The case of the Complainant in gist is that with the intention to buy a Kia Sonet HTK Plus 1.2 (Manual Model) the Complainant approached Kaysons Kia Sevoke Road,Siliguri. The Complainant wished to buy the said vehicle on the same day for a special occasion and as per his requirements. The opposite parties drew a quotation of Rs.9,48,000/-(Rupees Nine Lakh Forty Eight Thousand only), approximately, for the said vehicle. The Complainant booked the said vehicle by paying an advance booking amount of Rs. 25,000/-(Rupees twenty Five Thousand only) on 14.01.2021. The Complainant also gave his old vehicle, a Maruti ASTAR VXI for valuation to the Opposite Parties, but the car suffered from minor damages at the hand of one of their Business Executives during the process. While paying the aforementioned advance booking amount the Complainant was informed by Opposite Party No. 2 and 3 that the said vehicle will be delivered to him within a week (7 days). Thereafter when the Complainant tried to contact the Opposite Parties regarding the delivery of the said vehicle, he was ignored by them. This prompted the Complainant to send an email on 21.01.2021 to the Opposite Parties expressing his grievances. The Opposite parties responded to the said email on 22.01.2021 informing the Complainant that he would have to wait another week for the delivery of the said vehicle. Accordingly, on 28.01.2021 the Complainant visited Kaysons KIA with his parents to receive the delivery of the said car. However while Opposite Party No.2 was showing the said vehicle to him and his parents, a lady staff and Opposite Party No. 3 misbehaved with his parents and forced them to get out the vehicle. This incident humiliated the Complainant who was also informed that the available KIA Sonet HTK Plus 1.2 (Manual Model) will be sold to another customer who happens to be related to the owner of Kaysons KIA and the Complainant will have to wait for another few days. After a few days on 11.02.2021 the Complainant sent another email to the Opposite parties requesting for the delivery of his booked vehicle and on 12.02.2021 he registered 2 complaints against the same. However, on 15.02.2021 the Complainant came to know that both the complaints were closed without inquiry. In the meantime, on 12.02.2021 the Complainant received a call from the Opposite Partics forcing him to buy a different car. Over the same phone call the Opposite Parties also threatened the Complainant to cancel the booking he had made for KIA Sonet HTK Plus 1.2 (Manual Model). This prompted the Complainant to register yet another Complaint on 25.02.2021.However, this complaint too was closed without inquiry. Hence, finding no other alternative the Complainant filed the instant complaint before the Learned Commission with a prayer of direction to the Opposite Parties to return the advance booking amount of Rs.25, 000, pay Rs.1,00,000/- as cancellation charge and Rs.5,00,000/- as compensation. O.P no-1 the Director Kia Motors India files questionnaires, evidence on affidavit and also written notes of argument. The jest of their version is that in this dispute they have no role. The opposite party (2&3) files W.V, Evidence on affidavit, Written version and also participate in the hearing of argument. They also filed list of documents alsong with various judgments of upper courts. We have gone through the records and other related documents of the case filed by all the parties. The O.P- 2&3 stated as under. The Opposite Party No. 2 and 3 are employees at Kaysons KIA and appeared in the case with a Written Submission submitted before the Learned Commission. With the intention to buy a Kia Sonet HTK Plus 1.2 (Manual Model) the Complainant approached Kaysons Kia, Sevoke Road, Siliguri and as per his requirements the Opposite Parties drew a quotation of Rs.9,48,000/-(Rupees nine lakh forty eight thousand only), approximately, for the said vehicle. However, the Opposite Parties were not aware that the Complainant wished to purchase the said car on the same day for a special occasion. The Complainant booked the said vehicle by paying an advance booking amount of Rs.25000/-(Rupees twenty Five thousand only) on 14.01.2021.However, the Opposite Parties never made any promises regarding the delivery of the said vehicle to the Complainant. In fact the only information that was shared with the Complainant was an expected date of delivery,i.e.21.01.2021.It is also submitted by the Opposite parties that the old Maruti ASTAR VXI that the Complainant gave for valuation was never damaged by any Business Executive of the dealership. The Opposite Parties made every effort to update the Complainant about the delivery status of the' said vehicle, but eventually it was the Complainant himself who lost interest in purchasing the said car and stopped taking any phone calls from the Opposite Parties. The Opposite Parties also submit that the Complainant sent the email dated 21.01.2021 to create a fake paper trail as 21.01.2021 was stated as the expected date of delivery. Despite these tactics the Opposite Parties replied to the same and informed the Complainant that they were doing their best to deliver the said vehicle as soon as possible. The fact about the Complainant's parents being harassed by Opposite Part No. 3 and a lady staff at Kaysons KIA is a false and derogatory allegation, and so is the Complainant's contention that he was forced to buy another vehicle instead of Kia Sonet HTK Plus 1.2 (Manual Model) and threatened to cancel the booking of the same. The Opposite Parties are also not aware of the various formal complaints registered by the Complainant and the lack of inquiry of the same. Finally, in March 2021, owing to the availability of the said vehicle, when the Opposite Parties contacted the Complainant he ignored all their phone calls and on 02.04.2021 via an email conveyed his intention to reject the delivery of the same. The Opposite Parties tried to call the Complainant several times to refund the booking amount of Rs.25,000/-,but the Complainant refused to answer any of the phone calls either.Thereafter,in the first week of April the Complainant cancelled his booking of the said vehicle through a phone call.Upon receiving the summons from the court for the instant case the Opposite Parties on 08.05.2021 sent another email to the Complainant and offered to refund the advance booking amount of Rs.25,000/- once again without deductions and also offered him another chance to purchase the said vehicle. However, by then the Complainant had already made up his mind to harass the Opposite Parties with this frivolous suit as despite the fact that his reply to the said email contained 300 words, none of them conveyed in writing his wish to cancel the booking of the said vehicle. |
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During the course of arguments, (Dated -13/12/2023) the opposite party (2&3) relied upon the judgement of honourable NCRDC, New Delhi REVISION PETITION NO. 1834 OF 2016 (Against the Order dated 03/02/2016 in Appeal No. 397/2013 of the State Commission Punjab). In the mentioned judgement the honourable NCDRC holds as under “Moreover, the complainant if he did not want to wait after 4-5 months from the date of booking, could always have withdrawn the booking and sought refund of the amount deposited by him. But, it would be difficult to say that the respondents were guilty of deficiency in rendering services to the complainant by not delivering the vehicle to him within 4-5 months from the date of booking. Therefore, the order passed by the State Commission does not call for any interference by this Commission in exercise of its revisional jurisdiction”.
Before going to the merit of the case we decide the question as to whether the complainant is proved to be a consumer and the alleged deficiency in service is covered under the C.P Act or not.
The definition of consumer according to the consumer protection act 2019
"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 service 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 service 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 service for any commercial purpose.
Explanation.—for the purposes of this clause,—
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
According to the consumer protection act 2019 Deficiency of service means any fault, imperfection shortcoming or inadequacy in the quality, nature, and manner of performance which is required to be maintained by or under any law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
And
The meaning of unfair trade practice is “unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices” From the case record it clearly reveals that complainant has no case against O.p-1. On complainant deposited Rs. 25,000/ as advance booking amount for the alleged car on dated 14/01/2021 to O.P-2&3. The opposite party 2&3 give a tentative waiting period and a tentative delivery date. After that
the complainant sends so many emails to the opposite party and also registers the complainant to them. The complainant also stated that without doing anything the opposite party closed the complainant. In support of the upper mentioned version the complainant deposited the copy of the emails which he was sent to the op (2&3). We have gone through the records and other related documents of the case. On 13 Dec 2023 the opposite party (2&3) files list of documents by making annexure A to D. From these documents it reveals that on dated 21/10/2021 the opposite party send a letter to the complainant to refund the booking amount. (Annex-D). Opposite party never mention the matter before this commission as and when the dispute/matter is sub-judies before this commission. The opposite party fails to submit any documents which can prove that they have taken any initiative to resolve the customer grievances after receiving advance booking amount from the customer. They never inform the complainant about the cause of delay. For this act of the opposite party the complainant suffered mental pain and agony and financial loss (Interest of the amount deposited to the opposite party by the complainant). The order of honourable NCRDC on which the OPs (2&3) relied upon also reflects that “the order passed by the State Commission does not call for any interference”. In their order the honourable state commission directed to refund the booking amount in favour of the complainant. In view of the above discussion we may come to the conclusion that the O.Ps (2&3) are partly guilty for deficiency in services and the service provided by the O.Ps(2&3) are not up to the mark. The opposite party give a tentative waiting period and a tentative delivery date which is not fixed promise. But, the deficiency from the part of the O.Ps (2&3) cannot be ruled out. We think that the refund of the amount 25.000/- along with interest to the complainant will be justified. Therefore, the complainant is entitled to the relief as specified bellow.
Therefore, the complainant is entitled to the relief as specified bellow.
All points are disposed of. In the result the case/ application succeeds in part.
Hence, it is
ORDERED
We allow the consumer case in part by issuing the following directions
- Opposite Party(2&3) is directed to refund the advance booking amount Rs. 25,000/- (Rupees Twenty five Thousand Only) along with 7% simple interest per annum from 14/01/2021 till the date of payment to the complainant for deficiency in services and unfair trade practices adopted by them.
- Case is dismissed against O.P-1 without cost.
- Opposite Party (2&3) is directed to deposit Rs. 10,000/- (Rupees Ten Thousand Five Hundred Only) to the consumer legal aid account of this commission.
The order should be comply within 30 (Thirty) days from the date of this order failing which the complainant will be at liberty to put the order in execution according to provision of law.
Let a copy of this judgment be given to the parties free of cost.
