Haryana

Panchkula

CC/503/2019

JAGBIR SINGH CHILLAR. - Complainant(s)

Versus

M/S LUXMI SWITCHGEAR PVT.LTD. - Opp.Party(s)

ROBIN SATHI.

31 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                              

Consumer Complaint No	:	503 of 2019
Date of Institution	:	05.09.2019
Date of Decision	:	31.08.2021

 

Jagbir Singh Chhillar  S/o Sh.Raghbir Singh R/o J-403, Vikram Vihar (AWHO Society) Sector-27, Panchkula.

 

                                                                                   ….Complainant

Versus

1.      M/s Laxmi Switchgears  Private Ltd., through its owners/Authorised Signatory Plot No.82, Industrial Area, Phase-I, Panchkula(Haryana).

         Authorised Dealer: Mahindra & Mahindra Limited

2.      Sh. Amit Sharma, General Manager- Sales

         M/s Laxmi Laxmi Switchgears Private Ltd., Plot No.82, Industrial Area, Phase-I, Panchkula(Haryana)                                                                                                                   ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:    Sh. Robin Sathi, Advocate for complainant.

                           Sh. Jatin Seharawat, Advocate for the OP No.1. 

                           Sh. Madan Sandhu, Advocate for OP No.2.

 

                                              ORDER

(Sh. Satpal, President)

1.               The brief facts of the present complaint are that on 08.03.2019, the complainant booked a new Mahindra XUV 300 Model W8(O) DSL white colour with OP No.1 submitting a cheque no.595066 amounting to Rs.20,000/-. At the time of booking it was assured to the complainant that the vehicle will be delivered to him within 45 days of its booking. However, 4^th June, being the birth date of his wife and he has gift the car to his wife on her birthday. On 15.05.2019, the complainant visited to OP No.1 for getting the details of payments to be made against the vehicle. A proforma invoice was issued to him by the OP No.1 under different heads totaling Rs.13,67,194/-.  After getting the details, he started the process of loan with the Haryana State Cooperative Apex Bank Ltd. It was on 22.05.2019 that the car/vehicle loan of Rs.8,00,000/- was approved by the Bank favouring in OP No.1. Surprisingly, after two and a half month or receiving of the booking amount, it was informed to the complainant on 24.05.2019 that it would not be possible to give XUV 300 W8(O) white colour and instead a grey colour vehicle was offered which the complainant denied. After that, the complainant was constantly pursuing the matter with the OPs through e-mails conversations on 24.05.2019 & 27.05.2019. However, no response was received from the Ops. The OP No.2 informed the complainant about non delivery of the vehicle on 30.05.2019 through a letter.  After that, the complainant tried to get the desired vehicle from other stations. At last Supreme Mobiles Pvt. Ltd.  at Hisar  agreed to supply the vehicle to him on 04.06.2019 but with some extra cost which he had agreed having no other option. He again made a request to the concerned bank for sanctioning of a fresh loan in the name of a new concern. He again paid the processing fee alongwith applicable taxes and Associate Membership fee. On account of laxity in work and the conduct on the part of Ops, a lot of mental tension and harassment has been caused to him. On 14.06.2019, the complainant sent a letter through email and through Regd. Post   to OPs requesting to payback the booking amount of Rs.20,000/- alongwith interest @18%p.a and Rs.10,000/- for  to and fro charges incurred for Hisar visit and compensation but no response was received from the OPs.  Due to act and conduct of the OPs, the complainant has suffered financial loss, mental agony and harassment. Hence, the present complaint.

2.               Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and baseless; no cause of action and the complainant has not come with clean hands. On merits, it is stated that the OP has already refunded the booking amount i.e. Rs.20,000/- to the complainant and the demand draft amounting to Rs.20000/- was sent to the complainant via registered post. It is also stated that the OP was helpless to arrange the vehicle in the particular colour and the complainant was offered another colour in the same model which the complainant denied to accept. It is further stated that the OP are merely the dealers and not the manufacturers of the cars, therefore, the OP can only make the vehicle available if the manufactures has the vehicle ready. Thus, there is no deficiency in service on the part of the OP No.1 and prayed for dismissal of the present complaint.

                  Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and baseless and suppressed the true material facts. On merits, it is stated that since the OP No.2 was employee of the OP No.1 and all the action has been done in the favour and interest of the OP No.1 by the OP No.2 being the employee and it is pertinent to mention that since the OP No.2 has already left the job with the OP No.1 since June 2019 and working in Pvt. Firm at Roopnagar(Punjab) and even there is no deficiency of the services on the part of OP No.2.

3.               To prove his case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-12 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP No.1 has tendered affidavit as Annexure RW1/A alongwith documents Annexure R1/1 to R1/3 and closed the evidence. The ld. counsel for the OP No.2 has also  tendered affidavit Annexure R2/A and closed the evidence.

4.               We have heard learned counsels for the complainant and OPs No.1 & 2 and have gone through the entire record available on record including written arguments filed by the learned counsel for the OP No.1, carefully and minutely.

5.               Admittedly, the OPs have failed to deliver the vehicle, namely, new Mahindra XUV 300 Model W8(O) DSL white Colour to the complainant in pursuance to the booking made by him on 08.03.2019 vide receipt no. BR/18-19/05168(Annexure C-1). The OP no.1 has justified its failure in providing the aforementioned vehicle to the complainant on the ground that the OPs were helpless to arrange the vehicle of the particular colour and the complainant was offered the vehicle of the same model in different colour, which was denied by the complainant. Further, the OP No.1 has denied any lapse and deficiency on its part stating that the booking amount i.e. Rs.20,000/- has already been refunded to the complainant vide draft No.511413 dated 01.11.2019 (Annexure C-12).

6.               The aforementioned contentions raised by the OPs expressing its inability to arrange the vehicle of a particular colour on the due date is out rightly  liable to be rejected. Admittedly, the vehicle was booked on 08.03.2019 and due date for its delivery was 04.06.2019, which means that there were 88 days available with the OPs to arrange the vehicle. Undoubtedly, it was in the notice of the OPs that the due date of delivery of the vehicle i.e. 04.06.2019 was the birthday of the wife of the complainant as is evident from the e-mail (Annexure C-4) as well as para no.2 of the affidavit(Annexure C-A) and as such, the special emotions of the complainant were attached to the due date i.e. 04.06.2019. Therefore, it was imperative upon the OP No.1 to make extra efforts to procure the vehicle in question from the manufacturer so as to enable it to provide the same to the complainant. However, the OP No.1 failed to show the seriousness in the matter.

7.               The OP No.1 has not adduced any such record which shows that as to how many vehicles, namely, new Mahindra XUV 300 Model W8(O) DSL white colour model came to his showroom between 08.03.2019 to 04.06.2019. It is not the case of the OP No.1 that it requested the concerned manufacturer several times to supply the vehicle i.e. new Mahindra XUV 300 Model W8(O) DSL white Colour to it. It is also not the case of the OP No.1 that there was a shortage or scarcity of the vehicle in question in the market. We are clueless as to how many vehicles, namely, new Mahindra XUV 300 Model W8(O) DSL white Colour were sold by the op No.1 to various consumers. Therefore, the bald assertions of the OP No.1 that he was helpless to arrange the vehicle of the particular colour is not tenable. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

8.               On the other hand, no lapse can be attributed on the part of the complainant as he had also got the vehicle financed to the tune of Rs.8 lakhs from the Haryana State Co-operative Apex Bank Ltd., which had sanctioned the loan to the tune of Rs. 8 lakhs favouring the OP No.1. The e-mails sent by the complainant on 24.05.2019 & 27.05.2019  requesting for the delivery of the vehicle on 04.06.2019, which are available on the record as Annexure C-4 & C-5, failed to evoke any positive response from the OP No.1.  However, ultimately, the OP No.1 expressed its inability in writing on 30.05.2019 vide letter (Annexure C-6) to provide the vehicle i.e. 04 days prior to the due delivery date i.e. 04.06.2019. The complainant, thereafter, cautioned the OP No.1 vide e-mail dated 01.06.2019 (Annexure C-7) that he would try to obtain the vehicle from any other agency as the due date i.e. 04.06.2019 had a special emotional significance for him. At this stage, it is pertinent to mention here that the complainant purchased the desired model i.e. new Mahindra XUV 300 Model W8(O) DSL white Colour from Hisar as is evident from sale letter/certificate dated 04.06.2019 Annexure C-8(colly).

