PRESENT

                   Complainant by Adv. Smt.Anita Marathe along with

                   representative Adv. Shri.Rodrigues  present.  

                   Opponent No. 1 by Adv. Pushkar Patankar present.

                   Opponent No. 2 absent.                      

ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President.

1. The complainant is resident of  Mumbai  who for last three decades has been residing abroad and has recently returned  to  Mumbai.  Respondent no. 1 is automobile manufacturing com.  i. e. skoda Auto pvt. Ltd. The respondent no. 2 is dealer of opponent 1.
2. The complainant visited show room of opponent no. 2 on 28.11.2011 and after examining the car, expressed intention  to purchase skoda yeti Elegance 4x4. He visited on 30.11.2011 to opponent no. 2 and decided to purchase the vehicle as above.
3. The complainant alleged that opponent stated that vehicle of his choice and color was not available but would be arranged within two weeks. The complainant was suggested that in case vehicle is purchased at the showroom of opponent no. 2 at Thane,  he will be benefitted for Rs. 1 lac.
4. The complainant paid Rs. Two lacs on 03.12.2011. He received call on the same day from opponent no. 2 stating that vehicle would be made available in a week and he was asked to deposit balance amount. Again he was told that vehicle was not available and would take long time. The complainant asked for refund of Rs. 2 lacs.
5. The complainant stated in para no. 10 of complaint that the General manager and staff  repeatedly  asked him to opt for alternate mode to which he agreed for skoda ambience 4x4.
6. The complainant was scheduled to leave Mumbai during Christmas and he informed opponent no. 2 about delivery would be taken in Jan 2012 without specifying a date. He received mail on 31.12.2011 stating that vehicle is ready for delivery and payment to be made on 04.01.2012.
7. The complainant replied the mail and also requested to explain as  to how he could use vehicle in Mumbai  with registration at Thane based on news in Times of India. He also sought explanation of abbreviation WAP mentioned in proforma invoice and purchase order.
8. The complainant in para 13 of complaint stated that opponent 2 began avoiding telephonic contact. He left with  no alternative and decided to claim refund of amount. He sent legal notice on 30.01.2012 which was not complied.
9. The complainant prayed for direction to opponent no. 2 to refund Rs. Two lacs with interest at 18% p. a. with compensation and cost.
10. The complaint was admitted on 13.02.2012. The opponent no. 1 filed written statement on 07.09.2012 and resisted the allegations made in complaint.
11. The opponent 1 stated that there is no business activity carried out between the complainant and opponent 1. There is no privity of contract and complainant is not consumer of opp. No.1.
12. The opponent stated in para no. 4 of W. S. that association between opponent no. 1 and 2 is on principal to principal  basis and it is regulated by the letter of intent signed by them.
13. The opponent no. 2 filed written statement on 12.02.2013 and denied each and every statement contained in complaint. It is stated that complainant was adviced that two options are available to opponent no. 2 to register car.  One is if car is purchased within jurisdiction at Mumbai, purchaser shall borne octroi charges.
14. The second option was if the car is purchased in Thane, octroi amount will be reduced. As per suggestion of complainant proforma invoice was issued on 30.11.2011.
15. The opponent no. 2 alleged that complainant paid 200000/- (two lacs ) on 03.12.2011. He collected proforma invoice on 19.12.2011. The complainant raised issue of colour though in the invoice no colour was mentioned.
     
16. The opponent stated that several reminders were sent orally and telephonically to complainant to collect the car and make balance payment but he never responded.
17. The opponent no. 2 in para 13 stated that complainant was informed that they do not have any hesitation to refund amount subject to deduction of concellation charges. It is alleged that opponent no. 2 is ready to refund amount of Rs. 2 lacs provided opponent no. 2 should get damages and incidental charges.
18. The opponent no. 2 prayed for dismissal with cost.
19. We have heard Ld. Advocate Anita marathe for complainant and ld. Advocate pushkar patankar  for opp. No.1 perused purchase order dated 30.11.2011, receipt of Rs. Two lacs dated 03.12.2011, letters through mail between parties, legal notice dated 30.01.2012, additional written submission of opponent no. 1.
20. We have perused all the documents filed on record. The opponent no. 2 expressed willingness to refund amount in para 13 of  written statement subject to deduction of concellation charges. The opponent has not explained the queries raised by complainant regarding abbreviation of WAP and also registration of vehicle at Thane instead of Mumbai.
21. The complainant is entitle to receive explanation from opponent no. 2 prior to finlisation of sale of vehicle as the principle of caveat emptor applies in the sale of goods Act, 1930.
22. The complainant is entitle to claim refund due to failure of opponent no. 2 to explain the questions raised by complainant.  The opponent 2 failed to justify the deduction of amount toward cancellation charges.
23. The complainant is subjected to wrongful loss due to failure of opponent no. 2 to refund amount though contract was cancelled due to failure of opponent to answer queries of complainant, regarding the vehicle.
24. The opponent no. 2 is subjected to wrongful gain by retaining an amount of Rs. 200000/- since 03.12.2011. The complainant relied on the opponent no. 2 for selecting alternate vehicle, however opponent no. 2 failed to properly guide him and lastly did not bother even to reply the mail or take a call.
25. The exchange of letters between complainant and representative  of opponent reveal that opponent no. 2 expressly apology for not calling or responding calls of complainant.
26. We are of the view that, opponent no. 2 guilty for unjust enrichment for retaining amount for all these years. He  is liable to refund amount with interest.
27. The Complainant is entitle for reasonable compensation of Rs. 25000/- as per law laid down under sec. 73 of contract Act and cost of Rs. 10000/-.
28. The complainant has no case against opponent no. 1 hence no relief is granted against opponent no. 1.
29. In the result, we pass the following order.

                                        ORDER

1.       RBT/CC/95/2012  is party allowed.

2.       The opponent no. 2 AUTOBAN  ENTERPRISES   PVT.LTD is directed to pay to complainant Rs. 2,00,000/- (Two lacs ) with

          interest at 12% p. a. from 04.12.2011 till payment.  

3.       The opponent no. 2 is directed to pay Rs. 25,000/-(Twenty five thousand)  to complainant  for Mental agony  and  Rs. 10,000 as

          cost.

4. Copy of this order be sent to the both parties.