Delhi

West Delhi

CC/17/408

INDER MOHAN - Complainant(s)

Versus

SKY NISSAN - Opp.Party(s)

06 May 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (WEST)

150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

CASE NO.  408/17

Inder Mohan Sawhey

S/O late Sh. Madan Lal Sawhey

D-120, 2^nd floor, Anand Vihar

East Anand Vihar, Delhi-110032

                                     VERSUS

1. M/s Sky Nissan,

63, Rama Road,Opp. Kirti Nagar Metro Station,

New Delhi-15

2. M/S Nissan Motors India Pvt. Ltd.

ASV Ramana Towers,

37-38, Venkatnarayana Road,

T. Nagar-600017

                           Date of institution:14.07.2017

Order reserved on:31.03.2021

Judgement pronounced on:06.05.2021

O R D E R

 MS. HARPREET KAUR CHARYA, MEMBER

The present complaint has filed by Shri. Inder Mohan Sawhney, the complainant against, M/S Sky Nissan(the dealer)as OP-1 and M/S Nissan Motor India Pvt. Ltd. (the manufacturer) as OP-2.

Briefly stated the facts of the present complaint are that, the complainant had booked Nissan Terrano XVD, through OP-1 i.e. M/S Sky Nissan pvt. Ltd. For Rs. 50,000/- on 05.10.2013 by using his credit card. On 06.12.2013, the complainant due to some personal reason requested the dealer for refund. Since OP-1 had closed their showroom the complainant registered his grievance through customer care helpline of OP-2.

Despite written communication through emails and registered letters on several occasion the booking amount was not refunded. Feeling aggrieved the complainant has filed the present complaint with pray for directions to OPs to refund the booking amount of Rs. 50,000/-, interest @12% P.A. on the booking amount/compensation and litigation expenses.

The complainant has filed the copy of the PAN Card as Annexure I, copy of Aadhar Card as Annexure II, booking receipt of date 05.10.2013 as Annexure III, letter to the manager of date 06.12.2013 for refund of the booking amount as Annexure IV, Credit Card statement as Annexure V. The complainant has also annexed the emails exchanged with the customer care from 23.03.2014 to 21.03.2015 and final notice of date 27.08.2016 are Annexure VI&VII respectively. 

     Notice of the present complaint was served upon OP-1 through publication despite service, neither any one appeared on their behalf nor any reply was filed on their behalf, hence they were proceeded ex-parte.

     Written statement was filed on behalf of OP-2, wherein they have taken several objections in their defense, such as the complaint was false and frivolous, the complainant was not consumer as OP-1 have not provided any services to the complainant, therefore, there was no relationship of consumer/ service provider and no loss was caused to the complainant. It was submitted that the complainant had paid the booking amount to OP-1, therefore, OP-2 was not liable to pay. The complaint was barred by limitation. It was further submitted that relationship between the OP-1 & OP-2 was on “principal to principal” basis. Rest of the contents of the complaint have also been denied.

Rejoinder to the written statement of OP-2 was filed by the complainant, where he has reiterated the allegation made by him in the complaint and have denied those of OP-2. It has been stated, that Mr. JabarJeet Singh, Senior Manager (Legal) was not authorized to defend the present complaint as per the board resolution. Therefore, the defense of OP-2 was unsustainable in the eyes of law.

It was also submitted that the complainant was not made aware as to the agreement between the OP-1 and OP-2. As per the emails, exchanged between the parties from the period March,2014 to March,2015, along with replies which were received in August,2016 thus, the complaint was within limitation period.. Rest of the contents of the Written Statement have also been denied.

Evidence by way of affidavit was filed by the complainant, where he has deposed on oath the contents of the complaint. He has reiterated that he had deposited Rs. 50,000/- as booking amount on 05.10.2013 and have got order form exhibited as EX-CW-1/1 and statement of his credit card as EX-CW-1/2. It has been stated that OP-1, i.e. M/S Sky Nissan, the dealer of OP-2 i.e Nissan India Motor Pvt. Ltd, closed the showroom and stopped entertaining the customers. The complainant communicated online through“EX-CW-1/3 (colly). Letter dated 06.12.2013 requesting cancellation and refund is EX-CW-1/4.

The complainant had also relied on the emails exchanged between the customer care helpline of Nissan India Motor Pvt. Ltd. and has got them exhibited as EX-CW-1/5 (colly).

We have perused the material placed on record and have heard the submission made by the Ld. Counsel for the complainant. We have also gone through the written submission filed by the complainant and OP-2. As per order dated 10.08.2018, OP-2 was also proceeded ex-parte.

The complainant is aggrieved by the non-refund of the booking amount of Rs. 50,000/- made with OP-1 on 05.10.2013. If a look is made at terms and conditions in the booking order form which isEX-CW-1/1,as per Clause-6 of the terms and conditions, which states that, the booking amount shall not be subject to any interest in the event of cancellation due to any reason.

At the same time, Clause 13 reads that refund of booking amount will be given in 30 days approx. from the date of cancellation letter.

The complainant has requested for cancellation vide letter dated 06.12.2013 which is EX-CW-1/4. Thus, from the conjoined reading of Clause-6 and Clause 13, of the terms and conditions of booking order form ,the complainant should have got the refund within 30 days from the date of cancellation request, which would have been 04.01.2014, but the same has not happened in the instant case.

Further, as per email dated 05.01.2015, the complainant has been requested by Nissan India customer care to share the documents such as customer PAN card copy, cancelled cheque, original payment receipt, booking order form and bank statement showing the amount was transferred to Sky Nissan (OP-1). Another email dated 07.03.2015, where the complainant has written that even after repeated emails, reminders and fulfilling all the documentary requirement he has not received the refund despite assurances.

Since, OP-2 did not file evidence by way of affidavit, they have failed to prove their contentions in their written statement.

Thus, what can be culled from the above discussion is, that OP-1 and OP-2, have failed to refund the booking amount of Rs. 50,000/- deposited by the complainant.

Therefore, in the facts and circumstances of the present case we hold OP-1 and OP-2 jointly and severally liable of deficiency in services and unfair trade practice and direct them to refund the booking amount of Rs. 50,000/-. As per terms and conditions, the complainant would not have been entitled to interest on the booking amount, had the refund been made within the stipulated time of 30 days but it has not happened in the instant case. Therefore, we also direct OP-1 and OP-2, to pay interest @ 9 % p.a. from the date of filing of present complaint till realization. We further award compensation of Rs. 15,000/- on account of mental harassment and agony, inclusive of litigation expenses.

This order be complied within 30 days from the receipt of this order, in case of failure, the compensation of Rs. 15,000/- shall also carry interest @ 9 % p.a. from the date of order till realization.

Copy of this order be sent to the parties as per rules.

File be consigned to record room.