CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.215/11
M/S SM MILKOSE LIMITED
CORPORATE OFFICE: M-10, 2ND FLOOR,
GREATER KAILASH- II(MARKET)
NEW DELHI – 110048
THROUGH ITS MANAGER
SHRI M. VEERARA…..COMPLAINANT
-
- M/S RISHABH MOTORS PVT. LTD.
B-225, OKHLA INDUSTRIAL AREA, PHASE-1
NEW DELHI- 110020
- HYUNDAI MOTOR INDIA LIMITED (HMIL)
A-30, MOHAN CO-OPERATIVE INDUSTRIAL AREA
PHASE-1, MATHURA ROAD,
NEW DELHI- 110044 ..RESPONDENTS
Date of Institution-19.05.2011
Date of Order-14.03.2023
O R D E R
DR. RAJENDER DHAR-MEMBER
The complainant has stated that this is a Public limited company duly registered under Indian Companies Act. The complainant has stated that it has a corporate office at M-10, 2nd floor, Greater Kailash-II (Market), New Delhi- 110048 and he had booked Hyndai “Santa-Fe” vehicle for own use with OP2 through OP1 on 30.10.2010. Certified true copy of board resolution is enclosed as Annexure 1. Since OP1 is the authorized dealer of OP2 and had paid a sum of Rs. 2,00,000/- vide cheque No. 156376 drawn on Bank of India, NDCBD, New Delhi 110001 as booking amount, copy of booking sheet is enclosed as Annexure 2.
On 11.11.2010 complainant received allotment letter from OP1 and complainant was requested to make full payment within 7 days, copy enclosed Annexure 3. After receiving the said conformation of delivery from OP1 and as advised for making full payment within 7 days, complainant vide letter dated 27.12.2010 addressed to OP1, enclosed cheque no. 156422 dated 27.12.2010 for Rs. 18,290/- drawn on Bank of India, New Delhi.
Complainant further informed that loan amount of Rs. 18,85,000/- is expected to be disbursed to him by 30.12.2010, copy of the letter of loan disbursement is annexed as Annexure 4 and photocopy of receipt dated 27.12.2010 is annexed as Annexure 5. On 30.12.2010, an amount of Rs. 18,82,602/- was disbursed directly in the account of OP1 against receipt No. PR 2010010481 dated 31.12.2010 issued by OP1, copy enclosed as Annexure 6. Despite receiving the amount OP1 did not make the delivery of the vehicle.
Again on 03.01.2011, complainant informed OP1 that delivery of the vehicle has not been provided and also sent an email dated 28.01.2011 informing that delivery has not happened despite passing of two more weeks. Further, e-mail dated 13.01.2011 and 28.01.2011 were also sent by him, copy of emails annexed as annexure 7 and annexure 8 respectively.
Since no, response was received by OP1, the complainant took up the issue with OP2 on 18.08.2011 informing telephonically about the issue. Since, there was no response and after having waited for 3 more weeks complainant sent an e-mail dated 2011 to OP2 with the copy to OP1 about the grievances stating that the delivery of the vehicle has not been done and asking for the status of the same. Further, e-mail dated 01.11.2012 has also annexed as annexure 9. Again on 22.02.2012 letter was sent by complainant to both the OPs informing that despite passing of three months from the date of making the full payment to OP1 the vehicle has not been delivered and despite repeated follow ups no action has been taken by OPs.
Complainant also informed OP1 that since passage of time and due to delay, the requirement of the vehicle has ceased and their entire amount along with interest and other cost and expenses incurred by him may be returned to him for non-delivery of vehicle. In fact, the complaint was paying all installments despite the fact that delivery of the vehicle was not done to him and he need to settle his account with bankers for enclosing levy of foreclosed charges. Copy of letter dated 22.02.2011 has been placed on record as Annexure 10. No response was received by the complainant. It has been further stated by the complainant that on 03.03.2011 one Miss Sunita, showroom Manager, visited his office and tried to convince him to take the delivery of the vehicle which was otherwise due within a week’s time. On 04.03.2011 the complainant sent a letter to OP1 informing him about the visiting of his showroom manager and again requested for refund. Copy of letter dated 04.03.2013 has been placed on record and marked as Annexure 11. However, on 09.03.2011 the complainant received a letter dated 07.03.2011 from OP1 giving details of money received by them and also informed complainant that OP2 has dispatched the vehicle and they shall deliver within two to three days. OP1 also enclosed registration form with the letter and requested the complainant to sign form and return the same to OP1. OP1 informed the complainant whether he wants refund or delivery of the vehicle, so that OP1 can refund the amount to the complainant. Copy of letter dated 07.03.2011 is enclosed with complaint and marked as Annexure 12. On 09.03.2011 complainant informed to OP1 that he is not interested in taking the delivery of vehicle rather he wants refund of the money paid by him, copy of email dated 09.03.2011 is placed on record and mark as Annexure 13. No reply was received by the complainant from OP1 despite sending a reminder email dated 14.03.2011 copy of which is placed on file and marked as Annexure 14. On 15.03.2011, complainant received an email from OP1 informing about the engine number and chases number of the vehicle and asked the complainant to complete the documents for registration email dated 15.03.2011 has been enclosed as Annexure 15. However, in the said email no mention of refund was made by OP1. Complainant has further submitted that on 24.03.2011 OP1 informed him that refund is not possible at all rather he has to take the delivery of the vehicle only. However, no communication dated 24.03.2011 sent by OP1 to the complainant has been put on record by the complainant. Due to exceptional circumstances and pressure built on the complainant by OP1, complainant was forced to take the delivery of the said vehicle on 26.03.2011, the delivery of the said vehicle was taken by Shri. R.K. Gupta representative of complainant and the vehicle is safely parked and not being used. Copy of letter dated 26.03.2011 is annexed with the complaint and marked as Annexure 16. It is pertinent to note that in the said letter complainant has mentioned that he was threatened and forced by OP1 to take the delivery of the vehicle when the requirement had ceased. The complainant has also mentioned in the said letter that 3 days are being given to OP i.e. 31.03.2020 to take back their vehicle or else the complainant will sell of the vehicle and will recover its losses and damages from OP1 as per provision of law.
