Punjab

Nawanshahr

CC/43/2014

Rachpal Singh Thind - Complainant(s)

Versus

Tata Motors Limited, - Opp.Party(s)

B.S Rai, AK Chauhan

21 Nov 2014

ORDER

DISTRICT CONSUMER DISPUTES   REDRESSAL FORUM, SHAHEED BHAGAT SINGH NAGAR

 

Consumer Complaint No. 43 of 23.04.2014

Date of Decision            :   21.11.2014

 

Rachpal Singh Thind S/o Kartar Singh R/o VPO Lengeri, Tehsil Banga, District S.B.S. Nagar.

….. Complainant

 

Versus

 

1.       The General Manager, Tata Motors Limited, Passenger Car Business Unit, 5^th Floor, One Forbes, Dr.V.B. Gandhi Marg, Mumbai, Registered Office, Bombay House, 24 Homi Modi Street, Mumbai.

2.       Regional Office of Tata Motors Limited C/o Kapoors Automobiles Private Limited P.O. Khanna Nagar, Majitha Bypass Amritsar.

3.       The Manager Cargo Motors, Branch Office BSF Chowk, Jalandhar.

4.       The Manager Cargo Motors, Chandigarh Road, Nawanshahr, District S.B.S. Nagar.

5.       The State Bank of India, Branch Jalandhar, through its Manager.

6.       The State Bank of India Branch Jalandhar Cantt, through its Manager.

7.       The State Bank of India, Railway Road, Branch Banga, Distt. S.B.S. Nagar. 

 

Opposite parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

BEFORE: 

SH.ASHOK KUMAR, PRESIDENT

S. KARNAIL SINGH, MEMBER

MS.SUDHA SHARMA, MEMBER

                            

COUNSEL FOR THE PARTIES:

For complainant   :         Sh.A.K. Chauhan, Advocate

For OPs No.1&2  :         Ex parte

For OPs No.3&4  :         Sh.Avtar Manmohanjit Singh, Advocate

For OPs No.5&6  :         Ex parte.

For OP No.7                  :         Sh.Nobel Sareen, advocate

 

ORDER

PER SH.ASHOK KUMAR, PRESIDENT

 

Complainant - Rachpal Singh Thind has filed instant amended complaint against the OPs under Section 12 of the Consumer Protection Act, 1986 to seek a direction to them to pay the amount of Rs.1,40,000/- alongwith interest till realization, Rs.1,00,000/- for deficiency in service and Rs.50,000/- as litigation expenses.

2.                The case of the complainant in brief is that that he had applied for Nano LX BS3 car booking vide application No.UIN:112700021 which started on Apr.09, 2009 and closed on 29^th  Apr. 2009.  The booking form was available from State Bank of India, Branch Banga, Distt. Nawanshahr.  He submitted duly filled form for the purpose alongwith booking amount of Rs.1,40,000/- on 11.04.2009 which was deposited in the account of the complainant of State Bank of India, Banga Branch.  Thereafter, the said amount was transferred in the shape of demand draft in favour of Tata Motors Limited in the State Bank of India, Jalandhar Branch in account No.1028 244789.  It is the case of the complainant that he was assured by the Manager of Tata Motors Limited Amritsar No.2 that as and when the vehicle will be available at Cargo Motors, BSF Chowk Jalandhar and at Cargo Motors Nawanshahr, he would be given the delivery of the said vehicle.  The complainant is NRI, so he used to visit Canada and India off and on.  He visited the offices of OPs at BSF Chowk Jalandhar and Nawanshahr besides their office at Amritsar many a times but to no avail.  After that there was no correspondence from the opposite side except letter dated 19.04.2010 from Tata Motors alongwith cheque of interest from 01.01.2010 to 31.03.2010 which was sent to the complainant against the aforesaid booking.  It is averred that the OPs neither denied to deliver the vehicle to the complainant nor did they refund the amount to him but they are dilly dallying the matter on one pretext or the other. Now the complainant is not interested in purchasing the booked car.  However, his booking amount is lying with the OPs which they are liable to refund to complainant alongwith interest. Legal notice issued by the complainant to the OPs through his counsel to seek refund of booking amount has failed to bear any fruitful result.  Hence, the present complaint.  

3.                Upon notice OPs No.1&2 put in appearance and filed written statement as well but thereafter stayed away from the proceedings and were proceeded against ex parte on 28.10.2014.

                   In the written statement OPs No.1&2 took preliminary objections that the complaint is not maintainable; the same is bad for mis-joinder of necessary parties and the complainant is not consumer under the C.P. Act.  On merits, it is alleged among other things that the complainant has taken financial assistance from State Bank of India, Jalandhar.  The complainant was unsuccessful allottee and the answering OPs have refunded the booking amount to his financier which was encashed on 30.11.2010 by financier i.e. SBI, Jalandhar as per agreed terms and conditions of booking form.   Therefore, instant complaint is liable to be dismissed against the answering OPs.

The OPs No.3&4 have filed joint written statement.  Taking preliminary objections to the effect that  the complaint in the present form is not maintainable and as such is liable to be dismissed; the complainant is not covered under the definition of consumer;  he is otherwise estopped by his own act and conduct to file the complaint; replying OPs are neither deficient in service not guilty of unfair trade practice;  the present complaint has been filed by the complainant with ulterior motive to harass the OPs;  the complainant is guilty of suppresso varie and the complainant does not disclose the true fact; the complaint is bad for mis-joinder of necessary parties; the complaint involves questions of facts as well as of law which require lengthy full scale trial and the same can appropriately be done by Civil Court and lastly the complaint is liable to be dismissed under Section 26 of C.P. Act being false, frivolous and vexatious.  On merits, it is alleged among other things that the car was neither manufactured by replying OPs nor it was booked through them nor any amount was paid to it.  The matter as submitted by the complainant is entirely between the complainant and OPs No.1&2, 5 to 7.  There was no privity of contract between complainant and replying OPs therefore, the complainant has no cause of action against them.  Other allegations of the complaint were denied and specifically controverted with a prayer for dismissal of complaint.          

                   However, none has put in appearance on behalf of OP No.5, and as such it was proceeded against ex parte on 10.10.2014.  OPs No.6 earlier put in appearance but thereafter stayed away from the proceedings and was proceeded ex parte on 22.09.2014. 

                   The OP No.7 has filed a separate written statement admitting that the forms of booking Tata Nano Car were available with the replying OP and that the complainant received a draft of Rs.1,40,000/- from them under his signatures.  Other allegations of the complaint were denied for want of knowledge with a prayer for dismissal of the same.

4.                In order to prove case, the learned counsel for the complainant has tendered in evidence affidavit of complainant Ex.C-1  photocopies of documents i.e. application form Ex.C-2, letter dated 19.04.2010 Ex.C-3, passbook of complainant Ex.C-4, account statement Ex.C-5, passport Ex.C-6, driver’s license Ex.C-7, legal notice dated 10.03.2014 Ex.C-8, postal receipts Ex.C-9, letter dated 22.03.2013 Ex.C-10, letter dated 15.03.2012 Ex.C-11 and in remaining/amended evidence amended affidavit of complainant Ex.C-12 and closed the evidence.

5.                On the other hand, the learned counsel for OPs No. 3&4 has tendered in evidence affidavit of Sh.I.D. Sharma Ex.OP-1, alongwith affidavit of Sh.Jaswinder Singh Ex.OP-2 and closed the evidence.

                   Learned counsel for OP No.7 tendered written statement Ex.OP7/A, in remaining evidence. Chief Manager of OP No.7 has tendered his affidavit Ex.OP7/B alongwith attested copy of voucher dated 11.04.2009, acknowledging receipt of draft in question by complainant Ex.OP7/1 and closed the evidence.  

6.                We have heard the learned counsel for complainant, OPs No.3&4 and OPs No.7 and have perused the record on file carefully.

7.                Learned counsel for complainant vehemently argued that complainant got prepared bank draft from OP No.7 and the amount of payment for booking of car in question was also debited to his account in the OP-bank, therefore, this Forum has territorial jurisdiction to decide the instant complaint.  It is further contended that OP No.1&2 have admitted payment of the said amount by taking the stand that the complainant was unsuccessful allottee so the amount was refunded to SBI, Jalandhar and latter has also encashed it on 30.11.2010.  However, complainant has not received the refund so far from OPs No.5&6 in spite of his several visits to them.  Therefore, complainant is entitled to the relief prayed for from the OPs.

                   Learned counsel for Ops No.3&4 has however submitted that the car in question is neither manufactured nor was it booked by OP Nos. 3&4.  Complainant did not pay any amount to it in this respect.  Therefore, the matter is entirely between complainant and OP Nos.1, 2, 5 to 7.  OPs No.3 & 4 have been wrongly arrayed in this case. 

Learned counsel for OP No.7 has denied its role in respect of delivery of the vehicle or refund of payment.  According to it, its role is limited to the delivery of the demand draft to the complainant and nothing more.  Therefore, there is no deficiency in service on its part 

8.                We have keenly considered the rival contentions in view of evidence on record.  It is admitted by OP No.7 in Para No.2 of its reply that the forms of booking of Tata Nano car were available with it.  Further, in Para No.3 it is admitted that the complainant received a draft of Rs.1,40,000/- from it.  The amount of Rs.1,40,000/- plus charges of Rs.350/- stands debited to the account of the complainant on 11.04.2009 as per copy of his bank statement Ex.C-4 and Ex.C-5 of SBI, Banga Railway Road Branch. Therefore, a part of cause of action arose to the complainant within the territorial jurisdiction of this Forum and as such his complaint here is well maintainable.

9.                 As per written statement of OP No.1&2 the complainant was unsuccessful allottee as per terms and condition of Tata Nano Booking form and the amount paid by him for the purpose was refunded to SBI, Jalandhar and the latter even encashed the same on 30.11.2010.  However, as already noted above after putting in appearance, filing of written reply alongwith photocopies of display documents; data entry view consisting of detail of refund as Annexure – A and photocopy of conditions Annexure – B, they did not lead any evidence but stayed away from the proceedings and were proceedings against ex parte.  However, the fact remains that amount to the tune of Rs.1,40,000/- paid by the complainant was received at their end which they have stated to have refunded to SBI, Jalandhar. However, no material in support of such stand has either been brought or proved on record. The copy of detail of refunds Annexure – A does not even relate to SBI Jalandhar Branch.  No document has been produced by OP Nos.1&2 in support of withdrawal of said amount by SBI, Jalandhar Branch much less the complainant.  SBI Branch, Jalandhar and SBI Branch, Jalandhar Cantt. respectively OPs No.5&6 did not bother to appear in spite of their service and were also proceeded against ex parte.  In this way, onus to prove the payment of refund lies on OP Nos. 1&2 on the one hand and OP Nos.5 & 6 on the other which they have failed to discharge.  Though, instant complaint has been filed by the complainant on 23.04.2014 but since the complainant has not received the refund so far, he has continuous cause of action to seek the refund as per the ratio of the judgment of Hon’ble National commission in  New Holland Fiat (India) Pvt. Ltd. Vs. Govindkar Vinod Krishnmurthy 2013 (4) CLT 36 (NC) . In this case despite payment dealers did not deliver the vehicle booked in 1999.  Complaint was filed in 2009. It was held that  Complainant has continuous cause of action.  As to sequel to our above observation , deficiency of service on the part of OP Nos.1 & 2  on the one hand and OP Nos.5 & 6 on the other is clearly established.  However, case against the remaining parties is not proved.  Accordingly,  OP Nos.1&2 and OP Nos.5 & 6 are found liable to refund the deposited amount to the complainant alongwith appropriate amount of compensation for harassment and mental agony for not refunding the amount in spite of several efforts made by him in this behalf besides litigation expenses for compelling him to have recourse to this Forum to get his grievance redressed by engaging counsel.

10.              In the light of our above observations and findings, the complaint filed by complainant – Rachpal Singh Thind is partly accepted with a direction to OP Nos.1&2 and OP Nos. 5 & 6 jointly or severally to pay to the complainant Rs.1,40,000/-  (Rupees One Lac Forty Thousand Only) with interest @ 9% per annum from 30.11.2010 till realization and further to pay Rs.10,000/- (Rupees Ten Thousand Only) as cost of litigation within a period of 30 days from the date of receipt of copy of this order.  In default of payment of Rs.10,000/- (Rupees Ten Thousand Only), within 30 days as aforesaid   OP Nos.1, 2 , 5 & 6 shall pay the said amount of Rs.10,000/- (Rupees Ten Thousand) with interest @ 9% per annum from the date of this order till realization. Copy of this order be sent to the parties free of costs.

11.               File be indexed and consigned to the record room Dated:  21.11.2014

 

 

 

(Sudha Sharma)         (Karnail Singh)               (Ashok Kumar)

  Member                     Member                          President