Tripura

StateCommission

A/9/2016

Oscar Motors Private Ltd. - Complainant(s)

Versus

Sri. Pradip Rathore. - Opp.Party(s)

Mr. Raju Datta

20 Aug 2016

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/9/2016

 

 

 

1. Oscar Motors Private Ltd.,

Chinai Hani, Natun Nagar, Airport Road,

Agartala, West Tripura,

(Represented by its Manager)

                                                            ….    ….    ….    ….    Appellant.

                                                           

 

                   Vs

 

 

1. Sri Pradip Rathor,

S/o Sri Dilip Kumar Rathor,

Rathor Bhavan, Palace Compound, North Gate,

Beside BSNL Office, Agartala, West Tripura,

 

                                                  ….    ….    ….    ….    Complainant/Respondent.

2. Ford India Private Ltd.,

(Wholly owned subsidiary of the Ford Motor Company in India),

S.P. Koil Post, Chengalpattu, Chennai, Tamil Nadu,

(Represented by its Managing Director)

….    ….    ….    ….    Opposite Party/Respondent.

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

For the Appellants             :         Mr. A.K. Bhowmik, Adv. & Mr. Raju Datta, Adv.

For the Respondent No.1   :         Mr. Sandip Datta Chowdhury, Adv., Miss. Titu Rani Shil, Adv.

& Mrs. Dipaxi Debnath, Adv.

For the Respondent No.2   :         Mr. Rajib Saha, Adv. & Mr. B.N. Majumder, Adv.

Date of Hearing                 :         03.08.2016. 

Date of delivery of Judgment:       20.08.2016

 

 

J U D G M E N T

 

 

 

S. Baidya, J,

This appeal filed on 10.03.2016 by the appellant, Oscar Motors Private Ltd. under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment dated 10.02.2016 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-29/2015 whereby the Ld. District Forum allowed the application filed under section 12 of the Consumer Protection Act and directed the opposite party no.2, the appellant herein to refund Rs.50,000/- to the petitioner along with interest @9% from the date, 11.07.2014 till the date of payment. It further appears that by the said judgment, the opposite party no.2 was also directed to pay Rs.40,000/- to the petitioner, Pradip Rathor for harassment, mental agony, deficiency in service and unfair trade practice and also Rs.2,000/- as cost of litigation. It further appears that by the said judgment, the opposite party no.2 was allowed two months time to make such payment, failing which the said amount will carry interest @9% per annum.

