State Consumer Disputes Redressal Commission
Mr. Prakash Varma vs Dr. Ing H.C.F. Porsche Ag And Others on 14 March, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/08/143
1. MR. Prakash Varma
279, V Main Road,
Old Binnamangala, I Stage, Indira Nagar, Bangalore 560 038.
........Complainant(s)
Versus
1. Dr. ING H.C.F.
Porsche AG
Porscheplatz I D
-70435, Zuffenhausen Stuttgard,
Germany
Represented by its President and CEO Dr. Wende Lin Wiedeking
2. Porsche Centre
Mumbai, Shreyans Motors Pvt. Ltd.,
13, N. S. Patkar
Marg, Mumbai 400 007 represented by M.D. Mr. Rod Wallace and CEO Mr.
Ashish Chandra
3. Precision Cars
India Pvt. Ltd.
3 III floor, District
Centre Jasola, New Delhi
110 044. Represented by it Operations Manager Mr. Allen Marriage
.........Opp.Party(s)
BEFORE:
HONBLE MR. S.R.
Khanzode PRESIDING MEMBER
HONABLE MR.
S.B.Sawarkar MEMBER
PRESENT:
Ms.Nandini Singh,Advocate, Proxy for M/s.Bharucha
& Partners, Advocates, Advocate for for the Complainant 1
Mr.S.A.Gundecha-Advocate
...for the
Opp. Party
ORDER
(Per Shri S.B.Sawarkar, Honble Member ) (1) This is a complaint filed by the complainant-Mr.Prakash Varma (hereinafter referred to as complainant) against the opponent no.1-Dr.ING H.C.F., Porsche AG, opponent no.2-Porsche Centre Mumbai, Shreyans Motors Pvt.Ltd. and opponent no.3-Precision Cars India Pvt.Ltd.
(2) It is the contention of the complainant that the opponent no.1 is a manufacturer of Porsche Carrera 911 4S cars. Opponent no.2 is a Centre set up for the sale of cars in India by the opponent no.1 and opponent no.3 is the importers of Porsche Carrera cars to handle the business of opponent no.1.
(3) The complainant contends that the Porsche Carrera is premium luxury car with advanced technology and he had a dream to purchase the car.
Therefore, in October 2007, he approached opponent no.2 through their representative. After having discussion, he identified the state of art, 2008 Porsche Carrera 911 4S (hereinafter referred to as the car) the car of his choice. By the third week of November, 2007, opponent no.2 confirmed the price of the car on the basis of the specifications chosen by the complainant.
The complainant wanted certain changes in the specifications of the car for which the opponent no.2 gave revised quote in January, 2008 to the complainant and was told that the entire amount to be paid in Indian currency.
(4) Accordingly, in Februrary 2008, the complainant placed an order for the purchase of the car and paid an advance of `66,74,400/-
being 60% cost of the car which was received by the opponent no.2. It is contented by the complainant that the payment was received by the opponent no.2 with an assurance to the complainant that the booking of the car had been placed and the car would be put in production in May 2008.
The car would be delivered to him in June 2008. The complainant, therefore, signed the contract dated 14/02/2008.
(5) The complainant thereafter states that the opponent no.2 told him that the car would not go into production in May 2008 as the opponent no.1 is on vacation in August 2008. It would be put in production as model for the year 2009. The complainant thereafter continuously was requesting the opponent no.2 to provide him information regarding production of the car. He was also requesting to arrange his visit to the factory of the opponent no.1 to see car in the process of manufacture as was assured to him before signing the agreement, but the opponent no.2 did not confirm the production of the car and also its delivery to the complainant. It is the contention of the complainant that the opponent no.3 informed him that the car would go in production in the month of July and would be delivered in the month of September 2008. The complainant was continuously making requests to the parties, but was getting dodged from one to another without any confirmed information.
(6) He was also incurring severe losses due to payment of interest on the deposit amount of the car which he had taken on loan from the bank. The complainant felt that the opponents induced him to pay the advance and was made false promises, which were appearing to be fraudulent. He, therefore, after examining few papers left to him by the opponent at the time of booking of the car, felt that the conditions of the contract were dishonest and the sale contract was ex-facie dishonest. He felt that the conduct of the opponents was fraudulent, deceitful and in the least it is an unfair trade practice. The complainant, therefore, terminated the contract with the opponents and instructed them to reverse the entire process. The complainant then issued them a notice on 21/05/2008 and asked them to refund the entire sum with proper interest. Thus, the present complaint is filed by the complainant with prayer to direct the opponents to refund him the booking amount with an interest @18% p.a.from August 2008 amount to `72,75,096/-
and also `10 lacs for the damages, mental trauma and harassment attributing unfair trade practice and deficiency in service.
