Punjab

StateCommission

FA/1090/2013

Chittosho Motor - Complainant(s)

Versus

Ramakant Kumar - Opp.Party(s)

D.K. Singal & Ammish Goel

27 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR-37 A, DAKSHIN MARG, CHANDIGARH.

First Appeal No. 1090 of 2013

                                                                                Date of institution  :    11.10.2013   

                                                                     Date of decision     :     27.02.2015

 

 

Chittosho Motor, C-39, Phase-3, Industrial Area, Mohali through its Authorised Representative/General Manager Sh. Sanjeev Devgun.

.........Appellant/Opposite party

Versus

Ramakant Kumar Son of Shri Satyaram, JWO Ramakan Kumar, SMQ 14/5, AF Station High Grounds, Chandigarh-160004.

...........Respondent/Complainant

First Appeal against the order dated        23.08.2013 of the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali.

Quorum:-

                    Hon'ble Justice Gurdev Singh, President.

                                  Smt. Surinder Pal Kaur, Member

 

Present:-

          For the appellant      : Sh. D.K. Singal, Advocate

          For the respondent  : Sh. Ramakant Kumar. (In Person)

 

SMT. SURINDER PAL KAUR, MEMBER:-

                  This appeal has been preferred  by the appellant/ opposite party  against the order dated 23.08.2013 passed  by the District Consumer Disputes Redressal  Forum, SAS Nagar, Mohali (in short, “District Forum”), vide which the complaint filed by the complainant  under Section 12 of the Consumer Protection Act 1986, (in short "the Act") was allowed and the OP was directed to pay to the complainant following amounts:-

1.   Rate hike in CSR price                                    Rs. 6,808.00
2.  Extra expenses for purchase of the              Rs. 10,000.00

Car from Pankaj Motors Moga.

3.  Difference of increase in registration            Rs. 14,480.00

Charges from 2% to 6%.

4.  Interest on the money managed from           Rs. 3,000.00

Various deposits and funds for making

DD amount deposited with CSD Depot.

Apart from the above said amount, a direction was also issued to the opposite party to pay lump-sum amount of Rs. 30,000/- to the complainant for mental, physical and financial harassment and cost of litigation within a period of 30 days from the date of receipt of the copy of the order.

2.               Brief facts, as stated in the complaint, are that the complainant-Ramakant Kumar booked a Maruti Wagon-R VXI (Silky Silver Colour) car with the opposite party on 17.12.2012 by making payment of Rs.1,000/-. The car was to be purchased through CSD at a cost of Rs. 3,74,080/-. Assistant Manager (Mr. Ruvel Chand) had booked the car on 18.12.2012 vide confirmation receipt having ID No. 129986892 and tentative date of delivery was given as 30.12.2012. He was told to seek special sanction for purchase of car through CSD. In the meantime, permission to purchase vehicle through CSD was obtained by MOD. When he asked about car on 30.12.2012, opposite party told that the model of the car had been changed by the company and new model will be provided by 15.01.2013. Further, he was informed that he could arrange the money for the payment. He arranged the money through various deposits and funds. On 15.01.2013 again opposite party showed its inability and promised to deliver the car by 31.01.2013. He made a call on 31.01.2013 but opposite party did not bother to reply. After that, he went to showroom and lodged a written complaint and asked to show the reply given by their GM. He had given the remarks that vehicle would be delivered on 15.02.2013. Sales Manager also promised the same and advised him to make payment through DD at CSD, Bathinda.  As per their instructions, he went to CSD, Bathinda Depot and made Demand Draft on 14.02.2013 on the enhanced amount of Rs.3,80,888/- and got the Local Supply Order in the name of Chittosho Motor Mohali. The vehicle was still not provided to him on 15.02.2013 and it was stated that the supply of the vehicle was not made available to it by the Maruti Agency. However, when he inquired from other dealers, including those at Chandigarh, they informed that there was no such problem regarding supply of vehicle. On 19.02.2013 he lodged a complaint at customer care (Maruti Suzuki India) but, no reply was given by it. On 28.02.2013, opposite party sent an apology letter in which it was assured that the vehicle would be delivered on 05.03.2013. On 12.03.2013, customer care Maruti Suzuki India gave confirmation message that his complaint had been resolved to his satisfaction, whereas, in practical, the matter was not yet resolved. Again on 12.03.2013 a complaint No. 9700549402, was lodged at Maruti Suzuki India but, no attention was paid to that complaint. On 07.03.2013, opposite party sent another written apology letter assuring that the vehicle would be delivered on 15.03.2013, but, the vehicle was not provided on that day. On 20.03.2013, they offered a deal to provide the vehicle from another dealer i.e. Pankaj Motors, Moga, and asked him to pay Rs.7,000/-(extra) and to change the dealer’s name in the Local Supply Order from Bathinda. On the same day he contacted Pankaj Motors in Moga, but it denied the availability of the car on that day. He was told that the vehicle would be made available within a day if same is purchased from it. On 23.03.2013, the said dealer informed him telephonically that the vehicle was available and advised him to get LSO changed so as to take the vehicle. Since no other dealers in Chandigarh and Mohali deal in the CSD vehicles and due to laxity and irresponsible behviour of OP, he had to purchase the car from Moga i.e. Pankaj Motors. Therefore, he told OP to refund the token money, but instead of contacting him, it handed over the cheque to a third person. Thus, the opposite party indulged in "restrictive trade practice". Ultimately, he filed complaint before the District Forum seeking the following directions:-

(i) to pay Rs.6,808/- on account of rate hike in CSD price;

(ii)to pay Rs.10,000/- extra expenses  incurred in purchasing the car from Pankaj Motors, (Moga) instead of Mohali;

(iii)to pay Rs.14,480/- as difference of registration charges increase from 2% to 6%;

(iv)to pay Rs.50,000/- as compensation for harassment, mental, physical and financial;

(v)to pay Rs.3,000/-, as interest on the money managed from various deposits and funds for making DD amount deposited with CSD depot.

3.               Upon notice, the opposite party filed the written reply before the District Forum. It admitted that on 17.12.2012 the complainant  approached its office for the purpose of purchase of Wagon-R VXI Car (Silky Silver Colour). Its attendant duly attended him and received a sum of Rs.1,000/-, on the same day as booking amount for the purchase of said vehicle against receipt no SB12001223. While denying all other allegations made in the complaint, it pleaded that complainant duly signed the order booking/commitment checklist form at the time of booking after reading and understanding the contents mentioned therein about tentative waiting period, tentative delivery date and other terms and conditions. In the above said booking order, no tentative period was mentioned meaning thereby when the car would be available with the dealer the same would be delivered to the customer. It contained various terms and conditions of booking at the bottom of the said form. As per first condition, the delivery of the vehicle was subject to availability of the vehicle meaning thereby that opposite party was not be held responsible for any delay in the delivery of the vehicle to the customer as the same depend on the availability of the vehicle. The complainant booked the car after accepting the aforesaid condition and therefore, he is estopped from raising the issue of delayed delivery of the car. Opposite party had not committed any timeframe for the delivery of the car to the complainant. The complainant was well within his right to opt for cancellation of booking and seek refund of the booking amount at any point of time. The delivery date 30.12.2012, as alleged by the complainant, in his complaint was not definite but the same was tentative. Since the complainant was to purchase the car through Canteen Store Department, the necessary permission was required to be obtained which was admittedly got by him on 04.01.2013. Therefore, the process for delivery of car was to start after the said sanction was procured by him. He had the option to purchase the car from any other dealer by producing the said sanction letter. Hence, any such delay regarding the delivery of vehicle does not amount to deficiency in service. On 07.03.2013, apology letter was issued by it against complaint No.6370846789 to the complainant, in which it was stated that the vehicle, in question, would be delivered to him on 15.03.2013 as it hoped to get the vehicle from the dealer by that date. On 20.03.2013, it offered the complainant to arrange the vehicle from other dealer, and not from Pankaj Motors. It was denied  that complaint was asked to pay Rs.7,000/- extra and to change dealer’s name in local supply order from Bathinda. It refunded the booking amount of Rs.1000/- to the complainant vide cheque bearing No. 15897 dated 09.04.2013. Complaint was bad for non joinder of necessary parties.  It was an authorized dealer for sale and service of the cars being manufactured by Maruti Udyog Ltd. Thus, no discretion or power vests with it to deliver the car on tentative date. Accordingly, the manufacturer of the said car i.e. Maruti Udyog Ltd. was a necessary party. It was also mentioned by the complainant that he purchased the car from Pankaj Motors, Moga. Further, he alleged in para no.7 of the complaint that Pankaj Motors had also denied the availability of the car. Thus, in the absence of both the parties i.e. Maruti Suzuki India Ltd. and Pankaj Motors, Moga, just and fair adjudication would not be possible. There was no deficiency on its part. Dismissal of the complaint was prayed by it.

 

4.               Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.

5.               We have heard learned counsel for the appellant/opposite party and the complainant, who appeared in person before the Commission. We have also carefully gone through the records of the District Forum.

