BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 28/04/2010

Date of Order : 31/01/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 258/2010

Between

And

O R D E R

Paul Gomez, Member.

1. The short facts leading to the complaint are the follows :

The complainant placed an order for Dzire Lxi Car by paying Rs. 50,000/- with the 2^nd opposite party on 28-11-2009. They had promised him to deliver the car on 30^th January 2010. The booking was made with the object of using it for a family ceremony proposed to be held on 14^th February 2010. Actually, the vehicle was delivered only on 17-03-2010. The complainant was compelled to pay Rs. 16,230/- in excess of the agreed price, since according to them, there occurred a price hike in February 2010. It is significant to note that the order date was given as 28-02-2010 as against the exact date of 28-11-2009. In the complaint, it is urged that he is entitled for refund of the excess amount collected as also interest at the rate of 3.75% from 28-11-2009 till the date of delivery of the vehicle along with costs of the proceedings in the Forum.

2. Both the opposite parties filed separate versions :

The 1^st opposite party contends that there is no privity of contract between them and the complainant because they are strangers to the contract made between the complainant and the 2^nd opposite party for the purchase of the vehicle. The practice governing transfer of vehicles between the opposite parties is on principal-to-principal basis as per Dealership Agreement executed between them and the dealer is not the agent or representative of the 1^st opposite party for the purpose of transfer of vehicles ultimately to the customer. The 1^st opposite party is answerable to the purchaser of the vehicle only for manufacturing defects as set out in the warranty provided by them. The 1^st opposite party is not answerable for the excess price levied by the 2^nd opposite party under an independent contract executed between them. For the reasons stated above, the 1^st opposite party is not accountable to the complainant in any manner.

3. In the version submitted by the 2^nd opposite party, it is vehemently denied the assurances regarding delivery of the vehicle before 30-01-2010 as is clear from the order booking form. The delivery period is left blank because the 2^nd opposite party was not sure about delivery date . In the order booking form, it is stated that the price prevailing at the time of invoicing of the vehicle would be applicable as per Clause 4 of the terms and conditions governing the transaction. The vehicle delivered to the complainant on 17-03-2010 which formed part of the fleet that was despatched on 09-03-2010 from Maruti Suzuki India Ltd. as against the payment of Rs. 1.50 crore vide RTGS UTR No. HDFC 0933086382 dated 26-11-2009. The complainant is not entitled for the booking advance interest. The complaint is devoid of bonafides and merit.

4. The question of maintainability was kept in abeyance till disposal of the case. The complainant was examined as PW1. Exts. A1 to A4 were marked for him. Witness for the 1^st opposite party was examined as DW1 and the 2^nd opposite party was examined as DW2. Exts. B1 to B5 were marked for them. Heard the counsel for the parties.

5. The points that emerge for resolution are as under :-

1. Whether the complaint is maintainable?

2. Whether the opposite parties are liable to refund the excess price collected by them?

3. Whether the opposite parties are liable to pay interest on advance amount collected?

4. Any other reliefs allowable?

6. Point No. i) :- At the outset, the very maintainability of the complaint is challenged on the ground of misjoinder of parties in as much as the contract governing delivery of vehicle was executed by the complainant with the 2^nd opposite party only and the 1^st opposite party is a total stranger to the above instrument. In that view of the matter, no cause of action arises against the 1^st opposite party and no relief can be sought against them under Section 14 of the Consumer Protection Act 1986. The nature of contract is between the opposite parties is a matter known to them only and the complainant being an out sider cannot have exact legal nature of the contract governing transfer of vehicles between them. The 1^st opposite party claim that vehicles are in fact purchased by the 2^nd opposite party under dealership agreement. There may be substance in the contention and the real nature of relationship may be of principal-to-principal basis. But a complaint cannot be thrown away on this ground because these contentions can be substantiated only by independent material. They have produced Ext. B2 dealership agreement to show that the 2^nd opposite party have no authority to bind them in contractual relationship with third party, vide clause 5 of the said instrument. In view of the said provision, it is obvious that when a customer executes an agreement with the dealer like the 2^nd opposite party, the former does not enter into any contractual relationship with the 1^st opposite party. Therefore in our view, in the present case, the 1^st opposite party is not a necessary party especially since no allegation of manufacturing defect is raised in this case. The complaint being centered round the delay in supply of vehicle by the 2^nd opposite party, the dispute is alive between the complainant and the 2^nd opposite party only. To sum up, we hold that the complaint is not maintainable against the 1^st opposite party.

7. Point No. ii) :- The real issue raised in the complaint is pertaining to the alleged excess levy of Rs. 16,230/- caused by the delay in delivery of the disputed vehicle. The 2^nd opposite party rely on clause 4 of the terms and conditions of sale printed on the reverse page of Ext. A1 order booking form which stipulates that the prices prevailing at the time of invoicing of the vehicle will be applicable. It is not a matter of dispute that the vehicle was invoiced on 17-03-2010. Therefore, the price applicable on the said date would govern the sale of the vehicle. Also, it is contended by the 2^nd opposite party that an enhancement of Rs. 16,230/- had occurred before the date of invoicing of the vehicle. The price hike has not been disputed by the complainant. It is settled law that the parties are bound by the terms and conditions of the agreement and the Consumer Forum is bound to honour the agreement executed by the parties out of their free will. The Consumer Forum can neither add nor subtract a syllable in the agreement. In that perspective in the instant case, the parties are bound by Ext. A1 order booking form and consequently the complainant is liable to pay the price that prevailed on the date of invoicing. Hence, we do not think it just on our part to infer in any manner to undo what has been done by the parties under their solemn agreement. We are constrained to hold so, even if obviously the 2^nd opposite party has used this opportunity to enrich itself at the cost of the complainant since the 2^nd opposite party has admitted they had paid Rs. 1.50 crore on 26-11-2009 for the fleet of vehicles to which the disputed vehicle formed a part. It is well within our presumption that the 2^nd opposite party might have paid only the pre-revised price. Any how, since the precedent that the Consumer Fora cannot interpret the provisions of the contract governing the transaction stares at us, we have no other go than taking the above decision.

8. Point No. iii) :- It is a stipulation in Ext. A1 order form that the 2^nd opposite party would pay interest @ 3.75% the advance amount till the date of first intimation of vehicle delivery, less 2 days. Since, this date has not been seen to have intimated to the complainant, we think, they are bound to pay till the date of actual delivery, less two days. As per Ext. A3 invoice, the date of delivery is shown as 17-03-2010. Accordingly, the 2^nd opposite party is bound to pay interest @ 3.75% p.a. on Rs. 50,000/- from 28-11-20009 till 15-03-2010. The interest amount is not shown to have deducted from the actual price, as per Ext. A3 invoice.

9. Point No. iv) :- Lastly, the question of any other reliefs remain to be settled. In the facts and circumstances of the case, we do not find it reasonable to award any compensation. But the 2^nd opposite party shall pay costs of the proceedings.

10. Consequently, the complaint stands allowed as follows :

1. The 2^nd opposite party shall pay the sum towards interest @ 3.75% p.a. on the advance amount of Rs. 50,000/- (Rupees Fifty thousand only) from 28-11-2009 till 15-03-2010.

2. The 2^nd opposite party shall pay Rs. 1,000/- towards costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 31^st day of January 2012.

Sd/- Paul Gomez, Member.

Sd/- A. Rajesh, President.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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