DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.40 of 2016

                                                Date of institution:  14.01.2016                                                  Date of decision   :  09.01.2019

Ramesh Kumar son of Shri Matu Ram, resident of House No.86, Prem Nagar, Derabassi, SAS Nagar, Mohali, Punjab.

…….Complainant

Versus

1.     Mahindra and Mahindra Ltd. through its Managing Director, Head Office, Automotive Sector, Kandivali (E), Mumbai, India.

2.     Goel Motors (P) Ltd. through its General Manager, B-55, Phase-VI, Industrial Area, Opposite Verka Milk Plant, SAS Nagar, Mohali (Punjab).

3.     Vinod Goel, Owner of Goel Motors (P) Ltd., R/o # 85 Shivalik Enclave, NAC, Manimajra, UT Chandigarh.

                                                               ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Balbir Singh Rana, counsel for complainant.

                Shri A.K. Handa, proxy counsel for the OP No.1.

                Shri Sukhdeep Singh, proxy counsel for OP No.2.

                OP No.3 ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

                  Complainant booked Scorpio Getaway 2WD Silver Colour Car with OP No.2 and 3, authorised representative of OP No.1 by paying booking amount of Rs.2.00 lakhs on 25.09.2014. Promised date of delivery of car was given as 15.11.2014 by OP No.2 and 3. Complainant remained ready with balance cash amount for payment at the time of delivery. However, OPs later on extended date of delivery as 08.01.2015. On approach to OP No.2 and 3 on 08.01.2015 sales executive of these OPs informed that vehicle will be delivered to him on 27.03.2015. Delivery was not made on that date, but subsequently assurance for delivery of car on 14.05.2015 was made, when again OP No.2 and 3 failed to deliver the car. Ultimately on 14.05.2015, complainant requested for cancellation of booking and refund of paid amount of Rs.2.00 lakhs. After receipt of application for refund from complainant, assurance was given to complainant as if booking amount will be received by complainant at his house in the shape of demand draft, but same had not taken place despite personal visits and contact through telephone calls on 20.06.2015, 15.07.2015, 03.08.2015 and 09.09.2015 and as such complainant had to serve legal notice through counsel on 19.11.2015 for seeking refund. By pleading deficiency in service on part of OPs, prayer made for directing OPs to refund the received amount of Rs.2.00 lakhs and pay compensation for harassment and agony of Rs.40,000/-. Litigation expenses of Rs.21,000/- more claimed.

2.             In reply filed by OP No.1, it is pleaded inter alia as if there is no deficiency in service on part of answering OP; OP No.1 is engaged in manufacture of automobiles and as such it has no role in sale of vehicles manufactured by it through its authorised dealers i.e. OP No.2 and 3, more so when transactions between OP No.1 and its dealers takes place on “principal to principal” basis. OP No.1 does not take booking orders from individual buyers and even it does not issue any invoice to individual buyer and as such in the absence of any privity of contract between complainant and OP No.1, complaint alleged to be not maintainable against OP No.1. Rather it is claimed that OP No.1 is not a necessary party. OP No.1 is not aware of any communication between complainant and OP No.2 and 3. OP No.1 has not received any amount from complainant. By denying each and every other averment of the complaint, prayer made for dismissal of the complaint.

3.             In reply filed on behalf of OP No.2, it is pleaded inter alia as if complaint not maintainable because complainant has not approached the Forum with clean hands; no cause of action accrued in favour of complainant. OP No.2 Company has been dissolved and as such records of balance sheets etc. not available with it now. Most of other allegations regarding booking and payment of Rs.2.00 lakhs not specifically denied, but in response to those allegations it is claimed that the same are matter of record. However, it is claimed that OP No.2 is ready to pay the amount on production of original receipt of booking. Receipt of legal notice denied. Readiness and willingness to return back Rs.2.00 lakhs on production of original receipt or document of booking repeatedly asserted in this reply.

4.             OP No.3 was proceeded against ex-parte in this case.

5.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and thereafter his counsel closed evidence. Evidence of OP No.1 and 2 was closed by order vide orders dated 08.08.2017.

6.             Written arguments in this case submitted by complainant alone. Arguments of appearing counsel heard and records gone through.

7.             OP No.1 admittedly is manufacturer of vehicle in question and payment of Rs.2.00 lakhs made by complainant to Goel Motors i.e.  OP No.2 is a fact borne from copy of receipt Ex.C-1 dated 25.09.2014. That fact even admitted by OP No.2 in the filed written statement and that is why repeatedly reiteration made in the written statement for refund of received amount of Rs.2.00 lakhs, but subject to production of original receipt or the document of booking. Such record bound to be in power and possession of OP No.2 and as such denial of refund of Rs.2.00 lakhs by OP No.2 virtually done for harassment to complainant, on account of which complainant is entitled for compensation and also to litigation expenses.

8.             Perusal of order booking form Ex.C-2 reveals that after receipt of booking amount of Rs.2.00 lakhs, tentative date of delivery of car was given as 15.11.2014, but that delivery as per contents of affidavit of complainant had not taken place. This delivery has not taken place on the further assured date of delivery of 27.03.2015 and that is why complainant had to file application Ex.C-3 dated 14.05.2015 for seeking refund of deposited amount. As time gap between date of payment of booking amount to the date of request for refund is of more than 8 months and as such it is obvious that OP No.2 despite knowledge of its inability to deliver the car, kept on making false assurance to complainant to deliver the car. This is unfair trade practice on part of OP No.2. As the car was not delivered by OP No.2 to complainant and that is why complainant had to purchase desired car from Raj Motors on 01.06.2015 is a fact borne from copy of receipt Ex.C-4 as well as registration certificate Ex.C-5. Despite receipt of legal notice Ex.C-6 through postal receipt Ex.C-7, payment has not been made and as such fault lays with OP No.2 in rendering due services. Being so, complainant entitled to seek refund of deposited amount with interest @ 7% per annum from the date of seeking of refund namely 14.05.2015 till payment. Now-a-days interest on FDRs by commercial banks allowed @ 7% per annum and that is why this rate of interest allowed.

9.            Certainly there is no privity of contract between complainant and OP No.1, the manufacturer of car, because no payment made by complainant to OP No.1 and nor complainant ever had any personal contact with OP No.1 for seeking delivery of car booked with OP No.2. So certainly relationship of consumer and service provider does not exist between complainant and OP No.1. Being so, complaint against OP No.1 is not maintainable. OP No.3 is owner of OP No.2 concern and as such liability of OP No.2 and 3 to refund the amount to remain joint and several.

10.            No other point argued.

11.            As a sequel of above discussion, complaint allowed against OP No.2 and 3 with direction to them to refund received amount of Rs.2.00 lakhs with interest @ 7% per annum w.e.f. 14.05.2015 till payment. Compensation for mental agony and harassment of Rs.10,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against  OP No.2 and 3 whose liability will be joint and several for such payment.  Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. However, complaint against OP No.1 is dismissed. Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

January 09, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member