DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Jagdish Marwaha, Advocate, House No.478, Phase 2^nd, Sector 54, Mohali (Punjab).

                                      ---Complainant.

Versus

1.                 New Holland Fiat (India) Private Limited, Formerly Fiat India Private Limited, Regd. Office 303, Central Plaza, 166, C.S.T. Road, Kalina, Santacruz (East), Mumbai 400098 (India) through its Company Secretary duly constituted attorney

2.                 L. Krishnamurthy, Vice President & Company Secretary, The Premier Automobiles Ltd., Corporate & Regd. Office : Lal Bahadur Shastri Marg, Kurla, Mumbai 400070. [Deleted vide order dated 1.6.2011]

3.                 M/s Amardeep Motors Ltd., 25/9, Phase 2, Industrial Area, Chandigarh through its Managing Director.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Complainant in person

                        Sh. Ramesh Kumar Bamal, Adv. for OP No.1

                        OP No.2 deleted

                        OP No.3 exparte.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Jagdish Marwaha has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs :

“(i)     To refund the booking amount of Rs.21,000/- alongwith interest;

(ii)             To pay future interest at the contractual rate of 12% compoundable annually

(iii)           To pay compensation of Rs.1,00,000/-

(iv)           To pay Rs.10,000/- as costs of litigation.

2.                           In brief, the case of the complainant is that in the year 1996, Premier Automobiles Ltd. through its authorised dealer M/s Amardeep Motors Ltd. (opposite party No.3) displayed their Uno car at Aroma Hotel, Sector 22, Chandigarh.  It also opened a counter for booking of the car.  After going through the terms and conditions, the complainant booked the said car vide application No.0328837 and deposited draft dated 15.2.1996 for Rs.21,000/-.  Thereafter, vide letter dated 26.4.1996, the Managing Director of Premier Automobiles Ltd. Mumbai sent the Receipt-cum-Priority Card.  He was given control number 150789 and City Priority Booking No.06/011270.

According to the complainant, Premier Automobiles Ltd. sent a letter dated 17.10.1997 to the complainant seeking his consent for continuation of the booking of the Fiat Uno car. The complainant signed and sent the same but thereafter nothing was heard.  As per the understanding given to the complainant, supply was to start from April 1996 but till October 1997, no offer was received from the opposite parties. Accordingly, the complainant thereafter purchased a Maruti Zen car by taking loan from the Punjab National Bank, Chandigarh. The complainant served a legal notice dated 3.1.2005 (C-4) upon the Managing Director, Premier Automobiles Ltd. In reply thereto dated 24.1.2005 (C-5), he was informed that by a Deed of Assignment, Premier Automobiles Limited has transferred its liabilities with regard to refund of UNO booking money and interest to M/s Ind Auto Ltd. (now known as Fiat India Pvt. Ltd.).  The complainant was further advised to communicate with the said company regarding refund of the booking amount.

Thereafter the complainant vide registered notice dated 13.9.2007 (C-7) requested the Company Secretary of Fiat India Pvt. Ltd. for refund of the amount alongwith interest.  However, to his surprise, the complainant received letter dated 19.1.2010 from New Holland Fiat India Pvt. Ltd. (opposite party No.1) alongwith an indemnity bond.  The complainant was informed that interest was only payable from 15.2.1996 to 31.8.1998 amounting to Rs.7,057/- and he was directed to send the indemnity bond and original receipt cum priority card alongwith the copy of the Permanent Account Number.   According to the complainant vide letter dated 17.2.2010 opposite party No.1 was informed that he had never received any intimation regarding the maturity of the booking of UNO car from Premier Automobile Ltd. or any other company.  According to the complainant, failure on the part of the opposite parties to refund the booking amount alongwith interest, as per offer given at the time of booking, amounts to deficiency in service.

In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                           Opposite party No.1 in its written statement admitted the facts with regard to the booking of the car in question.  It has been denied that the opposite party illegally and unlawfully retained the booking amount of the UNO car.  It has been submitted that despite the first information letter dated 8.9.1998 the complainant neither came forward to take delivery of the vehicle nor asked for refund of the booking amount, within the limitation period.  However, as a gesture of goodwil the opposite party agreed to refund the amount alongwith interest which was applicable as per the terms and conditions of the booking w.e.f. 15.2.1996 to 31.8.1998 subject to completing requisite formalities by the complainant, which he failed to do so.  It has been pleaded that interest is payable only upto the date of first intimation letter of the preceding month in which the booking is going to mature or upto the date of cancellation whichever is earlier after giving 60 days time.

                   Some preliminary objections regarding limitation and jurisdiction of this Forum have also been taken. 

                   According to the opposite party, there is no deficiency in service on its part and the complaint deserves dismissal.

4.                           On 1.6.2011, Counsel for the complainant gave statement that he does not press his complaint against opposite party No.2 and prayed that his name be deleted.  Accordingly, vide order of even date, name of opposite party No.2 was deleted from the array of parties. 

5.                           Opposite party No.3 did not appear despite publication in the newspaper.  Hence it was proceeded against exparte.

6.                           We have heard the complainant in person, learned counsel for opposite party No.1 and have gone through the documents on record.

7.                           According to the complainant, as he did not receive any offer for delivery of the car for a long time, so he sent a notice dated 3.1.2005 calling upon the Managing Director of Premier Automobiles Ltd. to refund the amount.  However, he received a letter dated 24.1.2005 intimating him that by a Deed of Assignment, Premier Automobiles Limited has transferred its liabilities with regard to refund of UNO booking money and interest to M/s Ind Auto Ltd. (now known as Fiat India Pvt. Ltd.) and the complainant was advised to communicate with the said company for refund.  In these circumstances, the complainant sent registered notices dated 13.9.2007 and 30.11.2009/9.1.2010 to the said company.  On 19.1.2010 he received a letter from New Holland Fiat (India) Private Limited alongwith an indemnity bond.  In the said letter the opposite party offered interest annually from the period of 15.2.1996 to 31.8.1998.  According to the complainant, he was entitled to interest @ 12% per annum compounded annually in view of clause 12(a) of the ‘Terms, Conditions and Instructions to Book Uno Car’ attached with the application form as the said interest was offered to him at the time of booking.  Clause 12 reads as under :-

“12.(a)   Interest would be calculated from the last date of booking up to the last date of the preceding month in which priority is likely to mature as per the first intimation letter from PAL or up to the date of cancellation whichever is earlier.  Rate of interest will be @ 9% per annum compounded annually if the period of deposit is for more than one year but less than two years, and @ 12% per annum compounded annually if the period of deposit is for more than two years.

(b)       However, no interest will be paid if total period of deposit calculated as per 12(a) above is less than 365 days.”

8.                           On the other hand, the case of the opposite party is that vide letter dated 8.9.1998, the complainant was asked to take the delivery of the car but he did not come forward.  In these circumstances, the opposite party is liable to pay interest upto 8.9.1998 only.  According to the opposite party the offer was in accordance with the ‘Terms, Conditions and Instructions to Book Uno Car’ and there is no deficiency in service on their part.

9.                           It is pertinent to mention here that the letter dated 8.9.1998 is a general letter to all the persons who had booked the car.  There is no evidence on record to prove that the said letter was ever dispatched to the complainant.  On the other hand, the complainant has filed an affidavit to the effect that he did not receive any such letter. As there is no documentary evidence on record to prove the despatch of the said letter to the complainant, the bald assertion of the opposite party to this effect cannot be accepted.  In these circumstances, from the material on record, it is not proved that any offer for delivery of the car was made to the complainant on 8.9.1998.

10.                       Faced with this situation, it was argued vehemently by the ld. Counsel for the opposite party that this Forum has no territorial jurisdiction to decide this complaint.  Our attention has been drawn to clause 29 of the ‘Terms, Conditions and Instructions to Book Uno Car’ which reads as under :-

“29.    In case of any dispute, the same will be subject to the exclusive jurisdiction of Courts in Bombay.”

