Ramesh Bawri, Member:- The anguish that we experience deep within our hearts at the plight of the Consumer in this case compels us to break free from tradition and, even before narrating the facts and discussing the law, we declare straightaway that our decision goes in favour of the Consumer/Respondent Smt.Rekha Das and against the appellant No.1, M/S Bimal Auto Agency, as well as appellant No.2,   M/S Maruti Udyog Ltd.

 

 

 

 

 

“Delivery Intimation will be directly sent to you by our Authorised Dealer at the address mentioned overleaf, except for Delhi and Mumbai Customers, where delivery schedules will be initiated through advertisement in the local dailies.”

 

 

 

 

 

 

“In case of any dispute, the same will be subject to the jurisdiction of courts of the Union Territory of Delhi.”

 

“In the clause ‘any dispute arising out of this sale shall be subject to Kaira jurisdiction’ ex facie we do not find exclusive words like ‘exclusive’, ‘alone’, ‘only’ and the like. Can the maxim ‘expressio unius est exclusion alterius’ be applied under the facts and circumstances of the case? The order of confirmation is of no assistance. The other general terms and conditions are also not indicative of exclusive of other jurisdictions. Under the facts and circumstances of the case we hold that while connecting factor with Kaira jurisdiction was ensured by fixing the situs of the contract within Kaira, other jurisdictions having connecting factors were not clearly, unambiguously and explicitly excluded. That being the position it could not be said that the jurisdiction of the Court at Salem which Court at otherwise had jurisdiction under law through connecting factor of delivery of goods there at was expressly excluded.”

 

 

 

 

 

 

 

“We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer Protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, section 11 of the Act was amended. This section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words “carries on business or has branch office” were added by the amending Act of 1993. Jurisdiction of a District Forum is exclusively covered by section 11 of the Act. For this we do not have to refer any provisions of the code of Civil Procedure. Any provisions of the agreement which ousts the jurisdiction of the District Forum even from the place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of the Lucknow Courts. District Forum is not a Court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned.”

 

 

 

“11. Jurisdiction of the District Forum- (1) Subject to the other provisions of this Act the District Forum shall have jurisdiction to entertain complaints where the value of goods or services and the compensation, if any, claimed does not exceed rupees five lakhs.

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,--

 

(a)    the opposite party or each of the opposite parties, where there are more than one , at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b)   any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c)    the cause of action, wholly or in part arises.”

 

 

 

 

 

 

 

 

 

“The complainant is a resident of Shillong and at the time of making the delivery of the car by the opposite parties at Shillong through their agent i.e. opposite party No.3 during the year 1987-88, the complainant could have easily approached to the opposite party No.3 who runs his business at Shillong for taking the delivery of the car but the complainant failed to explain why she did not approach for taking delivery of her car at the office of opposite party No.3 who had been making delivery of the cars to all the applicants”.

 

 

“In our opinion, it will be much more reasonable to assume that in respect of complaints instituted against a corporation parliament intended that the Forum before which a complaint is instituted should have either the nexus or accrual of the cause of action within its territory or the location of the principal office of the corporation within its territory.”

 

 

 

 

 

 

“With reference to our telephonic discussion it is to inform you that some of our office records, files of our office have been seized by the Income Tax Department during their raid in our office on 27^th Nov’98. As such we are not in a position to supply/produce any document in connection with the above case.

 

However in usual practice when a booking matures party is intimated by Under Certificate of posting as these letters are sent in bulk and no office copy is usually kept.”

 

 

 

 

 

 

 

“Moreover, when the original complaint was not of the cognizance of the District Forum, it could not have entertained it at all. If, the complaint itself was not entertainable, there was no question of the District Forum considering any application for amendment in the complaint. We therefore hold that the complaint as originally filed was not coganizable by the District Forum and the District Forum had no jurisdiction to allow and amendment application bringing a complaint which was outside its pecuniary jurisdiction … within its jurisdiction.”

 

 

 

 

“Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leaves to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide , or that by his blunder, he had caused injury to his opponent which may not be compensed for by an order of costs. However, negligent or careless may have been the first omission, and however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.”

 

 

 

(i)                  delivery of a new Maruti-800 car at the price prevailing in the year 1987.

(ii)                Rs.3 lacs as compensation for damages, loss and harassment.