In the end the complainant has prayed following:-
- Refund an amount of Rs.1,79,829/- from OP1 deposited by the complainant since the vehicle was delayed by three months.
- An amount of Rs.3,00,000/- as compensation and for mental agony and discomfort caused to the officials of the company during entire transaction and due to grave deficiency in service on the part of OPs.
- An amount of Rs.50,000/- towards man hours of the officials consumed in the mater.
- Cost of legal proceedings.
- Interest @18% p.a.
Notice was issued to both the Ops, OP1 has submitted his reply stating that the complainant has filed the said complaint with wrong motive and to take advantage of the Consumer Fora in order to gain advantage
OP2 in his reply has stated that the complaint is frivolous, misconceived, misleading and hence be dismissed in limine.
OP2 has also stated that the vehicle in question has been booked by M/s SM Milkose Limited and has been purchased for commercial purposes therefore, he is not a consumer as defined under Section (2d) of CPA Act,1986 and has also filed judgment of hon’ble NCDRC titled as ‘Ajitha Chit Funds (P) Ltd. Vs. and Tata Engineering and Locomotive Co. Ltd. and Others I (2007) CPJ 204 (NC)’ along with Judgment in ‘Shivalik Agro Chemicals Vs. New India Assurance Company Limited & Others I (2004) CPJ 364’ wherein it has been observed that the vehicle was booked by the appellant company yet it was not for commercial purpose was rejected by the Hon’ble State Dispute Redressal Forum, Chandigarh. It was also held in this case that the appellant company did not put anything on record to show that the vehicle in question was not used for commercial purposes. Copy of the gatepass in retail invoice evidencing that the vehicle was booked by the name of M/s S.M. Milkose Limited is marked as Annexure 1 Colly.
OP1 has further stated that the said complaint is nothing but manifestation of malaise complaint and same is entirely misconceived and has been filed for harassing and for extortion of money from OPs. The OP1 has further stated that OP2 is the manufacturer of the vehicle and OP2 has a good record of sales worldwide. Other contentions of the complainant have been denied by OP1. The supply and delivery of the said vehicle was entirely in the hands of OP2 only therefore role of OP1 was helpless in the matter of delivery of vehicle.
OP2 further stated that as far as delivery of vehicle is concerned it is a retail sale issue concerning the complainant and OP1 and not OP2 and OP2 role was restricted and limited but furnishing the warranty obligation alone. Rather OP2 provided first and free service to the complainant and there was no complaint on that issue. OP2 relation is principal–to-principal basis with all its dealers. In para 6 of the reply of OP2 has contended that vehicles are delivered by their authorised dealer i.e. OP1 and all other such dealers by condoning random computerised draw in respect of all bookings received by them from different dealers in India. OP2 was never involved in the process of retailing of the vehicle of the complainant, no payments as such were made by complaining to OP2. Reiterating his contentions OP2 has stated that the delivery of vehicle is the issue between the complainant and OP1 and OP2 has no role, OP2 is only liable and responsible for warranty only.
Complainant has filed rejoinder and evidence by way of affidavit. In the rejoinder complainant has reiterated his contentions and various issues as per his complaint and has also rebutted the reply filed by both OPs and has reiterated that the vehicle was purchased for his own personal use and which was not for commercial use purposes.
Complainant in his evidence has exhibited various documents which have duly exhibited:-
- Certified true copy of board resolution is exhibited as Annexure 1.
- Booking amount of the vehicle is exhibited as Annexure 2.
- Allotment letter is exhibited as Annexure 3.
- Photocopy of letter dated 27.12.2010 is exhibited as Annexure 4.
- Photocopy of receipt dated 27.12.2010 is exhibited as Annexure 5.
