BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.221 OF 2013 AGAINST C.C.NO. 13 OF 2010 DISTRICT FORUM SRIKAKULAM

Between:

1.   M/s Varun Motors Pvt Ltd.,
rep. by its Managing Director
Varun Towers, Kasturba Marg
Siripuram Junction-

Visakhapatnam-003

2.   M/s Varun Motors Pvt Ltd.,
rep. by its Branch Manager
Peddapadu Road,
Srikakulam District-001

 
                                                        Appellants/opposite parties

        A N D

Dr.D.Rajendra S/o Venkata Rao
aged 40 years, M.S.General Surgeon
Radha Krishna Nursing Home
R/o Srikakulam Road, Rajam, Rajam Mandal
Srikakulam District.    

Respondent/complainant

 

Counsel for the Appellant                      M/s Indus Law Firm

Counsel for the Respondents                 M/s  B.Appa Rao

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE  MEMBER

AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

     MONDAY THE SEVENTEENTH  DAY OF FEBRUARY  

                                TWO THOUSAND FOURTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

***

1.                 The opposite parties are the appellants. The brief facts of the complaint are that the respondent booked  Sovereign  Blue colour MarutiDzire LDi with the opposite parties by paying booking amount of      15,000/-.  The appellant no.2 issued   quotation for      6,17,896/- with a condition that the appellants should deliver the car within 45 days from the date of order.  The appellants agreed to receive the used Maruthi Wag RLX AP 30E 2457 of the respondent on exchange basis and the car was valued at      1,75,000/- which was credited the amount to their account towards part consideration of the new car and issued credit note on the same day.  Subsequently the respondent the approached the appellants with balance amount several times and requested them to deliver the car.  The appellants postponed to deliver the car of his choice on one pretext or the other.  The appellants had to deliver the new car on or before 4.9.2009.  The respondent being a doctor has suffered inconvenience from 28.7.2009 to 29.10.2009 due to non-delivery of car by the appellants.   

2.             The respondent submitted that he refused to receive Silky Silver colour Maurti Dzire LDi car on 29.10.2009 as the delivery of the car was being delayed and colour of the car was also not in accordance with the order placed by him.   On being threatened by the employees of the appellant that if he does not take delivery of the car, the advance amount paid by him will be forfeited to the appellants, the respondent accepted delivery of the car on 29.10.2009.  The car was hypothecated to the State Bank of India, Rajam Branch.

3.             The respondent submitted that he suffered untold mental agony and damage due to delay in delivery of the car and he got issued notice on 2.12.2009 to the first appellant with a demand for damages to the tune of      1,00,000/-.  The appellants failed to give reply to the notice.  The appellants violated the terms and conditions of quotation and order form dated 11.7.2009.

4.             The appellants resisted the claim on the premise that the respondent placed order with the second appellant on 11.7.2009 by making payment of      15,000/- as advance  and the second appellant issued quotation dated 11.7.2009 for      6,17,896/- with a condition that the appellants should deliver the car within 45 days from the date of the order.  The appellants agreed to receive   Maruti Wagnor LX AP 30E 2457 of the respondent on exchange basis and that the respondent delivered his car to the appellant no.2 on 28.7.2009.  The value of the car of the respondent was assessed at      1,75,000/- and the amount was credited to the account of the respondent towards part   sale consideration of the new car. 

5.             The appellants submitted that they issued credit note dated 28.7.2009 to the respondent as also receipt acknowledging receipt of the amount of      15,000/- towards advance amount and an amount of      1,75,000/- towards the part sale consideration of the new car.  The second appellant is  a sub-dealer the authorized dealer is not made party to the complaint.  The complaint is bad for misjoinder of the party.  The first appellant is an agent of the principal, i.e., manufacturer.  As per the direction of the manufacturer, the first appellant and as per the instructions of the first appellant, the second appellant would function and as such the second appellant cannot be held liable to pay any amount to the respondent.

6.             The respondent had not made any protest or lodged any complaint that the employees of the appellant no.2 threatened him that if he refused to receive Maruti S.Silver car the amount paid towards advance will be forfeited to the appellants.  As per clause 12 of Order Booking Form, in case the respondent is not satisfied with the service of the appellants, he can receive back the advance amount together with interest thereon.  The respondent is estopped from claiming damages or compensation.  He paid the value of the vehicle towards full satisfaction and final settlement and taken delivery of the vehicle without making any protest.

7.             The appellants submitted that the respondent  had not placed any evidence on record on which he arrived at the quantum of sum claimed by him.  The District Forum has no territorial jurisdiction to entertain the claim as per clause no.12 of the order booking form which restricted jurisdiction to try any dispute to District Forum,  Visakhapatnam.  There is no deficiency in service on the part of the appellant and the appellants sought for dismissal of the complaint.

8.             The respondent filed his affidavit and the documents, EXs.A1 to A8.  On behalf of the appellants, the Manager of the opposite party no.2 filed his affidavit and Ex.B1, Receive and Delivery particulars of the vehicle by the appellants.

9.             The District Forum allowed the complaint on the premise that the appellants caused delay of 46 days in delivering the new car and delivered a car of different colour than Maruti Dzire car of soveirgn blue colour and that the employees of the appellant pressurized the appellants to receive delivery of the car.  The District Forum awarded an amount of      35,000/- towards compensation and a sum of      3,000/- towards costs.

10.            Aggrieved by the order of the District Forum, the opposite parties have filed appeal contending that the District Forum allowed the complaint without there being any supporting evidence and it ought to have taken lenient view as there was delay of only 46 days in delivery of the car to the respondent.  The appellants submitted that the District Forum accepted statement of the respondent that he was pressurized to receive delivery of the car, without there being any supporting evidence and that there was no protest on the side of the respondent either on delayed delivery or as to the colour of the car. 

11.            The point for consideration is whether the order of the District Forum is vitiated by the misappreciation of facts or law?

12.            The facts beyond any dispute are that the respondent placed an order for New Maruti Dzire LDi of soverign blue colour car and paid an amount of      15,000/- through cheque on 11.7.2009 and the second respondent issued quotation dated 11.7.2009 for a sum of      6,17,896/-.  It is an admitted fact that the condition stipulated in the booking order has restricted period of time for delivery of the car to 46 days from the date of booking order.  It is not disputed that the sale transcation of the new car was made on exchange basis of the used Maruti Wagnor LXi AP 30E 2457 of the respondent and the value of the car of the respondent was fixed at      1,75,000/- as also that the cost of the used car was adjusted  towards part consideration of the new Maruti Dzire car. 

13.            The respondent has stated that as per the terms and conditions of the quotation, the appellants had to deliver the car to him on or 4.9.2009 and despite making request therefor on several occasions they failed to deliver the car within stipulated period of 46 days from the date of booking order and he remained without a car since 28.7.2009.  He has stated:

Subsequently I approached the respondents with the balance amount on several occasions and requested to deliver the new car.  But the respondents did not deliver the car as per the order placed by me and postponed to deliver the ar.  As per the quotation and order form, the respondents have to deliver the new car on or before dated 4.9.2009.  in spite of  several requests and demands made by me the respondents did not take steps to deliver the new car in time or as early as possible.  I remained without a car for his needs since dated 28.7.2009.  I have suffered a lot mentally and  physically.

14.            The respondent submitted that the appellants in violation of the terms and conditions of the booking order, supplied him a car of different colours than the colour mentioned in the invoice.  The respondent has stated

The respondents failed to Maruti Dzire LDi, colour soveverign blue car to me as per my order and quotation, promptly as per terms.  Finally on dated 29.10.2009 through invoice no.VSL 09000132, invoice date 29.10.2009, order No.50B09000064, order Dt.20.07.2009, Key NO.5409, Booking Dealer No.W602, the respondents delivered Maruti Dzire LDi colour S.Silver Car to me after receiving the balance amount.  When I refused to take delivery of the car as the delivery of the car is being delayed and colour of the car is also not as per the order, the respondents’’ people bluntly stated that the soevereign blue colour car is not available and they are unable to deliver that car at any time and I have failed to take delivery of the car, the advance amount paid by me will be forfeited.

15.            As per the terms and conditions mentioned in order booking form, the appellants have to supply the car of the colour mentioned therein within 45 days from the date of the booking order.  The respondent booked the car by placing an order with the appellant no.2 on 18.7.2009 and including the value of his car which was taken delivery of, by the appellants on exchange basis he paid the total sale consideration of the car and even after receiving the amount and also receipt of notice dated 2.12.2009, the appellant has not taken any steps for supply of the car with the colour of the respondent’s choice within the stipulated period. 

16.            The appellants had not shown any sufficient cause for not effecting delivery of the car within the agreed period to the respondent and in the backdrop of the delay in delivery of the car, the statement of the respondent attains significance that he was compelled to take delivery of the car whose colour is silky silver and different from the colour of his choice viz., sovereign blue.  Taking into consideration of these facts and the attending circumstances, we do not think that the District Forum has committed any error either of law or relating to appreciation of the facts. 

17.            The respondent claimed a sum of      1,00,000/- towards compensation and the District Forum awarded a sum of Rs.35,000/- for the delay in delivery of the car as also on account of supply of sovereign blue colour.  It pertinent to note that the respondent had taken delivery of the car and at the time he had not raised protest or dissatisfaction as to the colour of the car.  It is also to be noted that the respondent stated that the appellants and their employees informed his of non-availability of car sovereign blue.  It is a different matter that he had also submitted that the employees of appellants compelled to take delivery of the car.  The fact remains that at the time the sovereign blue car was not available with the appellants.  All these factors mitigate the magnitude of negligence on the part of the appellants. 

18.            The Hon’ble Supreme Court in “State of Gujarath vs Shantilal  Mangaldas” AIR 1969 SC 634. held the compensation to mean”…..In ordinary parlance the expression compensation means anything given to make things equivalent; a thing given to or to make amends for loss recompense, remuneration or pay, it need not therefore necessarily in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money because it expressly provides that the law may specify the principles on which, and the manner in which , compensation  is to be determined and given . If it were to be in terms of money along, the expression ‘paid’ would have been more appropriate”.

19.            The Supreme Court  held that the compensation to be awarded is to be fair and reasonable.  In “Charan Singh vs Healing Touch Hospital and others” 2000SAR(Civil) 935 the Apex Court stressed the need of balancing between the compensation awarded recompensing the consumer l and the  change it brings in the attitude of the service provider. The Court held “While quantifying damages , consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider. Indeed calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge”. 

20.            In view of the principle laid in the aforementioned cases, the award of an amount of      35,000/- in the circumstances where  there was no availability of stock of sovereign blue colour cars appears to be on higher side and    the amount awarded by the District Forum is liable to be reduced from      35,000/- to an amount of      15,000/-. 

21.            In the result the appeal is allowed.  The order of the District Forum is modified reducing the amount of      35,000/- awarded as compensation to a sum of      15,000/- and upholding  the other reliefs granted by the District Forum.  There shall be no order as to costs in the appeal.  Time for compliance four weeks. 

                                                                        MEMBER

                                                                        MEMBER

                                                                    Dt.17.02.2014

కె.ఎం.కె.*