BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 11 of 2013
Sri Abhijit Dhar,
S/O Late Arun Kumar Dhar
Arun Chanda Road, House No-2,
Sashan Road, Silchar. ……………………………………………………… Complainant.
-V/S-
1. Smart Motors Pvt. Ltd.,
Regd. Office Ramnagar, Tarapur
P.O- Ramnagar, P.S- Silchar……………………………………….. O.P No.1.
2. Mahindra & Mahindra Automotive Division,
Automotive Sector, Mahindra Tower, 3rd, Floor,
Akruli Road, Kandivali (East), Mumbai-400101 …………………….. O.P No.2.
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Sri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared :- Mr. Joydeep Biswas, Advocate for the complainant.
Mr. Ajoy Roy, Advocate for the O.P No.1
Mr. Joyanta Das, Advocate for the O.P No.2.
Date of Evidence……………………….. 20-08-13, 20-09-13, 17-02-18
Date of oral argument…………………. 10-12-2018
Date of judgment………………………. 24-12-2018
JUDGMENT AND ORDER
Sri Bishnu Debnath,
- This complaint has been brought under the provision of the Consumer Protection Act 1986 against Smart Motors Pvt. Ltd. (Show Room) at Silchar and against Mahindra & Mahindra Automotive Division, Mumbai for award of compensation for disservice/Unfair Trade Practice and for refund of balance amount of booking money.
- Brief facts:
The complainant, Sri Abhijit Dhar booked a Bolero SCX RCBY vehicle on 10-02-2012 at office of the Smart Motors Pvt. Ltd. (referred as O.P No.1) because O.P No.1 is authorized dealer of Mahindra & Mahindra Automotive Division, Mumbai (referred as O.P No.2) for selling of various class & type of vehicle of the O.P No.2. The O.P No.1 assured the complainant to deliver the vehicle within 1 (One) month from the date of booking but failed to deliver. Hence, the complainant after waiting few more months asked the O.P No.1 for delivery of the vehicle but O.P No.1 did not give satisfactory reply for delay. Accordingly, after waiting 4 (Four) months from the date of booking, serve a Advocate’s notice to the O.P No.1 with claim for refund of booking amount of Rs.30,000/- with interest at the rate of 18% per annum from the date of booking. The O.P No.1 in its reply through its advocate inform the complainant that there is no negligency on the part of the O.P No.1 for delay regarding delivery of the vehicle and also inform that prior to service of the advocate notice, the O.P No.1 asked the complainant that if the complainant desire he can take back booking amount without deduction by making a simple application but he served an advocate notice with intention to file case against the O.P No.1 which indicated that the complainant is litigation interested person. But in the reply letter the O.P No.1 never mentioned that if the booking is desire to cancel the O.P will deduct Rs. 10,000/- for booking amount. However, on several request the O.P No.1after 7 (Sever) months of booking refunded Rs. 20,000/- on 15-01-2013 vide cheque No. 560856. Hence, this case.
- The O.P No.1 in its W/S stated that the O.P No.1 committed no negligency in causing delay of delivery of the vehicle but the complainant after single conversation with O.P No.1 regarding the delay in delivery of the vehicle surprisingly issued notice through his advocate. In reply for which the O.P No.1 through its advocate have clearly stated that the complainant can take back his booking amount and cancel the booking by making a simple application. But the complainant instead of canceling the booking order again asked for the delivery of the vehicle for which O.P No.1 sought time for the delivery for which the complainant agreed. But after some days the complainant changed his mind and asked for the cancellation of booking of the vehicle. As such O.P No.1 reverted the information to the manufacturing company for needful and due to that cancellation the O.P NO.1 suffered huge inconveniences and loss and hence an amount of Rs.10,000/- only has been deducted as per clause- 9 of terms and conditions of vehicle order.
- The O.P No.2 in its W/S stated inter-alia that allegation mainly leveled against O.P No.1, hence the O.P No.2 has nothing to do. But in the W/S specifically admitted that O.P No.2 is dealer of O.P No.1 but O.P No.1 is not agent of the O.P No.2. Of course in paragraph No.6. the O.P No.2 specifically mentioned that O.P No.1 can not retain the money or adjust the same for any other transaction/account/balance etc. and O.P No.2 never encouraged such dealing nor instruction the O.P No.1 to deduct any amount whatsoever.
