Per Shashikant A.Kulkarni, Presiding Judicial Member
This is a consumer complaint u/s.12 r/w. Sec.17 of the Consumer Protection Act, 1986 [CP Act].
[1] Complainant claims to be a consumer and original opponent no.3 and 4 i.e. amended opponent no.1 and 2, Mr.Chandan Somaya and Autograph Car India Pvt.Ltd. to be service provider.
[2] Original opponent no.1-Skoda Auto India Pvt.Ltd. manufactures cars. Complainant booked Skoda Superb 1.8 (Petrol) T.S.I.C. Beige with opponent-Autograph Car India Pvt.Ltd. i.e. opponent no.2 now. Complainant assumed that Autograph Car India Pvt.Ltd. is dealer of Skoda Auto India Pvt.Ltd. who assurd the complainant delivery of the car in the first week of May 2009. Complainant paid Rs.1 lac as advance booking amount against the cost of the car over Rs.17.56 lac.
[3] Complainant then approached HDFC Bank for car loan. The bank sanctioned it, with EMI of Rs.53,720/- p.m. Interest applied was @11% p.a. Opponent- Autograph Car India Pvt.Ltd. [‘Authograph’ in short] did not deliver the car. The bank started recovering EMIs from 05/07/2008.
Complainant alleges that not delivering the car on time amounts to deficiency in service. Complainant demanded an amount of Rs.1 lac from Autograph Car India Pvt.Ltd. He issued cheques which were bounced. The bank continued to debit EMIs. The bank expressed inability to credit back EMIs. Entire amount of purchase of car was accumulated in the account of the opponent- Autograph Car India Pvt.Ltd. for not fault of the complainant, thereby the complainant suffered loss. Complainant also required to hire a private taxi for conveyance and suffered loss. The complainant, therefore, seeks refund of an amount of purchase of car Rs.17,72,760/- with 24% p.a. Rs.5 lac as compensation for harassment and mental agony and Rs.5 lac for the conveyance & expenses incurred total to Rs.27,72,760/-.
[4] It should be noted that the complaint has been filed through authorized officer of the complainant being a private limited company. On careful perusal of the averments in the complaint, it is seen that nowhere it is mentioned that the car was purchased for use of a director as a condition of service to save transaction from being a transaction for commercial purpose alone.
[5] In support of averment, the complainant has produced on record Xerox copies of car loan agreement, without duly filled in forms, HDFC bank account of the complainant company, e-mail with one Mr.Mussa appearing to be Sales Executive of Autograph Car India Pvt.Ltd. and affidavit of evidence and brief notes of written arguments.
[6] Opponent Autograph filed a written version duly verified agreeing thereby the booking of the car in question, EMIs being debited from complainant company’s account and expressed willingness to make payment of actual losses caused to the complainant and not entire price of car with interest as claimed and denied the compensation claimed for harassment and on account of mental agony, conveyance and expenditure etc.
Complainant has annexed certain correspondence between the complainant and opponent - Autograph to show that there was settlement talk going on the issue of exact payment to be made.
[7] We have heard learned Adv.Pawan Pande for the complainant. Learned Advocate for the opponent Autograph could made himself available to argue.
After having considered the rival contentions, following points arise for our consideration, we record our findings thereto as follows:-
Whether the complainant is a ‘consumer’ within the meaning of Consumer Protection Act, 1986 ? - No
Whether there is deficiency in service on the part of the opponent-Autograph as alleged? – No
Reasons :-
[8] At the outset, it should be made clear that there is no evidence to believe that the complainant has incurred expenditure of Rs.5 lac on the head of conveyance charges and other sundry expenses during the period when he had to allegedly use private taxi. Similarly, there is no specific and pointed evidence led by the complainant to his entitlement to receive compensation claimed on account of harassment and mental agony.
[9] Complaint is post 2003 after Consumer Protection Act, 1986 was amended. By the amendment in Sec.2(d)(i), the person ‘consumer’ as defined is not to include a person who avails of such services for any commercial purposes. Learned advocate of the complainant could not satisfactorily convince the Bench as to how and from which evidence, the complainant proves that the purchase of car by the complainant company was not for the commercial purpose. Therefore, we are of the view that complainant has failed to prove that e is consumer with the meaning of Consumer Protection Act, 1986.
[10] Secondly, in the brief notes of written arguments, learned advocate for the complainant informs the Bench that the complaint resorted to a remedy to file and prosecute a criminal prosecution against Director of opponent-Autograph u/s.138 of the Negotiable Instruments Act, 1881 [‘NI Act’ in short] wherein the complainant has received some amount from and out of total claim and an amount of 7.32 lac remains now to be recovered as calculated by him.
There is absolutely no evidence as to how the complainant has appropriated the amount recovered from opponent-Autograph from principal and from interest. Moreover, there is no intimation given by complainant to the Bench before or during the pendency of the complaint about filing, pending consideration of proceedings u/s.138 of NI Act. Learned advocate for the complainant during the course of his submissions at the fag end submitted that the complainant has proved unfair trade practice besides the deficiency in service on the part of the opponent-Autograph because the opponent-Autograph has accepted the legitimate claim of the complainant.
There is no averment about the unfair trade practice made in the complaint.
For the reasons discussed above, since the complainant failed to prove that he is ‘consumer’ within the meaning of Consumer Protection Act, 1986 and this being not a forum to decide suit for recovery of amount, we are not inclined to allow any of the claim for compensation as prayed by complainant. Therefore, proceeded to pass following:
ORDER
1.Consumer complaint stands dismissed.
2.No order as to costs.
3.One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
4.Copies of the order be furnished to the parties free of cost forthwith.
Pronouced
Dated 2nd July, 2015.
