Chandigarh

StateCommission

CC/62/2023

Anurag Arora - Complainant(s)

Versus

Toyota Kirloskar Motor - Opp.Party(s)

Complainant in person

02 Jan 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	62 of 2023
Date of Institution	:	24.07.2023
Date of Decision	:	02.01.2024

 

SH. ANURAG ARORA, aged 41 years, son of Late Sh. Devraj Arora, resident of H.No.87, Sector 15, Chandigarh.

 ...Complainant

Versus

 

1]       TOYOTA KIRLOSKAR MOTOR PVT. LTD., through its Managing Director, 10^th Floor, Canberra Tower No.24, UB City, Vittal Mallya Road, Bangalore – 560001, India.

2]       PIONEER TOYOTA through its Managing Director, Plot No.177, H & I, Industrial Area, Phase-I, Chandigarh.

3]       EM PEE MOTORS PVT. LTD., through its Managing Director, Plot No.177-H & I, Industrial Area, Phase-I, Chandigarh 

                                                                                                                                                                                            …..Opposite Parties

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   SH. RAJESH K. ARYA, MEMBER

 

ARGUED BY:-

Sh. Anurag Arora, complainant in person.

Sh. Gurpreet Singh Kahlon, Advocate for opposite party No.1.

Sh. S. R. Bansal, Advocate for opposite parties No.2 & 3.

 

PER  RAJESH  K. ARYA, MEMBER

Brief facts:

                   In pursuant to the launch and advertisement of the vehicle namely Toyota Hycross by opposite party No.1 in the month of November 2022, the complainant booked car Model: HYCROSS (HYBRID), SUFFIX: ZX(HB), COLOUR: AGEHA BLACK with opposite parties No.2 & 3 being the authorized dealer of opposite party No.1 on 02.01.2023 by paying an amount of ₹50,000/- as booking amount against its total price of ₹28,35,000/-. However, despite waiting for six months delivery period, the booked vehicle was not given to the complainant. He lodged complaint at the toll free number with opposite party No.1 on 06.06.2023 regarding unfair trade practice and deficiency in service by opposite parties No.2 & 3. It was assured to him by opposite party No.1 that his complaint would be resolved immediately but till the date of filing of the complaint, there was no response by opposite party No.1. On 10.06.2023, the complainant lodged his grievance on Twitter Handle page of Toyota and he was assured that his concern had been forwarded to the relevant team but again there was no response. Finding no other way, he issued legal notice to the opposite parties but of no avail. It has been stated that at the time of booking, the complainant was assured about the delivery of the vehicle on time, in which, opposite parties have failed.  

Relief claimed by the complainant:

2]                Alleging above act of the opposite parties as deficiency in rendering service, unfair trade practice on their part, the complainant has filed the present complaint seeking directions to the opposite parties to immediately deliver the vehicle without any further delay; pay interest @18% p.a. on the booking amount of ₹50,000/- w.e.f. 02.01.2023 till actual delivery of possession of the vehicle; to deliver the vehicle at the agreed price of ₹28,35,000/-; pay additional compensation for the period of delay; pay compensation of ₹5 Lakhs for causing mental agony, physical harassment, financial loss, deficiency in service, negligence and adopting unfair trade practice and pay cost of litigation of ₹1 Lakh.

Reply of opposite party No.1.

3]                While contesting the complaint on merits, opposite party No.1 – Toyota Kirloskar Motor Private Limited, the manufacturer, in its reply, has taken certain preliminary objections to the effect that there is principal to principal relationship of opposite party No.1 with opposite parties No.2 & 3 as it is not providing any service to the complainant and cannot be held liable for any deficiency in service committed by the dealer i.e. opposite parties No.2 & 3; that opposite party No.1 is neither a necessary nor proper party and therefore, there is no privity of contract between the complainant and opposite party No.1; that this Commission has no territorial jurisdiction as opposite party No.1 has its registered office in Karnataka; that the complaint has not been valued and no court fee has been paid by the complainant & the valuation does not cross the threshold pecuniary jurisdiction of this Commission. However, on merits, it has been stated that opposite party No.1 does not directly deal with the customers/consumers or take vehicle bookings and it has no role in deciding the schedule of delivery to the customers/consumers of its authorized dealers i.e. opposite parties No.2 & 3. It has further been stated that opposite parties No.2 & 3 of their own engages with customers, accepts booking, issue booking slips and deliver the vehicles to the customers. It has further been stated that issues pertaining to delivery of the subject vehicle fall in the domain and scope of opposite parties No.2 & 3. It has further been stated that the price at which vehicles are sold inter se the manufacturer and its auhorised dealer are subject to the terms of the dealiership agreement and the commercial terms arrived at between those parties. It has further been stated that opposite party No.1 does not sell any vehicles directly to the customers and therefore, cannot make any undue enrichment from them. Alleging no deficiency in rendering service or unfair trade practice on its part, opposite party No.1 prayed for dismissal of the complaint.

Reply of opposite parties No.2 & 3.