- Photocopy of receipt is exhibited as Annexure 6.
- Email dated 13.01.2011 is exhibited as Annexure 7.
- Email dated 28.01.2011 is exhibited as Annexure 8.
- Email dated 01.02.2011 is exhibited as Annexure 9.
- Photocopy of letter dated 22.02.2011 alongwith postal receipt is exhibited as Annexure 10.
- Photocopy of letter dated 04.03.2011 alongwith postal receipt is exhibited as Annexure 11.
- Photocopy of letter of OP1 dated 07.03.2011 is exhibited as Annexure 12.
- Email dated 09.03.2011 is exhibited as Annexure 13.
- Email dated 14.03.2011 is exhibited as Annexure 14.
- Email dated 15.03.2011 is exhibited as Annexure 15.
- Photocopy of letter alongwith postal receipt is exhibited as Annexure 16.
No evidence was filed by OP1. OP2 filed its evidence in which they have reiterated their contentions as submitted in their reply that the said vehicle was purchased for commercial purposes however no documentary proof has been filed, averments by OP2 as part of their evidence.
Complainant and OP2 filed their written arguments however, no written argument were filed by OP1.
After having considered the facts and submissions, written statement, rejoinder, evidence filed by both the parties, it is observed that the fact of booking of the car and paying consideration amount by complainant to OP1 has not been rebutted by any of OPs. It is also seen that the complainant has made all the efforts from time to time by sending various messages/ letters / emails to both the OPs regarding/ requesting timely delivery of his vehicle which was assured to the complainant by OP1 from the date of booking. It is also seen that despite passing of 3 months the complainant did not receive delivery of the booked vehicle. Ultimately due to delay the stage arose wherein the complainant’s need for vehicle ceased to exist and this fact was also conveyed timely by the complainant to Ops and requested that his need due to various factors due to lapse of time has ceased to exist therefore, his consideration amount along with other costs may be refunded to him. This fact has not been rebutted by OPs in any manner.
The citation quoted by OP2 is not applicable in the present case. The vehicle although booked by the company it is a Private Limited Company duly registered under Indian Companies Act had booked the said vehicle for its own personal use to be given to one Mr. R.K. Gupta Senior functioning of the company for his personal use. OPs also failed to establish that the said vehicle booked was for commercial purposes. It is only their written averments without any supporting documents/ evidence to corroborate their averments. It is pertinent to mention that in Judgment of Hon’ble NCDRC Crompton Greaves Limited & Anr. Vs Diamler Chrysler India Private decided on 08.07.2016, it has been observed that the complainant definitely is a registered Limited Company and had booked a vehicle for personal use of one of Directors, therefore, the purpose of booking was not commercial and hence the company falls under the definition of Consumer defined in Consumer Protection Act, 1986. It is also seen from the reply filed by OP1 and OP2 that they are trying to push the blame on each other. OP1 has contended that the supply of vehicle is totally in the hands of OP2 whereas the OP2 states that the sale is directly depends upon the supply of the sale of the vehicle and it is between complainant and OP1.
It is clear that admittedly, the whole process of correspondence and follow up by complainant the car got delayed beyond expectations as per the committed delivery time and after sometime the requirement of the vehicle ceased and under circumstances complainant was forced to take the delivery of the vehicle which otherwise ought to have been delivered to him i.e. in the committed time. All these facts have not been rebutted by both the OPs. Complainant has filed all the correspondence emails and letters to both the OPs from time to time in his evidence by way of affidavit which have been duly exhibited. This has not been refuted/ rebutted by the OPs.
OP has also not shown any transaction or purpose of the car for commercial purposes for making profits for the company. Therefore, the complainant is well within the definition of the consumer under CPA 1986. The OPs have failed in providing the timely delivery of the booked vehicle to the complainant and this act amounts to deficiency in services and subsequently due to various conditions complainant was forced to take the delivery which he never wanted after lapse of time. The Apex Court in Laxmi Engineering Works v. P.S.G. Industrial Institute [(1995) 3 SCC 583] itself emphasised that for the exclusion to apply, there has to be a closed nexus between the transaction of purchase of goods and the large scale activity, carried for earning profit. Therefore, if a transaction of purchase of goods or hiring or availing of services is not aimed at earning profits or advancing the business activities of the purchaser, such a transaction will not be goods or such services are incidentally used by the directors or employees of the company for their personal purposes.
Hence, in the facts and circumstances of the case, the Commission finds OPs guilty of deficiency of service and unfair trade practice and following directions are passed:-
- OP1 and OP2 are directed to pay an amount of Rs. 1,50,000/- as compensation for the mental agony and the discomfort caused due to deficiency in service.(50% by OP1 and 50% by OP2).
- OP1 and OP2 are directed to pay an amount of Rs.15,000/-as litigation expenses.
The order to be complied within 30 days from the date of uploading of order failing which it will carry an interest of @12% p.a. from the date of order to till payment is made by OPs.
File be consigned to record room.