2. The case of the appellant, as narrated in the memo of appeal, in brief, is that the respondent no.1 Pradip Rathor-complainant filed a complaint under section 12 of the C.P. Act claiming compensation of Rs.2,55,000/- on the ground that the complainant booked one Ford Eco Sport vehicle with the respondent no.2, the appellant herein and paid Rs.50,000/- by A/C Payee Cheque. It is alleged that the appellant is the wholly owned subsidiary of the Ford Motor Company and accordingly, the appellant issued the money receipt for Rs.50,000/- received by him and at the same time, the booking was also confirmed stating that the booking confirmation is valid for one month and the vehicle will be delivered after getting supply order along with full payment and it was verbally assured that the vehicle will be delivered within four months and at the time of booking, the price of the said vehicle was at Rs.9,82,535/-.
3. It is also alleged that thereafter, on several dates the complainant visited the office of o.p.no.2 and also sent e-mail, but even after the lapse of six months, the vehicle was not delivered. It is also alleged that after seven months of the said booking, the respondent no.1 lodged the complaint before the Ld. District Forum claiming compensation for the amount mentioned earlier.
4. It is also alleged that the o.p.no.1 Ford India Private Ltd., the respondent no.2 herein, submitted written objection in the name of reply alleging, inter alia, that the relationship between o.p.no.1 and the o.p.no.2 is purely on principal to principal basis, wherein each party is responsible for its own action and neither of them is responsible for the acts or the actions of the other. It was also stated that the o.p.no.1 is manufacturer of the vehicles and the o.p.no.2 is the dealer and not the agent of the o.p.no.1.  It was also alleged that the booking money was received by the o.p.no.2 of its own and not on behalf of the o.p.no.1 and having no privity of contract between the o.p.no.1 and the complainant, the o.p.no.1 is an unnecessary party. In the said written objection, the o.p.no.1 also challenged the maintainability of the complaint case on the ground that the complainant is not a ‘consumer’ as defined under section 2 (1) (d) of the Consumer Protection Act and therefore, prayed for dismissal of the complaint case.
5. It is also alleged that the o.p.no.2, the appellant herein, submitted written objection challenging maintainability of the case alleging, inter alia, that the complainant is not a ‘consumer’ within the meaning of the Consumer Protection Act, 1986 and also stating that the booking was confirmed and the vehicle would be delivered after getting firm supply order along with full payment from the complainant subject to availability of the vehicle. It was also alleged that the complainant lodged the complaint in suppression of the material facts and records of the second quotation-cum-proforma invoice dated 13.08.2014 quoting the total price at Rs.9,92,458/- and the third quotation-cum-proforma invoice dated 12.03.2015 quoting the total price of Rs.10,55,425/-. It was also alleged that in spite of intimation regarding the price escalation of the booked vehicle, the complainant informed nothing to the o.p.no.2 showing his readiness to purchase the said vehicle at the enhanced price. It was also alleged that time and again, the o.p.no.2 through its employee informed the complainant to receive back the booking money of Rs.50,000/- when the o.p.no.2 could not make arrangement to deliver the booked vehicle to the complainant even after the expiry of five months from the date of booking, but the complainant refused to take back the booking money. It was also alleged in the written objection that there was no deficiency in service on the part of the o.p.no.2 and having no cause of action, the o.p.no.2 prayed for dismissal of the complaint.
6. It is also alleged in the memo of appeal that the Ld. District Forum passed the impugned judgment dated 10.02.2016 and thereby being aggrieved and dissatisfied, the appellant has preferred the instant appeal on the grounds that the Ld. District Forum failed to consider that as per section 2 (1) (d) of the Consumer Protection Act, the respondent no.1-complainant is not a consumer and the complaint so lodged was not maintainable, that the Ld. Forum failed to consider that as per instruction of the respondent no.2, Ford India Private Ltd., the appellant offered and tried to refund Rs.50,000/- deposited by the respondent no.1 with the appellant as booking money, that the Ld. Forum wrongly made out a third case holding that the appellant was doing unfair trade practice, that the Ld. Forum failed to consider that the complainant did not earn any absolute right to claim delivery of vehicle on the strength of conditional booking, that the direction of the Ld. District Forum given in the impugned judgment are beyond all parameters of law and is not sustainable legally and that the impugned judgment is otherwise bad in law and is liable to be set aside and reversed and hence, the instant appeal has been preferred.  

       

Points for Consideration

7. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment and (ii) whether the judgment under appeal should be set aside or otherwise as prayed for.

 

