DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Mr. Lalit Mohan Dwivedi s/o Late Sh. R.C. Dwivedi, House No.D-9, Paras Das Garden, Shimla (H.P.)

                                                        ---Complainant

V E R S U S

[1]        Swami Automobiles Pvt. Ltd., 26B, Industrial Area, Phase-I, Chandigarh Ph: 0172-4544444 (Authorized Dealer : (Mahindra & Mahindra Ltd.), through its Director.

[2]        Mahindra & Mahindra Ltd., through its Director, Mahindra Towers, Doctor GM, Bhasle Marg Worli Mumbai 400018 022-24961441, 24901441.

---- Opposite Parties

BEFORE:          SH.LAKSHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA                        MEMBER

Argued By:    Sh. Deepak Aggarwal, Adv. for Complainant.

None for the Opposite Party No.1

Sh.Subhash Chand, Adv. proxy for Sh. Vaibhav Narang, Advocate for Opposite Party No.2.

PER MADHU MUTNEJA, MEMBER

1.             The Complainant had booked a Scorpio Model LXI/Red with the Opposite Party No.1 on 30.6.2010. He had deposited a sum of Rs.50,000/- as per booking amount. Opposite Party No.1 had promised to give delivery within a period of 1½ months. The Complainant thereafter kept waiting for the vehicle and despite many visits and exchange of mails between the parties, the vehicle was not delivered by Opposite Party No.1. 

                The Opposite Parties then told the Complainant that they would be able to give him delivery in September. As the expected time of delivery was in Sharads which according to the Complainant was an inauspicious time as per Hindu Mythology, he did not wish to take the car at that time. The Complainant therefore visited the Honda Showroom on 16.09.2010 and booked his car with them on 17.10.2010. He received delivery on 19.10.2010. Thereafter, the Complainant requested the Opposite Parties to refund the amount paid at the time of booking. The Complainant has stated that instead of making refund the Opposite Parties expressed that they would now be able to deliver the vehicle to him. Subsequently, the Opposite Parties sent a demand draft of Rs.51,397/- against the cancellation of booking of the said vehicle, which the Complainant accepted under protest.  The Complainant has thus filed the instant complaint by alleging that the act of the Opposite Parties by hurting his religious sentiments amounted to deficiency in service. He has also stated that the Opposite Parties are guilty of unfair trade practice. The Complainant has prayed that the ops be ordered to pay compensation, punitive damages and litigation expenses to him.     

2.             After admission of the complaint, notices were sent to the OPs.

3.             Opposite Party No. 1 in reply has admitted that Complainant had booked a vehicle by paying Rs.50,000/-. No promise was made to him with regard to time of delivery of vehicle.  The Complainant had wished to purchase a car of red colour only. If the choice of colour is not restricted, the booked vehicles are ordinarily delivered within 2 months. But when a particular colour preference is made delivery time cannot be committed especially since red is not a regular colour. Opposite Party No. 1 has denied all the averments of the Complainant about his religious sentiments. They have also stated that when the Complainant requested for refund the amount of Rs.50,000/- was refunded along with interest which was encashed by the Complainant. Praying that there is no deficiency in service or unfair trade practice, Opposite Party No. 1 has prayed for dismissal of complaint.

4.             Opposite Party No.2 in reply has stated that the Complainant is not a consumer qua them. He had only booked the vehicle manufactured by Opposite Party No. 2 with Opposite Party No. 1. Relationship of the Complainant with Opposite Party No. 2 would arise only if there arose manufacturing defect in the vehicle supplied. All transactions of purchase with dealers are on principal-to-principal basis and there is no privity of contract between the manufacturer and the ultimate customer. Further, the Complainant has not made any direct or indirect allegation against the Opposite Party No. 2. Hence, no cause of action has arisen in his favour against them.

                On merits, Opposite Party No. 2 has submitted that there is no policy to give promised or assured date of delivery of vehicles especially in cases of restriction of colour. Hence, the allegations of the Complainant as per Opposite Party No. 2 are irrelevant, baseless and vague. The amount paid by the Complainant at the time of booking has been refunded to him along with interest by Opposite Party No. 1. Mythological reasons are the choice of every particular individual. The Complainant took delivery of another car on 19.10.2010. On this date, he could have taken delivery of the red Scorpio also but he choose to take a refund from Opposite Party No. 1. submitting that the Opposite Parties are not guilty of any deficiency in service or unfair trade practice, Opposite Party No. 2 has also prayed for dismissal of the complaint. 

5.             Parties led evidence in support of their contentions.

6.             We have heard the learned counsel for the Complainant as well as Opposite Party No.2 and have perused the record. Since none appeared for the Opposite Party No. 1 on 16.02.2012, therefore, we proceed to dispose of this complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in the absence of the Opposite Party No. 1.

7.             As per the version of the Complainant he had booked Scorpio Model LXI/Red with the Opposite Party No.1 on 30.6.2010 and had been given an expected delivery time of 1½  month.  As the vehicle was not made available within the promised time and the Opposite Party No. 1 was expecting to give the delivery of the vehicle to the Complainant during Sharads which according to the Complainant was an inauspicious period, he choose to buy another car of Honda make and cancel his booking with Opposite Party No. 1. He has demanded compensation from the Opposite Parties for deficiency in service and unfair trade practice. 

8.             The Opposite Parties have submitted that there is no specific promise about the date of delivery. Also as the Complainant had demanded a vehicle of red colour only which was not a common colour the expected time of delivery could not be ascertained/ specified. The Complainant hence choose to purchase another vehicle of another make. Opposite Party No.1 accordingly refunded the amount paid by him at the time of booking along with interest. Opposite Party No. 2 being the manufacturer had stated that at this stage there was no direct dealing with the Complainant as their role would start only when delivery of the vehicle had been handed over to the Complainant and the warranty would commence.

9.             Looking at the entirety of the situation, it seems that the Complainant was in a hurry to get the delivery of the vehicle booked by him due to religious sentiments. The Opposite Party No. 1 was unable to deliver the car as per the requirement of the Complainant. He thus opted for another car from Honda. Opposite Party No.1 has already refunded the amount paid by him along with interest. Now, nothing is due from them to the Complainant. There is no document on record to show/ prove the averment about the specific time of delivery. In the absence of such a specific promise by either Opposite Party No. 1 or Opposite Party No. 2, we do not feel that there is much substance in the complaint.  Expectations against religious sentiments and allegations of deficiency in service and unfair trade practice for non-compliance/ non-delivery of vehicle against emotional feelings with regard to religion cannot be an acceptable  ground for allowing such a complaint. Hence finding no merit in the allegations, we dismiss this complaint with no order as to costs.

10.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

21^st February, 2012.                                               

Sd/-

 (LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER