -

                                                                  

                                                                                                PRESIDENT                                                                                                                                                                                              

 

Copy to:-

1. Sri Dr. S. Venkata Subbaiah, Advocate, Mahabubnagar for the complainant.

2. Sri J. Ramakrishna Reddy, Advocate, Mahabubnagar for OP-1.

3. Sri V. Vignaneshwara Sharma, Advocate, Mahabubnagar for OP-2.

4. Sri Shaik Abdul Mujeeb, Advocate, Mahabubnagar for OP-3.