Delhi

North East

CC/169/2017

Rahul Sharma - Complainant(s)

Versus

M/S Globus Chevrolet - Opp.Party(s)

22 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 169/17

 

In the matter of:

 

	Rahul Sharma S/o Sh. Vijay Kumar Sharma R/o H. No. 657, 2nd Floor Sector 9A, Near ESI Hospitals Gurgaon, Haryana-122001. Also at: B-85, First Floor Pocket B-4, Sector 11, Rohini, Delhi- 110085.	Complainant
	Versus
1.           2.	M/s Globus Chevrolet Globus Motorcop Pvt Ltd. 28-43 & 44/487, Zulpha Bangal Dilshad Garden, Main G.T.Road, Delhi-110092.   Mr. R. Arun Acharya General Manager (sales) M/s Globus Chevrolet Globus Motocop Pvt. Ltd 28-43 & 44/487, Zulpha Bangal, Dilshad Garden, Main G.T.Road Delhi-110092.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

24.05.2017 22.11.2018 22.11.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the present complaint has been filed by the complainant with the contention that he had booked a car Chevrolet Enjoy 1.3 LS Diesel S. Grey Color on 16.12.2016 for Delhi registration through OP2, agent of OP1 and paid Rs. 10,000/- in cash vide receipt No. GT- 0407 and Rs. 25,000/- on 28.12.2016 vide receipt No. GT- 0443 duly acknowledged/ accepted by OP1. The complainant got sanctioned car loan from HDFC Bank for which the OP1 issued a performa invoice No.824 dated 16.12.2016 for net on road price of Rs. 6,66,618/- and also issued insurance policy/ cover note from New India Insurance Co. Ltd with respect to the subject car for the period from 29.12.2016 to 28.12.2017. However, the OP failed to fulfill its commitment of giving a steel grey car and instead was giving a vehicle of white color in act of breach of trust. The complainant raised his objections to the same vide e-mails from 31.12.2016 to 04.01.2017 and legal notice dated 20.01.2017 to OP1. However, OP1 failed to address the issue of the color change of the vehicle which was being provided to the complainant and which was refused acceptance by him. Therefore, alleging deficiency of service and breach of trust against the OPs, the complainant vide the present complaint has prayed for issuance of directions against the OPs for refund of Rs. 35,000/- as booking amount paid by him to OP1 towards the car in question and compensation of Rs. 1Lac for suffering, harassment, hardship, pain, mental shock, agony and intimidation due to intentional and willful negligence on the part of OPs. The complainant has prayed for interest @ 18% p.a. on the aforementioned amounts prayed for.

Complainant has attached copy of receipt no. GT- 0407 dated 16.12.2016 for Rs. 10,000/- paid to OP1 towards the booking amount of car, copy of receipt no. GT- 0443 dated 18.12.2016 for Rs. 25,000/- paid to OP1 towards booking amount of the car, performa invoice vide serial no. 824 dated 16.12.2016 for Enjoy 1.3 LS Diesel S. Grey Car, copy of insurance cover note issued by New India Assurance for 29.12.2016 to 28.12.2017, copy of retail invoice dated 29.12.2016 issued by OP1, copy of e-mails exchanged between complainant and OP1 between 31.12.2016 to 04.01.2017, copy of legal notice dated 18.01.2017 alongwith postal receipts.

2. Notice was issued to OP on 17.07.2017 which was served on both OPs on 10.11.2017 and 11.11.2017. However none appeared on behalf of both the OPs and were therefore proceeded against ex-parte vide order dated 09.02.2018 after having being accorded last opportunity to appear on the said date vide order dated 11.01.2018.
3. Complainant filed ex-parte evidence by way of affidavit and written arguments on 03.05.2018 and 10.07.2018 respectively in reiteration of his grievance against the OPs of failure to provide the car of the color chosen by the complainant.
4. At the stage of oral arguments this Forum had put a specific question to the complainant whether he had taken the delivery of the car in question to which he answered in the negative and admitted to having paid only booking amount.
5. We have heard the arguments forwarded by the complainant in support of his contentions and perused the documentary evidence placed on record against the OPs.

The most vital issue for consideration in the present case is whether the complainant is a consumer as defined under Section 2(1)(d) of CPA or whether the present complaint so filed by the complainant is at all maintainable under the Act. In this regard we find it appropriate to quote the definition of consumer as defined under Section 2 (1)(d) of CPA as a person who:-

1. buys and goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other that the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

 

 

The word ‘consumer’ is the fulcrum of the Consumer Protection Act.

The term ‘consumer’ has, thus, been defined to mean, a person who is-

 

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or    
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

 

1. paid, or
2. promised, or
3. partly paid or promised, or
4. covered by any system of deferred payment

 

6. The Hon’ble National Commission in the judgment of M.N.Narasimha Reddy Vs M.D. Maruti Udyog Ltd and Ors II (1991) CPJ 346 (NC) held that the definition of consumer contemplates a preexistence of completed transaction of sale and purchase and the person who has merely entered into an agreement for purchase of goods will not fall within the scope of the definition of consumer. The Hon’ble National Commission in the said judgment was of the view that in order to satisfy the requirement of  clause (i), there must have been a transaction of buying of goods for consideration. On the combined reading of clauses (c) & (d) of Section 2 (1) of the Act which defines “complainant” and “Consumer”, it is abundantly clear that in relation to transaction of purchase of goods, a valid complaint can be made only in respect of existence of one or more defects in the goods supplied or charging by trader of a price for goods in excess of price fixed by or under the law for the time being in force or displayed on the goods or any package containing such goods. It is thus seen that the scheme of Act is that a transaction of sale and purchase of goods should have already taken place and the complaint must relate to either any defect from which the goods supplied to complainant suffer or charging of excessive price by trader. Section 2(1)(d)(ii) is not applicable  here since no service has been hired in the present case.

Even otherwise if we look at Section 53A of Transfer of Property Act 1882 which deals with part performance of contract for sale, the first part thereof clearly provides that such contract or agreement to transfer for consideration must be in respect of immoveable property which again is not applicable in the present case since the car is a moveable property and therefore part payment made there against cannot be considered as part performance of agreement entered into between complainant and OP1.

Therefore in the present case, on the observation of Hon’ble National Commission in Narasimha Reddy case (supra), it is evident that there was no relationship of consumer between complainant and OPs which had merely entered into an agreement for purchase of car by paying a booking amount and therefore it is crystal clear that the complainant does not fall within the ambit of definition of consumer as defined under Section 2 (1)(d) of CPA. That being the position, the present complaint lodged before us is found not legally maintainable / enforceable under CPA. The remedy of the complainant, if any lies in the Civil Court claiming for refund of the booking amount with interest and also for damages as the case may be. The complainant is therefore dismissed with no order as to costs as the same cannot be sustained in the eyes of law.

7.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.   File be consigned to record room.
9.   Announced on  22.11.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member