DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Om Parkash, R/o H.No. 101, Sec.25, Panchkula.

              ---Complainant

Vs

1.   Hyundai Motor India Limited (HMIL), through its Managing Director, Head Office at A-30 Mohan Cooperative, Industrial Area, Phase-I, Mathura Road, New Delhi – 110044.

2.   Charisma Goldwheels (P) Limited, through its Managing Director, 7, Industrial Area, Phase-I, Chandigarh – 160 002.

---- Opposite Parties

BEFORE:    MRS.MADHU MUTNEJA               PRESIDING MEMBER

           SH. JASWINDER SINGH SIDHU       MEMBER

Argued By:    Sh. D.K. Singal, Counsel for Complainant.

Sh. Vishal Gupta, Counsel for Opposite Party No.1.

Sh. N.P. Sharma, Counsel for Opposite Party No.2.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.        The Complainant had approached the Opposite Party No.2 on 17.5.2011 for purchasing a Hyundai Verna 1.6 SX car. The Complainant has stated that he had informed the Opposite Party No.2 about an auspicious occasion in his family, for which there was urgency to purchase the car quickly. It has been stated in the complaint that the Opposite Party No. 2 had assured the Complainant that the car would be delivered within a maximum period of 03 weeks. On the assurance given by the Opposite Party No.2, the Complainant had deposited a sum of Rs.75,000/- as booking amount vide Cheque No. 205089, drawn on State Bank of Patiala, Sector 12, Panchkula. The Complainant has stated that Opposite Party No.2 had given 10-12 June, 2011, as the expected date of delivery (Receipt & Booking Form are at Annexure C-1 and C-2). Thereafter, the Complainant regularly kept inquiring from Opposite Party No.2 about the delivery, but the Opposite Party No.2 kept delaying the matter. It has also been averred by the Complainant that the Complainant came to know that cars are being delivered to other customers in total disregard of the priority for extraneous considerations due to vested interest of the Opposite Parties.

          The Complainant eventually sent a legal notice dated 2.7.2011, calling upon the Opposite Party No.2 to delivery the vehicle, along with compensation for mental agony and harassment.   As the car remained undelivered, the Complainant filed the instant complaint on 8.8.2011, praying for delivery of vehicle, along with compensation, punitive damages and cost of litigation.

2.        Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.        The Opposite Party No.1 has taken the preliminary objection that the complaint deserves outright dismissal against Opposite Party No.1 as the grievance, if any, is against the Opposite Party No.2 alone. The Complainant has wrongly impleaded Opposite Party No.1 as a party which is a deliberate attempt to harass the Opposite Party No.1 and gain undue publicity. Opposite Party No.1 has submitted that they operated with all the dealers on principal-to-principal basis and errors/ omissions, if any, committed by the dealers are the sole responsibility of the dealers. Also, the dealer is not authorized to make any commitment on behalf of Opposite Party No.1.

          On merits, Opposite Party No.1 has denied all the allegations of the Complainant in totality and reiterated the fact that all the allegations about deficiency in service, if any, relate to the Dealer/Opposite Party No.2 alone. With regard to the allegations that out of turn delivery of cars were given by the Opposite Party No.2, Opposite Party No.1 has stated that no complaint was ever made by the Complainant to Opposite Party No.1 in this regard. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4.        Opposite Party No.2 in reply has taken the preliminary objection that the Complainant has concealed material facts, while filing the instant complaint. The Complainant has in fact post filing the complaint taken delivery of the car on 29.9.2011. Opposite Party No.2 is only a Dealer and not manufacturer of the car and production & delivery of the cars is entirely the prerogative of the Opposite Party No.1. Opposite Party No.2 has stated that the delay of 4-8 months in the delivery of the new Hyundai Verna car due to delay in production of the car by Opposite Party No.1,  is a process in which the Opposite Party No.2 has no role to play. Newspaper reports have been attached to substantiate this averment (Annexure WV-1 & WV-2). Opposite Party No.2 has also stated that they have never given any promise about the date of delivery to the Complainant as is manifest from the booking form itself. The date of delivery was only ‘expected’ and ‘not firm’. Opposite Party No.2 has also maintained that if the Complainant was not satisfied with the delay in the delivery of vehicle, he could have exercised his option to seek a refund of the booking amount paid by him and buy another car in case the alleged auspicious occasion could not wait. Instead he took delivery of the car on 29.9.2011.