(7) The complaint at its admission stage was heard on 23/04/2009 before this State Commission and was rejected.
(8) Aggrieved thereby, the complainant filed an appeal bearing No. 219/2009 before the Honble National Commission where it was decided on 27/08/2009 by the Honble National Commission with following observations We are of the considered view that the impugned order is legally unsustainable and is liable to be set aside and the complaint is required to be remitted back to the State Commission for its disposal in accordance with the law. Needless to mention that we have not expressed any opinion on the merit of the case. The appeal is disposed off accordingly and the parties are directed to appear before the State Commission on 29/09/2009.
(9) As per the order of the National Commission, the parties appeared before this Commission. We heard the parties in detail.
(10) It was contended by the complainant that the opponent no.1 is a manufacturer and for the purpose of sales and service of the cars they have set up Porsche Centers in India. The opponent no.2 & 3 handles marketing, sales & service of the opponent no.1. The complainant with appropriate discussion, and with his specifications, taking proper quotation in the second week of the February, 2008, placed an order for the purchase of the car and paid an advance of `66,74,400/-. He was assured that the car would be put in production in the month of May 2008 and would be delivered in June 2008. He signed the agreement on 14/02/2008, He also requested the opponents to arrange for him to inspect the car in its production stage itself.
However, he did not get any confirmation or intimation from the opponents for over three months.
Being suspicious of the intent of the opponents, the complainant cancelled the contract and claimed an amount paid by him i.e. `66,74,400/- with interest @18% p.a. from 14/02/2008 and also `10 lacs for the damages, mental trauma and harassment.
(11) The opponents contested the claims of the complainant, that the opponent no.2 and 3 are not the dealers or agents of the opponent no.1. The relationship between opponent no.1 & 2 or between opponent nos.2 & 3 or between opponent nos.1 & 3 are on principal to principal basis and are independent with no agent relationship between them. The opponent nos.1 & 3 are not at all concerned with the agreement made between the complainant and opponent no.2 on 14/02/2008.
(12) The opponent no.2 states that the complainant had agreed with the technical specifications as are quoted in the agreement dated 14/02/2008 and had, therefore, entered into the agreement after full consideration.
The opponent no.2 also states that they had not agreed to give any confirmation of visit, inspection at the production stage, and had clarified about variation of the price of the car subject to prevalent conditions. The opponent no.2 states that the subject to agreed terms of sale as per the Sale Contract, if any, the complainant could avail to cancel the agreement within 7 days from the booking of the car and any cancellation thereafter results in forfeiture of the amount paid.
(13) It is the contention of the complainant that he has cancelled the order placed by him for the purchase of the car by his communication dated 7th May, 2008. Therefore the opponents claimed that they had not agreed for any payment of any interest on any amount received as consideration. The opponents, therefore, contented that in view of the cancellation of the contract; the complainant had ceased to be a consumer. Therefore, the present contract and dispute is not in the jurisdiction of the Consumer Protection Act, 1986 and he cannot claim any redressal before this Commission.
(14) We considered the contention of the complainant and that of the opponents.
It is clearly seen that the contract made for the purchase of the said car on 14/02/2008 shows the expected sale and delivery of the vehicle in the second week of July and is also subjected to change depending on the factory information. The contract made says very clearly that in the event of cancellation of contract and booking the advance amount would not be returned. The complainant can also be seen to have cancelled the booking after that by his communication dated 07/05/2008 which is after 7 days but before the stipulated date and 2nd week of July.
(12) It can be very well seen that the complainant have seen all the conditions while booking of the vehicle and paying the advance. It also shows that he was well aware of the uncertainty of the date of delivery since it correlates with the production place of the factory of complainants vehicle which is supposed to incorporate the changes as specified by the complainant.
Without waiting for the delivery date even though it was indicated to him that in the month of June the production may be taken up, he had exhibited his anguish and on his own cancelled the agreement and asking to reverse the process to claim refund of the booking amount paid by him. The refund as per agreement dated 14/02/2008, in the given circumstances, perhaps cannot be claimed. Even if it could be claimed, it would be a monetary claim and not a consume dispute.
(15) Thus, for the reasons mentioned above, we hold accordingly and pass the following order as below.
ORDER (1) The Consumer complaint stands dismissed.
(2) In the given circumstances, the complainant to bear his own costs and shall pay `25,000/- as costs to each one of the opponents.
Pronounced on 14th March, 2013.
[HON'BLE MR. S.R. Khanzode] PRESIDING MEMBER [HON'ABLE MR. S.B.Sawarkar] MEMBER pgg