(iii)               Refund of the initial deposit of Rs.10,000/- with interest at 24 percent from 7.11.86 up to the date of payment.

 

 

(a)    The subject matter of the complaint falls within the realm of the civil court and hence the Forum lacks jurisdiction to decide the present complaint.

(b)   The complaint case involves complicated and disputed questions of law as well as fact which cannot be satisfactorily determined by the consumer forum under the Act, more so, for determination of the complicated issues of fact, evidence is necessary which can only be examined by the Civil Court.

 

 

“The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

 

It is amply clear that the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The provision of this Act give the Consumer an alternate remedy besides any other that may be available under other existing laws e.g. filing a civil suit.

 

 

 

 

 

 

“Therefore merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing a Consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It would be kept in mind that legislature has provided alternative, efficacious, simple inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground.”

 

 

 

“2(1)(d) ‘consumer’ means any person who –

(i)                  buys any goods for a consideration which has been paid or promised or partly paid or partly promised, or under any system of different payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose: or

(ii)                hires or avails of any services for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment when such services are availed of with the approval of the first mentioned person.

Explanation- For the purposes of sub-clause (i),“commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;”

 

It may be noticed that the above mentioned Explanation was added to the definition of the expression ‘consumer’ by Act 50 of 1993 w.e.f 18.06.1993 and its applicability to the instant case is not disputed by either side.

 

 

 

 

 

‘    “Consumer dispute” means a dispute where a person against whom a complaint has been made, denies or disputes the allegations contained in the complaint; ‘                      

    

            Even a cursory reading of this definition shows the fallaciousness of the                               Appellants argument. They have denied and disputed the allegations contained in the complaint made against them by the complainant and this is all that it takes to bring the matter within the definition of a ‘consumer dispute’ under the Act. Further reliance on the afore-mentioned decision by the Appellants is totally misplaced as it related to a dispute regarding delay in payment of interest on the amount deposited as advance price for a car, and this decision has no application to the facts of the case before us which is one relating to non-delivery of a long booked car. We therefore reject the Appellants plea on this      issue.

 

 

“2(1)(c) ‘complaint’ means any allegation in writing made by a complainant that –

 

(i)                  an unfair trade practice or a restrictive trade practice has been adopted by any trader;

(ii)                the goods bought by him or agreed to be bought by him suffer from one or more defects;

(iii)               the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;

(iv)              a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing any goods;

(v)                goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods,

           

            With a view of obtaining any relief provided by or under this Act;”

 

63. We are at a loss to understand as to how the Appellants could make such a non-factual allegation when the Complainant has unequivocally alleged in her complaint as follows:          

 

      “ That under the circumstances, the Opposite Party Nos.1 and 2 are guilty of unfair trade practices and deficiency of service to the Complainant and therefore liable for the same under the provisions of the Consumer Protection Act, 1986 as amended upto date.”

 

64. From the above allegations and a bare reading of Section 2(1) (c) of the Act quoted above it is obvious that the petition filed by the Complainant constitutes a valid complaint falling within the definition of complaint both under sub-clauses (i) and (iii) of Section 2(1)(c). We therefore need dwell up on this objection no further.

 

65. The last stand of the Appellants that still needs to be discussed with regard to the maintainability of the complaint is that the relief asked for by the complainant fall outside the ambit of clauses (a) to (i) of Section 14(1) of the Act. In this regard Appellants Counsel has relied on the decision of the National Commission in N.M.Narasimha Reddy –vs- Managing Director, Maruti Udyog Ltd. and Ors [ІІ(1991)CPJ 346].

 

66. Section 14(1) of the Act is reproduced below:

 

“ 14(1) If, after the proceedings conducted under the Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:-

 

(a)    to remove the defect pointed out by the appropriate laboratory from the goods in question;

(b)   to replace the goods with new goods of similar description which shall be free from any defect;

(c)    to return to the complainant the price, or, as the case may be, the charges paid by the complainant;

(d)   to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the Opposite Party;

(e)    to remove the defects or deficiencies in the services in question;

(f)     to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

(g)    not to offer the hazardous goods for sale;

(h)    to withdraw the hazardous goods from being offered for sale;

(i)      to provide the adequate costs to parties.”

