BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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D.K Bhandari s/o Late Sh.Baldev Dass r/o #1005/1, Sector 45-B, Chandigarh (U.T.)

                                                              …..Complainant

                           V E R S U S

1]Hind Motors(India), Plot No.15, Industrial Area, Phase 1, Chandigarh (U.T.), through its Managing Director.

2]Tata Motors Ltd, Head Office Pune through its Regional Office, TATA Motors, Sector- 17, Chandigarh, through Managing Director

                                                        ……Opposite Parties

CORAM:  SH.JAGROOP SINGH MAHAL        PRESIDENT

              DR.(MRS) MADHU BEHL       MEMBER

Argued by: Sh.S.S.Pathania, Adv. for complainant.

Sh.Ankush Kalia, Adv. for OP-1.

OP-2 ex-parte.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

             Succinctly put, the complainant booked an Indigo Marina car with OP-1 on 30.10.07 after paying an advance of Rs.25,000/-. The complainant approached the OP-1 through telephone on 5.11.07, 6.11.07 and 7.11.07 and inquired about the availability and delivery of the said car and also about the amount and mode of payment etc. The OP-1 informed on phone that the vehicle was readily available and also gave other details.  That as per the telephonic information given by OP-1, the complainant visited the OP-1 company with a cheque of Rs.4,85,000/-. The complainant stated that after reaching  the  OP-1, he informed him that OP-2 has dispatched a wrong vehicle which is Marina Dicore Model (a higher model) and was costlier by Rs.56,000/- and hence asked the complainant to pay Rs.56,000/- more to take the delivery.  The complainant refused the same and asked OP-1 to refund the booking amount of Rs.25,000/- deposited by him for Indigo Marina car but OP-1 refused to refund the booking amount.  The complainant went to another dealer, M/s Joshi Auto Zone Pvt. Ltd, Chandigarh, and found that the desired vehicle was readily available.  The complainant returned to OP-1 and informed the availability of the vehicle  and asked to refund the booking amount/issue certificate of having received the booking amount, so that be could take the delivery from the above said dealer, but OP-1 refused to refund the amount or to issue any certificate. The complainant purchased the desired vehicle from M/s Joshi Auto Zone on the same day. After that the complainant visited OP-1 no. of times to refund the booking amount but OPs have neither delivered the vehicle nor have refunded the booking amount of Rs.25,000/- deposited on 30.10.07 by the complainant. Hence this complaint alleging that the aforesaid acts of the OP amounts to deficiency in service and unfair trade practice and the complainant prayed to direct OP to refund the amount of Rs.25,000/- with interest along with costs of litigation and compensation for the mental agony, harassment and inconvenience caused to him.

2.             Notice was served to the OPs for their written reply and evidence. Despite service none appeared on behalf of OP-2 and OP-2 was accordingly proceeded ex-parte.

3.             In their written reply the OP-1 admitted the factual matrix of the case. OP-1 stated that the complainant had earlier filed a consumer complaint before the Hon`ble District Forum, Nawanshahar and all the allegations mentioned in the present complaint are the same allegations which was filed by the complainant earlier. OP-1 stated that the complainant approached him and obtained proforma invoice for purchasing the vehicle and OP-1 informed the complainant that the vehicle preferred was not a fast selling vehicle and was not readily available. OP-1 further stated that the complainant did not approach them for the purchase of the vehicle although the said vehicle was available with them. OP-1 stated that the Demand Draft brought by the complainant was wrong as it was not in the name and in favour of OP-1. The complainant was clearly told that the said Demand Draft was not in the name of OP-1, therefore, the vehicle could not be delivered against the said Demand Draft and thereafter the complainant did not come back till date to take the delivery of the said vehicle. OP-1 further stated that the complainant has not made any request at any point of time to refund the booking amount nor to cancel the said booking. Denying all the material allegations of the complainant, OP-1 has pleaded that there has been no deficiency in service or unfair trade practice on their part and prayed for dismissal of the complaint. 

4.             Parties led evidence in support of their contentions.

5.             We have heard the Learned Counsel for the parties and have also perused the record. 

6.             The contention of the OP is that the complainant never came to him for purchase of the vehicle, he had only booked the vehicle and therefore the complainant is not a consumer.  We do not find any merit in this contention.  It is admitted that the OP is an automobile dealer who sells the cars.  It is also admitted that the complainant had booked with him one Indigo Marina model of vehicle and deposited Rs.25,000/- with the OP-1. It is also admitted that the OP-1 was to deliver the said car to the complainant and to charge the remaining price of the car.  According to the complainant when he went to take delivery of the car, the OP-1 told him that the said model was not readily available and therefore he should purchase a higher model i.e. Marina Dicore model which was costlier by Rs.56,000/-, to which the complainant did not agree.  This fact therefore sufficiently proves that the complainant was a consumer and therefore the contention of the OP cannot be accepted as correct.

