Haryana

Ambala

CC/20/2017

Deepak Kumar - Complainant(s)

Versus

Maruti Susuki India Pvt Ltd - Opp.Party(s)

Aditya Verma

11 Apr 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

       Complaint Case No. : 20 of 2017

        Date of Institution    : 13.01.2017

          Date of Decision       : 11.04.2018

Deepak Kumar son of Sh.Lal Chand r/o H.No.1583, Sector-3, Kurukshetra, District Kurukshetra.

.…Complainant.

 

Versus

 

1. Muruti Suzuki India Pvt. Ltd. having its registered office at 1, Nelson Mandela Road, Vasant Kunj, New Delhi110070 through its Managing Director/ General Manager/Manager Head.
2. M/s Eakansh Wheels K.M.Stone No.126, village Tepla, Ambala Jagadhari Highway, Ambala Cantt. through its Managing Director.
3. M/s Nexa c/o Eakansh Wheels having its showroom at Ambala Chandigarh Highway near Passport office, Baldev Nagar, Ambala City.
4. Sh.Mohit Sharma, Territory Sales Manager c/o Maruti Suzuki India Pvt. Ltd. having its registered office at 1, Nelson Mandela Road, Vasant Kunj, New Delhi 110070.
5. Sh.Sameer Sharma, Relationship Manager, c/o M/s Eakansh Wheels K.M.Stone no.126, village Tepla, Ambala Jagadhri Highway, Ambala Cantt.

                                                                                             …. Opposite Parties.

           

6. Canteen Stores Department Ambala Cantt. through Union of India Secretary Ministry of Defence having store of Barrak No.2 PB No.8 Allenby Lines Ambala Cantt..

….Proforma Opposite party.

 

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:       SH.D.N.ARORA,PRESIDENT.

                        MS. ANAMIKA GUPTA,MEMBER.

                        SH.PUSHPENDER KUMAR,MEMBER.

                       

Present:          Sh. Dalbir Singh, Adv. for complainant.

                        Sh. U.S.Chauhan, counsel for the OP Nos. 2, 3 & 5.

                        Reply of Op Nos.1 & 4 received by post.

                        OP No.6 exparte.                 

 

ORDER

 

                        Brief facts of the present complaint are that the complainant is an Ex-serviceman and in order to buy a car he had visited Op No.5 at the office of Op   No.3 on 20.03.2016.  After finalizing the deal, he booked a car S-Cross 1.6 Delta with booking amount of Rs.11000/- vide order No.SOB15000974 dated 20.03.2016. The Op No.5 had assured that the delivery of the car would be made within 20 days of its booking.  The total cost of the car was Rs.9,18,617/-  and the same was to be purchased through CSD. The complainant had taken loan of Rs.5,00,000/- from Canara Bank, Babain  and rest of money was arranged by himself.  On the assurance of Op No.5 that the car would be delivered within a week the complainant got prepared a draft of Rs.9,18,967/- on dated 08.04.2016 and deposited with CSD Ambala Cantt. vide OR No.0294  and the CSD also handedover the purchase order dated 12.04.2016 to the complainant vide official receipt No.0294. The complainant had also submitted authority letter for collection of car to Op No.3 but it flatly denied qua delivery of car, therefore, he sent an email dated 20.04.2016 but it was intimated that there would be delay of 1.5 months in delivering the car. On 18.05.2016 Op no.3 sent a letter to CSD Depot Ambala intimating about non-availability of car with OP No.1 to 3 and asked for cancelling the order placed by complainant. Due to above circumstances complainant had to withdraw his money after cancellation of purchase order with loss of Rs.4600/- as necessary deduction by CSD depot Ambala. A cheque of Rs.9,14,017/- dated 02.06.2016 of PNB was sent back to the complainant on cancellation of order but till this time the complainant had to pay the installment of loan amount. After few days officials of Op No.3 again approached complainant and asked about availability of same car with different variant S Cross 1.3 Delta within 30 days by issuing availability certificate dated 06.06.2016.  On this, the complainant again got prepared a demand draft of Rs.8,03,153/- dated 04.06.2016 in favour of CSD Ambala and submitted the same with CSD Ambala vide OR No.03189 and LS No.2564 dated 06.06.2016 besides submitting authority letter for collection of vehicle dated 06.06.2016 vide receipt No.03189 to Op No.2 but again the Op Nos. 1 to 5 adopted the same approach about non-availability of car. The complainant sent many emails to Op Nos. 1 to 5 but to no effect. The act and conduct of OPs not only deficiency in service hut also caused mental agony, harassment and financial loss to the complainant. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C20.

2.                     On notice OP Nos. 2,3 & 5 have filed their joint reply wherein several preliminary objections such as locus standi, maintainability, territorial jurisdiction of this Forum, concealment of material facts from this Forum etc. The complainant had booked a car S-Cross Delta 1.6 after paying initial booking amount of Rs.11,000/- but no assurance was ever given about delivery of the car and the booking was subject to terms and conditions  which were duly informed to the complainant. Relevant terms and conditions are as under:

“5. Vehicle will be delivered strictly in order to receipt of customer booking subject to realization of all payment and other formalities. Tentative delivery date given in the booking requisition form and booking confirmation receipt is only indicative. Vehicle delivery is subject to availability.

6.We shall not be responsible for delivery of vehicle in case of delay or rejection of finance by the financer and also due to unforeseen circumstances.”

 

The Complainant wants to avail the benefit of CSD being retired army personal  and as per the norms of CSD the cost of the car was to be deposited in advance to the CSD in order to issuance of LS order to the concerned dealer and the Op Nos. 2,3 & 5 were only responsible to deliver the vehicle as per availability of the stock.  The complainant cannot take the advantage that he had to pay the loan amount alongwith interest. The CSD had issued LS order on 12.04.2016 but before issuance of the same it was conveyed to the complainant that there would be delay in delivery of the car due to internal issues and further same fact was conveyed to CSD vide letter dated 18.05.2016 but instead of cancelling the booking order the complainant requested to change the model from S-Cross Delta 1.6 to S-Cross Delta 1.3 Premium Silver. At the time of booking of the car no specific time was given to the complainant about delivery of the car. The availability certificate dated 06.06.2016 was issued to the complainant but that too was subject to terms and conditions of the booking form.  The availability of the car depends on various factors that are modelwise, colourwise production, procurement of components from vendors, availability of truck trailer for transportation of the new cars and in this case due to Jatt Reservation Agitation in Haryana the production of the car in question was not carried out as per the schedule of the manufacturing company, therefore, the car could not be delivered in time. Other contents have been controverted and prayer for dismissal of the complaint has been made.

                        OP Nos. 1 & 4 have sent their reply through post wherein it has submitted that the complainant does not fall within the ambit of consumer and the present complaint is not maintainable being non-joinder of necessary parties.  There is no privity of the contract between the complainant and OP Nos. 1 & 4. The relationship between the Op No.2 & 3 and the Op Nos.1 & 4 are based on principal to principal basis.  The OP Nos.1 & 4 have not received any amount from complainant and the Op Nos. 2 & 3 are separate and independent legal entity to carry on its business of sale of Maruti Suzuki range of vehicles under its separate memorandum and Articles of Association under the Companies Act and sell the vehicles to their customers as per the terms and conditions of sale of vehicle settled between them.  The Op No.2 sells the vehicle to its dealers who sell the same to the customers under its own invoice and sale certificate. The Op Nos. 1 & 4 have not caused any inconvenience to the complainant as the they are not liable to provide the delivery of the vehicle to the complainant.  Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence the OP Nos. 2,3 & 5 have tendered affidavit Annexure RA and documents Annexure R1 to Annexure R18.

4.                                 We have heard learned counsels for the parties and gone through the case file very carefully.

5.                                 It is not disputed that complainant being a retired Sergeant of Indian Army had booked a car Maruti Suzuki S cross 1.6 Delta and also paid the booking amount to the tune of Rs.11,000/- on 20.03.2016  to the OP No.3 vide Annexure C1. Total value of the vehicle has been shown by the OP No.3 i.e. amounting to Rs.9,18,617/- and DD amount has been paid to the performa OP No.6 to the tune of Rs.9,14,017/- vide Annexure C3.  The Op No.3 also deducted the amount of Rs.4600/- . The Op No.6 also issued the authority letter for collection of the vehicle to the complainant vide Annexure C4 addressed to the Ekansh Wheel i.e. Op No.3. The OP No.3 issued a letter to Manager CSD, Ambala on 18.05.2016 vide Annexure C5 qua Non-availability of S-Cross Delta 1.6 and requested for cancellation of order placed by complainant.  The Op No.6 refunded the deposited amount (Annexure C7) through Annexure C6 on 02.06.2016.  After four day the Op No.2 had issued a letter to Op No.6 regarding availability of car S-Cross 1.3 Delta with assurance that vehicle would be delivered within 30 days.  Accordingly, the complainant had deposited the amount of Rs.8,03,153/- to OP No.6 and amount of Rs.4026/- had been deducted by OP No.6  but Op No.3 & 4 have again cancelled the vehicle on 11.08.2016 vide Annexure C12 letter sent to the Manager CSD, Ambala.  The complainant had sent emails Annexure C13 to Annexure C20 to OPs for not delivering the vehicle within one month despite assurance. The booking amount of Rs.11,000/- was also refunded to the complainant vide Annexure R17.

6.                     There is nothing on the file to show that there was any time limit for the Op 2 to provide the booked vehicle to the complainant, therefore, he ceased to raise such plea that deduction of Rs.4600/- was done by the CSD due to deficiency in service on the part of Op No.2. Mere booking of a product/car does not create any right for a party to claim compensation on account.  The complainant had booked the car for second time with Op No.2 and it had also issued availability certificate dated 06.06.2016 and as per the same the car was to be delivered within one month i.e. upto 06.07.2016. Undisputedly, the complainant had received the vehicle as mentioned in Annexure R18 and in this very document it has been specifically mentioned that I (complainant) opt for delivery of car with help of dealer.  Undisputedly, the car was delivered from another dealer M/s Jagmohan Motors Ltd. after adjusting the amount deposited by the complainant on second occasion, therefore, it cannot be said that the Op No.2 had committed any deficiency in service because it has been complainant who had opted for car from another dealer and this fact has been mentioned by the Op Nos. 2, 3 & 5 in additional submission of reply wherein it has been mentioned that The answering respondent submits that keeping in view the customer relationship, tried his level best and arrange the car for the complainant from other dealership and also the complainant obliged with the benefit of heavy discount.  It was for the complainant to come with the true and real facts but it appears that in order to take undue advantage he has twisted the facts by concealing the material fact qua delivery of vehicle from another dealer with the help of OP No.2 as mentioned in Annexure R18. Moreover, the complainant has neither mentioned the fact about delivery of vehicle with the help of Op No.2 nor mentioned the fact that the amount was adjusted at the time of delivery of the vehicle by another dealer in his complaint.  It is settled principle of law that the complainant has to prove his case by leading cogent and reliable evidence after standing on his own legs without taking the benefit of weaknesses of other parties but in the present case it appears that the complainant firstly has not approached to this Forum with clean hands and thereafter trying to take benefit of the weaknesses of OPs which cannot be allowed.  It is strange that the complainant is an Ex-serviceman and he should have to ask from CSD about deducting the amount from the total amount of DD given by him for the purchase of car but instead of approaching the CSD, which has been made as performa OP in the present complaint, the complainant is trying to shift the burden on the shoulder of OP No.2 by twisting and concealing the real facts from this Forum.  It is ample clear that it is not a case of providing service and is a case of purchasing of goods, if any. The question of providing of service would have arisen in case if the defective car had been sold/ delivered to the complainant or charging of any excess price by the trader.  On this point reliance can be taken from the case law titled as Lovely Autos & Anr. Vs. Sandeep Kumar (supra) wherein Hon’ble  State Commission of UT Chandigarh while referring the case law titled as Nanu Bhai Vs. Maruti Udyog Limited & Anr. (supra)  has held that In that case the complainant bad booked the car on 23.12.1991 by making the payment of Rs.1,45,052/-and according to him, opposite party No.2 had given assurance that the car would be delivered to him within two weeks as per proforma invoice and that the opposite parties were negligent and deficient in service in not delivering the car to him. It was held therein that the sale and purchase of goods should have already taken place and the complaint must relate either to any defect from which the goods suffer or charging of excessive price by the trader for the goods supplied.

7.                                 Keeping in view the above discussion we have no hitch to reach at a conclusion that the complainant has not approached to this Forum with clean hands, therefore, present complaint deserves dismissal. Accordingly, we hereby dismiss the present complaint leaving the parties to bear their own costs. A Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

Announced on: 11.04.2018                                                            (D.N.ARORA)

                                                                                                  PRESIDENT

 

                                                                             (ANAMIKA GUPTA)

                                                                                        MEMBER

           

 

                                                                                    (PUSHPENDER KUMAR)

                                                                                                MEMBER