 

67. We have already spelt out the various reliefs that have been sought for by the complainant in the forgoing paragraphs and these need no repetition. Bare perusal of these reliefs would show beyond doubt that this objection raised by the Appellant is thoughtless, mechanical and not deserving of the credence. The reliefs sought for fall within not one bit four of the sub-clauses of Section 14(1) of the Act viz., sub-clauses (c), (d), (e) as well as (f) thereof. The decision relied upon by the Appellants [ІІ (1991) CPJ 349], too has no bearing on the facts of the instant case.

 

68. Now coming to the merits of the Complaint Petition itself all we need to say is that while discussing the maintainability of the Complaint Petition in the foregoing paragraph the factual canvas of the Complaint Petition has already unfolded itself and we do not propose to burden this already over-loaded order by reiterating these facts.

 

69. The facts and records go to show beyond doubt that the Appellants did not allot the car to the Complainant/Respondent ever since the year 1990 while they allotted the cars to customers who had made their bookings even later than the Complainant. The Appellants have till date failed to deliver the Maruti 800 car which was booked by the Complainant as far back as in 1986 upon payment of booking advance. The Appellants sent no intimation to the Consumer about the allotment of the car and yet they insisted that they had done so – albeit in an absolutely vague, unconvincing and contradictory manner. The dealer claimed that the intimation was sent directly to the complainant while Maruti claimed that this was done by way of advertisement in the newspapers, which again not adequate, even assuming for a minute that such an advertisement was in fact made, in view of the specific condition of booking stated in Para 6 above. No dates were given, no copies were filed.

 

At the same time the Appellants denied the very receipt of any of the request and reminders sent by the complainant seeking allotment of the car, not to speak of taking any action thereon. Even the letter dated 25.5.95 sent by the Complainant through Registered post which the Post Office specifically certified had been delivered to both the Appellants, was denied to have been received by them. The Appellants all along retained and enjoyed the booking advance received by them from the Consumer without any justification and took no steps even to refund the same.

 

70. Even when the Complainant approached the District Forum, instead of resolving the dispute amicably or even seeking a resolution of the same at the hands of the Forum, the Appellants chose to raise all possible objections in order to deny the complainant her legal right to seek Redressal of her grievances in the Forum specially created by the law makers for this very purpose and did their utmost to defeat her rightful claim. A lady consumer was unnecessarily dragged into prolonged litigation for years together, surely at heavy cost in terms of both money and mental peace

 

71. Having applied our minds deeply to the merits of the case we feel that the weighty observations of the Honorable Supreme Court made in the landmark judgment that we shall refer to below are applicable in the facts and circumstances of the case at hand and these will be our beacons in deciding the case.

 

72. In Lucknow Development Authority –vs- M.K.Gupta (AIR 1994 SC 787) it was held vide para 2 that:

 

“The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to move the helplessness of the consumer which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to rob the rest and the might of public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common men helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting for it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.”

 

73 In paras 8 and 10 of the same judgment it was also held that the forum is entitled to award not only the value of the goods or services but also to compensate a consumer for the injustice suffered by him and further that the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evils and it may result in improving the work culture and help in changing the outlook.

 

74. In Charan Singh -vs- Healing Touch Hospital and ORS (AIR 2000 S.C. 3138) at paras 12 and 13 it was held:

 

“ While quantifying damages, consumer forum are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serve the purpose of recompensing the individual, but which also at the same time, aims to bring about the qualitative change in the attitude of the service provider.

 

It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc, suffered by the Appellant which is in issue-it is also the quality of conduct committed by the respondence upon which attention is required to be founded in a case of proven negligence.”

 

75. In M/S Vikas Motors Ltd –vs- Dr. P.K.Jain [AIR 2000 SC 102] there was delay in supply of the Maruti car booked by the consumer. During the period of delay the price had gone up and the supplier charged the higher price. On a complaint filed by the Consumer the District Forum directed the car suppliers to refund the extra amount to the Complainant. In appeal the State Commission upheld the order of the District Forum as it found that the suppliers had unjustifiably withheld the delivery. It further held that the consumer cannot be made to apply for the default of the suppliers if during the unauthorized delay in the delivery of the car its price had gone up. Had the suppliers conformed to both the letters and the spirit of the agreement between the parties no such situation would have arisen. In the Civil Appeal filed by the suppliers the Honorable Supreme Court upheld the aforesaid orders passed by the Consumer Forum.

