BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.
Complaint No: 349 of 28.05.2015. Date of Decision: 11.04.2016.
Sandeep Kumar Gupta, aged about 33 years, son of Sh. Devinder Kumar Gupta, C/o. Navyug Medical Store, Inside Rajeev Hospital, Ferozepur Road, Moga, Tehsil and District Moga.
..… Complainant
Versus
- Vidhata Honda AKC Motors Pvt. Ltd., Ferozepur Road, Near Kothari Resorts, VPO Gahaur, Ludhiana, District Ludhiana.
- Honda Cars India Ltd., Plot No.A-1, Sector 40-41, Surjapur-Kasna Road, Greater Noida, Industrial Development Area, District Gautambudh Nagar, Utter Pradesh. .
…..Opposite parties
Complaint under the Provisions of Consumer Protection Act, 1986
QUORUM:
SH. G.K. DHIR, PRESIDENT
MS. VINOD BALA, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Jayant Malhotra, Advocate.
For OP1 : Sh. H.S. Narang, Advocate.
For OP2 : Sh. Ritesh Mohindra, Advocate.
ORDER
PER G.K. Dhir, PRESIDENT
1. Complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) filed by complainant by claiming that he is doing business of medicines by profession. OP1 is the authorized dealer of OP2. Complainant booked Honda car Model City VX MT Petrol with black colour with OP1 on 08.07.2014 by depositing Rs.50,000/- through cheque bearing No.013597. The employee of OP1 namely Harpreet Singh visited office of complainant at Moga. Total ex-showroom price of the car was Rs.10,13,500/-. Sale agreement was duly executed by OP1 through its authorized signatory Harpreet Singh. Complainant also signed the said contract containing commitment that company had to start production in the month of August 2014. OP1 promised and assured to deliver the car at home town at Moga after receipt of the same from OP2. Production of the car was started by OP1 in August 2014 and thereafter, complainant contacted OP1 for delivery of the car. Mr. Vikram, main executive of OP1 replied that black colour car is not in production due to which complainant should give choice of second colour. On request of OP1, complainant gave option of purchasing Golden brown colour car and then OP1 promised to deliver the car by 10th September, 2014. However, OP1 failed to deliver the car by 1st Navratra i.e. 25.09.2014. Thereafter, complainant visited showroom of OP1 for meeting Mr. Vipan Puri, sales executive and he made lame excuses by claiming that he was busy at the moment and could not meet. However, Mr. Vikram, main executive assured that the car will be supplied in the month of October, 2014, but despite that car was not delivered. Thereafter on contacting, OP1 promised to deliver the car on 4th or 5th November and then again said date for delivery extended to 4th or 5th December through another promise. On 19.01.2015, complainant lodged complaint with OP2 through telephonic call through customer care service centre and OP2 promised to resolve the matter within 24 hours, but that promise even was not fulfilled. After receiving online complaint, Ms. Pathak, official of OP1 contacted complainant on 29.01.2015 and finally promised to deliver the car in the month of February 2015. Due to this assurance and various telephone calls, complainant kept on getting lame excuses qua delivery and finally after issuing legal notice dated 31.01.2015, this complaint filed by claiming deficiency in service on the part of Ops. Directions sought against Ops to refund Rs.50,000/-, the booked amount with interest. Compensation of Rs.5,00,000/- for mental agony and physical harassment and litigation expenses of Rs.22,000/- more claimed.
2. In written statement filed by OP1, it is pleaded, interalia, as if complaint is not maintainable in present form and the same alleged to be filed for extorting money. It is claimed that complainant is not a consumer and as such, he has no right to file the complaint. Advance amount of Rs.50,000/- has already been returned to complainant and as such, complaint alleged to have become in fructuous. It was within knowledge of the complainant that no specific date fixed for supply of the car. In the sale contract agreement delivery date is mentioned as tentative date and not the agreed date. Manufacturing company supplied the lesser number of cars of model and make optioned by complainant due to which booked car was not available for delivery with OP1. That fact was brought to the notice of the complainant time and again. Complainant booked the car of golden brown colour due to non availability of black colour and the said car was made available to complainant in November 2014, but complainant claimed that as the car is of 2014 model and as such, he will get delivery in the month of January 2015, so that model of 2015 car will become available to him. In January 2015, booked car was not supplied by manufacturer and therefore, complainant expressed his desire to get refund of the booked amount and the same was refunded. So it is claimed that there is no deficiency in service on the part of OP. Admittedly, Rs.50,000/- was paid by complainant to OP1 as advance money. Each and every other averment of complaint denied and dismissal of complaint prayed for.
3. In separate written statement filed on behalf of OP2, it is pleaded that false and frivolous complaint with ulterior motive has been filed against it for defaming it. Complainant has not leveled allegations qua manufacturing defect and manufacturer is not a necessary party. It is claimed that relations between manufacturer and distributor are on principal to principal basis. Terms and conditions of the dealership agreement are binding on both parties and sale contract was executed between OP1 and complainant and the advance amount through cheque was paid to OP1. In that transaction, OP2 was not involved in any way. At the time of booking, tentative date of delivery is given to the customer depending on the availability of optioned car. Each and every other averment of complaint denied by praying for dismissal of complaint.
