STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.398 of 2010)

Dr. Y.P. Sood s/o late Sh. Chaman Lal r/o House No.1074, Sector 39-B, Chandigarh.

……Appellant

V e r s u s

1.                 M/s Berkeley Automobiles Limited, 24, Industrial Area, Phase-I, Chandigarh

2.                 Maruti Udyog Limited, SCO No.39-40, Sector 8-C, Chandigarh

              ....Respondents

BEFORE:      HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by: Sh. Yogesh Mittal & Sh. Ashok Kanwal, Adv. for appellant

                   Sh. Sandeep Jasuja, Adv.  for respondent No.1

                   None for respondent No.2

PER JUSTICE SHAM SUNDER, PRESIDENT.

1.                           This appeal, under Section 15 of Consumer Protection Act, 1986 (hereinafter referred to as the Act), has been filed by the appellant/complainant against the order dated 6.10.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) vide which the complaint filed by the complainant was dismissed.

2.                           The facts of the complaint, in brief, are that on 8.4.2008 the complainant booked a Maruti Swift Dzire VDI Car (Arctic White Colour) for a total basic price of Rs.5,93,167/- with M/s Berkeley Automobiles Ltd.(OP-1), authorized dealer of Maruti Udyog Ltd. (OP-2) by depositing Rs.50,000/- against receipt Annexure C-1.  The complainant was assured that the car would be delivered to him within the maximum period of four months from the date of its booking. However, the delivery of the car was made to him on 17.11.2008 only for Rs.6,09,731/- and that too upon his repeated visits.  The complainant paid Rs.3,22,000/- vide cheque No.595496 dated 17.11.2008 and Rs.2,46,935/- in cash.  It was alleged by the complainant that in the invoice dated 17.11.2008, the OP deliberately mentioned the date of booking as 17.11.2008 instead of 08.04.2008 which showed the unfair trade practice adopted by them.  It has been alleged that the OPs did not follow procedure in supplying the vehicles and there were number of vehicles, received during this time, which were delivered to the persons who had booked later on.  Upon protest by the complainant, OPs have paid him interest of Rs.3,386/- on the booking of Rs.50,000/-. Hence this complaint was filed alleging that the acts and conduct of OP-1 in giving out of turn delivery of the car with the intention to earn black money amounted to deficiency in service and unfair trade practice.

3.                           OP-1 in their reply did not dispute the fact with regard to the booking of the car. It was stated that the complainant was told that the delivery of the vehicle would be subject to the supply of the particular colour of the car chosen by him and further that the period was tentative and could increase or decrease. It was stated that the complainant concealed the contents of letter dated 06.08.2008 whereby he was informed that due to production constraint, the delivery of the vehicle shall be delayed by 1-2 months and offered impressive interest @ 12% p.a. to the tune of Rs.3,386/- on the booking amount of Rs.50,000/- which was received by him at the time of delivery of the vehicle and, therefore, the complainant had no cause of action to file the complaint qua it. Pleading no deficiency in service or unfair trade practice on their part, OP-1 prayed for dismissal of the complaint.

4.                           OP-2 was duly served but nobody appeared on its behalf, either in person or through counsel. Therefore, it was ordered to be proceeded against exparte vide order dated 27.04.2009.

5.                           The parties led evidence in support of their contentions. 

6.                           After hearing the learned counsel for the parties and perusing the record, the learned District Forum dismissed the complaint vide impugned order dated 6.10.2010, as already mentioned in the opening para of the judgment, which has been challenged in the present appeal.

7.                           We have heard the arguments of learned counsel for the parties and have perused the record.

8.                           The ld. District Forum dismissed the complaint on the ground firstly, that there was delay in delivery of the car by the manufacturer because of lesser production of cars of white colour,  secondly that since the OP-1/respondent did not produce the relevant record on the ground that the same has been misplaced at the time of shifting of the office, there is, therefore, no material to prove that any car was sold to a person earlier to the complainant who had booked the car later in time and thirdly that since the OP-1 have paid interest to the complainant for the period of delay, therefore, the complainant has no case against it.  We do not find any merit or evidence with respect to any of the reasons given by the ld. District Forum.

