Date of filing :23.5.2018
Judgment : Dt.01.11.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Balaka Poddar wife of Shri Sujoy Poddar alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely Royal Motors (Prop. – Auto Carriage Pvt. Ltd.).
Case of the Complainant, in short, is that on 27.12.2016, she went to the Mahindra Car Show Room of Royal Motors in Kolkata to purchase one new Scorpio Car and she was attended by Sales Consultant namely Bithi Paul, on behalf of the OP. After negotiations regarding value of the car, OP agreed to take the order for booking of one Scorpio S10/8STR at a price of Rs.13,73,000/- and Complainant accordingly paid the said amount by cheque dt.27.12.2016. Complainant was allowed discount of Rs.57,033/- at the time of booking of the said car. A money receipt was issued by the OP and schedule delivery date was fixed on 18.1.2017. After clearance of the cheque, OP issued tax invoice for a sum of Rs.13,32,215/- on 29.12.2017 which suggested that OP instead of discount of Rs.57,033/- allowed discount of Rs.51,710.30 only. Complainant has not been provided tax invoice/cash memo for the following documents namely : (1) Accessories of Rs.10,000/-, (2) Extended warranty for 2 years of Rs.20,125/-, (3) RSA for 5 years for Rs.6,000/-, (4) temporary registration : two receipts of Rs.424/- ands Rs.1,551/-=Rs.1,975/- were issued, but, Complainant paid Rs.4,000/- for temporary registration and so for balance amount of Rs.2,025/-,receipt was not provided.
On 8.1.2017 OP delivered the car to the complainant along with delivery challans and requisite documents for permanent registration. Complainant requested the OP to provide the rest of the documents i.e. extended warranty documents, RSA for 5 years, tax invoice of accessories and refund of balance amount relating to the difference of tax invoices No.INV17A001320 dt.29.12,2016 and invoice No.17A-1320 dt.13.1.2017. But, in spite of several request s, OP did not provide those documents. Thus Complainant moved before the Consumer Grievance Redressal Cell and thereafter has filed the present complaint for directing the OP to provide those papers, to refund Rs.9,888/- i.e. excess amount collected at the time of booking of the car on 27.12.2016 along with interest @18% p.a., if the OP misappropriate s the extended warranty amount then to refund Rs.14,38,625/- along with interest @ 18% p.a., to pay Rs.5,50,000/- as compensation and to pay litigation cost of Rs.10,000/-.
Complainant has annexed with the complaint, order taking form dt.27.12.2016, money receipt issued by the OP dt.27.12.2016, copy of tax invoice dt.29.12.2016, copy of two receipts and certificate of temporary registration dt.16.1.2017, copy of delivery challans dt.18.1.2017, copy of Form 21 and sales invoice dt.13.1.2017, copy of the complaint made to the General Manager of OP dt.10.12.2017 and the copy of the written complaint made before the Grievance Cell and the related documents.
On perusal of the record, it appears that on its appearance OP filed a petition challenging maintainability of the complaint, but did not file any written version. However, materials in record suggest that the specific case of the OP is that this Forum lacks the pecuniary jurisdiction and that all the documents as claimed by the Complainant have already been provided to the Complainant.
So, the following points require determination:
- Whether the complaint is maintainable in its present form?
- Whether there has been any deficiency in service on the part of the OP?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1
OP has mainly agitated that the Complaint is not maintainable before this Forum as this Form lacks the pecuniary jurisdiction to proceed with the case. But, in this context, it may be mentioned here that this point was already raised by the OP by filing a petition challenging maintainability of the complaint and vide order dt.27.08.2018, said petition was rejected by the Forum holding that it has jurisdiction as payment of compensation can only be determined at the time of final adjudication.
Said order has not been challenged by the OP in any higher Forum. However, even considering that by order dt.27.08.2018, matter was left for determination at the time of final adjudication, it appears that in the case law of Prakshit Parihar VS M/s Universal Buildwell Private Ltd., relied upon by the OP, Hon’ble National Commission by referring the decision of Hon’ble Supreme Court in Ghaziabad Development Authority VS Balbir Singh, observed that interest is paid by way of compensation. It is held that though Consumer Protection Act authorizes the Consumer Forum to award compensation, no specific powers to award interest has been conferred upon it. Therefore, in view of the Provisions contained in Sections 21, 17 and 11 of the Consumer Protection Act, amount of the interest which may be paid as compensation, must necessarily be taken into account for determining the pecuniary jurisdiction.
In this case in hand as Complainant has also prayed for alternative relief of return of Rs.14,38,625/- along with interest @ 18% p.a. till final payment and to pay compensation of Rs.5,50,000/, according to OP till the date of filing of their petition challenging maintainability, interest of Rs.4,10,008/- had accrued. So, if the said amount is added it exceeds pecuniary jurisdiction of this Forum.
But, keeping in view the legal proposition in the case of Prakshit Parasar, relied upon by OP itself, it is apparent that under the provision of C. P. Act, there is no provision to allow interest and the amount of interest may be paid as compensation only. So, interest and also the compensation cannot be allowed. In other words, both interest and the compensation as prayed by the Complainant in this case cannot be allowed. If he is allowed interest, same will be in the form of compensation and in that case, claim of the OP that this Forum lacks pecuniary jurisdiction, cannot be accepted.
This point is thus answered accordingly.
Point Nos.2 & 3
Both these points are taken up together for discussions in order to avoid repetition.
Complainant has claimed that he purchased one Scorpio S10/8STR at a price of Rs.13,73,000/- (Vehicle cost Rs.13,76,058.00 + Tcs Rs.13,761.00, Temp Regn : Rs.4,000/- + Accessories Rs.10,000/-+Extended warranty 2 yrs. : Rs.20,125/- +RSA 5 yrs:Rs.6,089 – Discount Rs.57,033/-) on 27.12.2016 and paid Rs.13,73,000/-by way of cheque dt.27.12.2016 to OP, who issued a money receipt. Scheduled delivery dt. of the vehicle was on 18.01.2017. After clearance of the cheque, OP issued tax invoice for sum of Rs.13,32,215/- on 29.12.2017 (vehicle cost Rs.13,70,735.05 + TCS Rs.13,190.25, discount Rs.51,710.30). At the time of booking OP had assured the Complainant discount of Rs.57,033/- but actually allowed discount of Rs.51,710.30 i.e. discount of Rs.5,323/- not allowed by the OP.
In order to substantiate that two invoices were issued by OP, Complainant has annexed the same with the complaint petition as annexure A, B & C. Annexure A & C are the two invoices dt.27.12.2016 and 28.12.2016 Annexure B is money receipt. On a careful scrutiny of these documents, it appears that they support the claim of the Complainant. If the amount stated in invoice dt.28.12.2016 is calculated than his claim that by invoice dt.27.12.2016 OP assured to discount Rs.57,033/- but actually gave discount of Rs.51,710/- is well established and as he paid Rs.13,73,000/-, he is entitled to Rs.5,323/-.
It may be pointed out that issuance of above mentioned documents, filed by the Complainant, has not been disputed and denied by the OP.
Complainant has further claimed that OP has not provided any tax invoice/cash memo for the documents namely (a) accessories of Rs.10,000/-, (b) Extended warranty for 2 yrs of Rs.20,125/-, (c) RSA for 5 yrs for rs.6,000/-, (d) Temporar7y Regn. – only two receipts of Rs.424/- and Rs.1,551/- were issued but Complainant paid Rs.4,000/- for temporary registration i.e. balance of Rs.2,025/- not provided.
In this case, OP has not filed any written version. However, evidence has been filed and also written argument has been filed by the OP which indicates, OP has not denied of taking such amount as claimed by the Complainant. Only contention of the OP is that they have handed over all the documents including extended warranty, RSA documents, Tax Invoice of accessories, etc. But, during evidence, in reply to specific questions by the Complainant to inform the date of delivery of those documents and the duplicate copy, to the Complainant, OP has only stated that they have already submitted affidavit-in-chief suggesting that they do not have any document to show that those documents were handed over to the Complainant. If OP really had supplied those documents, they would have some receipts or acknowledgements but they have not filed any such document. On the contrary, Complainant submitted written complaint to OP on 10.12.2017 but OP remained silent. If they had supplied those documents, they ought to have replied stating documents were already supplied. So, in the absence of any document from the OP, Complainant is entitled to a direction upon the OP to supply those documents and to pay the excess amount of Rs.5,323/-paid by the Complainant.
However, in the given facts and situation of this case, we find no justification to allow any compensation as prayed by the Complainant.
Hence
ordered
CC/305/2018 is allowed on contest. OP is directed to provide the following documents to the Complainant within two months from this date :-
i) Extended warranty for 2 yrs,
ii) RSA for 5 yrs.
iii) Tax invoice for accessories of Rs.10,000/- and
iv) Form 27D regarding TCS Certificate of Rs.13,190.25/
OP is further directed to refund sum of Rs.5,393/- and pay litigation cost of Rs.12,000/- within the aforesaid period of two months in default of payment, sum shall carry interest @ 9% p.a. till realisation.