4. Complainant to prove his case tendered in evidence his affidavit Ex. CA along with documents Ex. C1 to Ex. C5 and then closed evidence.
5. On the other hand, counsel for OP1 tendered in evidence affidavit Ex. RA of Sh. Charanjeet Singh, Executive of OP1 concern along with documents Ex. R1 & Ex. R2 and then closed evidence. Counsel for OP2 tendered in evidence, written reply by OP2 and then closed evidence.
6. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through carefully.
7. Ex. R2 is the letter showing that the amount of Rs.50,000/- has been returned back to complainant on 06.07.2015. There is no dispute qua the fact that the booking of the car was got done by complainant with OP1 through sales contract Ex. C1. Perusal of Ex. C1 reveals that originally black colour car Honda City VX model was got booked by complainant with OP1 by paying Rs.50,000/- through cheque dated 08.07.2014. No specific date of delivery of the vehicle mentioned in this Ex. C1 and as such it is vehemently contended by counsel for OP1 that car was made available to complainant as and when supplied by the manufacturer. In Ex. C1, itself it has been mentioned that delivery of the vehicle to take place after receipt of full payment and no verbal commitment to be honoured and as such, it is vehemently contended by counsel for OP1 that the car was to be made available to the complainant as and when supplied by OP2. However, complainant himself opted for change of colour from black to golden brown and as such, it is contended that there is no fault on the part of Ops. All these submissions advanced by counsel for OP1 though exfacie has force, but in fact the same has limited force in view of the fact that the amount advanced cannot be retained for unreasonable period.
8. After going through para No.5 of the written statement of OP1 itself, it is made out that the complainant was disclosed as if he can get the delivery of golden brown car in November 2014, but complainant himself expressed desire to get the delivery of the car in January 2015 so that received car may be of higher model. Further after going through para No.5 of written statement of OP1 itself, it is made out that in January 2015, the car was not supplied and thereafter, complainant expressed desire for refund of the booked amount. So that desire for refund was expressed by complainant virtually in January 2015 as per claim of OP1. If that be the position, then certainly OP1 should have refunded advanced booked amount of Rs.50,000/- immediately after January 2015, when notice Ex. C3 to Ex. C5 for that purpose was served by complainant on OP1 and OP2. However, refund of amount took place on 06.07.2015 as borne by contents of Ex. R2 and as such, virtually return of amount of Rs.50,000/- did not take place immediately on expression of desire by complainant for refund of the amount of Rs.50,000/-. In view of the late refund of the amount by OP1 to complainant, certainly complainant had to bear financial loss on interest. On FDR in the bank interest @8% per annum is payable and as such, for the period for which booking amount of Rs.50,000/- withheld by OP1, complainant is entitled to interest @8% per annum for withholding of amount w.e.f. 01.02.2015. The date chosen by keeping in view the contents of notice Ex. C3 to Ex. C5 and as such, complainant is entitled to interest on amount of Rs.50,000/- we.f. 01.02.2015 to 05.07.2015. As the complainant had to serve notice for getting withheld amount by OP1 and as such, complainant is entitled to compensation for mental agony and harassment from OP1. Contract Ex. C1 was arrived at between complainant and OP1, to which OP2 was not a party and as such, certainly submissions advanced by OP2 has force that OP2 is not liable at all.
9. Even if date for delivery of the vehicle was not mentioned in Ex. C1, despite that the booking amount of Rs.50,000/- has been withheld by OP1 for unreasonable period. Return of the same sought by complainant after issuing of notice Ex. C3 to Ex. C5 on 31.01.2015. Despite that said amount withheld for five months at least and as such, deficiency in service on the part of OP1 is to this extent. However, as the date for delivery of the vehicle in Ex. C1 was not specified and as such, complainant is not entitled to interest for period 07.08.2014 to 31.01.2015 at least.
10. So complaint deserves to be allowed in terms that complainant is entitled to interest on the returned principal amount of Rs.50,000/- w.e.f. 01.02.2015 to 05.07.2015. As the amount of Rs.50,000/- has already been returned by OP1 to complainant after filing of the complaint and as such, lesser compensation for mental agony and sufferings should be allowed. Complainant is held entitled to compensation for mental agony and harassment of Rs.2000/- and to litigation expenses of Rs.2000/- more. Liability of paying interest amount along with litigation expenses and compensation amount will be of OP1 alone because OP2 was not a privity of contract Ex. C1 arrived at between complainant and OP1.
11. As a sequel of above discussion, complaint allowed in terms that complainant will be entitled to interest only on refunded amount of Rs.50,000/- for period from 01.02.2015 to 05.07.2015 from OP1. Litigation expenses of Rs.2000/- (Rupees Two Thousand) and compensation for mental agony and suffering of Rs.2000/- (Rupees Two Thousand) more allowed in favour of complainant and against OP1. Complaint against OP2 is dismissed. Payment of interest amount and of the litigation expenses and compensation amount be made by OP1 to complainant within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Vinod Bala) (G.K. Dhir)
Member President
Announced in Open Forum.
Dated:11.04.2016.
Gobind Ram.
