BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.151 of 2018

Date of Instt. 09.04.2018

Date of Decision: 04.07.2018

Ram Shah Gurdial Mal Mahajan through its Partner Sh. Surinder Mohan S/o Sh. Gurdial Mahajan, Chitra Cinema Road, Outside Hall Gate, Amritsar.

..........Complainant

Versus

1. The Director/Partner/Principal Officer/ Manager, Castle Toyota, Daburji, G. T. road, Near Bye Pass, Amritsar-143001.

2. M/s Toyota Kirlosker Motors Pvt. Ltd carrying on its business of Plot No.1, Bidadi Industrial Area, Ramanagara District, Karnataka 562109.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Satish Kumar, Authorized Representative on behalf of the Complainant.

Sh. Kanwar Paul Singh, Adv Counsel for OP No.1 and 2.

Order

Karnail Singh (President)

1. The instant complaint is received in this Forum by way of transfer from District Forum, Amritsar.

2. Brief facts of the complaint are that the complainant firm booked one Corolla Altis Black Car from OP for his own use on 12.08.2016 and paid Rs.50,000/- as advance money and OP assured the complainant that the aforesaid car will be delivered to the complainant on or before 10.09.2016. As such, complainant is consumer of OP as provided under the law and is competent to invoke the jurisdiction of this Forum.

3. That on 10.09.2016, the complainant approached the OP for taking the delivery of the aforesaid vehicle, but the OP could not deliver the same as OP was not having black colour car at that time and sought some time for delivering the same. The complainant approached to the OP number of times for the delivery of the aforesaid car, but OP was not having black colour car of the aforesaid model with it and OP put off the matter on one pretext or the other. The complainant made complaints regarding non delivery of the car by OP through various emails and in reply to one of the email, on 06.10.2016, OP assured the complainant that they will deliver the car by 30.10.2016 to complainant.

4. The complainant approached the OP on 30.10.2016 and even on that day OP were not having black colour of aforesaid model and expressed their inability to deliver the same to the complainant. The complainant has been requesting OP for the delivery of the aforesaid car, but OP failed to perform their part of the promise regarding delivery of the car, which caused great inconvenience harassment and mental agony to the complainant. The aforesaid act of the OP of not delivering the aforesaid car to the complainant amounts to unfair trade practice and misappropriation of hard earned money of the complainant for more than three months. Feeling aggrieved the complainant served a legal notice dated 07.11.2016 upon the OP, thereby calling upon them to deliver the aforesaid black model car to the complainant within fifteen days from the date of receipt of the notice along with damages of Rs.1,00,000/-, but the OP replied the legal notice dated 05.10.2016 and sent a cheque of Rs.50,000/- dated 26.10.2016 to the complainant. The complainant under protest accepted the cheque of the OP, but complainant is entitled to compensation for the inconvenienced and mental agony caused by the OP to the complainant and accordingly, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.1,00,000/- to the complainant as damages and compensation to the complainant for causing mental harassment and further OPs be directed to pay complete cost of the present litigation and also awarded any other relief to which he is found legally entitled.

5. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed its separate reply and contested the complaint by taking the preliminary objections that the present complaint is legally not maintainable against the OP. The subject matter in dispute is non delivery of car after booking of the same. The complaint before this Forum for the non-delivery of the car is legally not maintainable as same cannot be said to be a deficiency in service. The alleged deficiency in service on account of non delivery of the car is not covered under the provision of the Act. Thus, the complaint is liable to be dismissed on this score. It is further alleged that the complainant is not covered under the definition of Consumer. The vehicle was booked by firm as such same was booked for commercial purpose. Thus, the complainant cannot be termed as consumer. Hence, the complaint is liable to be dismissed on this score also. It is further alleged that the complainant has got no locus standi to file the present complaint. Thus, the complaint is liable to be dismissed at the threshold. It is further alleged that the complaint is not maintainable in the present form. Admittedly, the amount of Rs.50,000/- has already been refunded to the complainant before filing this complaint. There is no word, whisper or syllable in entire body of the complaint to show what or which loss the complainant has suffered on account of non-delivery of vehicle for 2 months only so as to entitle him for compensation or litigation expenses as prayed for. Thus, this complaint is nothing but an adamant attitude of complainant just to try for unjust enrichment, which is not warranted under law. It is settled law that purpose and object of consumer act is to protect the interest of genuine consumers, but not the persons who are using Consumer Forums as a tool or agency to get unjust enrichment. So, such kind of practice must be deprecated and punitive cost should be imposed upon the complainant for filing such false and unwarranted litigation against OP. It is further alleged that the complainant has concealed and suppressed the material facts from the Froum and therefore, complaint is not maintainable and further alleged that the complainant is bad for non-joinder of necessary parties. On merits, the factum in regard to booking of the car is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.

6. The OP No.2 also filed its separate reply and almost took the same preliminary objections as taken by OP No.1 and on merits, the OP No.2 categorically denied that the complainant has never booked any car nor paid any advance amount of Rs.50,000/- to the OP No.2 and even other averments as made in the complaint are also categorically denied and lastly submitted that the complaint of the complainant may be dismissed with costs.

7. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of Sh. Surinder Mahajan as Ex.C-1 alongwith some documents Ex.C-2 to Ex.C-9 and then closed the evidence.

8. Similarly, counsel for the OP No.1 and 2 tendered into evidence affidavit of Sh. S. Rengaranjan, General Manager as Ex.OP2/A and closed the evidence, then further tendered an other affidavit of Sh. Rakesh Kapoor, Finance Manager-cum-General Manager as Ex.OP1/A and some documents Ex.OP1/1 i.e. Copy of the email dated 12.11.2016 and 22.11.2016, Ex.OP1/2 i.e. Copy of Ledger Account and Ex.OP1/3 i.e. Copy of the reply to legal notice and then closed the evidence.

9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

10. Before imparting with the main claim of the complainant, we like to thrash the legal issue raised by the OP in its written reply i.e. Preliminary Objection No.1 that the complaint is legally not maintainable against the OP because the subject matter in dispute is non-delivery of the car after booking of the same, as such, the complaint is not maintainable as same cannot be said to be deficiency in service or complainant is not the consumer and second aspect raised by the OP in Preliminary Objection No.3 that the complainant has got no locus-standi to file the present complaint, thus, the complaint is liable to be dismissed.

11. We prefer to take the aforesaid two issues one by one, first of all, we have taken into consideration the question whether the complainant has got any locus-standi to file the present complaint, for that purpose, if we go through the complaint, then obviously we can say without any hesitation that the complaint is filed by the firm Ram Shah Gurdial Mal Mahajan through its partner Surinder Mahajan, in order to file any suit or complaint by the partnership firm, a resolution must be passed by the Board of Director, whereby authorized to any partner to file the complaint, but in this case, no resolution has been passed by the firm in favour of Surinder Mahajan, partner filed the instant complaint and as such, we are fully agreed with the submission of the learned counsel for the OPs that the complainant Surinder Mahajan has no locus-standi to file the present complaint and in support of this observation, we take an opportunity to refer a pronouncement of the Hon'ble National Commission, decided in Consumer Case No.860 to 2016, titled as “ Amit Lakhanpal Vs. M/s Granite Gate Properties Private Limited” and in the light of above detailed discussion, we came to conclusion that the complaint of the complainant is liable to be dismissed on this soil ground.

12. The next question as elaborated above that the complainant is a consumer or not and whether simply non delivery of the car after booking of the same make the party as a consumer or not and in such situation, the consumer complaint is maintainable or not, for that purpose, the facts of his case are admitted one by both the parties that the complainant firm booked a car on 12.08.2016 after depositing of advance money of Rs.50,000/- and it was assurance of the OP that the car will be delivered on or before 10.09.2016, but car was not delivered and ultimately, the OP refunded the amount of Rs.50,000/- on 26.10.2016 and though the same was accepted by the complainant under protest as claimed in the complaint.

13. Now question only remains whether the non-delivery of car, booked by the complainant, gave a right to the complainant to become a consumer under the 'Consumer Protection Act', the answer is in negative form because simply booking a car with the dealer is not sufficient to give a right to the complainant to become a consumer because till the car is not delivered after receipt of the entire payment and in this case, the entire payment was never made rather the advance money has been already returned to the complainant by the OP and as such, we are of the opinion that simply non-delivery of the car after booking of the same does not give a right to the complainant to become a consumer. So, if the complainant is not a consumer, then the instant complaint is not legally maintainable against the OP and in support of these observations, we like to refer two pronouncements of our own State Commission, decided in First Appeal No.397 of 2013, decided on 03.02.2016, titled as “Chittosho Motor Vs. Rupinder Singh etc.” and further First Appeal No.971 of 2013, decided on 04.11.2014, titled as “Chittosho Motor Vs. Naresh Garg etc.”.

14. In both the aforesaid judgments, a reliance has been made of the judgment of the Hon'ble Apex Court, decided in Civil Appeal No.708 of 2007, decided on 22.07.2010, titled as “Maruti Suzuki India Ltd. Vs. Purusottam Lal (HUF) & Anr.”, wherein the Hon'ble Supreme Court has held as under:-

“The Consumer Protection Act, 1986 (for short 'the act') is a special Act and it gives remedy to the consumer in certain circumstances. Before the consumer can get any remedy against the appellant from the fora set up under the Act, it must establish that there is some deficiency of service by the appellant. Both the concepts 'deficiency' and 'service' have been defined under Section 2(g) and , (o) of the Act. After going through those definitions carefully, we do not find that the complaint for alleged non-delivery vis-a-vis the appellant is covered under Sections 2(g) and 2(o) of the Act. The question of defect in the car cannot arise since the cars were never delivered to the complainant.”

15. It is apparently clear from the aforesaid judgments that non-delivery of car after booking does not give any cause of action to file a complaint before the District Forum under the 'Consumer Protection Act' and accordingly, we are of the opinion that the instant complaint of the complainant is not maintainable.

16. In the light of above legal issue, the complaint of the complainant is not maintainable, therefore the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

17. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

04.07.2018 Member President