Date : 31/01/2013
Per Mr.K.B.Gawali, Hon`ble Member.
1. The appellants who are the original opponents Nos. 1 and 2 have preferred this appeal challenging the judgment and order dated 09/06/2008 passed by the Dist. Forum, Ahmednagar in CC.No. 107/2008 whereby the appellants have been held liable to pay compensation. The respondent herein is the original complainant.
2. Briefly stated the facts of the case are that the respondent herein had booked a Swift diesel Maruti car of LDI model on 19/12/2007 with the appellant No. 1 who is the authorised sub dealer who was authorised to get the booking of the car and deliver the same through the appellant No. 2, the authorised dealer of the Maruti Car. That, at the time of booking of the said car he had paid Rs 1,47,220/- as the booking amount. That, at the time of booking the appellant No. 1 had given the quotation of the said car as issued by the appellant No. 2 in which the price of the said car was shown at Rs 4,66,907/-. That, the appellant No. 1 had assured the respondent to deliver the car within a period of 15 to 20 days. That, however even after lapse of one month the delivery of the car was not given. Hence, by his letter dated 25/01/2008 addressed to the appellant No. 2. The respondent demanded the refund of booking amount of Rs 1,47,220/- with interest and also made a complaint to the Divisional Sales Manager. However, there was no response from him and finally on 08/02/2007 the appellant No. 2 delivered the said car to him through the appellant No. 1. It was contended that the appellants charged him an additional amount of Rs 5717/- on the plea that there was a rise in the price of the car. It was contended by the respondent/complainant that only because there was a delay in the delivery of the car he had to bear the additional burden of Rs 5717/-. He further contended that even after the entire payment was made on 21/01/2008, he was not issued the original papers of the car and hence he had to pay the penalty of Rs 662/- for the registration of the said vehicle with the Regional Transport Officer. He therefore filed the complaint before the Dist. Forum seeking direction to the appellant to pay him interest on the booking amount and also refund the excess amount of Rs 5717/- along with Rs 662/- which he had to pay to the R.T.O. and also sought direction for payment of Rs 15,000/- towards mental agony and Rs 10,000/- towards cost of the complaint.
3. Both the appellants appeared before the Dist. Forum and resisted the claim. They had admitted to have issue the quotation of the said Maruti Swift Car on 16/12/2007 and that respondent had booked the said car on the same date. The other claim of the respondent regarding delay in delivery of the said car and also charging of excess price of Rs 5717/- have been denied. It was contended by the appellant that on the quotation it self it was clarified that “ the price prevailing at the time of invoice will be applicable, delivery subject to availability of vehicle and colour”. It was also contended that the said model of the Swift diesel LDI car had average waiting period of 2 month from the date of booking till the delivery and the said fact was also informed to the respondent on the date of booking.
4. It was further contended that, the price of the said car as prevailing on the date of the delivery of the said car, was Rs 4,72,624/- and the same was recovered from the respondent. Hence, it was contended that no excess amount was recovered from the respondent. As regards the penal charges of Rs 662/- as charged by the RTO for the delayed registration, it was submitted that the respondent had paid the balance amount of Rs 3,50,000/- 21/02/2008 although the delivery was given on 08/02/2008 and therefore unless the entire amount of the car was paid by the respondent, the original papers could not be given to him. Hence, the appellants were not responsible for the said penal charges but the respondent himself is responsible as he delayed the final payment due to which original papers could not be supplied to him prior to 21/02/2008. Thus both the appellant’s had denied the claim of the complainant and contended that the complaint filed by the respondent being false and baseless be dismissed.
5. The Dist. Forum after going through the papers and hearing the parties partly allowed the complaint and directed the appellants to refund excess amount Rs 5717/- as recovered from the respondent along with interest @ 12 % p.a. from 31/08/2008 and also to refund Rs 662/- as recovered by the RTO towards penal charges @ 12 % p.a. from 29/02/2008. In addition it was also directed to pay Rs 1000/- as mental agony and Rs 500/- as cost of the complaint.
6. Aggrieved and dissatisfied with the said judgment and order the present appeal is filed in this Commission by the original opponent. This appeal was heard finally on 16/01/2013. Adv.Shri. Jayant Chitnis was present for the appellant, whereas Adv.Shri. K.Y.Jarhad was present for the respondent. We heard both the counsels at length and the appeal was reserved for judgment and order.
7. The learned counsel Shri. Jayant Chitnis for the appellant submitted that on the quotation given to the respondent, it was made clear that the price of the vehicle prevailing on the date of making invoice will be applicable. Secondly, it was also made clear to the respondent that the Swift diesel LDI Model had a waiting period and would take at least 2 months period for delivery. Hence, there was no delay in giving the delivery of the said car and also no excess amount of Rs 5717/- was recovered from the respondent as only the price of the said vehicle which was prevailing on the date of delivery was recovered. He further contended that even for the penal charges of Rs 662/- the respondent himself is responsible because the final balance payment of Rs 3,50,000/- was made by him on 21/02/2008 and after the receiving the same amount he was immediately handedover the original papers of the vehicle. Hence, he submitted that there was no deficiency in service or unfair trade practice on the part of the appellant. In support of his above said contention he relied on the ratio laid down by the Hon’ble National Commission in the case of “Maruti Udyot Ltd - V/s- Ravinder Raj & Anr in Revision Petition No 2974/2005 decided on 7th august 2008”. He submitted that the case under citation the Hon’ble National Commission has held that the price of car prevailing on the date of billing shall prevail upon and hence the allegation of the respondent that excess amount of Rs 5717/- was recovered by him, can not be accepted. He therefore contended that all these aspects were put forward before the Dist. Forum. However, it has neglected the same and erroneously passed the impugned judgment and order which be set aside.
8. On the other hand the learned counsel Shri.K.Y.Jarhad present for the respondent submitted that at the time of booking of the said car the respondent was assured to deliver the car within period of 15 to 20 days. However, the appellant took about 2 month period for the delivery of the said car and therefore due to delay in the delivery of the car made by the appellant there was a rise in the prices and the respondent had to pay excess amount of Rs 5717/-. He also contended that the original case papers of the vehicle were not handedover to the respondent at the time of delivery of the vehicle and therefore for registration of the said vehicle the respondent had to pay penal charges of Rs 662/- with the RTO for which appellants are responsible. He thus submitted that the judgment and order passed by the Dist. Forum is quite just and proper and hence the same be confirmed.
9. We have carefully considered the material placed before us as well as oral arguments made by the learned counsel for both the parties. There are two major questions have arises for our decision (i) Whether the deficiency and/or unfair trade practice is provided against the appellant and (ii) Whether the judgment and order passed by the Dist. Forum calls for our intervention.
10. The allegation about deficiency in service and unfair trade practice as made by the respondent/complainant is based on two grounds. One is the delay committed by the appellants in delivery of the vehicle due to which there was a escellation in price of the said vehicle from Rs 4,66,960/- to Rs 4,72,924/- and therefore he was required to pay excess amount of Rs 5717/-. At the same time he had to deprive of the interest on the booking amount of Rs 1,47,220/- which was lying with the appellant from 19/12/2007 to 08/02/2008 i.e. for about two month. Secondly there was also delay of about 15 days made by the appellant in handing over the original documents of the vehicle due to which he had to pay penal charges of Rs 662/- for getting the registration of the said car with RTO.