9.               The mental agony and harassment to the complainant did not end with the failure of the OP No.1 to provide the desired vehicle to the complainant on 04.06.2019. The complainant had the legitimate expectation that his booked amount would be refunded by the OP No.1 on or after 04.06.2019 but surprisingly, the OP No.1 neither refunded the booked amount at its own level nor responded to the request made by the complainant vide his e-mail/letter dated 14.06.2019(Annexure C-9(colly)). Ultimately, the complainant was compelled to send the legal notice dated 18.07.2019(Annexure C-10). Thereafter, the OP No.1 refunded the amount of Rs.20,000/- vide Draft No.511413 on 01.11.2019 but it  concealed the fact that the cheque issued by it earlier on 23.09.2019 was bounced by the bank  on account of “insufficient fund” in the account of the OP No.1 which further compounded the mental agony and harassment  of the complainant.

10.             In our considered opinion, there has been high handedness and unfairness on the part of OP No.1 in not refunding the amount of Rs.20,000/- immediately after its failure to deliver the vehicle in question on due date i.e.04.06.2019. The negligent, apathetic, indifferent and lackadaisical attitude on the part of the OP No.1 is well proved. Needless to mention here that no litigant/ consumer approaches the court/Tribunal out of his choice but is compelled to invoke jurisdiction of the Court/ Tribunal only when he gets no positive response pertaining to his complaint from the service provider. In the light of discussion made above, we conclude that there has been lapse and deficiency on the part of OP No.1; hence, the complainant is entitled to relief.

11.             Regarding the liability of OP No.2, it may be mentioned here that he was an employee OP No.1 during the relevant period and now, he has left the services of OP No.1. We find no lapse or deficiency on the part of OP No.2 as he performed his duty during the relevant period as an employee of OP no.1.  

12.             Now, coming to the relief, it is found that the complainant has arranged the desired vehicle from Supreme Mobile Pvt. Ltd, Hisar and thus, he has incurred additional expenses in this regard. Further, the complainant was compelled to undergo the formalities again pertaining to finance of the vehicle from Haryana State Cooperative Apex Bank Ltd.

13.             As a sequel to above discussion, we partly allow the present complaint against OP No.1 with the following directions:-

1. That the OP No.1 shall pay the amount of interest @9% per annum on the booked amount of Rs.20,000/-to the complainant w.e.f. the date of deposit till its receipt of payment vide bank draft no.511413 dated 01.11.2019.
2. That the OP No.1 shall pay a sum of Rs.10,000/- to the complainant on account of mental agony and physical harassment suffered by him as well as the expenses incurred by the complainant in arranging the vehicle from Supreme Mobile Pvt. Ltd, Hisar and undergoing the formalities again pertaining to finance of the vehicle from Haryana State Cooperative Apex, Bank Ltd.
3. That the OP No.1 shall pay a sum of Rs.5,500/- to the complainant as litigation charges.

 

4. Further, in order to meet the ends of justice, the OP no.1 is liable to be burdened, for its failure to provide the vehicle in question on the due date i.e. 04.06.2019, to pay a sum of Rs.10,000/-  to the complainant as punitive damages.

 

14.             The OP No.1 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the awarded sum mentioned at serial no.2 & 4 above of this order shall carry an interest @9% per annum w.e.f. this order till its realization. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OP No.1. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 31.08.2021

 

 

Dr.Sushma Garg           Dr. Pawan Kumar Saini                   Satpal           

         Member                             Member                            President

 

Note: Each and every page of this order has been duly signed by me.

 

                                       Satpal                                   

President