State Consumer Disputes Redressal Commission
Chittosho Motors vs Rupinder Singh & Another. on 3 February, 2016
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.397 of 2013
Date of institution : 09.04.2013
Date of decision : 03.02.2016
Chittosho Motor, C-39, Phase-3, Industrial Area, Mohali through its
authorized signatory Sh.Sanjeev Devgun.
.......Appellant/Opposite Party No.1
Versus
1. Rupinder Singh s/o Dhan Dev Singh, resident of H.No.2710-C,
MIG, sector 70, Mohali.
........Respondent No.1/Complainant
2. Maruti Suzuki India Ltd. SCO 39-40, Sector 8-C, Madhya Marg,
Chandigarh, through its Incharge.
........Respondent No.2/Opposite Party No.2
First Appeal against order dated
01.03.2013 passed by the District
Consumer Disputes Redressal
Forum, SAS Nagar, Mohali.
Quorum:-
Mr. J. S. Klar, Presiding Judicial Member
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh.Ammesh Goel, Advocate For respondent No.1 : Sh.Kulwinder Singh, Advocate For respondent No.2 : Ex-parte HARCHARAN SINGH GURAM, MEMBER:-
This appeal has been preferred by the appellant(Opposite Party No.1) against respondent No.1 of this appeal (the complainant in the complaint) and respondent No.2, (Opposite Party No.2 in the F.A. No.397 of 2013 2 complaint) challenging order dated 01.03.2013 of District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short, "District Forum"), in consumer complaint No.402 dated 14.09.2012, vide which, the complaint filed by the complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed and the OP No.1 was directed to pay to the complainant lumpsum compensation of Rs.1,00,000/- for deficiency in service and also directing to refund the booking amount of Rs.10,000/- with interest thereon @ 9% p.a. with effect from 16.08.2011 and litigation cost of Rs.10,000/-. It was further directed if the compensation amount was not paid within one month from the date of receipt of a certified copy of the order; the amount of compensation would carry interest @ 9% p.a. with effect from date of institution of the complaint i.e. 13.09.2012 till the date of actual payment.
2. Brief facts of the case are that complainant was the customer of Maruti Suzuki. He approached OP No.1 for getting Swift VDI. He was informed that Swift VDI would be available within 4-5 months from the booking. He was assured by the OPs that after booking the car, it would be delivered to him within 4-5 months and on the above written assurance, he deposited Rs.10,000/- on 16.08.2011, vide receipt No.1081 for Swift VDI White colour. OP No.1 gave a written commitment to deliver the booked vehicle within 4-5 month as mentioned in the booking form. He approached OP No.1 and enquired from it of the date of delivery of the car. OP No.1 wrote a letter to the complainant on 15.01.2012 stating therein that due to any unforeseen circumstances, the delivery of car would take some more time. He waited for 8 months from the date of booking, when he F.A. No.397 of 2013 3 received no information. He sent an E-mail to the OPs on 22.03.2012 to deliver the vehicle to him. OP No.2 refused to interfere and liable advised him to approach the OP No.1 with which he had booked the vehicle vide E-mail dated 22.03.2012. He sent a reply to the E-mail received from OP No.2 and enquired from OP No.2 to provide him the date, when the booked vehicle would be delivered to him, as he found that his visits to OP No.1 became fruitless. He received an E- mail dated 23.03.2012 from OP No.2, wherein it was stated that his complaint was forwarded to the concerned department and he would receive the information very soon. He did not receive any information from OP No.2 from 23.03.2012 till 30.03.2012. He again sent E-mail dated 31.03.2012 to OPs to apprise him of the status of his booked car. However, he received a telephonic call from sales representative of OP No.1 at about 3:10 PM on 31st March, whereby he was informed that delivery of booked car would be given to him in the month of May-June 2012. He immediately replied by E-mail to OPs at around 4:12 PM, that the car delivery was delayed beyond the period mentioned in the booking form. He was suffering on account of delay of delivery of vehicle, which was to be given in exchange and it was further getting depreciated due to fact of non-receipt of the booked car and sought that vehicle be delivered to him immediately without any further delay. He found a letter in his letters box written by OP No.1 apologizing for failure to deliver the car within time, as promised at the time of booking and the delivery of the car booked by him was delayed due to huge number of bookings and further promised to deliver the vehicle by the end of may 2012. It was further pleaded that even in spite of written assurances; OPs did not deliver the vehicle to F.A. No.397 of 2013 4 him, even after more than one year from the date of booking till 10.09.2012. It was further submitted that he had to incur around Rs.1.5 Lacs more due to non supply of vehicle as the prices increased in January and April 2012 and also road tax for registration stood increased from 4%-6% with effect from 01.09.2012. He stated that he was unable to purchase another vehicle for such a long period as he had booked his vehicle with OP No.1, which had assured him on his visits and by telephonic calls that he would be provided the vehicle very shortly, but it did not fulfill the assurances nor gave supply of his car in time. The OPs had adopted unfair trade practice of booking the vehicle and falsely promised to deliver the vehicle in 4- 5 months from the date of booking. Though they did not deliver the car even after one year which amounts to deficiency in service and unfair trade practice on its part. On failure to get any response from the OPs regarding delivery of his booked car, he purchased an alternative vehicle of Skoda on 17.08.2012 after waiting for full one year from the date of booking with OP No.1. On failure to get any relief from the OPs, he filed his complaint and sought directions to be issued to the OPs as under:-
i. to refund Rs.10,000/- amount deposited with the OPs for booking of car;
ii. to pay Rs.3,00,000/- for deficiency in service, harassment, unfair trade practice and mental agony;
iii. to pay Rs.1,68,000/- which the complainant has to incur more on the purchase of new car because of non-delivery of the car booked by him with the OP;
iv. to pay Rs.21,400/- as litigation charges. F.A. No.397 of 2013 5
3. Upon notice, OP No.1 filed its written reply and took preliminary objections that complainant approached their office on 16.08.2011 and he had booked Maruti Swift VDI Car Colour Pearl Metallic Arctic White and deposited a sum of Rs.10,000/- on 17.08.2011 as booking amount. He approached their office on 16.08.2011 and enquired for the purchase of swift VDI car and duly signed an order booking/commitment check list form, after reading and understanding the contents mentioned therein regarding the tentative waiting period and tentative delivery date and other terms and conditions. As per order booking/commitment check list form the tentative waiting period was mentioned as 4-5 months and tentative date of delivery was mentioned as February, 2012. As per conditions mentioned in the checklist form, delivery of the car was subject to availability of the vehicle from OP No.2, and no definite time for the delivery of the car was committed to him and waiting period of 4-5 months given to him was tentative and not definite. Delay in delivery of the car was due to unforeseen circumstances as there was strike in the Maruti Manufacturing Plant situated at Manesar, District Gurgaon (Haryana).
The information for late delivery was given to him, vide letter dated 15.01.2012. When the delivery of the car became available a telephonic call was given to him by their representative. On receipt of telephonic call from them, he offered Swift LDI car model 2008 bearing registration No.PB-65H-5003 for exchange. He offered to sell his car to the true value division on 06.03.2012, to find out the value of his old car. At the time of assessing the value of old car, it was found that his car was hypothecated and its representative offered to pay the assessed price of the old car to the finance company in F.A. No.397 of 2013 6 whose favour hypothecation was noted in the registration certificate. He insisted to receive the payment of the old car himself instead of getting that amount remitted to the financial institution. On his failure to agree to the amount to be given to the financial institution; the said car was not taken for exchange by its true value division. He did not provide requisite funds for purchase of the car and also did not take the delivery of car, which was offered to him but kept on sending E- mails just to cover up his lapse and to get undue advantage thereafter. The booking of the car remained alive and he was informed about the status of the delivery of the car, vide letter dated 31.03.2012 in June 2012. He was again informed telephonically about the availability of the car and requested to take the delivery of the same. Under these circumstances; there was no reason for them to offer the delivery of the car to him time and again. He never made any request for the refund of his booking amount. He was required to pay the price of the car prevailing at the time of delivery as per terms and conditions told to him at the time of booking of the car. It was submitted that it was prerogative of the seller to revise the price, if not prohibited by law or as per agreed terms and conditions of sale. It was pleaded that he did not attain the status of a consumer by booking the car with it. There was no concluded contract between them. The complaint filed by the complainant was not maintainable. He had purchased the Skoda car as per his own wish without any fault on their part and prayed for dismissal of the complaint.