9.                           As regards the lesser production of cars of white colour, apart from the bald statement of the OP-1, no evidence has been got produced  from the manufacturer (OP-2) as to how many cars were produced, how many cars were delivered to the OP during the said period and what was the number of cars booked by different persons with the OP.  This evidence was with OP-1 itself because they had received the cars, as well as the bookings, and delivered the same to the customers, but they did not produce the relevant evidence for which an adverse inference is to be drawn against OP-1 and not against the complainant.  The complaint, therefore, could not be dismissed on any such assumed presumption that there was less production of cars of white colour.

10.                       In order to prove the unfair trade practice, the complainant moved an application before the ld. District Forum to direct the OP-1 to produce the record relating to the receipt of the cars from the manufacturer and the bookings made by different persons with the OP and the dates on which the cars were so delivered to them.  The said application was first opposed by the OP-1 on the ground that the record pertaining to the period is voluminous, which cannot be appreciated in the summary proceedings under the Act.  It appears that OP-1 realised that this ground was not tenable and it, therefore, changed their version.  An affidavit dated 24.8.2010 was filed by Om Parkash Sharma, duly authorized representative of OP-1, in which a totally different ground was taken that the respondent has failed to trace out the record/files of the customers pertaining to the year 2008 and the reason given was that some files/record, pertaining to the year 2008, was misplaced during the shifting and could not be traced, in spite of the best efforts put up by the officials of the respondent. Annexures C-1/A & R-1/1, show that the car was booked when the OP was operating from Showroom No.24, Industrial Area, Phase I, Chandigarh. The receipts (Annexure C-1 to C-3) were also issued from the same address.  The invoice (Annexure C-4) shows that the car was delivered from the same address. There is no document on record to suggest if the OP-1 ever changed the Showroom from ‘24’ to ‘27’. Even when the appeal was filed, the address of OP-1 was that of Showroom No.24 and the OP was served at the said address.  It is, therefore, a false assertion made by OP-1 that they changed their business premises from “Showroom No.24” to “Showroom No.27”.

11.                       The contention of OP-1 that some files were missing also cannot be believed to be correct.  Apart from the self serving statement, no documentary evidence with respect to the loss appears to have been reported anywhere.  Moreover, it is not only the files of the customers but the OP appears to be having data in the computer with respect to the receipt of the cars, from the manufacturer and delivery thereof to the customers.  The record was, therefore, alleged to have been misplaced for the simple reason to avoid the evidence having come on file about the bunglings being done by OP-1, in the delivery of the cars, resulting in early delivery to the persons who made bookings late and thereby delaying the delivery to those who had booked earlier.

12.                       Earlier also, a complaint was filed against OP-1 by one Shiv Kumar Khanna on similar facts that he had booked the Silky Silver colour Swift Dzire car on 12.4.2008; that the delivery of the car of the said colour was not given by the OP in accordance with the bookings upon which the record was called from the  OP. The said complaint was decided against the OP vide order dated 20.2.2009.  In para 6 of the order it was held by the ld. District Forum as follows :-

“6]     It is admitted by the complainant that there is much demand of Maruti Swift Dzire vehicle and that the supply is not meeting the demand.  According to him that is the reason for the OPs to exploit the situation and sell the vehicle in black market. According to him the delivery of the vehicle is given out of priority to those persons who are willing to grease their palm whereas others who are not willing to pay the black money are kept on waiting on the pretext that the vehicle had not been received from the company. The OP have placed on file Annexure R-1/6 showing the dates of booking and the delivery of the vehicle of S. Silver colour which was got booked by the complainant.  The perusal of the list shows that the OP are indulging in unfair trade practice and do not give the delivery  of the vehicle in accordance with the list prepared by them with respect to the date of booking.  One Bhag Singh Jasrotia had booked the vehicle on 21.3.2008 which was delivered to him on 16.4.2008 whereas Didar Singh and Kansal Industries which had booked the vehicle after him on 27.3.2008 were given the delivery on 2.4.2008 and 9.4.2008 respectively.  Kamlesh Tiwari who booked the vehicle on 28.3.2008 was given the delivery on 26.5.2008 after a gap of 58 days whereas Rajneesh Pamdon who also booked the vehicle on 28.3.2008 was given the delivery on 12.5.2008 i.e. only after 44 days.  Abzoni Tiles Pvt. Ltd. had booked the vehicle on 3.4.2008 and was given delivery on the very next day i.e. on 4.4.2008 whereas Supreet Singh and Anurag Sharma who had booked the vehicle prior to him on 31.3.2008 were given the delivery on 23.4.2008 and 22.6.2008 respectively after a gap of 23 and 83 days.  Vijay Kumar Chawla and Pankaj Thakur booked the vehicle on 16.4.2008 and 17.4.2008 and the vehicle was delivered to them on 28.4.2008 after a gap of 10-11 days only.   Rajiv Batish booked the vehicle on 22.5.2008 and was given the delivery on 23.5.2008 whereas Rakesh Goyal, Kulwant Singh, Sanjeev Kher, DSL Power Pvt. Ltd. (who had booked the vehicle on 17.4.2008), Sanjiv Kumar (20.4.2008), Hemani Kapoor (2.5.2008), Yadwinder Singh (10.5.2008), Royal Moulding Pvt. Ltd. (13.5.2008) and Rahul Gagneja (21.5.2008) have not so far been delivered the vehicle till Annexure R-1/6 was prepared.  It shows that the OPs are giving delivery of the vehicle in an arbitrary manner and not in accordance with the dates of booking. The OPs have not been able to explain the reason as to why the priority of booking is not being considered by them in making the delivery and the only reason is that they are indulging in black market of the vehicles and deliver the same to whose who grease their palm as alleged by the complainant.  This unfair trade practice of giving delivery out of order is causing harassment to complainant and others who have deposited the booking amount and are waiting for the car but the same is being siphoned off to earn undue profits by the OPs.”

It shows that the OP-1 had not adhered to the schedule of booking and had been giving delivery of Swift Dzire cars early to those who had booked the vehicle late, whereas, the persons who booked earlier, and were not willing to pay black money, were not given the delivery as per the time schedule.  Since the record was exposing OP-1 of the bunglings being done by them in this respect, OP-1, therefore, in the present case thought it proper to withhold the record and allege that the same has been misplaced. The case of Shiv Kumar Khanna, aforesaid also pertained to the same period as the present one.  If OP-1 were indulging in unfair trade practice with respect to the cars of one particular colour, we cannot presume that they would have been fair with respect to the cars of other colours. In view of these facts, an adverse inference is required to be drawn against OP-1 for withholding the record that if the record had been produced, it would have proved the contentions of the complainant in this case also.

13.                       The next question is, whether, mere payment of interest on the delayed delivery of car would condone the unfair trade practice adopted by the OP-1?  Our answer to this question would be in the negative.  The interest has been paid by the OP for withholding the amount of the complainant, beyond a specific date.  However, this payment they were to make even if the delivery was being made fully in accordance with the booking and there was genuine delay, on their part, in procuring the vehicle from the manufacturer.  Here the presumption is that the cars of white colour were being received in time, but were being siphoned off by OP-1 to some other customers, who booked late but were willing to pay some other consideration for its delivery.  Admittedly, it is an unfair trade practice adopted by OP-1 and the mere payment of Rs.3,386/- towards interest would not authorize the OP to indulge in the said practice nor the mental and physical harassment caused by them to the complainant, by delaying the delivery of the car, would be condoned.

14.                       In view of the above discussion, we are of the considered opinion, that the complaint was liable to succeed and the impugned order, therefore, cannot sustain.  We accordingly set aside the order dated 6.10.2010 passed by the ld. District Forum and allow the complaint. OP-1 is directed to pay to the complainant Rs.50,000/-, as damages, for indulging in unfair trade practice, and shall also pay Rs.5,000/- towards costs of litigation.  The amount shall be paid within thirty days from the date of receipt of copy of the order, failing which they would be liable to pay penal interest thereon @ 12% per annum since the filing of the complaint i.e.19.3.2009, till the amount is actually paid to the complainant.  

15.                       As no deficiency in service or unfair trade practice has been alleged or proved against OP-2, therefore, the complaint qua it stands dismissed, with no order as to costs.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

28^th April 2011.

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER