Complainant by filing this complaint has submitted that he intended to purchase a car over special specification and booked a car POLO Comfortline (Petrol) with colour blue having fixed price of Rs.5,11,895/- from the op on 28.11.2011 and as per booking contract the sales consultant of the op Mr. K.P. Singh agreed to provide free accessories worth Rs.11,500/- along with new car to be sold by the op to the complainant.  Thereafter the complainant asked the op to deliver the new car by December 2011, because he urgently required the new car for himself and his family.  The op committed in writing to deliver the new car within January 2012 and thereafter complainant had been advised to pay sum of Rs.50,000/- as booking amount and said advance was duly acknowledged and received by the op by issuing the said receipt and op also offered corporate discount of Rs.21,000/- to the complainant which will be evident from the sales contract form dated 28.11.2011.

          But suddenly complainant received a telephone call from one Mr. Venkatesh on 21.01.2012 as representative of the dealer that car manufactured in the year 2011 were over and discounts as promised by the op cannot be offered to the complainant.  But such a statement by Venkatesh was complete deviation from the offer made by Mr. K.P. Singh in the sales contract form.

          As per sales contract op agreed to sell car manufactured of the year 2011 fixing delivery within January, 2012 and on the basis of such promise made by the op to the complainant complainant had agreed to purchase a new car and paid advance as asked by the op and if at that time of booking op used to express his inability to deliver new car manufactured in the year, 2011 within January, 2012 along with the free accessories and discount as promised and offered then the complainant would not have to pay the advance and agreed to purchase the new car from the op.

          Fact remains before expiry of January,2012 complainant repeatedly contacted with the op over telephone and by E-mail to deliver the new car as agreed upon but the op evaded without giving any proper reply to the requests and reminders made by the complainant.  Though op being an international company of high repute in the auto market did not give any positive reply to overcome the situation and catering efficient service to the complainant.

          After expiry of January, 2012 when op neither delivered the new car nor refunded the advance, the complainant was compelled to send a notice on 04.02.2012 through his Advocate to immediately deliver the new car along with the free accessories worth Rs.11,500/- with the discount offered by the op.  But op sat tight lipped over the matter and failed to perform its part of the contract and op still holding the advance paid by the complainant and thus adopted unfair trade practice and also harassed the complainant for which the complainant having no other alternative was compelled to purchase a Maruti car worth Rs.4,31,858/- and in the circumstances for harassment, mental agony and for detention of the said amount complainant has filed this complaint for proper redressal and also for compensation etc.

          On the contrary op by filing written statement submitted that no doubt the op’s representative and the complainant executed a Sales Contract for the sale of the said vehicle by the op of a Volkswagen Polo Petrol Motor Vehicle of the variant Comfort Line of E Blue colour which specifications were chosen by the complainant.

          On or about January, 2012 op duly informed the complainant about non-availability of the said motor vehicle in the chosen colour and had also informed the complainant that the said vehicle could possibly be dispatched in or about January, 2012.  After such motor vehicle would be dispatched from the manufacturer’s factory at Pune, Maharashtra, but complainant requested the op’s representative to try to get the said motor vehicle in the said colour at the earliest and a possibly by December, 2011.  But fact remains that the said colour of motor car was not available within January, 2012 and accordingly the complainant was informed duly by the op.  So complainant at that time was entitled to cancel the said booking and to obtain refund of the sum of Rs.50,000/- that was deposited by the complainant but that was not done by the complainant which is best known to him.  Thereafter the complainant sent a notice as alleged. 

          Practically op has no fault and op never withheld or has not withheld the said advance money and the op always is/was and still is ready and willing to return it and complainant is therefore not entitled to relief and the entire allegation of the complainant is false and for which the complaint should be dismissed.

                                               Decision with reasons

          In the present case after thorough study of the complaint and written version and also considering the materials on record including the arguments of Ld. Lawyers of both the parties, we have gathered that it is undisputed fact that complainant booked a car of Comfort Line of E Blue colour of Model POLO Comfortline (Petrol) and booking amount was paid on 28.11.2011 to the op and in the said booking slip (sales contract form) it is specifically mentioned that bonus amount of Rs.15,000/- and free accessories of Rs.11,500/- shall be given and total valuation of the said car was fixed of Rs.5,11,895/- and op’s commitment was that delivery shall be made within January, 2012 to customer but customer’s preference was by December, 2011.

          From the terms and conditions of the said Sales Contract Form (Booking) it is found that there is specific provision in the terms and conditions against Clause 3 with the specification of the vehicle may be subject to orientation without prior intimation to the customer and a dealer is not liable to supply the vehicle what specification booking if the same has been discontinued or altered after the date of booking.

          Now after considering the defence of the op it is found that op has tried to convince that as per clause-3 he acted because the manufacturer failed to supply the vehicle of the specification booked by the complainant on the ground such sort of production had been discontinued and no doubt that was reported to the complainant.   When that is the fact and when it is also the fact that there is such a condition then both the parties are guided by the said conditions and if we are relying upon the defence of the op and also the terms and conditions of the booking contract (Sales Contract Form) it is proved that op had no scope to supply such a car as the manufacturer did not supply it and did not manufacture such a car and practically for which op was unable to supply the said car.  Then no doubt after considering the above situation, we are convinced to hold that op failed to comply terms for delivery of the car for manufacturer’s inability to supply such car.  But in that case forthwith op ought to have sent a cheque of Rs.50,000/- to the complainant when the booking was not cancelled by the complainant and in fact op only to charge cancellation charge of Rs.25,000/- against the booking amount always waited for complainant’s prayer for cancellation.  But complainant did not pray for cancellation, on the ground that when it was inability on the part of the op, then question of cancellation of booking cannot be done by the complainant.

          After proper evaluation of the entire fact and the defence of the op, we have gathered that op is an dishonest business man and tried to get the cancellation charge of booking by the complainant.  So, that he may take cancellation charges of Rs.25,000/- or Rs.5,000/- out of Rs.50,000/- as per rule of booking amount in case of cancellation Clause of the term.  So, it is clear that this op adopted unfair trade practice and even after knowing about the fact that op had no scope to deliver such car by January, 2012 and that was reported to the complainant but then and there they did not send Rs.50,000/- and in such a manner all the dealers are collecting huge money as and when the persons who booked for a new car has cancelled the booking and that is the practice of the dealer and in the present case, practically the op was at fault and as per contract he failed to deliver the car for which there was no scope on the part of the op to charge any cancellation out of the deposited amount and for which op was waiting for cancellation letter from the complainant so that he may take Rs.25,000/- or Rs.5,000/- as per Clause of terms and contract.  So, the op has assessed that he is willing to handover Rs.50,000/- at this stage is nothing but a belated expression in view of the fact that he has realized that if he discloses then he shall have to pay penalty in the Forum which shall be imposed by the Forum.

          But truth is that op has harassed the complainant no doubt.  Op did not discharge his liability as per terms and conditions of the Sales Contract Form.  Fact remains if there was chance of getting Rs.15,000/- as bonus and accessories.  But only for the op’s fault practically complainant did not get any such benefit and no doubt that is a loss to the complainant and with high hope complainant entered into an agreement with the op and op agreed to supply.  Invariably complainant is not only entitled to get Rs.50,000/- but also compensation for adopting unfair trade practice by the op and another factor is that the op brought some allegations against the complainant but all the allegations of the complainant is proved false allegation and it was made with an intention to save his own skin as merchant but actually we have gathered that the whole conduct of the op is unmerchantable which is no doubt unfair trade practice in the eye of law and for which op should be imposed penalty also.

          In the result, the complaint succeeds.

          Hence, it is

                                                 ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against op.

          Op is directed to pay a sum of Rs.50,000/- at once to the complainant and also a compensation of Rs.20,000/- for adopting unfair trade practice and for enjoying the said money and its interest since 28.11.2011 and fact remains in the mean time for two years op has invested that amount for his business, but complainant has failed to get any interest over the same amount.  Moreover, op for some ill purpose did not refund it as he had already invested it in his business.

          Further, for adopting unfair trade practice by the op, op shall have to pay a sum of Rs.10,000/- as punitive damages to the State Consumer Welfare Fund for adopting unfair trade practice and for which the same is imposed to check the unmerchantable conduct of the op in future with the customers.

          Op is directed to comply the order very strictly by implementing the same in toto in true spirit of this order by paying the complainant decretal amount including cost etc that is total Rs.80,000/- by issuing bankers cheque of Demand Draft in the name of Soumitra Chatterjee within one month from the date of this order failing which for each day’s delay and for non compliance of this Forum’s order a penal interest @ Rs.300/- per day shall be assessed till full satisfaction of the decree and if it is collected it shall be deposited to State Consumer Welfare Fund and even if it is found the op is unwilling to comply the order in that case the penal proceeding shall be started against the op and even warrant of arrest shall be issued for implementation of this order against the op.