DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 09 of 03-01-2008 <br /> Decided on : 13-03-2008<br /> Narotam Dass S/o Rikhi Ram through attorney Vinod Kumar S/o Narotam Dass<br /> R/o H. No. 4524 Sadar Bazar, Bathinda.<br /> <br /> ... Complainant<br /> Versus<br /> <br /> 1.Maruti Ydyog Ltd., through its Managing Director, Palam Gurgaon Road, Gurgaon.<br /> 2.M/s. Tara Auto Mobiles through its Manager, Mansa Road, Bathinda.<br /> <br /> ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh.Naveen Goyal, Advocate.<br /> For the Opposite parties : Sh. Sanjay Goyal, Advocate, for opposite party No. 1.<br /> Opposite party No. 2 exparte. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Complainant had booked one Maruti Omni (Van) with opposite party No. 1 against payment of Rs. 10,000/-. Allotment No. ID/002465 was issued. Since the vehicle was not made available to him, he had opted for cancellation of the booking. His request was accepted with the assurance that booking amount would be refunded alongwith interest @ 12% P.A. Letter dated 13.2.04 was issued by him to opposite party No. 1. Alongwith it, Indemnity Bond, Affidavit as per format “D” and format 'a' were sent. Documents were received by opposite party No. 1. Despite this, payment has not been made. Hence, there is deficiency in service on the part of the opposite parties. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1096 (Here-in-after referred to as 'Act') has been preferred seeking direction from this Forum to the opposite parties to pay him Rs. 20,000/- on account of mental tension; Rs. 5500/- as cost of litigation and Rs. 10,000/- as booking amount alongwith interest @ 12% P.A. till payment.<br /> 2. Opposite party No. 1 filed its version taking preliminary objections that complaint is not maintainable before this Forum; this Forum has got no territorial jurisdiction to entertain and try it and that only Forums at Delhi have the territorial jurisdiction; complainant is not consumer; complaint is without cause of action; allegations made in the complaint do not constitute any consumer dispute and complaint is liable to be rejected as the relief sought falls outside the ambit of Clauses (a) to (i) of Section 14(1) of the Act. Inter-alia its plea is that it had invited applications for booking of Maruti Omni ( Van) in the year 1985 from general public. The prospective customer was required to deposit a sum of Rs. 10,000/- as initial booking deposit. Successful applicants were required to surrender original allotment card and application acknowledgement slip to the authorised dealer at the time of delivery or cancellation of booking as per agreed terms and conditions. Complainant did not produce the original documents evidencing alleged booking. There is no record with it intimating that allotment number mentioned by the complainant pertains to him. It denies that documents were received by it pertaining to cancellation of booking and refund of the booking amount. Public notice dated 10.2.04 was released by advising booking holders to submit the documents but complainant did not submit the documents alongwith request of cancellation. Complaint is barred by time. It denies the remaining averments in the complaint.<br /> 3. Notice of the complaint was sent to opposite party No. 2. It was served. It did not care to contest the complaint. Accordingly, it has been proceed against exparte.<br /> 4. In support of his averments contained in the complaint, complainant has produced in evidence affidavit of Sh. Vinod Kumar his attorney (Ex. C-1),. Photocopy of letter dated 2.11.04 (Ex. C-2), photocopy of Indemnity Bond (Ex. C-3), photocopy of his affidavit (Ex. C-4), photocopy of format 'A' and photocopy of general power of attorney (Ex. C-6).<br /> 5. In rebuttal, on behalf of opposite party No. 1 photocopy of Instructions for filling up the booking Form and terms and conditions of sale (Ex. R-1) and photocopy of Public Notice (Ex. R-2) have been tendered in evidence.<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record.<br /> 7. Opposite party No. 1 does not admit in so many words that complainant had booked Maruti Omni (Van) by way of making payment of Rs. 10,000/-. Onus to prove that this vehicle was booked by him with opposite party No. 1 is upon the complainant. Complainant has not placed and proved on record allotment card to prove that vehicle was booked with opposite party No. 1 against payment of Rs. 10,000/-. No reason has been assigned for withholding this document. From this, adverse inference is drawn against the complainant to the effect that he has failed to establish the booking of the vehicle in the manner stated by him in the affidavit Ex. C-1. Ex. R-2 is the copy of the public notice issued by opposite party No. 1 making it clear that a notice for cancellation of booking and refund of the booking advance should be supported by the following documents :<br /> 1. Original booking allotment card issued by MUL to the customer.<br /> 2. Original acknowledged copy of the booking application form<br /> 3. Proof of identity of the person requesting for cancellation of booking such as copy of driving licence, passport, PAN or voters ID card. <br /> 4. Copy of the letter received by the customer from MUL in relation to cancellation of the booking and refund of the booking advance; and<br /> 5. Bank Verification Certificate wherein the signature of the customer is verified by a bank in which the customer holds an account.<br /> Complainant alleges that he had sent application on 2.11.04, copy of which is Ex. C-2 for cancellation of booking and refund of the booking advance alongwith interest. Alongwith this letter, documents mentioned in it were sent. Opposite party No. 1 does not admit the receipt of documents mentioned in it nor does it admit the receipt of letter. It was for the complainant to establish that this letter dated 2.11.04 was certainly issued. Evidence to his effect is lacking as no postal receipt regarding the issuance of this letter and acknowledgement regarding the receipt of the letter are on the record. It is not the case of the complainant that he had personally handed over the letter alongwith documents to any official of opposite party No. 1. In such a situation, the plea of opposite party No. 1 that documents were not received by it, is acceptable. Even it it is taken for arguments sake that letter was issued he did not send the original booking allotment record. If complainant had certainly booked Maruti Omni (Van) he could send original booking allotment record. Atleast he could show it to this Forum. Opposite party No. 1 cannot refund the amount particularly when original booking allotment card is not proved to have been sent.<br /> 8. Complaint is liable to be dismissed on an other ground as well. In para No. 9 of the complaint, averments of the complainant are that the cause of action arose to him when letter dated 13.2.04 was received by him and thereafter on 2.11.04 when he had sent the documents. Even if cause of action is taken to have arisen to the complainant for filing the complaint on 2.11.04, even then, complaint filed by him on 3.1.08 is hopelessly barred by time in view of Section 24-A of the Act according to which this Forum cannot admit a complaint unless it is filed within two years from the date on which cause of action arises.<br /> 9. In view of our foregoing discussion, No deficiency in service or unfair trade practice on the part of the opposite parties is proved. Complaint being devoid of merits, is dismissed. Parties are left to bear their own costs.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned.<br /> Pronounced :<br /> 13-03-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br />