4]                While contesting the complaint on merits, opposite parties No.2 & 3 in their joint reply, have also taken certain preliminary objections to the effect that the complaint is beyond pecuniary jurisdiction; that the complainant is not a consumer; that the complaint is false and frivolous and not a consumer dispute. On merits, it has been stated that there is no question of any unfair trade practice and as per admitted terms duly signed by the complainant, the price shall be applicable as on the date of delivery by the dealer and irrespective of booking date or reasons of delay in delivery, which the complainant never disclosed in his complaint. It has further been stated that both the parties are bound by the terms and conditions of the form. Alleging no deficiency in rendering service or unfair trade practice on their part, opposite parties No.2 & 3 prayed for dismissal of the complaint.

5]                In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in written reply of the contesting opposite parties. 

6]                The parties led evidence, in support of their case.

7]                We have heard the Counsel for the parties and have gone through the evidence and record of this case, including the written arguments very carefully.

8]                First of all we deal with the preliminary objections raised by the contesting opposite parties as under:-

Whether the complainant is a consumer or not?

9]                First coming to the objection with regard to the complainant being not a consumer, as raised by opposite parties No.2 & 3, it may be stated here that it is apposite to reproduce the provisions of Section 2 (7) of Consumer Protection Act, 2019 as under

                        “2 (7) “consumer” as a 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;”

 

10]                   In the instant case, the complainant booked a vehicle with opposite parties No.2 & 3 for a consideration paid, which in the instant case is ₹50,000/- as the booking amount, therefore, he hires their services for consideration partly paid with the intent of purchasing the said vehicle. As such, the complainant is very much a consumer qua opposite parties No.2 & 3. As such, objection taken in this regard stands rejected.

Territorial jurisdiction

11]              As regards the objection that this Commission has no territorial jurisdiction as opposite party No.1 has its registered office in Karnataka; it may be stated here that since the complainant is admittedly residing at Chandigarh, as such, this Commission has the requisite territorial jurisdiction to entertain an try the complaint, as provided under the provisions of Section 47(4)(a) of Consumer Protection Act, 2019.

Pecuniary jurisdiction.        

12]              As regards the objection that this Commission has no pecuniary jurisdiction is concerned, it may be stated here that since the complainant has challenged the terms and conditions of contract i.e. Booking Form, Annexure C-1 – “for the payment of price and statutory levies as applicable at the date of delivery by the dealer and irrespective of booking date or reason of delay in delivery”, to be unfair, as such, this Commission is not required to see the sale consideration paid by the complainant in view of provisions of Section 47(1)(a)(ii) of Consumer Protection Act 2019, which says that “complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees” (now reduced to two crores).  This objection also stands rejected.

Observations/findings of this Commission:-

13]              Now coming to the merits of the case, it may be stated here that this Commission called for the records of both opposite parties No.2 & 3 and that of opposite party No.1 with regard to vehicles booked and delivered for the period from 26.11.2022 to 06.04.2023. Bare perusal of the said record transpired that some vehicles were delivered out of turn to some subsequent customers. However, to justify their stand, during the course of arguments, counsel for opposite parties No.2 & 3 submitted that out of turn vehicles were delivered to some customers, who booked subsequent to the complainant, under some personal obligation and he assured this Commission that opposite parties No.2 & 3 shall desist from this practice in future. Be that as it may, on 30.10.2023, the complainant stated at bar that he has been delivered the booked vehicle. Thus, it has been established that the complainant has been delivered vehicle only after entering into this unwarranted litigation, thereby causing mental harassment and agony to the complainant, which act of the opposite parties No.2 & 3 amounted to deficiency in service and unfair trade practice on their part, for which the complainant needs to be suitably compensated.

Objection raised by opposite party No.1- Principal to principal relationship.

 

14]              As regards this objection, it may be stated here that since it is a case of delay in delivery of booked vehicle in question to the complainant on the part of opposite parties No.2 & 3 and not the case of any manufacturing defect in the vehicle, as such, no liability can be fastened upon the manufacturer. As regards objection that opposite party No.1 is not a necessary party to the case, it may be stated here that since we have already held that no liability can be fastened upon opposite party No.1, this objection has rendered infructuous. As such, the complaint against opposite party No.1 is liable to be dismissed.

Decision of this Commission:-

15]              For the reasons recorded above, the complaint is partly accepted against opposite parties No.2 & 3 and they, jointly and severally, are directed:

(i)       to strictly go by the order of booking in making delivery of any vehicle to its customers and not to deliver vehicle out of turn;

(ii)      to pay consolidated compensation of Rs.10,000/- for causing mental agony and physical harassment to the complainant on account of deficiency in rendering service and adoption of unfair trade practice within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of default i.e. after expiry of 30 days’ period till realization.

16]              However, the complaint against opposite party No.1 – Toyota Kirloskar Motor Pvt. Ltd. stands dismissed with no order as to cost.

17]              Pending applications, if any, stand disposed of accordingly.

18]              Certified copies of this order be sent to the parties free of charge forthwith.

19]              File be consigned to Record Room after completion.

Pronounced

02.01.2024.

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

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