Decision with Reasons     

8. Both the points are taken up together for the sake of convenience and brevity.
9. Going through the pleadings of the parties, the evidences, documents, the impugned judgment, we find certain admitted facts. Admittedly, the complainant Pradip Rathor booked one Ford Eco Sport 1.0P Tit (+) vehicle with the appellant on 11.07.2014 after paying an advance of Rs.50,000/- vide A/C Payee Cheque as booking money. It is also admitted fact that the appellant had encashed the said cheque.
10. It is also not disputed that the o.p.no.1, Ford India Private Ltd. was not aware about the said booking because the dealer, the appellant herein, never discloses the name of the person booking the vehicle, but only places the order for vehicle. It is also admitted fact that the said booking was valid for one month as per quotation-cum-proforma invoice dated 17.06.2014. It is also admitted fact that the said booking was confirmed vide letter dated 11.07.2014 wherein the complainant and the appellant signed undertaking to abide by all the terms and conditions mentioned therein. It is also admitted fact that at the time of booking confirmation, the appellant verbally assured the complainant that the aforesaid vehicle would be delivered within four months from the date of booking of the said vehicle. It is also admitted fact that at the time of booking, the price of the vehicle as per the quotation dated 17.06.2014 was at Rs.9,82,535/-.
11. The Ld. Counsel for the appellant submitted that the appellant as o.p.no.2 in the complaint case no.CC-29/2015 submitted written objection challenging the maintainability of complaint case on the ground that the complainant, the respondent no.1 herein, is not a consumer within the meaning of section 2 (1) (d) of the Consumer Protection Act, 1986 and the argument was also advanced on this point from the side of the appellant who was the o.p.no.2 before the Ld. Forum, but unfortunately, the Ld. District Forum uttered not a single word on this point in the impugned judgment and erroneously passed the judgment treating the complainant as consumer under the C.P. Act. He also submitted that the booking of the vehicle on 11.07.2014 by the complainant with the present appellant was subject to availability of the vehicle. He also submitted that the booking of the vehicle by a prospective buyer on deposit of booking money with the dealer does not make the said prospective buyer a consumer as defined under the C.P. Act. He also submitted referring to a decision of the Gujarat State Consumer Disputes Redressal Commission reported in (1996) 2 CPJ 229 quoting the decision of the Hon’ble National Commission in a case between M.N. Narasimha Reddy Vs M.D., Maruti Udyog Ltd. and others reported in II (1991) CPJ 346 (NC) that the definition of ‘consumer’ contemplates a pre-existence of completed transaction of sale and purchase and the person who has merely entered into an agreement for purchase of goods will not fall within the scope of the definition of consumer. He also referred to the principle of law laid down by the Hon’ble National Commission in First Appeal No.67 of 1990 (M.N. Narasimha Reddy’s case) and submitted that in a similar case the Hon’ble National Commission has been pleased to hold that the complainant was not a consumer as defined under section 2 (1) (d) of the C.P. Act.
12. The Ld. Counsel for the appellant also submitted that the complainant booked the vehicle on 11.07.2014 on the basis of the price quoted in quotation-cum-proforma invoice dated 17.06.2014 which discloses On Road Price at Rs.9,82,535/-, but thereafter, the price of the booked car has been increased to Rs.9,92,458/- as per quotation-cum-proforma invoice dated 13.08.2014 and thereafter, the price of the booked car has further been increased to Rs.10,55,425/- as per quotation-cum-proforma invoice dated 12.03.2015. He also submitted that the enhancement of the price of the booked car for two times i.e. on 13.08.2014 and on 12.03.2015 have been duly communicated by the o.p.no.2 to the complainant, but the complainant did not make any positive response expressing his intention to buy the booked vehicle at the enhanced rate prevailing at the time of delivery of the booked car to him.
13. The Ld. Counsel for the appellant also submitted that the o.p.no.2 through an e-mail dated 12^th January, 2015 informed the complainant that they were facing some billing and transit issues for 3-4 months and they expected to start their billing in February, 2015. He also submitted that due to such billing and transportation problems, the o.p.no.2 could not receive the booked car from the Ford India Private Ltd. to deliver the same to the complainant and at the same time, the complainant was also offered by the o.p.no.2 to take the refund of booking money of Rs.50,000/-, if he intended to accept the said refund, but the complainant, in spite of offer to refund the booking money, did not accept the proposal. He also submitted that the o.p.no.2 intending to refund the booking money to the complainant issued a cheque dated 25.02.2015 and sent the same to the complainant when the o.p.no.2 found that the booked car was not available to deliver to the complainant, but the complainant refused to accept