- During hearing the complainant submitted his deposition supporting affidavit and exhibited some documents including booking request, letter or corresponding with O.P No.1 and a photo copy of cheque of Rs. 20,000/-. The O.P No.1 and O.P No.2 also submitted deposition of Sri Manas Kumar Das and Surajit Sinha respectively. The O.P No.2 also exhibited a vehicle Order Taking Form vide
Ext-A. None has submitted written argument.
- I have heard oral argument of the Ld. Advocate of the complainant and perused evidence on record. None has appeared for oral argument on behalf of the O.Ps.
- In this case it is admitted fact that the complainant booked a vehicle with O.P No.1 on 10-02-2012 and paid Rs.30,000/- at the time of booking to the O.P No.1 vide Ext-1. It is also admitted fact that vehicle could not be delivered by the O.P No.1 to the complainant, rather refunded Rs.20,000/- by cheque on 15-01-2013 after deducting Rs.10,000/- by the O.P No.1 on accountof cancellation of booking order by the complainant vide Ext-4.
- The allegation of the complainant against the O.P No. 1 is that the vehicle was not delivered within the stipulated period of 30 days from the dated of booking and also failed to delivery within the period of 4 (Four) months due to negligency of the O.P No.1. The O.P No.1 denied the allegation. The O.P No.1 stated that due to various reasons and incidence a vehicle may not be delivered within 30 days. The probable cause of delivery in general are disclosed in the W/S. But from evidence of the O.P No.1 I do not find the exact cause for delay of delivery of the vehicle. Nothing explained by the O.P No.1 in its evidence regarding delay of delivery or the real cause for not receiving the booked vehicle from the O.P No.2.
- Of course, the O.P No.1 stated that Rs.10,000/- has been deducted from booking amount and balance amount paid to the complainant by cheque dated 15-01-2013. To justified the deduction, stated that as per clause-9 of the terms and conditions vide Ext-A, Rs.10,000/- deducted for cancellation of order of booking a vehicle.
- I have gone through the said clause. It is written in that clause-9 of the terms and condition vide Exe-A’ is reproduced below:-
“9. There shall be no interest payable on the advance deposit. In event of cancellation of order post allocation an amount of Rs.10,000/- shall be deducted from the advance payment. However, no cancellation shall be possible after the registration of the vehicle.”
- But I do not find any evidence on record to conclude that the deduction of Rs.
10,000/ made due to cancellation of allocation order of the vehicle in the name of the complainant. Moreover, the O.P No.2 in the evidence did not whispered that they received the booking order of the complainant and allocation order passed in respect of a particular vehicle bearing Engine Number and Chasis Number passed in favour of the complainant
- Therefore, the evidence on record leads me to conclude that the amount of Rs.10,000/- has been deducted by the O.P No.1 at the pre-allocation stage of the booking of the vehicle. As such the terms and conditions, vide Ext-‘A’ does not support the above deduction.
- So, the above action of the O.P No.1 for deduction of Rs.10,000/- is not done as per rule and such the said action of the O.P No.1 is graded as Unfair Trade Practice. The Unfair Trade Practice should not be encouraged by granting a nominal compensation. Rather a punitive compensation is justified to deter such type of action of a Trader/Service provider.
- In this case it is admitted fact of the O.P No.2 that the O.P No.1 is authorized dealer of the O.P No.2. Thus, the O.P No.1 is acting as an agent of the O.P No.2 so for as dealing of sale of vehicle manufactured by O.P No.2. As such the O.P No.2 is also liable for wrongful act done by O.P No.1. Therefore, both the O.P No.1 and O.P No.2 are jointly and severally liable to pay the compensation etc.
- Considering all aspect, I am directing the O.P No.1 to refund the deducted amount of Rs.10,000/- immediately to the complainant. The O.Ps are also liable to pay compensation for Unfair Trade Practice as well as deficiency of service to the complainant of Rs.15,000/- (Rupees Fifteen Thousand) only and for mantel agony of Rs.5,000/- (Rupees Five Thousand) only. They are also liable to pay cost of the proceeding of RS.3,000/- (Rupees Three Thousand) only. Accordingly they are asked to make payment of total compensation of Rs.33,000/-(Rupees Thirty Three Thousand) only within 45 days from today. In default, interest @ 10% per annum to be paid on aforesaid awarded amount till realization of full.
- With the above, this case is disposed of on contest. Supply free certified copy of judgment to the parties. Given under my hand and seal of this District Forum on this the 24th day of December,2018.