7.             The learned Counsel for the OP has also argued that earlier the complainant had filed a consumer complaint before Learned District Forum, Nawanshahar which was dismissed on 2.07.08 for want of Territorial Jurisdiction.  It is argued that the present complaint is not maintainable.  We do not find any merit in this contention also. The dismissal of the complaint on the ground of Territorial Jurisdiction does not bar the filing of a similar complaint before Consumer Forum having Territorial Jurisdiction in the matter.  It is admitted by the OP in preliminary objection no. 5 of the reply that the averments contained in the present complaint are verbatim, the same as in the earlier complaint. The dismissal of the earlier complaint is therefore not a bar to the filing of the present complaint.

8.           The contention of the complainant is that when he went to the OP with a cheque of Rs.4,85,000/-, which was the balance amount payable towards the price of the Indigo Marina Car, the OP-1 told him that the car of his choice was not readily available and therefore he may purchase a  Marina Dicore model by paying Rs.56,000/-more.  The complainant did not agree to the same.  He therefore asked for the refund of the amount of Rs.25,000/- from the OP-1 which was declined.  Ultimately he went to M/s Joshi Auto Zone (P) Ltd., Chandigarh, where the vehicle of his choice was available and he purchased the said vehicle.  Now the OP has alleged that infact the car of his choice was available in stock with them.  It is not explained by them why then the delivery of the same was not given to the complainant.  It appears the OP-1 wanted to sell to the complainant higher model which was costlier by Rs.56,000/- for which there might not have been many buyers.  This is an unfair trade practice adopted by the OP-1.

9.           It is also contended by the OP-1 that the draft of Rs.4,85,00/- was not in the name of the OP-1 and therefore it could not be got encashed by it. Infact this was not the contention of the OP-1 when the said draft was presented by the complainant to the OP. Earlier the OP had filed the reply to the complaint before the Learned District Forum Nawanshahar, the copy of which is now marked as Annexure C-8. The stand taken by the OP in para 4 of the reply before the District Forum Nawanshahar was that the draft of Rs. 4,85,000/- was not given by the complainant nor the same was shown (to them).  It was mentioned that the complainant had not approached the OP for the purchase of the vehicle and the vehicle was ready for the delivery. It is therefore clear that now a new stand has been taken by the OP-1 that the complainant was clearly told by the OP-1 on 8.11.07, when he came with the said draft that the demand draft was not in the name of the OP-1 therefore the vehicle could not be delivered against the said demand draft.  It shows that this false ground has been coined by the OP-1 now in order to find faults with the draft though it was not the fact and if it was ever told by the OP the same would have been mentioned by them in their written reply copy of which is Annexure C-8. The OP is blowing hot and cold in the same breath because in para 4 to 7 of their reply even now the contention is that the complainant had not approached the OP-1 for the purchase of the vehicle although the vehicle was ready for delivery.  The Learned Counsel for the OP was unable to reconcile the two contradictory statements.

10.          We cannot believe that the complainant who had deposited Rs.25,000/- for the purchase of the vehicle from the OP-1 and had also got prepared the bank draft of Rs.4,85,000/- had not approached the OP –1 for the purchase of the vehicle.  The OP-1 is therefore telling a lie in this respect.  As regards the draft copy of which is Annexure C-4 it is in favour of Hind Motors (P) Ltd.  The contention of the OP-1 is that they are M/s Hind Motors (India) Ltd. and therefore there was defect in the draft.  It appears, no such defect was pointed out by the OP because if it was pointed out they would have mentioned this fact in Annexure C-8 which was first in time. Otherwise also it would not have been difficult for the complainant to get the defect removed immediately because he himself is posted as Chief Manager, State Bank of India at Banga from where the said draft was issued.  The real story therefore appears to be one as narrated by the complainant that the OPs instead of selling the car wanted by the complainant, wanted to sell to the complainant some other higher model to extract Rs.56,000/- more from him under the pretext that the car of his choice had not been received from OP-2 though as per the record now produced by OP-1 the said car was available in their stock.

11.          In view of the above discussion, we are of the opinion that not only that the OP-1 was indulging in unfair trade practice but it was also deficient in rendering proper service to the complainant.  The OP-1 has not refunded the amount of Rs.25,000/- even inspite of repeated requests made by the complainant as mentioned in the complaint. The present complaint therefore succeeds. The same is accordingly allowed. The OP-1 is directed to refund a sum of Rs.25,000/- alongwith compensation of Rs.25,000/- and litigation costs of Rs.5,000/- within 30 days of the receipt of the copy of this order failing which they would be liable to refund the entire amount alongwith interest @12% p.a. since the filing of the present complaint i.e. 27.08.09, till the amount is actually paid to the complainant.

              Certified copies of this order be sent to the parties free of charge.  The file be consigned.