          On merits, Opposite Party No.2 while admitting the factual position about booking of the car, has denied any commitment about the date of delivery. With regard to the allegations about the Opposite Party No.2 violating the priority list, Opposite Party No.2 has stated that the Complainant be put to strict proof thereof. Also, the Complainant was always kept in the loop with regard to the status of his booking. Denying all other allegations and stating that there is no deficiency in service or unfair trade practice on its part, opposite party No. 2 has prayed for dismissal of the complaint.   

5.        Parties led evidence in support of their contentions.

6.        We have heard the learned counsel for the parties and have perused the record, along with the written arguments filed on behalf of the Complainant.

7.        The case of the Complainant relates to non-delivery of a booked car, which according to him had been promised to be delivered within 2-3 weeks. The booking form placed on record by the Complainant at Annexure C-2 gives the expected date of delivery as 10-12 June, 2011. The Complainant has not received the vehicle from the Opposite Party No.2 by this date and hence, has approached this Forum for redressal of his grievance. Opposite Party No.1 has categorically maintained that all averments made in the complaint relate to the Opposite Party No.2 only. However, regarding the allegation about the priority list and out of turn delivery of cars, Opposite Party No.1 has stated that no complaint was made by the Complainant to Opposite Party No.1 in this regard against the dealer/ Opposite Party No.1. Opposite Party No. 2 has conceded that there was no specific commitment given to the Complainant about the date of delivery. Also, delivery of cars to the dealer depends on the number of cars being manufactured by the company. Opposite Party No.2 has no role to play in delay in production of the cars.

8.        In the written arguments, the Complainant has specifically stated that the cars were being delivered out of turn in total disregard of the priority list. However, this averment of out of turn delivery has not been substantiated by the Complainant. Neither any application was filed by the Complainant for seeking directions to the Opposite Parties to bring forth the priority list, to prove his case that cars had been delivered out of turn. In the absence of any evidence in support of this and denial of the same by the Opposite Parties, we cannot hold the Opposite Parties liable for meddling with the priority list and giving vehicles to others, in total disregard of priority list being maintained.    

9.        The Hon’ble Supreme Court of India in case Godfrey Phillips India Ltd. Vs. Ajay Kumar, (2008) 4 Supreme Court Cases 504, has held that the loss or injury suffered by the Complainant due to alleged deficiency in service or unfair trade practice by the Opposite Party has to be based on substantive material or evidence and not on surmises. In the absence of allegation or material on record to show negligence, no compensation could be awarded.

10.       Further, in case, Ludhiana Improvement Trust, Ludhiana and Another Vs. Shakti Cooperative House Building Society Limited, (2009) 12 Supreme Court Cases 369, it has been held by the Hon’ble Apex Court that the basic ingredient of unfair trade practice is that some cogent material should be provided to prove the same. Without any material on record about the alleged unfair trade practice, no compensation can be given.  

11.       When the present case is analyzed in the aforesaid backdrop, it is evident that the allegations of the Complainant regarding avoiding delivery of the booked car to the Complainant by the Opposite Parties, have not been substantiated by any cogent proof. The Complainant has not been able to prove even a single instance about the delivery of vehicle being made out of turn by the Opposite Parties in total disregard of the priority list to prove either deficiency in service or unfair trade practice by the Opposite Parties 

12.       Hence, to our mind, looking at the entire the situation, the Complainant has not been able to substantiate his claim to prove any allegation of deficiency in service or harassment against the Opposite Parties. The present complaint is, therefore, dismissed with no order as to costs.

13.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

06^th December, 2012.                                                 

Sd/-

(MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

“Dutt”