the cheque. He also submitted that the o.p.no.2 time and again requested the complainant to receive back the booking money, but the complainant, instead of accepting that proposal, lodged the complaint with the Ld. District Forum making false allegation of deficiency in service on the part of the o.p.no.2, although there was no deficiency in service on the part of the o.p.no.2. He also submitted that the complainant made out no case of unfair trade practice against the o.p.no.2, but the Ld. District Forum has made out a third case of unfair trade practice while writing out the judgment and passed an erroneous judgment after making out a third case. He also submitted that the Ld. District Forum overlooking all such material points erroneously passed the impugned judgment holding the o.p.no.2 liable to make compensation for the deficiency in service and unfair trade practice. He also submitted that in that view of the matter, the impugned judgment is not sustainable in law and should be set aside and the appeal should be allowed.
14. The Ld. Counsel for the respondent no.2 who is the opposite party no.1 in the complaint case submitted that the respondent no.2 Ford India Private Ltd. is a manufacturing Company of the motor vehicles and the o.p.no.2, the appellant herein, is a dealer. He also submitted that the present appellant is not the agent of the respondent no.2. He also submitted that according to the agreement arrived at between the manufacturer and the dealer, the transactions between the manufacturer and the dealer are on principal to principal basis. He also submitted that the dealer (appellant) did not accept the booking money from the complainant as agent of the manufacturer (respondent no.2). He also submitted that the appellant as dealer accepts the amount on his own behalf and then places the order to the manufacturer for the supply of the motor vehicle against the payment. He also submitted that the dealer does not place the order with the respondent no.2 to supply the vehicle mentioning the name of the person who booked the car. He also submitted that the dealer maintains a list of the persons who booked the vehicle with them. He also submitted that the complainant, in fact, did not claim relief against the respondent no.2 in the complaint and the Ld. District Forum also granted no relief against the respondent no.2 (o.p.no.1). He also submitted that as the respondent no.2 is not the principal of the dealer (appellant), the question of devolving liability upon the respondent no.2 on the application of the principle of vicarious liability on the basis of principal and agent relationship does not arise at all. He also submitted that barring this, the respondent no.2 has nothing more to say.
15. The Ld. Counsel for the respondent no.1 submitted that the complainant booked a vehicle with the present appellant for using it personally. He has not booked the vehicle for resale or any commercial purpose as provided under section 2 (1) (d) (i) of the C.P. Act. He also submitted that the complainant booked the vehicle and paid Rs.50,000/- with such booking as part payment and as such, he falls within the ambit of the definition of consumer as provided under section 2 (1) (d) of the C.P. Act. He also submitted that it is the specific case of the appellant as o.p.no.2 that due to billing and transporting problem, the appellant could not bring the booked car from the plant of the Company, but the complainant in the Ld. Forum produced document after obtaining the same from the office of the Joint Transport Commissioner, Transport Department, Agartala, Tripura through RTI , wherefrom it appears that the Transport Department was asked to reply as to how many vehicles manufactured by Ford India Company sold by Agartala Dealer have been registered with the Transport Department with effect from 11.07.2014 till the date of application i.e. on 01.04.2015. He also submitted that the Transport Department in their reply dated 12^th April, 2015 stated that 12 numbers of vehicle were registered with the Transport Department by the office of Ford India Private Ltd. He also submitted referring to section 43 of the Motor Vehicles Act, 1988 that after purchasing a motor vehicle, the owner of that vehicle requires to apply to the Registering Authority to have the vehicle temporarily registered and also for issue of a temporary certificate of registration and a temporary registration mark. He also submitted that the temporary registration of the vehicle must not be for a period exceeding one month and also is not renewable. He also submitted that within one month, the owner of the vehicle has to apply for permanent registration of his vehicle. He also submitted making reference to the information received from the Transport Department that 12 numbers of vehicle have been registered in between 11.07.2014 to 01.04.2015. He further submitted that this goes to establish that even after the date of booking of the car by the complainant, the appellant purchased vehicles of different models from the plant of Ford India Private Ltd., Tamil Nadu and brought the same to Agartala by the appellant and those vehicles were duly registered with the Transport Department of the Government of Tripura. He also submitted that in that view of the matter, the plea of the appellant that due to alleged billing and transport problem, the appellant could not purchase and bring the booked car from the plant of the Ford India Private Ltd., Tamil Nadu, does not stand at all and here the Ld. Forum rightly found the present appellant deficient in service by not supplying the booked car to the complainant as stipulated in the booking certificate.  
