Haryana

Ambala

CC/45/2015

Bhuvnesh Kumar Nainiwal - Complainant(s)

Versus

M/s Ekansh Wheels - Opp.Party(s)

Aditya Verma

13 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No. 45 of 2015

Date of Institution  : 10.02.2015

Date of Decision    :  13.05.2016

 

Bhuvnesh Kumar Nainiwal S/o Des Raj Nainiwal R/o 108, Punjabi Bagh, Gali No.4, Ambala Cantt.

                                                                                                                                                         ……Complainant.

 

                                                                                                        Versus

M/s Ekansh Wheels through its Owner/directors/Managers having its sales office at village Tepla, Ambala Jagadhari Highway, District Ambala.

                                                                                       ……Opposite Party

Complaint Under Section 12 of the Consumer Protection Act

 

CORAM:    SH.A.K. SARDANA, PRESIDENT.

                   SH. PUSHPENDR KUMAR, MEMBER.

         

Present:       Sh. Aditya Verma, Adv. counsel for complainant.

                   Sh. U.S. Chauhan, Adv. counsel for OP.

 

ORDER.

 

                   Present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter called as ‘the Act’) has been filed by the complainant alleging therein that on 25.12.2014, he approached   the OP for buying a car of Maruti company Model Wagon-R VXI, colour Silky Silver which was to be gifted in the marriage of his cousin sister due in January 2015. So, complainant paid a sum of Rs.5000/- to the OP as booking amount. It has been contended that on 28.12.2014,  complainant approached the OP for  delivery of the vehicle but he was surprised to know that vehicle was sold to someone else without any intimation & consent of him. Complainant has further contended that it was announced in the family that they are going to gift the car to their sister at the time of her marriage but due to conduct of the OP, complainant and his family had to suffer huge embarrassment and mental agony.  Thus the complainant has averred that OP has committed cheating and breach of trust with him which amounts to deficiency in service and prayed for relief as mentioned in prayer para of the complaint.

2.                Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua non-maintainability of complaint, concealment of true facts and complainant is not a consumer. On merits, it has been urged that complainant deposited an amount of Rs.5000/- with them  as booking amount  to purchase a new vehicle but it does not give any guarantee or assurance for delivery & price of the car rather  vehicle will be delivered in the order of receipt of consumer booking subject to payment and other formalities, however, delivery period given on the order booking form is only indicative and vehicle  delivery is only subject to availability of vehicles. Further it has been urged that in case of cancellation of booking, cancellation charges shall be applicable on the date of booking cancellation. Rest of the contents of complaint have been denied and prayed for dismissal of complaint with costs.

3.                To prove his version, counsel for complainant tendered in evidence affidavit  of complainant as Annexure CX alongwith documents as Annexures C-1 to C-5 and closed the evidence whereas on the other hand, counsel for OP tendered affidavit of Sh. Ashish Bansal, Partner of OP firm as Annexure RX alongwith document as Annexure R-1 and closed their evidence. 

4.                We have heard learned counsel for the parties and gone through the record very carefully. The main controversy revolves around the order booking/commitment check list (Annexure R-1/C-5) wherein the complainant has contended that Op has not mentioned the tentative delivery date rather verbally assured the delivery of vehicle on 28.12.2014.  On the other hand, counsel for OP pointed out that  on Booking Order Form, it has been specifically mentioned just above the signatures of customer that “I (complainant) understand that any verbal commitment will not be honoured”  meaning thereby that if the contention of complainant for the sake of arguments, is taken as truth, even then, the same cannot stand in light of the undertaking given by the complainant on the order booking form, so the version of the complainant that the Op was to deliver the car to complainant on 28.12.2014 is not believable. Counsel for OP further argued that complainant failed to pay the full amount of the car, so the OP could not deliver the proposed car to the complainant which itself a lapse on the part of complainant and thus, OP is not deficient & negligent in any manner.   

5.                In view of the facts discussed above, we have come to the conclusion that the OP is not at fault in not delivering the vehicle to the complainant on 28.12.2014 as alleged by complainant. However, at the same time, OP is deficient in not refunding the booking amount of Rs.5000/- so deposited by complainant with them and the contention of the OP that they retained the booking amount with them because the complainant never approached them for  refund of the same, is not tenable as the Op was duty bound to refund the booking amount immediately after cancellation of the deal but they did not do so rather retained the same with them  even after  filing of the present complaint by the complainant before the Forum which admittedly amounts to deficiency in service as well as unfair trade practice  on the part of OP. As such, we have no option except to partly accept the present complaint of the complainant. Accordingly, the complaint is partly allowed and Op is directed to comply with the following directions within thirty days from the communication of this order:-

1. To refund the booking amount of Rs.5000/- to the complainant with simple interest @ 9% per annum from the date of its deposit i.e. 25.12.2014 to till date.
2. Also to pay a sum of Rs.3000/- as compensation for harassment/mental agony as well as litigation charges.

 

                   Further the award in question/directions issued above must be complied with by the OP within the stipulated period failing which all the awarded amounts shall further attract simple interest @ 12 % per annum for the period of default. Copies of this order be sent to the parties concerned free of costs, as per rules.  File be consigned to the record room after due compliance. 

 

ANNOUNCED:13.05.2016                                                          Sd/-

                                                                                              (A.K. SARDANA)

                            PRESIDENT                 

 

                                                                                             Sd/-

(PUSHPENDER KUMAR )

                                                                                           MEMBER