4. OP No.2 filed its written reply by post and took the plea that complainant was not a consumer as defined in Section 2(1)(d) of the Act. There was no contract of sale between the complainant and F.A. No.397 of 2013 7 OP No.2. They did not receive any consideration for booking of the vehicle from him and was not liable to deliver the same to him. It was submitted that relationship between OP No.1&2 was governed by dealership agreement. It was pleaded that OP No.1 was not having any authority to represent them. As such, it was not liable for any acts of omission or commission on the part of OP No.1. There was no deficiency in service on its part. The car was booked by him with OP No.1 under an independent contract and entered into mutual agreement settling terms and conditions of sale. It was submitted that it sells vehicles through its authorized dealers under the dealership by agreement against C form. The authorized dealers would thereafter sell vehicle to their customers under their own invoices and sale certificates as per the Motor Vehicles Act, 1988. As such there was no agreement between complainant and OP No.2 and he was not entitled to seek delivery of the car from it. It was further submitted that it did not keep record or status of pending of booking of the cars. As such record, was kept only by the dealer and it denied the other allegations made in the complaint that cars were sold in black market and sought dismissal of the complaint.
5. District Forum allowed the parties of lead their evidence in support of their averments.
6. Complainant tendered in evidence his affidavit Ex.C-1/1 alongwith documents Ex.C-1 to Ex.C-11 and closed the evidence. In rebuttal of evidence of the complainant, OP No.1 tendered in evidence the affidavit of Sh.Sanjeev Devgun Ex.RW1/1 alongwith documents Ex.R-1 to Ex.R-4 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the F.A. No.397 of 2013 8 complaint of the complainant. Dissatisfied with the order of District Forum dated 01.03.2013, the OP No.1 now appellant preferred this appeal against the same.
7. We have heard the learned counsels for the parties and have carefully gone through the record of the District Forum, which was called at the stage of admission. During the course of arguments, counsel for the appellant argued that District Forum has wrongly allowed the complainant of the complainant on merits without deciding whether the complainant was a consumer or not?
8. During the course of arguments, the counsel for the appellant relied upon citation of our Commission regarding the controversy in hand between the appellants and the respondents in F.A. No. 971 of 2013, instituted on 09.09.2013 and decided on 04.11.2014 as per its title Chittosho Motor Vs. Naresh Garg & others. Our own Commission while deciding F.A. No. 971 of 2013 relied upon the citation of the Hon'ble Supreme Court in Civil Appeal No. 708 of 2007 decided on 22.07.2010 titled as MARUTI SUZUKI INDIA LTD. VERSUS 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 its 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 F.A. No.397 of 2013 9 2(o) of the Act. After going through those definitions carefully, we do not find that the complaint for alleged non-delivery vis-à-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."
9. It becomes very much clear from this judgment that the complaint before the District Forum for the non-delivery of the car is not maintainable, as the same cannot be said to be a deficiency in service as held by the Apex Court Supra. The alleged deficiency in service on account of non-delivery of the car is not covered under the provisions of the CP Act. The District Forum committed an illegality in deciding the complaint on merits without first deciding the question as to whether the complainant is proved to be a consumer and the alleged deficiency in service is covered under the Act or not.
10. In the result, this appeal is partly allowed, and the order passed by the District Forum is set aside. However, appellant/OP No.1 is directed to refund the booking amount in favour of the complainant.
11. The appellant had deposited a sum of Rs.25,000/- at the time of filing this appeal in this Commission. The registry is hereby directed to remit the amount of Rs.10,000/- alongwith interest if any, in favour of the respondent/complainant and the remaining amount in favour of the appellant after the expiry of 45 days of the sending of certified copy of the order to them.
F.A. No.397 of 2013 10
12. Arguments in this appeal were heard on 22.01.2016 and the order was reserved. Now, the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J.S. Klar) Presiding Judicial Member (Harcharan Singh Guram) Member February 03, 2016 RK 2