 

It may be pointed out here that in the case referred to above the full value of the car had been paid by the consumer on demand made by the car suppliers. In the dispute before us this is not the case. Only the booking amount has been paid by the consumer and there was no demand note or allotment letter/ intimation was sent by the suppliers. In our view, this circumstance does not dilute the applicability of the ratio of the aforesaid judgment to the instant case.

 

76. Punjab Water Supply and Sewage Board –vs- M/S Udaipur Cement Works and Anr. (AIR 1996 SC 537) was a case in which the National Commission had held that no question of deficiency in service can arise so as to entitle the complainant to invoke the jurisdiction of the Consumer Forum when it was not a case of any defect in the goods supplied but only one where there was delay in supply and charging of a rate higher than the original rate. The Honorable Supreme Court however negated this view.

 

77. In the matter of Om Prakash –vs- Assistant Engineer, Haryana Agro Industries Corporation Limited and ANR [ ІІ (1994) CPJ 1(SC) ] which too was a case of delay in supply of a vehicle and in which the facts were quite similar to the instant case except that delivery of the vehicle had ultimately been made, the Honorable Supreme Court had held in no uncertain terms in para 10 thereof:

 

“It cannot be disputed that a trader intentionally delays the delivery of any goods to the consumer, because of which the consumer suffers, it shall amount to an unfair method or unfair practice adopted by the trader. As such after the  introduction of the Amendment by the Act No.58 of 1991 in Section 36-A, there should not be any difficulty in holding, that because of the unfair trade practice adopted by the respondent, the Appellant has suffered a loss and damage, within the meaning of Section 2(1) (c) (i) of the Consumer Protection Act, in respect of which he can file a complaint. The National Commission has pointed out that in the agreement, it had been stipulated that the appellant shall pay the price prevailing at the time of delivery. According to us, it is not of much consequence, once it is established that respondent intentionally postponed the delivery of the tractor to the appellant, although he was not entitled to the delivery much earlier but, according to the findings of the District Forum and the State Commission, he was without willing to take delivery of the tractor according to the list of booking.”

 

78.It needs to be put into record that we gave several opportunities to both sides to settle the matter amicably between themselves. Learned counsel for the Appellants also filed the communication dated 21.6.2000 from Appellant No.2 reading as follows:

 

“This is to inform you that as per Policy of Maruti Udyog Ltd. the booking amount of Rs.10,000/- along with upto date interest will be paid by Maruti Udyog Ltd. if the party claims as per procedure through us, However we are agreeable to pay the lumpsum amount of Rs.10,000/- for the inconvenience caused.”

 

As this offer for compensation of Rs.10,000/- for the inconvenience admittedly caused was not acceptable to the Respondent/Complainant, the matter was heard at length.

 

79. Multifaceted and lengthy have been the arguments of the Appellants and lengthily have we, perforce, had to deal with each and everyone of them even though we are conscious of the Act requires us to exercise our jurisdiction in a summary manner.

 

80. The enlightening extracts from the preceding judgments of the Apex Court as applied to the proven facts of the case discussed above, the conduct of the Appellant as revealed in the foregoing paragraphs and the plight of the consumer apparent throughout the discussions have left no doubt in our about the justifications of the Complainant’s complaint and her right to be adequately compensated for the unfair trade practices adopted by the Appellants and for the utter deficiency in service on their part.

 

81. In view of all the above discussion we are satisfied that the allegations made by the Complainant/Respondent are well founded and that there is proven deficiency in service on the part of Appellant Nos. 1 and 2 and further that they have caused loss and injury to the complainant due to their negligence.

 

82. In the circumstances, we therefore direct the Appellants Bimal Auto Agency and Maruti Udyog Ltd., jointly and severally, to deliver a brand new Maruti 800 car to Smt.Rekha Das at their basic price as was prevailing on 1.1.1988, after deducting the sum of Rs.10,000/- being the deposit amount and the interest accrued thereon at 7% p.a. compounded annually. The complainant is to make payment for the car at the time of delivery. It is, however made clear that the amount of Government taxes, duties and levies such as Central Excise Duty, Sales Tax, Octroi etc, payable by the complainant on the purchase of the car will be charged in accordance with the rates prevailing at the time of delivery. The Appellants shall offer the Car for delivery to the complainant within 30(thirty) days from the date of receipt of a certified copy of this order either by the learned counsel for the appellants or by the appellants.

 

The Appeal is disposed of with the aforesaid directions.