16. He also submitted that the appellant in the Ld. Forum submitted a cheque on 25.02.2015 for an amount of Rs.50,000/- towards the refund of the booking money. He also submitted that it is the specific case of the appellant that due to the escalation of the price of the booked vehicle for the second time amounting to Rs.9,92,458/- and for the third time to Rs.10,55,425/-, the appellant sent the quotation-cum-proforma invoice dated 13.08.2014 and 12.03.2015 respectively to the complainant showing that the complainant was duly informed regarding the escalation of the price of the booked vehicle. He also submitted that if the cheque dated 25.02.2015 for an amount of Rs. 50,000/- showing the intention to refund the booking money was really issued on 25.02.2015, the question of sending the quotation-cum-proforma invoice dated 12.03.2015 would not arise at all. He also submitted that this circumstance clearly indicates that the said cheque bearing dated 25.02.2015 referred to above is an antedated one. He also submitted that the appellant produced nothing in the Ld. Forum for establishing that the appellant really sent the said cheque dated 25.02.2015 to the complainant towards the refund of the booking money of Rs.50,000/- after cancelling the said booking.
17. The Ld. Counsel for the respondent no.1 also submitted that the complainant practically sought for no relief against the Ford India Private Ltd. (o.p.no.1), the respondent no.2 herein and as such, the Ld. District Forum also granted no relief against the Ford India Private Ltd. (o.p.no.1). He also submitted that the Ld. District Forum rightly found the present appellant deficient in providing proper service to the complainant and accordingly, passed the award by the impugned judgment, which, being proper, legal and justified, should be affirmed and the appeal having no merit should be dismissed.
18. It is the specific case of the appellant-o.p.no.2 that complainant booked his car on 11.07.2014, but due to billing and transporting problem, the o.p.no.2 could not purchase and bring any car from the plant of Ford India Private Ltd., Tamil Nadu to Agartala. The o.p.no.2 by its e-mail dated 12^th January, 2015 informed the complainant that they were facing some billing and transit issues for last 3-4 months and hopefully they would start their billing in February, 2015. Assuming that there were some billing and transporting problems from the month of September, 2014, although the car was booked on 11.07.2014, but the O.P.W.2 Ashim Biswas who is the Sales Executive and examined for the o.p.no.2, stated in the first line of his cross-examination that “our local office has not received any vehicle during the period from 17.06.2014 to 25.03.2015. In the next line, he admitted in his cross-examination that during the aforesaid period, they sold different model of vehicles in different districts of Tripura. Admittedly, the o.p.no.2 Oscar Motors Private Ltd. used to deal and deals in motor vehicles manufactured by the o.p.no.1 Ford India Private Ltd. This O.P.W.2 admitted in his cross-examination that vehicles are transported from factory to their showroom at Agartala by road. He also admitted that the vehicles sold during the aforesaid period i.e. in between 17.06.2014 to 25.03.2015, were also brought to Agartala by using the same road. He also admitted that at the time of booking of vehicle, he assured the complainant that the vehicle would be delivered within 4-5 months. If we take into consideration the submission of the Ld. Counsel for the complainant-respondent no.1 with reference to section 43 of the Motor Vehicles Act, it is palpable that the o.p.no.2 purchased and brought many vehicles from the plant of the o.p.no.1 and sold the same to different customers in Tripura in between 17.06.2014 to 01.04.2015. At least, it is apparent from the reply of the Transport Department through RTI that 12 vehicles of different models manufactured by Ford India Private Ltd. were registered with the Transport Department, Government of Tripura in West Tripura in between 17.06.2014 to 01.04.2015. The deposition of O.P.W.2 does not establish that among the said 12 registered vehicles, Ford Eco Sport 1.0 (P) Tit (+) was not registered. This, on the other hand, goes to establish that actually there existed no billing and transporting problems as indicated in the e-mail dated 12.01.2015 mentioned earlier. So, the plea of the appellant that due to billing and transporting problems in purchasing the booked car of the complainant and also in bringing the same from the factory/plant of the o.p.no.1 Company at Tamil Nadu to Agartala does not stand at all. It is true that the complainant in so many words did not plead alleging that the o.p.no.2 is guilty of unfair trade practice. If we go through para-23, 24 and 25 of the complaint, we find that there involves the element of unfair trade practice. Without going through the merit of the impugned judgment, it can be said that the Ld. District Forum did not make out any third case of unfair trade practice. So, the submission made by the Ld. Counsel for the o.p.no.2-appellant regarding making out a third case by the Ld. District Forum in course of writing out the judgment is not acceptable.
19. Admittedly, as per quotation-cum-proforma invoice, there was no terms and conditions of agreement that with the increase of price of the booked car from time to time, the matter will be informed to the intending purchaser by sending another quotation-cum-proforma invoice containing the rate of increased price of the booked car. From the quotation-cum-proforma invoice dated 17.06.2014, we find that as per terms and conditions no.1, price and specifications are subject to change without any prior notice. As per terms and conditions no.2, price prevailing at the time of delivery of car will be applicable and terms and conditions no.3, payment to be made in full before delivery. So, as per terms and conditions nos.1 & 2, it was not at all necessary on the part of the o.p.no.2 to send the quotation dated 13.08.2014 and the quotation dated 12.03.2015 to the complainant showing the increase of the price of the booked car. In this regard, O.P.W.1 Abhijit Paul, the Managing Director of o.p.no.2 stated in his cross-examination that second and third quotations dated 13.08.2014 and 12.03.2015 respectively were sent to the complainant in writing, but in the next breath, he stated in his cross-examination that all the quotations were given to the complainant by hand, but the o.p.no.2 failed to establish by producing any document that the o.p.no.2 handed over the said two quotations to the complainant on two different dates mentioned earlier. The O.P.W.1 stated in his cross-examination that during the period from 11.07.2014 to 01.04.2015 they did not receive any model of vehicle from the Company, but the o.p.no.2 produced no stock register, purchase register and sale register before the Ld. Forum for establishing that during this intervening period, the o.p.no.2 purchased no vehicle manufactured by Ford India Private Ltd. and no vehicle was also brought from Tamil Nadu to Agartala and also no vehicle was sold by them to any customer in Tripura. The non-production of the stock register and also purchase and sale registers from the side of the o.p.no.2 have made it clear that the o.p.no.2 was not in clean hand.
20. It is the case of the respondent no.1 Ford India Private Ltd. that the Company supplies vehicle to its authorized dealers across the country on a no name basis and as such, the Company is not aware as to which customer has booked the vehicle. As per case of the respondent no.1, all the authorized dealers of the respondent no.1 maintained a list of intending purchasers of the different models of car as per booking. It transpires that the complainant requested more than once to the o.p.no.2 to supply him the booking number and the date, but the o.p.no.2 is found avoided to supply the same. According to us, at least o.p.no.2 could show the date of order placed by it with the Company intending to purchase of the category of booked car of the complainant from the Ford India Private Ltd. after the booking of the said car by the complainant on 11.07.2014. This also indicates that o.p.no.2 was not in clean hand in dealing with the complainant and here lies the deficiency in service on the part of the o.p.no.2 towards the complainant.
21. As per case of the o.p.no.2, they sent the quotation dated 12.03.2015 showing the further increase of the price of the booked car to the complainant, but the cheque for Rs.50,000/- allegedly issued by the o.p.no.2 in favour of the complainant on 25.02.2015 towards the refund of the booking money belies the story of the o.p.no.2 regarding the sending or hand over the quotation dated 12.03.2015 to the complainant. So, the story made out by the o.p.no.2 in this regard is not believable. Not only so, if we believe the story of sending or supply of the said quotation dated 12.03.2015 to the complainant, it must be held that the cheque for Rs.50,000/- allegedly issued by the o.p.no.2 in the name of the complainant Pradip Rathor on 25.02.2015 is antedated one. From this standpoint also, it can be said without any hesitation that the alleged cheque for Rs.50,000/- towards the refund of the booking money in the name of the complainant is a matter of afterthought and prepared for the purpose of creating evidences to make its case believable. So, it cannot be said that the findings of the Ld. District Forum to the effect that the o.p.no.2 is liable for deficiency in service and unfair trade practice, is altogether unfounded one.
22. The most vital issue raised by the appellant-o.p.no.2 and the respondent no.2-o.p.no.1 is whether the complainant is a ‘consumer’ as defined under section 2 (1) (d) of the C.P. Act, 1986 or whether the complaint so lodged by the complainant is at all maintainable under the said Act. In this regard, we find it appropriate to quote the definition of ‘consumer’ as defined under section 2 (1) (d) of the C.P. Act, 1986 which runs as follows:-