11. As regarding the delay caused in delivery of the vehicle, it is revealed that, the respondent himself has admitted in his complaint that at the time of booking he was informed by the appellant that about 15 to 20 days period would require for making the delivery of the car. The appellants however, have contended that the said car of Swift diesel of LDI model had waiting period of about 2 months and same was informed about the respondent at the time of booking. The actual period taken for delivery is 1 month and 10 days ( 16/12/2007 to 08/02/2008 ). As there was a waiting period for this particular model of car , the waiting period may verify from case to case depending on the availability of the vehicles. The relevant point is that the fact of waiting period was informed to the respondent and hence appellant can not be held responsible for the said delay. Therefore, the claim of the interest on the booking amount of Rs 1,42,220/- is not justifiable.
12. As regards the excess price, it is clear from the terms and condition given on the quotation at Sr. No. 1 that “ Price prevailing at the time of invoice will be applicable delivery, subject to availability of the vehicle and colour”. The quotation is dated 16/12/2007 as per which the price of the said car is shown at Rs 4,66,907/- whereas “ Invoice” is dated 31/01/2008 as per which the price is given at Rs 4,72,624/-. There are 2 price list on record, one is dated 18/04/2007 which gives price of said car at Rs 4,66,907/- and the other list gives the price at Rs 4,72,624/- with effect from 08/01/2008. It is thus clear that at the time of invoice i.e. on 31/01/2008 the prevailing price of the said model of the car was at Rs 4,72,624/- and hence as per the terms of the quotation the respondent was required to pay the same. Hence, the respondent’s claim about excess recovery of Rs 5717/- is not acceptable.
13. The Dist. Forum has referred the message dated 0s7/01/2008 and has held that the said message was in respect of new model of Swift diesel car coming in to market from 09/01/2008. It is further observed by the Forum that in the said message it was made it clear that “There has been no charge in the Ex-showroom prices of the existing SWIFT” and held that there was no evidence showing to have given the respondent new model car. Hence, the appellant had no right to charge the price Rs 4,72,624/-. In fact, the perusal of the said message on 07/01/2008 shows that the price of the “new model of Swift LDI car at Rs 4,79,110/- and not Rs 4,72,724/-. It is thus reveals that the Forum below has made wrong observations and has wrongly concluded that the price of Rs 4,72,724/- was of new model. In fact as mentioned above the said price was of Rs 4,72,724/- which in existence since 08/01/2008 and as the delivery of the car was made to the respondent on 08/02/2008 as per the invoice dated 31/01/2008, the respondent was required to pay the price of Rs 4,72,724/-. Hence, it can not be said that the appellant has recovered excess amount of Rs 5717/- from the respondent.
14. The second allegation of the respondent about the delay in giving documents of the vehicle also appears tobe baseless. The respondent has also not given date wise details about the total price paid to the appellant. In his complaint he has mentioned that he had paid booking amount of Rs 1,42,220/- on 16/12/2007, but there is no receipt of the same produced on record. As per the written version filed by the appellant No. 2 the respondent is said to have paid the price of the vehicle on different dates by instalments and the balance amount of Rs 3,50,000/- was paid on 21/02/2008. Accordingly after receiving the balance amount as on 21/02/2008 the appellants have given the original papers to the respondent and the vehicle came to be registered on 29/02/2008. We do not therefore, find any fault on the part of the appellant in with holding the original papers as there was outstanding amount against the respondent which was cleared by him on 21/02/2008. Hence, the penal charges of Rs 662/- can be attributed to the delay made by the respondent himself in making the final payment of the car.
15. In view of the aforesaid facts and observation we therefore conclude that the Forum below has totally misconceived the facts on record and has erroneously held that appellant to have provided deficiency in service and have indulged in unfair trade practice. The ratio laid down by the Hon’ble National Commission in the above said citation as relied on the appellant counsel is quite applicable in the present case. In the circumstances, we are therefore inclined to allow the appeal by dismissing the impugned judgment and order.
O R D E R
1. Appeal is allowed.
2. The impugned judgment and order passed by the Dist. Forum is hereby quashed and set aside.
3. The complaint stands dismissed.
4. No order as to cost.
5. Copies of the judgment and order be sent to both the parties.
Pronounced on 31th January