Relying upon the said clause, it was argued vehemently by the ld. Counsel that the courts at Bombay have exclusive jurisdiction to entertain and decide this dispute.  In support of his contention, the ld. Counsel has cited the case of Balaji Coke Industry Pvt. Ltd. Vs. M/s Maa Bhagwati Coke (Guj) Pvt. Ltd.-2009 (4) RCR (Civil) 554. In the above said case the Hon’ble Supreme Court has held as under :-

                             “Where parties had voluntarily agreed to subject to jurisdiction of Kolkata Courts although Gujarat Courts also had the jurisdiction, such agreement was valid – one party still choosing to approach Court in Gujarat, in violation of such agreement not proper – Proceedings directed to be transferred to Calcutta High Court.”

To our mind, the ratio of the case cited above is not applicable to the facts and circumstances of this case.  In the case cited above, the parties had written agreement whereby they had agreed by mutual consent subjecting themselves to the Courts at a particular place.  However, in the present case, there is no such agreement executed between the parties.  The ‘Terms, Conditions and Instructions to Book Uno Car’ are not signed by the complainant. So, this document cannot be treated as an agreement between the parties.  In these circumstances, the ratio of the above cited case is not applicable to the facts and circumstances of the present case.  As the car was booked at Chandigarh, so a part of cause of action has accrued at Chandigarh. Therefore, this Forum has jurisdiction to entertain and decide this complaint.

11.                       Faced with this situation, it was argued by the ld. Counsel for the opposite party that the complaint is barred by limitation.  It was argued by the ld Counsel that the amount was deposited on 15.2.1996 and the present complaint was filed on 22.11.2010.  So, the present complaint is barred by limitation.  To our mind, this argument of the ld. Counsel is without any force.  The amount is still lying deposited with the opposite party and the opposite party had offered to pay interest @ 12% per annum computed annually in case the amount remains deposited with the company for a period of more than two years. No time limit has been specified in the ‘Terms, Conditions and Instructions to Book Uno Car’ for withdrawal of the amount. Rather from the letter 17.10.1997 it is apparent that the opposite party had sought the consent of the complainant for continuation of the booking and the complainant had given the consent, meaning thereby the opposite party had agreed to retain the amount till the offer for delivery of the car is made or the booking is cancelled. In the present case, neither the opposite party offered to deliver the car nor the booking was ever cancelled.  Therefore, the cause of action is still continuing.  Hence, this complaint is within limitation.

12.                       On 18.9.2012, the complainant handed over the original Receipt Cum Priority Card of the car and a photocopy of his PAN card to the ld. Counsel for opposite party No.1, photocopies of which were also retained on record.  Ld. Counsel for opposite party No.1 also gave a statement acknowledging the receipt of the aforesaid documents. 

13.                       Admittedly neither the car has been delivered to the complainant nor has the amount been refunded to him so far.  So the complainant is entitled to the refund of the said amount alongwith interest as mentioned in clause 12 (a) reproduced above.  Failure on the part of the opposite parties to refund the amount alongwith interest amounts to deficiency in service.

14.                       In view of the above discussion, the present complaint is partly allowed qua opposite parties No.1 & 3 only and they are directed as under:-

(i)                To refund the amount of Rs.21,000/- with interest @ 12% per annum, compounded annually, w.e.f. 15.2.1996  in terms of clause 12 (a) of the ‘Terms, Conditions and Instructions to Book Uno Car’.

(ii)             To pay Rs.25,000/- as compensation for mental agony and harassment suffered by the complainant.

(iii)           To pay Rs.7,000/- as costs of litigation.

15.                       This order be complied with by opposite parties No.1 & 3, within 45 days from the date of receipt of its certified copy, failing which the amount of Rs.21,000/- shall carry interest @18% per annum, instead of 12%, to be compounded annually, from the date of deposit and the amount of Rs.25,000/- shall carry interest @ 18% per annum from the date of this order, till actual payment, besides payment of litigation costs.

16.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

28.09.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER