Haryana

Karnal

CC/90/2018

Chirag Garg - Complainant(s)

Versus

Rahul Karnal Hyundai - Opp.Party(s)

Gurpal Singh Bhatti

22 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                        Complaint No.90 of 2018

                                                         Date of instt. 12.04.2018

                                                         Date of decision:22.07.2019

 

Chirag Garg son of Shri Rakesh Garg, resident of House no.1601, Sector-4, Urban Estate Karnal.

…….Complainant 

                                        Versus

 

1. Rahul, Karnal Hyundai near Tau Devi Lal Chowk, G.T. Road Karnal, through Manager.

2.  Hyundai Motors India Ltd. Corporate office, 2^nd, 5^th & 6^th floor Co-operate-1 (Bani Building), plot no.5 Commercial Centre, Jasola, New Delhi-110025.

3.   Reshu Jain, Senior Executive Hyundai, 1^st floor, Unit no.C-113-114 office Suites Elante, Plot no.178-178A Industrial & Business Park, Phase-1 Chandigarh-160002.

…..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act.          

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary……Member

 

 Present   Shri Gurpal Singh Bhatia Advocate for complainant.

                  Shri Deepak Jain Advocate for OP no.1.

                   Shri Kawinder Tyagi Advocate for OPs no.2 and 3.

                  

                   (Jaswant Singh President)

ORDER:                    

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that on 4.9.2017 the complainant booked a new vehicle i.e. Car Creta Sx 1.6 Diesel in his own name and also paid Rs.40,000/- through cheque no.006867 dated 4.9.2017 drawn at ICICI Bank, Karnal from the account of his uncle, namely Amit Garg, as booking amount. The complainant and his family booked the abovesaid car to gift it to his Aunti (BUA), namely Usha Gupta wife of Raj Kumar Gupta, resident of near Guga Mari, Behind HP Gas Godown, Radaur District Yamunanagar on the ceremony of Grah-Pravesh of her newly built home which ceremony was to take place on 21.9.2017 in evening time. On 21.09.2017 the OP no.1 informed the complainant telephonically that the vehicle is ready for delivery and the complainant may take the delivery of the vehicle after making the payment. After receiving the telephone call from the OP no.1, the complainant alongwith his family members reached to OP no.1, where a Salesgirl, namely Bhumika met them, who fixed a meeting of the complainant and his family members with Gagan Singh, General Manager of OP no.1 for settlement of the terms and conditions and mode of payment and the value of the car was fixed at Rs.13,67,791/-. In the said meeting the following terms and conditions were settled, which are as under:-

i)    Rs.6,60,000/- was to be paid to the OP no.1 through RTGS from account of the complainant.

ii)   Rs.5,97,000/- would be paid through cheque.

iii)   and rest of the payment was to be paid in cash at the spot after adjusting the booking amount of Rs.40,000/-.

2.             On 21.09.2017 RTGS could not possible being bank time over because of settling the terms and conditions but on the same day Mr. Amit Garg, uncle of the complainant issued a cheque of Rs.60,000/- drawn at ICICI Bank, Karnal and assured that the rest of the payment would be made on tomorrow and also assured that the delivery of the car will also be taken on tomorrow i.e.22.09.2017. On 22.09.2017, the complainant got transferred an amount of Rs.6,60,000/- in favour of the OP no.1 from his bank account no.917010037026808 of Axis Bank, Branch at Gurugram. Thereafter, the complainant and his family members approached the OP no.1 alongwith cash amount and cheque for the balance payment for taking delivery of the said vehicle. On 22.09.2017 Mr. Gagandeep, General Manager of the OP no.1, refused to accept the payment through cheque and pressurized demanded the full payment in cash and backed out the abovesaid terms and conditions settled in between OP no.1 and the complainant, due to which the complainant and his family members shocked and faced huge trouble and difficulties. But anyhow being reputed person of the locality and due to goodwill of the family, the complainant arranged the full payment in cash, so that the vehicle may be given in gift at the fixed time. The OP no.1 accepted the cash payment and these moments/whole proceedings are captured in the CCTV footage of the OP no.1. But after acceptance of the whole cash payment, the General Manager of OP no.1 refused to make delivery of the vehicle to the complainant and his family members and also misbehaved with his family members. The OP no.1 flatly refused to make delivery of the car in question and returned the payment to the complainant except the booking amount of Rs.40,000/- and also deducted Rs.50,000/- under the grab of some illegal penalties. Thereafter, the complainant came to know that the OP no.1 have sold the said car to some other person at the higher price and cheated the complainant and his family members due to which the complainant and his family members felt humiliation. The complainant also got served a legal notice dated 18.11.2017 upon the OPs in this regard but it also did not yield any result. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

3.             Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to maintainability; locus standi; cause of action; complainant is estopped from filing the present complaint by his own act and conduct and concealment of true and material facts. On merits, it is pleaded that at the time of booking, complainant requested the OPs to supply red colour vehicle and on this count, it was made clear to complainant that in case, he fails to take the delivery of red colour vehicle, in that eventuality, the booking amount shall stand forfeited and no claim for refund of the amount would be entertained and this fact is clearly mentioned on the Commitment Check List no.6323 dated 4.9.2017 and complainant has admitted the same and put his signature on the Commitment Check List. As such complainant was bound to take the delivery of the red colour vehicle because requisition to manufacturer for the supply of red colour vehicle was sent on the request of complainant. On receipt of delivery of the red colour vehicle from the supplier, complainant was immediately informed to take the delivery. The complainant paid a sum of Rs.6,60,000/- through RTGS and complainant issued a cheque of Rs.5,97,000/- and asked OPs to take the balance amount of Rs.60,000/- in cash. The OPs requested the complainant that they cannot take the amount in cash. The OPs requested the complainant to take the delivery of the vehicle after the encashment of the cheque, but the complainant was adamant to take the delivery of the vehicle without encashment of the cheque and the complainant did not agree to the proposal of OPs and complainant became furious and quarreled with the OPs. The vehicle was lying parked with the OPs and there was no buyer of the particular colour vehicle. In this way, the OPs suffered a huge monetary loss for not taking the delivery of vehicle by the complainant. When the complainant refused to take the delivery of vehicle, the OPs refunded a sum of Rs.6,60,000/- to the complainant through RTGS and this fact is very clear in the statement of account. After waiting a long time, OPs requested some other dealer for the purchase of vehicle, but firstly he was not ready to purchase the said vehicle and ultimately he agrees to purchase the said vehicle at a lesser price. The OPs were compelled to sell the said vehicle at lesser price to some other dealer, as there was no other buyer of the red colour vehicle. As such, OPs have suffered a huge financial loss on account of misdeed of the complainant. There is no deficiency in service and unfair trade practice on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OPs no.2 and 3 filed its joint written version stating therein that the complainant impleaded Ms.Reshu Jain, as a OP no.3 to the complaint with ulterior motive specifically in view of the fact that neither any allegations is leveled against the said employee of HMIL nor is there any cause of action against the said employee in their personal capacity. It is further stated that OPs no.2 and 3 are neither necessary parties nor proper parties in the present complaint. No allegation has been made against the HMIL but only the employee of HMIL is being dragged into the present complaint. It is further pleaded that the cars are purchased by the concerned dealers from OPs against payment and thereafter, the purchased cars are sold by the dealer to the customers under sale invoice. The ‘title of the Hyundai vehicle’ passes on to the concerned dealer, the moment it is put on a common carrier. As a consequence, OPs no.2 and 3 are not liable where no manufacturing defect is proved since aspects of sale/retail or services are not attributable to the OPs no.2 and 3. It is further pleaded that OPs no.2 and 3 can only be held liable for any violation of its warranty obligation, which is not the case in the present complaint. It is further pleaded that OPs no.2 and 3 being manufacturer of car has no role in retail services provided to the car. It is further pleaded that there is no privity qua HMIL and complainant and the dispute is purely inter se dealer and complainant. It is admitted fact that no amount whatsoever was ever paid by the complainant to OPs no.2 and 3 and hence the question of compensation/replacement of the vehicle by OPs no.2 and 3 does not arise at all. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C10 and closed the evidence on 20.12.2018.

6.             On the other hand, OP no.1 tendered into evidence affidavit of Sachin Sharma Ex.RW1/A and documents document Ex.R1. OPs no.2 and 3 tendered into evidence affidavit of Varun Panta Ex.RW2/A and documents Ex.R1 and closed their evidence on 5.7.2019.

7.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             The case of the complainant is that on 4.9.2017 the complainant booked a new vehicle i.e. Car Creta Sx 1.6 Diesel in his own name and also paid Rs.40,000/- through cheque no.006867 dated 4.9.2017 drawn at ICICI Bank, Karnal from the account of his uncle, namely Amit Garg, as booking amount. The complainant and his family booked the abovesaid car to gift it to his Aunti (BUA), namely Usha Gupta of her newly built home which ceremony was to take place on 21.9.2017 in evening time. On 21.09.2017 the OP no.1 informed the complainant telephonically that the vehicle is ready for delivery and the complainant may take the delivery of the vehicle after making the payment. After receiving the telephone call from the OP no.1, the complainant alongwith his family members reached to OP no.1 for settlement of the terms and conditions and mode of payment and the value of the car was fixed at Rs.13,67,791/-. The mode of payment was settled as  Rs.6,60,000/- was to be paid to the OP no.1 through RTGS, Rs.5,97,000/- would be paid through cheque and rest of the payment was to be paid in cash at the spot after adjusting the booking amount of Rs.40,000/-. On 21.09.2017 RTGS could not possible being bank time over. The uncle of the complainant issued a cheque of Rs.60,000/- drawn at ICICI Bank, Karnal and assured that the rest of the payment would be made on tomorrow and also assured that the delivery of the car will also be taken on tomorrow i.e.22.09.2017. On 22.09.2017, the complainant got transferred an amount of Rs.6,60,000/- in favour of the OP no.1 from his bank account no.917010037026808 of Axis Bank, Branch at Gurugram. Thereafter, the complainant and his family members approached the OP no.1 alongwith cash amount and cheque for the balance payment for taking delivery of the said vehicle. On 22.09.2017 Mr. Gagandeep, General Manager of the OP no.1, refused to accept the payment through cheque and pressurized the complainant by demanding the full payment in cash. The complainant arranged the full payment in cash, so that the vehicle may be given in gift at the fixed time. The OP no.1 accepted the cash payment but after acceptance of the whole cash payment, the General Manager of OP no.1 refused to make delivery of the vehicle to the complainant and his family members and also misbehaved with his family members. The OP no.1 flatly refused to make delivery of the car in question and returned the payment to the complainant except the booking amount of Rs.40,000/- and also deducted Rs.50,000/- under the grab of some illegal penalties. Thereafter, the complainant came to know that the OP no.1 have sold the said car to some other person at the higher price and cheated the complainant and his family members.

9.             The case of the OP no.1 is that that at the time of booking, complainant requested the OPs to supply red colour vehicle and on this count, it was made clear to complainant that in case, he fails to take the delivery of red colour vehicle, in that eventuality, the booking amount shall stand forfeited and no claim for refund of the amount would be entertained and this fact is clearly mentioned on the Commitment Check List no.6323 dated 4.9.2017 and complainant has admitted the same and put his signature on the Commitment Check List. As such complainant was bound to take the delivery of the red colour vehicle because requisition to manufacturer for the supply of red colour vehicle was sent on the request of complainant. On receipt of delivery of the red colour vehicle from the supplier, complainant was immediately informed to take the delivery. The complainant paid a sum of Rs.6,60,000/- through RTGS and complainant issued a cheque of Rs.5,97,000/- and asked OPs to take the balance amount of Rs.60,000/- in cash. The OPs requested the complainant that they cannot take the amount in cash. The OPs requested the complainant to take the delivery of the vehicle after the encashment of the cheque, but the complainant was adamant to take the delivery of the vehicle without encashment of the cheque and the complainant did not agree to the proposal of OPs and complainant became furious and quarreled with the OPs. The vehicle was lying parked with the OPs and there was no buyer of the particular colour vehicle. In this way, the OPs suffered a huge monetary loss for not taking the delivery of vehicle by the complainant. When the complainant refused to take the delivery of vehicle, the OPs refunded a sum of Rs.6,60,000/- to the complainant through RTGS and this fact is very clear in the statement of account. After waiting a long time, OPs requested some other dealer for the purchase of vehicle, but firstly he was not ready to purchase the said vehicle and ultimately he agrees to purchase the said vehicle at a lesser price. The OPs were compelled to sell the said vehicle at lesser price to some other dealer, as there was no other buyer of the red colour vehicle. As such, OPs have suffered a huge financial loss on account of misdeed of the complainant.

10.            The case of the OPs no.2 and 3 is that complainant that OPs no.2 and 3 are neither necessary parties nor proper parties in the present complaint. No allegation has been made against the HMIL but only the employee of HMIL is being dragged into the present complaint. The cars are purchased by the concerned dealers from OPs against payment and thereafter, the purchased cars are sold by the dealer to the customers under sale invoice.

11.            Admittedly, the complainant booked a new vehicle i.e. car Creta of red colour. It is also admitted that Rs.40,000.- as booking amount was paid through cheque by the complainant to OP no.1. It is also admitted that the complainant paid a sum of Rs.6,60,000/- through RTGS and an amount of Rs.5,97,000/- through cheque and Rs.60,000/- in cash was to be paid at the time of car delivery.

12.            As per complainant on 22.09.2017 Mr. Gagandeep G.M. of OP no.1 refused to accept the payment through cheque and demanded the full payment in cash. Upon this complainant arranged the remaining payment in cash. OP no.1 accepted the cash payment. But after acceptance of the whole payment by G.M. of OP no.1, he flatly refused to made delivery of the vehicle and returned the payment to the complainant except the booking amount of Rs.40,000/- and also deducted Rs.50,000/- under the grab of some illegal penalties.

13.            As per OP no.1 the complainant had issued a cheque of Rs.5,97,000/- and asked the OP to take the balance amount of Rs.60,000/- in cash. The OP told the complainant that they cannot take the amount in cash. Therefore, the OP no.1 requested the complainant to take the delivery of the vehicle after the encashment of the cheque but complainant was adamant to take the delivery of the vehicle without encashment of the cheque. Thereafter, complainant did not turn up for a long time to take delivery of the vehicle then OP refunded a sum of Rs.6,60,000/- to complainant through RTGS. After waiting a long time, OP no.1 sold the said car to other dealer at a lesser price, as there was no other buyer of the red colour car. As such OP has suffered a huge financial loss on the account of misdeed of the complainant.

14.            It is not disputed that the complainant was not having the amount for purchasing the said car. The complainant wants to pay the remaining amount i.e. Rs.5,97,000/- through cheque. OP no.1 refused to made delivery before encashment of the cheque. Thereafter, complainant arranged the said amount in cash but OP no.1 again refused to receive the amount in cash. If the OP no.1 informed the complainant in time then OP did not accept the payment in cash, then complainant might have either to get the said amount transferred in the account of OP no.1 through RTGS or get prepared DD in the name of OP no.1. Complainant has failed to prove that OP no.1 had deducted Rs.50,000/- under the grab of some illegal penalities.

15.            As per OP no.1 they had sold the said car to other dealer at the lesser price as there was no other buyer of the red car. But OP no.1 failed to place on the record when and whom the said car was sold. As per complainant OP no.1 sold the said car to other customer prior to the delivery date of the complainant. OPs can rebut the said plea of the complainant by producing the record of said car but OPs did not do so.

16.            OP no.1 relied upon the commitment check list as Ex.C2. No doubt as per said commitment check list Ex.C2, booking amount is non-refundable. But in the present case, complainant had not backup the commitment but on the other hand OP no.1 failed to fulfill their commitment. Thus, we are of the confirmed views that act of the OP no.1 amounts to deficiency in service and unfair trade practice.

17.            Thus, as a sequel to above discussion, we allow the present complaint and direct the OP no.1 to refund the amount of Rs.40,000/- as booking amount to the complainant with interest @ 9% per annum from the date of deposit till its realization. We further direct the OP no.1 to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expense. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:22.07.2019                                                                       

                                                                     President,

                                                                           District Consumer Disputes

                                                                           Redressal Forum, Karnal.

          (Vineet Kauhik)     (Dr. Rekha Chaudhary)

              Member                   Member