6.               It was submitted by the Ld. Counsel for the opposite party that the District Forum failed to consider the fact that complainant has not attained the status of being Consumer by merely booking the car with the opposite party. As such, the complainant could not have maintained the complaint before the District Forum and the same was liable to be dismissed on that ground alone. In support of his arguments, he relied upon the judgment of Hon'ble Supreme Court passed in Civil Appeal No.708/2007 decided on 22.07.2010 (Maruti Suzuki India Ltd. Vs. Purushottam Lal (HUF) and anothers.

7.               It was submitted by the complainant that the above said judgment is not applicable in the present case as it was not only case of booking of the vehicle. In fact the Opposite Party has adopted the restrictive trade practice fully knowing that he was the only dealer at Mohali, from where the vehicle was to be delivered under CSD Scheme. The District Forum rightly held that it was the delaying tactics on the part of the Opposite Party.

 

8.               It is an admitted fact that complainant deposited Rs.1,000/- with opposite party as booking amount for the car, in question, which was to be manufactured by Maruti Suzuki. The ratio of above said judgement relied upon by the learned counsel for the opposite party( Maruti Suzuki’s case supra ) is not applicable to the facts of the present case . In that case, the question involved was regarding the liability of the dealer and the manufacturer to refund the amount deposited by the complainant for booking of the car and it had taken up the specific plea that there was non-delivery of cars, so booked.The Hon’ble Supreme Court had reached the conclusion that alleged deficiency in service on account of  non delivery of the car  is not covered under the provisions of consumer protection act, whereas, in the present case the apology letters dated  28.02.2013 and 07.03.2013 (Ex.C8 and Ex.C9) respectively, were sent by OP to the complainant. OP informed the complainant vide letter dated 28.02.2013 that the vehicle would be delivered to him latest by 5th March. Further, OP extended the delivery of vehicle upto 15 March 2013 vide letter dated 07.03.2013. On 20.03.2013, opposite party offered a deal to provide him the vehicle from other dealer i.e. Pankaj Motors Moga (Punjab) and also asked to pay Rs.7,000/- (extra) and change the dealer’s name in the local supply order from Bathinda. It is a fact that complainant had to go Moga for purchasing the car instead of purchasing it from Mohali. OP is thus, guilty of restricted trade practice due to which complainant suffered physical and mental agony, besides, financial loss.

 

9.     Complainant mentioned in the prayer Clause that he had to pay Rs.14,480/- in excess as road tax for registration of vehicle which increased from 2% to 6% during the waiting period. It is, however noticed that Government of Punjab had already increased the said tax up to 6% on 31.08.2012 vide notification No. 3/2/2011-2T2/1475 dated 31.08.2012, i.e. well before the booking of the vehicle by complaint on 18.12.2012. As such, complainant did not suffer any loss on that account.

10.             Similarly, there is no evidence in support to his contention that complainant paid extra expenses for purchasing the car from Pankaj Motors Moga, instead of Mohali or that he paid any interest on the money managed from various deposits and funds for making DD amount deposited with CSD depot.

11.              Further, complainant has contended that on the day of booking i.e. 17.12.2012 the price of the car was 3,74,080 whereas, due to delaying tactics on  the part of OP he had to make demand draft of Rs 3,80,888 (Ex-C4) in the month of February 2013. It is apparent from Ex.C-4, that the complainant paid excess amount of Rs.6,808 for purchase of car than the price existed at the time of booking, due to which the complainant suffered financial loss. As such, OP is liable to pay that amount to the complainant.

12.             The District Forum allowed Rs.30,000/- as compensation for mental tension, harassment and litigation cost, which according to us is justified.

13.             In view of the above said discussion, the appeal of the OP is partly allowed and directions issued by the District Forum vide para 10(b), (c) and (d) is set aside. Remaining part of the impugned order is upheld.

14.             The sum of Rs.25,000/-, was deposited by the appellant/opposite party on 11.10.2013 at the time of filing of the appeal. It further deposited the sum of Rs. 39,288/- on 7.11.2013 in compliance of the order dated 25.10.2013 out of this amount of Rs.64,288/-, a sum of Rs.36,808/- along with interest accrued there on shall be remitted to the respondent/complainant and the balance amount alongwith interest which has been accrued thereon, if any, shall be remitted to the appellant/opposite party by the registry by way of crossed cheques/demand drafts after the expiry of 45 days of the sending of certified copies of the order to the parties.

15.              The arguments in this case were heard on 15.1.2015 and the order was reserved. Now, the order be communicated to the parties.

16.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                (JUSTICE GURDEV SINGH)

                                                                             PRESIDENT

                                                     (SURINDER PAL KAUR)

February        27,2015                               MEMBER

RK 2