MS. NIPUR CHANDNA (MEMBER)
ORDER
01.05.2024
1. The complainant has filed the present complaint alleging the deficiency in service on the part of OPs . Complainant purchased Baleno Alpha Perl Arcetic White Car BS-6-II from OP-1 in the month of December, 2023 and the same was agreed to be deliver to the complainant on 03.01.2024 by OP-1.
2. On the given date of 03.01.2024, OP-1 failed to deliver the car under the pretext such as banker not releasing the payment, car not received from manufacturer, registration not available, closure of RTO office etc. and finally delivered the car to the complainant on 04.01.2024 at 09:00 PM. After coming home complainant found that the delivered car is not the one which was agreed to be deliver to her. The car delivered is of BS-6-I which was manufactured in March, 2023. It is further alleged that the OP had committed criminal offence of cheating and breach of trust qua complainant by promising her to deliver a car of December, 2023, variant-3 car whereas she has been delivered the car which was not selected by her. It is further alleged that the delivered car was a repaired one and had been painted before delivery, the car is a defective one having the defect of bubbling and other issues.
3. The complainant approached OP-1 to handover the vehicle in question being a defective one and on account of criminal breach of trust as well as cheating done with her by OP-1. Despite her request and follow up no steps were taken by OPs to redress her grievance, being aggrieved by the conduct of OP complainant approached this Commission for redressal of her grievance.
4. The present complaint case is on admission stage. We have heard the argument advance at the bar by Ld. Counsel for complainant Sh. Anil Kumar Kathuria and have perused the record.
- The complainant has aggrieved and alleged that the car delivered to her was of model BS-6-I manufactured in March, 2023 instead of BS-6-II model manufactured in December, 2023 she further alleged that by delivering the defective vehicle which has already been repaired and painted before delivery amounts to cheating and breach of trust on the part of OP. The act and conduct of the OP are squarely covered under the offence of cheating, breach of trust punishable under the various provisions of IPC 1860.
- The complainant’s allegation seems to be replica of criminal complaint and allegations of cheating, breach of trust are dominant in the complaint.
- In these circumstances Hon’ble Supreme Court settled the law and in the latest judgment The Chairman & Managing Director, City Union Bank Ltd. & Anr. VS R.Chandramohan, Civil Appeal No. 7289 of 2009 decided on 27.03.2023 held as under:
The counsel for theappellants has rightly relied upon the decision of this Court in case of Ravneet Singh Bagga (supra) as under:
“5. Section 2(i)(o) defines “service” to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Section 2(i)(g) defines “deficiency” to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
“6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service isupon the person who alleges it. The complainant has, on facts, been found to have not established anywillful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortious acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances during the transaction and that their actionor the final decision was in good faith,it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service”.
- The present complaint involves the facts which require adjudication of criminality like cheating, breach of trust which could not be decided by the Commission under the C.P Act 2019. The law is well settled that the proceeding before the commission being summary in nature cannot decide the criminal liabilities and offences such like cheating, breach of trust.
- On the basis of above observation and discussion, we are of the considered view that the present complaint is not maintainable before this Commission, accordingly dismissed.
- Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.
Announced in open Commission on 01.05.2024.
Sanjay Kumar Nipur Chandna Rajesh
President Member Member