 (d) “consumer” means any person who,—

“(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred 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 and 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 and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;”

23. The Ld. Counsel for the respondent no.1-complainant submitted before us that the booking money of Rs.50,000/- can be considered as part payment of the price of the booked car and this part payment may be considered as part performance of the agreement arrived at between the complainant and the o.p.no.2 for purchasing the booked car. This submission of the Ld. Counsel for the respondent no.1 leads us to look into section 53A of the Transfer of the Property Act, 1882 which deals with doctrine of part performance of contract for sale. The first part of section 53A of the Transfer Property of 1882 clearly provides that such contract or agreement to transfer for consideration must be in respect of immoveable property. It is needless to say that the vehicle or the car is a moveable property and as such, the doctrine of part performance provided in section 53A of the T.P. Act, 1882 as submitted by the Ld. Counsel for the respondent no.1-complainant is not applicable in the instant case.
24. From the case referred by the Ld. Counsel for the appellant-o.p.no.2 reported in 1991(2) CPJ 346 over the definition of ‘consumer’, we find that the Hon’ble National Commission is of the view that:

“(6) In order to satisfy the requirement of Clause (i), there must have been a transaction of buying of goods for consideration. The definition contemplates the pre-existence of a completed transaction of sale and purchase and the person who has merely entered into an agreement for purchase of goods will not fall within the scope of the said definition. On a combined reading of Clauses (c) and (d) of Section 2(1) of the Act wherein we get the definitions of "complainant" and "consumer" it is abundantly clear that in relation to transactions of purchase of goods, a valid complaint can be made only in respect of the existence of one or more defects in the goods supplied or the charging by the trader of a price for the goods' 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 such goods. It is thus seen that the scheme of the Act is that a transaction of sale and purchase of goods should have already taken place and the complaint must relate either to any defect from which the goods applied to the complainant suffer or the charging of excessive price by the trader for the goods supplied.

(7) The complainant in the present case has not sought any relief on the basis that he had hired the service of the opposite parties nor has any relief been claimed by him on the basis of any alleged 'deficiency' in the service. Hence the second part of the definition of the "consumer" contained in Section 2 (1) (d) (ii) is not relevant in the present context.”

25. In the present case, the complainant made agreement to purchase a car Ford Eco Sport 1.0P Tit (+) with the o.p.no.2, the appellant herein, on deposit of Rs.50,000/- as booking money. From the observation of the Hon’ble National Commission quoted above, it is evident that the definition of ‘consumer’ contemplates the pre-existence of a completed transaction of sale and purchase, and the person who has merely entered an agreement for purchase of goods will not fall within the scope of the said definition of ‘consumer’. So, in view of the above observation of the Hon’ble National Commission, it is crystal clear that the complainant does not fall within the ambit of the definition of ‘consumer’ as defined under section 2 (1) (d) of the C.P. Act, 1986. That being the position, complaint lodged by the complainant as ‘consumer’ before the Ld. District Forum is found not legally maintainable and it is, therefore, liable to be dismissed being non-maintainable before the Consumer Fora under the Consumer Protection Act, 1986. The remedy of the complainant, if any, lies in the Civil Court claiming for refund of the booking money with interest and also for damages, if any.
26. As the complaint lodged by the complainant is found not legally maintainable before the Consumer Fora under the C.P. Act, so the impugned judgment passed by the Ld. District Forum on a non-maintainable complaint cannot be sustained in the eye of law and as such, it is liable to be set aside and the appeal should be allowed.
27. In the result, the appeal succeeds. The impugned judgment dated 10.02.2016 passed by the Ld. District Forum, West Tripura, Agartala in case no.CC-29/2015 stands set aside. There is no order as to costs.

 

 

                 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura